RSS

What is the Tillie Hardwick Settlement About?

27 Nov

As if Indian Law weren’t interesting enough, the Tillie Hardwick decision is a nuanced little corner of that world, one that is only of use to California Indians who seek to restore themselves to federally recognized status.  To know more about it, we have to explore the background behind the original court case.

Background: The California Rancheria Act of 1958

Congress passed the California Rancheria Act (“CRA”) in 1958 (Pub. Law 85-671, http://digital.library.okstate.edu/kappler/vol6/html_files/v6p0831.html#mn1), terminating forty-one (41) California Indian tribes or “Rancherias.”  Those Rancherias are: Alexander Valley, Auburn, Big Sandy, Big Valley, Blue Lake, Buena Vista, Cache Creek, Chicken Ranch, Chico, Cloverdale, Cold Springs, Elk Valley, Guidiville, Graton, Greenville, Hopland, Indian Ranch, Lytton, Mark West, Middletown, Montgomery Creek, Mooretown, Nevada City, North Fork, Paskenta, Picayune, Pinoleville, Potter Valley, Quartz Valley, Redding, Redwood Valley, Robinson, Rohnerville, Ruffeys, Scotts Valley, Smith River, Strawberry Valley, Table Bluff, Table Mountain, Upper Lake, and Wilton.

For those unfamiliar with the term “termination,” what it means is that once upon a time, in the 50’s, the United States government ended its fiduciary relationship with Native Americans.  Via legislation, the government wanted to integrate Native Americans into the taxpaying citizenry by removing their tribal sovereignty against state and local ordinances, such as taxes and federally subsidized healthcare.  With almost no prep whatsoever, the government effectively told the Indians they were on their own, dissolved federal Indian reservations and transferring parcels of those lands into Indians hands, making them private property owners.  The problem was that Indians often had no jobs and little income, leaving them at the mercy of state and local taxes and regulations they were unfamiliar with.  In California, the specific legislation introduced was the California Rancheria Act.  I talked generally about the Termination Era in one of my tribal disenrollment articles.

Moving on, the CRA contained provisions on how the United States would dissolve its relationship with each of the Rancherias listed.  Each Rancheria was to draw up distribution plans for each Indian living there and the United States would undertake surveys and infrastructure improvements.  Once the distribution plans were approved and finalized, federal supervision of the Rancherias and the status of tribal members as Indians would terminate.  After termination, title was to be conveyed to those distributees identified in the distribution plan, dissolving both the federal government’s fiduciary duty to the distributees and the distributed land’s exemption from state and local laws, ordinances, and regulations.

Tillie Hardwick, et al. v. United States, et al.

On July 10, 1979, distributees from thirty-four (34) Rancherias terminated under the CRA brought a class action lawsuit in the Northern District of California against the United States and various government officials.  The Hardwick plaintiffs asserted that the United States violated the Rancheria Act in its effort to terminate federal supervision of the tribes.

Specifically, they claimed that the United States failed to inform the distributees properly of the legal consequences of termination, including the fact that the distributees’ lands would be subject to state and local taxation and regulation, and the fact that the distributees no longer would have access to federal progras and protections.   The class was certified to proceed to trial; however, it settled before that could happen.  The settlement was finalized on December 22, 1983.

The settlement divided the terminated Rancherias into three (3) sub-classes.  The first sub-class contain seventeen (17) Rancherias that were restored to federally recognized status: (1) Big Valley; (2) Blue Lake; (3) Buena Vista; (4) Chicken Ranch; (5) Cloverdale; (6) Elk Valley; (7) Greenville; (8) Mooretown; (9) North Fork; (10) Picayune; (11) Pinoleville; (12) Potter Valley; (13) Quartz Valley; (14) Redding; (15) Redwood Valley; (16) Rohnerville; (17) Smith River.

The second sub-class included twelve (12) Rancherias whose claims were dismissed without prejudice: (1) Graton; (2) Scotts Valley; (3) Guideville; (4) Strawberry Valley; (5) Cache Creek; (6) Paskenta; (7) Ruffeys; (8) Mark West; (9) Wilton; (10) El Dorado; (11) Chico; (12) Mission Creek.  They were dismissed because no class member from these Rancherias owned any property within the original Rancheria boundaries.  The property was either sold to non-Indians when the Rancheria was terminated and the proceeds of these sales distributed to Rancheria members in lieu of deeds to individual parcels of property or all of the property originally distributed was subsequently sold to non-Indians. In either case the federal defendants are unwilling to re-assume responsibility for any of these Rancherias without a final judicial determination of their obligation to do so.

The third subclass consists of a number of individuals, some of whom were members of Rancherias included in the second subclass, whose claims were dismissed with prejudice because of the res judicata effect of prior lawsuits.  (Res judicata is a legal term, also known as claim preclusion, which refers to a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of such cases between the same parties).

Nisenan Maidu Tribe of the Nevada City Rancheria v. Salazar (2011)

Most recently, a listed Rancheria in the CRA is just now attempting to use the Hardwick case to unterminate themselves.

The plaintiff was a former Rancheria that was listed among the 41 Rancherias terminated by the CRA.  They were not amongst the original Hardwick plaintiffs and were attempting to use the Hardwick settlement as a means to “unterminate” themselves.   However, pre-trial discovery had not yet shown whether the plaintiffs were members of the Hardwick class since the only two Indians living within Nevada City Rancheria’s original borders were deceased when the Hardwick lawsuit originally went to court and therefore, could not be served notice to appear.  Presumably, this litigation is still ongoing.

The court also held that the Plaintiff could successfully open the Hardwick settlement to benefit from its ruling if: 1) they could show that it was a member of the Hardwick class; and 2) it would have been in the sub-class of Rancherias actually entitled to relief under Hardwick and not in the one sub-classes of Rancherias whose claims long since have been dismissed, i.e., by demonstrating that at the time of the Hardwick settlement, at least one class member from the Rancheria owned real property within the original Rancheria boundaries.  (To my friends familiar with the law, you would essentially do this under a Rule 60(b) motion.)

Conclusion

The Tillie Hardwick case is a very narrow way allowing California Indians to restore themselves to federally recognized status.  Very few can make use of it, but for those who can, it is possible to use this method to achieve federally recognized status rather than going through the onerous route of 28 C.F.R. section 83.7 et. seq.  (Which could be a few blog articles in themselves.  Hmm…)

About these ads
 
12 Comments

Posted by on November 27, 2011 in Indian Law

 

Tags: , , , , , , , , , , , ,

12 responses to “What is the Tillie Hardwick Settlement About?

  1. Cathy Cory

    November 27, 2011 at 3:14 pm

    Thanks, Erick!

    It is good for you to review for so many people the foundation on which some tribes in California have been able to re-establish their federal recognition, and to see the problems it has lead to in California Indian Country.

    A major problem with many of these tribes–including Picayune–is that they tend to subscribe to the belief that the tribe just “sprang from the earth” miraculously in whatever year a “tribal constitution” was adapted in the years following Tillie Hardwick, and that they are the ONLY people of the tribe to somehow warrant Federal recognition. The problem with that, as we all know, was that many Indian People, including most of the Chukchansi People, were never notified that the tribe was to be terminated as was REQUIRED by the federal government. Similarly, these same Chukchansi People were also never notified that the tribe was to be reinstituted with federal recognition. The distrubutee groups of many tribes such as Picayune therefore refute their own history, blood, and very People in claiming to adhere to their “Constitutions”, which in most cases were developed with little or no input from the People, and in most part were concocted by California Indian Legal Services j(the benefit of the continuation of the various tribes was not high atop their priority list, nor was the traditional way of governance by and for Indian People).In fact, the design of these “Constitutions” have little to do with the Indian way of tribal government. The interpretation of the resulting corrupt tribal councils, such as Picayune’s, are built upon greed and self-centeredness–in the most part brought about by family infighting and the reality or prospect of tribal gaming.

    Too many tribes here in California are disenrolling their People. Even a single tribe disenrolling one person is too many, and we have thousands of Indian People being disnrolled or moratoriumized by their own People. These Indian People’s DNA is in the land, the blood of the ancestors runs through their veins and beats in their hearts, their culture and spirituality is that of the People who came before–who were willing to spill their blood for the future of their People and, in fact, did so to the point of near extinction. Our ancestors were the victims of holocaust, a holocaust perpetrated upon them by European invaders. Our People of today are victims of another holocaust–that perpetrated upon them by their own blood and People in the form of corrupt tribal governments and a paper genocide. How will our People, our cultures, our histories survive? Our elders, our future generations, the very life force and hearts of our People are being destroyed and broken–all under the ruse of “tribal sovereignty” used to inflict this genocide upon our own People. My heart and mind grows sicker each day with what I hear, and what I know, is continuing to occur at Picayune, and similarly throughout so many tribes in California Indian Country and beyond. Something MUST be done to stop it, before our People truly cease to exist in a way that was never accomplished by the Europeans of yesterday but will undoubtedly be accomplished by our own People today without some form of immediate and strong intervention.

     
    • jamie jackson

      December 27, 2011 at 11:44 am

      my great grandmother is Tillie Hardwick I live in ukiah on the reservation the pinoleville tribe no longer exists it was replaced by the pomo nation no decedents of Tillie Harwick are on the role. Now our land is being sold to the people that disenrolled us .Now the Pomo Nation can build their casino!

       
      • Erick

        December 27, 2011 at 11:58 am

        I’m very sorry this happened to you and your family.

         
  2. rhabec

    May 4, 2012 at 1:48 pm

    Great review.
    Amazingly, the information you’ve given here about the Hardwick case and its applicability to the CR’s and that of the federal status of these Rancherias is so terribly (near impossibly) hard to locate though information available in federal publications. Thank you.

     
    • Erick

      May 8, 2012 at 12:09 pm

      Tell me about it. I’ve heard of this case for the past 10 years, but couldn’t find a single document about it. Only when a tribe recently tried to use it to gain recognition did I finally find some things on it. I’m glad I was able to post some info about this obscure case to the masses!

       
      • rhabec

        May 10, 2012 at 11:17 am

        Thanks for the reply; I’m a paralegal and have been researching one particular Rancheria (on Tillies list) for nearly two years. If you get a few minutes and don’t mind a few questions, and frankly based on your blogs I don’t think you mind sharing your thoughts, please use the email address I’ve provided on this reply forum to contact me.
        Hope to hear from you.

         
  3. Erick

    May 15, 2012 at 11:57 am

    Sorry for the lateness of my response. I’ll email you as soon as I can.

     
  4. KhooYoo Wikh Ama'na

    August 31, 2012 at 7:37 am

    None of this was ever meant to extend to everybody and anybody who once upon a time had an Indian ancestor. Nobody talks about these said “Natives” being disenfranchised…how many of them are even “Native” anymore?? Like c.cory mentioned the ppls DNA in the land and in the “blood” where is the proof that these ppl belong to begin with? You may have had an Indian ancestor @ one time , that doesn’t entitle you to the “tribe”. Know your ppls ways pre 1850 and see if you fit in or if your ppl even stayed Indian & married Indian over the past century… That is where you define the “people”. Like it or not, you have every right to maintain every “bit & piece” of ones own history & heritage, however that alone does not = tribal membership. YOU HAVE TO HAVE BEEN INDIAN AND STAYED INDIAN. If your family was “non-Indian” or identified as your dominate heritage all these years and/or married non Indian for the last however many generations since that Indian ancestor then you are NOT tribal THIS WOULD NOT AND NEVER DID EXTEND TO YOU, Be that as it may these ARE OUR WAYS. Half the people being represented in media and other have no culture with which to identify themselves among the tribe.. Be honest here. Though this is not ALL it is by and large MANY. Hold an eagle feather to your truth(hopefully your Indian enough to understand that) and truelly ask how many of these people began there “fight” to be &/ stay Indian AFTER THE CASINOS?? Most of these people Found Out they were descendants of a casino tribe and went from there… There were far and few of the family’s that we’re legitimate AND fighting for membership pre-1950. STOP perpretrating the “good fight” people, you are all in line with uncle Sam on that boat,Tearing down our sovereignty!

     
  5. Oranna B. Felter

    November 30, 2013 at 11:36 pm

    Would love to hear everyone’s views on the “Terminated Uinta Band of the Ute Indian Tribe of Utah” who was terminated about the same time as the Hardwick. Have any of you heard of us? Did you know we were illegally terminated? Did you know that our people never asked or wanted to be terminated? Did you know that out of 490 that was terminated approx. 260 were minor children? Did you know that rich businessmen such as Piper Plane corp. and other big corporations is getting federal trust money that should be going to the terminated Uinta’s? Did you know that many of my people died poor, homeless and sick? Did you know it has been 59 years since we were terminated and no one will help us to regain our identity, or lands, our gas, oil and minerals etc. not even our own congressmen and senators from Utah? Did you know that two books has been written about us? “Termination Legacy” and “The Discarded Indians of Utah.” and yet no one will help. Did you know we are not elders and a lot of our people have walked on? Did you know our children have no identity’s?
    Did you know we have been in every Federal Court there is trying to right the wrong that was commited against us without any success?
    Did you know that we are not trying to have the law that terminated us Repealed but have very little support from the other American Indian tribes, bia, fed. government and the Ute Indian tribe?
    If you want to help contact us. Contact our Attorney Dennis Chappabitty who has hung with us because he knows the pain and suffering we have endured.
    As far as I am concerned “Disenrollment” is nothing but another word for “Termination..”
    Oranna B. Felter Terminated Uinta Band of Ute Indians of Utah

     
  6. Oranna B. Felter

    November 30, 2013 at 11:43 pm

    A few mistakes to the above comment that I needed to correct. We are “elders” even the young ones on our roll is not in their fitys and sixtys.
    Did you know that we are trying to get the law that terminated us repealed but we get no support?
    Also the the two books about us is: “The dispossessed” Cutural Genecoide of the Mixed Blood Uintas and “Termination Legacy” The Discarded Indians of Utah.
    sorry about the mistakes I was trying to type too fast, but we need help, anyone who wants to help us we would appreciate it. contact us, contact me or our attorney.
    Thank You, Oranna B. Felter Member of the Terminated Uinta Band of Ute Indians of Utah

     
  7. Jim Marino

    January 27, 2014 at 5:15 pm

    The Rancheria Act did not terminate any tribe that was not lawfully in existance already prior to the distribution of the rancheria lands. The distribution of fee lands under the CRA were to individuals NOT TO TRIBES! The settlement AND JUDGMENT provided that any residents that remained on the rancheria could apply for tribal recognition and acknowledgment under the processes available within the Department of Interior for tribal acknowledgment and recognition. Rancherias were small parcels of land purchased in fee (not trust) by the federal government to provide a place of occupation and use to needy and homeless Indians of no particular band or tribe. RANCHERIAS WERE NOT TRIBES OR BANDS OF INDIANS. Rancherias were parcels of land identified by their geographic location. Through sloppy references within the BIA they began referring to the location of the rancheria lands AS IF they were tribes or recognized bands of Indians when they were NOT. Needy unaffiliated Indians obtained the right to occupy and use these rancheria lands by an “assignment” from the federal government. The Rancheria Act (section 10) provided that those occupants of rancherias that recieved a distribution of land in fee from the federal government had their status as “Indian” extinguished. Tillie-Hardwick voided that effect and restored status to them as individual Indians and did not create any “tribes or bands”. That judgment provided further that any distributee of the fee lands that wanted to create Indian trust lands for themselves had to deed their fee land back to the federal government “in trust” within a two year grace period following entry of the final stipulated settlement and judgment. Most of those individuals that recieved a fee deed did NOT deed their land back to the federal governent in trust but kept it as their own fee lands. The judgment in Tilie-Hardwick is probably the most misunderstood and misrepresented judgment ever entered and has even been misrepresented by the federal government who has misused it’s provisions to declare inelligible fee lands as being elligible for gaming under 25 USC 2703 (4) and (5) in the Indian Gaming and Regulatory Act. Many cases challenging this erroneous use and interpretation of that judgment and stipulation are now pending in federal courts.

     

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
Follow

Get every new post delivered to your Inbox.

Join 461 other followers

%d bloggers like this: