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It has been a long and winding legal road for Austin lawyer Alan Minter in a case involving land rights for Native Americans. And it has been an even longer and more tortuous trail for the Alabama-Coushatta Indian tribe of East Texas. Now, a ruling by an appellate panel of the U.S. Court of Claims in Washington, D.C., says the tribe has rights to millions of acres of land in 11 Texas counties and may reap a sizable cash settlement or award for it. “The tribe is entitled to damages of 2,850,028 acres of aboriginal lands, which the federal government was obligated to protect,” said the three-judge panel in its ruling, handed down on June 19; it was not received by the parties involved until July. “Accordingly, we recommend that the U.S. government pay full monetary compensation to the tribe.” Currently sitting on 4,800 acres of timberland near Livingston, Texas, in the heart of the big thicket northeast of Houston, the Alabama-Coushatta reservation is inhabited by about 500 tribal members. But in the late 1700s and early 1800s, the Alabama and Coushatta tribes �- separate, but on friendly terms with each other-� lived in the large expanse of East Texas. Mexican control gave way to the Republic of Texas and then to the United States. White settlers moved in and the Native Americans were forced out. The tribes later banded together on the small reservation. The court found that Native American aboriginal land rights were ignored and that the United States had a duty to protect those rights. The damages would be based on the time period from 1845, when Texas joined the United States, to 1954, when the government severed itself from control over the tribe and gave that authority to the state of Texas. Minter, a partner in the Austin, Texas, firm of Minter, Joseph & Thornhill, joined the case in 1971, but had some involvement with it before then as an assistant attorney general in the 1960s. “I’ve slept with it, lived with it and my whole house is filled with it,” Minter says. He says his effort was often “sloughed off” and viewed as “frivolous” by many observers over the case’s long course. “Some of the [Native Americans], including the chief that began this, are no longer with us,” he says. ‘HISTORICAL INJUSTICE’ Alabama-Coushatta Tribe v. United Statesactually has its roots in a 1967 filing with the Indian Claims Commission. The request for land rights was shot down by the 1946 Indian Claims Act, which gave tribes only until 1951 to make such a filing. Minter revived the case in 1971, with advice from University of Texas School of Law professor and recognized federal law expert Charles Alan Wright, by successfully intervening in a pending case in which Oklahoma’s Caddo tribe had filed a claim involving some of the Alabama-Coushatta land. Wright died on July 7 of complications from surgery. Minter got his case before the commission and a hearing officer was considering it when it was tossed out based on precedent in another case, in which a tribe unsuccessfully used a similar intervening tactic to avoid the statute of limitations. As it dismissed the case, the commission held the Alabama-Coushatta tribe did have apparent claims to land in Texas, but could not pursue them under the act. So Minter and the tribe employed a new tactic: seeking congressional approval to sue the United States. It was rough going at first. “People’s reaction was, �Didn’t we solve the Indian problem by killing them off or running them out of Texas?’ ” Minter says. “ What possible claims could the Indians have to lands in Texas?” But they persevered and received the congressional approval in 1983. The suit was filed the next year. “We’ve got a historical injustice and that translates into a claim that has a legal remedy,” says Don Miller, a lawyer with the Colorado-based Native American Rights Fund. Miller joined the Alabama-Coushatta cause in 1980. He says any settlement or award must be approved by Congress, under the special resolution authorizing such cases. At that time, Congress can put an end to the Native American land rights. No one would be forced to move from the disputed land, but cash given to the tribe could be used to expand the reservation by purchasing land. Miller says there have been some 15 such settlements over the past 20 years, although not all of them involve the special congressional oversight. The 1980 case in Maine of Passamaquoddy Tribe v. United States was settled with an $83 million payment for claims to more than 12 million acres of land. As a practical matter, Indian tribes receiving the payouts do not buy land. University of Houston Law Center Professor Jacqueline Weaver, who specializes in matters involving natural resources, says tribes typically use the money for education and enterprises, such as casinos that are aimed at funding long-term economic independence. Weaver notes that Native Americans are winning cases now partly because of an 1823 Illinois opinion that they lost before the U.S. Supreme Court. Johnson v. McIntosh pitted an Illinois man who purchased land from Native Americans against a man who purchased the same land from the federal government. The high court found that Native Americans had no right to sell or give land to settlers unless the federal government approved the deal. “Turn it upside down and around and it is a very powerful weapon,” Weaver says. States did not have federal approval when they took land from Indians, and so the land rights were not legally extinguished. Defending the federal government in this case, the U.S. Department of Justice argued in its brief to the U.S. Court of Claims that the land rights were not properly held in the first place and, if they did exist, they certainly eroded over time. According to attorneys involved in the case and a DOJ spokesperson, the DOJ is considering seeking a request for a rehearing of the case. But the government’s position may be limited. The Alabama-Coushatta tribe actually won before the appellate panel in 1996 and this latest ruling is the result of a request for a rehearing on that decision, which led to only minor changes in the original ruling. Attorneys for the DOJ did not return calls seeking comment. NEW COURT SYSTEM The victory comes with the summer tourist season under way on the reservation. Visitors can camp on reservation land; they can even book space in cabins or campsites through the tribe’s Web site. The tourist industry is a result of a state assistance effort starting in 1965 with the appointment of a Texas Commission on Indian Affairs. In the 1980s, Texas sought to withdraw from oversight of the tribe and the Native Americans successfully won restoration as a federally recognized tribe in 1987, with assistance from Miller and the Native American Rights Fund. But other changes are afoot on the reservation. In the wake of a recent dispute over an oil and gas lease on the land, the tribal council is taking steps to increase its own legal authority over the reservation. Most civil and criminal cases on the reservation will be handled by judges there, rather than in state district court. Miller says the Alabama-Coushatta tribe is one of the few tribes in the country that have not established their own judicial system, as is allowed by law. But the talk of the tribe right now is the land-rights case. “It’s gone on too long already,” says Morris Bullock, chairman of the Alabama-Coushatta tribe. He says a settlement should be reached without further delay. Minter and other lawyers say the case could drag on in the federal bureaucracy and in complicated settlement talks. There is also the issue of millions of other acres of land �- found to have aboriginal rights of the tribe but not federal liability �- which Miller says could cast a shadow over land titles elsewhere in the state. Supreme Court rulings severely limit the right of a tribe to sue the state, but it could ask the U.S. government �- through the Department of the Interior -� to sue Texas on its behalf. Minter notes the irony that the federal government would be represented in such a suit by the Department of Justice. But he says it’s just one option on the table in a complicated legal situation where the Native Americans have the upper hand. Notes Minter, “The one thing I’m proudest of, if we never see a dime, is that they proved that they owned and occupied and were dispossessed of the land, and that decision has been upheld in three separate decisions. And no one can ever take that away from them.”

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