The troubling history of using conservatories to exploit and defraud Native Americans

Britney Spears’ pop singer quest to end guardianship who handed over control of his finances and health care to his father demonstrates the double-edged sword of placing people in the legal care and control of another person.

A judge may sometimes find it necessary to appoint a tutor or curator to protect a vulnerable person from the abuse and cunning of others, or to protect them from poor decision-making about their own health and safety. But when it is handed over to selfish or unscrupulous conservatives, however, it can lead to exploitation and abuse.

Celebrities like Spears may be particularly vulnerable to exploitation due to their ability to generate wealth, but they are far from the only people at risk. As a lawyer with decades of experience representing poor and marginalized people and a specialist in Indian tribal and federal law, I can testify to how systemic inequalities within local legal practices can exacerbate these potentially exploitative situations, especially for women and people of color.

Perhaps nowhere has the impact been more severe than with the Native Americans, who were put under guardianship due to a system of federal and local policies developed in the early 1900s purportedly aimed at protecting Native Americans receiving government-allocated lands. Members of Five Civilized Tribes of Oklahoma – The Cherokee, Choctaw, Chickasaw, Creek and Seminole Nations – have been particularly affected by these practices due to the discovery of oil and gas under their lands.

Ripped off by “friendly white lawyers”

A guardianship, or a related designation called guardianship, takes away decision-making autonomy from a person, called a “ward”. While the curator is supposed to act in the best interests of the parish, the system can be open to exploitation, especially when it comes to large sums of money.

This was the case between 1908 and 1934, when guardianship has become a vector of fraud indigenous communities from their lands and royalties.

By then, federal policy had forced the suppression of the five civilized tribes from the eastern and southern United States to what is now Oklahoma. Subsequent federal policy converted large tracts of tribal-held land into individual awards that could be transferred or sold without federal oversight – a movement which has fractured the communal lands. Land deemed “surplus for Indian needs” was sold to settlers or white businesses, and native allotment holders could also sell their plots after the end of a 25-year trust period or otherwise be subject to tax assessments and other administrative actions. Through this process Indian land holdings have declined from “138 million acres in 1887 to 48 million acres in 1934 when the allotment ended,” according to the Indian Land Tenure Foundation.

During the 1920s, members of the Osage Nation and the Five Civilized Tribes were considered among the richest people per capita in the world due to the discovery of oil and gas under their land.

However, this discovery turned them into victims of predatory schemes that have left many penniless. or even death.

Reflection on this period in the 1973 book “One hundred million acres, ” Kirke Kickingbird, lawyer and member of the Kiowa tribe, and former Special Assistant of the Office of Indian Affairs Karen Ducheneaux wrote that the members of the Osage Nation “began to mysteriously disappear.” When they died, their property was left “not to their families, but to their friendly white lawyers, who came together to bring them into the Happy Hunting Ground,” added Kickingbird and Ducheneaux.

Lawyers and conservatives also stole land and funds before death, procuring themselves appointed guardians and curators with full authority to spend their wards’ money or rent and sell their land.

Congress created the initial conditions for this widespread corruption and abuse through the Law of May 27, 1908. This law transferred jurisdiction over the lands, persons and property of Indian “minors and incompetents” from the Department of the Interior to local probate courts in Oklahoma County. Related legislation has also enabled the Home Office to put earth in or out of trust protection based on its assessment of the competence of Native American beneficiaries and their heirs.

Freed from federal oversight, estate courts and local lawyers seized the opportunity to use guardianship to steal Native American estates and lands. As described in 1924 through Zitkála-Šá, a prominent Native American activist commissioned by the Home Secretary to study the matter, “When oil is ‘struck’ on the property of an Indian, it is generally considered prima facie evidence that he is incompetent, and in the appointment of a tutor for him, his wishes in this matter are rarely taken into account. “

County courts have generally declared Native Americans incompetent to handle more than a very limited amount of money without any finding of mental incapacity. Zitkála-Šá’s reportand congressional testimony documented numerous examples of abuse. Breaches of trust have been documented in which lawyers or other appointed conservatives have taken money or land from members of the Nation for their own businesses, personal expenses or investments. Others conspired with friends and associates to deprive “wards”.

“Plums to distribute”

One of those women in Zitkála-Šá’s report was Munnie Bear, a “common sense young woman from Creek.” . . . [who] operated a farm which she had inherited from her aunt, her own plot being leased. Munnie saved enough money to buy a Ford truck and cattle for his farm, the remaining savings in a bank account. Once the oil was discovered, however, the court appointed a guardian, who appointed a co-guardian and hired an attorney, each of whom deducted monthly fees that depleted Bear’s funds. During the period of her tutorship, she was unable to spend money or make decisions regarding her farm or livestock, nor did she control her banking investment.

Zitkála-Šá’s report shows the extent of this practice:

“Many county courts are influenced by political considerations, and… Indian trusteeship is the plum to distribute to loyal friends of judges as a reward for their support at the polls. The main activity of these county courts is to manage Indian estates. Judges are elected for a two-year term. That “extraordinary services” in connection with Indian domains are well paid; a lawyer, by court order, received $ 35,000 from a ward’s estate and never appeared in court. ”

Wards were often kept below subsistence level by their curators while their funds and lands were depleted by the billing of excessive guardian and attorney fees and administrative fees, as well as actual abuses through corruption. , neglect and deception.

Reports like Zitkála-Šá’s led Congress to adopt the Indian Reorganization Act of 1934. This handed over Indian lands that had not fallen into non-Indian hands during the federal policy of allocating plots to tribal ownership and secured them in the trust of the United States. It also ended the potential for guardianship theft.

But the lands and funds lost as a result of guardianship have not been restored, and the descendants of those defrauded have never taken advantage of their parents’ land and money either.

Andrea Seielstad, professor of law, University of Dayton

This article is republished from The conversation under a Creative Commons license.

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