Penthouse Retrospective

by Jon Stewart and Peter Wiley Originally Published: June, 1981

Mormon Roots | 40 Years Ago This Month

The land claims law was, in fact, the biggest victory ever obtained by the government and by lawyers over the Indians. It was designed to end, once and for all, all legitimate Indian claims to traditional homelands. The claims would be “terminated,” not by the restoration of lands, as many Indians had been led to believe, but by allowing the government to “buy out” the claims using land prices that had prevailed several generations back. The law-dubbed the “Indian Lawyers Welfare Act” by its critics-also provided that tribal lawyers would receive settlement fees ranging from seven to ten percent of the total purchase price. Since settlements, even at nineteenth-century prices, often reached into the millions, the lawyers were highly motivated to encourage tribes to sue. According to one authoritative estimate, Indian-claims lawyers, virtually all white, have reaped at least $60 million by “selling off” Indian lands.

“It also became an incentive for lawyers to prove how much the Indians no longer owned,” said one lawyer familiar with the Ute case. “The more land the Indians lost, the more money the lawyers got.” At the heart of the controversy over the law was the stipulation that all settlements be made in cash. Time and again Indian leaders have stated that they never understood this provision of the act and that their lawyers, including the most prominent of the Mormon attorneys, led them to believe that by filing a land claim they stood a good chance of actually getting their lands back. Even today traditional Hopi, Paiute, Shoshoni, Gosiute, and others argue passionately that they never realized that in making a claim they were offering to sell their land. Ernest Wilkinson, who would go on to become head of B.Y.U. and one of the most respected and richest elders in the Mormon church before his death in 1978, represented each and every one of them.

In the first claims settlement, the Ute received $31 million for lost Colorado lands plus oil and gas lease royalties from leases that were worked out by the tribe’s Mormon attorneys. They were getting rich, or so it looked. But instead of contributing to tribal prosperity, the funds quickly resulted in widespread unrest among the various bands that occupied the Ute reservation.

Foremost among the causes of that unrest was a new piece of legislation introduced by Utah’s Senator Watkins, Wilkinson’s old Mormon ally. Watkins, following the lead of the claims act, was determined to carry the “termination policy” to its logical conclusion. Under the guise of freeing the Indians from the “yoke of federal supervision,” termination a la Watkins amounted to extermination. The new policy called for the end of all government services to Indians, the imposition of state jurisdiction over all Indian lands, the eventual sale of all Indian lands, and, in the meantime, the transfer of title to an appointed trustee.

In the end, the infamous Watkins policy “terminated” 20 tribes, bands, and remnants of tribes. Watkins would go on to become head of the Indian Claims Commission. Wilkinson’s partner, John Boyden, would soon succeed his mentor as one of the nation’s most controversial Indian land-claims attorneys.

“The highest-ranking Indian in the Mormon church complained about Indian militants: ‘They criticize the government for stealing all their land — they make a stink about every little thing.’”

Salt Lake City attorney Parker Nielson, who now represents the terminated mixed- bloods, says that Boyden was “not intentionally devious, but he had a very myopic view of Indians and their problems. He saw it as a problem of converting them to round-eyed Caucasians and particularly Mormon round-eyed Caucasians. That was the intention of (Watkin’s) termination policy, which he helped to design. It contributed to the urban Indian problem. It forced the Indians off the reservation and into the cities. I am told that Paiute (once terminated but recently restored to tribal status) are actually going out and committing suicide by walking under motor vehicles.” Nielson calls the whole affair “a cultural tragedy.”

Nielson’s view of Boyden closely corresponds to that of an official in the Department of the Interior who, after working with Boyden for five years on another Ute case, wrote in an official memorandum that the attorney is “first of all a Mormon, secondly, a very strong state’s advocate, and, thirdly, an advocate for Indian people.”

Boyden, who began his legal career as a U.S. attorney in Salt Lake City and later was an unsuccessful candidate for governor, soon left the Wilkinson firm to set up his own, known as Boyden, Kennedy, Romney.

Boyden and his son Steye continued to represent the Ute tribe until recently, when our old friend Martin Seneca from the BIA took over as a private attorney. In the early 1970s, the tribal council launched a second effort to fire Boyden as general counsel for his part in negotiating a Ute water-rights deferral that would divert Ute water to Salt Lake City. The expanding city, led by the expanding church, needs the additional water if it is to continue to grow as a western energy center. The tribal council’s attempt to dump Boyden was rebuffed by the Department of the Interior’s solicitor in Utah, William Mcconkey, who overruled the tribe.

Ute water continues to be of paramount interest to the church, city, and state (which are inextricably interlocked), but it is not the only Ute resource coveted in Salt Lake. Oil and gas leases from the tribe currently bring in some $9 million a year to tribal coffers, and the reservation sits on some of the best shale oil land in the West, waiting patiently to be developed in the promised era of synfuels.

All religions have roots in concurrent uplifting and occasionally horrific experience. The Mormon church followed Western settlers in general.