Because the bill mandates rules of decision to be applied by the Court of Claims in claims against the United States, it intrudes upon the judicial function of that court and deprives the tribes of their Due Process right to an independent judicial determination of the constitutional claims.

CONCLUSION

This memorandum presents the major constitutional defects of the proposed legislation. There are other constitutional challenges to which it is subject, e.g., Congress cannot constitutionally ratiry a state treaty inasmuch as the Constitution expressly forbids the state to enter into treaties. U.S. Const., art. I, sec. 10. Should the bill be enacted, the constitutionality of the act will be challenged on all these grounds by the affected tribes.

While that complex litigation makes its way through the federal court system, the present cloud on the non-Indians' title arising from the tribal claims would continue. In addition, the likelihood of success on at least one of the constitutional challenges is great in our judgment. In that event, of course, the act would never have its intended effect of confirming non-Indian title. The cloud on non-Indian title cannot be immediately dispelled, then, without the tribes consent and cooperation. And, the cloud on non-Indian title can never be dispelled unless the act is constitutional. This bill proposes a solution that is not only unacceptable to the tribes, but is also unconstitutional. As such, it simply will not work.

Senator COHEN. Our final panel is fairly full. Mr. Ken Woodington, the assistant attorney general of South Carolina; the South Carolina Indian Claims Commission, Palmer Freeman, Jr.; Betty Jo Rhea of Rock Hill, S.C., for the Rock Hill City Council; Hon. John C. Hayes, representative in the South Carolina State Legislature; Tri-County Land Owners Association, Mitchell K. Byrd, legal counsel; Rock Hill Chamber of Commerce, Mr. Clint Carpenter; and a number of defend

а. ants, J. D. Todd, legal counsel, representing them; and Mr. David Harris, member of the Catawba Tribe Executive Board.

Please proceed, Mr. Woodington.

STATEMENT OF KENNETH P. WOODINGTON, SENIOR ASSISTANT

ATTORNEY GENERAL OF SOUTH CAROLINA

Mr. WOODINGTON. Mr. Chairman, thank you very much. I am from the attorney general's office in South Carolina, and have been sent here by the attorney general to testify in support of this legislation.

Mr. McLeod, the attorney general, and I have worked for 6 years on the Catawba, off and on, mostly through negotiations. We are here to support the legislation today because of the fruitlessness of that 6-year labor.

You have already heard the description by Ms. Toal of an effort 2 years ago. It was perhaps the longest and most serious effort to get this matter settled. And you have heard her say that owing to a close vote on the State Commission, the Settlement Študy Commission, the proposition failed and but for that we would have it all wrapped up by now.

Well, that is the first thing that killed it, that is true. But also in that proposition was an understanding that Congress would pay at least $30 million cash to the Catawba Tribe, a good proportion of which would go to cash payments to individual tribe members. I submit that had that proposition gotten past the State and into Congress, it probably would have died for that reason because of that amount. At the time, the figure being talked about was $7 to $10 million. So it is a case of the most obvious thing happening, not being the only thing to cause the failure of that settlement.

Senator COHEN. Well, I do not think it is productive to prejudge what Congress might or might not have done. Frankly, the amount that was settled in the Maine case was substantially less than what was arrived at and approved by the entire Congress, both the House and the Senate, as well as the administration. They finally approved a sum of money that was considerably greater than what was originally suggested at the start. This was not to the satisfaction of everybody but it came to the recognition that, if it went to court, everybody loses. The landowners lose, if it stays 10 to 15 years in court, while the cloud remains over all the land. The kind of economic deprivation that is inflicted on the State, my own State at that point, would have been devastating.

We were not happy with the settlement in its entirety but the fact of the matter is, we came to the conclusion that it is far better to arrive at some kind of settlement than to go forward to court.

Frankly, what I have been trying to suggest here is that even if this bill was reported out in some form, that it is not going to terminate it. You are going to see more cases filed. And the claims are going to remain, whether they are valid or not valid. They are still going to have to be litigated. You are going to back testifying in front of your district court. Whether it is a credible claim, or a colorable claim, you are going to back there, and landowners who are sitting down here today are going to back looking for some kind of relief from these claims which they will say have been extinguished by the Congress. And the tribes are going to come in and say they were not extinguished by the Congress, Congress acted unconstitutionally, and until such time as the Supreme Court rules on its constitutionality, then we are going to proceed as we are entitled to proceed in the Federal courts.

So it is that kind of reality that is out there that should concentrate the minds, wonderfully, of everybody involved, as to what is at stake. I would like to say that if Congress were to act with this particular bill or some version of it that that is going to terminate it. My instincts tell me that that is not going to be the case.

Mr. WOODINGTON. In answer to that, some of which I certainly agree with, part of the problem in South Carolina is that we have an intermediate area. Rhode Island was too small to really constitute a precedent. Maine is really too big to constitute a precedent. A very small percentage was given up in Maine by the State. They had a State park up there, but we just have an area that is somewhere in the middle, 144,000 acres.

Senator COHEN. It was 300,000 acres in the State of Maine.

Mr. WOODINGTON. That was made Indian lands, in some fashion. Well, it was still a small percentage of the total claim area, is what I am saying

Senator COHEN. The claim area was 12 million acres. So it is a pretty good settlement from the State of Maine perspective in terms of 300,000 acres is a lot of land. That is a lot of land up there, but compared to 12 million acres, it was not a bad settlement.

Mr. WOODINGTON. That is right. The other thing that kind of messes up the issue a little bit in South Carolina is, we have a substantial body of the tribe, the numbers of which have never been determined exactly, who want cash payments to individuals, and who just simply

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will not settle without cash payments to individuals, at least a negotiated settlement. We have that problem.

All of this is just simply directed at pointing to the fact that negotiations have not been successful even though we had a very detailed agreement between some State officials and some local officials. It just fell through.

Otherwise, I will just simply summarize my written statement which has been handed up, and say that, as probably others have said, that we think this is a Federal problem. It was a Federal omission. Reference is made galore to that. A monetary settlement is fair in the case of the Catawba Tribe particularly. I have to dispute Ms. Toal a little bit when she says they have had a strong tribe, a reservation or tribe, anyway, back to colonial times. In fact, as early as 1755, the settlers were directing the Catawba elections of who their chief would be. That is not much evidence for a very strong tribe. I think if we had to prove that, we could.

Senator COHEN. I am sorry. I did not follow that point. What did you say?

Mr. WOODINGTON. In 1755, the Catawbas had an election for their chief, which was administered by settlers, white people. That was the relationship that existed that far back.

My last point really is that this is probably the most appropriate time for Congress to act. There are all kinds of problems—if even one of these cases goes to final judgment and Congress does something to undo that judgment—there are all kinds of issues that are going to come into it that are not related to any fault of the landowners or anyone else and it is just going to be that much more difficult if we are ever back here again trying to undo a judgment.

With that, I thank you very much.

Senator COHEN. Thank you very much. Your prepared statement will be made a part of the record of this hearing.

[The statement follows:]

PREPARED STATEMENT OF DANIEL R. McLEOD, ATTORNEY GENERAL OF SOUTH

CAROLINA, AND KENNETH P. WOODINGTON, SENIOR ASSISTANT ATTORNEY GENERAL

Mr. Chairman and Members of the Committee, thank you for the opportunity to appear before you today to testify on S. 2084, H.R. 5494, a bill which would create the "Ancient Indian Land Claims Settlement Act of 1982.'

We have been involved in efforts to settle the Catawba claim in South Carolina since 1976. Prior Attorneys General of South Carolina have faced the same problem extending back as far as the early 1900's. These eighty years and more have passed with no success in achieving a successful negotiated settlement, and the claim persists in clouding titles to 225 square miles in South Carolina, including all the land in a city of over 50,000 persons. The matter is now in litigation, and although the District Court recently dismissed the Catawba claim in its entirety, an appeal will be taken by the Catawbas. The litigation potentially could continue for many years.

We understand that some testimony today will concern the plight of the many innocent landowners whose title is clouded through no fault of theirs. We will not repeat this testimony, but we concur in it fully.

It is apparent to us that the bills presently before Congress offer the only reasonable hope at present of settling these claims. The two prior settlements in eastern Indian land claims are not sufficiently analogous to provide a framework for a settlement in South Carolina. In Rhode Island, the land area involved was small, and the State could give up a large precentage of it without losing much land in fact. In Maine, the claim area was so vast that even the minute portion of it which was settled upon the Indians constituted many thousands of acres. The South Carolina claim area, however, is much smaller than that in Maine and much larger than that in Rhode Island.

As settlement discussions have proceeded over the years, the impossibility of reaching an acceptable middle ground has become more and more apparent. Many meetings were held in the summer of 1980 which resulted in a carefully negotiated settlement proposal. This proposal, however, was unacceptable to a state commission charged with responsibility in the matter; the commission foresaw difficulties with the degree of sovereignty given the Indians and the federal government in the proposal. Even if the proposal had been accepted by state officials, however, one sizable faction of the Catawbas would not have been willing to settle without an extremely large provision for cash payments to individuals. The amount which would have been sought from Congress for such payments was so high that it alone would probably have doomed that proposal for settlement. Finally, the amount of the state contribution which was agreed to in 1980 has since become impossible of passage because of economic conditions in the state.

In view of the multiplicity of obstacles to a negotiated settlement, I fully support the bills under consideration. They recognize the essentially federal nature of the problem, for if an omission occurred, it occurred because of a failure of the federal government to ratify the ancient treaties in question. At the same time, the bills would provide a fair monetary settlement for any Indian group which can establish that it is entitled to it. A money settlement is a fair settlement in states such as South Carolina, in which the Catawba Indian group ceased to function as a tribe centuries ago. A land settlement in our State would create something which has not existed there since before the American Revolution, namely, a land-based, functioning Indian tribe. The history of the Catawbas simply does not warrant their "restoration” to a status which they have not held since colonial times.

Undoubtedly, it will be claimed that without federal trusteeship over their lands, the Indians in South Carolina and elsewhere will not be able to insure a permanent land base. We respectfully submit that the present Indians have the legal talent available to them to place land in trust with strict requirements (such as a 75 percent or more majority vote) to be met before the trust is dissolved. There is no reason to think that the improvidence which was often present in early Indian land transactions would still occur. In South Carolina there is a "reservation" of 630 acres held in trust by the State for the Catawbas. We would have no objection to supporting the turnover of this land to the Catawbas as part of this settlement if they so desired.

Finally, we submit that this is the most appropriate time for Congress to take the action proposed by the bills. If even one of the cases in litigation should proceed to final judgment in favor of the Indian claimants, Congress would probably be forced to take some action to relieve the thousands of innocent landowners affected. Such action, however, would follow years of expensive litigation and carry with it the stigma of Congressional overruling of a court decision in a specific case. This appearance of disrespect for the courts, which has nothing to do with the innocent landowners, will not be present if Congress acts now on the proposed bills. There is no need to suffer the years of litigation which would only result in the states and landowners returning to Congress if the Indians succeed in one or more cases.

In conclusion, it appears from our lengthy experience in negotiating over this claim that the present bills contain the only solution which stands a reasonable chance of ending the claim while affording some recompense for any Indian group entitled thereto.

We accordingly encourage the passage of this legislation.

STATEMENT OF PALMER FREEMAN, JR., MEMBER, SOUTH

CAROLINA INDIAN CLAIMS COMMISSION Mr. FREEMAN. Thank you very much, Senator Cohen. .

What I want to do is briefly recount to you the history of the commission to study Indian affairs, which was basically intended to be a settlement commission to resolve this issue legislatively.

I have prepared a written statement which I have submitted, and I want to just briefly summarize that because I know your time schedule is somewhat tight.

Senator COHEN. We will be pleased to include your statement in the record of this hearing. Thank you.

Mr. FREEMAN. This commission was formed in 1978 when this problem first became apparent. Thereafter, Congressman Holland introduced a skeletal bill which he thought might settle the issue, which was House Resolution 3274. Testimony at that time by the chairman of the commission, Robert McFadden, indicated that the commission favored a legislative settlement of the problem, much along the lines of the type you are discussing.

Thereafter a work group was founded which included representatives from the tribe, representatives from the commission, representatives from other factions. They came out with a proposal, public hearings were held on that proposal and shortly after the public hearings it became apparent that the sentiment among the populace was not for passage of the work group proposal.

Let me briefly outline it and tell you what I think the points were. I was not on the commission at that time, but I have a pretty good feel for what they were trying to do because my house is in the claim area and I have been keeping up with it for that reason.

The Indians are claiming 144,000 acres. They would have agreed to extinguish that claim. The Indians wanted the right to expand their reservation up to 4,800 acres by voluntary purchase of property The Catawbas would have contracted for and received the Federal services, assuming that would have been granted. The State would have reserved control over most aspects of the reservation which would have been created and the Federal Government was to contribute up to $30 million. The State was to contribute $1.35 million together with the existing 630-acre reservation, which is held by the State now in trust, for the Indians.

The primary breakdown on that occurred on the expansion of the reservation. There was a strong concern among the populace, especially around the reservation area, that if the reservation were expanded that would erode the tax base, that other problems would ensue from that which were not acceptable to the populace.

Thereafter, because of disagreements and so forth, Congressman Holland pretty well, I think, retracted his agreement to offer what good offices he could to help solve it as a Federal legislative matter. I think several of the county councils, when they heard that kind of disagreement, made the same kind of statement.

There was some concern too, I know, about the per capita payment of cash to the Indians, which caused the problem to some people.

For that reason, the commission was left really with nowhere to go. Because we did not feel we could support the expanded reservation concept, and to an extent the per capita payment to individual members of the tribe, a cash payment, we came to the conclusion that the Lee bill which is now before you—or the D'Amato-Thurmond bill which is in the Senate—was the best way to resolve this matter. Twice we have adopted resolutions supporting that concept as a method of settlement.

Our primary thrust in doing that is we feel that the Indians should have fair compensation for the losses they have suffered. At the same time, we feel that the property owners in the affected area should have the kind of guarantees that they need to have to go on with their life as normal and have a minimum of disruption.