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NDLAN LAND CLAIMS (Continued from page 357)

questions doctrine. For example, in Baker v. Curr,"? the Supreme Court held that the political questions doctrine was applicable solely to restrain the federal judiciary from encroaching on the prerogatives of coordinate branches of government. Therefore in Baker the political questions doctrine was found to have no force where the underlying issues involved the actions of state government, rather than a coordinate branch of the federal gov. ernment. Since the eastern Indian land claims cases involve challenges to the alleged illegal action of state governments in taking land cessions from the Indians without explicit federal approval, the mod. em political questions doctrine, as articulated in Baker v. Carr, simply does not apply to these cases.

While there are some cases in the late 19th and early 20th centuries suggesting that certain issues involving congressional decision-making in the Indian arena constitute political questions," those decisions have been signifjcantly diminished by the recent willingness of the Supreme Court to review acts of Congress or executive decisions relating to Indian rights under appropriate constitutional or statutory criteria." Furthermore, these cases in. volve the actions of a coordinate branch of government and therefore fall within the ambit of the political questions doctrine. The eastern Indian land claims cases challenge the actions of state gov. ernment and therefore simply fall outside of the operative sphere of the political questions doctrine.

Nor does the mere complexity and size of the litigation in question render the issue nonjusticiable as a political question. For example, any lawyer familiar with the complex water law litigations in the west knows that general stream adjudications of water rights (which, like Indian land claims, often involve vested property rights) will usually implicate more litigants, more attorneys and, possibly, longer time frames than most of the eastern Indian land claims.'s Cut to the core, Mr. van Gestels suggestion that the New York Indian land claims constitute nonjusticiable political questions represents an argument that the Indian plaintiffs in these cases somehow should be denied access to court to enforce their treaty-guaranteed property rights. This certainly is not the first time, nor will it be the last, that efforts have been made to divest Indian tribes of enforceable property rights under the guise of technical legalisms.

Recently, the Tenth Circuit Court of Appeals was

confronted with similar arguments made by the Stale of New Mexico that Indian righis had been lost or superceded by the encirclement of the Indians in the forward rush of western settlement of the frontier. To his credit, Circuit Judge McKay responded:

If we were to accept the State's argument, we would be enshrining the rather perverse notion that traditional (Indian) rights are not to be prolected in precisely those instances when protection is essential, i.e. when a dominant group has succeeded in temporarily frustrating exercise of those rights. We prefer a view more compatible with the theory of this nation's founding: rights do not cease to exist because a government fails 10 secure them. See The Declaration of Independence (1776)."

Mr. van Gestel's further argument that the plaintiffs in the New York Indian land claims cases have no standing to sue since it was their ancestors, rather than they, who were harmed 200 years ago also misstates the underlying natu of the eastern Indian land claims. While this suggestion has been voiced before," it usually misconceives the thrust of the eastern Indian land claims because it fails to focus on the nature of tribal land tenure. Indian tribes are sovereign governmental units, sharing many of the powers and responsibilities of federal, state or local governments."* Except where federal or colonial law has intervened and directed contrary land tenure patterns, Indian tribes have, since European contaci, traditionally held their land collectively as a governmental unit. Thus, no individual member of the Oneida or Cayuga tribes is seek. ing to enforce a personal right to land. Indeed, under traditional tribal land tenure, federal and state courts will not enforce any individual rights to tribally-held land." The land is owned by the tribe, not the individual members. The members have no more enforceable rights in the land than any particular citizen of the United States has in Yellowstone National Park.

The plaintiffs in the eastern Indian claims are

30 U.s.

13 369 U.S. 186 (1962).

" See, e-8., United States v. Sandoval, 231 U.S. 28, 46 (1913): Tiger v, Western Inv. Co., 211 U.S. 286, 315 (1911). Lone Wolf v. Hitchcock, 187 U.SL. 553 (1903).

" See, e.K., United States v. Sioux Nation, 100 S. Ct. 2716 (1980): Delaware Tribal Business Committee v. Weeks, 430 U.S. 960(1977). Morton v. Ruiz, 415 U.S. 199 (1973); Pyramid Lake Piute Tribe v, Morton, 354 F. Supp. 252 (D.D.C. 1973).

is sec.c.8.. Arizona v. California, 373 U.S. 546 (1963).

372

" Mescalero Apache Tribe v. New Mexico, 630 546 (1963).

* Mescalero Apache Tribe v. New Mexico, 630 F.2d 724, 730 (10th Cir. 1980). judgment vacated on other grounds, 49 U.S.L.W. 3743 (1981).

" See, Lyons, The New Indian Claims and Original Rights to Land, 4 Social Theory and Practice 249, 268-71 (1977).

" See generally, Santa Clara Pueblo v. Martinez, 98 S. Ct. 1670 (1978); United States v. Wheeler, 435 U.S. 313 (1978); United States v. Mazurie, 419 U.S. 544 (1975); Talton v. Mayes, 163 U.S. 376 (1896); Worcester v. Georgia, 31 U.S. (6 Pet.) S15 (3832).

" See, 6.8., Chippewa Indians of Minn. v. United States, 307 U.S. I (1939); Fleming v. McCurtain, 215 U.S. 56 (1909): Delaware Nation v. Cherokee Nation, 193 U.S. 127 (1904); McDougal v. McKay, 237 U.S. 372 (1915); Cherokee Nation v. Journeycake, 155 U.S. 196 (1894); Shultis v. McDougal, 170 Fed. 529 (8th Cir. 1909), appeal dismissed. 255 U.S. 561 (1912). See generally. F. Cohen. Handbook of Federal Indian Law 183-94, 287-90 (1942).

New York State Bar Journal, August, 1981

principally the Indian tribes who are seeking to enforce their property rights to the land in question. Like a corporation or a government, the Indian Iribe continues beyond the death of any of its re. spective members. Surely no one would suggest that the United States has no enforceable claim to the land area occupied by Yellowstone National Park simply because the itizens of the United States who were alive when the park was set apart for national use are no longer living. Obviously, citizenry involves an ever-changing class of people. By definition, tribal membership also involves an ever-changing class of Indians. However, the tribe's right to its land is in no way diminished because the composition of the tribal membership has changed over the last two hundred years. Furthermore, insofar as Mr. van Gestel suggests thal there are problems in figuring out who are the legitimate decedents of the Cayuga or Oneida peoples, he has failed to note that these tribes are federally-recognized tribal governments which have the power to establish membership criteria and which possess the capacity to discern the present membership of their tribal community. While this problem may involve certain historic and legal disputes, it is no more or less difficult than ascer. caining federal or state citizenship.

Finally, Mr. van Gestel s essay objects to the fact that the non-Indian claimants in the New York Indian claims areas are being forced to defend their title in court, sometimes under disadvantageous legal principles. Mr. van Gesiels concern about the necessity of defending land title in courts of law sounds rather strange coming from an attorney. Courts of law obviously exist to resolve disputes over title to property and the New York Indian land claims surely constitute such a dispute.

To some extent, Mr, van Gestel seems to object that the existing federal law disadvantages the nonIndian claimant in the defense of these claims. That resul principally stems from the fact that the nonIndian claimants' title derives from state actions which conflicted with then extant federal statutory and constitutional law, which has remained in force to the present day. No effort on the part of state law, by statute of limitations defenses, marketable title acts, defenses of adverse possession, laches or estopel by sale defenses, can ratify a staleapproved Indian land cession which by federal staiute required explicit congressional approval.

Furthermore, Mr. van Gestel also seems to resent the fact that the federal government is sup. porting such Indian litigation, sometimes with funds and sometimes by actually suing on behalf of the plaintiffs (as was done in the case of the Passamaquoddy and Penobscot claims to large portions of the State of Maine). What the van Gestel essay ignores is the fact that the United States has maintained a trust relationship with Indian tribes which by law requires it to protect their land lenure. 20 Historically, this relationship was the result

of the Indians weak and defenseless position in the American legal structure. Even today, many of the castern tribes who are presently bringing suit could not afford, on their own, the litigation costs of ex. tensive pre-trial discovery and protracted trial 10 which Mr. van Gestel and others may intend to subject to the plaintiffs. Thus, assistance from the federal government is essential if the New York Indian claims are to be prosecuted at all. Ad. ditionally, the allocation of the burden of proof to the non-Indian claimants, contained in 25 U.S.C. $ 194, is but another example of the efforts of the federal government to discharge its trust responsibility on behalf of the Indians."' Mr. van Gestels suggestion that federal support is unfair and inap propriate, thus, constitutes an invitation 10 the federal government to renege again on its trust obligations to protect Indian lands, as it has done so ofen including the period which in fact gave rise to these land claims.

While Mr. van Gestel's legal positions are questionable, he surely reflects a general uneasiness in the public mind about the litigation of these 200 year old claims and their potential for disrupting the not unreasonable expectations of the non-Indian claimants to the land who, with the exception of the State of New York and its subdivisions, were not responsible for the harm done long ago to the lodians. This argument is not a legal one since those expectations are only entitled to respect in courts if they were rooted in valid legal title, which it ap pears they may not have been. However, it nevertheless captures a fundamental public concern about these cases which is not easily brushed aside. There are, however, several responses to this concem.

First, American law will generally only extinguish old legal claims through the passage of time if the claimant knew of the claims and had a fair opportunity to present his claim in court and to thereby secure some redress. While it is not clear whether the affected eastern Indians fully understood their possessory claims over the last two centuries, it is reasonably clear that they had no practical or legal access to American courts to redress those claims until the late twentieth century. As a result of concerns over jurisdiction and standing,”? Indian tribes were denied access to courts to enforce their property claims until Congress

Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919): Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975); Navajo Tribe v. United S:ates, 364 F.2d 320, 176 Ct. CI. S02 (1966); Pyramid Lake Pauite Tribe v. Morton, 354 F. Supp. 252 (D.D.C. 1973). See generally. Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213 (1975).

21 Wilson v. Omaha Indian Tribe. 442 U.S. 653 (1979). See generully. Comment, Preferential Burden of Proof Allocation in Indian Land Claims Cases, 64 Jowa L. Rev. 386 (1979); Clinton & Holopp supra note 1 at 54-57.

u See, e.g.. Cherokee Nation v. Georgia, 31 U.S. (S Pet.) I (1831).

See, Cramer v. United States, 261 U.S. 219 (1923):

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enacted 28 U.S.C. & 1362 in 1966 10 afford such a remedy. Even then, it was not until the Supreme Court decided Oneida Indian Nation v. County of Oneida?) in 1974 thal it was clear that this statute applied to the eastern Indian land claims cases or that unrecognized eastern Indian tribes could invoke general federal question jurisdiction to enforce their possessory claims. To treat these old Indian claims as time-barred would, therefore, deny the Indian plaintiffs any opportunity for a day in court, a fundamental denial of due process of law.

Second, the potential for unsettling non-Indian property expectations in these cases is no more or less evident than in other cases where a sovereign (which is frequently not bound by adverse posses. sion or other time-based doctrines) seeks to reclaim property which has long been adversely claimed by private parties. For example, the press recently contained the story of an elderly, retired Texas couple who had purchased, occupied and paid taxes and mortgage payments on a small farm in Texas. They were being evicted from their home because the State of Texas had never issued a patent on the property. In such cases the rule of law is harsh, but in a system based on a documentary chain of title, the invalidity or nonexistence of necessary documents in the chain of ville can, and often does, unsettle reasonable expectations. This is the reason that purchasers rely on title insurance or attorney's opinions in their real estate transactions. All the Indians ask is that the rules of law which enforce their title to land not be treated any differently or be separately and discriminatorily retroactively abrogaled or modified. In the Texas case, as with the Indian claims, one solution for the frustration of the expectations of the claimants in possession may lie in indemnication through the good graces and sense of fairness of the state legislature.

Finally, despite the prayers in their complaints, the Indians' immediate objectives do not appear to include ousting the non-Indian claimants to improved land from their houses and businesses. All they really want is redress for a past wrong by the creation or enlargement of their land base, to achieve reservations of sufficient size to support present and future generations of tribal members, and by the creation of trust funds in an amount sufficiently large to facilitate a self-sustaining tribal community. The Indian tribes have been more than reasonable in their willingness to work out negotiated settlements of these claims, often setuling for land areas far less than claimed in the litigation and for money damages far less than the 200 years of rent and trespass damages to which they might be entitled. Indeed, in the successful settlements which have been negotiated in Maine and in Rhode Island, and even in the abortive Cayuga claims senllement agreement, no homeowner with improved real estate was in any way disturbed in the quiet possession of his land. All most of these tribes want is a sufficient land

414 U.S. 661 (1974).

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base upon which to preserve and protect their continually-evolving tribal culture and to live as tribal communities with adequale resources for the health, welfare and economic well-being of present and future generations of tribal members. For example, the proposed settlement agreement worked out by the parties to the Cayuga Indian land claim, only to be unexpectedly sabatogated at the last moment by Congressman Gary Lee from the affected districi, would not have disturbed the possession of any existing private landowner nor taken any lands presently on the lax rolls out of taxable status. Yet it would have satisfied the Cayugas not unreasonable concerns about providing for the present and future welfare of their tribe by establishing for them a reservation of more than 5,000 acres from state and federally-held lands and an S8 million trust fund.

One mighi, then, reasonably ask if the Indians are willing to settle these cases, why cannot Congress merely fashion a political solution to them, without any need for litigation? The answer to that question is politically complex. The litigation is necessary to afford the tribes the necessary bargaining leverage to achieve their not unreasonable demands in a political arena which has historically ignored them and even now is structured in a fashion antithetical to their interests. For example, many tribes want to maintain their autonomy and sovereignty as selfgoverning tribal communities. By contrast, the state governments resist the federal protection of Indian tribal sovereignty due to the diminution in state authority it causes. The states and their interests are structurally represented, and heeded, in the composition of the United States Senate and, to a lesser extent, the House of Representatives. The Indian tribes have no representation, no political clout, and few sympathetic ears in these political arenas. The Alaskan natives attempted to arbitrale their claims 10 land in Congress, rather that the courts, and ended up in the Alaska Native Clarins Settlement Act of 1971 with a massive land and monetary settlement but with little authority for their retention of separate political power or savereign status. * By contrast, the Maine Indian Claims Settlement Aci of 1980,” negotiated between the affected parties and ratified by the Congress, was worked out against the backdrop of pending litigation of the Indian land claims. This settlement po! only substantially enlarges the tribal land base and creates sizable trust funds for the affected Indian

» Pub. L. No. 92-203, 85 Slat. 688, codified as 43 U.S.C. $ 1601 (1976). See generally, Lazarus & West, The Alaska Native Claims Settlement Act: A Flawed Victory, 40 Law & Coniemp. Prob. 132 (1976): Price, A Moment in History: The Alaska Native Claims Sertiemem Aa, 8 U.C.L.A.-Alaska L. Rev. 89 (1979). See also. Rhode Island Indian Claims Settlement Act, Pub. L. No. 95-395, Sept. 30, 1978. 92 Stat. 813, codifred at 25 U.S.C.A. 170L et seq. (1980 Supp.).

as Maine Indian Claims Settlement Act of 1980. Pub. L. No. 96-420, Oct. 10. 1980, 94 Stat. 1285, enacting 25 U.S.C. $ 1721 et seq.

New York State Bar Journal, August, 1901

tribes, it also explicitly protects their long term political autonomy, essentially treating the tribal communities as municipalities for most purposes. Thus, the threat of the eastern Indian tribes to actually litigate and enforce their seemingly valid claims to large land areas in the east is necessary to create the required bargaining strength needed to have their long ignored demands redressed. No country and no good attorney should be expected or required to negotiate from a position of weakness by unilaterally giving up or being forced to abandon a major bargaining strength. For the affected cast coast Indian tribes their major negotiating strength is their seemingly valid claims to possessory interests in large land areas.

The eastern Indian land claims test whether the nation truly has a government of laws and not men. The law in these cases is relatively clear and, for the most part, it generally favors the Indian claims. It look 200 years for the red man to learn how to use white man's law and to gain access to American courts. Now that the eastern Indian land claims cases have been brought into

judicial and legislative forums, the question with which the nation is confronted is whether a different, separate and discriminatory rule should be retroactively applied to Indians. While the claims of the New York tribes are large, they are justiciable and supported by sound legal authority.

All parties should welcome a settlement which did not disrupt the present occupancy of those

people van Gestel describes as “innocent land owners“, a while simultaneously redressing the long-standing grievances of the affected Indian tribes by guaranteeing them a satisfactory land base for their self-governing tribal communities and a. tribal trust fund with which to provide for their future economic welfare.

** Another article by Alan van Gestel on the eastern Indian land claims appeared in New York Law Journal. Feb. 25, 1981, a 67. Postscripe, Addendum io footnote 22.

Cherokee Nation v. Georgia, 31 U.S. (S Pet.) I, 17 (1831) (At the time the constitution was framed, the idea of appealing to an American court of justice for an asser. tion of right or redress of wrong. had perhaps never en tered the mind of an Indian or of his tribe. Their appeal was to the tomahawk, or to the government”). While Cherokee Nation only held that an Indian tribe was not a foreign nation for purposes of the Supreme Courts origi. nal jurisdiction, this dicta was thought to preclude tribal standing to sue well into the twentieth century. See, Clinton & Hotopp, supra notc 1 al 46-49. Although the Indian Claims Commission Act, enacted in 1946, au thorized tribes to sue the United States for damages to redress post wrongs caused by the federal government, i did not wholly solve the standing problems for the eastern tribes since their claims were based on illegal state, rather than federal, conduct and they sought possession in addi tion to damages.

Mr. FELDMAX. Let me conclude simply by discussing the negotiation question. There has been a lot of discussion today about the question of leverage and whether the tribes ought to have the leverage in this situation.

Well, when you really cut to the heart of it, the leverage that we are talking about is simply access to the courts. We are talking about nothing more and nothing less. We are talking about simple justice, whether the tribes ought to have the right to have these claims decided by an impartial decisionmaker in the U.S. courts. We clearly recognize that even in the filing of the claims, it creates hardships for the landowners, and that is not our intent. It is not our purpose.

Litigation is our only option as long as there will be no serious negotiations. You have heard testimony from the representatives of the county today, that they do not regard a negotiated settlement of this claim as proper. They believe the burden is on the United States to solve the problem for them. They are not willing to put up a dollar or an acre of public land, and we are talking about public land. We are not talking about private land. Again, we are not trying to dispossess private homeowners.

The settlement, which was negotiated and which the landowners chose to have defeated, would have involved only the transfer of public land, the public park, the State park that was discussed earlier. Ånd as long as one side is not willing to negotiate in good faith, is not willing to compromise in any sense, then the only option which the tribe has is to maintain this litigation and we are prepared to have it judged on its merits. If we are wrong, we will lose, but we believe we are right and we believe we ought to have the right to have it judged in court. Thank you.

Senator COHEN. Could I just come back to the Oneida case again? Is that for recovery of land or is it for recovery of rents?

Ms. LOCKLEAR. NO. Judge Ports' case, in terms of relief sought, is very limited. The only defendants are the two counties in the area; Madison and Oneida Counties. As relief, the Oneidas did not ask for eviction, but only for 2 years' trespass damages, 2 years' rental, in effect. The total award came to roughly $16,000.

Senator COHEN. Thank you. Mr. Whitecrow's testimony will be placed in the record at this point.

[The statement follows:]

PREPARED TESTIMONY OF SID WHITECROW, SENECA-CAYUGA TRIBE OF OKLAHOMA,

SUBMITTED BY GLENN M. FELDMAN, COUNSEL FOR THE TRIBE Mr. Chairman, my name is Sid Whitecrow. I am here today representing the Seneca-Cayuga Tribe of Oklahoma, of which I am a member. Because of the importance which we attach to seeing this legislation defeated, our Chief, James Allen, had originally intended to come to Washington to present this testimony. Unfortunately, a family emergency prevented him from coming and he has asked me to represent him at this hearing on S. 2084, the so-called “Ancient Indian Land Claims Settlement Act of 1982." Accompanying me is our Tribal Attorney, Mr. Glenn M. Feldman.

The Seneca-Cayuga Tribe is a federally-recognized Tribe of about 2,000 members, and is organized under the terms of the Oklahoma Indian Welfare Act of 1936. Our people are the descendants of the Western Band of Cayugas, members of the historic Cayuga Indian Nation who left New York State following the Cayuga land cessions of 1789, 1795, and 1807 to the State of New York. Following the loss of their reservation lands, the Cayuga Nation split into two branches, with the Western Cayugas moving first to Ohio and later to Oklahoma.

Although we are now living far from our ancestral homeland around Cayuga Lake, the Seneca-Cayuga Tribe has continued to maintain a recognized interest

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