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in the land claims of the historic Cayuga Indian Nation. This interest has been set forth in a number of agreements among the Western Cayugas, the New York Cayugas, and the State of New York entered into between 1829 and 1913. To this day, the Seneca-Cayuga Tribe still receives a small annual payment from the State of New York as the Western Cayuga's share of the perpetual annuities payable to the Cayuga Nation under the land cession agreements of 1795 and 1807.

As this Committee knows, in November 1980, the Cayuga Indian Nation of New York filed suit seeking possession of its 64,000 acre reservation and related damages. Based upon its common historic origins and its recognized interest in that claim, the Seneca-Cayuga Tribe soon thereafter moved to intervene as a party-plaintiff in that lawsuit. On November 9, 1981, the United States District Court for the Northern District of New York granted our motion to intervene and we are now actively participating in the prosecution of that claim.

It is for this reason that the Seneca-Cayuga Tribe opposes S. 2084, a bill, which it passed, would effectively terminate our effort to seek justice in a court of law.

Mr. Chairman, I am not a lawyer, and therefore not qualified to discuss the fine legal points of this legislation. There are many lawyers here today and I will leave this task to them.

But, as a member of the Seneca-Cayuga Tribe of Oklahoma, I am qualified and prepared to tell you that my people strongly oppose this legislation and urge this Committee to disapprove it.

This legislation has one purpose and one purpose only: to deprive tribal claimants of a full and fair opportunity to have their land claims decided impartially. While these claims are historic in nature, they are based on the continuing promise that the United States will deal fairly and honorably with the Indian people. The enactment of this legislation would be a breach of that promise and the federal government's trust responsibility which underlies it.

As you know, the federal government is not prosecuting our land claim on our behalf. Instead, we have been forced to bring our claim using private attorneys and our own limited financial resources. The burden on us is substantial, but we believe it is important to have these claims adjudicated.

The legislation that is before the Committee today would essentially deprive us of even this limited private right of action.

We recognize, of course, that lawsuits such as the one we are involved in, cause difficulties for the landowners in the disputed area. The fastest and easiest way to resolve these problems is through a negotiated resolution of the claims. Other land claims such as those in Maine and Rhode Island, have been settled in this manner.

I do not know whether our claim could be resolved through a negotiated settlement. We are reasonable people and would certainly be willing to make such an effort.

I do know, however, that S. 2084 is not the correct way to resolve these claims.
It is wrong in its approach and should be rejected by this Committee and by
Congress as a whole.

Thank you, Mr. Chairman.
Senator COHEN. Does anyone else on the panel wish to testify?
Mr. Ewen.

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Mr. EWEN. I am Alex Ewen. I am with RAIN.

Unfortunately, Dr. Robert Venables has not been able to appear before this committee, but we ask that we be able to submit his testimony for the record.

Senator COHEN. We will be pleased to receive that for the record. [The statement follows:]


HISTORY, MUSEUM OF THE AMERICAN INDIAN Mr. Chairman, members of the Committee, and staff, I am Dr. Robert W. Venables, Curator of American Indian History at the Museum of the American Indian in New York City.

I oppose the "Ancient Indian Land Claims Settlement Act" proposed by Congressman Gary Lee and Senator Strom Thurmond. The bill would impose a uni

lateral and mean-spirited solution to a very complicated historic issue with implications for Native Americans throughout the continent.

As a professional historian, I wish to address the historical inaccuracies of the bill. These alone are sufficient to warrant the bill's defeat.

The rights Indians wish to maintain, including land claims, are not "ancient." This word correctly used refers to the period before 476 A.D., the fall of Rome. The treaties and laws the Native Americans want to see perpetuated and resolved are of the same vintage as the Declaration of Independence, the Constitution, and the Bill of Rights. The bill implies that the Indian rights are, by being "ancient," somehow no longer relevant. To ignore this implication is to imperil the rights of all people living within the boundaries of the United States, for Indian treaties and the laws which were meant to secure them are no more ancient than those documents regarded as the cornerstones of democracy in the United States.

The bill misrepresents the intent of the 1790 Trade and Intercourse Act and subsequent, similar acts. These laws did not seek what the bill refers to as "Federal approval or acquiescence" to state actions. They were intended to assert federal control, to curb a primary manifestation of states' rights (unilateral state negotiations with Indian nations) which threatened the federal government's theoretical and practical dominance under the new Constitution. That the federal government failed to control states' rights is not only evident in Indian affairs, as more than 500,000 soldiers lost their lives in the Civil War of 1861– 1865. That states' rights and the nature of the federal government's Indian policy are both still unresolved is apparent in this bill's perspective.

The bill absurdly claims that federal and state officials were “unaware that the United States may have had such an obligation" to control Indian affairs. It is not in this nation's best interests to have facts of history warped by the newspeak of the bill's authors. President George Washington's negotiations with the Iroquois between 1790 and 1794, culminating in the Treaty of Canandaigua in 1794, clearly demonstrate that the federal government intended to control assertions by the states in the handling of Indian Affairs. As early as December 1790 (and after the July 22 passage of the Trade and Intercourse Act), President Washington personally told the Iroquois that "before the present government of the United States was established (in 1789) ... the separate states and individuals under their own authority undertook to treat with the Indian tribes respecting the sale of their lands. But the case is now entirely altered. The General Government only has the power to treat with the Indian nations and any treaty formed and held without its authority will not be binding. ... Here then is the security for the remainder of your lands. No state or person can purchase your lands unless at a general treaty held under the authority of the United States." Franklin B. Hough, ed., "Proceedings of the Commissioners of Indians Affairs” (2 vols.; Albany, New York: Joel Munsell, 1861), I, 166.

The bill's proposed limitation on Indian access to federal courts also runs contrary to Washington's intentions, as he specifically told the Iroquois they could take their grievances to the federal courts.

The bill's exclusive monetary settlement provision is unjust. It ignores alternatives which the Iroquois proposed as early as the 1789s : the leasing of their lands to insure their income while at the same time accommodating non-Indian settlement. Furthermore, the bill ignores the very real need of the Indians' increasing population. Additions to the land bases of their already-insufficient reservations is imperative. A return of lands would be in keeping with the precedent set by the Indian Reorganization Act of 1934.

The bill's proposed "Claims Settlement Committee” has such unilateral and binding powers that it resembles the notorious Star Chamber of seventeenth century England. Such a committee's existence would, among other things, make a mockery of any United States' assertion of human rights at the United Nations.

The bill naively intends to resolve centuries of complex issues within 360 days. The federal government and the state governments took two hundred years entangling themselves to say nothing of the colonial precedents. While I sincerely hope it won't take another two hundred years, a resolution with justice will certainly take more than twelve months and a single, unilateral act of Congress.

There is an irony in this bill : it is entirely consistent with the majority of the federal government's past actions in Indian affairs. For two hundred years, the federal government has failed to do what it announced was its intention : aid Native Americans in the protection of their land rights in the face of state pressures. The federal government's overall record in Indian affairs is to say the least dismal and oppressive. The defeat of this bill would help counter this trend.

Thank you for allowing me to bring these facts to your attention.

Mr. Ewen. My statement is very brief.

Honorable Chairman, Senators, ladies and gentlemen of the committee, we are very thankful of this opportunity to address your distinguished body.

Rights for American Indians Now, RAIN, is a nonprofit educational organization composed of non-Indians concerned with Indian issues. Our local chapters are spread over the State of New York and include many members who reside in the affected areas. We come to you united in our opposition to the bill entitled, Ancient Indian Land Claims Settlement Act.

The question of Indian claims to land is the oldest outstanding issue in American history. It remains and will continue to remain our oldest problem until the United States begins to treat this issue with honor and justice. There can be little doubt that the United States owes a great debt to the Indian people. It is quite clear that our earliest pioneers were not attacked and killed upon disembarking from the Mayflower. On the contrary, the Indians welcomed us to this land with them. They allowed us that small beginning which is now our great and powerful Nation.

In our subsequent relations with the Indian people, we acquired much of our vast and rich country fairly. Some of the land was given. Some of it we purchased. Most of it was taken, either by force or by legal deception, or simply by fiat. To deny this would be to deny history.

What is before us now is whether we should make right these past injustices and arrange a settlement which both sides believe is fair, or whether we should ignore questions of justice and morality, ignore our debt to the Indian people, and pursue a course based purely on self-interest and political expediency.

It is clear that this legislation does not further the cause of justice. It is the fear that justice might be served which has inspired this bill. The fear that the courts might decide in favor of the Indians makes it necessary to deny them their day in court. This is no longer a question of justice. It is that the price of justice might be too high.

But what is the price of injustice? How many millions have we wasted already in this fight? How much valuable time has been squandered on this problem? Will this

bill stop the fighting? Will the Indians go home content and happy? Of course not. This bill does not address the fundamental issue of land. The Indian people say time and time again that without some land returned there is no just settlement. The landowners are equally uncompromising about giving up their homes. Yet it appears that Congress still believes that paying off one side will solve the problem. Money is clearly not the issue.

How many more millions will be wasted in this new attempt to deny the Indian his rights? How much longer will this problem remain unresolved, following generation after generation like a curse? If the price of justice appears at first too high, the price of injustice is sure to be much higher.

The Indian people are not alone in this fight. There are thousands and millions of people in this country and in all of the world who support the Indians in their struggle. Many Americans are growing tired and frustrated and embarrassed that this country, my country, the United States, cannot even promote justice and decency in our own backyard.

We have and will submit to this committee in the near future the signatures of thousands of Americans opposed to this bill, asking that justice be served.

Let us disperse this cloud which hangs over everyone's head. Let there be negotiations in good faith which will lead quickly to truly just and equitable solutions. This is not impossible. It is the only way that this, our oldest problem, will be put to rest.

I have before me the names of 3,000 people who are opposed to this bill. I also have receipts from the Office of the President of the United States for a petition that has been submitted asking for negotiations with the President of the United States, to ask that he help with negotiations with Indian problems. These receipts total more than 30,000 people.

Within the near future, there are thousands of petitions literally in transit to this committee right now, so you can see it is not a clear-cut case that all of New York State, as some people have attempted to claim, supports this bill. There are many people who are opposed to. this bíll on the grounds that it is simply wrong.

Senator COHEN. Is it fair to say that most of those 30,000 do not live in the disputed claim area?

Mr. Ewen. Most of them do not, true, but some of them do. Senator Cohen. Could I also inquire as to—and I stand corrected with respect to the history of New York. That has not been the situation with respect to Maine, and I suspect other States. But with the long history of New York State's culpability, how do the Indian tribes react to this? In other words, what action did they seek to rectify the breach of treaty or trust over the years ?

Ms. LOCKLEAR. There is a special file held at the National Archives which contains in it an appeal, a written appeal, that has been made, basically every 4 years, at the election of a new President, since the time of the original transactions, roughly the early 1790's, until

the present administration, asking, by the Oneida people, asking the Federal Government to intercede, to help them get their lands back, basically for redress. There has been no response.

Senator Cohen. Thank you very much. Thank you for your testimony. I will have to recess for a period of 10 minutes to go and vote.

The hearing will stand in recess for a period of 10 minutes and then we will call Panel Four, the Catawba Tribe, Mr. Gilbert Blue and Don Miller.

Recess. ]
Senator COHEN. The hearing will come to order.
Mr. Miller, please proceed?

Mr. MILLER. Mr. Chairman, my name is Don Miller. I am an attorney with the Native American Rights Fund and I represent the Catawba Indian Tribe of South Carolina. On my right is Chief Gilbert Blue of the Catawba Tribe and on my left is Representative Jean Toal froin Columbia, S.C., who is local counsel for the Catawba Tribe.

Chief Blue will begin testimony, talking about the Catawba claim and recent efforts to settle it. Ms. Toal will elaborate on those remarks somewhat. And I have come today prepared to discuss some of the legal, constitutional issues of the legislation in general.

So, with that, I will turn it over to Chief Blue.

Senator Cohen. If I could also remind you, we have one final panel, and I must conclude the hearings relatively soon, since we have a matter on the floor and I must take part in the debate. So if you will try to summarize your testimony, and make it as brief as possible, I would appreciate it.



Mr. BLUE. Mr. Chairman, my name is Gilbert Blue. I am chief of the Catawba Indian Tribe of South Carolina. I have been selected by the Catawba tribe and the members of the executive committee to represent the Catawbas, in their behalf, this day.

We want to thank you for the opportunity to present our views on S. 2084, the Ancient Indian Land Claims Settlement Act.

The Catawba Tribe is opposed to this legislation simply because it would extinguish without payment of just compensation valuable property rights of the Catawba Tribe.

This bill was drafted without any participation, particularly by the tribes whose claims would be extinguished. The bill represents an attempt by a political majority to force an unjust solution upon targeted Indian tribes without regard for their rights or needs. Such extinguishment legislation would not even be considered were the claimants other than American Indians.

S. 2084 is a shameful, reprehensible throwback to the 19th century's highhanded method of dealing with the Indians and their property.

It is important for the committee to understand, from the outset, the disastrous effect this bill would have on the Catawba Tribe. Our tribe's major asset is our claim to possession of our ancestral treaty reservation and trespass damages. In 1840, our 144,000-acre reservation was unlawfully taken in a transaction with the State of South Carolina. The terms of that agreement, calling for the purchase of a new reservation for the tribe, were never fulfilled by the State.

After acquiring our treaty reservation, the State took no action for over 2 years and then, instead of purchasing a new reservation, spent only $2,000 of the $5,000 that it promised to spend on the new reservation, to buy back 630 acres of our old reservation. In other words, the State spent 40 percent of the money it promised to spend on a new reservation to buy back less than one-half of 1 percent of the old reservation. This 630-acre tract consisting of very poor land has been our reservation and homeland for the last 140 years.

Because the 1840 agreement was in violation of Federal law, the State did not receive title to the land and it remains to this day an Indian reservation. Its value in 1977 was estimated to be $1.2 billion, not including claims for past trespass damages.

The 1982 value of the claim has been estimated to be over $2 billion. S. 2084, in the 1980's, would take away tribal claims worth over $2 billion and substitute in their place comparatively worthless claims against the United States for compensation in 1840 dollars.

If we assume that the reservation lands were worth an average of $2 per acre in 1840, which is probably high, the tribe should have received $288,000. What the tribe actually received from the sale of its lands was the $2,000 spent on acquiring the 630-acre tract plus periodic subsistence payments from the State totaling over $200,000 over & period of more than 100 years. Thus, the balance owing, under the formula provided for in S. 2084, would be a maximum of $80,000.

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