And finally, I do not think the Justice Department, the administration, has considered the source of Congress power to enact the retroactive provisions. Is it an exercise of your plenary power over Indian affairs or is it an exercise of the power of eminent domain? And if it is an exercise of the power of eminent domain, you get into all the fifth amendment constitutional questions, and they just simply do not deal with that. It is simply brushed aside. And I think that you and Senator Goldwater this morning were correct when you indicated that this is not something that you do simply, it is very complicated. We would hope the committee would consider our constitutional analysis as well.

Senator COHEN. Thank you very much.

[Subsequent to the hearing the following information was received. Testimony resumes on p. 170.]

NATIVE AMERICAN RIGHTS FUND,

Boulder, Colo., July 2, 1982.

Re Ancient Indian Land Claims Settlement Act of 1982.

SENATE SELECT COMMITTEE ON INDIAN AFFAIRS,
Dirksen Senate Office Building,

Washington, D.C.

COMMITTEE ON INTERIOR And Insular AFFAIRS,
Longworth House Office Building,

Washington, D.C.

DEAR SIRS/MADAMS: Enclosed is the final version of an analysis of the abovementioned bill. It has been prepared by the attorneys for the Tribes that would be affected by the bill.

A draft version of the analysis was entered into the record of the hearings on the bill on June 22-23, 1982. The enclosed analysis is meant to replace that draft. Thank you for your assistance.

Sincerely,

Enclosure.

DON B. MILLER.

AN ANALYSIS OF THE "ANCIENT INDIAN LAND CLAIMS SETTLEMENT ACT OF 1982" Arthur Gajarsa, Kenneth, Marra, Wender, Maruse & White, 1120 20th Street, N.W., Suite 650, Washington, D.C., Attorneys for Cayuga Indian Tribe.

Don Miller, Native American Rights Fund, 1506 Broadway, Boulder, Colorado. Jean Toal, Belser, Baker, Barwick, 1213 Lady Street, Columbia, South Carolina, Attorneys for Catawba Tribe.

Glen Feldman, Shack & Kimball, 1129 20th Street, N.W., Suite 500, Washington, D.C., Attorney for Seneca-Cayuga Tribe of Oklahoma.

Arlinda Locklear, Lawrence Aschenbrenner, Native American Rights Fund, 1712 N. Street, N.W., Washington, D.C.; Norman Dorsen, New York University Law School, Room 410, 40 Washington Square So., New York, New York, Attorneys for Oneida Indian Nation of Wisconsin, Oneida of the Thames Band, and Stockbridge-Munsee Indian Community.

Bertram Hirsch, 81-33 258th Street, Floral Park, New York, Attorney for Oneida Indian Nation of New York.

INTRODUCTION

On February 9, 1982, Representatives Lee of New York and Holland of South Carolina, together with Senators D'Amato of New York and Thurmond of South Carolina, introduced the "Ancient Indian Land Claims Act of 1982."1 The sponsors have described the bill as "designed to provide Indian tribes in at least two Eastern states [New York and South Carolina] with a comprehensive approach to settlement of land treaty disputes, and make the federal government exclusively responsible for answering valid treaty suits." The legislation purports to accomplish those results by extinguishing tribal claims to recovery of lands unlawfully ceded to the states as well as trespass damages claims. In their place, the bill sub

Identical bills were introduced in the House of Representatives (H.R. 5494) and the Senate (S. 2084).

stitutes a claim for money damages only against the United States. Significantly, the damages recoverable would be determined by the value of the land at the time of the unlawful dispossession rather than by current fair market value.

Despite some precatory language respecting "fair" compensation for the claims of the affected tribes, the primary thrust of this legislation is unmistakable. It would extinguish valuable Indian property rights presently safeguarded by federal law. Because it does so without payment of just compensation, without tribal consent, and in derogation of the tribes' best interests and Congress' obligation to protect those interests, the bill is subject to a number of constitutional attacks. Proponents of the bill characterize it innocuously as either "retroactive ratification" or "curative legislation" of prior technically deficient acts. Neither description is accurate. But even if it were, the bill goes well beyond the Due Process limitations of the Fifth Amendment that the Supreme Court has held applicable to such legislation.

The bill likewise runs afoul of the doctrine of equal protection and the Due Process Clause of the same amendment, which restrict Congress' guardianship authority under the Indian Commerce Clause. When Congress purports to exercise its constitutionally mandated guardianship over Indian property by acts which in fact bear no relation to the protection of tribal property, the legislation is fatally defective as discriminatory and irrational. Far from being protective, this bill is openly hostile to Indian property rights. It is an act of confiscation and destruction, not guardianship. Congress thus has no authority under the Indian Commerce Clause, U.S. Const. Art. I, Sec. 8, cl. 3, to enact the proposed bill.

The bill effects a taking of private property within the meaning of the Fifth Amendment, for which just compensation is due. It is settled that compensation must be paid as of the date of taking and that the date of taking is the time when title passes. Because the original transfers were void, no title has yet passed and compensation must therefore be determined by current fair market value.

Likewise, the just compensation requirement is violated by extinguishing Indian claims for interim damages without even a pretense of compensation. A cause of action for damages is a vested property right cognizable under the Fifth Amendment and deserving of all of its protections.

Finally, the bill is not a constitutional exercise of Congress' eminent domain power inasmuch as it decrees a rule of compensation for the taking of property. Under both the Due Process Clause and the Separation of Powers doctrine, establishing the amount of compensation is exclusively a judicial function upon which Congress may not intrude. The bill likewise violates the Separation of Powers doctrine by mandating rules of decision to be applied by the federal courts in pending cases, as well as rules to be applied by the Court of Claims in the claims against the United States.

The Ancient Indian Land Claim Settlement Act would not promote an early resolution of these historic disputes. Rather, its enactment would initiate a new round of complex federal litigation which would greatly delay the final resolution of the cases now pending.

I. The nature of tribal land claims

The claims now pending in New York and South Carolina, with one exception, assert a present right to possession of historic tribal territories and to interim trespass damages against the current occupants. See Oneida Indian Nation v. County of Oneida, 74-CV-187 (N.D.N.Y.); Cayuga Indian Nation v. Hugh L. Carey, 80-CV-930 (N.D.N.Y.); Catawba Indian Tribe v. State of South Carolina, 80-CV-2050 (D.S.C.). In each case, the Indian claim to title is based on aboriginal occupany, confirmed and recognized by treaty with the United States or Great Britain,' and restricted against alienation by federal law. Although the

2 It is a basic premise of federal Indian law that lands occupied by Indian tribes at the time of white contact were acknowledged to be tribal property, title to which could be extinguished only by the sovereign. Cohen, Handbook of Federal Indian Law, 291-96 and cases cited therein. "Aboriginal" title need not be based on treaty, patent, or any other formal government action or document, but arises from proof that the tribe exclusively occupied the area for a long time. Ft. Berthold v. United States, 71 Ct. Cl. 308 (1930). A tribe is said to hold "recognized" title where the United States has, through treaty or otherwise, formally acknowledged the tribe's right to permanently occupy the territory. United States v. Sioux Nation of Indians, 448 U.S. 371, 415 n.29 (1980). Whether held by aboriginal or recognized title, tribes cannot be deprived of their lands absent direct and explicit congressional action. United States v. Santa Fe Pacific R.R. Co., 314 U.S. 339, 347-48 (1941).

state in each instance purported to extinguish the tribe's title by cession or purchase, those attempts railed due to noncompliance with a federal statute, the Non-Intercourse Act.' The Act reflects the longstanding federal policy of preventing alienation of Indian lands except with federal approval. The Act prohibits private individuals and state and local governments from acquiring Indian land by purchase or other means without federal authorization, and any such transactions are declared to be of no validity." The primary basis of the current Indian land claims is thus that the states' attempted purchases of tribal lands were conducted without the consent and participation of the United States and are void by operation of the Act. See, e.g., Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661, 668-70 (1974), and on remand 434 F. Supp. 527, 540-41 (N.D.N.Y. 1977).*

Accordingly, a successful tribal plaintiff is to recover both possession of the unlawfully dispossessed lands as well as trespass damages from the non-Indian occupants. See United States v. Southern Pacific Transportation Co., 543 F.2d 676, 697-98 (9th Cir. 1976). See also Oneida Indian Nation of New York v. County of Oneida, 70-CV-35 (N.D.N.Y.) (unreported decision dated October 5, 1981) (Judge Port awarded the Oneidas $16,694 in trespass damages.)

In sum, where a tribe prevails in a land claim, it establishes as a matter of law that it has continuously held title to the subject lands since at least 1790 and is entitled to present possession. The tribe's title arises from aboriginal occupation of the land, which, in all cases pending in New York and South Carolina, was acknowledged by treaty with Great Britain or the United States. The Non-Intercourse Act (and similar Confederation period laws)' preserves the primacy of the federal government in regulating the alienation of Indian land and protects tribal property from intrusion by private parties and states. See Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960); Mohegan Tribe v. State of Connecticut, 638 F.2d 612, 619-20 (2nd Cir. 1980; Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370, 379 (1st Cir. 1975). Those tribal property rights, as protected by the Non

3 The Non-Intercourse Act refers to that section of the Indian Trade and Intercourse Act which prohibits acquisition of Indian land without the consent of Congress. The Act was first enacted in 1790, 1 Stat. 137, Sec. 4, re-enacted a number of times, and finally codified at 25 U.S.C. Sec. 177.

In fact, the Supreme Court has suggested that the Non-Intercourse Act merely codifies a rule of law that actually arises from the nature of the relationship between Indian tribes and the so-called discovering European nations. See United States v. Santa Fe Pacific R.R. Co., 314 U.S. 339, 346-47 (1941); Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661, 668 (1974). Arguably, then, the attempted state purchases of tribal land would be void even in the absence of the Non-Intercourse Act.

The Act declares in relevant part: "No purchase, grant, lease or other conveyance of lands, or any title or claim thereto, from any Indian nation, or tribe of Indians, shall be of any validity in law or equity, unless the same shall be made by treaty or convention entered into pursuant to the Constitution." The Constitution vests Congress with authority "[t] to regulate Commerce. with the Indian Tribes" U.S. Const. Art. I, Sec. 8, cl. 3. Chief Justice John Marshall observed in one of the first important Indian cases, that the federal charter "confers on Congress the powers of war and peace; of making treaties and of regulating commerce with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians." Worcester v. Georiga, 31 U.S. (6 Pet.) 515, 559 (1832).

In Oneida Indian Nation, Judge Port set forth the four elements of a prima facie case under the Non-Intercourse Act: "plaintiff must show that: (1) it is or represents an Indian tribe within the meaning of the Act; (2) the parcels of land at issue herein are covered by the Act as tribal land; (3) the United States has never consented to the alienation of the tribal land; (4) the trust relationship between the United States and the tribe, which is established by coverage of the Act, has never been terminated or abandoned." Oneida, 434 F.Supp. supra at 537-8. Thus, a tribal claim under the Act fails unless the tribe can prove all four elements. See, e.g., Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979), where the dismissal of the Mashpee claim in Massachusetts was affirmed due to the Tribe's failure of proof on the first element. Once a tribe establishes those four elements, however, the claim is not subject to defenses based on passage of time or the good faith of the non-Indian claimants. See Schaghticoke Tribe of Indians v. Kent School Corp., Inc., 423 F.Supp. 780 (D.Conn. 1976).

The one pending claim that is based primarily on laws other than the Non-Intercourse Act is asserted in the companion cases of Oneida Indian Nation of Wisconsin v. State of New York, 79-CV-798 (N.D.N.Y. 1979) and Oneida Indian Nation of New York v. State of New York. 78-CV-104, appeals pending. In those cases, the Oneidas challenge the legality of state purchases concluded during the Articles of Confederation. The Oneidas allege that a 1784 treaty, the Indian regulation and management clause of the Articles, and a 1783 proclamation of the Congress should be construed as having the same effect as the subsequent Non-Intercourse Act, i.e., to void the acquisition of Indian land absent the consent of Congress. The Oneida cases were dismissed for failure to state a claim and are currently on appeal to the Second Circuit.

Intercourse Act, and similar Confederation period laws, are the subject of this legislation.'

II. Congress cannot extinguish tribal property rights by retroactive ratification of third party transactions

This legislation cannot be characterized as either retroactive ratification of the state/tribal transactions or curative legislation providing the required federal consent. Due to the complete absence of federal participation, the transactions are not subject to retroactive ratification. Furthermore, the doctrine of curative legislation is inapplicable because the defects are not simply technical, but are the result of an affirmative and purposeful federal policy. Moreover, even if the bill could be characterized as either retroactive ratification or curative legislation, it is nonetheless unconstitutional. Under either rubric, the bill so drastically alters private property rights as to violate the requirements of Due Process applicable to such legislation.

A. The Bill Cannot Be Justified as Either Retroactive Ratification of the Illegal Transactions or Curative Legislation.-Retroactive ratification, as a legal concept or legislative mechanism, generally applies only in the context of a principal-agency relationship. Ratification is defined, in fact, as affirmation by a principal of an unauthorized act of his agent done or professed to be done in the principal's account, thus giving effect to the act as if originally authorized. Vis-a-vis third parties, it is essentially a doctrine of equity, which operates to protect innocent third parties who deal with an agent in reliance on the agent's apparent or claimed authority to bind the principal. Where the principal subsequently ratifies that act, even though the act was unauthorized at the time, the ratification should in all fairness relate back to the date of the original act so as to confirm the rights of the third parties who dealt with the agent in good faith. Restatement (Second) of Agency, Sec. 82.

As upheld by courts in the specific context of illegal transfers of Indian land, retroactive ratification has been limited to the adoption by Congress of actions of a federal officer or agent done with apparent but not actual authority. In Shoshone Tribe v. United States, 299 U.S. 476 (1937), the Tribe complained of various actions of the Commissioner of Indian Affairs and other federal officers authorizing another tribe to settle on the Shoshone Reservation. Congress later negotiated with both the Shoshones and the "trespassing" tribe to purchase part of the Shoshone Reservation, and, in 1927, passed a special jurisdictional act authorizing the Court of Claims to hear Shoshone claims against the United States arising out of their lost reservation lands. In determining the effect of the federally-supported trespass on Shoshone title, the Supreme Court said: "Looking at events in retrospect through the long vista of years we can see that from the outset the occupancy of the Reservation was intended to be permanent; that, however tortious in its origin, it has been permanent in fact; and that the Government of the United States through the action and inaction of its executive and legislative departments for half a century of time, has ratified the wrong, adopting the de facto appropriation by relation of the date of its beginning . . . The adoption by the United States of the wrongful act of an officer is of course an adoption of the act when and as committed, and causes such act of the officer to be, in virtue of the statute, a rightful appropriation by the Government, for which compensation is provided. Crozier v. Fried, Krupp Aktiengesell Schafti, 224 U.S. 290, 305, 56 L.Ed. 771, 776, 32 S.Ct. 488." (Emphasis added). Shoshone Tribe, 299 U.S. supra at 495-96; see also Pickering v. Lomax, 145 U.S. 310, 314 (1892); United States v. Northern Paiute Nation, 490 F.2d 954, 958 (Ct. Cl. 1974).

In the absence, then, of a principal-agent relationship between Congress and a participant to the illegal transaction, there is no act susceptible of retroactive

The Non-Intercourse Act and other similar statutes do not give rise to tribal land title. They only bestow federal protection on rights that exist independent of the statutes. Even were the Act repealed, then, the property rights which it protects would not be extinguished. At most, repeal of the Non-Intercourse Act would simply subject tribal property rights to the same state and common law principles of conveyancing applicable to non-Indian property. But see footnote 4 above. The bill, of course, goes much further by extinguishing the underlying property rights themselves, and thus constitutes much more than the mere exercise of Congress' authority to approve the Indian land sales under the Act. Of course, the Non-Intercourse Act does contemplate federal approval of transactions as an act of Congress' trusteeship over Indian lands, and such approval would effect an extinguishment of tribal title. But because of the minimal compensation authorized and the absence of tribal consent, the bill cannot be said to be an act of trusteeship. See discussion below, Section VI. Neither can the bill be justified as the after the fact approval contemplated by the Non-Intercourse Act, since the Act simply codifies Congress' trust responsibilities with respect to tribal land, and specifically requires the presence of a federal agent, See footnote 4 above.

ratification. The lack of federal participation is asserted in each of the Indian claims that would be extinguished by the bill. Therefore, Congress cannot retroactively ratify those transactions."

Similarly, this legislation cannot be characterized as curative legislation. Curative legislation is a special kind of retroactive legislation which is generally employed to, "[r]epair the consequences of legal accident or mistake, either in failure of the lawmakers to make provision for unforeseen circumstances, which, in fairness, should have been provided for or in failure of the parties to conform in all respects to nonessential legal requirements or limitations where, as a result of such accident or mistake, legal rights or relationships do not conform to what was designed either by the legislation or by the parties." Sutherland, Statutory Construction, Sec. 41.01. In other words, curative acts are made necessary by inadvertence or error in the original legislation or its administration. Id., Sec. 41.11. See also Silverlight v. Huggins, 347 F. Supp. 895, 898 (D.V.I. 1972) ("[curative legislation] is limited to laws which are intended to permit the accomplishment of a previously enacted design, which has failed to achieve its expected legal consequences by reason of some statutory inadequacy or irregularity"); Graham v. Goodcell, 282 U.S. 409, 430 (1931); Paramino Lumber Co. v. Marshall, 309 U.S. 370, 378 (1940).

Where, however, a purported conveyance of Indian land violates not only a technical provision of an applicable statutory restriction on alienation, but also violates the policy and spirit of the statute, the conveyance cannot be confirmed by curative legislation. Pickering v. Lomax, 145 U.S. supra at 315 (1892). As in the Pickering case, this legislation runs directly contrary to the protective purposes of the Non-Intercourse Act. See Federal Power Commission v. Tuscarora, supra, 362 U.S. supra at 119, where the Court observed that the purpose of the Act was to prevent improvident disposition of Indian lands; and Oneida Indian Nation v. County of Oneida, supra, 414 U.S. at 667, where the Court noted that the Act expressly preserves federal primacy in the supervision of Indian land transactions. This bill does not cure a technical defect in implementation of the Non-Intercourse Act, but effectively repeals the Act with respect to the covered transactions and thus represents a radical departure from the long-standing federal policy of protecting Indian lands from intrusion by third parties."

B. The Bill Exceeds the Due Process Limitations on Retroactive and Curative Legislation.-Even if this bill could properly be characterized as retroactive ratification or curative legislation, it violates Due Process in that it overthrows settled tribal property rights by authorzing compensation based on "ancient" values and revoking the long-standing protective policy embodied in the Non-Intercourse Act. As Sutherland observes, "It is a fundamental principle of jurisprudence that retroactive application of new laws involves a high risk of being unfair. There is general consensus among all people that notice or warning of the rules that are to be applied to determine their affairs should be given in advance of the actions whose effects are to be judged by them... settled expectations honestly arrived at with respect to substantial interests ought not to be defeated." Sutherland, Statutory Construction, Secs. 41.02, 41.05.

The Due Process limitations on retroactive legislation can be well illustrated by comparing Forbes Pioneer Boat Line v. Board of Commissioners, 258 U.S. 338 (1922), invalidating a retroactive statute, with Graham v. Goodcell, 282 U.S. 409 (1931), where such an act was upheld. In Forbes, the plaintiff filed suit to recover

Proponents of the retroactive ratification resolution to Eastern Indian land claims have relied on United States v. Forness, 125 F.2d 928 (2nd Cir. 1942), and Seneca Nation of Indians v. United States, 173 Ct. Cl. 912 (1965) as authority for applicability of retroactive ratification of Indian land transfers where no principal-agency existed between Congress and a participant in the transaction. Although both those cases did involve after the fact approval by Congress of Indian land transiers concluded without the involvement of a federal officer or agent, neither case indicates that Congress' approval was retroactive, i.e., related back to the date of the original transaction. Just compensation for title or interim damages was not at issue in either case. Therefore, neither court determined whether the Indians' title was extinguished as of the date of the original transaction or the date of Congress' consent thereto. See N. Newton, At the Whim of the Sovereign: Aboriginal Title Reconsidered, 31 Hastings L.J. 1215, 1281.

10 In those few instances where defects in transfers of Indian title were cured by subsequent congressional action, the original defective statute directly authorized rather than prohibited the transfer. For example, in Goodard v. Frazier, 156 F.2d 938 (10th Cir. 1946), an Indian allottee attempted to set aside a partition of restricted property in state court that had been expressly authorized by an act of Congress on the ground that the United States was an indispensible party to the proceeding. Congress had, in the meantime, passed a second statute eliminating the requirement that the United States be named a party. The Tenth Circuit held that the second statute had cured the defect in the original proceeding: "Where the object and effect of the curative statute is to correct an innocent mistake, remedy a mischief, execute the intention of the parties, and promote justice, the law is constitutionally valid." Id. at 942. See also McElroy v. Pegg, 167 F.2d 668 (10th Cir. 1948).