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The severability provisions of Section 8 of the bill, providing that if either the retroactive ratification provision (Sec. 4), or the retroactive compensation provision, (Sec. 6(c) (1)), are held invalid then the entire act will be invalid, confirm that the bill establishes a rule of compensation. The only conceivable purpose to be served by the retroactive ratification and compensation provisions is protection of the federal treasury, which relates solely and directly to the exercise of the power of eminent domain. Having nothing whatsoever to do with the "fulfillment of Congress' unique obligation toward the Indians," Delaware Tribe «. Weeks, 430 U.S. supra at 85, the retroactive compensation provision is manifestly a rule of compensation in violation of the guarantee of Due Process and the doctrine of Separation of Powers. See Sager, Constitutional Limitations on Congressional Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17, 76–77 (1981).
B. The Bill Directs Other Rules of Decision to be Applied by the Federal Courts.—The general rule is that Congress may not "invade the judicial province by prescribing a rule of decision in a pending case." Glidden Co. v. Zdanok, 370 U.S. 530, 568 (1962), citing to United States v. Klein, 80 U.S. (13 Wall) 128 (1872); Note, Congressional Power Over State and Federal Court Jurisdiction, 49 N.Y.U.L. Rev. 131, 140 n. 58." The deprivation of federal jurisdiction contained in section 9(b) and in section 4(b)'s directive that any transfer "shall be deemed to have been made in accordance with the Constitution and all laws of the United States" (which resolves the major legal and factual issue in each of the affected Indian claims), has the practical effect of mandating a decision of dismissal in the pending land claims cases and thereby violates the doctrine of separation of powers." See Crowell v. Benson, 385 U.S. 22, 60 (1932).
Likewise, the bill prescribes rules of decision for the new claims before the Court of Claims. Section 6(b) of the bill establishes five prima facie elements of a claim for liability against the United States, and forbids recovery against the United States based upon any theory other than the Non-Intercourse Act.25
Closely related to the principle that Congress may not prescribe a rule of decision in a pending case is the principle that Congress may not exercise its article III powers in such a manner as to “deprive nay person of ilfe, liberty or property without due process of law or ... take private property without just compensation." Battaglia v. General Motors Corporation, 169 F.2d 254, 257 (2nd Cir. 1948); cert. denied, 335 U.S. 887 (1948).
It is elementary that Congress has no authority to violate constitutional rights. Thus, “in cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of law and fact, necessary to the performance of that supreme function." Crowell v. Benson, 285 U.S. 22, 60 (1932) ; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936); Johnson v. Robison, 415 U.S. 361, 366 (1974). The rationale underlying this fundamental rule is that if the Congress, as the body accused of jeopardizing a constitutional right, retains the final power to determine whether the right has in fact been violated, then the right will, as a practical matter, have been nullified. Thus, both the Due Process Clause and the doctrine of Separation of Powers require that, where constitutional rights are in jeopardy, a litigant must have the right to an independent judicial hearing, and Congress cannot prevent the litigant from obtaining a remedy. See Reddish & Woods, Congressional Power to Control the Jurisdiction of the Lower Federal Courts: A Critical Review and a New Synthesis, 124 U.Pa.L.Rev. 45, 76–81 (1975).
* When the exercise of an otherwise congressional power conflicts with the constitutional requirements of an independent judiciary, the Court will examine the purpose of the Act of Congress. In United States v. Klein, 80 U.S. (13 Wall.) 128, 145' (1872) the Court stated : “But the language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. It's great and controlling purpose is to deny pardons granted by the President the effect which this Court has adjudged them to have."
2 Congress may, however, change the applicable substantive law while a case is being litigated and thus indirectly compel its outcome. United States v. Schooner, Peggy, 5 U.S. (1 Cranch) 103, 110, (1801). Here, however, Congress does not seek to change the provisions of the Non-Intercourse Act generally, but rather to nullify its application in particular cases pending in two states.
** Indeed, in the ongoing case of Oneida Indian Nation of New York v. County of Oneida, 434 F. Supp. 527 (N.Ö.N.Y. 1977), section 4 (b) would have the effect of reversing the holding of the district court that the transfer was in violation of the Non-Intercourse Act. Id. at 540-41.
3 As section 2(a)(1) of the bill correctly states, the tribal claims are based, in addition to the Non-Intercourse Act, upon "other laws of the United States, the United States Constitution, the Articles of Confederation, or ancient treaties."
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 raticy 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 syg. tem, 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 soli ion 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 defendants, 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 Study Commission, the proposition failed and but for that we would have it all wrapped up by
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
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 KENNETI 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.