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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.
We agree that if an error was made, it was either made by the State or the Federal Government.
Senator Cohen. The Maine people had a commission established, too.
Mr. FREEMAN. Yes, sir.
Senator Cohen. It is so involved and so complicated. President Carter at that time called upon William Gunter, a retired Supreme Court Justice of, I believe Georgia, as I recall, to conduct a thorough study. It took him almost a year. He came to us and said it is the most complicated area of the law he had ever been involved with and he did not know what to recommend at that point, but he recommended we formulate some sort of commission to look into it to see what could result. Frankly, I did not like the commission's report. We did not have any part of it, the congressional delegation, and I did not like the recommendations. It called for private landowners to transfer their land at $5 an acre, even though it was considerably higher than that, $150 or better an acre, perhaps even higher. But they had to give up their land at $5 an acre and I thought that was confiscatory and I said so. It is unfair. If you are really going to settle it, let us do it on a fair basis.
So, we rejected the commission, we rejected that settlement. But we went back again to the drawing board saying, just because this one falls through does not mean you stop talking. Maybe you will find what the answer is going to be. For all of you in this room, quite frankly, I do not know what the outcome of this legislation will be. I have some serious questions about the constitutionality of it. It is not as clear as the Interior Department or the Justice Department recommends. It is more complicated than that. It is going to be-no matter what happens in the legislature, assuming it is passed in the Senate, assuming it is passed in the House, assuming the administration supports it—there is something that struck me this morning about severability of the provisions.
Now, I gathered from the testimony this morning that if one part is found to be invalid that the others remain effective. That is what was conveyed this morning. That is not the case. There is a provision in this particular bill that says, if one part is defective, the whole thing is defective.
Now, before we go rushing into passing this bill, we should say, wait a minute. What if in fact the court should rule, based upon our review of the law, that you cannot extinguish consequential damages without compensation? Shall we strike that from the bill? If that is stricken from the bill, what does that do to the amount of money that is going to be involved? How much will the Court of Claims then find, assuming they can go back and assess the land at x dollars an
-$2 an acre or $20 an acre—at the time of the taking, and pay the damages based upon that, if you extinguish the consequtial damages in the meantime without compensation as unconstitutional and you go back and say, well, we will throw in the trespass damages? How much will that amount to of which the State of South Carolina is going to be responsible for half?
So there are some pretty serious consequences in this bill which appears to be a very simple resolution of the claim on the face of it. It is not simple. My own advice to you is, I am going to sit here and listen, and I am going to read everything and talk to my colleagues
and take it up with a lot of people. But, I think you will come to the conclusion that even assuming we can sort out all of these problem areas, it is still going to go before the court ultimately, and you are still going to have challenges to the title, you are going to have clouds on titles. It is still going to be disruptive. You are going to have economic consequences over the years until it is finally resolved. So my advice is, you ought to go back and make a second attempt, wherever you can. If it is at the end of the rope and cannot go any further, will not go any further, then perhaps this is your only recourse.
But the the way I look at the legislation and the amount of questions that are going to be raised to it, even if it were to be passed in its present form, I think we have got some problems with that nonseverability section. If any one section of this bill is found to be invalid, the whole bill fails, and you are right back where you started.
So it means we have got to go through a constitutional test, however long that might take. If the court should rule that any one section is improper, invalid, Congress exceeded its authority, the whole thing falls, and you are right back in court with a major lawsuit again.
So what appears to be a simple solution—let us get this bill through Congress and we can be relieved of this burden I know what the burden is and I am sympathetic to it. I understand exactly the homeowners' concern. I understand the businesses. It happened in my own State, where 12 million acres had a cloud over it. You could not build anything; people backed off. It cost us millions of dollars extra for the delay involved. So I am aware. What I am suggesting to you is, based upon my own experience, you might be better off to find a way to settle this finally so that you do not have these clouds hanging over people's heads, over the landowners, better off than you are to push it through here or to go to court. Ultimately it is going to take a long time if it goes to court, and the result is going to be dubious.
End of my particular speech. I am just trying to give you the benefit of my advice and 8 years of experience in working with it. It took a long time. It started way back in 1972 and 1973, when it all stemmed from a recognition of a claim—our Indians came to us and said, we want to be Federal Indians. That is how this started, in essence. We want to be federalized.
And we said, well, that sounds good. Why not? After all, why should you not enjoy the same benefits and services that western tribes enjoy! And that is how we originally got into this and this is part of the discussion that I am sure will take place here, about State Indians versus Federal Indians. Federal Indians are better off. They get more services.
And we were happy, at least that is what we thought, eager to help our own tribes do as well as those out West. And then we started to get into it more and more and we finally found a claim being lodged against the State of Maine, or actually the Federal Government, to proceed against the State of Maine, saying that it is a violation of the Nonintercourse Act, which no one had ever heard of before in the State, with the possible exception of the Oneida claim in New York.
Mr. FREEMAN. Right.
Senator COHEN. So I stand by the statement that a lot of innocent people are getting hurt in this and there are no guilty parties on either side. I believe the Federal Government is the one that is responsible, ultimately. If the act applies, it was our responsibility to have enforced it, and not have allowed 180 years, or whatever the case might be, to expire, and now have this problem visited upon the heads of people who have, in fact, paid their money, have their title, paid their attorneys to go back and research the tities and say, yes, you have a clear claim in deed here and go pay the bank. Keep paying those mortgage payments and go develop it. And then they are suddenly told by counsel for the tribes, you really do not own this land. It does not belong to you.
It is a pretty emotional experience among those people and it is a very traumatic experience to most people. That is what I talked about, or at least I thought I mentioned when I talked about intervening equities as well. There are old inequities and there are intervening inequities as well.
This, believe me, is not the easiest way to resolve it or the best way. It may ultimately be the only way if you can reach an agreement. My advice is to try and reach an agreement.
Mr. FREEMAN. Did you not indicate, Mr. Chairman, that the present posture, even if the bill passes, the State would pick up half the cost of it?
Senator Cohen. The State would have to pick up half the cost. As I understand it, OMB is not going to agree to this particular legislation unless you pay half.
Now, if the court goes back and rules that you have to pay compensatory damages for trespass, well, you had better go to your Governor and say, well, you had better start increasing some taxes somewhere along the way.
Mr. FREEMAN. Yes, sir. That concludes my summary.
Senator Cohen. Thank you. Your prepared statement will be entered in the record at this point.
[The prepared statement follows:
PREPARED STATEMENT OF PALMER FREEMAN, JR., COMMISSION MEMBER Mr. Chairman and members of the Committee. On behalf of the South Carolina Commission to study matters relating to the claims of the Catawba Indian tribes to certain lands in South Carolina and to cooperate with interested parties to effect a final resolution to such claims, I would like to thank you for the opportunity of appearing before the Committee today.
This Committee's consideration of and favorable action on the Ancient Indian Land Claims Settlement Act has a special significance in the context of the Catawba Indian land claim in South Carolina. On Monday, June 14, 1982, the District Court entered an Order granting Summary Judgment to all of the defendants in the Catawba Indian lawsuit. In light of this decision, it would appear advantageous to all parties involved to secure a legislative settlement of the Catawba claim which includes a final solution to the claim and a means through which the claimants can obtain fair monetary compensation for their claim. With such a legislative settlement the interests of all parties would receive an adequate measure of protection.
I have a prepared statement outlining in some detail the history of the Study Commission's efforts to reach a negotiated settlement of the Catawba land claim. I would like to submit that statement for inclusion in the record of these hearings. Embodied in that statement is the text of a resolution adopted by the Study Commission on February 20, 1982. wherein the Commission indicated its support for S. 2084. The Commission feels strongly that its support of the concepts embodied in S. 2084 can be fully understood only after sufficient consideration has been given to past efforts directed toward a negotiated settlement of this land claim.
Since June of 1979, the Commission and members of the Commission have been on record as favoring a legislative resolution of the land claim. At that time, Commission Chairman, Robert L. McFadden testified in hearings before the Committee on Interior and Insular Affairs of the House of Representatives regarding H.R. 3274. Although the Study Commission could not support H.R. 3274 as it was drafted, Mr. McFadden stated before the Committee that "The main thrust of my comments is to support a legislative settlement and to encourage the Committee to support a legislative settlement."
In an attempt to discover the feelings of individuals and organizations directly affected by the land claim, the Commission held public hearings in Rock Hill, South Carolina, on January 14, 1980. At that time, the Commission received testimony from a number of sources including representatives for the Catawba Indians, representatives of the Tri-County Landowners Association, the Governor of South Carolina, South Carolina's Attorney General, Senator Strom Thurmond, the Chairmen of the York and Lancaster County Councils, industry groups, and individuals living in the claim area.
At that hearing, some members of the Community indicated a belief that a legislative settlement of the land claim would never be a truly final solution to the claim. It would be fair to say that the majority of those testifying believed that a legislative solution in some form would be the best approach to the claim. Unfortunately, no clear concensus emerged regarding the proper format for settlement legislation.
On May 13, 1980, the Commission approved the concept of the establishment of a work group desigued to discuss and draft proposed settlement legislation. The Commission felt that any proposals submitted by this work group should be available for public discussion and subject to adoption by the Commission before submission to the appropriate state and federal legislative bodies. The work group, consisting of representatives from the Governor's office, the Attorney General's office, Congressman Holland's office, the County Councils of Lancaster and York counties, the Catawba Indians, the Tri-County Landowners Association and the Study Commission, met throughout the summer of 1980.
The result of the work group's effort was a proposal embodying the following elements :
1. Extinguishment of claim to the approximately 144,000 acres ;
2. A land base of up to 4,800 acres to be held in trust by the Federal Government, land to be acquired by voluntary sale only ;
3. Eligibility of the Catawbas for Federal services without making the Catawbas a Federal Indian tribe for all purposes;
4. State control over reservation in nearly all respects with very few exceptions specifically listed in the legislation, adjacent landowners would not be subject to any additional regulations on their land;
5. Federal contribution for land acquisition, per capita distribution and trust fund recommended as $30 million dollars ;
6. State contribution of $1.35 million dollars together with contribution of the 630 acre state reservation and eligibility for discretionary funds available through state government.
This work group proposal represented a number of compromises among the different groups represented on the working committee.
After releasing the work group proposal to the public, hearings were held in Rock Hill, South Carolina, on August 13, 1980. At that time, widespread support for the work group proposal was not evident. It appeared to the Commission that substantial opposition in the community existed to federal recognition of the Catawbas and to the establishment of a federal Indian reservation. Also, the Attorney General of South Carolina recommended that a specific blood quotient be established to determine membership in the tribe and that no per capita cash payments be provided for. These recommendations were rejected by the representatives of the Catawba Indians.
Despite the lack of popular support for the work group proposal and disagreements which had surfaced between members of the work group, the Commission continued its efforts to reach a negotiated settlement along lines comparable to those contained in the work group proposal. After passage of the Maine settlement legislation in September 1980, the Commission submitted a proposal to the Catawba Indians patterned after the Maine settlement legislation. The most basic difference between the Commission proposal and the work group proposal was that the Commission proposal limited the size of the proposed reservation to the approximately 600-acres now held as a state reservation. The Commission proposal would have allowed the Catawbas to purchase and hold more acreage as a private landowner or non-profit corporation. Under the terms of the Commission proposal the Catawbas would also have been entitled to exercise powers similar to that of a municipality over the additional acreage purchased.