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Senator COHEN. There are two more witnesses to testify. I must go vote.

STATEMENT OF J. D. TODD, JR., ESQ., LEATHERWOOD, WALKER,

TODD & MANN, GREENVILLE, S.C., LEGAL COUNSEL

Mr. Tond. I would like to submit my statement for the record. I do not think I can add anything in my remarks to what has already been said.

Senator COHEN. Thank you. We will be happy to receive your statement and have it included in the record of the hearing.

[The prepared statement follows:] PREPARED STATEMENT OF J. D. TODD, JR., LEATHER WOOD, WALKER, TODD & MANN,

GREENVILLE, S.C. My name is J. D. Todd, Jr., and I am a partner in the firm of Leatherwood, Walker, Todd & Mann of Greenville, South Carolina. Our firm and the firm of Bell, Boyd & Lloyd of Washington, D.C. represent numerous non-government defendants in litigation brought by the modern-day descendants of Catawba Indians to recover 225 square miles of land surrounding and encompassing the City of Rock Hill, South Carolina. The plaintiff in this litigation seeks to take possession of land from the present record title holders and also seeks to recover trespass damages for a period of at least 140 years.

Last week the District Court granted the defendants' motion for summary judg. ment on a threshold issue in the case. The motion was based on a termination act passed by Congress in 1958 at the Catawbas' request during the era when federal polley encouraged Indians to become more independent of federal support and assistance. The aim of such legislation was to place Indians on an equal footing with non-Indian citizens. The termination act affected the legal status of the Catawbas under federal law in a number of ways, and the defendants asserted in the motion that the Catawbas' claims are now barred as a result of the 1959 legislation.

Although, as the successful parties, we are happy about this decision, we realize that it is only the first stage in a long, expensive process. There is Ukely to be an appeal to the Fourth Circuit Court of Appeals, and, eventually, a petition for Supreme Court review. Should the award of summary judgment ever be reversed upon appeal, it will take even more years to resolve the myriad, complex and novel historical issues, both factual and legal, that would be raised by a trial on the merits.

The legislation you are considering today would have the effect of ending this protracted and costly litigation between the current landowners and the Catawbas and would substitute another procedure for compensating the Catawbas for any valid claims they may have respecting the land at issue. Wo believe that this legislation is equitable to the parties in this litigation and that it represents sound public policy for dealing with any claims by Indians to recover land based on alleged century-old violations of federal law. We, therefore, support S. 2084 as a means of resolving this dispute and others similar to it.

A brief summary of the issues in the Catawba litigation and the historical events giving rise to the Catawbas' claims is necessary to understand why congressional legislation is the most suitable means of resolving such disputes.

The Catawbas allege that they owned and occupied the land at issue "from time immemorial” and that their ownership of that land was confirmed in a treaty between British Colonial officials and the Catawbas in 1763, before the American Revolution. In 1840, the Catawbas sold this land to the State of South Carolina by a treaty, known as the Treaty of Nation Ford. The Catawbas allege that this transaction required federal participation and approval and that the 1840 transfer was void for lack of any such federal involvement and consent. The Indians further allege that the interest of every one of the thousands of current title holders is derived from that transfer to the State of South Carolina, arguing on that basis that all present titles are void.

The Catawbas base this claim primarily on the federal statute referred to in 8. 2084 and elsewhere as the “Nonintercourse Act." As the proposed legislation explains in the Congressional Findings and Declaration of Policy, the “Nonintercourse Act” required federal participation in transfers of Indian lands to protect Indians from unfair dealings. The requirement was first imposed in 1790 as one of a number of provisions of the Trade and Intercourse Act, which regulated all kinds of dealings between Indians and non-Indians on the Frontier.

It is important for this Committee to realize that in 1840 the State of South Carolina was acting in apparent good faith in negotiating its own treaty with the Catawbas. The Catawbas had never signed a treaty with the federal government and had never been treated as the responsibility of the federal government. It simply was not apparent at that time that the strictures of the Nonintercourse Act even applied to the Catawbas. In fact, the State had regulated the Catawbas and their dealings with non-Indians from the late 1700s through 1840, and the State appropriated monies to assist the Catawbas both before and after the 1840 treaty. All this indicates that the 1840 Treaty of Nation Ford now alleged to be void was considered legally valid by many persons, if not most, at the time it was made.

There are a number of reasons that congressional legislation is more appropriate than litigation as a means of resolving disputes such as this one. First, the issues inherently are not amenable to resolution by litigation. Many of the issues raised in such cases cannot be determined on the basis of adequate credible and pertinent evidence. There are no live witnesses whose memories of historical events can be probed and cross-examined and evaluated. Frequently, the search for documentary evidence regarding such century-old events is fruitless, and there may be no evidence at all respecting crucial events. Even where there are documents the record is often fragmentary, and the documents are susceptible to many different characterizations. The frequent absence of a complete and reliable record of relevant events makes the resolution of such Indian land claims inherently inappropriate for litigation.

Legislation is more appropriate also because a more equitable result can be designed. The current landowners are innocent of any wrongdoing. The Indians, on their side, allege that their ancestors were not treated justly when they transferred the land. Settlement legislation can provide both sides with benefits, and S. 2084 does so. The legislation satisfies the intense concern of the thousands of innocent landowners that their title be permanently and conclusively confirmed. At the same time, the Catawbas may receive redress through an alternative procedure. The legitimacy of their claims will be assessed, but their claims will not be subject to the same challenges as they would be in the litigation. Relief will be awarded more on the basis of fairness than on legal technicalities.

Ancient Indian land claims additionally raise important social and political issues far more appropriate for congressional resolution than for determination in a trial between private parties. The Catawbas' claims raise, among others, the issue of the scope of the federal government's responsibility for the so-called "state Indians" during the 18th and 19th centuries and whether the scope of that responsibility has gradually altered. If the United States has a trust responsibility for all Indians based on the Nonintercourse Act, the current scope of this responsibility is a problem of public policy for determination by Congress.

Even aside from the question of the scope of the United States' current and historical responsibilities, Indian land claims pose a conflict in public policies that should be resolved by legislation rather than judicial decision. Our society highly values certainty and stability in land titles. As a consequence, numerous doctrines such as adverse possession and laches and numerous laws such as statutes of limitations and marketable title acts have been employed to protect landowners in possession of land for many years under claim and color of title and to facilitate land transfers by providing buyers confidence in the validity of the titles being purchased. Nevertheless, several federal district courts have concluded that such defenses against title claims based on ancient defects are not available to defendants in Nonintercourse Act suits." The federal policy of protecting Indians directly conflicts with the policy of promoting the stability of land titles by eventually cutting off claims based on ancient defects. Litigation is not the appropriate vehicle to resolve this sort of conflict between different public policies.

Finally, legislation rather than litigation is desirable because this claim is based upon an alleged failure of the United States to fulfill its obligations to the Indians. The consequences of any failures of the federal government to recog

1 E.9., Schaghticoke Tribe of Indiang v. Kent School Corp., 423 F. Supp. 780 (D. Conn. 1976); Narrangansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 418 F. Supp. 798 (D.R.I. 1976).

nize and fulfill its obligations toward various Indians are a matter for the Congress to deal with, not the private homeowner or local businessman. Only by a legislative settlement will the federal government share in the burden of rectifying its past mistakes.

Earlier legislative settlements in Maine and Rhode Island occurred because the federal government recognized its responsibility for creating the problem and considered it inappropriate for innocent property owners to have to solve it alone. The very same reasons for settlement legislation exist here. There is no justification for making South Carolina property owners bear the brunt of the government's past failures. Legislative resolution of such claims can lead to consistent results for similar claims. This is more equitable for the various Indian tribes asserting such claims, and it is more equitable for the various landowners subject to actual and potential Indian land claims. In fact, the Department of Justice refused in 1978 to sue the present landowners on behalf of the Catawbas for many of these same reasons. The Attorney General explained in a letter to the Department of the Interior that the landowners were completely innocent, and that the policies which led to settlement legislation for the Maine Indian land claims supported similar relief in other claim areas such as South Carolina and New York.

Congress has the power to enact legislation such as S. 2084, settling Iudian land claims. The courts have held that Congress can retroactively ratify earlier transfers of Indian lands as of the date of the transfers. The basic logic of such decisions is that the United States could have approved the transfers at the time they were made. The United States, by congressional action, continues to have the power to consent to these transfers. If the United States now consents to a transfer of land by Indians, it retroactively validates the transfer by supplying the approval which had been lacking. This also ends the sole basis of the Indians' claim for recovery. In recent times, Congress has explicitly supplied such federal approval to retroactively validate previous Indian land transfers by settlement legislation in Maine, Rhode Island and Alaska. The proposed legislation under consideration here is similarly appropriate.

In sum, the stakes are too high, the legal and historical issues too intricate and speculative, for such disputes to be fairly resolved by litigation. Moreover, the burdens of litigation and the potential liability are loaded on the shoulders of innocent persons, rather than the party responsible for the creation of the problem, the federal government. We believe the proposed legislation is a rational and fair resolution of the Catawbas' claims and similar Indian land claims. We cannot rewrite almost two centuries of history. We can only move forward, attempting to compensate those with any valid claims but without penalizing innocent parties and throwing entire regions into economic paralysis. Congress should establish sound, consistent policies regarding such claims. Unlike the courts, Congress can fashion a new solution to these disputes, a solution that takes into account federal Indian policy, protects innocent persons, and assures a stable land title and land transfer system.

Senator Cohen. I have to go and vote once again so the hearing will stand in recess for 10 minutes.

[Recess.
Senator Cohen. The hearing will come to order.
Mr. Byrd ?

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STATEMENT OF MITCHELL K. BYRD, ESQ., BYRD & BYRD, LEGAL

COUNSEL, TRI-COUNTY LANDOWNERS ASSOCIATION Mr. Byrd. Mr. Chairman, my name is Mitchell Byrd. I am an attorney from Rock Hill, S.C., and I am appearing today on behalf of the Tri-County Landowners Association.

Our association is composed of landowners from York, Chester, and Lancaster Counties in South Carolina who own homes, farms, and

2 E.9., Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955); United States v. Santa Fe Pac. R.R., 314 1.8. 339 (1941); United States v. Atlantic Richfield Co., 435 F. Supp. 1009 (D. Alaska 1977), af'd 612 F.2d 1132 (9th Cir.), cert. denied, 449 U.S. 888 (1980); Inupiat Community of the Arctic Slope v. United States, F.2d, No. 596–77. Slip Op. Ct. *C. (June 2, 1982). See also United States v. Creek Nation, 295 U.S. 102 (1935); Shoshone Tribe' v. United States, 299 U.S. 476 (1937); Seneca Nation of Indians v. United States, 173 Ct. Cl. 912 (1965).

businesses in the area of about 144,000 acres which is claimed by the Catawba Indians. Most of the named defendants in the Catawba land claim are also members of our association.

This is the second time that the Tri-County Landowners Association has appeared before a congressional committee which was considering legislation to resolve the dispute between the Catawba Indians and the landowners in the tri-county area of South Carolina.

Much has transpired since that first appearance in June 1979, most notably the decision on June 14, 1982, by Judge Joseph P. Wilson in the case of Catawba Indian Tribe of South Carolina v. State of South Carolina and others, Civil Action No. 80.2050, in the U.S. District Court for the District of South Carolina.

It seems to us, Mr. Chairman, that Judge Wilson's decision may have brought the Catawbas and the landowners closer together in presenting to the Congress a mutual agreement on remedial legislation. Time and again, we have heard that the Congress, or certain of its influential members, is unwilling to adopt legislation unless both sides are in agreement on the legislation. The Maine and Rhode Island legislation are pointed to as examples.

At the time of our previous appearance, there were many legal and factual issues which were disputed by the Catawbas and the landowners. Agreement was impossible. Now, however, Judge Wilson has ruled on many of the issues, and while I recognize that appeals to higher courts will occur, it seems to us that at the present time it would be in the best interests of all parties to settle the pending lawsuit by the payment by the Federal Government to the Catawbas of a reasonable sum of money. Senate bill 2084, in its present form, or as possibly amended, might provide an appropriate vehicle.

My suggestion that the Federal Government pay a reasonable sum to the Catawbas needs an explanation. The Catawbas base their claim on the failure of Congress to approve the 1840 Treaty between the Catawbas and the State, a procedure which they claim was required by the Nonintercourse Act of 1790. In this sense, the Catawbas claim is somewhat like the facts involving the Penobscot and Passamaquoddy Indians in Maine who also had been historically treated as a State responsibility.

Prior to the first circuit's decision in 1975 in Passamaquoddy v. Morton, 528 F. 2d 370, even the United States took the view that the Nonintercourse Act did not apply to tribes which had not been officially recognized by the Federal Government and which had been considered State Indians.

The first circuit, of course, overturned these beliefs and held in Passamaquoddy that the United States assumed responsibility for all Indians, State or Federal, by passing the Nonintercourse Act. In effect, the first circuit imposed a heavy fiduciary duty on the United States, and it is the alleged failure of this Government to discharge its trust responsibilities which is the basis of the current Catawba claim.

It, therefore, was the Federal Government, not the State or local governments, which breached any fiduciary duties owed to the Catawbas, and I am suggesting that it is the Federal Government and not the blameless landowners who should pay for this alleged breach of trust responsibilities.

Mr. Chairman, in developing this suggestion for settlement of the Catawba dispute, I want it clearly understood that the landowners are firmly convinced that Judge Wilson's decision is correct and that it will be sustained on appeal. It vindicates many positions which we have taken in the past. Meanwhile, however, there will be a continuance during the appeal period of all of the negative and costly factors which have prevailed in our area and which have been discussed by other South Carolina witnesses.

Our local newspaper, The Rock Hill Evening Herald, June 16, has reported that about 400 Catawbas have signed a petition supporting Senate bill No. 2084, but disagree with the amount of money set aside in the bill for settlement. I am informed that over 600 Catawbas have indicated their support for a monetary settlement. We would like for additional Catawbas to join with us in our settlement efforts. It is possible that an agreement could then be reached on the amount of a monetary settlement.

In making this suggestion, Mr. Chairman, the tri-county landowners are not abandoning our friends in New York, who have worked so hard to advance legislation to settle ancient Indian land claims. We have joined with them in this objective even though there are important differences in our cases.

First, in our case, there was the 1959 act of Congress terminating the tribe and making State law applicable to them in the same manner as such law apply to other persons. It is our understanding that there is no such law applicable in New York. Second, there is another

and perhaps more important difference, the decision of Judge Wilson. When we joined with our New York friends, our case was being litigated. Now we have a judicial pronouncement that the Catawbas” claim is barred. Nevertheless, as I stated previously, We believe that the case should be settled and that a basis for settlement fair to all would be confirmation of the titles of all landowners and a reasonable payment to the Catawbas.

We urge you to act favorably on Senate bill 2084, as proposed or amended, and help us bring about a swift and equitable end to this dispute.

Thank you.
Senator COHEN. Thank you very much, Mr. Byrd.

Just one question I have; you mentioned payment by the Federal Government. Do you realizc, in this legislation, that you are going to be required to pay one-half of whatever is paid !

Mr. BYRD. No, sir, I did not realize that. Of course, that would be obviously difficult.

Senator COHEN. Would you still support it in view of that?

Mr. BYRD. I would have a lot of trouble supporting it on that basis. I sure would, because I do not find any culpability on the part of the State of South Carolina.

Senator COHEN. You see, part of the problem is, you are going to have the same reluctance to support it that OMB is going to have if you do not. They are not going to support the bill, the administration will not, unless you pay in one-half, and I can understand your position that you are not eager to support it unless you do not have to pay one-half. So you have another round of negotiations, I suppose, coming_up.

Mr. BYRD. I think one thing we have all been impressed with in our 2 days here is the number of problems that exist in this bill.

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