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While the United States is willing to contribute financially to a resolution of these claims, and will bear the cost of litigation in the Court of Claims, participation from the affected States must also be a part of the solution. We suggest, therefore, that the bill be amended to provide that extinguishment of aboriginal title and ratification of sales of recognized title would be conditioned on the execution of a contract between the Secretary of the Interior and the affected State, providing for the reimbursement of the United States for a portion of the liability resulting from the claims under the Act.

Second, S. 2084 creates a cause of action to recover the difference, plus interest, between the fair market value of the land and natural resources at the time of transfer and the price actually received. The bill provides a formula that would apply to lands held by aboriginal title as well as recognized title, although the interest on the aboriginal title would be 2 percent and the interest on the recognized title would be 5 percent.

Senator Cohen. Can you tell me why you would want to have some sort of compensation for aboriginal title !

Mr. COLDIRON. We are proposing that there be no compensation for aboriginal title.

Senator Cohen. Are you proposing that you eliminate compensation for aboriginal title in its entirety?

Mr. COLDIRON. We think that that is the law, that aboriginal title is not compensible under the Constitution. We have no constitutional obligation to pay for it.

Senator Cohen. So you are recommending eliminating aboriginal title compensation altogether?

Mr. COLDIRON. Altogether, yes.

As Assistant Attorney General Carol Dinkins will testify in greater detail, the administration believes that while there may be a constitutional obligation to compensate for retroactive ratification of transfers of recognized title, there is no such requirement with respect to aboriginal title.

More importantly, the complexities of determining the extent and nature of centuries old aboriginal claims, never defined by statute, treaty, or title would lead to unwieldy litigation with little probability of reaching a prompt conclusion. Moreover, paying interest on these claims would depart from previous legislative policy such as the Indian Claims Commission Act and would establish a vague but expansive precedent for the future.

Third, in our view, the approach of the bill should be applied to all similar Indian land claims in other States. The Trade and Intercourse Act claims in the Eastern States are in many respects unique and involve a singular balance of equities. Indeed, the eastern land claims themselves are different from one another and should be individually evaluated. Nevertheless, the administration urges the committee to consider expanding the approach of this legislation to include Trade and Intercourse Act claims in other States if those States so request.

In addition to these changes, a number of other modifications are desirable in order to insure that the process of resolving these claims can be accomplished expeditiously and fairly.

For example, it is important to insure the retroactive validation of these sales does not create valid title to frivolous or ineffective trans

actions and to insure that the act does not interfere with the law of adverse possession in the affected State.

We would also note that under section 5(e) of the bill, land acquired by the tribes in lieu of monetary compensation would be subject to State and local taxes and would not be held in trust by the United States. We note that if a tribe had acquired the land through litigation or had retained ownership, the land would be held in trust and would not be taxable. The traditional policy of preventing any possibility of selling or forfeiting Indian lands should also be considered in review of this bill.

We would be very glad to work with this committee and interested parties and affected tribes in carrying out this legislation.

Thank you very much. Senator COHEN. Thank you very much. Before you proceed, Senator Thurmond has arrived, and I would like to have him come before the committee and offer his testimony.

Senator Thurmond?



Senator THURMOND. Thank you very much.

Mr. Chairman, members of the committee, I appreciate the opportunity to appear before you and your committee today to discuss S. 2084, the Ancient Indian Land Claims Settlement Act of 1982. This legislation, of which I am a cosponsor, would provide what I believe to be a fair and equitable means for resolving ancient Indian land claims in the States of South Carolina and New York. It would also provide an acceptable pattern for resolving these claims throughout the eastern and gulf regions.

Before proceeding to the merits of this measure, I would like to take a few minutes to discuss the nature of the claim presently being asserted in my State of South Carolina. In 1840, the Catawba Tribe entered into a treaty with the State transferring to the State any interest the tribe might have had in some 144,000 acres of land in what are now York, Lancaster, and Chester Counties. The State subsequently transferred much of this land to private parties and local governmental units.

These landowners and their successors, believing their titles to be sound, invested millions of dollars in their property, building roads, bridges, houses, schools, hospitals, towns and factories.

In 1980, however, the Catawba Indian Tribe, a nonprofit organization claiming to represent the descendants of the Catawba Indians who had entered into the 1810 treaty with the State, instituted suit in the U.S. District Court for the District of South Carolina challenging the legality of that treaty.

Mr. Chairman, the alleged basis for this challenge is that the transfer of lands did not comply with the technical terms of the Nonintercourse Act of 1790. The complaint seeks to void the treaty and demands mesne profits and trespass damages since the date of the transfer.

Approximately ninety, parties, including the State of South Carolina, and various other public and private entities, are named as defendants in both their individual and representative capacities. Moreover, the plaintiff has filed a motion for the certification as a class of additional defendants, all other persons who might assert an interest in any of the lands in dispute, estimating that the class would total at least 27,000.

Mr. Chairman, the mere description of this lawsuit should speak. for the impact this claim has had on the State, and more particularly, the people residing in these counties. Even before this suit was filed, the knowledge of this claim had an adverse effect on property values and the security the affected landowners have felt in their homes and other possessions.

Fortunately for these landowners, the district judge to whom the case was assigned has recently granted summary judgment to all defendants. Yet, as we all know in this era of seemingly endless appeals, this ruling may not end the dispute. To the contrary, Mr. Chairman, the bill we are here to discuss would provide a mechanism for the final resolution of these claims, one that is fair to all concerned.

First, this bill would ratify all transfers of land or natural resources located in the States of New York and South Carolina by or on behalf of any Indian tribe prior to January 1, 1912. The purpose of this provision is to remove any clouds on titles in the affected States stemming from alleged ancient violations of the Nonintercourse Act, while preserving any legitimate claims of more recent origin.

Second, this bill would validate the ownership, use and occupancy of such lands and natural resources since the date of such transfers, and extinguish any claims arising out of such ownership, use and occupancy which may have accrued to the benefit of these tribes or their successors since the date of such transfers. The purpose of this provision, taken together with the preceding provision, is to eliminate all Indian tribal land claims and related claims for monetary compensation which may exist as a result of these ancient transfers.

The bill does not stop here, however. It goes on to provide two alternative avenues by which the affected tribes will be assured compensation for any losses they may sustain as a result of the ratification of prior transfers and extinguishment of related claims.

Under the first alternative, the Secretary of the Interior, after soliciting comments from the affected tribes, will determine whether each tribe has a credible claim and, if so, the fair and equitable monetary award that should be made to that tribe. Subsection 5(c) (2) of the bill sets forth certain criteria the Secretary may consider in determining what he believes to be a fair and equitable award, including any consideration received by the tribe for the original transfer, as well as the legal strength and validity of the claim and any defenses which could have been raised in opposition to it.

Any determination the Secretary makes will not be subject to judicial review, and must be accepted or rejected by the affected tribe within 60 days. If accepted, this determination becomes final and binding on all concerned.

Under subsection 5(e) of the bill, the Secretary is authorized to assist any tribe receiving monetary compensation in using those funds to purchase land or other natural resources from any private person or governmental entity willing to sell the same. Moreover, if Federal lands or other natural resources are otherwise available, the Secretary may arrange for an exchange of such lands or other natural resources in return for the award. Any land of other natural resources

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acquired in this fashion must be acquired by the tribe in fee simple, and will not be held in trust by the United States for the benefit of the tribe.

Under the second alternative, any tribe in the State of New York or South Carolina which has never obtained a final judgment on a land claim filed with the Indian Claims Commission or the Court of Claims, including any tribe which rejects the determination of the Secretary of the interior made pursuant to the preceding section, may file a claim against the United States in the Court of Claims.

Upon proof, as provided in the bill, that the tribe is entitled to recover on its claim, the tribe will be awarded monetary compensation equivalent to the difference between the fair market value of the land at the time of the challenged transfer and the compensation, if any, actually received by the tribe for such transfer, with interest from the date of transfer to the date of final judgment on the claim. The bill further provides that these claims will, to the extent practicable, take precedence over other cases on the docket of the Court of Claims, and review of its judgments may be sought in the Supreme Court by petition for a writ of certiorari.

Mr. Chairman and Senator Goldwater, these I believe are the most salient features of this measure. I hope the members of this committee will carefully consider the merits of this bill and the comments I have made. I am confident you will find that this proposal provides an acceptable vehicle for the final resolution of these claims, and one that is fair to all concerned.

Now, Mr. Chairman, this concludes my statement in support of this measure. On behalf of Mr. Lindsay Pettus and the citizens and Council of Lancaster County, S.C., I ask that a resolution adopted by the Lancaster County Council and the letter directed to the chairman, Senator Cohen, be entered into the record of this hearing.

Senator COHEN. Without objection, it will be included, Senator Thurmond. [The resolution follows:)


Lancaster, S.C., June 18, 1982.
Chairman, Senate Select Committee on Indian Affairs, Dirksen Senate Ofice

Building, Washington, D.C.
DEAB MR. COHEN : Lancaster County Council has authorized me to represent
them before your Committee during the hearings on the Lee Bill concerning res-
olution of Eastern Indian claims which includes the Catawba Claim in South
Carolina. Our County is in the claim area. Attached is a Resolution adopted
by Lancaster County Council February 22, 1982 for your consideration.

We appreciate your consideration of the Bill and urge you to adopt it as a solution to this problem. Sincerely,

D. LINDSAY PETTUS, Councilman, Lancaster County Council.

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Whereas, Lancaster County is currently a Defendent in the action brought by the Catawba Indians in United States District Court, and

Whereas, the suit seeks possession of thousands of acres of real property in northern Lancaster County and trespass damages, and

Whereas, the pendency of the action and the costs of litigation are burdens on the taxpayers of Lancaster County, and

Whereas, the Landowners in the effected area are innocent purchasers and possessors of the property in question, and

Whereas, legislation known as the Lee Bill has been introduced in Congress which would terminate any land claims in the effected area and would leave the Plaintiffs a right to sue for damages in the United States Court of Claims or through the United States Secretary of the Interior, and

Whereas, passage of the Lee Bill would be of great benefit to the landowners in Lancaster County involved in this action, then

Be it resolved by Lancaster County Council that the Lancaster County Council as governing body of Lancaster County, South Carolina, endorses the concept of the Lee Bill as a resolution of the pending land claims by the Catawba Indians and urges the Senators and Representatives of the Congress of the United States to vigorously support passage of the Lee Bill in both houses of Congress to end the financial and commercial burden imposed by the pending claims. Done this 22nd day of February, 1982, in Lancaster, South Carolina.

FRANCIS L. BELL, Jr., Chairman.

MARY L. BARRY, Secretary. (Amended for presentation to the congressional committees.)

Senator THURMOND. I wish to thank the chairman and the members of the committee. Senator COHEN. Thank


your testimony. Senator THURMOND. It is a very important matter to our State. I want to repeat that people living in these areas, in Lancaster and York Counties, are at a standstill. They cannot borrow on their land, they cannot sell their land, they cannot develop it, and it really is a very critical situation.

Senator COHEN. How much land is involved in these claims, Senator Thurmond?

Senator THURMOND. 144,000 acres.
Senator COHEN. And is all of it settled or occupied !

Senator THURMOND. Yes, it is highly developed, most of it. The city of Rock Hill, for instance, which has a number of textile mills and other development, is in this area.

Senator COHEN. Have the suits been filed in your State against the Federal Government or against the property owners in the State of South Carolina ?

Senator THURMOND. The suit was filed. And Ms. Toal is here this morning, a lady lawyer from Columbia and by the way, a distinguished member of the legislature. Ms. Toal, your suit was brought against the State ? Ms. Toal. Yes. It is against landowners there.

Senator THURMOND. Brought against the State and the landowners, and as I stated, the judge who heard the case has dismissed it, and granted summary judgment to the defendants.

Senator COHEN. Thank you very much Senator Thurmond.
Senator THURMOND. Thank you very much. Thank you both.
Senator COHEN. Senator D'Amato?



Senator D'AMATO. Thank you very much, Mr. Chairman and Senator Goldwater. I would like to thank you for the opportunity of appearing here with my distinguished colleague, Senator Thurmond, and for your willingness to hold hearings on this important matter

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