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which is certainly a recognition of the serious difficulties faced by thousands of innocent taxpayers in New York and South Carolina.
This hearing, I believe, is a major step forward for those of us who believe that Congress, and not the courts, must settle once and for all the claims brought by the various Indian tribes in the Eastern part of our Nation.
Even the courts, which in too many instances have intervened in matters properly within the boundaries of the legislative branch, have recognized that in cases involving these land claims there is a need for a political and not a judicial solution. The challenge before the Congress then is to enact into law legislation which will provide a fair and equitable solution to the Indian land claims issue. It would be unfair to say that this task is a simple one. It is not, as the chairman well knows, having had extensive experience in these matters.
The issue before us is fraught with emotion and a sense of guilt pervades our conscience because of the inequities that may have been inflicted upon the Indians by our forefathers.
We cannot and should not forget the sins of the past, but we must carefully separate those memories from the facts before us.
Today, we have an opportunity to achieve a rational and sensible solution to the lands claims issue. The facts compel passage of S. 2084. To do otherwise will impose and continue to impose an injustice unparalled in American history.
New York claims currently pending before the Federal courts account for nearly 9 million acres. The size of these claims brought by the Oneida and Cayuga nations is about the size of the States of Rhode Island, Delaware, and Connecticut combined.
Additional claims of the St. Regis Mohawk Tribes which have not yet been filed in court account for additional thousands of acres. The land involved is neither vacant nor in the condition it was in 200 years ago. Like most of the property throughout the United States, generations of Americans have invested their sweat, savings, et cetera, to create a better way of life. What was vacant, unimproved land at the time of the transfers from Indians to non-Indians is now occupied by homes, farms, businesses, and municipalities.
More important though is the fact that the land is now lived on by men and women who have had absolutely nothing to do with the alleged illegal transfers which took place in the 18th century. Unfortunately, these men and women have become a forgotten class. They are remembered only by the attorneys for the Indian tribes who have served them with notices of complaints brought against them. However, as Mayor Koch of New York City has written to this committee, “It would be unconscionable if these taxpayers who purchased their property in good faith might lose it because of alleged wrongs which might have occurred nearly 200 years ago.'
I ask that a copy of the mayor's letter endorsing S. 2084 be made a part of this hearing record.
Congress cannot ignore the fact that the landowners in the communities being forced to bear the burden of the Indian land claims are completely innocent of any wrongdoings in connection with the claims. We must prevent the injustice threatening these people, who are faced with the loss of their residences or their businesses, from taking place.
Former Attorney General Griffin Bell recognized this proposition as he refused to bring suit against landowners in New York, South Carolina, and Louisiana. In the letter of June 30, 1978, to the Secretary of the Interior, Mr. Bell wrote the following: “The fact that the landowners are completely innocent of any wrongdoing weighs heavily against suing them.”
It is not difficult to imagine the tremendous personal and economic disruption which would result should
the complainants be granted possession of the property they seek. Congress has a special duty to protect the Indian tribes, but it also has a duty, just as compelling, to prevent injustice to thousands of innocent landowners. The legislation I have introduced with Senator Thurmond and Congressman Lee protects these people and at the same time provides the affected Indian tribes with the opportunity to seek monetary compensation. This legislation does not prejudice the merits of the Indian tribes with the opportunity to seek monetary compensation. This legislation does not prejudice the merits of the Indian claims. The Indian tribe will still have their day in court, if they so choose.
Mr. Chairman, for the sake of brevity, I would ask that the balance of my remarks be included in the hearing record. These remarks include a discussion of the methods by which affected Indian tribes can receive monetary compensation for their land claims, including administrative and judicial remedies. I might add that the decision of the U.S. Court of Claims in the process can be appealed to the Supreme Court.
[The remainder of Senator D'Amato's, remarks follow:] The bill ratifies, approves, and validates all nd transfers which have provided or might provide the basis of Indian land claims in New York and South Carolina. Therefore, it removes the clouds on the titles of property owned by innocent landowners. The legislation then provides affected Indian tribes with due process, as it establishes procedures for obtaining fair compensation for their claims, including a cause of action for monetary compensation against the United States in the Court of Claims.
There are two processes for the Indian tribes to receive equitable compensation, without ejecting innocent people from their property.
First, the tribe can submit to the Secretary of the Interior information supporting the contentions of its claim. This information will assist the Secretary in determining whether in the absence of the bill the Indian tribe had a credible claim and to determine a fair monetary award that should be paid by the United States. Any determination made by the Secretary can be accepted or rejected by the tribe. This procedure also authorizes the Secretary to assist Indian tribes with the purchase of land from willing sellers.
According to the second procedure, the Indian tribe, if not satisfied with the award, or if it wishes to bypass the Secretary, can sue the United States in the U.S. Court of Claims. This decision can be appealed to the U.S. Supreme Court. The Indian tribe can receive a fair monetary award in this procedure as well.
Monetary damages awarded by the Court of Claims shall be equivalent to the difference between the fair market value that the claimant should have received for the transfer of its interest in the land and the compensation received. The amount of the award shall be increased by simple interest from the date of the transfer until the date final judgment is entered in the Court of Claims.
Clearly, this measure provides a fair and equitable solution to the Indian land claims controversy, addressing the serious problems facing present landowners and the claims made by Indian tribes.
To those who say the land is sacred to the Indians and should be returned, I say it is of no less value to those who occupy it today. To those who say this leg. islation is arbitrary and unfair, I say not to act would create an even greater injustice. To those who say that there should be negotiated settlements, I say we must bring an end to this chapter in American history.
Whatever wrongs may have been committed in the past by others must not color our judgment in dealing with the problems of today. To turn back the clock to the eighteenth century to correct alleged errors is neither equitable nor just. Instead, it will mean tremendous injustice to people who were not even born at the time of the alleged wrongs. It is the responsibility of the Congress to avoid this injustice. By passing the Ancient Indian Land Claims Settlement Act. Congress can prevent this injustice and bring finality to a situation which has dragged on far too long.
Senator D'Amato. Let me close by saying that I think it is a responsibility of Congress to provide the leadership necessary to resolve these land claims. I think that absent that, we will not be able to obtain the settlement that has been made possible and has taken place in other areas. There was a settlement negotiated in 1980 and Congress almost did provide the vehicle by way of legislation to implement that. However, there was a tremendous outcry and there were some very real problems, constitutional problems within the State of New York, that prevented that from being implemented.
I believe that S. 2084 will provide a vehicle to settle the Indian land claims issue. And certainly, I recognize that there may have to be a number of amendments, but I think that this gives us an opportunity to begin to focus in on this very difficult, complex, and emotional issue.
I thank the chairman for the opportunity that you have afforded, I believe, to all of the parties to begin to focus in on this important issue.
Senator Cohen. Thank you very much, Senator D'Amato. We appreciate your testimony. [The letter from Mayor Koch follows:]
THE CITY OF NEW YORK,
OFFICE OF THE MAYOR,
New York, N.Y., June 17, 1982. Hon. WILLIAM S. COHEN, Chairman, Senate Select Committee on Indian Affairs, U.S. Senate, Dirksen Sen
ate Office Building, Washington, D.C. DEAR MR. CHAIRMAN : As a result of a prior commitment which I must honor, it is not possible for me to appear before this Committee today. However, I wish to underscore my strong and unequivocal support for the Ancient Indian Land Claims Settlement Act of 1982.
For too long now, thousands of homeowners, small businessmen, and communities have been faced with the possibility of losing their property as a result of suits brought by various Indian tribes. It would be unconscionable if these taxpayers, who purchased their property in good faith, might lose it because of alleged wrongs which may have occurred nearly 200 years ago. It is equally absurd that the State donate its land as part of a negotiated settlement when the claims of the Indian tribes have not been proved.
The Ancient Indian Land Claims Settlement Act brings finality to a situation which has dragged on interminably. By extinguishing the claims in New York, the clouds on the titles to land located within the State will be removed. At the same time, the legislation establishes a fair and equitable method of compensating those affected Indian tribes which can prove a valid claim. In addition, it provides the Indian tribes with an opportunity to sue the Federal government for monetary compensation in the United States Court of Claims and to appeal its decisions to the United States Supreme Court.
To continue efforts to negotiate settlements in New York is not practical. There are a number of claims which have been brought in Federal court, but without Federal legislation, it is possible that claims will continue to appear. Even within the Indian tribes themselves, there are disputes concerning the tribal leadership which often make it difficult, if not impossible, to reach a final negotiated settlement.
The Federal government must bear its responsibility not only to its Indian tribes but to the non-Indian taxpayers and property-owners. The Committee should move expeditiously to pass and send to the floor the legislation before it. To do otherwise would result in tremendous economic dislocation and hardship. Sincerely,
EDWARD I. Koch, Mayor.
Senator Cohen. Senator Goldwater, do you have any questions?
Senator GOLDWATER. I have some questions to address to Mr. Coldiron when he has completed his statement.
Senator COHEN. Mr. Coldiron, have you completed your statement ?
STATEMENT OF CAROL E. DINKINS, ASSISTANT ATTORNEY GEN
ERAL, LAND AND NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE
Ms. DINKINS. Thank you, Mr. Chairman, Senator Goldwater.
We appreciate the opportunity to testify on S. 2084, the Ancient Indian Land Claims Settlement Act of 1982. As the previous testimony by the Solicitor indicated, S. 2084 would achieve a legislative solution to ongoing and potential litigation over the disputed land in New York and South Carolina by extinguishing tribal claims based on both recognized and aboriginal title. This would be accomplished through retroactive ratification of any pre-1912 transfer of land by Indian tribes and by the extinguishment of any claims for damage from trespass or mesne profits based on those transfers.
Compensation for the loss of the tribes' right to sue the present landowners would be based on the difference between the fair market value of the land and natural resources at the time of the transfer and the price that the Indians actually received.
The administration supports the basic legislative solution embodied in S. 2084. We consider the provisions of the bill to be constitutional, but we believe-as has already been indicated by the previous testimony-that certain modifications are necessary. One of these concerns aboriginal title.
As the committee is aware, aboriginal title refers to the tribes' right of occupancy of their aboriginal homelands. Recognized title refers to lands guaranteed to tribes by treaties, statutes, or other action of the sovereign. The Supreme Court has made clear that Congress has plenary authority to extinguish aboriginal title with or without the consent of the tribes.
Moreover, it is well established that the Indian right of occupancy created by aboriginal title is not a vested property right protected by the fifth amendment. The Supreme Court has explicitly held, in TeeHit-Ton Indians v. United States, 348 U.S. 272 (1955), for example, that Congress can constitutionally extinguish any claims based on aboriginal title without the necessity of paying just compensation.
The administration believes that while there may be a constitutional obligation to compensate for certain interests in land resulting from retroactive ratification of transfers of recognized title, there is clearly no such requirement with respect to aboriginal title. Moreover, compensation for aboriginal title might create an irresistible legislative precedent which could prove extremely expensive. We therefore recommend that the provisions authorizing compensation for extinguishment of aboriginal title be deleted.
With respect to recognized title, S. 2084 essentially replaces the Indians' cause of action against the landowners with a cause of action
1 See appendix, p. 366.
against the United States in the Court of Claims. The Justice Department believes that this provision comports with the just compensation requirement of the fifth amendment. However, the issue of retroactive ratification in this context has never been definitively addressed by the Supreme Court.
S. 2084 would also extinguish Indian claims for trespass damages or mesne profits based on alleged wrongful use or occupancy of Indian lands or natural resources after the date of any allegedly invalid transfer of recognized title. A court construing S. 2084 might conclude that Congress lacked the authority to validate the original transfer of recognized title interests as of the date they were sold by the tribe. In that event, the tribes might have a cause of action against the United States under the Tucker Act for accrued trespass claims and mesne profits. Also, even if Congress validates the transfer retroactively, these causes of action may be deemed to be vested and thus the tribes would be entitled to compensation under the fifth amendment. We do not believe there is any other potential constitutional problem with the bill.
I appreciate the opportunity to testify and would be glad to answer any question.
Senator COHEN. Senator Goldwater?
Senator GOLDWATER. I have some questions I want to direct to Mr. Coldiron, but not specifically on this subject. I do though want to say that this is not a simple piece of legislation. We are talking about, for example, 144,000 acres in South Carolina. The Indians in my State live on 30,000 square miles. And there is not much question in my mind that the Indians were there a long, long time before we nonIndians came there.
In fact, we have one tribe that can trace back 3,000 years. So, when we start legislating in this field, it is not just for New York or South Carolina, I can guarantee you that every western State that has Indians, and most of them do, will come in under the same type of legislation. And I have very grave questions about it, frankly.
For example, how did the Federal Government obtain title rights to Indian land? Now, after we set ourselves up as a Nation, we went through the process of Supreme Court decisions and laws and so forth, but I have never been satisfied that that in itself could take land away from somebody who has occupied it and give it to somebody who has just moved in.
What is the difference between treaty lands that rather specifically give the land to the Indian, and Executive order lands that can be withdrawn at any time the President wants to ? There is a grave question there. I do not know what the situation is in New York and South Carolina. I have a hunch they are mostly treaties that we are talking about, whereas in the far west, very few of our tribes have treaties. They live on allotted land and have for a long time. What is the situation going to be where the title now rests with the Indians? We have that situation all over America.
And if the legislation passes, what are the payments going to be made at; the present value, the past value or what?
So I think we have a bill here-I am going to listen very attentively to it—but I have to say that I start out a little bit opposed to it. I think there are very, very grave questions in this relative to our