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Klamath Indians case is that the first 5 percent was not paid at the end of the first year, the second 5 percent was not paid at the end of the second year, etc. Accordingly, the Indians have been deprived not only of the original value of the property for 150 to 190 years, but have been deprived of the interest payments over the same period. The accepted method of compensating for the denial of a sum over a prolonged period is compound interest, which requires payment of interest not only on the original sum, but on the unpaid interest.
This is no small difference. Over 180 years, a sum plus 5-percent interest compounded annually is 724 times as great as the same sum plus 5-percent simple interest. Thus, even assuming that the value at the time of transfer, plus a fair measure of interest, would amount to just compensation, the Bill's specification of simple interest fails to even approach that standard.
There is finally the question of ultimate fairness, I realize that this quality is in short supply in these modern times, but hopefully it is not too late for the Congress to consider it as an alternative. Throughout the history of this country, American Indians have been ravaged by white settlers who wanted the Indians' land so badly they literally stopped at nothing to get it.
Just as this committee has, I have heard the myriad of arguments that at some point white society has to stop paying for the sins of their ancestors. The point is well taken. But unfortunately, and tragically, Indians living today, are still paying for the sins of those same ancestors. They have been deprived of the single most important thing they ever possessed-their land base. Just as you could not be a member of Congress without your legislative chamber and your office, Indians cannot be Indians without land. And it is not, I do not believe, in the interests of a great country to try to destroy this unique, minority American culture by forcing Indians to be whites, by moving them off their land and into cities. This has been tried by our government before and as a policy, has miserably failed.
This legislation is punitive, even retributive in nature, and it is certainly not becoming of a powerful government to inflict even more punishment on a much weaker group of its citizens. We can only call ourselves civilized when we learn to use power wisely, and not in the manner a bully, would use it.
The ultimate question is are we really secure enough as a country and as a people to allow in our midest a minority, native culture to survive and even to flourish as a standing reminder that we cherish pluralism and differences within our society.
For the Congress to seriously consider this legislation would not only be unfair to those Indians who are affected by it, but it would loudly proclaim that in the year 1982, might still makes right, that our courts are not to be trusted with facts and law, and that we still take what we want when we want it.
I am currently writing a book which delves into the history of the militant Indian movement. I recall when that movement was at its height, all of us were saying that Indians should settle their grievances in the courts and within the political system. Now that they have followed our advice and have turned from violence, are we to take away a peaceful approach by, this kind of legislatiou ? I sincerely believe we will live to regret having done so.
ST. REGIS MOHAWK TRIBE, Hogansburg, N.Y., June 8, 1982.
TRIBAL COUNCIL RESOLUTION 82-11
Whereas, the St. Regis Mohawk Tribe is aware of a bill introduced to Congress as the Ancient Indian Land Claims Act (H.R. 5494); and
Whereas, this bill is intended to prevent Indians from suing for the return of lands for which claims arise under the 1790 Non-Intercourse and would entitle Indians only to damages based on the market value to the land at the time it was taken ; and
Whereas, the purpose of the bill is to legislate approval of grave injustices perpetrated against Indian people including fraud, false purchases, coercion, bribery, and outright theft and the results of those injustices continue to cause suffering among our people to this day; and
Whereas, this bill would destroy present Indian rights to land, would violate ratified Treaties between Indian people and would dishonorably violate the most basic human rights of Indian people; and
Whereas, the purpose of this bill is to deny Indian people due process of law and is therefore unconstitutional and is also racially. discriminatory; and
Whereas, the proposed bill would suddenly close the courts to Indian land rights cases and would unfairly change the rules in the middle of on-going cases which Indian people have only recently been able to bring to court after being barred from legal remedies for generations; and
Whereas, this bill would violate the fundamental human rights of Indian people and will not settle the Indian Claims involved ; and
Whereas, the St. Regis Mohawk Tribal Council desires a fair and equitable resolution to these land claims which the propose of this bill contradicts: Now, therefore, be it
Resolved, That the St. Regis Mohawk Tribal Council hereby unanimously and vigorously opposes passage of this bill and urges all fair-minded members of Congress to oppose this bill.
Certification: The said resolution was adopted pursuant to authority vested in the Tribal Council.
Tribal Clerk. Chief LEONARD V. GARROW. Chief SOLOMON Cook.
Chief JULIUS M. Cook. Mr. ABOUREZK. Chief Leonard Garrow is here on my right. Senator COHEN. Chief Garrow, do you have a statement?
STATEMENT OF LEONARD GARROW, CHIEF, ST. REGIS MOHAWK
Mr. GARROW. Thank you, Senator Cohen.
I have been listening for 2 days to these various statements people are making. At this point, I think people are being worried about perhaps losing their lands. I do not believe if the people sat down and listened to some of the points we brought up in the negotiations that we had going with New York State; for about 3 years we had representation from the Justice Department, the Solicitor's Office, people from Albany, the assistant attorney general, who sits for New York, who are here today, plus Indian tribes, and people from Senator Moynihan's office and David O. B. Martin's office, and, of course, Congressman McHugh.
I think we had a pretty good representation of the parties involved. And I think that people are losing sight of the fact that what we are trying to do is negotiate a settlement where we remove or dispossess as few people as possible. We were looking for lands that nobody is using right now, plus the fact that we were asking for help to pay for whatever lands were adjacent to our reservations. We were looking for the dollars to pay off, at fair market value, and we were not looking to force anyone out, if they did not choose to sell.
The fact remains, I think, that the publicity that has been brought on by these particular land claims has adversely affected both parties and people really do not understand what we are trying to do. That is about all I have to say.
Senator COHEN. Thank you very much. I take it then that negotiations have completely broken down at this point?
Mr. GARROW. They have broken down since the introduction of this legislation. We were very close to a settlement, that we felt could have been brought about, and unfortunately it just stopped.
Senator COHEN. Who were the parties who were very close? You say the attorney general for the State of New York?
Mr. GARROW. I am speaking for the St. Regis Mohawk Tribe, and our negotiations with the State of New York, and, of course, with the Federal Government which was involved, too. We had been conducting meetings for almost 3 years and we thought we were reasonably close to a settlement, a negotiated settlement. I think people lose sight of the fact-I am not the smartest man in the world-but I understand that when you negotiate, one side gives more than they really want to give and the other side gets a little bit less than they want. And this is where we were.
It is unfortunate that we got all this publicity and people were worried about being run out of their homes. We have neighbors who are non-Indians and we understand. We did not expect to move anyone, forcefully move them out, as had been done to us years ago.
Senator Cohen. Thank you very much, Mr. Garrow.
STATEMENT OF FRANK BONAMIE, TRIBAL MEMBER, CAYUGA
Mr. BONAMIE. Thank you, Mr. Chairman. I have a prepared statement here. I will try to be as brief as I can and what I am about to say will be redundant. I think we all have the same problem.
I am one of the chiefs of the Cayuga Indian Nation of New York, and I am accompanied by Arthur J. Gajarsa, our Nation's attorney.
We are here to speak on behalf of the Cayuga Nation in order to express our unequivocal opposition to Senate bill 2084 known as the Ancient Indian Land Claims Settlement Act of 1982.
This bill was introduced in the Senate by its sponsors, Senators Thurmond and D'Amato, as a companion bill to H.R. 5494. The latter bill was introduced by Congressman Gary A. Lee.
It is our belief that Congressman Lee introduced his bill as a raw political move to extricate himself from a politically.vulnerable position.
We do not question the good faith of Senators Thurmond and D'Amato in their sponsorship of this bill, however we do question the viability of any proposed legislation which attempts to settle claims unilaterally without the Indians' participation or viewpoint.
Senator D'Amato of New York should have, at the very least, contacted the nation for its position in this matter prior to its introduction. He has accepted a proposal which completely disregards the constitutional rights of Indian tribes. He rejects the firmly established trust responsibility of the U.S. Government to Indians. I would like to stop there.
I think there are a lot of people in this room who do not understand the trust responsibility that the Federal Government has to Indian people, and I think that it would behoove the Congressmen and Senators to explain to their constituents really what that is and what it means and how it does protect the original people.
The bill now before the Senate committee is here solely for the purpose of correcting a political error of judgment on Congressman Lee's part, in rejecting the original Cayuga settlement. I believe it can safely be said that the Cayuga Indian Nation has the dubious distinction of being the primary cause of this bill being formulated and introduced in the Congress.
The bill is a reaction to the Cayuga's filing of a lawsuit to establish its rights to federally recognized and reserved lands in New York State, after almost 200 years of being deprived of our federally reserved treaty lands, which were acquired by the State of New York through transactions in violation of the Indian Nonintercourse Act.
This is another act that should be explained to constituents. I do not believe they understand what these really mean.
Senator COHEN. I do not think anybody understands it.
Senator Cohen. I think there is a good deal of confusion about the origin of the whole Indian Nonintercourse Act and its intended purpose.
Mr. BONAMIE. Maybe more so to the constituents. At least we do hear it every day. We read it. I think the constituents just cannot believe the trust responsibility and what it is. They do not have it and it is hard for them to get the same feeling that the Indian people do.
I will try to go through this rather quickly. The decision to file a suit was not a rash action taken by a group of irresponsible individuals seeking to turn back the clock 200 years. Rather, it was a course of action that was forced upon us by the House of Representatives' rejection of the settlement, at Congressman Lee's request.
The Cayuga Nation spent nearly 3 years negotiating—we have been through all this—with the U.S. Government, the State of New York, and Congressional representatives from the affected areas, including Congressman Lee, Senator Moynihan, and former Senator Javits, for the purpose of arriving at a negotiated settlement of our claim which would be fair and iust to all.
A settlement was developed which would have reestablished a land base for the Cayuga Nation, which would have also established a trust fund in order to benefit the Nation's members. This agreement, which was supported by the Federal Government, the State of New York, the elected congressional representatives of the affected area, including Congressman Lee, was translated into proposed legislation and put before the Congress as H.R. 6631 in 1980. Not one private landowner would have been ousted from possession of his or her land under the arrangement arrived at by the parties. All of the individual property owners which this bill allegedly seeks to protect were totally protected, under that proposed settlement. But for some unknown reason, Congressman Lee withdrew his support for that bill on the floor of the House, and thereby singlehandedly prevented it from becoming law.
After years of work which proved to be for naught, the Cayuga Nation was left with two choices. No. 1, accept the fact that our treaty rights, which are recognized to this day by the Federal Government, would be lost forever, or, No. 2, take the necessary action to protect those rights. The Cayuga Nation was left with no choice. A lawsuit, abhorrent to us and potentially damaging to the local communities involved, was the only viable alternative. The reaction to that lawsuit, which the Cayuga Nation never wanted, has sent shock waves through Seneca and Cayuga Counties. The political ramifications of the suit are obvious. The local inhabitants look to the local Congressman for
Having been the sole cause for the initiation of this lawsuit, the Congressman frantically sought a solution which would appease the local
inhabitants and preserve his political position. The bill now under consideration by the committee is his answer.
When viewed in this context, it is apparent that S. 2084 is the act of a politically desperate individual seeking to protect the interests of the majority at the expense of a minority solely to preserve his political career. This committee will be presented with numerous arguments as to the constitutional infirmities of this proposed legislation. We have submitted a legal statement jointly with the Oneida, Catawba, SenecaCayuga and Stockbridge-Munsee Tribes outlining the constitutional deficiencies of the proposed legislation. It will be up to the courts to render a judgment on those questions if this bill ever sees the light of day. However, the potentially devastating monetary judgments to which the United States will be exposed by the enactment of this legislation should be carefully considered by a budget-conscious Congress. Some experts have indicated that by taking our reserved lands and eliminating our claim for trespass damages the proposed ratification as embodied by the present legislation would expose the United States to billions of dollars in potential damages.
It is not necessary for us to delve into the technicalities of constitutional law in order to realize that this bill should not be enacted. On its face, it is contrary to the fundamental notions of fairness and justice for which this country has stood for over 200 years. Just when the courts of the United States are recognizing and vindicating the rights of Indians, the non-Indian majority initiates efforts to relegate the Indians once again to an underprivileged class. It is a return to the days of broken promises that we all believed were a part of history.
It is unnecessary to take such extreme measures in order to protect the interests of non-Indians affected by these claims. The Cayuga Nation is willing, as are other Indian nations, to sit down at the negotiating table and resolve these matters in an equitable fashion for all concerned. This can be achieved. All that is required is willingness on the part of all concerned to make an honest attempt to do so.
Such an approach would be consistent with the notions of equity and justice for which the U.S. Government stands. This is the approach that should be encouraged by the Federal Government, by the Senate. Adoption of this bill will only serve as a clear signal to the Indian community that they will never obtain the complete fulfillment of the promises made to them long ago.
We therefore must urge this committee to reject S. 2084. That is all I have to say.
Senator COHEN. Thank you very much.
STATEMENT OF ARTHUR J. GAJARSA, LEGAL COUNSEL, CAYUGA
Mr. GAJARSA. Thank you, Mr. Chairman. I would just like to point out one item that came up in discussion when you were questioning the Assistant Attorney General relative to the trespass damages. We believe that the trespass damages on reserved and recognized Federal lands are a fifth amendment protected right. There are cases in support of that position indicating that in