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courts would be dismissed by congressional fiat rather than by judicial rulings on the legal merits. To effect the extinguishment of Indian property rights, Congress is being asked to destroy wholesale the established rule of law and to provide in its place a new, arbitrary rule which declares that possession is the law when possession is held by non-Indians whose legal right to possession is challenged by Indians. This new rule is doubly arbitrary because it would apply only in two states where certain non-Indian political leaders insist upon it. In all other states the established rule of law would continue to apply.
This bill is a classic in the troubled history of United States-Indian relations because it so clearly raises the yet unsettled question whether those relations will be governed by law or simply by the political power of a particular Congress of the United States. Such raw, unchecked political power—known as “plenary power" in the jargon of lawyers and judges—has since the founding of the Republic been a threatening presence which Indians have sought again and again to restrain with the rule of law. Usually the federal courts have declined to intervene when the political powers of Congress have been asserted to deny Indian rights. Time and again Indians have lost to those overwhelming political forces, and the result has been destructive anti-Indian federal policies such as Removal, Allotment and Termination. These policies and a host of other federal acts of "plenary power" have eroded and denied Indian peoples their fundamental rights to land, natural resources and self-determination.
There have, of course, been other historical occasions when treaty rights and the rule of law were honored and Indian rights were protected. For example, just this term Congress refused to approve a bill calling for abrogation of Northwest Indian treaty rights to Steelhead trout. Congress, the Executive and the federal Judiciary have often taken the higher road and refused to dispose of Indian rights by submitting to the will of a non-Indian majority bent on denying Indian rights. But, sadly, the spectre of plenary power remains a real threat to all Indian rights today.
Viewed from the perspective of Indians and Indian rights advocates, this extinguishment bill is seen to present a test of the United States government's commitment to the rule of law. At first the Congress and the Executive will be asked to take a stand on this bill. If the bill is enacted, the Judiciary would then pass its judgment on the many constitutional challenges which would unques tionably be made in the federal courts. But as this political and legal testing process goes forward, all involved must be mindful that the paramount issue is not about technical rules of federal law or about various Supreme Court decisions, important as they are. Rather, this is another historic test of the question whether, as a general proposition, it is law or raw political power which will govern this Nation's Indian relations.
With this central issue in mind. Congress must ask not only whether this bill would arguably survive Supreme Court review. Congress must also ask the more important question whether it wishes to embark again on the lawless course of pure political expediency which has always proven disastrous to Indians and, ultimately, disgraceful to the United States itself.
ORIGIN OF THE BILL: SPECIAL INTERESTS AND UNJUSTIFIED FEAR For many years the American Land Title Association and other non-Indian special interest groups have worked doggedly to defeat all eastern Indian land claims. The American Land Title Association has even published a legal primer on congressional extinguishment power. Their lobbying efforts and the model extinguishment legislation found in the appendix to their primer are clearly reflected in this extinguishment bill and in the various other extinguishment bills which have been introduced to wipe out other Indian land claims from time to time during the past few years.
Pressure for this extinguishment bill has also been generated by some nonIndians who possess lands in Indian claims areas and by other non-Indian interests. In response to these pressures, some non-Indian public officials have determined to press for this bill, confident no doubt that it is to their immediate political advantage to appeal to a perceived anti-Indian claims sentiment among their non-Indian constituents.'
One of the primary sources of this extinguishment bill is Congressman Gary Lee from New York who two years ago almost singlehandedly defeated a pro
3 In assessing the strength of anti-Indian sentiment, it should be recalled that Congressman Jack Cunningham, the lead sponsor of a series of Indian treaty abrogation bills knowo as the “Cunningham bills" of a few years ago, was unable to ride the anti-Indian "backlash" wave to reelection. He was defeated.
posed negotiated settlement of the Cayuga claims. This bill would extinguish those Cayuga claims, yet Mr. Lee's congressional district has reportedly just been redrawn so that his constitutents are no longer those affected by the Cayuga claims.
In fairness it should be noted that some who support or who have failed to register their opposition to this bill have done so out of frustration with the slow pace of settlement efforts rather than out of animus toward the Indian claims. In fairness to the Indian claimants, it should be noted that there were no significant settlement talks during the last year and a half of the Carter administration because of administrative disarray in the Interior Department, and that there has been no effort on this negotiation front to date by the present administration. Much time has been lost through no fault of the Indian claimants.
There was no prior consultation with Indians about this bill. Its drafting was kept secret from Indians, and its contents were not revealed to Indians until a draft copy leaked out shortly before its introduction, when it was being reviewed by the Administration. It was also reportedly kept secret from most personnel in the Bureau of Indian Affairs and from others within the government who might be considered too pro-Indian. It is a top-down measure with support in high places within OMB and Interior, but there is no groundswell of support elsewhere within the Administration. The dominant Justice Department view is that consultation and settlement negotiations with all the affected parties, including the Indians, is the preferable approach.
One of the most obvious problems with the bill has been the total absence of prior consultation and negotiation with the affected parties. That problem has been noted with concern by Justice Department officials:
“We are most concerned with the fact that the bill attempts to settle these claims without prior consultation and negotiation with the affected parties, including the private landowners, the States, and the Indian tribes." •
Notwithstanding this secrecy, it is now quite clear that all of the other eastern states facing Indian claims similar to those being faced by New York and South Carolina were asked to join in this extinguishment bill but rejected the invitation. The overwhelming majority of affected states have decided to continue to work towards a settlement of Indian claims through the more honorable means of litigation and negotiation. For example, the Governor William A. O'Neill of Con. necticut issued statement which explained that extinguishment of Indian claims is contradictory to his state's Indian policy:
“Historically, Connecticut has strongly supported the ability of the tribes within our State to rebuild their reservations into self-sufficient and equally viable communities. This legislation seems contradictory to our State's policy toward the Indian people.".
This statement should give pause to all who mistakenly believe that there is a non-Indian stampede to extinguish Indian land claims.
There have also been vigorous statements of opposition to this bill by a number of New York public official including the New York State Black And Puerto Rican Legislative Caucus and prominent leaders of the New York legislature. The Buffalo (N.Y.) Courier Express condemned the bill in an editorial captioned "Forked Tongues."
Taking all of these factors about the origin of this bill into consideration, it is fair to conclude that the proponents of this unilateral extinguishment approach to eastern Indian claims speak for only a small minority of those affected by the claims.
There is one additional key factor which has fueled this extinguishment bill. That factor is fear, unjustified fear that there is about to be a mass dispossession of non-Indians by Indians. Some of the bill's supporters have traded and built upon this fear by suggesting that whole communities of “innocent" non-Indians are about to have their homesteads taken over by Indians.
Anyone even marginally familiar with the Indian land claims litigation and negotiations knows that this fear is unfounded. None of the claims litigation is even close to conclusion. There are no removal injunctions pending or even close to being drawn. Years of trials and appeals are still ahead in all of the claims, should negotiated settlements not be reached in the meantime. And in most of the claims litigation, non-Indian homeowners have been expressly excluded by the Indian claimants from the Indian claim area.
Neither is there any reason to believe that Indian claimants have been un. reasonable in their negotiations or that they have insisted on settlements requiring mass removal of non-Indians. Where in the Maine settlement, the Rhode
• McConnell letter, note 2, above.
Island settlement and the proposed Cayuga settlement are non-Indians being thrown out of their homes? Since mass non-Indian removal is not in those settlements, one must question the motives of those who state that mass non-Indian removal is the inevitable consequence of Indian land claims. Such fear tactics are simply irresponsible. Those who use those tactics generate unnecessary anxiety and social polarization which leads to social conflict and to political overreaction such as this very extinguishment bill. Reasonable Indian negotiation positions should be met with reasonable counter negotiation positions rather than with extinguishment threats. The legal and constitutional issues
The Ancient Indian Land Claims Settlement Act raises a number of legal and constitutional issues which go to the very heart of United States-Indian relations. These issues, and most other important issues in federal Indian law, have no absolutely clear answers. There is no certainty as to how the Supreme Court might rule on any of the issues.
All that could be said with certainty is that this bill would generate an immense amount of new, complex and expensive litigation. The only parties who would unquestionably benefit from this lengthy new legal battle would be the lawyers representing the parties to that litigation.
The central issues in this new round of litigation would include the questions whether this extinguishment act constitutes an unlawful taking of property under the Fifth Amendment, whether the act violates the doctrine of separation of powers by usurping and denying judicial power and judicial remedies, whether Congress has some special, unlimited powers to extinguish Indian property rights under doctrines of "plenary power” and the “Indian trust relationship,” whether the bill violates Indian rights under international law, and so forth. Although there are a number of different ways lawyers might approach and catalog these issues, all would have to agree that the bill raises very important and very troublesome issues.
Already the federal government has generated some 100 pages of legal analysis on some of these issues. After reading all of these materials (which undoubtedly reflect only part of the legal research which has gone on behind the scenes), one must agree with the Congressional Research Service's final conclusion in its report of April 9, 1981:
“While constitutional issues appear to be present in regard to these bills, the resolution of those issues seems uncertain, because the law in the area is not yet settled."
Rather than address all of the issues in an appellate court style brief, we will highlight some of the most important legal and constitutional issues from our perspective as Indian rights advocates. Violation of due process rights under the fifth amendment
The Fifth Amendment to the Constitution prohibits the federal government from taking or extinguishing property rights except for limited public purpose by use of eminent domain power. The Ancient Indian Land Claims Settlement Act would take property rights from Indians and would give those rights to nonIndian private parties, corporations, municipalities, states and to the federal government itself in complete disregard of Due Process requirements.
This bill would take away present day Indian title rights and the Indians' legal cause of action to seek to vindicate those rights in federal court. In analyzing this issue, Congress must pay special attention to the fact that a federal court has already ruled in favor of present Indian title in one of the Oneida claims. The court held that with respect to certain disputed lands, the neida Indians have a right of occupancy and possession which pre-exists and is superior to the right asserted by the defendants who are now in possession. The court ruled that the non-Indian defendants have “acquired no rights against the (Indian) plaintiffs." S
This extinguishment bill would unconstitutionally take that Indian title and convey it to non-Indians. It would likewise dispose of Indian title which is not yet judicially established but which is equally valid and which is now a "chose in action", a right not yet in possession but recoverable through legal action.
Just as it would be an unconstitutional violation of due process for Congress to settle a dispute over property rights between non-Indians by taking title or legal claims from one party and giving them to the other, so too it would be
Oneida Indian Nation of New York v. County of Oneida, 434 F. Supp. 527, 548 (N.D.N.Y. unconstitutional for Congress to transfer Indian property rights to non-Indians. That is because eminent domain power is a limited power which permits the taking of private property rights only for public purposes such as highways, power lines, parks, dams, and so forth. Eminent domain power may not be used simply to take the property rights from one group of persons for the purpose of giving those property rights to others. And it could not be used to transfer the property of one racial group to another without raising questions of racial discrimination in violation of constitutional equal protection.
Moreover, even when eminent domain is available as a source of constitutional power to take private property, the government must give present fair market value compensation for the property taken. A congressional act which takes property rights in 1982 would be constitutional only if it provided for compensation at the 1982 fair market value of those property rights. There is no such provision for present fair market value compensation in the Ancient Indian Land Claims Settlement Act. Rather, that bill attempts to skirt the due process requirement through the novel device of “retroactive ratification” which would try to let the government off the financial hook by paying 18th and 19th Century market value for the Indian property rights which the government would in fact and in law be taking today.
The bill does not mention eminent domain, and its sponsors do not apparently rely on eminent domain power, but the due process restrictions on the use of that taking power would nonetheless apply and would give much strength to the Indians' constitutional challenge to this extinguishment bill. l'iolation of the separation of powers doctrine
This is a court-stripping bill. The legal rights which Congress would extinguish through this bill are matters which are now within the province of the Judiciary, a separate and equal branch of the federal government. The bill would reach into the Judiciary's domain and would overrule judicial rulings upholding Indian property rights, would direct federal courts to dismiss pending claims cases by denying federal court jurisdiction and federal equitable remedies upon which that litigation is based, and would preclude litigation of all Indian legal claims for possession which have not yet been brought in federal courts. The bill would slam the courthouse door on all Indians who either have been using or would use the law as a means to seek recovery of lands which have been unlawfully taken from thein in those two states. Politics would deny the rule of law.
There is a very strong legal argument that this would be an unconstitutional violation of the separation of powers, the basic constitutional scheme of checks and balances among the three branches of government. It has long been established that Congress does not have the authority to manipulate jurisdictional statutes in order to reverse retroactively the results in particular court cases. As the Supreme Court ruled over a century ago, Congress may not "prescribe rules of decisions to the Judicial Department of the government in cases before it." * The independence of the Judiciary would be totally undermined if Congress would grant or remove court jurisdiction depending on whether it approved of a decision, or review decisions within the jurisdiction of the courts, or require the courts to decide pending cases in congressionally specified ways. Since the 1803 Supreme Court decision of Marbury v. Madison,' the separation of powers doctrine has been preserved from many political attacks designed to undercut the independence of the Supreme Court and other federal courts.
The Ancient Indian Land Claims Settlement Act is another such political attack on the independence of the Judiciary. It would substitute the whim of the latest political majority in Congress for the rule of law and the judicial process.
It is especially ironic that this most recent political attack on the Judiciary involves an effort to reverse federal court rulings upholding Indian rights, because one of the first major attacks on the independence of the Judiciary was likewise the result of political dissatisfaction with a court ruling in favor of Indians. When President Andrew Jackson reportedly said, “John Marshall has made his decision, now let him enforce it,” he was asserting political power to disregard and overrule a final Supreme Court decision upholding the rights of the Cherokee Nation.
Although the extinguishment bill now before Congress uses less blunt and less forthright language, it initiates the same constitutional confrontation. It is hoped that a more mature United States will not once again follow the example of Andrew Jackson by taking the path of political expediency which history has
• United States v. Klein, 13 WALL. 128 (1872). :5 U.S. (1 Cranch), 137 (1803).
shown threatens both Indian rights and the Nation's most fundamental constitutional principles. The question of Federal "Extinguishment power,” “plenary power," and the
"Indian trust relationship" To circumvent the legal and constitutional restrictions on its powers to take Indian property, Congress and the Executive have at times asserted that there are extraordinary federal powers over Indians which give the federal government a relatively free hand to dispose of Indian property. Sometimes these powers are referred to as “extinguishment power," "plenary power” and as power arising from the “Indian trust relationship.” It is not yet clear whether such powers will be asserted in defense of this extinguishment bill. None of these powers apply to non-Indians, and all would be struck down by the courts if efforts were made to apply them to non-Indians.
The leading cases cited in support of such extra-legal power over Indian property rights are the Supreme Court's decisions in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) and Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955). The Lone Wolf case stands for the proposition that Congress can freely abrogate Indian treaties and divest Indians of their property, all without judicial restraint. The Tee-Hit-Ton Indians case says that Indian aboriginal title lands are not protected by the Fifth Amendment. Thus, lands which have been Indian lands from time immemorial but which have not been formally approved for permanent Indian occupancy by the federal government through treaty or statute may be confiscated with impunity by Congress without due process and without payment of compensation.
It is most unlikely that either of these decisions would withstand a frontal constitutional challenge today. One federal judge has already described Lone Wolf at the Dred Scott decision of Indian law, a decision on Indian rights which is as unsupportable as the early Supreme Court decision upholding black slavery. The Lone Wolf decision reflects the jingoism and racism of the Teddy Roosevelt era, and the Supreme Court has already begun, in the recent Sioux Nation decision, to curtail its precedential value. The Tee-Hit-Ton decision has yet to be challenged, but when it is, it too will likely be overruled in light of the due process and equal protection revolution of recent decades which has greatly expanded the nature of “property" protected by the Fifth Amendment and which has greatly restricted the power of the federal government to dispose of property. Critical scholarly analysis and judicial reexamination will, we believe soon place Tee-Hit-Ton and Lone Wolf in the dust bin of legal history.8
There is strong reason to believe that legal precedents permitting confiscation of Indian property rights would today be found racially discriminatory. For example, today the racism is quite apparent in the notion that Indians are incompetent wards whose property is rightfully under the control of white, "civilized” people. Yet only a few decades ago that notion was considered fashionable, scientific, and the proper basis for court decisions.
The only proper, non-discriminatory legal basis for dealing with Indian property rights today is agreement. Agreement between the United States and Indians was the basis of treaty cessions and was the basis of the fundamental principles of Indian law as first announced by the John Marshall Supreme Court in the early 1800's. Although it is true that legal authority subsequently developed which diverged from some of those fundamental principles, much of that intervening authority will not be able to pass the test of more enlightened thinking about the rights of non-white peoples.
By rejecting this latest effort to circumvent the regular rules of law through assertions of special powers over Indians, Congress will send a message of its intention to return to the honorable principle of agreement. This message will help resolve the Indian claims, for there will be no hope of negotiated agreement as long as the hope of unilateral extinguishment is held out to those who oppose the claims. Violations of international law
The rights of Indians and other indigenous peoples have increasingly come to be recognized in the international law of the post-colonial era. As standards governing human rights have rapidly evolved and become part of customary international law, the rights of peoples to protect their culture, land and self-determination have become matters of increasing public, international concern. In March of this year, the United States underscored this development when it condemned the
• See, e.g., N. J. Newton, “At the Whim of the Sovereign : Aboriginal Title Reconsidered," 31 Hastings L. J. 1215 (1980).