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violation of Miskito Indian rights in Nicaragua. The United States delegation to the United Nations Commission on Human Rights called the denial of Miskito Indian rights a “human rights problem of utmost seriousness."

A unilateral extinguishment of Indian property rights by the United States government wouid likewise raise a human rights problem of utmost seriousness. This problem would be taken before international bodies by aggrieved Indians and their supporters, and the international human rights standards forbidding racial discrimination and protecting the rights of indigenous peoples would be applied. It is most unlikely that the United States could withstand the test of international law and international opinion by appealing to precedents and policies from an age when whites labeled Indians as racial inferiors and freely disposed of their lands. To borrow a phrase from the United States' recent testimony to the U.N. Commission on Human Rights, that approach "may have characterized colonial rulers of a different age," but it does not justify such conduct today.

In short, this extinguishment bill would prove an international embarrassment to the United States as the affected Indians continued to press their claims in the world community. The practical problem: Lack of finality

There is no evidence whatsoever that Indians would simply submit to the exlinguishment of their land claims and begin pursuing the alternative money claims process which the Ancient Indian Land Claims Settlement Act would provide. All available evidence indicates that the Indian land claims would continue to fester year after year and onto the next generation. Just as the 1877 Congress failed to unilaterally extinguish the Sioux claims to the Black Hills, so this Congress would fail to extinguish the claims of Indians to parts of New York and South Carolina. It would be up to future Congresses and future courts to reexamine what went wrong in 1982, just as the 1980 Supreme Court finally set the record straight on the theft of the Black Hills by the United States in 1877.

As a practical matter, there will be no final settlement of Indian land claims until there is agreement with the Indians about a fair settlement of their land claims.

This lack of finality would present other practical problems as well. Since the Indian claimants would be barred from taking their claims to court, they could continue peacefully asserting their rights only as political matters with Congress or as human rights matters in various international bodies. But almost certainly some Indians would take direct action and seize some lands which they claim to be theirs as a matter of legal right. In the event of such a seizure, the state and federal officials who would rush to the scene to prevent a violent confrontation would quickly realize that the Ancient Indian Land Claims Settlement Act had painted the government into a corner, because it denies recourse to a legal process for redressing this grievance. What would they tell the angry Indians, “Be reasonable and take your claims to court instead of taking the law into your own hands"?

CONCLUSION Congress has, in the bill known as the Ancient Indian Land Claims Settlement Act, been asked to take the law into its own hands and to deny the established rule of law which guarantees due process and equal protection of the law for all. Congress should reject this bid for unilateral extinguishment of Indian rights and should instead urge that serious efforts be undertaken to foster settlement negotiations of Indian claims. That is the only constitutional, fair, and honorable approach. And it is the only approach which will finally put these claims to rest.

Senator Cohen. Our next panel will be Mr. William T. Smith, representing the New York State Senate, deputy majority leader; Raymond Zajac, who is with the Seneca County Board of Supervisors; the Counties of Madison, Oneida, and Cayuga; Allen van Gestel, legal counsel, Seneca County Citizens; New York State Grange; and Aurelius Gas Co.



Mr. Smith. Good morning, Senator Cohen and Senator Goldwater. I appreciate the opportunity to come before you today.

As the public debate continues on the assertion of the ancient Indian land claims against the present day property owners, I would like to present to this committee my views as a New York State legislator and as deputy majority leader of the New York State Senate.

Within the last several years, present day descendants of prerevolutionary Indian tribes have asserted claims claiming title to vast areas of private and public. lands throughout the United States. These claims are based on alleged violations of the 1793 Treaty of Paris which concluded the American Revolution; the 1783 Articles of Confederation, and the 1784 Treaty of Fort Stanwix; and the 1790 Indian Trade and Intercourse Act which has been continuously in force to the present day.

As this committee realizes, these documents prohibited Indian nations from conveying their land without Federal approval. Although the Federal Government has for over 200 years acquiesced to the ancient Indian lands conveyances, we are faced today with extensive claims questioning whether the Federal Government properly ratified such conveyances.

We are well aware of the disrupting effects from prolonging the resolution of these claims. Recent Indian land claims in Rhode Island and Maine were settled only after extensive litigation in Federal courts, which caused disruption in sales of local properties and in the formulation of municipal and State budgets.

Presently, in New York State alone, three Indian land claims threaten title to almost 9 million acres of land in central New York, an area half again as great as the size of Massachusetts or the States of Rhode Island, Delaware, and Connecticut combined. With Indian land claims threatened in other areas of the State, more than onethird of the geographical area of New York State is subject to claims of various Indian tribes.

The Indian tribes seek immediate possession of land, the effect of which would be to cause enormous dislocations. Innumerable homes, businesses, public facilities, and State and local taxation programs would be cast into immediate disarray should these claims prevail, with consequent disruptions extending throughout the Northeast.

To prolong tension between property owners and Indian tribes is unacceptable. A rational solution is enactment of the Ancient Indian Land Claims Settlement Act of 1982, which this committee has under review. The act recognizes that the Federal Government has within its power the resolution of these centuries-old claims. The preamble to the act further recognizes that the Federal Government has a responsibility to act inasmuch as historically the Federal Government may not have fulfilled its trust responsibilities to the tribes. For the Federal Government to not now respond would in effect prolong the tensions between the Indian tribes and the property owners far removed from the events which gave rise to the claims.

My remarks in underscoring the Federal Government's responsibility in resolving these ancient claims are not to be taken as an indifference by New York State toward the Indian tribes. The State of New York has recognized its responsibilities to its Indian tribes since colonial days. The State has entered into many treaties and agreements which date back to the inception of New York as a State, providing for specific payments to Indian tribes for land deeded to the State.

Under the terms of such treaties, New York State has made cash

payments annually with interest into a trust fund for the tribes. When questions arose as to whether adequate payments were made to the Cayuga-Seneca Tribe when they deeded property to the State of New York in the 1780's and 1790's, New York State responded to those concerns. This matter was previously and thoroughly investigated by a State legislative committee in 1888 and further reviewed in 1931 by then Governor Franklin Delano Roosevelt. Governor Roosevelt's administration authorized payment of additional money to the Cayuga Tribe of approximately a quarter of a million dollars. At that time, Governor Roosevelt proclaimed the arrangement as a milestone in Indian relations in the State.

The State of New York's concern for the Indian tribes has not been limited to compensating them for land. For nearly 90 years, New York State has assumed responsibility for the care, relief, and support of needy Indians residing both on and off reservations. In addition, the State has granted tax exemptions to Indian tribes and has educated Indian children in the public schools on or adjacent to their reservations, and has granted special scholarships for them in higher education.

The House-Senate bill presently before this committee would, in my opinion, provide an equitable method for resolving the ancient Indian land claims. Present-day property owners are far removed from the events of two centuries ago which gave rise to the claims and should not be made to suffer the dire consequences by the oversight of former officials entrusted with the responsibilities for looking out for the welfare of the Indians.

Thank you very much.

Senator COHEN. Senator Smith, just one quick question. Mr. Bonamie indicated that you were relatively close to a settlement in the State of New York. How close were you?

Mr. Smith. I am speaking only as far as the Cayugas. He was speaking for the Cayugas. I would say that there was a negotiation which went on between the Governor and the Justice Department and the Indians. However, the New York State Senate was left out of this. We had no part in this.

Part of the negotiation was to take over a State park which we had, in which the State had invested $15 million, a fine recreational area. This was part of the give-back to the Indians.

Under our Constitution, the State cannot take parklands away without going through the legislature. The Governor said he was going to do this without going through the legislature. It was the feeling of those in the Senate, with which I am familiar, that we would not acquiesce to do this. Whether or not we would have eventually done this, we did have the right to have this come before the legislature before these parklands were given back, and this was a big part that we felt was not fair.

Senator COHEN. Thank you.

Mr. ZAJAC. Senator Cohen, I would like to yield and make sure our attorneys have their opportunity to speak before I do. STATEMENT OF WILLIAM F. LEE, ESQ., LEGAL COUNSEL, SENECA

COUNTY; HALE & DORR Mr. LEE. Mr. Chairman, my name is William Lee. I am a partner at the offices of Hale & Dorr. We represent Seneca County in the Cay

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uga claim. We also presently represent the State of South Carolina and four governmental entities in the Catawba claim. We have previously represented the town of Mashpee in a case which is fully litigated and, as you know, we represented the State of Maine which was settled.

We have therefore had an opportunity to observe and have observed these litigations and these claims from a variety of perspectives.

I have submitted today my written testimony which I will not reiterate. I believe we have also submitted to the committee a lengthy legal memorandum on the issue of constitutionality of the bill.

I will add only in response to the questions which you posed this morning as to aboriginal title that not included in our memorandum is the June 2 decision of the Court of Claims which we believe confirms that which is in our memorandum and confirms the conventional wisdom which people have been operating under for a number of years.

Senator COHEN. What case was that!

Mr. LEE. It involved the Inupiat Indians and we would be happy to provide you with a copy.

Senator COHEN. We would appreciate that. Together with your prepared statement, that will be made a part of the record of this hearing.

Mr. LEE. What we would like to do, briefly, is not address the issues in our written testimony, but to address three questions which have been commonly posed as we have been sitting here for the last 2 days, none of which involves the legal details of the bill.

The first question which we have heard frequently asked is, Is anyone hurt by the mere pendency of the claims? Having been involved in this litigation for 6 years, we can report to you that the answer is, yes.

Mr. van Gestel related yesterday an example cited by Senator Kennedy several years ago at hearings which involved the Mashpee bill, of an elderly woman whose husband died, whose health was failing, who was told to move to Florida, or to some other warm climate for health reasons. Her only asset was a house which was in probate in her husband's estate.

The probate court, because of the cloud on the title, would not probate the estate. She had no money. She had nowhere to go,

and there was nothing that we could do for her until the litigation was resolved.

A second individual was a construction worker who took all of his wife's savings and his savings and invested it in a small parcel of land which he subdivided, developed, and was about to sell the day the claim was filed in Mashpee, Mass. The claim stopped all sales. He went into bankruptcy. And on the date that the Mashpee case was terminated by the denial of certiorari by the Supreme Court, he was a CETA worker, filing file cards in the town hall.

There are other examples which will be related. I am not sure that we need go through them. In any event, we are convinced that there is a real threat, that people are injured by the mere pendency of the claim and that in any event, with that threat, we ought to wait. There are enough examples to make us move.

Senator COHEN. I do not disagree with you in terms of the impact upon people, but there is a question as to whether or not this is going

* See appendix, p. 528.


to finally resolve the issue, and frankly, I do not think it will. I think that what you are going to continue to see will be- I think the Mashpees have filed again, have they not?

Mr. LEE. That is true, sir.

Senator COHEN. That is a case which I believe was taken to court and won legally on this basis, as I recall, that the Mashpees were not in fact a tribe within the meaning of the Nonintercourse Act; correct?

Mr. LEE. That is correct.

Senator COHEN. Apparently as a result of the winning of that lawsuit, the clouds disappeared, but I assume—I don't know that is the case-but I assume that now they are going to be hovering on the horizon once again because of another lawsuit. Whether it has merit or no merit, probably is irrelevant in terms of the impact upon people, the same kind of people that you have talked about here, that are going to be hurt again.

Mr. LEE. That is true, but the question is, as to the lawsuits we heard about are coming, who bears the burden in both lawsuits? Who bears the burden of an attack on constitutionality, and it is not people who have traveled here to see you today from New York and South Carolina, nor is it the people in Mashpee. In fact, the operative provisions of this bill, to the extent they relate to the titles of the individual landowners, are virtually identical to those we drafted for the State of Maine which were also drafted to deal with the question of fraud or coercion, and which we believe, particularly with the severability provision, would relieve the burden from the people who have had the least to do with the transactions.

The second question which has been posed most frequently is, why not litigation, why not a negotiated settlement? I think why not litigation is obvious to everyone. It is too expensive. It takes too long. And as Mashpee demonstrates, it is not sufficiently definitive.

Senator Cohen. How about a declaratory judgment on an expedited basis?

Mr. LEE. We would be happy with anything on an expedited basis, and in fact, the Mashpee case was handled on an expedited basis, and declaratory judgment on the legislation on an expedited basis, if it could be done, would be completely appropriate, in our view.

Senator Cohen. Would you favor a declaratory judgment seeking a Supreme Court decision on the applicability of the Nonintercourse Act to the eastern tribes?

Mr. LEE. I do not think that is the answer because: No. 1, I do not think they will give an advisory decision; No. 2, they had the opportunity to do it a year ago and declined to do it, largely because of the possibility of a resolution of claims by Congress; and No. 3, on the basis that it was a preliminary legal matter which ought not be resolved in a vacuum.

What we are here to tell you today is that our people, the landowners, cannot afford to wait until a full record can be developed over the period of a decade, for the Supreme Court to rule.

As to a negotiated settlement, the example most frequently brought up is the Maine settlement. It is not as easy as everybody has made it sound. There was a decade of litigation. There was a trial date a year away and a judge was going to make us try the case. There was a congressional delegation that was fully supportive and active. There was


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