the Maine legislative body that was fully supportive and active, and there was an administration willing to pay $842 million for one single claim.

We do not believe that it is fair or reasonable to expect anything less before you consummate a settlement of any of these other claims. It will take time, it will take litigation, and it will take a series of circumstances which none of us, I think, can predict will occur.

Senator COHEN. Tell me about Rhode Island. I am not terribly familiar with that case.

Mr. LEE. What I would like to do is yield my reserve, if I can, to Mr. van Gestle, whose office was involved in the negotiation of that settlement. I think he will tell you that it is a radically different procedure than that which is contemplated in these larger claims.

Second, as to the Maine settlement, we are talking about different areas. Senator Goldwater asked, what kind of land is involved. The 3-million-acre Cayuga claim involves the cities of Ithaca, Syracuse, and Binghamton. That is different from the 100,000 acres which we negotiated in the State of Maine.

Those differences, and the time it will take to resolve the differences, and the injuries, as we talked about earlier, while we wait for those to be resolved, we believe are sufficient to require a solution now.

Third, and last question which has been commonly asked is: Is not this the States' fault, not the Federal Government's fault? Well, the answer has been given in bits and pieces today already.

Senator COHEN. I think it is the Federal Government's fault. Mr. LEE. I agree with you 100 percent. But whoever's fault it is, whether it be the States' fault, whether it be the Federal Government's fault, the people who have traveled here to see you, and their friends and their neighbors at home, are the people most removed from the transactions. Unlike the States, unlike the Federal Government, they were not here 200 years ago. Without a bill such as that which is proposed today, those people who are most removed from the transactions and who had least to do with them are asked to bear the heaviest burden of the litigation.

We believe that to be unfair and inappropriate and inequitable, and for that reason we urge the committee to report favorably on the bill. Senator COHEN. Thank you very much. Your prepared statement will be included in the record at this point.

[The statement follows:]

PREPARED STATEMENT OF WILLIAM F. LEE, ESQUIRE, HALE & DORR

Mr. Chairman, members of the Committee, I am William F. Lee of the law firm of Hale and Dorr. Since 1976, I have defended thousands of landowners in four states who have unexpectedly found their rights to possession of the land and homes in which they have invested their lives and fortunes called into question by the pendency of Indian land claim litigation. I am honored to appear before you today to describe the predicament of these innocent landowners and to support the present bill as an appropriate resolution of these problems.

Much publicity is understandably accorded to the plaintiffs in Indian land claim litigation. But far too little attention is paid to the innocent landowners whose right to ownership, and possession of the land they hold, is jeopardized. As you consider this important matter, I urge you, Mr. Chairman, and the members of this Committee, to right the balance.

Consider for a moment who those people are. The vast majority of them are homeowners, most of whom have purchased their homes within the last twenty or thirty years, completely unaware of the ancient treaties, legislation and con

veyances forming the heart of the Indian claims. Others are businesses of various ages and descriptions, which are responsible for the employment of countless citizens and the health of the economy at large.

The plaintiff groups normally claim the land these people and businesses own because they challenge the validity of conveyances made to state officials almost two hundred years ago. The plaintiffs most often claim that some of these state officials simply failed to follow correct procedures when they bargained for Indian land. Now these plaintiff groups expect these innocent, good-faith purchasers of land, who had nothing to do with the questioned transactions, to suddenly atone for the claimed errors of ancient, unrelated public officials. The plaintiff groups expect thousands upon thousands of private citizens and businesses, as well as governments and public agencies, simply to hand over their land, and to pay for the use of the property for the past two centuries. Surely this Committee, this Congress and this entire nation must sympathize with these many guiltless people.

Faced with the horrible risk of losing their land, these citizens must defend themselves at great effort and expense. The first Indian claim in which I was involved was the Mashpee trial in Massachusetts federal court. After months of hotly contested pretrial motions and depositions, the court ordered a jury trial on the issue of whether the plaintiffs constituted an Indian tribe. The trial on that single issue took more than forty days, after which the judge and jury found that the plaintiffs were not an Indian tribe at certain key dates, and therefore had no claim under the federal statute which is the cornerstone of all these lawsuits. The judgment for the defendants was appealed and affirmed. Tribal existence is only one of several elements of a plaintiff's prima facie case in Indian land claim litigation, and if the entire Mashpee case had to be tried, the trial would have taken months. In addition to the legal fees that are incurred in defending against an Indian land claim, the trials require lengthy testimony for both sides by historians and other expert witnesses who also receive payment for their time. A trial on the merits of all issues would likely take years of preparation and research and would exact an enormous toll on the pocketbooks of the landowners being defended. Although the plaintiffs often receive indirect financial assistance from the federal government in prosecuting these lawsuits, there is no federal statute which entitles a prevailing party to an award of attorney's fees in Indian land claims, and the burden falls on the taxpayers of these isolated communities to defend what they have always believed to be theirs.

Legal fees in Mashpee totaled approximately $250,000 in 1977, and trial on all the issues could have cost several times that. The expense of defending against Indian land claims, however, is almost insignificant when compared with the enormous uncertainties and disruptions engendered by the mere pendency of the lawsuits. From the day that a group claiming to be Indians first announces its intent to claim ownership of and possession to land in dispute, the title to the land is clouded, and the value and marketability of the land is seriously impaired. I am presently engaged in the defense of a case entitled the Cayuga Indian Nation v. State of New York, which is pending in the United States District Court for the Northern District of New York. The pendency of that action has clouded the title of 64,000 acres of land in upstate New York which the plaintiffs are presently claiming, and another 3,000,000 acres concerning which the plaintiffs have stated they intend to file suit. The plaintiffs in the Cayuga litigation estimate the size of the present defendant class to exceed 7,000 individuals and entities claiming an interest in the land.

Other Indian land claims in upstate New York and elsewhere have involved much larger classes of defendants. Without exception, private defendants took no part in the transactions of the late 1700s and early 1800s which occasioned the litigation. The landowners in the claim areas purchased their land in good faith, relying on the accuracy of the official records of title. The lives and livelihoods of all these landowners are seriously disrupted for the duration of the pendency of the litigation. They will be permanently deprived of their land if the plaintiff groups succeed.

I will never forget the elderly woman we met in a parking lot one night during the Mashpee case. Her husband had died, she told me, she had medical problems, and her doctor told her to move to Florida for health reasons. Yet because of pending Indian claims, she could not get her house, her only asset, out of probate so that it could be sold and she could move.

In order to put an end to the terrible expense, uncertainty and confusion which Indian land claims impose upon the great number of landowners affected

by them, not to mention the potentially devastating and heartbreaking losses of their homes and businesses were the plaintiffs to prevail, Congress must act swiftly and surely. Our legislative leaders cannot assume that the courts will carry the torch and show the way to a speedy and equitable accommodation of the interests of all parties.

Just last year the United States Supreme Court declined to review a decision of the Second Circuit Court of Appeals which held that the federal statute governing Indian land claims applied to all land in the United States, despite assertions by the State of Connecticut, supported by the language and legislative history of the statute, that the Act had no applicability to states east of the Mississippi. Justice Rehnquist dissented from the court's denial of certiorari, apparently in the belief that the Court had shirked its responsibility to resolve the great uncertainties which Indian land claims impose upon the owners of millions of acres of land in the United States. He said: "There can be little doubt that the Court of Appeals' unprecedented holding makes millions of acres in the eastern United States vulnerable to Indian land-title claims. For that reason alone, I believe that this Court should grant plenary consideration over this case and determine this vitally important issue."

I share the concern that the courts will be unable to deal effectively and efficiently with the needs and apprehensions of the countless innocent landowners who fear that their homes will be swept from under them. The task of accommodating the interests of Indians and non-Indians must, as it has for centuries, remain with Congress.

This present bill provides a fair legislative resolution of those competing interests. First, it lifts the heavy cloud on the title of the landowners within the claim area and ensures them that the land which they have acquired and nurtured in good faith will remain theirs. Second, it provides the Indian claimants a forum for resolution of their claims and a substantial remedy should they prevail. Indeed, the bill as we read it explicity permits any successful Indian claimants to use their monetary recovery to acquire land. Finally, it is appropriate that the United States bear the financial burden of these claims. It is the United States' approval which the Indian claimants assert was necessary to validate the challenged transactions; it was the United States which, in several instances, passively accepted these transfers; and, it has been the United States which, for more than two centuries, has acted in a manner consistent with the titles of the defendant landowners.

Congress alone can protect these guiltless citizens not only from risks of adverse resolution of the claims asserted against them, but also from the costly uncertainties occasioned by the very pendency of the claims which threaten their livelihoods. Although many will say that the Indians were aggrieved in the past, let us not forget the grievous losses which threaten these non-Indians in the present. For while the courts cannot erase yesterday's mistake, Congress can erase today's misfortunes.

Senator CоHEN. Mr. Van Gestel.

STATEMENT OF ALLAN VAN GESTEL, LEGAL COUNSEL, COUNTIES OF MADISON, ONEIDA, AND CAYUGA, N.Y.; GOODWIN, PROCTER & HOAR

Mr. VAN GESTEL. If I may, Senator, Allan van Gestel. I am an attorney in Boston, like Mr. Lee, and like his office, I have participated in the defense of a number of eastern Indian land claims and, indeed, I calculate that I have been involved in 11 of those cases, perhaps more than any other lawyer in the East. That includes Rhode Island, which was settled. I was cocounsel in Mashpee. I am counsel in the other cases in Massachusetts, refiled. I am counsel in three of the cases in New York, one of which I think is probably the largest of all Indian land claims, indeed. Although the acreage is not as big as Maine, the impact is vastly greater. That is the 6-million-acre New York case, the Oneida

case.

And let me mention just briefly what that case is about. That case deals with a transaction that occurred in 1788. The Constitution of the

United States became effective in 1789. The Government that you represent and to which we have elected you did not exist at that time. So we are really dealing with a very ancient situation. The number of people involved in that case as defendants, probably those affected are about 1 million people. It is a class action. A total of 125,000 notices were sent. And the only defendants in the class are those whose properties are 2 acres or larger. You know how many more people there are in an area like that whose properties are 2 acres or less.

If the court should ever rule in favor of the plaintiffs, and you must assume that a court could rule that way, you would take the State of New York and you would rip it in half. It would look like swiss cheese, I suppose, if these little 2-acre parcels remained unaffected. But essentially you would have created a new government. And that is not a function of a court. That is a political issue. And that is something I think not enough people are focusing on here today.

When we talk about the claims and the rights of the Indians, what we are talking about is a governmental claim. An Indian tribe is a sovereignty. And so we have a situation involved here where one government, the Indian Nation, dealt with another government, the State of New York, at a time when yet a third government, the United States Government, had fiduciary obligations.

And now, 180 years later, we have a million people, none of whom was born, none of whom had anything to do with it, who are being severely and adversely affected. There may be deficiencies in this legislation, but there is no question of what legislation is needed and it is needed very, very fast.

I heard, distressingly, Senator Abourezk talk about, do not take away the leverage. What is the leverage? It is a nice word for, let us hold onto our hostages. Our hostages are the private landowners who are suffering by the pendency of this suit. There is no leverage on the Federal Government. It is not even a defendant. The State governments, when they are named, they raised the Eleventh Amendment as a defense. It is the private landowner who is being held hostage. That should not happen and this Congress should do something about it.

Can the Oneida case be settled? I doubt it. When I negotiate on behalf of a million different people, I am not asked to negotiate anyway. I heard about these other settlement discussions and they say, who was there?

Senator COHEN. You are asking me to negotiate on behalf of a million people.

Mr. VAN GESTEL. No. I am asking you, on behalf of the Government of the United States, and that is who is invited to negotiate, the Government of the United States, the State of New York, and the Indian tribes. What about the million people who are affected by it?

Senator COHEN. Why cannot you negotiate on behalf of a million people?

Mr. VAN GESTEL. Because each one of those persons has a different view, a different perspective, a different interest, and why should any one of them be asked to give up their land without some compensation? Think of it. If the court should ultimately rule for the plaintiff, this Congress is going to have to act anyway. You cannot bankrupt a million people. You cannot take the State of New York and cut it into three pieces without acting. Why wait until then, when you have a horrible crisis on your hands that will affect the entire northeast of

the United States? Why not act now? At least clear the titles, and clear it in a way that protects the hostages. Free up the hostages, if you will.

I was a little disturbed when I heard Mr. Gajarsa suggest that they are really not trying to hurt anybody. Do you realize that in the Cayuga claim, a lis pendens was filed against every title of every private landowner? What does that do and what is the effect of that, and how does that bring about a settlement, other than squeeze the little man? I think it is wholly inappropriate and it is really time for Congress to act.

Rhode Island, you asked about a little bit earlier, sir. Rhode Island was a situation where, as in Maine, we had a Governor and a congressional group who backed a settlement. We had 1,900 acres of State parkland which was turned over, not to the Indians, but rather to a private corporation to be maintained as essentially a public park area, and we had approximately 12 or 13 private landowners who indicated a willingness to sell their land for full, fair value.

Among those landowners, the largest was the Providence Boys Club and the Providence Boys Club sold the land but retained the right to use it for purposes of its camping activities for the children from the city of Providence.

You do not have that kind of situation in New York. In addition, the Oneida claim in New York, you have the Oneida Nation of Wisconsin, you have a group from Canada, and one questions to what extent we ought to deal with a group from Canada, and in New York itself you have a Oneida Nation that is so split that there are two, three, perhaps four factions. There is litigation pending in the Federal court among the factions. They will not come into the same room with each other. They will not talk with anybody.

And Mr. Coulter, who was here a while ago with the Six Nations, has sought to intervene because he claims the Six Nations have the right to control this land. You have no parties who can negotiate and no parties who can work it out. And, regrettably, I do not see in the near future those parties coalescing. But you have a million people who are suffering and they at least ought to be relieved of the burden.

Senator COHEN. How long has that lis pendens been pending?
Mr. VAN GESTEL. Pardon me?

Senator COHEN. How long has that claim of the cloud on the title been pending?

Mr. VAN GESTEL. The large Oneida case, the 6-million-acre case, was filed in 1979. There is another Oneida case, the one that ultimately went to the Supreme Court in 1974, which was filed in 1970. Both of those cases are now on their way to the Second Circuit Court of Appeals.

Senator COHEN. So there are clouds over the titles of a million landowners now?

Mr. VAN GESTEL. Yes. And I receive a call every 2 months from bond counsel for most of the cities, towns, and communities, Wilke, Farr, and Gallagher in New York, wanting to know the status of the case and reappraising their position, inquiring about the Ropes and Gray position with regard to the State of Maine. The problems are very serious. Senator COHEN. I recall that we had to go through the problem of getting title clearance for people to sell their homes. What are you doing in New York?

Mr. VAN GESTEL. There are problems in New York with individuals. There is a lady who will testify here today who will tell you exactly