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last which we shall make with them. This is well; though, if they remain on our soil, I do not see how future treaties are to be avoided. But I trust it is the last we shall make with them; that they will place themselves beyond the reach of our treaties and our laws; of our promises, and our mode of keeping them.
There is one sad alleviation of the fate of some of those Nations. When the possessions of the rural population of Italy were parcelled out among the Roman legions, by a policy too similar to that which we are now pursuing towards the Indians, it was the pathetic inquiry of a poor shepard, who was driven from his native land, his cultivated farm, and the roof of his infancy,
Impius haee tam culta novalia habebit
Barbarus has segetes? En queis consevimus agros ! It will be some sad alleviation of the fate of these dependent allies, whom we are urging into the western wilderness, that their lands and their houses, their fields and their pastures, their civilized, improved and Christian homes, will pass into the possession of their civilized and Christian Brethren ; who I doubt not, will do their best to mitigate the bitterness of the cup. At some future day, should they escape the destruction that impends over them beyond the Mississippi, some of their children will perhaps be moved by the desire to undertake a pious pilgrimage to the seats from which their fathers were removed. The children of the exile will not, I know, be turned unkindly from the door of the child of the "fortunate drawer". Here, they will say, are the roofs beneath from which our parents were born, and for which our white brothers cast lots ; here are the sods beneath which the ashes of our forefathers are laid ; and there are the ruins of the Council House where the faith of Washington was solemnly pledged to protect us !
Sir, it is for this Congress to say, whether such is the futurity we will entail on these dependent Nations. If they must go, let it not be to any spot within the United States. They are not safe; they cannot bind us, they cannot trust us. We shall solemnly promise, but we shall break our word. We shall sign and seal, but we shall not perform. Let them go to Texas; let them join the Comanches; for their sakes and for ours; for theirs to escape the disasters of another removal; for ours that we may be spared its shame.
Now, Sir, I have done my duty. I have intended nothing offensive to any man or any body of men, I have aimed to only speak the truth, honestly and earnestly, but not opprobiously. If, in the heat of the moment I have uttered anything that goes beyond this limit, I wish it unsaid.
I am not without hopes that Congress will yet throw its broad shield over these. our fellow beings, who look to us for protection; being perfectly satisfied that, the question could be presented free from all the extraneous considerations to the decision of the House, it would be for the preservation of the treaties.
But however this may be, I am confident that the time is not far distant when the people will be all but unanimous in this matter. I believe that even now, could it be freed from all delusive coloring, and submitted to the mighty company in the Union, of sober, unprejudiced disinterested men, their voice would reach us, like a rushing storm from Heaven. Rather than have this Hall made a theatre of such a disastrous violation of the National Faith, they would speak to us in a tone which would make these massy columns shake to their base, and pile this canopy in heaps on our heads.
NEW YORK STATE INDIAN COMMISSION,
April 25, 1922.
REPORT—RE QUESTION OF THE INDIAN Status (1) Until the United States Government was formed, there was no government on this continent, other than that maintained by the Indians, that was stable. Every country that sought to establish a colony maintained a certain Code of Laws and a certain form of government dictated by a ruler located in the country from which the colony had originated. The several laws and regulations enforced by the several countries having colonies here, of course sought to maintain them in accordance with their laws. There was as much difference in the management of government by the Thirteen Colonies as there was between the home government from which they came.
(2) The idea that suceeded in putting the colonies together was the primary move that eventually formed and framed the United States.
(3) When this was in its early stages, Washington, made a promise to the Indians, who would assist him in throwing off the English yoke, or any other yoke, that was pressing upon the individuals on this continent, that they (the Indians) should receive a certain consideration, which was, that they should forever be secure in the territory they occupied and that had been set apart to them by the several colonies, if that was satisfactory, and if the organized colonies should succeed in forming this government. This Agreement was especially made with the Indians of the State of New York, known as the Six Nations and not with one, two or three of the Tribes which were part of the Six Nations. This was a Nation dealing with a Nation and that territory was ceded to either and to both was a NATIONAL territory.
(4) The success of the colonies is a matter of history. The Treaty that they made in carrying out their promise is a matter of history. It was made by the first government that ever had supreme control of this continent. It was made with a Nation that prior to the time of the discovery by Columbus was in the Supreme Control of a People and a Nation.
These two nationalities got together and made a Treaty and divided their territory. This Treaty so far as it pertains to the State of New York, was made in 1784. (Fort Stanwix Treaty)
It was arrainged before the Revolutionary War, as a means of successfully prosecuting that war, and was consummated after the termination of that war.
I maintain that the boundary lines fixed by that Treaty in 1784 were fixed by the highest power possessed by people and that no power inferior to that can change the land marks of your fathers. This is legally sound and religiously true.
I maintain in my report that unless those land marks have been changed by an instrument equally as strong, just and legal, then the line has not been changed and remains as it was.
The duty that I impose on the State of New York and the United States by my report, is that they search out those boundary lines and remove everybody residing within the territory from the same, unless he possesses an Indians inheritance to the lands of his fathers. I don't care where the line runs or what the raluation.
This is an interpretation of my report and I call upon you or anyone in dispute its justice, its legality and its sound judgment.
You may disposses the Indians of all their property and discredit me for making this decision. But you never can change, justice into outrage by failing to agree with me. Having definitely defined my attitude, and stated the effect of my conclusions. Very truly,
EDWARD A. EVERETT,
Chairman, New York State Indian Commission. Senator COHEN. Mr. Coulter, do you have a statement?
STATEMENT OF ROBERT T. COULTER, ESQ., LEGAL COUNSEL, INDIAN LAW RESOURCES CENTER, SIX NATIONS IROQUOIS CONFEDERACY Mr. COULTER. Thank you, Mr. Chairman.
My name is Robert Coulter. I am from the Indian Law Resource Center, and I represent the Haudenosaunee. We have submitted a prepared statement, so my remarks will be rather brief.
Senator COHEN. Without objection, your prepared statement will be made a part of the record of this hearing.
Mr. COULTER. I want to focus on two particular aspects of the bill. The first is that the bill and the theory that it is based on are simply racially discriminatory. The theory on which the bill is based is that Indian nations, Indian governments, Indian people do not have the same rights that other races and groups of people do, the theory that they don't have the right to protect their property from being taken by the Congress of the United States without fifth amendment protections.
This bill and the theory of it would deny Indian nations the rights that everyone else in the United States enjoys and I would submit that not only is that a fundamental violation of concepts of fairness and morality, but it is not what the United States law and Constitution is founded upon.
Furthermore, to state and to go beyond that, to advocate that Indian land title, Indian land rights, be actually taken and extinguished without due process and without any compensation, which is something that could not be done to any other group of people in the United States, is plainly and openly racist. I think that there has been no administration in this century that has ever openly advocated the outright taking of present Indian land title without any compensation.
The bill, I think, is not only unconstitutional, but it is very bad policy as well. I think that it may very well tend to bring about the very thing that it seeks to avoid, and that is the filing of a lot of very serious and troublesome lawsuits. Attorneys in positions such as I am in may be forced, as this bill moves through the legislative process, if it does, as the bill becomes likely of passage, if it should, we will literally be forced to go to court and file all the claims that we know about in order to adequately protect our clients' rights, whether we otherwise believe that would be a wise course or not. Otherwise, our clients will be in a much worse position to defend their rights.
And so we do urge the rejection of this bill. Thank you.
Senator Cohen. Thank you all very much for testifying. I can assure you that the members of the committee are going to look very closely at the prepared statements you have offered. We will review the legal issues involved and I can assure you we are also not going to rush to any judgment within 10 minutes. Based upon your testimony, we are going to look at this very carefully.
Senator Goldwater has a question.
Senator GOLDWATER. I think it is very interesting to observe that these tribes are probably the first Indians that ever came to what we call the United States. They were the group that came across the entire breadth of the United States when the first Indian migration started across the Bering Straits and the only ones that turned south happen to be the Hopis who live in my State.
Now, I would like to ask you, the Mohawk, how many acres are involved in your use?
Mr. GARROW. Senator, are you asking how many acres we are looking for in our negotiations? Or how many acres we are living on now?
Senator GOLDWATER. How many acres would this bill affect?
Mr. Garrow. Yes. What is being used at this point is very marginal farmlands. We live very far north and the type of soil we live on is not the best for farming, but we try.
Senator GOLDWATER. Do you have any idea what the average value per acres is now?
Mr. GARROW. Right now, I would guess that cleared land, cleared farmland that is tillable, would be between $400 and $475 an acre.
Senator GOLDWATER. Thank you. I want to ask those same questions of the Cayugas, Mr. Bonamie?
Mr. BONAMIE. Yes. The aboriginal land was 3,000,000 acres. The reserved and recognized land was 64,015 acres. The very closely negotiated acreage was around 6,000.
Senator GOLDWATER. Per acre ?
Mr. BONAMIE. No, I am sorry. We had a negotiated settlement that was for 6,000.
Senator GOLDWATER. And would your value be comparable to the Mohawk?
Mr. BONAMIE. No, sir. It would be a lot more. This is very good farmland area. It is around the Finger Lakes, excellent farmland.
Senator GOLDWATER. I will ask the same questions of the Seneca.
Mr. SNYDER. We are speaking more basically, not of land claims at this point, but of some clearing of titles pertaining to the State of New York. So we are basically not saying at this time that we have or expect any future land claims. That is not to say we will not, but at this point we only addressed the State of New York and the Senecas hopefully at this point, that it will not be further than that. We are more of a support basis for all of the tribes versus being actually a claimant in Indian claims.
Senator GOLDWATER. Would the value run about the same as the other lands, $500 to $1,000
Mr. SNYDER. I think probably a little more. These areas are developed at this point. I believe it is more of a boundary dispute versus the actual claims, so we are not at this point—we have settled the majority of our land claims.
Senator GOLDWATER. Thank you. The Six Nations and Mr. Sundown?
Mr. COULTER. Perhaps I can answer that question. I should first say that there have been no lawsuits actually filed to recover land by the Haudenosaunee. The policy of the Haudenosaunee has been to seek negotiation and partly for that reason the acreages have not been reduced to figures. There has been no effort to draw lines. Suffice it to say that the areas of land involved are very substantial, numbering in the millions of acres, but to suggest that there is some particular massive area of land I think distorts the fact that the Haudenosaunee have very large claims but seek to reach a negotiated resolution and at this time have not decided to file lawsuits.
Senator GOLDWATER. Thank you very much.
We mentioned this morning that there could be, or probably is, some difference in the laws that apply to western Indian lands and eastern. I just wanted to point out that, bordering on the community I live in, the Salt River Pima own 40,000 acres of the most valuable land we have in the whole valley. There has been no effort made to argue about their ownership or their right to lease it or sell it, so we can get along. I take it that none of you gentlemen like this bill.
Mr. COULTER. That is correct.
Mr. LYONs. I would just state that it is obvious and it will be obvious to you that there is common cause here, from all over the country because of the nature of this bill. I would also like to add that in the early part of the problems areas that the States were heavily involved in this, deliberately involved, and the reason you are sitting here is because of this involvement in the process by which they acquired this land. It was very deliberate and it is well documented, so I think you should be aware of that.
Senator Cohen. Thank you very much. Thank you, gentlemen.
Mr. Coulter, your prepared statement will be entered in the record at this point.
[The prepared statement follows. Testimony resumes on p. 74.]
PREPARED STATEMENT OF ROBERT T. COULTER, EXECUTIVE DIRECTOR, INDIAN LAW
RESOURCE CENTER My name is Robert T. Coulter. I am executive director of the Indian Law Resource Center, a non-profit organization which promotes the rights of Indian peoples in the courts, and through educational and law reform work. Among our Indian clients are the Six Nations Iroquois Confederacy, the Haudenosaunee, whose New York land claims would be extinguished by this bill, the "Ancient Indian Land Claims Settlement Act.”
We strongly oppose this bill and we condemn in general this approach to Indian rights. Although on its face the bill only addresses particular Indian land rights and legal claims in the states of New York and South Carolina, it is in fact farreaching legislation in the sensitive and volatile area of United States-Indian relations.
This bill is termination-style legislation. It is a bill which addresses a complex Indian rights problem by simply legislating away the Indians' most important rights. It is a potentially chilling precedent. Many wonder whether this bill will signal a new era of general disregard for Indian rights by the federal government.
We are convinced that the bill would not pass constitutional scrutiny. We believe it would ultimately, after extensive new litigation, be exposed as racially discriminatory and violative of fundamental constitutional guarantees of due process and equal protection. But, even if the courts were not to declare it unconstitutional, it would not put an end to the Indians' claims.
On an immediate, practical level the bill is also unacceptable because it would poison efforts to negotiate amicable settlements of Indian claims. It is difficult to see how fair and forthright negotiations could proceed in a setting where one party points the gun of unilateral extinguishment at the other's head.
We urge this Committee to soundly reject this measure.
NATURE OF THE BILL:
UNILATERAL EXTINGUISHMENT OF INDIAN LEGAL RIGHTS
It must be emphasized that the bill known as the "Ancient Indian Land Claims Settlement Act" is not in fact a "settlement" bill. It is an extinguishment bill. It would extinguish Indian legal rights and legal claims to Indian homelands.
There has been some effort by the bill's supporters to deny that fact and to characterize it instead as a bill which protects Indian rights just as it protects the rights of “innocent”—which means non-Indian-property owners i whose legal rights are being contested by Indians. However, the Justice Department admits that "this bill would extinguish claims by various Indian tribes to lands and natural resources in New York and South Carolina." ?
This is a unilateral extinguishment approach to the well-known legal dispute between Indians and non-Indians over ownership of certain lands in two eastern states. The bill attempts to put an end to that legal dispute by having Congress formally declare through this bill that the non-Indians win and the Indians lose. The rights of the Indians would be extinguished, whether those rights have already been established in litigation now pending in federal courts or whether they are rights which are otherwise a matter of dispute between Indians and the present federal, state, municipal and private possessors of those lands.
THE PARAMOUNT ISSUE: WILL LAW OR POLITICS GOVERN?
This dispute has festered for a long time. For most of that time, over a century, Indians were simply forbidden to assert their legal claims to these lands in United States courts. In recent years, many of the legal barriers to adjudication of those claims were slowly removed, and some Indians began to make progress in establishing their legal property rights. This extinguishment bill would turn back the clock and once again slam the courthouse door on Indians.
The bill would attempt to override all laws which would otherwise govern rights to those disputed lands. Treaty rights would be abrogated, long-established federal statutes would be twisted beyond recognition with a legalistic sleight of hand called “retroactive ratification", and Indian claims cases pending in federal
1 Among the many insults to Indians in this hill is the use of the term “Innocent" in reference to non-Indians only. Of what, one might ask, are the Indians guilty ? New York State and the Federal Government are the largest land owners in the claims areas. They are not innocent, as at least two Federal court decisions have held.
· Letter of April 8, 1992 from Robert A. McConnell, Assistant Attorney General, Office of Legislative Affairs, to David A. Stockman, Director, Office of Management and Budget.