The Oneida Tribe opposes this bill in its spirit and, more importantly, in its legal ramifications some of which are the following:

1. The Ancient Indian Land Claims Settlement Act of 1982 would close the courts to Indian land rights cases and "change the rules in the middle of ongoing cases". The Ancient Indian Land Claims Settlement Act of 1982 would raise constitutional questions that would lead to years of litigation, as well.

2. The Treaties of the Oneida Nation and other Indian people continue to be the law of the land, notwithstanding the fact that case and legislated law have unilaterally limited some Treaty rights. The terms of the Oneida Treaties clearly define the responsibility of the United States and were entered into by all parties with the intent of being legally bound. The Ancient Indian Land Claims Settlement Act of 1982, is clearly ex post facto, and would, if enacted, violate otherwise valid Treaties of the Oneidas with the United States.

3. The Ancient Indian Land Claims Settlement Act of 1982 would discriminate by denying equal protection under the law because it is aimed solely at taking land rights from Indians. Consider one of the following provisions of the Act: (a) Section 4 would expressly and unilaterally ratify unratified treaties, the effect of which would be to automatically extinguish pending litigation or existing land claims.

(b) Under Section 5, the Secretary of the Interior alone would have sole responsibility to determine the merits of any claim, and damages, if any.

(c) Tribes must state their claims within 180 days or forever lose them. If the Secretary makes an offer under the Act, The Tribe must respond within 60 days. This would be a hardship, if not an outright impossibility, as a Secretarial Election would be required.

(d) Judicial Review lies only with the U.S. Court of Claims with rules even more stringent than the old Indian Claim Commission Act.

4. The Ancient Indian Land Claims Settlement Act of 1982 would violate the fundamental human rights of Indian people, according to the Helsinki Final Act Agreement of which the United States is a signatory.

5. The Ancient Indian Land Claims Settlement Act of 1982 would not settle the Indian claims involved in New York. This Act would wipe out the 62,000 acre claim of the Cayuga surrounding the northern half of Lake Cayuga-the St. Regis Mohawk claim, an area of 10,500 acres of land adjoining the existing reservation, two islands in the St. Lawrence River and the meadow lands along the Grass River, the Oneida claim of 246,000 acres bordering Lake Oneida.

The historical irony of this proposed Act is the expeditious and uncritical manner in which it was introduced and its blatant attempt to avoid the legal obligations of the United States to the Oneida people and their government. Since the American Revolution, the Oneidas, as a Nation, have been allies of the United States. It is no exaggeration to say that the Oneida people have contributed in many ways to the very existence of the United States. Consider the following facts:

1. The Oneida Nation was the first ally of the United States Confederacy and George Washington's Continental Army. Because of the help of Shikellany in cementing a friendship with the Colony of Pennsylvania, a future nation, the United States was made possible. He was the key to the friendship of the Oneidas. America owes much to this great Oneida Sachem and to other Oneidas.

2. The Oneidas brought several hundred bags of corn to Washington's starving army at Valley Forge, after the colonists had consistently refused to aid them. 3. The Oneidas turned the tide at the Battle of Oriskany, making it an American victory, gaining control of the Hudson River, the turning point of the Revolution.

4. Oneidas garrisoned the blockhouse at Palmer Falls on the Hudson River, the only outpost fort in New York that the Americans had, north of the Mohawk Valley.

George Washington's position has been stated many times as it regards the Oneida people, but perhaps he said it most effectively when he said: “if the Indians had been our enemy instead of our friend, the war would not have ended in independence."

CONCLUSION

For the preceding reasons mentioned, among others, the Oneida tribe of Indians of Wisconsin had determined that this proposed legislation is dangerous to its survival. Although, the moral issues involved are appealing, it is the strictly legal issues upon which the Oneida people base their contentions. The very status of the government of the Oneida people is wrongfully implicated by this proposed

legislation as well as valid legal remedies that would be denied without recourse. Finally, the crass justification supplied by the authors of this legislation is replete with inconsistencies, contradiction and the false conclusion that it will solve the so-called "Ancient Indian Land Claims problem". This repressive legislation and other similar legislation must be stopped and the Oneida Tribe of Wisconsin will take all actions necessary to that end.

Senator COHEN. Will you state your name, please.

STATEMENT OF ARLINDA LOCKLEAR, ATTORNEY, NATIVE AMERICAN RIGHTS FUND

Ms. LOCKLEAR. Yes, Mr. Chairman. My name is Arlinda Locklear. I am an attorney with the Native American Rights Fund, and I represent the Oneida Indian Nation of Wisconsin and the Oneida of the Thames band in the three pieces of litigation that are now pending in the Northern District of New York State.

With all due respect to the Chair, I would like to differ on the first issue that you just brought up, and that is the applicability of the Nonintercourse Act. At least with respect to New York State, the historic record is absolutely clear that the Federal Government and the State both realized at the time of these transactions that the Act did apply. Shortly after the Act was passed in 1790, George Washington visited the Senecas. You heard Chief Lyons discuss that earlier. In one of those speeches, George Washington explicitly referred to the Nonintercourse Act, and told the Senecas, there you will find the assurance for your lands.

Very shortly after that, New York State began its policy of purchasing Indian lands. When the Federal Indian agent at the time became aware of the State's plans, he communicated those plans to the U.S. Attorney General. The Attorney General wrote his opinion to the Governor of the State, George Clinton at the time, that in his view the Nonintercourse Act did apply and the Nonintercourse Act would make such transactions, without the consent of the U.S. Congress, illegal. The State, nonetheless, proceeded to purchase, in about 25 subsequent transactions, the remaining Oneida lands.

Senator COHEN. Where was the Federal Government at that time? Ms. LOCKLEAR. The Federal Government sat back and watched. They took no affirmative actions to try to stop it, although there was correspondence between the State and the other Federal officials making these various constructions of the act, which would lead to the conclusion that the State was acting without authority. Those facts themselves are the basis of a finding of liability against the United States for breach of trust as to those very Oneida lands.

So in our view, it is perfectly clear, as a matter of history, that the United States and the State realized that the Nonintercourse Act applied and prevented such transactions.

If I may take one more moment of the committee's time, I would like to clarify some points that have been made earlier by some of the other witnesses that the committee has heard, with respect specifically to the Oneida claims themselves.

First of all, just to clarify one point that I think was confusing earlier, the Oneidas have not filed lis pendens against any defendants in any of the land claims. To the contrary, the Oneidas have taken

every action they could to avoid any economic disruption in the claim areas, and I think we have been very successful.

Senator COHEN. Who has filed the lis pendens?

Ms. LOCKLEAR. As I understand it, Mr. Chairman, there may have been some problem in the Cayuga claim. I am not familiar with the details of that.

Senator COHEN. Why do you not complete your statement, and then I will pursue that.

Ms. LOCKLEAR. I will yield to Mr. Feldman on that point.

Mr. FELDMAN. My name is Glen Feldman. I am the attorney for the Seneca Cayuga Tribe of Oklahoma, who is a plaintiff intervenor in the Cayuga land claim in New York. In that case, and I was going to raise this issue too, so I am glad that you did, lis pendens notices were attempted to be filed in the Cayuga claim. That claim involved 64,000 acres, not 3 million acres, as was suggested earlier today. It involves 7,000 parcels of land, not 1 million parcels of land, as was suggested. And in fact, shortly after the notices were attempted to be filed, a New York State judge dissolved them, so in fact as of today there are no lis pendens notices pending against any landowners whatsoever.

Ms. LOCKLEAR. In respect to Oneida again, we have taken affirmative actions to try to avoid any sort of consequences that might flow from something like that. Specifically, in all of the cases that we have filed, we have deleted homesites up to the extent of 2 acres, and the Oneidas expressed their conviction then that homeowners should not be involved in this kind of litigation, and disclaimed any interest in disturbing homeowners.

Finally, the Oneidas, in the litigation, have supported a claim made by the defendants against the State for reimbursement for the trespass damages for which those defendants have been held liable to the Oneidas. That action came up in Judge Port's case, recently decided, a few months ago, where Judge Port did hold that because of the State's bad faith and willfully and knowingly violating the Nonintercourse Act, he would imply a right to, by the private owners, to proceed against the State to recoup whatever trespass damages were held owed to the Oneidas.

We, as an amicus, supported that motion, and I think we were partially responsible for its success. We would also encourage the defendants in all of these actions to proceed against the State likewise, because in our view the wrong actor in all of these cases is the State of New York. The State of New York acted knowingly and in willful violation of Federal law. Unfortunately, however, at this point the Oneidas have no choice but to pursue the only course of action we have and which is the course of action which will get us at least partially what we want, some land back, so that we can continue to live as a separate culture. That cause of action, unfortunately, is against the present owners.

We would, however, welcome the opportunity to negotiate with those owners, the State of New York, and the Federal Government. We have approached and made that suggestion to all three, we think unsuccessfully.

But I would remind the committee, as I think was observed yesterday in the House hearing, only with the Indian tribes' consent can

these cases ever be finally resolved. Otherwise there will be litigation on the constitutionality of any unilateral extinguishment of those claims and objections in the court of claims, that litigation that could

take 20 years.

That is not a prompt nor a reasonable resolution of these claims. We must sit down and talk. That is the only way.

Thank you.

Senator COHEN. Thank you very much.

Mr. Feldman.

STATEMENT OF GLEN M. FELDMAN, ESQ., LEGAL COUNSEL,

SENECA-CAYUGA TRIBE OF OKLAHOMA

Mr. FELDMAN. As I indicated, I am Glen Feldman, on behalf of the Seneca-Cayuga Tribe of Oklahoma. The tribal representative, Mr. Whitecrow, unfortunately had to leave to catch a plane, so he has asked me simply to ask to have the written testimony submitted for the record.

Senator COHEN. It will be included in the record.

Mr. FELDMAN. I would like to indicate only, however, that the Seneca-Cayuga Tribe strongly opposes the enactment of the bill, that as a plaintiff in the Cayuga land claim it is our view that this legislation has one purpose and one purpose only and that is to deprive the Sencca-Cayugas and the other tribal claimants of an opportunity to have their claim decided fully and fairly by an impartial decisionmaker.

As was indicated earlier today, the Department of the Interior cannot wear two hats, and it is improper and probably unconstitutional to think that they can. We simply wish to have the opportunity to have the claim litigated before a U.S. District Court, a district judge. The U.S. District Court is a court of equity and the judge can determine what kind of relief, if in fact there is liability; he can determine what kind of relief is necessary and appropriate to remedy the problem.

Senator COHEN. What is the status of the case that was just mentioned a moment ago? You mentioned a case that is pending, Judge Port's case?

Ms. LOCKLEAR. That case was filed in 1970. It has been going on for 12 years now, with remarkable lack of disturbance in the claim area. The final judgment has been entered in favor of the Oneidas on both the liability issue and the damages issue.

Senator COHEN. Under the Nonintercourse Act?

Ms. LOCKLEAR. Under the Nonintercourse Act. And the appeal is now pending to the Second Circuit Court of Appeals.

Mr. FELDMAN. At the same time, the Cayuga claim is also pending in that same U.S. District Court for the Northern District before a different judge. The Cayuga case was filed in 1980. It is a much more recent case, and we are still in the preliminary stages. There have been no substantive decisions rendered in any way.

Let me just indicate that the Cayuga claim is a 64,000-acre clain based on reserved title. It is not an aboriginal title case. In 1794, the United States, in the treaty with the Six Nations, specifically reserved that land for the perpetual use and enjoyment of the Cayuga Nation, and it is both under the Nonintercourse Act and under that treaty, which the Cayuga claim has been filed.

I would also like to indicate that some comments were made this morning regarding the attempted solution or settlement of the Cayuga claim 2 years ago. In fact, legislation was introduced in the House and defeated by the full House.

I would like to ask permission, if I might, on behalf of the SenecaCayugas and the Cayugas of New York, to submit written testimony or a written statement with regard to certain comments that were made this morning concerning the negotiations that led up to the introduction and defeat of that legislation. We believe that certain comments that were made may have left the committee with misimpressions of what happened and what the tribes were willing to agree to and not willing to agree to. So we would simply like permission to file a brief statement on that.

Senator COHEN. The record is going to stay open for a period of 30 days, so we will be happy to receive that.

Mr. FELDMAN. Fine.

[Subsequent to the hearing, the following material was received for the record. Testimony resumes on p. 143.]