STATEMENT DARRELL "CHIP" WADENA, PRESIDENT MINNESOTA CHIPPEWA TRIBE ON .S. 2084, THE "ANCIENT INDIAN LAND Mr. Chairman, my name is Darrell "Chip" Wadena. I am President of the Minnesota Chippewa Tribe and Chairman of the White Earth Band of Chippewa Indians. The Minnesota Chippewa Tribe and the White Earth Band oppose enactment of S...2084. the Ancient Indian Land Claims Settlement Act of 1982. - In S... 2084 Congress is asked to ratify retroactively purported transfers of millions of acres of land by Indian tribes to third parties in the states of New York and South Carolina that are alleged to have occurred prior to 1912. It would also extinguish any claims for trespass or mesnes profits the Indians may assert. The Congress is asked to ratify these purported transfers without regard to whether or not they were made under fraud or duress. In the case of Oneida claims, it would have the effect of upsetting a 1977 decision of the Federal District Court for the Northern District of New York. This decision voided a 1795 treaty between the Oneidas and the State and held that approximately 800 acres of land ooccupied by Madison and Oneida counties are owned by the Oneidas. In October 1981 the court entered - 2 a judgment assessing damages for trespass during calendar years 1968 and 1969. The Court established a 6% compound interest rate to run from the date the suit was filed to the date the judgment was entered. The case is now on appeal to the U. S. Court of Appeals for the Second Circuit. This particular 800-acre case is a test case for Oneida claims totalling 250,000 acres. It covers Oneida claims for damages for only two years. Other Oneida claims bring the total claims to 6 million acres. The potential cost to the defendants in the eastern Indian land claims cases is staggering if the courts find title in the Indians and award them damages and compound interest on those damages over the past two centuries. What are the potential costs to the United States if S. 2084 is signed into law? Under this bill, the Oneida claims alone could cost the Federal government $5-6 billion, if the value of the land at the times of the purported transfers was one dollar per acre and if Oneida title was recognized title. Moreover, it could be exposed to a huge liability under the Fifth Amendment if the courts find that the compensation authorized in S. 2084 is not "just compensation." President Reagan, in his veto message on H.R. 5118 earlier this month. indicated his opposition to the settlement of Papago water rights claims because of a purported cost to the United States of $112 million and called for more significant contributions by the non-Indian defendants in the litigation concerning these claims. S. 2084 is far more expensive and requires no from any of the contribution whatsoever either in land or in money - 3 parties occupying lands claims by Indians. We oppose enactment of S. 2084. regardless of who pays. But certainly if title to Indian lands and claims for trespass and mesnes profits are to be extinguished, we believe the primary beneficiaries of the extinguishment should be required to pay for this unprecedented assault on our Constitution, our courts, and the affected Indian people. Mr. Chairman, as you know, legislation has been introduced to extinguish title to certain lands claimed by the members of the White Earth Band of Chippewas (H.R. 6271). While the particular terms of this bill differ from S. 2084 and while the historical and legal circumstances giving rise to the Chippewa claims differ from those of the eastern Indian land claims, the principles behind both bills are the same. By rejecting S.. 2084, we trust the Committee will send a signal throughout the states that the Congress supports negotiated settlements and opposes the extinguishment by Congress of Indian claims without Indian consent. H.R. 5118, the Southern Arizona Water Rights Settlement Act, represents a model of fairness. We hope that the Administration will, as it has pledged, try to improve the model and that a final settlement of Papago water rights can be enacted into law this year. We are certain the approach that the Arizona delegation, the Papago Tribe, the State of Arizona and Pima County water-users have taken is the fairest and swiftest way to settle Indian claims. PREPARED STATEMENT OF THE NATIONAL CONGRESS OF AMERICAN The National Congress of American Indians is the oldest and most representative national Indian organization in America today. Since its formation in 1944, NCAI has served to represent the interests of Indian Tribes throughout the country. We have approximately 160 member tribes whose combined population is over 400,000. We would like to submit for the record our strong opposition to the "Ancient Indian Land Claims Settlement Act of 1982" (S. 2084, H.R. 5497) which would extinguish present Indian land claims in the states of New York and South Carolina by retroactively ratifying and approving void and illegal takings of Indian lands in those states. These Easter land claims are based on violations of the Nonintercourse Act (now codified at 25 U.S.C. 177). The purpose of this statute was to protect the tribes' possessor rights in their lands by preventing unfair or improper disposition of tribal lands to parties other than the United States. This restraint against alienation of the land was to be accomplished by requiring federal government approval of all land transfers. The effect of this statute was to impose a trust or fiduciary obligation on the United States to govern the disposition of all tribally held lands. Failure of the United States to live up to their obligation is the reason these land claims were brought and the reason for the existence of S.2084/H.R. 5497. This bill hopes to achieve an expedient legislative solution to these ongoing claims in order to quiet title to the land. Even though NCAI believes that thes land disputes must be settled, we do not believe that a unilateral Congressional solution such as this one is the correct approach. -2 The following highlights what NCAI views as the flaws of this type of legislation and includes our suggestions for a more equitable resolution of these disputes. I. No Consultation of Affected Parties This bill attempts to settle claims unilaterally without prior consultation and negotiation with the affected parties, i.e. Indian tribes, private landowners, and States. Unfortunately, some members of Congress believe that tribal governments are unwilling to negotiate settlements. This is a complete fallacy! From the out-set tribal governments have demonstrated their concern for the other parties interest and a preference for negotiated settlement as an alternative to expensive and protracted litigation. It was usually the non-Indian parties to the claims that prefered not to settle, hoping the courts would not recognize the Indian claims. However, favorable judicial recognition of Indian claims has changes these defendants approach to settlement. Now they support some type of legislative solution.1/ However, unilateral legislative resolution of these claims is not an equitable nor desirable approach. Principles of airness require an opportunity for all affected parties to determine the type and amount of damages to be awarded, and the amount of land, if any, to be returned to Indian governments. Furthermore, the uniqueness of many of the claims may require indicvidual legislative solutions. Without consultation with the affected parties, it is foreseeable that future Indian land settlement legislation like S. 2084/ H.R. 5497 will be biased against Indian tribes. This bias will only serve to discourage negotiated settlements. Indian people will refuse to 1/See, Comment, "Resolution of Eastern Indian claims: A Proposal for Negotiated Settlements," 27 Am. U. L. Rev. 695 (1978). |