Imatges de pÓgina

acres of land in the central part of the State, and a third claim threatens another 3 million acres.

Cayuga, Oneida, and St. Regis Mohawk claims seek money damages for trespass for the fair rental value of the property and title to the land. The mere existence of a claim before legal action has commenced, renders title to property in the claim areas virtually unmarketable, with the resulting adverse impact on the availability of mortgage money, title insurance, and the general economy of the affected area.

If litigation is commenced, private landowners face potentially enormous legal fees due to the expected great length of the proceedings. If the Indians should prevail, landowners could lose their property and be liable for inordinate amounts of money damages even though they have held apparently valid titles for many years without any Indian presence.

The principal legal basis for the Indian claims lies in alleged violations of the Federal Nonintercourse Act of 1790, Trade and Intercourse Act of 1790. The 1790 act requires congressional approval of all subsequent land transfers by American Indian tribes or nations. And as you have stated, there may be some doubt as to whether that is the case or not.

The thrust of the Indian land claims is that lands were conveyed by the tribes to the State of New York without congressional approval, rendering such conveyances null and void. If the Indians are correct, all present landowners who derive ownership from the State are similarly affected. Their title is subordinate to that of the Indians.

As farmers and property owners who in good faith have invested time, effort, and money in order to improve the productivity and value of our farms, we are concerned that Indian land claim legislation remove clouds on titles to land located in New York State.

H.R. 5494 and S. 2084 intend to accomplish this by approving, validating, and ratifying land transfers just as though this had been done at the time of transfer. We feel that it would be a travesty to take land from the landowners of good faith to right the wrongs done by the Federal Government 200 years ago.

H.R. 5494 and S. 2084 provide Indian tribes with due process and a means of obtaining fair compensation for their claims. New York Farm Bureau sees this legislation as an equitable solution to a problem that could be most disruptive and financially devastating to homes, businesses, municipal facilities, public services, and State and local tax programs.

Finally, we support this act because it attempts to establish a fair and consistent national policy for the resolution of claims based on a purported lack of congressional approval of ancient Indian land transfers, and to clear the titles of land to such claims.

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Mr. PINSKY. I am Roy D. Pinsky, counsel for Aurelius Gas Co. I have submitted a written statement and I will not read it into the record, but would ask that it be included.

Senator CоHEN. It will be included in the record.

Mr. PINSKY. We are here urging not only the passage of this legislation, but its prompt passage. Aurelius is a small natural gas producer in central New York. We cannot sell our gas because of the existence of this Indian land claim. The claim itself, its mere existence, puts a cloud on our title to the gas. The pipeline company to which we sell our gas has refused to pay us for the gas or to accept the gas altogether as long as this cloud on title exists.

Aurelius will be but a memory by the time the courts resolve these issues. We cannot survive for a period of years without any revenues. We are not just one company seeking relief. If Aurelius is allowed to go under, there will be a ripple effect which will be felt both in New York State and without New York State. The financial institutions with which we have done business, the landowners who depend on their gas royalties for their daily living, will all suffer.

Investors from other States, gas developers from other States with wells in our area, will feel the same effects that we have felt.

The pipeline company to which we sell our gas and for which we produce four wells which they own will be deprived of our gas and also our services for producing their wells.

The pending litigation may immediately address itself to the States of New York and South Carolina, but its chilling effect will be felt throughout the country in other industries, such as the mining industry and the forest industry.

We need this legislation, we need the relief it represents for us. We need it now. You inquired earlier about the continuation of commerce in New York. Title insurance has been issued and accepted in some circumstances, but there is only one small title insurance company issuing any title insurance within the Indian land claim.

As Mr. van Gestel stated, it is questionable whether or not that company could could pay off on those claims if the Indians succeeded, and as a result, our pipeline customer has refused to accept such insurance. We analogize the situation currently to two doctors trying to decide which is the best treatment for the patient, which will be the longest lasting and give the best relief, but while they are debating, the patient dies. In this case, Aurelius is the patient. Counselor for the St. Regis Indians spoke of leverage. We are part of that leverage, but once we are gone, we do not represent leverage for either side.

Senator Goldwater spoke of water rights. This situation is not analogous to water rights because during the pendency of negotiations and claims over water, the water continues to flow.

Senator COHEN. In the West, sometimes the tribes divert the water so that it flows in one direction or the other.

Mr. PINSKY. Only then there becomes the type of urgency that we are facing now.

Senator COHEN. I do not disagree with you. I hope you understand that I am entirely sensitive to the circumstances that your people, your company, and the people you want to sell to find themselves in. I know my own experience in the State of Maine. The only caution I would give you, you say you want action now, you want to resolve it now. I am only going to suggest to you that it may not solve it now. What vou might see is even more litigation taking place with more clouds. That is the difficulty in dealing with this issue.

So while this may appear to you to be a final resolution of the claim, and while there is great reluctance to hire the considerable talents of Mr. William Lee and his colleagues, they may have even more business in the future, unfortunately, because you may have the institution of many, many more lawsuits challenging the very constitutionality of this act.

And so it is not as clear as you would like to have it or as any of us would like to see it in terms of how to resolve this. That is why the Justice Department and everyone else says, settle these things if you possibly can. If you cannot, that is something you bring to us, and that is why we are here.

Mr. PINSKY. Mr. Chairman, we recognize the difficulties that have been discussed over this legislation. We are urging that some action is better for us than no action. It certainly cannot be worse for us. Thank you.

Senator COHEN. Thank you very much. Your prepared statement will be included in the record at this point.

[The statement follows:]



I am Roy D. Pinsky, a member of the firm of Pinsky and Pinsky, P.C., attorneys at law, with offices at Suite 1020-State Tower Building, Syracuse, New York 13202. I submit this statement on behalf of Aurelius Gas Company, Inc., (Aurelius), a New York corporation with offices at R.D. No. 3, Auburn, New York 13021.

This statement is submitted in support of S2084, a Bill "To establish a fair and consistent national policy for the resolution of claims based on a purported lack of congressional approval of ancient Indian land transfers and to clear the titles of lands subject to such claims."

Aurelius submits this statement in support of the prompt passage of this legislation as it is Aurelius' hope for relief from a problem that will otherwise spell the demise of Aurelius in the near future. Without this legislation, Aurelius is unable to sell its natural gas.

Aurelius Gas Company, Inc. owns and produces natural gas wells located in Cayuga and Seneca Counties, New York. Aurelius currently leases approximately 10,000 acres of land in these two central New York counties. Most of these 10,000 acres are within the territory claimed by The Cayuga Indian Nation in an action pending in Federal District Court for the Northern District of New York. The Cayuga Indian Nation of New York, et al., plaintiffs vs. Hugh L. Carey, Governor of New York, et al., defendants (Case No. 80-CV-930) is a claim to 64,000 acres (100 square miles) in Seneca and Cayuga Counties, New York.

On acreage leased by Aurelius, there exists 30 wells. These wells are produced through approximately 24 miles of pipeline.

Aurelius is a small producer of natural gas by national standards. Average monthly production is approximately 20,000 mcf from all wells. The company was organized 4 years ago when Ashland Exploration announced that it was terminating its gas production in Central New York and selling its fields in Cayuga and Seneca Counties. A small group of local farmers organized Aurelius Gas Company, Inc. for the purpose of purchasing Ashland's holdings in these two New York counties. Through capital investment and financing, these principals were able to revitalize the productivity of the existing fields while at the same time, putting control of local mineral rights back into the hands of local residents. In this way, the principals of Aurelius were able to align corporate interests with community interests and to properly balance the two. Since this time, all profits have been reinvested in construction of new wells.

Aurelius sells the gas which it produces to a pipeline company which transports the gas a short distance to the local utility (New York State Electric & Gas Corporation) who in turn sells it to area residents and industries.

As is customary in the oil and gas industry, Aurelius warrants title to the gas which it sells to its pipeline customer. The claim by The Cayuga Indian Nation

creates a cloud on Aurelius' title to the natural gas. If the Indians succeed in being adjudicated the lawful owners of the land, the Indians argue that the leases held by Aurelius will be invalid because they were granted by parties other than the Indians. In other words, the landowners who leased their mineral rights to Aurelius would be tantamount to trespassers on the Indians' land. The Indians would rely upon the well established rule of law that a trespasser cannot give any better title than he himself has. This could mean that Aurelius has been producing and selling the Indians' gas. Payment for this gas by the pipeline customer of Aurelius could then be due to the owner of the gas, the Indians.

Aurelius' pipeline customer is currently refusing to pay for the gas delivered by Aurelius and may ultimately refuse to accept the gas from Aurelius. The difference is inconsequential to Aurelius, as either course cuts off Aurelius' cash flow.

Aurelius cannot survive without cash receipts with which to meet its obligations. These obligations are not only to lending institutions but also include the obligation to pay the 100 landowners who have leased their mineral rights.

The impact of this cloud on title has its own ripple effect. Initially, there is the demise of Aurelius Gas Company, Inc. Secondly, there is the substantial damage to the financial integrity of the principals of Aurelius Gas Company, Inc. There is also the impact upon local lending institutions and private investors.

The farmers who have leased their mineral rights to Aurelius are being deprived of their royalties. Many of these landowners are retired and depend upon the monthly royalty checks for their daily living expenses.

The nation as a whole must be concerned with the impact of the existence of this litigation. The efforts made to develop local natural resources as an energy alternative to imported oil are being thwarted by the mere existence of this litigation. The effects of Aurelius' demise would not be limited to New York State. The pipeline company to which Aurelius sells its gas has its corporate headquarters in West Virginia. It is a subsidiary of a corporation with its headquarters in Pennsylvania. This pipeline company would not only stand to lose the use of the gas produced by Aurelius but also the services rendered by Aurelius in producing wells owned by the pipeline company and the transportation of that gas through Aurelius' gathering system.

Investors from the State of Ohio would lose their investments. Gas explorers, many of whom use investors' capital from the States of Ohio and Michigan, would also lose the availability of Aurelius' pipeline. Their wel's located in the same geographic area would be incapable of being produced, not only because of the same cloud on their title but also because of their inability to lay an independent pipeline through which to produce their wells.

The numerous suits which would ensue would stretch well beyond the borders of New York State, including the States of Texas, New Jersey and Virginia as Aurelius received warranties from its predecessors in title doing business in each of these three states.

This statement is not only intended to support the passage of this legislation but is further intended to illustrate the urgent need for this legislation to be passed at the earliest possible opportunity. Others may argue that Congress should wait and see what happens in the Courts before taking any affirmative action. The ashes of Aurelius Gas Company, Inc. will be scattered by the wind long before the pending litigation can be resolved in the Courts. Blind Justice moves slowly. All of the scholars who have addressed themselves to the issue of these ancient Indian land claims agree that a legislative solution must ultimately be found. We urge and pray that the cure for this patient's ills is administered before the patient is beyond help.

Senator COHEN. Mrs. Jensen.


Mrs. JENSEN. My name is Catherine Jensen and I am a private property owner in Seneca County.

Although this is a personal viewpoint, I believe it reflects the feelings of many of the private property owners in Seneca and Cayuga Counties involved in the Cayuga land claim.

Five years ago, my husband and I bought our house in Fayette, N.Y., in good faith. We chose it for its location and large backyard

for my sons to play in. I signed the papers and was reassured there were no liens against the property. I belonged to a community and had a place to call home for my two sons.

I had a place to plant my roses and grow my own tomatoes. I mowed grass, pulled weeds, and trucked manure in from my neighbor's barn. I have sweat, bled, and gone without to upgrade and maintain. I went about painting, plastering, and personalizing my home.

I have struggled with my husband, like most young couples with a house and family to keep. It is our home.

Now after 200 years, the Cayuga Indians have seemingly come out of nowhere and stated we are trespassing. When I read my deed, I noticed the Cayuga reservation lot number. When I asked what this meant, I was told not to worry about it. The Cayuga stated to the press they would take the matter to court if necessary to obtain the land. Again, when I asked about it I was assured it meant nothing.

On February 12, 1982, I received a letter from the law firm of Wender, Murase, & White in Washington, D.C., telling me I was being sued by the Cayuga Nation for my property. I have gone to public and private meetings on the subject and spoken to lawyers and local government officials who have reassured me there is nothing to worry


I am concerned and I feel abandoned by the lack of information I have been given. It is possible the Cayuga Nation could obtain my home, the only home my sons have known. It is possible we would never get back what we have put into it, paid for, and it is possible that we would be in debt for years because of it.

I cannot even sell my home. Local realtors have advised against it because of the claim.

I can take the last 5 years of struggle and write them off. I will have no choice and no voice in the matter. I feel like part of my life is being threatened and the possibilities of that part of my life being taken away are very real and frightening.

I am angry, upset, and I will be damned if I hand over 5 years of my life, love, and care to someone else. Be it race or nation, it makes no difference. My personal freedom is being infringed upon and I ask my government to give me answers. Thank you.

Senator COHEN. Thank you very much, Mrs. Jensen.

Mr. Kinne.


Mr. KINNE. Senator Cohen, you are chairman of an ancient and honorable committee, and it is with real grief that I notice the absence of the distinguished Senator, Mr. Goldwater. I am sorry that he is not here to hear from the State of New York.

My name is Wisner Kinne. I am a Lieutenant, USNR retired, Serial No. 152667. I come here from Woodland Farm, R.F.D. 1, Kinne Road, Ovid, N.Y.

Senator COHEN. You make it sound like you are a prisoner of war, Mr. Kinne. [Laughter.]

Mr. KINNE. Wait until you hear the rest of my statement. I speak for the 44 passengers on the Seneca County citizens bus, here in support of Senate bill 2084, The Ancient Indian Land Claims Settlement Act of 1982.

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