Washington, D.C. 20540

Congressional Research Service
The Library of Congress

ANALYSIS OF THE ANCIENT INDIAN LAND CLAIMS SETTLEMENT ACT OF 1982--H.R. 5494 and S. 2084

Elizabeth B. Bazan
Legislative Attorney
American Law Division

April 9, 1982

CONG

Congressional Research Service
The Library of Congress

ANALYSIS OF THE ANCIENT INDIAN LANDS SETTLEMENT
ACT OF 1982--H.R. 5494 AND S. 2084

Washington, D.C. 20540

The Ancient Indian Lands Settlement Act of 1982 has been introduced

The

in both the House of Representatives and the Senate for consideration. House bill, H.R. 5494, was introduced by Rep. Gary Lee of New York, for himself, Rep. Ken Holland of South Carolina, and Rep. George Wortley, also of New York, on February 9, 1982. S. 2084, a bill identical to that 1/ introduced by Mr. Lee, was introduced in the Senate on the same day by Sen. Alfonse D'Amato of New York, for himself and Sen. Strom Thurmond of South Carolina. This report will discuss briefly the historical context of the Eastern land claims, examine these two bills and consider their

constitutional implications.

Background on the Eastern Land Claims

On July 22, 1790, the Indian Trade and Intercourse Act of 1790

was enacted. It provided in pertinent part:

That no sale of lands made by any Indians, or any nation or
tribe of Indians within the United States, shall be valid
to any person or person, or to any state, whether having the
right of preemption to such lands or not, unless the same shall
be made and duly executed at some public treaty, held under
the authority of the United States.

Act of July 22, 1790, ch. 33, § 4, 1 Stat. 137. From 1793 onward, the
"public treaty" language was replaced by a requirement of a "treaty or

1/ S. 2084 was introduced on calendar day February 9, 1982. However, the legislative day it was introduced was January 25, 1982. For a discussion of the distinction between calendar days and legislative days, see W. Oleszek, Congressional Procedures and the Policy Process 155-56, 224 (1978). There is one stylistic difference between the bills in provisos in their respective Sections 5(e), at page 10, line 25 of each bill, but this makes no substantive difference between the two.

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2/

convention." By the 1790 Act and its successors, the federal government sought to preempt the field, restraining alienation of Indian lands to treaties negotiated with the approbation of the United States. President Washington explained the purpose of the new Act to the Seneca Indians in 1790 as follows:

I must inform you that these evils arose before the present
Government of the United States was established, when the
separate States, and individuals under their authority,
undertook to treat with the Indian tribes respecting the sale
of their lands. But the case is now entirely altered; the
General Government, only, has the power to treat with the
Indian nations, and any treaty formed, and held without its
authority, will not be binding.

Here, then, is the security for the remainder of your lands. No State, nor person, can purchase your lands, unless at some public treaty, held under the authority of the United States.

3/

2/ E.g., Act of March 1, 1793, ch. 19, 1 Stat. 329; Act of May 19, 1796, ch. 30, 1 Stat. 469; Act of March 3, 1799, ch. 46, 1 Stat. 743. These, like the 1790 statute, were temporary acts. The first permanent Trade and Intercourse Act was enacted on March 30, 1802. This act, as amended, formed the basis for the Act of June 30, 1834, from which the present statute derives. The present provision states:

No purchase, grant, lease, or other conveyance of lands,
or of any title or claim thereto, from any Indian nation or
tribe of Indians, shall be of any validity in law or equity,
unless the same be made by treaty or convention entered into
pursuant to the Constitution. Every person who, not being
employed under the authority of the United States, attempts
to negotiate such treaty or convention, directly or indirectly,
or to treat with any such nation or tribe of Indians for the
title or purchase of any lands by them held or claimed, is
liable to a penalty of $1,000. The agent of any State who
may be present at any treaty held with Indians under the
authority of the United States, in the presence and with
the approbation of the commissioner of the United States
appointed to hold the same, may, however, propose to, and
adjust with, the Indians the compensation to be made for
their claim to lands within such State, which shall be
extinguished by treaty.

25 U.S.C. § 177, Act of June 30, 1834, c. 161, 12, 4 Stat. 730.

3/ I American State Papers: Indian Affairs 142 (W. Lowrie & M. St. Clair Clarke eds. 1832), cited in Clinton and Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17, 37 (1979).

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In practice, however, the transition to purely federal control of

Indian land transactions was not immediate, some of the original thirteen states continuing to carry on some negotiations and to make treaties with the Indians without federal participation or approval.

The bases for these exercises of state power seem to have been
threefold. First, the transition from a loose confederacy to
a centralized federal government did not go smoothly, and the
states' practices under Article IX of the Articles of Confederacy
had gained a certain momentum that was not easily or immediately
checked. Second, because the original thirteen states claimed
the underlying fee title to Indian lands within their boundaries,
some of the states apparently believed themselves exempt from the
federal regulation of what they perceived to be their property
rights, including the federal statutory restraints against
alienation. . . . A final reason for the continued exercise of
state power over Indian land cessions may be found in the early
federal inaction in the face of such exercises of state authority.
At the very least, the federal government in the first decades
after the 1790 Act was reasonably powerless to halt continued
efforts by the states to control Indian land transactions within
their borders. These assertions of state power are, of course,
the source of most of the modern eastern land claims litigation.

Clinton and Hotopp, Judicial Enforcement of the Federal Restraints on Alienation
of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17, 42-43
(1979). See also, Gunther, Governmental Power and New York Indian Lands--A
Reassessment of a Persistent Problem of Federal-State Relations, 8 Buffalo L.
Rev. 1, 6-7 (1958). Current litigation against states, cities, or individuals
(as opposed to the United States) is the focus of particular concern in
the proposed legislation.

Examination of the Provisions of the Bills

As noted heretofore, the two bills are substantively identical; therefore, their provisions will be discussed simultaneously, a reference to a particular section or subsection in one bill being equally applicable to the same section or subsection of the other bill.

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Each bill articulates as its purpose, "[t]o establish a fair and

consistent national policy for the resolution of claims based upon a purported lack of congressional approval of ancient Indian land transfers and to clear

the titles of lands subject to such claims." In articulating their congressional findings and declaring the policy behind the two bills, several points are made. First they note the existence of pending suits by various Indian tribes against "landowners and communities for possession of millions of acres of land in the Eastern United States, and related trespass damages" based upon transfers of land out of Indian hands allegedly made without federal approval and therefore in violation of federal law. Sec. 2(a)(1) of S. 2084 and H.R. 5494, respectively. The bills find further that the federal government may have "failed

to fulfill" an "obligation to approve such transfers," and that federal action or inaction led to justifiable reliance by landowners and state and local governments on the validity of these original transfers and claims of title arising from them. Sec. 2(a)(3) of each bill. Judicial determinations that such transfers were invalid would, according to the bills, cause significant economic dislocation and disruption of state and local governments and landowners affected. Sec. 2(a)(4). The bills conclude that congressional action is required because the resultant Indian land claims cannot be "fairly and equitably [resolved] through litigation against innocent private landowners."

Sec. 2(a)(5).

Achievement of what the bills find to be the primary purpose of the nonintercourse acts, "to insure fairness in the transactions by which Indian tribes conveyed their lands to non-Indians," is anticipated by these bills through retroactive validation and approval of the original transfers and provision of fair compensation to those tribes not given fair compensation