H.R. 5494/S. 2084, Linscheid, T-9, Page Three

forced to accept monetary compensation. They would even be denied the
opportunity of judicial review as to whether or not the compensation
is fair.

The Indian land claims in the states of New York and South Carolina are not "ancient" Indian land claims, as the legislation asserts, implying an antiquity which would suggest lack of present-day validity. On the contrary, many of these claims have been pursued by the Indians since their lands were taken from them.

With respect to the Oneida claim, a Federal district court found that, "The trial of this case demonstrated that (the Oneidas) have patiently for many years sought a remedy by other means--but to no avail."3 For the past 150 years the Oneidas have sent a letter to each U. S. President, requesting assistance in seeking justice for the wrongful loss of their lands.

Another case, the claim of the Catawba Tribe of South Carolina, well represents the abuse which the Nonintercourse Act sought to guard against and which President Washington condemned. Prior to the American Revolution, the Catawba Tribe entered into the Treaty of Augusta with the British Crown. The treaty obligations were later assumed by the United States. After the treaty was subsequently violated by encroachment on the Catawba's lands, the state of South Carolina acted to extinguish Catawba title to the 144,000 acres reserved by treaty. The State's action was never approved by the federal government. According to the U. S. Commission on Civil Rights,

"The 1,200-member Catawba Tribe has a long, continuing history
of asserting its claim to 144,000 acres of land it once owned.
Since 1904 the tribe has sought Federal assistance to bring
its claim.

114

H.R. 5494/S. 2084, Linscheid, T-9, Page Four

The "Ancient Indian Land Claims Settlement Act" very wrongly assumes that lack of congressional ratification of land transactions was due to simple oversights, or "at best only minute legal flaws."5 assumes that the transactions were fair and acceptable to all parties involved. These assumptions are refuted by the long history of the tribes' search for recourse in the return of their lands.

It

Proponents of the legislation suggest a certain innocence on the part of the states which originally took the land from the tribes. Yet the U. S. Commission on Civil Rights notes, "Between 1790 and 1842, New York, despite specific warnings that it was violating Federal policy, acquired an additional 246,000 acres (from the Oneidas)... One historian has documented that although New York Governors and State Indian commissioners were specifically told they were violating Federal Indian policy, 116 they chose to ignore the warnings...

The "Ancient Indian Land Claims Settlement Act" also very wrongly assumes the total futility of trying to resolve conflicts over land claims through negotiations in which the just claims of all parties are respected. Because of failures to successfully negotiate settlements in New York and South Carolina, this legislation proposes to settle the matter by punishing the Indians.

A year ago, the Cayuga Tribe agreed to a negotiated settlement. Unfortunately, an apparent lack of full consultation with all affected parties--and this cannot be blamed on the tribe--resulted in opposition to the bill and its eventual defeat. With nowhere else to turn, the Cayuga Tribe sought judicial relief. It is patently unfair to blame the Cayugas for the failure of the negotiations, and equally unfair to place all the blame--and adverse consequences--on other tribes for the

H.R. 5494/S. 2084, Linscheid, T-9, Page Five

failure of negotiations elsewhere.

Contrary to what Representative Lee asserts, the Indians of New York and South Carolina do not "want literally tens of thousands of current property-holders thrown off the land."

ܐ܂

Ironically, another sponsor of the legislation in the House, Representative Ken Holland, once stated with regard to the Maine Indian land claims case, before it was resolved, "Perhaps if they had acted reasonably ,,8 and in a conciliatory way, there wouldn't be unrest there now. We appeal to Rep. Holland and other proponents of this legislation to heed his words.

It is imperative that the confrontational, discriminatory, and racially-motivated approach exhibited by this legislation be quickly abandoned in favor of a settlement which will respect the just claims of the Indian tribes, and the understandable and legitimate concerns of non-Indian landowners.

The present legislation, if seriously considered or enacted by the Congress, will only serve to intensify the conflict and polarize the parties involved. Furthermore, it will undoubtedly lead to many more, not less, years of litigation. In a 1979 Maine Law Review article, attorney Tim Vollmann predicted what might happen if legislation such as the "Ancient Indian Land Claims Settlement Act" were to receive Referring to similar bills introduced in the

serious consideration.

95th Congress, Vollmann wrote,

"If such legislation were to approach enactment, the affected
tribes may well seek to unite the national Indian leadership
and its allies, and take all political steps necessary to
defeat it. Indeed, Indian leaders are likely to view such a
battle as a struggle to the death, characterizing the legis-
lation as a perverse culmination of 200 ill-starred years of
federal Indian policy, as a proclamation of a new rule that
courts of law are accessible to all but Indian land claimants,
and as a classic example of the principle that 'might makes
right. Such an ugly confrontation is unnecessary.

H.R. 5494/S. 2084, Linscheid, T-9, Page Six

Such a confrontation is indeed unnecessary. In a letter explaining his position regarding this legislation, Senator D'Amato has written, "It is simply not right to turn back the clock to 1795 and to wipe out nearly two hundred years of the history of the use of the land." Yet "turning back the clock" is exactly what this legislation attempts to do. It would turn back the clock in order to make legal the illegal taking of Indian lands. So the argument cuts both ways, and we would contend that it is simply not right to turn back the clock to 1795 and to wipe out nearly two hundred years of the history of Indian tribes seeking justice and the legitimate rights to their land. We urge this Committee and the Congress to condemn and reject the "Ancient Indian Land Claims Settlement Act." We urge you to support equitable and just settlements which respect the legitimate concerns of all parties involved, without abrogating this nation's commitment to

Indian tribes.

FOOTNOTES:

1Quoted in U. S. Commission on Civil Rights, Indian Tribes: A Continuing Quest for Survival, June, 1981, p. 105.

2Quoted in Elizabeth B. Bazen, Analysis of the Ancient Indian Land Claims Settlement Act of 1982--H. R. 5494 and S. 2084, Congressional Research Service, The Library of Congress, April 9, 1982, p. 2.

3Indian Tribes, p. 123.

4Ibid., p. 117.

5Representative Gary Lee, "A New Claims Bill," Congressional Record, March 2, 1982, E 647.

6Indian Tribes, p. 110.

7Congressional Record, E 647.

8Quoted in Indian Tribes, p. 118.

9Tim Vollmann, "A Survey of Eastern Indian Land Claims: 1970-1979," Maine Law Review, Vol. 31:5, 1979, p. 15.

For further information, contact Steve Linscheid, Friends Committee on National Legislation, 245 Second St., NE, Washington, D. C. 202/547/6000

20002

T-9

February 11, 1982

FCNL

FRIENDS COMMITTEE ON NATIONAL LEGISLATION

245 Second Street, N.E. Washington, D.C. 20002 (202) 547-6000

07

To Members of the Select Committee on Indian Affairs,

U. S. Senate

Dear Senator:

We wish to express our strong opposition to the "Ancient Indian Land
Claims Settlement Act of 1982," S. 2084, introduced on February 9
by Senator D'Amato and referred to the Select Committee on Indian
Affairs. This legislation is an unfair way to respond to the grievances
of Indian tribes whose land may have been taken from them illegally.

S. 2084 would unilaterally wipe out Indian land rights in the states
of New York and South Carolina. This bill does not seek an equitable
solution nor a process for a negotiated settlement, but an outright
extinguishment of Indian claims in the two states. It is designed to
circumvent a fair and orderly judicial process by declaring legal the
illegal taking of Indian lands in the past. We have some questions
whether this legislation is even constitutional.

The land claims now being pursued by tribes in the states of New York
and South Carolina are not "ancient" claims which have only recently
been discovered. For example, over the past one hundred and fifty
years, the Oneida Tribe has sent a letter to each U. S. President,
requesting assistance in seeking justice for the illegal taking of
their lands. Finally, as the Oneidas and some other tribes have been
able to bring their grievances to court, we witness this attempt to
bar them from the judicial process.

Will you join us in actively opposing this legislation?

Robert P. Fetter Clerk, General Committee Ralph Rose Clerk, Executive Committee
Edward F. Snyder Executive Secretary Frances E. Neely Legislative Secretary
Wilton E. Hartzler Associate Secretary for Administration

E. Raymond Wilson Executive Secretary Emeritus
Ruth Flower Legislative Secretary

Nick Block Finance Secretary