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PREPARED STATEMENT OF THE GENERAL BOARD OF GLOBAL
My name is Joyce Hamlin. I am the Secretary for Legislative Affairs of the Women's Division, General Board of Global Ministries, United Methodist Church. The Women's Division is the policy-making body of United Methodist Women, a group of one million women throughout the country. We do not purport to speak for each individual United Methodist woman.
The Women's Division appreciates the opportunity to express its views in opposition to the Ancient Indian Land Claims
Settlement Act (S 2084, HR 5494). The Act would retroactively ratify Indian lands transferred in New York and South Carolina in violation of the Nonintercourse Acts and would potentially Compensate tribes at 18th and 19th century land values.
In 1980, the General Conference of the United Methodist
...A clear appeal is being made for a fresh
The time has come for the American people to be
These beliefs,...permitted the government...to
government to readily make and easily break
The United Methodist Church calls its congregations
2. The constitutionality of the legislation is question-
3. The legislative grant of authority to the Secretary
While we appreciate fully the concerns of land holders that their titles be cleared, clouds to titles should not be removed in a manner that tramples on the just claims of the Native Americans.
I. The legislation is contrary to Congress' legal and equitable responsibility to Native Americans.
It is well settled that the Nonintercourse Act, passed in 1790 by the First Congress and still in effect, was for the purpose of preventing "the unfair, improvident or improper disposition" by Indians of their lands without the consent of Congress. Joint Tribal Council of Passamaquoddy v. Morton, 388 F.Supp. 649,656 (D.Me. 1975). Any transfer of lands without Congress' consent was considered invalid.
President George Washington interpreted the Act to the Seneca Nation:
Here, then, is the security for the remainder
The courts have further determined that the Act covers all (whether their land claim is based on so-called "aboriginal" or "recognized" title) and that it raises fiduciary obligations on the part of the United States. Those trust obligations mean that the United States must
do whatever is necessary to protect Indian lands
The proposed legislation, however, flies in the face of the
The bill signals a return to the days when Indian lands could be taken with impunity, without fair compensation. It would return United States policy to the days when treaties could be wantonly broken. And it would deliver a message to Native Americans that "equal justice under the law" is not available to them.
For over a century, Indian tribes have sought redress in the courts for the unjust taking of their lands. Through a variety of legal theories and manuevers, the courts were closed to their claims until recently. Now, just when the courts are recognizing the validity of Indian land claims, the proposed legislation would suddenly change the rules, would put an end to pending
AMERICAN STATE PAPERS (Indian Affairs, vol. 1, 1832) (emphasis added)
litigation, and would substitute a questionable process for settling legitimate claims.
There is no other group of United States citizens who could be treated in such a manner. For this reason, the legislation unfairly discriminates against a racial minority, is contrary to the far wiser policy of voluntary settlements of land claims, and should be rejected.
II. The constitutionality of the legislation is questionable.
The legislation raises a number of unresolved constitutional questions. Further, treatment of Native American claims by the courts has followed a wondering path in which, too often, the interests of white citizens have governed, rather than the trust responsibilities of the government toward Native Americans. Too frequently, court decisions have followed the shifting attitudes toward Native Americans--from a paternal attitude of protection to the attitudes of the termination period when Indian rights were almost totally disregarded. The court decisions, then, may point to the "letter of the law," but certainly not to any pattern of justice and equity.
The first constitutional issue is whether the extinguishment of aboriginal title requires payment of just compensation under the Fifth Amendment.
The prevailing view, under Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955), is that no such compensation is required. Tee-Hit-Ton, however, was decided during the termination era when the prevailing wisdom was that Native Americans would be better off "assimilating" with the white