PREPARED STATEMENT OF THE GENERAL BOARD OF GLOBAL
MINISTRIES, UNITED METHODIST CHURCH, SUBMITTED BY
JOYCE V. HAMLIN, SECRETARY FOR LEGISLATIVE AFFAIRS

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
Church, the only body with authority to speak for the Church,
adopted a statement, "The United Methodist Church and America's
Native People." It says, in part:

...A clear appeal is being made for a fresh
and reliable expression of justice for Native
Americans.J The call is being made for a new
recognition of the unique rights which were
guaranteed in perpetuity to U.S. American Indians
by the treaties and legal agreements which were
solemnly signed by official representatives
of the United States government....

The time has come for the American people to be
delivered from beliefs which gave support to the
false promises and faulty policies which prevailed
in the relations of the United States government
with U.S. native peoples....

These beliefs,...permitted the government...to
seize lands, uproot families, break up tribal
communities, and undermine the authority of
traditional chiefs. The beliefs enabled the

government to readily make and easily break
treaties [and] distribute as "free" land
millions of acres of native holdings which
the government designated as being "surplus."

The United Methodist Church calls its congregations
to study the issues concerning American Indian[§].......
and to furnish support for...the rights of native
people to plan for a future in this nation and to
expect a fulfillment of the commitments which have
been made previously by the government, as well as
equitable treatment of those who were not afforded
legal protection for their culture and lands....
We oppose the legislation for the following reasons:
1. The legislation is contrary to Congress' legal and
equitable responsibility to Native Americans;

2. The constitutionality of the legislation is question-
able; and

3. The legislative grant of authority to the Secretary
of the Interior is unclear and contrary to sound
policy considerations.

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:

tribes

Here, then, is the security for the remainder
of your lands. No State, no person, can purchase
your lands, unless at some public treaty held
under the authority of the United States. The
General Government will never consent to your
being defrauded, but it will protect you in all
your just rights.1

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
when it becomes aware that Indian rights have
been violated....Passamaquoddy, supra, at 662.

The proposed legislation, however, flies in the face of the
government's trust responsibility and of the solemn promises
made to the tribes. It abrogates, rather than protects, Indian
rights.

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