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essence any action by the Congress to take that reserved land trespass damage would create liability to the U.S. Government for that taking, at today's prices, and most likely, we also feel it could be an issue as to the compounding of interest for those damages, which in the Cayuga's case could be a substantial amount.
Senator COHEN. What is your analysis with respect to aboriginal title? Do you have any doubt that Congress has the raw power to extinguish aboriginal title without compensation?
Mr. GAJARSA. We do not believe that the Congress has the raw power to extinguish title per se of aboriginal title without compensation. I believe that there still must be some fair compensation. There is a distinction, as was pointed out before, between the Eastern and the Western land claims, as to the preemptive right, and that issue still has not been decided. That would be a substantial issue to be determined at that point.
If, in fact, the theories which we are propounding are correct, obviously the aboriginal title can be extinguished, but with compensation.
Senator COHEN. Thank you very much.
STATEMENT OF BARRY E. SNYDER, PRESIDENT, SENECA NATION
Mr. SNYDER. Mr. Chairman, Mr. Goldwater, my name is Barry Snyder. I am the elected president of the Seneca Nation of Indians, which owns and occupies three reservations in western New York State: The Cattaraugus Reservation south of Buffalo; the Allegany Reservation which lies along both sides of the Allegheny River north of the Pennsylvania border; and the Oil Springs Reservation, a portion of which includes Cuba Lake. The Seneca Nation has 5,442 enrolled members, of whom approximately 3,061 live on the Cattaraugus and Allegany Reservation.
I am appearing here today to register my tribe's strong opposition to S. 2084, the so-called ancient Indian land claims bill, and any comparable legislation which may come before this committee. Our basic objection to S. 2084 is that the bill is discriminatory on its face.
More specifically, where Indians and non-Indians, including the State or local governments, claim the same lands, S. 2084 would grant clear title to the non-Indians and would leave the Indians with only a claim against the United States for money compensation, which would be difficult, time consuming, risky, and expensive to prosecute. Moreover, this result would be mandated by the bill even if, for example, the State's claim to the property were based upon a forced or fraudulent transaction or some other unprincipled activity which, as between private parties, would be a good ground for defeating a claim of land title, not sustaining it.
My people do not think that this approach is fair or is just, and, if properly informed, I do not believe the American people will think so either.
At the outset, let me make clear that, to the best of my knowledge, the Seneca Nation does not have any major land claims based upon violations of the 1790 Trade and Intercourse Act which arose before
the January 1, 1912, cutoff date set out in S. 2084 We have under consideration a possible suit for the unlawful taking of a portion of the Oil Springs Reservation by the State of New York and a second possible suit for loss of land because of an improper change in the boundary of the Allegany Reservation.
But our key treaties and land agreements were made directly with the United States and under the authority of the United States, so that the requirements of 25 U.S.C. section 177 already have been satisfied.
Moreover, for reasons which are not apparent to me, section 4(d) of the pending bill excludes from its ratification of prior transfers and the extinguishment of related claims:
Those lands that are located within the Allegany and Cattaraugus Reservations of the Seneca Nation in the State of New York and were leased under authority of the Act of February 19, 1875.
I am testifying here today, therefore, in large measure not because of any self-interest on the part of the Seneca Nation, but rather out of a deep concern for the rights of other Indian tribes east of the Mississippi and, more particularly, out of a deep concern that Congress seriously is considering and, in the absence of broad-based objections, might approve a bill which would make bad law and bad public policy.
At the beginning of my testimony, I described S. 2084 as discriminatory and unfair. Let me give you an example of what I mean. Assume, for the moment, that agents from the State of New York came to an Indian tribe early in the 19th century and said, "Sell the State part of your land for $1 per acre or else." As members of this committee are well aware, that kind of transaction is not unknown in our history.
Let us also assume that the State of New York still possesses land which it obtained by using duress. Under any ordinary standard of law or morality, the Indian tribe should be entitled to that land back. Under S. 2084, on the other hand, the State would get to keep the land, the Indians' title would be extinguished, and even more strange, the United States would have to pay for it.
Let me give you another example. Assume, for the moment, that a non-Indian farmer, whose land adjoined the Indian reservation, went out one night and moved the boundary markers so that he thereafter could extend his operations onto tribal land. On the basis of personal experience on the Seneca Reservations, I can assure the members of this committee that such activity in fact does occur.
Under any ordinary standard of law or morality, the Indian tribe in my example should be entitled to its land back, but not under S. 2084. Under section 3 (f) of S. 2084, a land transfer includes any event or events that resulted in a change of possession or control of land or natural resources.
My non-Indian farmer's illegal removal of reservation boundary markers is an event that resulted in a change of possession, so under the pending bill, the thief wins and the innocent victim loses, just because one is white and the other is Indian.
Furthermore, to add injury to insult, section 6(b) of the bill would bar the tribe from any recovery for its losses because the event which caused it was not subject to the 1790 Trade and Intercourse Act.
I cannot state positively that either of the examples I have mentioned in fact ever took place. I can state at this time that neither you, as members of this committee, nor anyone else, including the sponsors of S. 2084, can say positively that they did not. My point is that the proposed legislation decides every case in favor of the non-Indian interests and against every Indian tribe involved, regardless of the facts, regardless of the equities, regardless of the legal rights of the parties.
Speaking for the Seneca people, I do not think the United States Congress should adopt such a rule and I do not think the United States Constitution would allow it to stand.
Senator COHEN. Thank you very much, Mr. Snyder.
Chief Corbett Sundown?
Mr. SUNDOWN. Mr. Chairman, I will yield my position to Mr. Oren Lyons.
Senator COHEN. Thank you. Mr. Lyons?
STATEMENT OF OREN LYONS, ONONDAGA NATION, ON BEHALF OF CHIEF CORBETT SUNDOWN, SPOKESMAN, GRAND COUNCIL OF CHIEFS, SIX NATIONS IROQUOIS CONFEDERACY
Mr. LYONS. Mr. Chairman and Mr. Goldwater. I have been chosen this day to speak on behalf of the Haudenosaunee, who are the Six Nation Iroquois Confederacy.
My name is Joahquisoh, and we have here chiefs, representing the various nations of the Six Nations. We live in New York. Our nation's territories are there. We reside there at this time.
We are dealing directly and indirectly with the results of this bill. We have a prepared statement that we gave yesterday, but I think we will address some of the larger issues today, because as everyone has said, it is redundant. Again and again you hear the same thing. Senator COHEN. Without objection, the prepared testimony that you have presented will be made a part of the record of this hearing. Mr. LYONS. You mentioned today, and I heard from Mr. Goldwater. I think that there are treaties involved in the East, he said. And so we brought with us, to show you today, some of these treaties.
The first one is called the Guswenta, or the Two Row Wampum, first with the Dutch, and then with the English, and finally with George Washington. Peace and friendship forever, it says. In unity and in peace, in mutual consideration of one another forever. That is one; 1613 and up to this day we hold this belt.
This belt, 1784, Fort Stanwix, the first treaty that your country ever made was made with us, the Haudenosaunee. This is the belt, and this treaty is in your archives. It is clear and it is definite between the nations. This is a very important belt to your people and for ours because it makes the definitions of how we deal with one another. It follows very closely this belt.
You ask how the Intercourse Act came about. It came about because our lands were being encroached upon after these treaties and there was discussion as to, how can we stop this? George Washington came to our people, the first President of your country, came to our people,
and we had a lot of discussions with this man. And he made another belt, this belt, 1794, the Canandaigua Treaty. There are 13 colonies on it. There is George Washington on this side and there is the Haudenosaunee represented by those who sit right here today. This is a treaty belt made in good faith. This treaty resides in your archives, along with all the other international treaties. These are what we are talking about. These are the principles which are involved today by bringing about this type of bill.
You said you wanted to hear something different, but this is history. These treaties came about through the needs of both of our people, in the search for peace and friendship. This insures us peace and friendship forever, as long as the grass grows and the water flows, and the Sun rises in the east and sets in the west. As Chief Sundown has said, again and again, this is as long as the Earth survives.
We make these in good faith. We hold these in good faith. And we bring this to you today to remember, when you talk to your committee this afternoon, that there are principles involved, and we were appalled to hear the Justice Department and the Department of Interior talk about law that will circumvent principle.
We understand, in the last 12 years, in this administration, not this administration but in Washington, D.C., there has been a lot of activity which has been negative, and perhaps these bills are consistent with that. But we also very-I cannot say present; it is more than that our hearts were uplifted to hear the attitude of the chairmen of both of these committees because you challenged what they were saying. That is what we listen for. We hope, the people here, all of the people who understand, that these bills are ill-advised. They cause a lot of problems, and that the issues are there. There needs to be a negotiated settlemen. We have always said that. But not when terms are preset. Not when you have 2 years to craft a bill and give us 10 minutes to defend ourselves.
We hope that at a later time we can expound and develop this knowledge that you should know because there is a lot to these belts, and there is a lot to your very existence that relates to these belts.
So we hope that you take our words for your consideration and we speak for our people, the Haudenosaunee, the Six Nations of the Iroquois Confederacy.
Senator COHEN. Thank you very much. Your prepared statement and position paper will be entered into the record at this point. [The materital follows. Testimony resumes on p. 65.]
PREPARED STATEMENT OF THE HAUDENOSAUNEE (IROQUOIS CONFEDERACY), SUBMITTED BY OREN LYONS, ONONDAGA NATION
My name is Joahquisoh, I am a traditional chief of the Onondaga Nation, a member nation of the Haudenosaunee (the Iroquois Confederacy). With me today are other chiefs and representatives of our people and nations.
The reason we are here is because House Bill 5494 and Senate Bill 2084, entitled "Ancient Indian Land Claim Settlement Act" is discriminatory to Indian peoples and violates fundamental constitutional rights. The Justice Department has advanced an opinion that these proposed bills are legal, however, that position can and will be challenged by us with strong support expected from many sectors of the American public.
The Indian people were never given an opportunity to see, or have input into the development of these bills. Instead, we are informed by Mr. Lee that he consulted with the Justice Department, the Administration, the Bureau of Indian Affairs and the Secretary of the Interior James Watt who represent our interests.
We were excluded by design or ignorance. In either case this is unacceptable to a just and fairminded governing body. We are here defending the interests of our people because these aforementioned departments are not.
Public Law 96-217 states: "claims on behalf of Indian nations for damages would be barred unless filed by December 31, 1982." Thus it can be understood that the seemingly sudden rush of Indian land claims were forced by this date set by Congress. It has been and is now the opinion of the Haudenosaunee that mutually agreed and equitably negotiated settlements would be the much wiser course of action.
The land transaction in question were illegal under the laws of the United States by their own admission, and, under the laws of the Haudenosaunee. The primary law violated by these transactions is the Non-Intercourse Act of 1790, which states simply, "that the federal government must be present at all land transactions between the various states and Indian nations, and all such transactions then be ratified by Congress, or they are illegal."
The laws of the Haudenosaunee state that no land transactions or sale is legal unless agreed upon by the full representation of the Haudenosaunee, further, that no single member state may sell the interests of the other member states, and, only the originally constituted government of the Haudenosaunee can bring such claims.
For the current Congress to ratify these fraudulent land takings at this time would be a horrendous blot on the honor of the United States.
The Indian claims to lands in the East are based upon state and private takings of our lands in violation of the Indian Non-Intercourse Act (25 USC 177), and upon aboriginal land title. The Non-Intercourse Act provides that any conveyance involving any interest in Indian property that is not approved by the federal government is invalid.
Shortly after the passage of the first Trade and Intercourse Act of 1790, President George Washington interpreted this law to the Seneca Nation as, "the security for the remainder of your lands . . . the General Government will never consent to your being defrauded, but it will protect you in all your just rights. . . in the future, you cannot be defrauded of your lands."
We have major treaty agreements with the United States. We have the first treaty made with the United States, the Ft. Stanwix Treaty of 1784.
The Canadiaqua Treaty of 1794 signed by George Washington of Peace and Friendship forever.
We also hold the oldest treaty between our two peoples, this most ancient and venerable treaty is called the Guswenta, or the Two Row Wampum. This treaty belt has been held by the Dutch, the English and finally the first president of the United States.
Chief Corbett Sundown will explain this areement that we still hold today and is jeopardized by these current bills in Congress.
POSITION PAPER OF THE HAUDENOSAUNEE GRAND COUNCIL OF CHIEFS REGARDING THE "ANCIENT INDIAN LAND CLAIMS SETTLEMENT ACT"
To: Representative Morris Udall, Chairman House Committee on Interior and
From: Grand Council of Chiefs of the Haudenosaunee (Iroquois Confederacy). Re HR-5494 "Ancient Indian Land Claims Settlement Act."
Date: June 22, 1982.
Chairman Udall, members of the Committee, members of Congress, representatives of the branches of the United States government, the Grand Council of Chiefs of the Haudenosaunee (Iroquois Confederacy) wish to extend to you a greetings on behalf of our people.
Also on behalf of all of our people; our ancestors, those who walk the Earth today, and especially our future generations, we wish for who will read this to understand clearly our feelings and positions regarding this legislation before you.
The Haudenosaunee, or Iroquois Confederacy, has existed on this land since the beginning of human memory. Our culture is among the most ancient continuously existing cultures in the world. We still remember the earliest doings of human beings. We remember the original instructions of the Creators of Life on this place we call Etenoha-Mother Earth. We are the spiritual guardians of this place. We are the Ongwhewhowhe-the Real People.