Senator COHEN. Please proceed, Congressman Lee.

STATEMENT OF GARY A. LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. LEE. Thank you, Mr. Chairman.

First, sir, I would like unanimous consent to hand up for the record a statement by a State legislator, Assemblyman Steve Riford, who cannot be here this morning, and with your consent, I would like to submit that.

Senator COHEN. Without objection, it will be made a part of the record.

Mr. LEE. Thank you, Mr. Chairman.

Mr. Chairman, I next would like to thank you for the courtesy and the privilege, in conducting this hearing, for permitting me the opportunity for Members in the States of New York and South Carolina to appear before the committee and to give their opinions and to compliment you on the leadership that you have demonstrated over the years that you have been in the House of Representatives and the U.S. Senate.

Mr. Chairman, thank you for allowing me this opportunity to come before you to urge your favorable consideration of this vitally important subject. I applaud your decision to conduct hearings on this legislation and your willingness to examine our concepts for solving what is a vastly complex problem. I welcome the chance to work with you to further perfect this bill, if it be necessary.

Let me first assure you that a great deal of time, study, and effort by my office and offices of my U.S. Senate colleagues, Mr. D'Amato and Mr. Thurmond, have gone into this bill. We recognize that the problem to which we are directing our attention is centuries old. The basic concept for this approach was designed 7 years ago and the refinements are now more current.

In this last year, we have devoted great efforts to assuring that the legislation we created provide a fair, just, and constitutionally sound, and above all, permanent, solution to ancient Indian land claims. This bill, S. 2084, deals explicitly with claims in the States of New York and South Carolina, though its foundational principle, fairness, is worth application virtually everywhere the problem exists.

I have been involved in this problem for more than 7 years as have many of my colleagues. Each of us desires to reach a lasting settlement which protects our innocent homeowners from any loss of land and satisfies our Native American population.

I am sure the members of the committee are aware of the problem at hand. Millions of acres of land, hundreds of thousands of property owners, and literally hundreds of communities in over six States are adversely impacted by these Indian land claims. We must act now to adopt the legislation before this committee in order to permanently resolve these claims, protect all property owners, and create fair financial awards to any Indian tribe that can prove it was not dealt with fairly in this Nation's formative years.

For the time I have before you this morning, Mr. Chairman, I would like to address some important facets of the ThurmondD'Amato-Lee bill.

First, I am sure the Indian representatives will emphasize today that our bill does not allow Indians to sue for the return of their ancient tribal lands. This is indeed the case. However, Mr. Chairman and members of the committee, you must recognize that Indians in the Eastern United States are suing for vast land areas, which are totally developed in many instances, and totally inhabited by American taxpayers who bought their land in good faith, in most cases totally and agreeably vacated by the Indian tribes centuries ago. 1 must emphasize, the bill does not affect any land now in the possession of Indian tribes. It deals only with claims for repossession of land or property transferred by Indian tribes to non-Indians generations ago.

Second, Mr. Chairman, the landowners and communities that are being forced to bear the burden of these claims are completely innocent of any wrongdoing. These claims are based on the contention that in the 18th and 19th centuries the Federal Government failed to discharge its duty under the Nonintercourse Act of 1790; that is, to supervise the Indian tribal transfers of land to insure that the terms of the transfers were fair to the Indian tribes.

An attempt to remedy any injustice suffered by these tribes through a court-ordered ouster of current landowners and communities and the imposition of multibillion-dollar judgments on innocent parties would constitute a massive injustice totally disproportionate to that allegedly suffered by the tribes.

Third, Mr. Chairman, the bill is completely consistent with the Constitution of the United States and Federal law, and explicitly fulfills the obligation of the United States under the Nonintercourse Act to approve Indian land transfers and to insure that the terms of the transfers were fair.

This bill provides a procedure for awarding appropriate compensation to tribes that did not receive fair value for the land they transferred, including a provision for interest to be computed from the date of the transfer to the present day.

Fourth, Mr. Chairman, the bill is procedurally fair. Indian tribes are given an opportunity to obtain reasonable compensation from the Federal Government, including the right to bring an action in the Court of Claims, reviewable in the Supreme Court of the United States, to recover the appropriate measures of damages under the Nonintercourse Act of 1790.

I should emphasize here that the procedure is, in large part, patterned after those procedures used during the Indian Claims Commission in the 1940's and 1950's in reviewing tribunal disputes.

I would also like to highlight section 5 of the proposed legislation, which establishes a structured and orderly procedure for Indian tribes to address their claims. This section, Mr. Chairman, provides the tribes with an administrative remedy as well as a judicial remedy, and provides detailed guidelines for the consistent rather than piecemeal resolution of these claims.

Fifth, Mr. Chairman, the result produced by the bill is fair. Innocent landowners and communities should not be held responsible for any failure by the Federal Government during the past two centuries to fulfill its responsibilities to these eastern Indian tribes.

The bill will not result in multibillion-dollar liability on the part of the United States, since the bill explicity provides that it will have no effect with respect to any tribe for which the compensation provided by the bill does not satisfy the constitutional minimum standard of compensation.

While the Indian claimants would like to obtain billions of dollars based on the present fair market value of the land claimed, that value is derived from over a century of investment and improvements made in good faith by non-Indian landowners. It would be a completely unjustified windfall of unthinkable proportions for Indian tribes to receive such an amount as compensation for land transfers made centuries ago.

Sixth, Mr. Chairman, this bill does not unfairly discriminate against Indians. The bill, of necessity, applies only to claims of Indian tribes, because no other group is governed by the Nonintercourse Act and the other provisions of Federal law that are uniquely applicable to Indians. Indeed, such claims could not be brought by any other group of citizens because the doctrines of statutes of limitation, adverse possession and laches would bar the recovery of land based on such ancient claims.

Seventh, Mr. Chairman, the bill provides a just and honorable resolution of an admittedly difficult problem by providing reasonable compensation to Indian tribes, while relieving innocent landowners and communities of a burden they should not be required to bear.

In summary, Mr. Chairman, we believe most sincerely that this bill recognizes the continued needs for stability in our communities. It recognizes essential rights of personal property and it provides a fair and equitable means of resolving questions of fairness which have been brought to light only in the past few days, through the contracts of conveyance that have stood for generations. Maybe it is inevitable in today's "take it to court" atmosphere that even ancient matters will come back to haunt us. Inevitability, however, is not cause enough for hasty action. Early or late, fairness, Mr. Chairman, must be a foundation for any remedy we offer.

I thank you, Mr. Chairman.

Senator COHEN. Thank you very much, Congressman Lee. Without objection, the full text of Assemblyman Riford's remarks will be included as a part of this record.

[The statement follows:]

PREPARED STATEMENT OF STEVE RIFORD, ASSEMBLYMAN, STATE OF NEW YORK

It is not my purpose today to take the Committee's time in a lengthy statement of the history leading up to the Indian Claims addressed by H.R. 5484 and S. 2084. My concerns are of today and the thousands of property owners in New York State affected by these Indian Claims.

The basis for these claims as they affect Cayuga County where I reside, is that the Federal Government failed to explicitly approve a treaty between the State of New York and the Cayugas. That treaty, signed in 1795, concerned about 100 square miles of land. The State paid $2,125 and an annuity of $1,800.

Now $2,000 plus dollars and an $1,800 annuity doesn't sound like much today, but, when one remembers that Jefferson bought the entire Louisiana Purchase for $3 million, one can only wish that Jefferson had negotiated for the State of New York.

The point is that, in 1795, it appears that both sides were operating in good faith. The descendants of the original settlers of that now disputed land have

lived under the shelter of that good faith for almost two centuries. They had no reason to doubt that the United States considered the land theirs. If they sold the land at a profit, the United States collected taxes on those profits. When a landowner died, his heirs paid federal inheritance taxes to the Federal Government. When the Federal Government returned tax money to the state under one federal program or the other, the residents of Cayuga County and the lands under litigation received their share.

Now, after almost two centuries of silence, voices are heard claiming that these lands do not belong to those families who have lived on them, paid taxes on them and died on them. While I do not for one minute believe that this is so, I believe that it would not benefit my 10,000 constituents and their families to spend 20 years proving the matter in the courts.

The people living in Cayuga County and in other areas of New York State and South Carolina are affected today. Their properties are under a cloud. Today, at best, the value of that property is diminished. At worst, it can not be sold at all. The bill which you are considering today provides an equitable solution. Without going into the detail of it which I am sure you know, I will only mention the following:

It validates the treaties under question and removes the cloud on the titles to private and public property.

At the same time, it provides a mechanism to determine and settle valid Indian Claims.

It limits settlements to money and not land and

It asks the Federal Government, which claimed the authority in 1790, to exercise that authority and responsibility now.

I strongly commend this bill to you. In twelve years as a legislator, I have learned that a good bill must do several things. It must reflect and be based on reality and the reality is that the residents of these affected lands have owned them in good faith for generations. It must be as just as possible and I believe that the way it deals with valid claims is just. It must be based on common sense as this bill is. I urge your approval and support of it.

Senator COHEN. Tell me, what has been the status of the negotiations that have been carried on for the past several years between the people who are affected in New York and the Tribes?

Mr. LEE. Senator, under my predecessor's administration, Congressman Walsh, there were some efforts made, by some Representatives of the State of New York, some members of the Department of the Interior, by a lawyer representing the Cayuga Indian Tribe, in this particular case. They were unofficial deliberations. The Members of the House were not officially included, nor were the Members of the U.S. Senate officially included in those deliberations. There was an explicit effort, in judgment, after those deliberations to hastily introduce a bill in the House of Representatives that would railroad it through the Interior Committee, much to my objection.

There were a number of amendments that we advanced to perfect some of the deficiencies in that proposal. Just let me cite one of the fatal defects in that proposal. It was advocating a violation of New York State law because the proposed remedy at that point included State parkland. The constitution of the State of New York explicitly requires that when there is a conveyance of public parklands, to any group, it explicitly requires the approval of the New York State Legislature.

No such effort was made to include the State legislature. There was an article 78 proceeding already underway so it was clear that it was not going to lead to a permanent solution and that is, of course, what we seek in the legislation that Senator Thurmond, Senator D'Amato, and I advance for your consideration.

Senator COHEN. How much land is involved in these claims?

Mr. LEE. It is estimated there are 64,000 acres in the Cayuga claim. When you talk about the whole State of New York, you are talking upward of 9 million acres. The State of South Carolina, I can't give you the explicit figure, but it is considerable.

Senator COHEN. How much of the land under question is currently occupied ?

Mr. LEE. Occupied by citizenry?

Senator COHEN. Yes.

Mr. LEE. Practically all of it. And I should point out to you, Senator, that in the complaint letter that was originally filed by the Indian attorney in the Cayuga case, to the attorney general of the State of New York, the Cayuga Tribe explicitly indicated they would seek ejectment and repossession of land and property.

Senator COHEN. In the bill, you provide for an administrative route as well. Why do you do that?

Mr. LEE. I think, Mr. Chairman, that in our design in working with the Interior Department, which we work closely with, with Justice, with OMB, with Senator Thurmond, Senator D'Amato, and my staff, that we wanted to come down heavily on the side of due process to insure that on one side of the equation the tribes would have ample opportunity to either explore an administrative remedy and/or a judicial remedy, so that due process would be very, very prevalent, and hopefully extremely fair in the pursuit of a cash settlement only.

Senator COHEN. Do you not think the Interior Department or the Secretary of the Interior has a conflict of interest?

Mr. LEE. I do not think so, Mr. Chairman, because, as you know, under the administrative procedure of this Government, the Department of Interior has the Bureau of Indian Affairs within its jurisdiction, therefore we assume that the Department of Interior was representing the BIA in our deliberations, so I do not think it would be a conflict of interest to have them participate.

Senator COHEN. Do you not think that there could be a charge that the Secretary of the Interior failed to carry out his trust responsibilities, in failing over the years not this particular Secretary of Interior-but over the years, in failing to enforce the Nonintercourse Act, and now that 200 years later he is going to be called upon to evaluate the land that he perhaps should have been reviewing in his trust capacity?

Mr. LEE. There is a possibility of that charge, conceivably, but we do not agree with that assessment. I think that the trust relationship is there. I have confidence in any Secretary of Interior that he or she would fulfill that responsibility. And if the tribe does not want to pursue that particularly course, they can take it to the U.S. Court of Claims which is appealable to the Supreme Court of the United States. So they have the judicial remedy available as well as administrative. Senator COHEN. If they go the administrative route, is there a review of the findings of fact of the Secretary of Interior?

Mr. LEE. There is not a review process or appealable basis. The Secretary of Interior would be the person to make that determination. Senator COHEN. So as a practical matter, is it not fair to say that any tribe electing to proceed under your bill, in all likelihood would not proceed with the Secretary of Interior where they would have no