treaty" bands being located by our
Government either on the Colville
Reservation in Washington or the
Lapwai Reservation in Idaho generally
after the Nez Perce were finally
relocated from the Indian Territory.
$4 (a), (b), and (c), page 6, line 19 through page 8, line 5:
I generally object to language in any such
bill by which Congress would approve,
validate, and ratify any transfer which
would also have been made by any amendatory
treaty which was not in fact approved by all
the "chiefs, headsmen, and delegates" of a
tribe or the equivalent of such representatives
of tribes other than the Nez Perce. If all
such representative's names were not on the
treaty document itself at the time of signing
by a substantial number of said tribal
representatives, the signatures of the
remaining tribal representatives should at
least have been secured in a manner substantially
similar to the articles of convention of the Crow
Tribe of Indians in 1873 before obtaining
the necessary ratification or approval of
the Senate, for example.
(a) I would respectfully dissent from
the conclusion of the Court of Claims in
Joseph's Band of the Nez Perce Tribe v.
United States, 95 Ct. Cls. 11, 21 (1941)
wherein the Court of Claims concluded that
the dissenting minority (i.e. non-treaty
Indians) was bound by that [amendatory]
treaty. A detailed analysis of such
position will be set forth in the pending
article together with the relationship
of the findings to a subsequent Indian
Claims Commission Opinion in 1971
reported at 25 Ind. Cl. Comm. 99 (Docket
No. 186). The relationship of an April
10, 1861 "Articles of Agreement" in
connection with mining purposes will also
be considered in the Nez Perce article
and I would inquire as to whether such an
agreement would be within the contemplation
of the definition under $3(c).
$5 (c) (1), page 9, line 15; §6 (a), page 12, line 3,
et. seg.:
I object to the ambiguity or lack of
definition connected with the use of
"claim" or "credible claim".
(a) The term "claim" is not defined
under $3 and I note that Section 2
of the Indian Claims Commission Act
is more descriptive of several types
of claims, i.e. arising from one
reason or another as enumerated.
(b) Yet, even under the Indian Claims
Commission Act and notwithstanding the
assurance in President Harry S. Truman's
pronouncement with his signing the
Bill on August 13, 1946, the Indians
Claims Commission later distinguished a
"grievance" or "complaint" from a claim
which it felt could have been contemplated
by Congress in considering the effects of
history on Joseph's Band. [Supra], 25
Ind. Cl. Comm. 99, at 104.
(c) The public interest type of question, which I suppose ought to be raised, would Congress, in a similar type of Bill, consider a claim, grievance, or complaint of a nature which it had not previously contemplated prior to the passage of the Bill creating the Indian Claims Commission and relief was accordingly denied or was inadequate where prior jurisdictional acts:
(i) did not empower the Court of Claims to hear claims arising out of Executive Orders,
(ii) did not empower the Court of Claims to hear claims arising out of Articles of Agreement between representatives of an Indian tribe and officials of the United States relating to mining purposes, supra, similar to the Nez Perce Articles of Agreement executed in accordance with authority stated in a prior treaty. H. R. Ex. Doc. No. 1,
12 volumes: [Vol. II, Serial No. 1157,
pp. 571, 574, 575], 37th Cong. 3rd Sess., and
(iii) where such an agreement was not expressly superseded by a subsequent amendatory treaty,
(iv) where a subsequent amendatory treaty was not signed by all principal chiefs, etc. who were still leaders of bands making up a recognized tribe and who had previously affixed their name or made an appropriate "X" mark to an original treaty?
(d) If Congress did not wish to foreclose consideration of such a claim, then it would appear that:
(i) the limitation, under $6 (a)
at page 11 (lines 20 through 22) would unduly restrict an opportunity to provide effective relief before the Court of Claims.
(ii) Because of the language that determinations [by the Secretary of the Interior or his designate] shall not be subject to judicial review by any court under $5 (c) (1), at page 9, lines 17, 18, may possibly unduly restrict the consideration of grounds for relief by the Court of Claims under $6. In such connection, is it intended that a subsequent filing with the Court of Claims be heard de novo?
(e) The reasons for precluding judicial
review of the Secretary's determinations
are not evident and I request further
information concerning the same.
S's 5 and 6, pages 8 through 15:
I object to the omission of language which
would clearly authorize a Court to fully
consider the matter of good faith being
accorded to Indian tribes, etc., including
the process of reviewing treaties, etc.
in order to more fully assure that Courts
would not likely be inclined to defer to
Congress in such regard insofar as that
matter is concerned. As will be discussed
in the pending article, the executive
deliberations by the Senate insofar as
the review of the amendatory treaty of 1863
is concerned under the circumstances would
appear to justify such a provision. The
basic fact that the Nez Perce wound up
with only approximately six percent (6%)
or slightly less than six percent of the
original aboriginal area in lieu of approximately
fifty-three (53%) by virtue of the 1863
amendatory treaty after the 1855 treaty
would appear to justify a more though
judicial inquiry if Congress is willing to
consider claims of other tribes under cir-
cumstances which may be less extenuating.
Enclosed please find a number of copies which I hope will be sufficient for consideration by the cognizant committees of both the Senate and the House. Additional information previously requested would be appreciated. I regret that the timing of the hearings and the limited amount of time for holding the record open has not permitted me to complete the article in order that the underlying basis of the foregoing comments is not available for consideration by Congress at this time. In the event further references are desired, I will endeavor to supply them for your consideration.
Very truly yours,
John H. Love
I am writing to express the concern of Mennonite Central Committee
U. S. about the "Ancient Indian Land Claims Settlement Act" (S. 2084).
Mennonite Central Committee is an international service agency of the
Mennonite and Brethren in Christ churches of North America which has
a history of involvement with Native Americans both in the United
States and Canada.
The "Ancient Indian Land Claims Settlement Act" is an unfair at-
tempt to remedy conflicts over Indian land claims at the sole expense
of the Indian tribes. It would declare legal the wrongful taking of
Indian lands, and circumvent both the judicial process and negotia-
tion as potential means for resolving the disputes.
The Indian tribes which would be directly affected by this legisla-
tion are strongly opposed to it. For many years they have sought to
assert their legitimate rights to land. Now, as their grievances
are finally being taken seriously, this attempt is made to undercut
them and deny them their rights. To suggest that a token monetary
payment is a just means for settling their claims is to completely
disregard the importance of the land to Native American peoples, ig-
noring its social, cultural, economic, and religious significance
to them.
We hope you will reject what we feel to be a wholly unacceptable ap-
proach to Indian land claims, and seek instead to encourage and sup-
port just and equitable means for settling these conflicts.
P.S. We would appreciate your inclusion of this letter in the hear-
ing record for S. 2084.
MCC
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