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to sacrifice their vested interests in their lost property by accepting

a legislative resolution in which they had no part. Instead, if necessary, they will continue to prove their claims in court, no matter what the

expense.

II. Disregard of the Trust Relationship

The federal government has a unique trust obligation to Indian people. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1830). Even though Congress has at times asserted some sort of "plenary power" over Indian people to dispose of Indian property, Congress has a moral and a trust commitment to deal "fairly and honorably" with Indian tribes. Any Indian legislation must be rationally related to the fullfillment of these commitments. See, Morton v. Mancari, 417 U.S. 535, 555 (1974); Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977). This bill is not in keeping with this trust responsibility.

Unless Congress has provided otherwise, the federal trust obligation is limited by common law trust principles. United States v. Mason, 412 U.S. 391, 398 (1973). Under general principles of trust law, a trustee stands in a fiduciary relation to the beneficiary of the trust, requiring the trustee to act solely in the best interests of the beneficiary. 5 A. Scott, Law of Trusts (3d Ed. 1967); Restatement (Second) of Trusts 170 (1959). This relationship requires complete loyalty to the interest of the beneficiary and must exclude all selfish interest and all consideration of the interests of third persons. T. Bogert, Law of Trusts 543 (1978). This standard assumes that Congress will act consistently with its trust obligations. Retroactive extinguishment of Eastern land claims without consultation with the tribes and without "just" compensation cannot be justified as keeping within these trust standards.

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III. Abuse of Congressional Plenary Power

The power of Congres to legislate over Indians arises in part out of the unique relationship between the federal government and the Indian tribes as quasi-sovereign entities. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). However, this plenary power should not be used to infringe upon Indians' constitutional rights as American citizens.

With retroactive legislation "preenactment conduct (is given) a different legal effect from that which it would have had without the passage of the statute."2/ Under section 2(b) (2) of this bill, all prior conveyances

of land by the Tribe, which might otherwise be in violation of the Nonintercourse Act, are ratified effective as of the date of such transfers. Through such retroactive ratification, any aboriginal or recognized title to lands and all derivative claims, e.g. trespass, mesne profits, arising therefrom would be extinguished effective as of the date of the transfer, section 4(c). Extinguishment of Indian title in this involuntary fashion would be a violation of the fifth amendment due process clause and a "taking" under the just compensation clause.

Liberty and property cannot be impaired by legislative discretion

except for public purposes or achievement of a legitimate social goal.

Hamilton v. Kentucky Distilleries and Warehouse Co., 251 U.S. 146, 161-63 (1919).

A "taking" of private property by the federal government would require

present fair market value compensation.

Under this bill Indian title to land is not being transfered for a public purpose. Instead, Indian title is being transfered to private property owners or the States. By retroactively ratifying the original transfer of land title this bill denies present fair market value for the taken land

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and compensation for allerivative rights arising therefrom. The doctrine of fairness would require that this type of legislation provide present fair market value as "just" compensation as required by the fifth amendment, instead of the proposed monetary compensation based on the value of the land at the time of the original transfer. There should be no distinction made between compensation for substantiated aboriginal title and recognized title. Even though the judiciary has established that the Indian right of occupancy created by aboriginal title is not a vested property right protected by the fifth amendment (See Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955)), this judicial decision contradicts past congressional

plicy of compensating tribes for extinguishment of their aboriginal title.3/ Futhermore, the derivative claims of trespass and mesne profits should not be denied. The federal government can provide a remedy for derivative claims in order "to effectuate the U.S. policy of protecting Indian Occupancy against third party intrusion." United States v. Atlantic Richfield Co., 435 F. Supp. 1009, 1030 (D. Alaska 1977), aff'd 612 F. 2d 1132 (9th Cir. 1980). It is unfair to deny compensation for these claims through legislation when they would be justiciable as vested property rights protected by the fifth amendment if they were litigated. Edwardson v. Morton, 369 F. Supp. 1359, 1378-79 (D.D.C. 1973).

The federal government views present fair market value compensation for Indian lands and derivative claims as prohibitive. Instead they support this bills compensation based on the value of the land as of the date of the original transfer. By denying Indian governments present fair market value for their land and compensation for derivative claims, this bill is automatically suspect for racial discrimination. Equal protection of the law is relevant in judging federal acts. Bolling v. Sharpe, 347 U.S. 497 (1954). Since the Indian land was not taken by the federal government for a public purpose but instead resulted as a breach of federal trust responsibility, it is doubtful that such a racially discriminatory and involuntarily imposed bill as S. 2084/H. R. 5497 could be upheld as being a constitutional and legitimate social goal.

3/Robert Clinton and Margaret Hotopp, "Judicial Enforcement of the Federal Restraints on Alientation of Indian Land: the Origins of the Eastern Land Claims," 31 Maine Law Rev. 80 (1979).

Quinault Indian Nation

POST OFFICE BOX 189 O TAHOLAH, WASHINGTON 1887 O TELEPHONE (205) 276-8211

RECEIVED JUL 1 5 1082

July 14, 1982

Honorable William S. Cohen

Chairman

Senate Select Committee on Indian Affairs

Room 6317

Dirksen Senate Office Building

Washington, D.C. 20510

Dear Senator Cohen:

On behalf of the Quinault Indian Nation, I submit this written letter
testimony in adamant opposition to S.2084/H.R.5494, the Ancient Indian
Land Claims legislation. These bills attempt to remove Tribal rights
to file suit to secure land and monetary compensation for violation of
established treaties.

Although the Department of Interior Solicitor testified that negotiations
were preferable solutions to these Indian claims, the administration supports
this legislative solution. And the Justice Department, in a fascinating
shell game of legal logic, supports the legislation as constitutional. In
truth, the bills are blatant violations of the Fifth Amendment representing
political solutions to clearly legal problems. Once again we are faced
with the politically elite presenting legislation to strip the politically
and economically vulnerable tribes of their right to land compensation.
Understandably, neither Indian representatives in the Federal government
nor affected Tribal officials were consulted in the drafting of this legis-
lation. Undoubtedly, the co-sponsors are seeking the lucrative political
limelight in introducing these bills with established law and justice system
relegated to the shadows of future interpretation.

I urge you and your committee to reject the Ancient Indian Land Claims
legislation.

PREPARED STATEMENT OF THE SENECA COUNTY CHAMBER OF
COMMERCE, SUBMITTED BY RICHARD J. COMPO, PRESIDENT

The Board of Directors of the Seneca County Chamber of Commerce have AND S.2084 gone on record in support of the D'AMATU LEE Bill, H.K. 5494, as the most sensible and realistic means in which to handle the existing and possible future Indian Land Claims.

The residents of Seneca County have been placed on the horns of a dilemna, through no fault of their own. It seems utterly ridiculous and preposterous to us, that the Federal Government not only condones the claims by the Cayuga Indian Nation, but supports their efforts for a so-called "negotiated settlement" with all the financial and judicial power at their disposal, with complete disregard for the 35,083 residents of Seneca County, New York.

It might seem to be a mute point to some but we are still not convinced that the Cayuga Indians have a bona fide claim on the lands in our county. I would like to bring to the attention of the members of this august body, that we are living in contemporary America, the year 1982. How absurd that some of our Congressional representatives see fit to penalize innocent present day Americans for some minor executive oversight, claimed to have happened nearly 200 years ago. I don't believe any one of us could have witnessed the fact!

what ever happened to "home rule?" On what authority can the Federal Government foists their power on the residents of New York State, with complete disregard for the feelings and opinions of these people? Let me point out, that the 10,000 or so property owners in this so-called "reservation" area, all bought their properties in good faith assuming they were getting a clean title to their land. Where is the "home rule"