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RHODE ISLAND INDIAN CLAIMS SETTLEMENT ACT
1~
j~t~ 2/cf
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JOINT HEARING
BEFORE THE
UNITED STATES SENATE
SELECT COMMITTEE ON INDIAN AFFAIRS
AND THE
U.S. HOUSE OF REPRESENTATIVES
COMMITTEE ON
INTERIOR AND INSULAR AFFAIRS
SUBCOMMITTEE ON
INDIAN AFFAIRS AND PUBLIC LANDS
NINETY-FIFTH CONGRESS
SECOND SESSION
ON
S. 3153 and H.R. 12860
TO SETTLE INDIAN LAND CLAIMS WITHIN THE STATE
OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, AND
FOR OTHER PURPOSES
JUNE 20, 1978
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON: 1978
30-979
1) ~i
I It--
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UNITED STATES SENATE
SELECT COMMITTE~ ON INDIAN AFFAIRS
[Created by S. Res. 4, 95th Cong.]
JAMES ABOUREZK, South Dakota, Chairman
HOWARD METZENBATJM, Ohio DEWEY F. BARTLETT, Oklahoma
JOHN MELCHER, Montana MARK 0. HATFIELD, Oregon
ALAN R. PARKER, General Counsel
MICHAEL D. Cox, Minority Counsel
UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS
SUBCOMMITTEE ON INDIAN AFFAIRS AND PUBLIC L&NDS
TENO RONCALIO, Wyoming, Chairman
TED RISENHOOVER, Oklahoma JAMES P. (JIM) JOHNSON, Colorado
HAROLD RUNNELS, New Mexico DON H. CLAUSEN, California
LLOYD MEEDS, Washington DON YOUNG, Alaska
ANTONIO B. WON PAT, Guam RON MARLENEE, Montana
000DLOE E. BYRON, Maryland
JIM SANTINI, Nevada
JAMES WEAVER, Oregon
LAMAR GUDGER, North Carolina
JERRY HUCKABY, Louisiana
MORRIS K. UDALL, Arizona
FRANKLIN DUCHENEATJX, Special Counsel on Indian Affairs
MICHAEL D. JACKSON, Minority Counsel on Indian Affairs
GUNILLA L. FOSTER, Staff Assistant
(II)
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CONTENTS
BILLS
Page
S. 3153
Committee print 18
H.R. 12860
WITNESSES
Beard, Hon. Edward P., a U.S. Representative in Congress from Rhode
Island 89
Prepared statement 90
Benoit, Normand, attorney for the majority of the defendants 98
Brody, William G., special assistant attorney general, State of Rhode
Island and Providence Plantations 59
Prepared statement 60
Chafee, Hon. John, a U.S. Senator from Rhode Island 55
Diluglio, Thomas L., Lieutenant Governor of Rhode Island 56
Dove, Ferris, councilman, Narragansett Tribe 112
Godden, Glen, private defendant 105
Jackson, James A., attorney for the majority of the defendants 98
Prepared statement 101
Jankel, Eric R., executive assistant to the Governor of Rhode Island____ 56
Krulitz, Leo M., Solicitor of the Department of the Interior 118
Manning, Hon. Edward P., speaker, Rhode Island General Assembly~~-- 58
McLean, Robert, president, Town Council of Charlestown, Rhode Island~ 92
Prepared material
Pell, Hon. Claiborne, a U.S. Senator from Rhode Island 54
Quinn, Donald, attorney for certain defendants 106
Prepared statement 108
Thomas, Ella, tribal secretary, Narragansett Tribe 112
Thomas, Eric, tribal secretary, Narragansett Tribe 112
Tureen, Thomas, tribal attorney, Narragansett Tribe 112
Vollmann, Tim, special assistant to the Solicitor of the Department of the
Interior 118
MATERIAL SUBMITTED
Joint memorandum of understanding concerning settlement of the Rhode
Island Indian land claims 65
Certification of filing with the secretary of state of Rhode Isiand_ - -- 77
(III)
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lU-lODE ISLAND INDIAN CLAIMS SETTLEMENT ACT
TUESDAY, JUNE 20, 1978
U.S. SENATE, SELECT COMMITTEE ON INDIAN AFFAIRS,
AND U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON
INTERIOR AND INSULAR AFFAIRS, SUBCOMMITTEE ON
INDIAN AFFAIRS AND PUBLIC LANDS,
Washington, D.C.
The committee and subcommittee met, pursuant to notice, at 10:05
a.m., in room 6226, Dirksen Senate Office Building, Hon. James
Abourezk (chairman of the Senate Select C ommittee on Indian
Affairs) presiding.
Present: Senator Abourezk and Representative Roncalio.
Staff present: Alan Parker, chief counsel; John Saxon and Barbara
Berger, staff attorneys of the Senate Select Committee on Indian
Affairs; and Franklin Ducheneaux, special counsel, House Interior
Subcommittee on Indian Affairs and Public Lands.
Senator ABOUREZK. The hearing will come to order.
The purpose of the hearing this morning before the Senate Select
Committee on Indian Affairs and the House Subcommittee on Indian
Affairs and Public Lands is to take testimony on S. 3153 and H.R.
12860, to settle the Indian land claims in Rhode Island. This legisla-
tion would implement the negotiated settlement agreement of the
Narragansett Indian Tribe's land claim in Rhode Island. Those
entering into the settlement agreement include representatives from
the State of Rhode Island, the town of Charlestown, and the parties
to the lawsuits.
In January of 1975, the Narragansett Indian Tribe filed two law-
suits in the U.S. District Court for the District of Rhode Island seek-
ing possession of a~pproximately 3,200 acres of public and private land
in Charlestown, R.I. The plaintiff tribe alleges that it owned and
occupied these lands as part of its aboriginal territory and reservation
and that subsequent to 1790 these lands were alienated under the aus-
pices of the State of Rhode Island and in violation of the Federal
Indian Nonintercourse Act of 1790.
The pendency of these lawsuits-now consolidated into a single
action-has resulted in severe economic hardship for the residents of
Charlestown by clouding titles to most of the land in the town,
including lands not subject to the lawsuit. In recognititon of this hard-
ship, the Senate committee and the House subcommittee are con-
ducting this joint hearing so that this matter can proceed as expedi-
tiously as possible.
(1)
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2
The significance of this bill and of this hearing is that this is the first
opportunity of the Congress to consider legislation which would im-
plement a negotiated settlement of an eastern Indian land claim based
on the Federal Indian Nonintercourse Act. As chairman of the Select
Committee, I feel quite strongly that any legislative solution to these
claims should be directed at a workable resolution which is fair and
just for all parties. For the Congress to attempt anything short of
this would be less than responsible. I commend all of you who have
participated in this settlement for the dedication and hard work you
have shown in an attempt to reach a settlement which is mutually
acceptable.
This hearing has been set to provide an opportunity for all con-
cerned parties to express their views on these matters and as an aid
to this committee and subcommittee in the performance of our task.
First of all, I would like to welcome my colleagues from the Senate,
the Honorable Claiborne Pell and the Honorable John Chafee, and
Congressman Beard from Rhode Island. Is Congressman Beard here?
[No response.]
Senator ABOUREZK. I wonder if my two colleagues from the
Senate would like to come up together to the witness table.
Congressman Roncalio is cochairing the hearings. He will be here late.
I now place in the record copies of S. 3153, a committee print on
5. 3153, and H.R. 12860.
[The material referred to follows:]
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9STH CONGRESS
2D SESSION . 3 1 53
IN THE SENATE O~' THE UNITED STATES
M~&~ 25 (legislative day, MAY 17), 1978
Mr. PELL (for himself and Mr. CIIAFEE) introduced the following bill; whi~
was read twice and referred to the Select Committee on Indian Affairs
A BILL
To settle Indian land claims within the State of Rhode Island:
and Providence Plantations, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Rhode Island Indian
4 Claims Settlement Act".
5 CONGRESSIONAL FINDINGS AND DECLARATION OF POLICY
6 SEc. 2. Congress finds and declares that-
7 (1) there are pending before the United States
- 8 District Court for the District of Rhode Island two con-
9 solidated actions, entitled "Narragansett Tribe of Indians;
10 v. Southern Rhode Island Land Development Co., et al.
CA: No. 75-0006 (D.R.L) and Narragansett Tribe of
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2
1 Indians v. Rhode Island Director of Environmental Man-
2 agement C.A. No. 75-0005 (D.R.I.") that involve In-
dian claims to certain public ai~d private lands within
4 the town of Charlestown, Rhode Island;
(2) the pendency of these lawsuits has resulted in
6 severe economic hardships for the residents of the town
of Charlestown by clouding the titles to much of the land
8 in the town, including lands not involved in the lawsuits;
9 (3) the Congress shares with the State of Rhode
10 Island and the parties to the lawsuits a desire to remove
ii all clouds on titles resulting from such Indian land claims
12 within the State of Rhode Island; and
13 (4) the parties to the lawsuits and others interested
14 in the settlement of Indian land claims within the State
15 of Rhode Island have executed a Settlement Agreement
16 that requires certain implementing legislation to be en-
17 acted by Congress and the State of Rhode Island as a
IS condition to its effectiveness.
19 DEFiNITIONS
20 SEC. 3. For the purposes of this Act, the term-
21 (a) "Fund" means the Rhode Island Indian Claims
22 Settlement Fund established under section 5 of this
23 Act;
24 (b) "Indian Corporation" means the Rhode Island
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3
1 nonbusiness corporation known as the Narragansett
2 Tribe of Indians;
3 (c) "lawsuits" means the actions entitled "Nar-
4 ragansett Tribe of Indians *v. Southern Rhode Island
5 Land Development Co., et al., C.A. No. 75-0006
6 (D.R.I.) and Narragansett Tribe of Indians v. Rhode
7 Island Director of Environmental Management, C.A.
8 No. 75-0005 (D.R.I.) ".
9 (d) "Option Agreements" means the agreements
10 entered into or to be entered into pursuant to section 3
11 of the Settlement Agreement between the Sta.te Corpo-
12 ration (or in the event the State Corporation has not yet
13 been created, with a designee of the Governor of Rhode
14 Island) and the defendants in the lawsuits under which
15 the State Corporation will have an option to purchase
16 the private settlement lands;
17 (e) "private settlement lands" means those lands
18 that are to be acquired by the State Corporation from
19 the private defendants in the lawsuits pursuant to sec-
20 tion 3 of the Settlement Agreement;
21 (f) "public settlement lands" means those lands that
22 are to be conveyed by the State of Rhode Island to the
23 State Corporation pursuant to section 2 of the Settlement
24 Agreement;
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4
1 (g) "Secretary" means the Secretary of the In-
2 tenor or his designee;
* (h) "Settlement Agreement" means the document
entitled "Joint Memorandum of Understanding Con-
cerning Settlement of the Rhode Island Indian Land
6 Claims" executed as of February 28, 1978, by represent-
olives of the State, of the town of Charlestown, and of
8 parties to the lawsuits;
9 (i) "settlement lands" mean's those lands defined in
10 subsections (e) and (f) of this section; and
U (i) "State Corporation" means the corporation
12 created or to be created by legislation enacted by the
13 State of Rhode Island pursuant to section 1 of the Settle-
14 ment Agreement for the purpose of acquiring and hold-
15 ing the settlement lands.
16 RATIFICATION OF PRIOR LAND AND WATER CONVEYANCES
17 AND EXTINGUISHMENT OF ABORIGINAL TITLE
18 SEC. 4~ `(`a) Any transfer of lands or waters located
19 within `the United States from, by or on behalf of the Indian
20 Corporation, or any other entity known a~s or claiming to
21 be the Narragansett Tribe of Indians, or any predecessor in
22 interest, member, or stockholder thereof, including but not
23 limited to a transfer pursuant to `any statute of any State,
24 was and shall be deemed to have been made in accordance
25 with the Constitution and all laws of the United States that
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1 are specificially applicable to transfers of lands `or waters
2 from, by or on behalf of any Indian, Indian nation or tribe
.3 of Indians (including but not limited to the Trade and Inter-
4 course Act of 1790 (Ch. 33, Sec. 4, 1 Stat. 138), and
5 all amendments thereto and all subsection versions thereof),
6 and Congress `does hereby approve and ratify `any such trans-
7 fer effective as of the date of the said transfer.
8 (b) To the extent' that any transfer of lands or waters
9 described in subsection (a) may involve lands or waters to
10 which the Indian Corporation, or any other entity known
11 as or claiming to be the Narragansett Tribe of Indians, or any
12 predecessor in interest, member, or stockholder thereof, had
13 aboriginal title, subsection (a) shall be regarded as an cx-
14 tinguishment of su~h aboriginal title `as of the date of said
15 transfer.
16
17
18
19
20
21
22
23
24
25
(c) By virtue of the approval and ratification of a trans-
fer of lands or waters effected by subsection (a) or an extin-
guishment of aboriginal title effected thereby, all claims
against the United States, any State or subdivision thereof,
or any `other person or entity, by the Indian Corporation, or
any other entity known as or claiming to be the Narragan-
sett Tribe of Indians, or any predecessor in interest, member
or stockholder thereof, including but not limited to claims
for trespass damages or claims for use or occupancy, arising
subsequent to the transfer and that are based upon `any in-
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~ terest in or right involving such lands or waters, shall be
2 regarded as extinguished as of the date of the t~a.nsfer.
.3 (d) (1) Any and all other claims involving or in any
4~ way relating to lands or waters within the State of Rhode
5 Island of any Indian, Indian nation, or tribe of Indians, aris-
*6 ing prior to the date of enactment of this Act under the Con-
7 stitution or laws of the United States that are specifically
8 applicable to transfers of lands or waters from, by or on
9 behalf of any Indian, Indian nation, or tribe of Indians (in-
10 cluding but not limited to the Trade and Intercourse Act of
11 1790 (Ch. 33, Sec. 4, 1 Stat. 138), and all amendments
12 thereto and all subsequent versions thereof), shall be barred
13 unless file in a court of competent jurisdiction within one
14 hundred eighty days of the date of enactment of this Act.
15 (2) Any Indian, Indian nation, `or tribe of Indians
16 asserting a claim involving or in any way relating to lands or
17 waters located within the limits of the town of Charlestown,
18 Rhode Island, shall be limited to asserting such claim cx-
19 clusively against the Indian Corporation, and such Indian,
20 Indian nation, or tribe `of Indians shall be barred from bring-
21 ing any suit involving such claim against any other person
22 or entity.
23 (e) As used in this section, the phrase "lands or waters"
24 shall include any interest in or right involving lands~ or wa-
25 ters, and the term "transfer" shall include but not be limited
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7
j to any sale, grant, lease, allotment, partition, conveyance, or
2 any transaction the purpose of which was to effect a sale,
3 grant, lease, allotment, partition or cOnveyance:, or any
4 event or events that resulted in a change in possession or
~ control of lands or waters.
6 ERODE ISLAND INDIAN CLAIMS SETTLEMENT PUND
7 SEC. 5. There Is hereby established in the United States
8 Treasury a fund to be known as the R.bdde Island Indian
9 Claims Settleip.ent Fund into which the following moneys
10 shall be deposited following the appropriation authorized by
11 section 15 of this Act:
12 (a) $3,500,000, which shall be distributed to the
13 State Corporation in accordance with the provisions .of
14 section 7 of this Act;
15 (b) $262,500, which shall be distributed to cer~
16 tam private defendants in the* lawsuits in accordance
17 with the provisions of section 6 of this Act; and
18 (c) $80,077.84, which shall be distributed pursuant
19 to the provisions of section 13 of this Act.
20 OPTION AGREEMENTS TO I'UROHASE PRIVATE SETTLEMENT
21 . . .`
22 SEC. 6. (a) Each private defendant in the lawsuits who
23 has entered or who subsequently entors into a. two~year Op-
24 tion shall, subject to the limitations of subsection (b), be paid
25 the State Corporation has not yet been . created, with a
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S
designee of the Governor of Ithode Island) to convey his
2 portion of the :private: settlement lands. to. the $tate Ourpora-
3 tion shall, subject to the limitation of subsection (b), be paid
4 an option fee from the Fund equal to 5 per centum of the
5 purchase price agreed upon in each Option Agreeinent:
6 Provided,V however, That the total option fees paid to all
7 such defendants shall not exceed $175,000.
8 (b) The payment of option fees~ authorized by subsec-
9 tion (a) shall be subject to the following conditions
10 (i) the option fees shall hot be paid from the Fund
11 until immediately prior to the expiration* of ninety day~
12 from the date of passage of this Act;
13 (ii) the option fee foreach Option Agreement shall
14 be applied to the agreed purchase price in each Option
V VAgré~ment if the la~d' transfer contethplated by each
16 Option Agreement is completed and the full purchase
17 price paid ~on or before the expiration of t~~o hundred
18 V V: ~evenV~y d~ays from . the date of' each res~ective Option
19 Agreement; V V V V
20. VVV ~V V V V VV (iii) the option fee for each Option Agieement
21 shall be retained by the pa.rty granting the option and
22 not ap~1ied tOVV~he purchase price if the land transfer co~
23 templated Vby each VOPti~ Agreement ~ iidt Cbthpletëd
24: and th~ fttilV:.p~frcha~é ~ paid ~ VO~ Vbefore: the Cxpir~-
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`9
tión of two hundred seventy days from the `date `of each
2 respective Option Agreement; and " .
.3 (iv) if, for `any re'aeon, the option fee called for by
4 `each respective Option Agreement is not paid as set
5 .. ;. foi'th in paragraph' (i),, above, the party granting the
`6 Option shall have the right, to terminate his obligations
`7 ` under the Option Agreement, and if `such right is' cxci'-
8' ` `cised, such Option `Agreement `shall thereafter be unen-
9 forceable against any party thereto.
10 ` (c) If the requirements set forth in section 8 of this
11 Act have not been satisfied at the expiration of the term
12. of any Option Agreement, the State Corporation may elect
13 to extend any such Option. Agreement `then in effect for an
14' additional period of one year. A nonrefundable extension fee
15 equal "to 2~ per Centtim of `the `agreed upon purchase `price
16 `shall'be paid from theFund tO'any' `defendant whose Option'
17 Agreement is eitended for: such additional period: Provided,.'
18 however, That such extension fee" shall not be applied toward
19 the purchase price and that the total extension fees paid to:
20 all defendants shall not exceed $87,500. ` i'
21" (d) To the extent that any portion of the $262,500'
22 authorized by section 5(b) of this Act for the payment of:
23 option and extension fees is not utthzed for the purposes set
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10
~ forth herein,, the excess shall he returned to the general
2 rfreasu~ of the United States. ,.
"3. . .. . SETTLEMENT LANDS''
4 ` Si~o. 7. Upon satisfaction of all of. the conditions set
5 forth in section 8 of this Act, the sum of $3,500,000 (minus
6 any: optioii fees paid and credited against the purchase price
7 pursuant to the provisions of sections 6 (b) (ii) and (iii) of
8 .the Act) shall be paid to the `State Corporation from the
9 Fund for the purchase by the State Corporation of the pri-
10' vate settlement iands `and for the reasonable costs of acquisi-
11 tion incurred by the State Corporation in connection with
12 the purchase of private settlement lands. If such private
13 settlement, lands are acquired for a total amount less than
14 $3,500,000, the State Corporation shall return any such re-
15' maining monies to the general Treasury of `the United States.
16 CONDITIONS PRECEDENT TO THE DISTRIBUTION OF
17 ` ` . CERTAIN FUNDS
18 `SEC., 8.' No moneys shall be distributed from the Fund
19 to the State Corporation pursuant to section 7 of this, Act
20 until the Secretary has determined-~ ,.
2 ` ` . (a) that~ the State ,,of `Rhode Island has enacted
22 " ` legislation in implementation of all of the obligations
23 , it has undertaken in the Settlement Agreement;
24 `(b) that the council of the town of Charlestown
25 ` and the State Corporation have accepted the land use
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11
1 plan contemplated by section 14 of the Settlement
2 Agreement; and
3 (c) that within sixty days of the date of enact-
4 ment of this Act, and in accordance with standards es-
5 tablished by the Secretary for this purpose, the plaintiff
6 in the `lawsuits has a credible claim to the lands subject
7 to the lawsuits, including a determination that the plain-
8 tiff has a credible claim to status as an "Indian nation
9 or tribe of Indians" within the meaning of the Indian
10 Nonintercourse Act (11.5. 2116) at all relevant periods
11 of time, including the present. In the event that the
12 Secretary determines that the plaintiff in the lawsuits
13 does not have a credible claim to the lands subject. to
14 the lawsuits, the determination of the Secretary shall be
15 sitbject to judicial review in the Federal District Court
16 . for the' State of Rhode Island or the District of Columbia
17 pursuant to section 702 of title 5, United `States Code.
18 The reviewing court shall set aside any such determina-
19 tion only if it is found to be arbitrary, capricious, an
20 abuse of discretion, or otherwise not in accordance with
21 law. If it is ultimately determined in a final, nonappeal-.
22 able order of a court of competent jurisdiction that the
23 plaintiff in the lawsuits does `have a credible claim to the
24' ` lands subject ~to the lawsuits, or if the Secretary shall
25 make such a determination after remand by the review-
30-979 0 - 78 - 2
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12
1 ing court, such order or determination shall have the
2 same effect as if the Secretary had initially made the de-
3 termination that the plaintiff in the lawsuits has a
4 credible claim to the lands subject to the lawsuits.
5 RESTRICTION ON ALIENATION
6 SEC. 9. No lands acquired by the State Corporation un-
7 der the Settlement Agreement may be sold, granted, leased,
s or otherwise conveyed, nor shall any such sale, grant, lease
9 or conveyance be of any validity in law or equity, unless the
10 same is approved by the Secretary or his designee and the
11 Governor of the State of Rhode Island: Provided, however,
12 That nothing in this Act shall affect or otherwise impair the
13 ability of the State Corporation to grant or otherwise convey
14 (including any involuntary conveyance by means of emi-
15 nent domain or condemnation proceedings) any easement
16 for public or private purposes pursuant to the laws of the
17 State of Rhode Island.
18 EXEMPTION PROM TAXATION
19 SEC. 10. Neither the settlement lands nor any moneys
20 received by the State Corporation from the Fund shall be
21 subject to any form of Federal, State, or local taxation:
22 Provided, however, That this exemption shall not apply to
23 any income-producing activities occurring on the settlement
24 lands: And provided further, That nothing in this Act shall
25 prevent the imposition of payments in lieu of taxes on the
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13
i State Corporation for services provided in connection with
2 the settlement lands.
3 DEFERRAL OF CAPITAL GAINS
4 SEC. 11. For purposes of subtitle A of the Internal
5 Revenue Code of 1954, sale or disposition of private settle-
6 ment lands disposed of pursuant to the terms and conditions of
7 the Settlement Agreement shall be treated as an involuntary
8 conversion as a result of condemnation `or the threat or im-
9 minence thereof to which Section 1033 of the Internal
10 Revenue Code of 1954 applies.
11 APPLICABILITY OF STATE LAW
12 SEc. 12. Except `as otherwise provided in this Act, the
13 settlement lands shall be subject to the complete civil and
14 criminal jurisdiction of the State of Rhode Island.
15 ATTORNEY AND CONSULTANT FEES
16 SEC. 13. A sum not in excess of $80,077.84 shall be
17 distributed from the Fund to those private defendants in the
18 lawsuits who have not executed Option Agreements with the
19 State Corporation as reimbursement for partial `out-of-pocket
20 expenses incurred. through April 21, 1978 and partial `at-
21 torneys' fees incurred in connection with the lawsuit.
22 FEDERAL BENEFITS PRESERVED
23 SEC 14. Nothing contained in this Act or any legislation
24 enacted by the State of Rhode Island pursuant to its obli-
25 gations under `the Settlement Agreement shall affect or other-
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14
1 wise impair in any adverse manner any benefits received by
2 the State under the Pitman-Robertson Act (1(3 TJ.S.C. 669-
3 669 (i)) and the Dingell-Johnson Act (16 U.S.C. 777-777
4 (k)).
5 AUTHORIZATION OF FUNDS
6 SEC. 15. There is hereby authorized to be appropriated
7 such sums as are necessary to carry out the purposes of this
8 Act.
9 SAVINGS CLAUSE
10 SEC. 16. To the extent that there may be any conflict
11 between any provision of this Act and any other applicable
12 Federal law or laws, the provisions of this Act shall govern.
13 STATUTE OF LIMITATIONS
14 SEC. 17. Notwithstanding any other provision of law-
15 (a) any action to contest the authority of the
16 United States to legislate on the subject matter of this
17 Act, or to contest the legality or constitutionality of this
18 Act or any provision thereof, shall be barred unless
19 the complaint is filed within one hundred eighty days of
20 the date of enactment of this Act; and
21 (b) any action over which the Court of Claims has
22 jurisdiction under the provisions of section 1505 of title
23 28, United States Code by any Indian, Indian nation, or
24 tribe of Indians affected by section 4 (d) (1) and (2)
25 of this Act shall be barred unless such action is filed in
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1 the Court of Claims within three years of the date of
2 enactment of this Act.
3 SEPARABILITY
4 SEc. 18. If any provision of this Act or the applicability
5 thereof is held invalid, the remaining provisions of this Act
G shall not be affected thereby.
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[COMMiTTEE PRINT]
JUNE 16, 1978
f At the direction of the Chairman of the Committee on Indian Affairs, this
committee print has been prepared by committee staff for discussion
purposes. Linetype indicates recommended deletions from, and italics
indicate recommended additions to, the bill, as introduced.]
95TH CONGRESS
2D SESSION . 3 1 53
IN THE SENATE OF THE UNITED SPATES
MAY 25 (legislative day, MAY 17), 1978
Mr. PELL (for himseTf and Mr. CHAPEE) introduced the following bill; which
was read twice and referred to the Select Committee on Indian Affairs
A BILL
To `settle Indian land claims within the State of Rhode Island
and Providence Plantations, and for other purposes.
1 Be it enacted by the Senate and House of Representa~
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Rhode Island Indian
4 Olaims Settlement Act".
5 CONGRESSIONAL FINDINGS AND DECLARL~TION OF POLICY
6 SEC. 2. Congress finds and declares that-
47 (1) there are pending before the United States
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2
1 District Court for the District of Rhode Island two con-
2 ~o1idated actions, entitled 1 arfaganse~t ~4be e4 Indians
3 ~ Sonthern 4~he4e Island ~a~4 Development Qe~ et 4;
~A~ Ne~ ~-5 000G -fD~R.L)~ and ~arragansett cl½be ef
5 Indians ~ Rhode Island Pii~eetef e~ Environmental Ma,n-
6 agenient Q~4 ~ ~-5-OøG5 (D.R.I.") Narragansett
7 Tribe of Indians v. Southern Rhode Island Land
8 Development Co., et al., C.A. No. 75-0006 (D.R.I.)
9 and Narragansett Tribe of Indians v. Rhode Island
10 Director of. Environmental Management, C.A. No. 75-
11 0005 (D.R.I.), that involve Indian claims to certain
12 public and private lands within the town of Charles-
13 town, Rhode Island;
14 (2) the pendency of these lawsuits has resulted in
15 severe economic hardships for the residents of the town
16 of Charlestown by clouding the titles to much of the land
17 in the town, including lands not involved in the lawsuits;
18 (3 ~ the Congress shares with the State of Rhode
19 Island and the parties to the lawsuits a desire to remove
20 all clouds on titles resulting from such Indian land. claims
21. within the State of Rhode Island; and
22 (4) the parties to the lawsuits and others interested
23 *. in the settlement of Indian land claims within the State
24 of Rhode Island have executed a Settlement Agreement
25 that requires certain implementing legislation to be en-
PAGENO="0024"
20
8
acted by Congress `and the State of Rhode Island as a
2 condition to its effectiveness.
3 DEFINITIONS
4 SEC. 3. For the purposes of this Act, the term-
5 (a) "Fund" means the Rhode Island Indian Claims
6 Settlement Fund established under section 5 of this
7 Act;
8 (b) "Indian Corporation" means the Rhode Island
9. nonbusiness corporation known as the ~arragansett
`10 4 Ind~a&~sj "Narragansett Tribe of Indians";
11 (c) "lawsuits" means the actions entitled Naf-
12~ . rag'miactt ~ 4 Indians ~ ~uthern I4he&~ Island
13 4~an4 Development Qo~ nt al~ Q~4~ ~Ie~ 75 ~)G6
14 *D'd~.L) and Narrngansett ~~i41~e 4 Indians v ~B1ho4e
15 Island Director of Environmental Management~ ~
16 ~e 5-0005 ~(IY.R.I.)j Narragansett Tribe of Indians
17. . v. Southern Rhode Island Land Development Co., et al.,
:18 C.A. No. 75-0006 (D.R.I.) and Narragansett Tribe
19 of Indians v. Rhode Island Director of Environmental
20 Manigement, C.A. No. 75-0005 (D.R.I.);
21 (d) "Option, Agreements" means the agreements
22 entered into or to be entered into pursuant to section 3
23' of the Settlement Agreement between by the State Cor-
24 poration (or in the event the State `Corporation has not
25 ` yet been created, with by a designee of the Governor of
PAGENO="0025"
21
4
Rhode Island) and the defendants in the lawsuits under
2 which the State Corporation will have an option to pur-
3 chase the private settlement lands;
4 (e) "private settlement lands" means those lands
- that are to be acquired by the State Corporation from
6 the private defendants in the lawsuits pursuant to sec-
7. tion 3 of the Settlement Agreement;
8 (f) "public settlement lands" means those lands
9 that are to be conveyed by the `State of Rhode Island to
10 the State Corporation pursuant to section 2 of the Set-
ii tlement Agreement;
12 (g) "Secretary" means the Secretary of the In-
13 tenor or his designee;
14 (h) "Settlement Agreement" means the document
15 entitled "Joint Memorandum of Understanding Con-
16 cerning Settlement of the Rhode Island Indian Land
17 Claims" executed as of February 28, 1978, by repre-
18 sentatives of the State of Rhode Island, of the town of
19 Charlestown, and of the parties to the lawsuits, as filed
20 with the Sedretary of State of the State of Rhode Island;
21 (i) "settlement lands" means those lands defined
22 in subsections (e) and (f) of this section; and
23 (j) "State Corporation" means the corporation
24 created or to be created by legislation enacted by the
25 State of Rhode Island pursuant to section 1 of the Settle-
PAGENO="0026"
22
.5
1 ment Agreement for the purpose of acquiring and hold-
2 ing the settlement lands.
3 ~ OF PRIOI~ L*ND *NF W*~f~ CONVEYANCE~
4 ~ ~ ~3F ABORI&I~h TITLE
* 5 ~ -fa3- 4ny transfer of bonds ~r waters boeated
6 wi~thin the TJnited States fren+~ by or on behalf of the Indian
7 Corporation, or any other entity known as or claiming to
8 be the ~arragansett ~I~ribe of Indians~ or any predecessor in
9 interest~ member~ or stoekirolder thereof~ including hut not
10 limited to a transfer pursuant to any statute of any States
11 was and sInsil be deemed to ha'~~e been made in aenerdance
12 with the Constitution and all laws of the T~nited States that
13 are specifically applicable to transfers of lands or waters
14 frem~ by or on behalf of any Indian~ Indian nation or
15 of Indians ~inelu4ing but not limited to the Trade and Inter-
16 course Act of -f~l÷- ~-3~ Sne~ 4~ 4 Stat~ 13~)-~ and
17 all amendments thereto and all srdiseetion ~ersiens thereof )-~
18 and Gonigrcss does hereby appre~~e and ratify any sneir trans-
19 for effeeti~e as of the date of the said transfer~
20 -fIr)- To the extent that any transfer of lands or waters
21 deserthed in subsection -(-a)- may in'c~l~~ lands or waters to
22 whieln the Indian Corporatiori~ or any other entity known
23 asorelal~ingtobethe~ra.gaflSCttTrth0fTnd~0I'~
24 predecessor in intcrest~ menrber~ or stockholder thcreof~ had
25 aboriginal title~ srthseetien -(-a)- shall be regarded as an e~
PAGENO="0027"
23
6
1 tinguis1~meftt of ~eI frbofIg+ftu4 title as of the 4~e of said
2
3 -(4 By ~4rtue of the apj~r~wa4 ao4 fatification of a trans-S
4 fei~ of inn4s oi' waters effeeted by sabscetion -(4 of sa~ extin
~ guishment of aboriginal title ef~eeted thcreby~ all eWms
6 against the Thiited States~ any state ~ J~4i~ision thereof~
7 Of any othef person Of eiitity~ by the Tn4ian Qorporation~ o~'
8 any other entity flown as or elairnmg to be the Narragan-
9 sett ~Pribe of ~n4iens~ of any predecessof in interest~ member
10 of stoekitolder thereof~ inekiding but not limited to elaims
11 for tres~pfiSs demages of elaims foi' use or occupaney~ arising
12 subsequent to the transfer and that are baso4 quon any in-
13 tei~est in or rigbrt in~oleing seek kinds or waters~ shall be
14 regarded as e~etinguished as of the date of the transfcr
15 EXTINGUISHMENT OF ABORIGINAL TITLE AND APPROVAL
16 OF PRIOR LAND AND WATER CONVEYANCES
17 SEC. 4. (a) Within ten days of receipt of a certification
18 of the Secretary of State of the State of Rhode Island that
19 the State of Rhode island has enacted legislation authorizing
20 the creation of the State Corporation with power to estab-
21 lish its own hunting and fishing regulation~ as provided by
22 section 11 of the Settlement Agreement, and authorizing the
23 transfer of the public settlement lands to the State Corpora-
24 tion, the Secretary shall publish the certification in the Fed-
25 eral Register, and upon such publication-
PAGENO="0028"
24
1 (i) any aboriginal title . of, and any claims involv-
2 ing or in any way relating to lands or waters located
3 within the United States (including but not limited to
4 claims for use and occupancy or for trespass damages
based upon any interest in or right involving such lands
6 or waters) by, or on behalf of the Indian Corporation
7 or any other entity presently or at any time in the past
8 known as the Narragansett Tribe of Indians, or any
9 predecessor or successor in interest, or any member or
10 stockholder thereof, shall be extinguished;
(ii) such extinguishment shall be effective as ~o any
12 and all such claims against the United States, any State
13 or subdivision thereof, or any other person or entity:
14 Provided, That such extinguishment shall not apply. to
15 the claim of any individual Indian under any law gen-
16 erally applicable to non-Indians as well as Indians in
17 the State of Rhode Island or any other State; and
18 (iii) any prior transfer . of lands or waters from,
19 by, or on behalf of the Indian Corporation or any other
20 entity presently or at any time in~ the past known as the
21 Narragansett Tribe of Indians, or any predecessor or
22 successor in interest, or any member or stockholder there-
23 of, including but not limited to any transfer pa rsua'nt to
24 any statute of any State, shall be deemed to have been
25 made in . accordance with the Constitution and all laws
PAGENO="0029"
25
8
1 of the United States that are specifically applicable to
2 transfers of lands or waters from, by, or on behalf of
3 any Indian, Indian nation, or tribe of Indians (includ-
4 ing but not limited to the Trade and Intercourse Act of
5 1790, Act of August 4, 1790 (ch. 33, § 4, 1 Stat. 138),
6 and all amendments thereto and all subsequent versions
7 thereof), and Congress does hereby approve any such
8 transfer, which approval shall be deemed to be effective
9 as of the. date of such transfer.
10 -(-4)-(4)- Any and all other ofaimo involving or ia any
11 way relating to lands or waters withni the State of ~Rho4e
12 Island of any Tn4ian~ Indian nation~ or tribe of 1ndians~ aria-
13 ing ~prier to the date of enaetment of th4s Aet ander the Gon-~
14 Stit1±tIO~} or laws of the U1nited States `that are speeifleally
15 applicable to transfers of lands or waters from~ by or on
16 behalf of any Indian~ Indian nation~ or tribe of. Indians -(-in-
17 eluding bat not limited to the ~Prade and Intercourse Aet of
18 4-74~Q -f(~h~ ~ Seer 4~ 4- Stat~ 1~3~)-~ and all amendments
19 thereto and all sabseqaent versions thercof)-~ shall be barred
20 unless file ~n a eoart of competent jurisdietion within one
21 hundred ~4ghty days of the date of enactment of this Aet7.
22 -(-2-)- Any Indian, Indian nation~ or tribe of Indians
23 asserting a elaim involving or in any way relating to lands
24 or waters located within the limits of the town of tharlcs
25 town~, Ithode Island~ shall be limited to asserting saeh elaim
PAGENO="0030"
26
9
j e~eIush~e1y again&~ the ~4ian Qo ei''o, and sue1~ Indiai~
2 In4rnn nMion~ ~ ~ ~[n44aI}s ~$~i ~ barrei from bring-
3 mg any aw~ flwoIv±ng ~ae~ 4ttim ftgainst any ethei~ person
4oi~elltity~
5 (b) (1) Effective one hundred eighty days after the date
6 of enactment of this Act-
* 7 (i) any aboriginal title of, and any claims involving
8 or in any way relating to lands or waters located within
9 the State of Rhode Island (including but not limited to
10 claims for use and occupancy or for trespass damages
11 based upon any interest in or right involving such lands
12 or waters) by, or on behalf of any Indian, Indian na-
13 tion, or tribe or Indians (other than the Narragansett
14 Tribe of Indians and members thereof), shall be extin-
15 guished;
16 (ii) such extinguishment shall be effective as to any
17 and all such claims against the United States, any State
18 or subdivision thereof, or any other person or entity:
19 Provided, That such extinguishment shall not apply to
20 the claim of any individual Indian under any law gen-
21 erally applicable to non-Indians as well as Indians in
22 the State of Rhode Island; and
23 (iii) any prior transfer of lands or waters from, by,
24 or on behalf of any such Indian, Indian nation, or tribe
25 of Indians, including but not limited to any transfer pur-
PAGENO="0031"
27
10
* suant to any statute of any State, shall be deemed to havi~
2 been made in accordance with the Constitution and all
laws of the United States that are specifically. applicable
to transfers of lands or waters from, by, or on behalf of
any Indian, Indian nation, or tribe of Indians (includ-
6 ing but not limited to the Trade and Intercourse 4ct of
1790, Act of August 4, 1790 (ch. 33, ~S 4, 1 Stat. 138).,
8 and all amendments thereto and all subsequent versions
thereof), and Congress does hereby approve any such
10 transfer, which approval shall be deemed to be effective
as of the date of such transfer:
12 Provided, however, That this subsection shall not be appli-
13 cable to any claim, right, or title of any Indian, Indian na-
14 tion, or tribe of Indians that is asserted in an action corn-.
15 menced in a court of competent jurisdiction within such one-
16 hundred-eighty-day period.
17 (2) Any Indian, Indian nation, or tribe of Indians
18 asserting title to, or any claim or right within the limitations
19 of section 4(b) (1) involving or in any way relating to lands
20 or waters located within the limits of the town of Charlestown,
21 Rhode Island, shall be limited to asserting such claim ex-
22 clusively against the Indian Corporation.
23 ~e~- (c) As used in this section, the phrase term "lands
24 or waters" f~l±all incimle includes any interest in or right in-
PAGENO="0032"
28
*11
* i. volving lands or waters, and the term "transfer" shall inclnde
2 hu4~ ne~ be includes but is not limited to* any sale, grant,
3 lease, allotment, partition, conveyance, e~ any transaction the
4 purppse of which was to effect a sale, grant, lease, allotment,
5 partition or conveyance, e~ and any event or events that
* 6 resulted in a change in possession or control of lands or
7 waters.
8 RHODE ISLAND INDIAN CLAIMS SETTLEMENT FUND
* SEC. 5. There is hereby established in the United States
10 Treasury a fund to be known as the Rhode Island Indian
11 Claims Settlement Fund into which the following moneys
:12 amounts shall be deposited following, the appropriation an-
13 thórized by section 15 of this Act:
14 (a) $262,500, which shall be distributed to certain
15 prtvate defendants in the lawsuits in accordance with the
16 provisions of section 6 of this Act;
17 -fai). (b) $3,500,000, which shall be distributed to
-18 * the State Corporation in accordance with the provisions
19 of section 7 of this Act; and
20 ~ ~504~ which shall he distributed te certain
21. ". ~ ~dunta i~ the lawsui4s in accordance with
22 ~ j~siefts ef seetien 6 this Ae~ end
`23 * (c) $80,077.84, which shall be'distributed pursuant
24 * to the provisionS -of section 13' of this Act.
PAGENO="0033"
29
12
1 OPTION AGRERMENTS TO PURCHASE PRIVATE SETTLEMENT
2 LAND
3 SEC. 6. (a) Each private defendant in the lawsuits who
4 has entered or who subsequently enters into a two-year Op-
5 tion she44~ s+th~jeet to the limitations of subseetlon -fb~-~ he pa14
6 Agreement with the State Corporation (or in the event
7 the State Corporation has not yet been created, with a
8 designee of the Governor of Rhode Island) to convey his
9 portion of the private settlement lands to the State Corpora-
10 tion shall, subject to the limitation of subsection (b), be paid
11 an option fee from the Fund equal to 5 per centum of the
12 purchase price agreed upon in each Option Agreement:
13 Provided, however, That the total amount of the option fees
14 *paid to all such defendants shall not exceed $175,000.
15 (b) The payment of option fees authorized by subsec-
16 tion (a) shall be subject to. the following conditions:
17 (i) the The option fees shall ftot be paid from the
18 Fund imtil immediately prior to the expiration of ninety
19 days from the date of $ssag~ enactment of this Act-i or
20 within twenty days after the appropriation of moneys
21 for the payment of option fees pursuant to section 15(a)
22 of this Act, whichever occurs later;
23 (ii) the The option fee for each Option Agreement
24 shall be applied to the agreed puichase prièe in eaeh the
2~ Option Agreement if the land transfer contemplated by
30-979 0 - 78 - 3
PAGENO="0034"
30
ig
each Option Agreement is completed and the full pur-
2 chase price is paid en o~ bef~e the exp4~atien of within
3 two hundred seventy days from the date of eaeh i'e~pee
4 twe execution of the Option Agreement;
5 (iii) the option fee for each Option Agreement
6 shall be retained by the party granting the option and
7 shall not be applied to the purchase price if the land
8 transfer contemplated by each the Option Agreement is
9 not completed and the full purchase price paid en
10 before the epii~M4en of within two hundred seventy
11 days f~em after the date of eaeh ~esj~ect~ve execution of
12 the Option Agreement; and *
13 (iv) if, for any reason, the option fee called for by
14 oath respective any Option Agreement is not `paid as set
15 forth in paragraph (i), abo~ee~ the party granting the
16 Op~ien option shall have the right to terminate his obli-
17 gations under the Option Agreement, and if such right is
18 exercised, such Option Agreement shall thereafter be un-
19 enforceable against any party thereto.
20 (~) if the requirements ~et forth in section 8 of this
2i `Act have not been satisfied at the expiration of the term
22 of any Option Agreement, the State Corporation may elect
23 to extend any such Option Agreement then in effect for an
24 additional period of one year. k nonrefundable extension fee
25 equal to 2-s- per centum of the agreed upon purchase price
PAGENO="0035"
31
14
1 shall be paid from the Fund to any defendant whose Option
2 Agreement is extended for such additional period: Provided,
3 however, That such extension fee shall not be applied toward
4 the purchase price, and that the total amount of extension
5 fees paid to all defendants shall not exceed $87,500.
6 (d) To the extent that any portion of the $262,500
~7 authorized to be appropriated by section ~-fb3- 15(a) of this
8 Act for the payment of option and extension fees is not
9 utilized for the purposes set forth herein, the excess shall be
10 returned to the general Treasury of the United States.
11 SETTLEMENT E*ND8 PURCHASE OF PRIVATE SETTLEMENT
12 LANDS
13 SEC. 7. Upon satisfaction of all of the conditions set
14 forth in section 8 of this Act, the sum of $3,500,000 (minus
15 any option fees paid and èredited against the purchase price
16 pursuant to the provisions of sections 6 (b) (ii) ~i4 -(-ii43- of
17 the this Act) shall be paid to the State Corporation from the
18 Fund for the purchase by the State Corporation of the pri-
19 vate settlement lands and for the reasonable costs of acquisi-
20 tion incurred by the State Corporation in connection with
21 the purchase of private settlement lands. If such private
22 settlement lands are acquired for a total amount less than
23 $3,500,000, the State Corporation shall return any ~e1~ re-
24 maining menie~ moneys to the general Treasury of the
25 United States.
PAGENO="0036"
32
15
1 CONDITIONS PRECEDENT TO THE DISTRIBUTION OF
2 QE+~*~ FUNDS SECTION 5(b,) MONEYS
3 SEC. 8. No moneys deposited i~ the Fund under sectio~i
4 5(b) of this Act shall be distributed from the Ftmd to the
5 State Corporation pursuant to section 7 of this Act until the
6 Secretary has determined-
7 (a) that the State of Rhode Island has enacted
8 legislation in implementation of all of ~he ohligation~
9 it has undertaken in to implement the provisions of the
10 Settlement Agreement;
11 (b) that the council of the town of Charlestown
12 and the State Corporation have accepted the land use
13 plan contemplated by section 14 of the Settlement
14 Agreement; and
15 (c) that within sixty days of the date of enact'
16 ment of this Act, and in accordance with standards es~
17 tablished by the Secretary for this purpose, that the
18 plaintiff in the lawsuits has a credible claim to the
19 lands subject to the lawsuits, including a determinati~in
20 that the plaintiff has a credible claim to status as an
21 dian nation or tribe of Indians" within the meaning of
22 the In4ian Nonintcrcoursc Aet (R.S~ 2~1-H)- Trade
23 and Intercourse Act of 1790 (Act of August 4, 17F/0~
24: ch. :33, SS 4, 1 Stat. 138), and all amendments thereto
25 and subsequent versions thereof, at all relevant periods
PAGENO="0037"
33
16
i of time, including the present. In the event that the
2 Secretary determines that the plaintiff in the lawsuits
3 does not have a credible claim to the lands subject to
4 the lawsuits, the determination of the Secretary shall be
5 subject to judicial review in the Federal United States
6 District Court for the Sta~te District of Rhode Island or
7 the District of Columbia. pursuant ~o section ~ of
8 ti4e ~ Unitcd States Godc. The reviewing court shall
9 s~t aside any such determination only if it is found to
10 be arbitrary, capricious, an abuse of discretion, or other-
11 wise not in accordance with law. If it is ultimately de-
12 termined in a final, nonappealable order of a court of
13 competent jurisdiction that the plaintiff in the lawsuits
14 does have a credible claim to the lands subject to the
15 lawsuits,' or if the Secretary shall make such a de-
16 termination after remand by the reviewing court, such
order or determination shall have the same effect as if
18 the Secretary had initially made the determination that
19 the plaintiff in the lawsuits has a credible claim to the
20 lands subject to the lawsuits.
21 RESTRICTION ON ALIENATION
SEC. 9. ~é Settlement lands acquired by the State Cor-
23 poration ,under the Settlement Agreement may not be sold,
24 granted, leased or otherwise conveyed, nor shall any such
25 sale, grant, 1eas~, or conveyance be of any validity in law or
PAGENO="0038"
34
17
1 equity, unless the same is approved by the Secretary or his
2 designee and the Governor of the State of Rhode Island:
3 Provided, however, That nothing in this Act shall affect or
4 otherwise impair the ability of the State Corporation to grant
5 or otherwise convey (including any involuntary conveyance
6 by means of eminent domain or condemnation proceedings)
7 any easement for public or private purposes pursuant to the
8 laws of the State of Rhode Island.
9 EXEMPTION FROM TAXATION
10 ~ 4-ø~ Neither the settlement lands fiOf eny moneys
11 ~eeei\~ed by the S~te Corporation ffom the ~ond shnl4 be
12 ~13~eet ~e any germ e~ Federa1~ State~ or leoni ~taxation:
13 Provided~ 1wwever~ That ~b4S exemption thall not a~pply to
14 any ineomc producing aetivitics oecun4ng en the sett1cment~
15 lancis-~ A-n4 provided f-u~ther ~ftat nothing in this Aet ~hal4
1 prwcnt the imposition of payments in lien of taxes en the
17 ~Aate Qorporation for ser~iees provided in connection ~4th
18 thment1ands~
19 SEC. 10. (a) Except as otherwise provided in subsec-
20 tions (b) and (c), the settlement lands and any moneys re-
21 ceived by the State Corporation from the Fund shall not be
22 subject to any form of Federal, State, or local taxation.
23 (b) The exemption provided in subsection (a) shall not*
24 apply to any income-producing activities occurring on the
25 settlement lands.
PAGENO="0039"
35
18
1 (c) Nothing in this Act shall prevent the imposition of
2 payments in lieu of taxes on the State Corporation for ser-
3 vices provided in connection with the settlement lands.
4 (d) The exemption provided in subsection (a) as it re-
5 lates to amounts received by the State Corporation from the
6 Fund shall not apply if any of such amounts are used for,
7 or diverted to, any purpose other than-
8 (1) the purposes authorized under this Act, or
9 (2) investment (but only to the extent that the
10 invested portion. of such amounts is not currently needed~
11 for the purposes otherwise authorized by this Act) in-
12 (A) public debt securities of the United States,
13 (B) obligations of a State or local government
14 which are not in default as to principal or interest,
15 or *
16 (C) time or demand deposits in a bank (as de-
17 fined in section 581 ~f the Internal Revenue Code
18 of 1954) or an insured credit union (within the
19 meaning of section 101 (6) of the Federal CreditS
20 Union Act, 12 U.S.C. 1752(6)) located in the
21 United States. .
22 DEFERRAL OF CAPITAL . GAINS -
23 SEC. 11. For purposes of subtitle A of the Internal
24 Revenue Code of 1954, any sale or disposition ~f private
25 settlement lands 4ispose4 of pursuant to the terms and condi-
PAGENO="0040"
36
19
1 tions of the Settlement Agreement shall be treated as an
2 involuntary conversion as a ]~e&u-k of eon4cmnatioR 01' ~he
3 ~ln'eat o~' immi~e~~ee the~'eof te wl4eh within the meaning of
4 SeeMon section 1033 of the Internal Revenue Code of 1954.
5 a~phcs~
6 APPLICABILITY OF STATE LAW
7 SEC. 12. Except as otherwise provided in this Act, the
8 settlement lands shall be subject to the complete civil and
9 criminal jurisdiction of the State of Rhode Island.
10 ATTORNEY AND CONSULTANT FEES
11 SEC. 13. A snm no~ in e~eess of An amount not to ex-
12 ceed $80,077.84 shall be distributed from the Fund to those
13 private defendants in the lawsuits who have not executed
14 Option Agreements with the State Corporation as reim-
15 bursement for partial out-of-pocket expenses incurred
16 through April 21, 1978 and partial attorneys' fees incurred
17 in connection with the lawsuit.
18 FEDERAL BENEFITS PRESERVED
19 SEC. 14. Nothing contained in this Act or any legislation
20 enacted by the State of Rhode Island pursuant to its obli-
21 gations under the Settlement Agreement shall affect or other-
22 wise impair in any adverse manner any benefits received by
23 the State of Rhode Island under the Pitman ~oberstson Ae~
24 Federal Aid in Wildlife Restoration Act of September 2,
25 1937 (16 U.S.C. 669-669 (i)) an4 the Dingdll-Johnson
PAGENO="0041"
37
20
1 Ae~ or the Federal Aid in Fish Restoration Act of Angnst 9,
2 1950 (16 U.S.C. 777-777 (k)).
3 AUTHORIZATION OF FUNDS
4 SEC. 15. There is are hereby authorized to be appro-
5 priated: sfleh sums as a~'e neeess~ry ~e earry o~t the purposes
6 ~
7 (a) $262,500 for the payment of. option and exten-
8 sion fees as provided for in section 6 of this Act;
9 (b) $3,500,000 for the purchase of private settle-
10 ment lands as provided for in section 7 of this Act;
ii (c) $80,077.84 for the payment of attorney and
12 consultant fees as provided for in section 13 of this Act.
13 SAVINGS CLAUSE
14 SEC. 16. To the extent that there may be any conflict
15 between any provision of this Act and any other applicable
16 Federal law or laws, the provisions of this Act shall govern.
17 STATUTE OF LIMITATIONS
18 SEC. 17. Notwithstanding any other provision of law-
19 (a) any action in. any Federal court to contest the
20 authority of the United States to legislate on the subject
21 matter of this Act, or to contest the legality or constitu-
22 tionailty of this Act or any provision thereof, shall be
23 barred unkss the complaint is filed within one hundred
24 eighty days of after the date of enactment of this Act;
25 and
PAGENO="0042"
38
21
1 (b) any action over which the Court of Claims has
2 jurisdiction under the provisions of section 1 505 of title
3 28, United States Code by any Indian, Indian nation, or
4 tribe of Indians affected by section 4-f4)- -f-I--)- an4 -(-2-)-
5 4 (b) of this Act shall be barred unless such action is
6 filed in the Court of Claims within three years of the
7 date of enactment of this Act.
8 SEPATL~BI+IIT~
9 S~e~ 4-8w 14 e~+y previsien ef this AeI- er the applieabll4ty
10 thereof is I+e14 in~a1445 the remaining pro~4siefis of this Ael
11 shol4 net he affceted there4~y7
PAGENO="0043"
39
H. R. 12860
IN THE hOUSE OF REPRESENTATIVES
~L~x 25, 1978
\lr. BE~~RD of Rhode Island (for hunSelf 011(1 Mr. Si GEaM~Tx) introduced the
following bill; which was referred to the Committee on Interior and
Tnsular Affairs
A BILL
To settle Indian land claims within the State of Rhode Island
and Providence Plantations, and for other 1~U~Po~s.
Be it enacted by the Senate and House of Fepresenta-
2 tives of the United States of America vi CongreSS assembled,
3 That this Act n~ay be cited as the "Rhode Island Indian
4 Claims Settlement Act".
5 cONGRESSIONAL FTNI)INGS AND DECLARATION OF
6 POLICY
7 SEC. 2. Congress finds and declares that-
8 (1) there are pending before the United States
9 District Court for the District of Rhode Island two con-
10 sohidated actions, entitled "Narragansett Tribe of Indians
11 v. Soutileril Rhode Island Land Development Co., et al.
PAGENO="0044"
40
1 CA. No. 75-0006 (D.R.I.) and Narragansett Tribe of
2 Indians v. Rhode Island Director of Environmental
3 Management C.A. No. 75-0005 (D.R.I.) ", that involve
4 Indian claims to certain public and private lands within
5 the town of Charlestown, Rhode Island;
6 (2) the pendency of these lawsuits has resulted in
7 severe economic hardships for the residents of the town
8 of `Charlestown by clouding the titles to much of the land
9 in the town, including lands not involved in the lawsuits;
10 (3) the Congress shares with the State of Rhode
11 Island and the parties to the lawsuits a desire to remove
12 `all clouds on titles resulting from such Indian land clainis
13 within the State of Rhode Island; and
14 (4) the parties to the lawsuits and others interested
15 in the settlement of Indian land claims within the State
16 of Rhode Island have executed a Settlement Agreement
17 that requires certain implementing legislation to be en-
18 acted by Congress and the State of Rhode Island as a
19 condition to its effectiveness.
20 DEFINITIONS
21 SEc. 3. For the purposes of this Act, the term-
22 (a) "Fund" means the Rhode Island Indian Claims
23 Settlement Fund established under section 5 of this Act;
24 (b) "Indian Corporation" means the Rhode Island
PAGENO="0045"
41
3
1 nonbusiness corporation known as the Narragansett Tribe
2 of Indians;
3 (c) "lawsuits" means the actions entitled "Narra-
4 gansett Tribe of Indians v. Southern Rhode Island Land
5 Development Co., et al., C.A. No. 75-0006 (D.R.I.)
6 and Narragansett Tribe of Indians v. Rhode Island
7 Director of Environmental Management, C.A. No. 75-
8 0005 (D.R.I.)";
9 (d) "Option Agreements" means the agreements
10 entered into or to be entered into pursuant to section 3 of
11 the Settlement Agreement between the State Corpora-
12 tion (or in the event the State Corporation has not yet
13 been created, with a designee of the Governor of Rhode
14 Island) and the defendants in the lawsuits under which
15 the State Corporation will have an option to purchase
16 the private settlement lands;
17 (e) "private settlement lands" means those lands
that are to be acquired by the State Corporation from
19 the private defendants in the lawsuits pursuant to see-
20 tion 3 of the Settlement Agreement;
21 (f) "public settlement lands" means those lands
22 that are to be conveyed by the State of Rhode Island
23 to the State corporation pursuant to section 2 of the
24 Settlement Agreement;
PAGENO="0046"
42
4
1 (g) "Secretary" means the Secretary of the In-
2 tenor or his designee;
2 (ii) "Settlement Agreement" means the docu-
4 ment entitled "Joint Memorandum of Understanding
5 Concerning Settlement. of the Rhode Island Indian
6 Land Claims" executed as of February 28, 1978, by
7 representatives of the State, of the town of Charlestown,
8 and of Parties to the lawsuits;
9 (i) "settlement lands" means those lands defined in
10 subsections (e) and (f) of this section; and
11 (j) "State Corporation" means the corporation
12 created or to be created by legislation enacted by the
13 State of Rhode Island 1)urStlant to section 1 of the
14 Settlement Agreement for the purpose of acquiring and
15 holding the settlement lands.
16 RATIFICATION OF PRIOR LAND AND WATER CONVEYANCES
17 AND EXTINCUISIIMENT OF ABORIGINAL TITLE
18 SEC. 4. (a) Any transfer of lands or waters located
19 within the United States from, by or on behalf of the Indian
20 Corporation, or any other entity known as or claiming to
21 be the Narragansett Tribe of Indians, or any predecessor in
22 interest, member, or stockholder thereof, including but not
23 limited to a transfer parsilailt to any statute of any state, was
24 and shall be deemed to have been made in accordance with the
25 Constitution and all laws of tile United States that are spe-
PAGENO="0047"
43
5
1 cifically applicable to transfers of lands or waters from, by
2 or on behalf of aiiy Indian, Indian nation or tribe of Indians
3 (including but not limited to the Trade and Intercourse Act
~ of 1790 (oh. 33, sec. 4, 1 Stat. 138), aiid all amendments
~ thereto and all subsequent versions thereof) , and Congress
6 does hereby approve and ratify any such transfer effective
7 as of the date of the said transfer.
8 (b) To the extent that any transfer of lands or waters
9 described in subsection (a) may involve lands or waters to
10 wthich the Indian Corporation, or any other entity known as
U or claiming to be the Narragansett Tribe of Iiidians, or any
12 predecessoi~ in interest, member, or stockholder thereof, had
13 aboriginal title, subsection (a) shall be regarded as an extin-
14 guishment of such al)O1'igillal title as of the date of said
15 transfer.
16 (c) By virtue of the approval and ratification of a trans-
17 fer of lands or waters effected by subsection (aS) or an extin-
18 guishment of aboriginal title eflected thereby, all claims
19 agamst the Ilnited States, any State or subdivision thereof,
20 or any other ~ or entity, by the Indian Corporation, or
21 any other entity known as or claiming to he the Narragan-
22 ~ett Tribe of Indians or any predecessor 111 iiiterest, menhl)er
23 or stockholder thereof, including but not limited to claims for
24 trespass damages or claims for use or occupanc, arising sub-
25 sequent to the transfer and that are based upon any interest
PAGENO="0048"
44
`3
i in or right involving such lands or waters, shall be regarded
2 as extinguished as of the date of the transfer.
3 (d) (1) Any and all other claims involving or in any
4 way relating to lands or waters within the State of Rhode
5 Island of any Indian, Indian nation, or tribe of Indians,
6 arising prior to the date of enactiñent of this Act under the
7 `Constitution or laws of the United States that are specifically
8 applicable to transfers of lands or waters from, by or on
9 behalf of any Indian, Indian nation or tribe of Indians
10 (including but iiot limited to the Trade and Intercourse Act
11 of 1790 (ch. 33, sec: 4, 1 Stat. 138), and all amendments
12 thereto and all subsequent versions thereof), shall be barred
13 unless ified in a court of competent jurisdiction within one
14 hundred eighty days of the date of enactment of this Act.
15 (2) Any Indian, Indian nation, or tribe of Indians
16 asserting a claim involving or in any way relating to lands
17 or waters located within the limits of the town of Charles-
18 town, Rhode Island, shall be limited to asserting such claim
19 exclusively against the Indian Corporation, and such Indian,
20 Indiami nation, or tribe of Indians shall be barred from `bring-
21 ing amiy suit involving such claim against any other pei~son
22 or entity.
23 (e) As used in this section, the phrase "lands or waters"
24 shall include any interest in or right involving lands or
25 ~waters, and the term "t~ansfer" shall include but not be
PAGENO="0049"
45
7
1 limited to any sale, grant, lease, allotment, partition, convey-
2 ance, or aiiy transaction the purpose of which was to effect
3 a sale, grant, lease, allotment, partition or conveyance, or any
4 event or events that resulted in a change in possession or
5 control of lands or waters.
6 RHODE ISLAND INDIAN CLAIMS SETTLEMENT FUND
7 SEC. 5. There is hereby established in the United States
8 Treasury a fund to be known as the Rhode Island Indian
9 Claims Settlement Fund into which the following moneys
10 shall be deposited following the appropriation authorized by
11 section 15 of this Act:
12 (a) $3,500,000, which shall be distributed to the
13 State Corporation in accordance with the provisions of
14 section 7 of this Act;
15 (b) $262,500, which shall l)e distributed to certain
16 private defendants in the lawsuits in accordance with the
17 provisions of section 6 of this Act; and
18 (c) $80,077.84, which shall be distributed pursuant
19 to the pl'OViSiOfls of section 13 of this Act.
20 OPTION AGREEMENTS TO PURChASE I~RIVATE
21 SETTLEMENT LAND
22 SEC. 6. (a) Each private defendant in the lawsuits who
23 has entered or who subsequently enters into a two-year
24 Option Agreement with the State Corporation (or in the
25 event the State Corponition has not yet been created, with a
30-979 0 - 78 - 4
PAGENO="0050"
46
8
1 designee of the Governor of Rhode Island) to convey his
2 POitiOil of the private settlement lands to the State Corpora-
tion shall, subject to the limitations of subsection (b) , be Paid
4 an option fee from the Fund equal to 5 pci ceiituin of the
5 purchase price agreed upoll in each Option Agreement:
6 Proeided, lioweeei, That the total 01)tiOii fees paid to all such
7 defendants shall not exceed $175,000.
8 (b) The payment of o1)tiOll fees authorized by subsection
9 (a) shall be subject to the following conditions:
10 (i) the option fees shall iiot be paid froni the Fund
ii until immediately prior to the expiration of ninety days
12 from the date of passage of this Act;
13 (ii) the option fee for each Option Agreement shall
14 be applied to the agreed ptiicliase 1)11cc iii each Option
15 Agreement if the land transfer contemplated by each
16 Option Agreement is completed aiid the full purchase
17 price paid on or before the expiration of two hundred
18 seventy days from the (late of each respective Option
19 Agreement;
20 (iii) the option fee for each Option Agreenient shall
2 1 be retaiiied hi the party granting the option aiid not
22 applied to the pmeliase price if the land transfer con-
23 teinplated hi each Option Agreement is not completed
24 and the full piucliase price paid on or before the expira-
PAGENO="0051"
47
9
1 tion of two hundred seventy days from the date of each
2 1eSl)ective (Jptioii Agreement; and
3 (iv) if, for any reason, the option fee called for by
.4 each respective Option Agreement is not paid as set
forth in paragraph (i) above, the party granting the
6 Option shall have the right to terminate his obligations
under the Option Agreement, and if such right is exer-
8 cised, such Option Agreement shall thereafter be unen-
9 forceable against any party thereto.
10 (c) If the requirements set forth in section 8 of this Act
~ have not been satisfied at the expiration of the term of any
12 Optioii Agreement, the State Corporation may elect to cx-
13 tend any such Option Agreement then in effect for an
14 additional period of one year. A noniefundable extension
15 fee equal to 2-~ per centum of the agreed upon purchase price
16 shall be paid from the Fund to any defendant whose Option
17 Agreement is extended for such additional period: Provided,
18 however, That such extension fee shall not be applied toward
19 the purchase price and that the total extension fees paid to
20 all defendants shall not exceed $87,500.
21 (d) To tire extent that any portion of the $262,500
22 authorized by section 5 (b) of this Act for tire payment of
23 option and extension fees is not utilized for the purposes set
PAGENO="0052"
48
10
1 forth herein, the excess shall be returned to the general
2 Treasury of the United States.
3 SETTLEMENT LANDS
SEC. 7. Upon satisfaction of all of the conditions set forth
in section 8 of this Act, the sum of $3,500,000 (minus any
6 option fees paid and credited against the purchase price pur-
suant to the provisions of sections 6 (b) (ii) and (iii) of the
8 Act) shall be paid to the State Corporation from the Fund
for the purchase by the State Corporation of the private set-
10 tiement lands and for the reasonable costs of acquisition in-
~ curred by the State Corporation in connection with the pur-
12 chase of private settlement lands. If such private settlement
13 lands are acquired for a total amount less than $3,500,000,
14 the State Corporation shall return any such remaining
15 moneys to the general Treasury of the United States.
16 CONDITIONS PRECEDENT TO THE DISTRIBUTION OF
17 CERTAIN FUNDS
18 SEC. 8. No moneys shall be distributed from the Fund to
19 the State corporation pursuant to section 7 of this Act until
20 the Secretary has determined:
21 (a) that the State of Rhode Island has enacted
22 legislation in implementation of all of the obligations it
23 has undertaken in the Settlement Agreement;
24 (b) that the council of the town of Charlestown
25 and the State Corporation have accepted the land use
PAGENO="0053"
49
11
1 plan contemplated by section 14 of the Settlement
2 Agreement; and
3 (c) that within sixty days of the date of enactment of
4 this Act, and ill accordance with standards established by
~ the Secretary for this purpose, the plaintiff in the lawsuits
6 has a credible claim to the lands subject to the lawsuits, in-
7 eluding a determination that the plaintiff has a credible claim
8 to status as an "Indian nation or tribe of Indians" within the
9 meaning of the Indian Nonintercourse Act (R.S. 2116) at
10 all relevant periods of time, including the present. In the
11 event that the Secretary determines that the plaintiff in the
12 lawsuits does not, have a credible claim to the lands subject
13 to the lawsuits, the determination of the Secretary shall be
14 subject to judicial review in the Federal District Court for
15 the State of Rhode Island or the District of Columbia pur-
16 suant to section 702 of title 5, United States Code. The re-
17 viewing court shall set aside any such determination only
18 if it is found to be arbitrary, Capricious, an abuse of discre-
19 tion, or otherwise not in accordance with law. If it is ulti-
20 mately determined in a final, nonappealable order of a court
21 of competent jurisdiction that the plaintiff in the lawsuits
22 does have a credible claim to the lands subject to the law-
23 suits, or if the Secretary shall make such a determination
24 after remand by the reviewing court, such order or deter-
25 mination shall have the same, effect as if the Secretary had
PAGENO="0054"
50
12
1 initially made the determination that the plaintifi in the
2 lawsuits has a credible cdaini to time lands subject to the
~ lawsuits.
4 IIESTIIJCTION ON AliENATION
5 Si~c. 9. i~) lands acquired by the State Corporation
6 under the Settlement Agreement may be sold, grailted, leased
7 or otherwise conveyed, nor shall any such sale, giant, lease,
8 or conveyan e be of any validity in law or equity, unless time
9 same is approved by the Secretary or his designee and the
10 iovernor of the State of Rhode Island: Piorided, howerev,
~ That nothing in this Act shall affect or otherwise impair the
12 abihtv of the State Corporation to grant or otherwise coiivey
13 (including any involimtarv conveyance by means of eminent
14 domain or condeiniiation ploCCedIlI25) any easenient for
15 public or private i~urposes puisuaiit to the laws of time State
16 of lihode Island.
17 EXEMPTION FImOM TAXATION
18 Si~c. 10. Neither the settlement lands flOp any moneys
19 received by the State Corporation from the Fund shall be
20 subject to any form of Federal, State, or local taxation:
21 PeoL'ided, howeeei, That this exemption shalli~ot apply to
22 aiiy income-producing activities occurring on the settlement
23 lands : Aa(i plOL'iilC(l further, That nothing iii this Act shall
24 l)1event the imposition of ~)ay1flel~ts in lieu of taxes on the
PAGENO="0055"
51
13
1 State Corporation for services provided in connection with
2 the settlement lands.
3 DEFERRAL OF CAPITAL GAINS
4 Si~c. 11. For piii~oses of subtitle A of the Internal
5 Revenue Code of 1954, sale or disposition of Private settle-
6 ment lands disposed of pursuant to the terms and conditions
7 of the Settlement Agreement shall be treated as an invohm-
8 tar~ conversion as a result of condemnation or the threat or
9 imminence thereof to which section 1033 of the Internal
10 Revenue Code of 1954 applies.
11 APPLICABILITY OF STATE LAW
12 SEC. 12. Except as otherwise provided in this Act, the
13 settlement lands shall be subject to the complete civil and
14 criminal jurisdiction of the Sta.te of Rhode Island.
15 ATTORNEY AND CONSIJLTANT FEES
16 SEC. 13. A sum not in excess of $80,077.84 shall be
17 distributed from the Fund to those private defendants in the
18 lawsuits who have not executed Option Agreements with
19 the State Corporation as reimbursement for partial out-of-
20 pocl~et expenses incurred thiougli April 21, 1978 and partial
21 attorneys' fees incurred in comiection with the lawsuit.
22 FEDERAL BENEFITS PRESERVED
23 SEC. 114. Nothing contained in this Act or any legisla-
24 tion enacted by the State of Rhode Island pursuant to its
25 obligations under the Settlement Agreement shall affect or
PAGENO="0056"
52
14
1 otherwise impair in any adverse manner any benefits received
2 b3r the State under the Pitman-Robertson Act (16 U.S.C.
3 669-669 (i)) and the Dingell-Johnson Act (16 U.S.C.
4 777-777(k)).
5 ATJTIIORIZATION OF FUNDS
6 SEC. 15. There is hereby authorized to be appropriated
7 such sums as are necessary to ca.rry o~it the purposes of this
8 Act.
9 SAVINGS CLAUSE
10 SEC. 16. To the extent that there may be any conflict
11 between any pro\'ision of this Act and any other applicable
12 federal law or laws, the provisions of this Act shall govern.
13 STATUTE OF LIMITATIONS
14 SEC. 17. Notwithstanding any other provision of law:
15 (a) any action to contest the authority of the United
16 States to legislate on the subject matter of this Act, or to
17 contest the legality or constitutionality of this Act or any
18 provision thereof, shall be barred unless the complaint is
19 filed within one hundred and eighty days of the date of
20 enactment of this Act; and
21 (b) any action over which the Court of Claims has
22 jurisdiction under the provisions of section 1505 of tithe
23 28, United States Code, by any Indian, Indian nation,
24 or tribe of Indians affected by section 4 (d) (1) and (2)
25 of this Act shall be halTed unless such action is filed in
PAGENO="0057"
53
15
1 the Court of Claims within three years of the date of
2 enactment of this Act.
3 SEPARABILITY
4 Sno. 18. If any provision of this Act or the applicability
5 thereof is held invalid, the remaining provisions of this Act
6 shall not be afl~ected thereby.
PAGENO="0058"
54
Senator ABOUREZK. We will now hear from Senator Pell.
STATEMENT OP HON. CLAIBORNE PELL, A U.S. SENATOR PROM THE
STATE OP RHODE ISLAND
Senator PELL. Thank you very much. I thank you, Mr. Chairman
and Mr. Roncalio, for arranging for this hearing. I am truly delighted
to be here in support of S. 3153.
This bill represents the first consensus resolution of the 14 Indian
land claim suits that have been filed in the Eastern States in recent
years. This settlement, reached just as a long and costly trial was
about to start is the result of months of hard negotiations between
lawyers for the Narragansetts, private landowners affected by the
suit, and State officials.
This bill, I believe, is a constructive way of resolving the competing
interests of all parties involved in the land claim without waiting the
5-7 years before the controversy would be finally resolved by the
courts.
I particularly would like to commend Governor Garrahy for his
wisdom and leadership in bringing the landowners and the Narragan-
sett Indians together in order to reach the settlement.
I particularly thank, as I said earlier, Senator Abourezk and Con-
gressman Roncalio for scheduling this special joint hearing to consider
this legislation. I realize it was difficult. I thank you both for all
your cooperation and that of your staffs in working out the details of
this bill in the short time since its introduction May 25.
The $3.5 million authorized under this bill will be paid to a public
corporation to be created in our State for the purpose of purchasing
approximately 900 acres of privately owned land in Charlestown from
landowners who are willing to sell their property at fair market value.
The public corporation will hold the property acquired from land-
owners in trust for the benefit of the Narragansetts.
No funds will actually be paid to the public corporation until the
Department of the Interior makes a finding that the Narragansett
claim is a credible one and until such time as the State legislature
passes ¶ippropriate legislation authorizing the conveyance of the State's
900 acre settlement contribution to the newly created corporation.
As part of the settlement agreement embodied in this legislation,
all Narragansett Indian land claims are extinguished upon passage of
the appropriate State legislation, and all non-Narragansett claims are
extinguished 6 months after enactment of this bill that we are dis-
cussing today.
I would urge your committee to act onthis bill as quickly as possible.
The court action created by the Indian land claim virtually immo-
bilized the town of Charlestown, R.I., jeopardizing bond issues for the
town, and preventing landowners from selling, mortgaging, or devel-
oping their property. .
In addition, the private defendants in this lawsuit have borne for
over 3 years the financial burden of defending a major lawsuit when
none of them have the economic ability to support the expense of
litigation. It is time that Congress end the uncertainty created by the
land claim, for the landowners and the town, and for the Narragan-
setts, a great people who are entitled to a congressional resolution of
PAGENO="0059"
55
their historic grievances. I believe that, in reporting favorably on this
bill, you will be doing justice to all parties who are fully in support
of this measure and anxious that it pass in this session of Congress so
that further hardship and uncertainty can be avoided.
By passing this bill, you would also set a precedent for all the other
States up and down the seaborad with similar claims. We would hope
that this could serve as a beacon light for them.
Senator ABOTJREZK. Senator Pell,. thank you very much for an
excellent statement.
I have to agree with you on that. Instead of the confrontation that
we have seen with the Indian tribes, the States, and the people of the
States, especially in the Nonintercourse Act claims, if each of them
could arrive at a consensus as Rhode Island has-I think it is a shining
example for the rest of the country.
All of you are to be congratulated for your participation in it.
Senator PELL. Thank you very much, Mr. Chairman.
Senator ABOTJREZK. Senator John Chafee is next.
STATEMENT OF HON. IOHN CHAPEL, A U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator CHAFEE. Thank you very much, Mr. Chairman. I would
like to thank you and Mr. Roncalio for scheduling this hearing and for
taking up this measure.
I support fully everything that Senator Pell said. I would just like to
add a couple of comments. First of all, this has created turmoil in the
town of Charlestown, as you could well anticipate, upsetting the rights
of the landowners there. There is uncertainty that accompanies the
indefiniteness of the title and, of course, its effect, in a way, of the
economy of the whole State.
Second, I would like to stress that this has been worked out in
court, as you mentioned, Mr. Chairman. After arduous negotiations,
all parties did reach this agreement, which they are now supporting-
each of them.
As Senator Pell mentioned, the Narragansett Indians are a dis-
tinguished tribe. We are delighted that this settlement permits them
to renew their claims in certain very ancient and historic lands for them.
Third, I would like to make the point that the State of Rhode
Island is making a contribution here of some 900 acres. I think that is
important when we come here asking for the Federal Government's
contribution.
Finally, I would like to stress that we would hope that the committee
and the Congress would not feel that all the claims in all the other
States have to somehow be settled before we get on with this one. We
have, as you mentioned, arrived at a settlement. Although the issues
are complex, they have been resolved.
I just hope that we would not wait for a settlement to be arrived at
in Maine or New York or wherever it might be before we could step
forward and get this one disposed of in accordance with the agreement
that the parties worked out.
That is my plea I leave with you, Mr. Chairman and members of
the committee.
I believe you are going to hear from Lt. Gov. Thomas Diluglio and
lion. Edward Manning and various representatives of the parties
involved. You will find wholehearted support of this agreement.
PAGENO="0060"
56
Thank you very much.
Senator ABOUREZK. Thank you.
I can just say that we will attempt to move this legislation as
rapidly as possible. When we get some of the people agreeing on some-
thmg as controversial as this, it is no use waiting too long because they
may change their minds later on.
We have a markup session scheduled in about a week. We. intend to
move it at that point.
Senator PELL. This is one of the worries that we have; it could un-
ravel unless we do take advantage of the parties agreement. On the
other hand, if we do take advantage of the consensus, then it could
serve as an example in other parts of the country.
Senator ABOUREZK. I cannot speak for the House side but I know
that we will move it very rapidly.
Senator PELL. Thank you.
Senator CHAFEE. Thank you.
Senator ABOUREZK. I would like to thank both of you for your
appearance. We appreciate it very much.
Is Congressman Beard here yet?
[No response.]
Senator ABOUREZK. We will hear from the Lieutenant Governor
of . Rhode Island, Thomas Diluglio, and Eric Jankel, executive
assistant to the Governor. Both are from Providence. We welcome
you both to the committees' hearing.
The Governor notified us that he was not able to come because
of conflict. We wanted to have him here at the hearings. We tried
our best to accommodate him. We set the hearings at a different
date. I understand how Governors get called away at different times.
It is the same with all politicians. Something comes up that requires
that they miss scheduled appointments.
We are grateful for the participation in this settlement of the
Governor and his office and of you folks here.
STATEMENT OP THOMAS L. DILUGLIO, LIEUTENANT GOVERNOR,
STATE OF RHODE ISLAND, ACCOMPANIED BY ERIC R. JANKEL,
EXECUTIVE ASSISTANT TO THE GOVERNOR
Mr. DILuGLI0. Mr. Chairman, my name is Thomas Diluglio
I am Lieutenant Governor of Rhode Island; and I come here today
on behalf of Gov. J. Joseph Garrahy, who proffers to you his apologies
for being unable to testify in person.
I am indeed pleased and privileged to be here today on behalf of
Governor Garrahy to speak on the Indian land claim settlement which
has been achieved in Rhode Island. With me is Eric R. Jankél,
Governor Garrahy's executive assistant for policy.
As all of you know, the Eastern Seaboard States have been attempt-
ing to cope with the very difficult problem of Indian land claims for
the past 3 or 4 years. These claims have raised very difficult legal,
philosophical, and moral questions in each and every State where
a claim has been advanced as well as for the Congress of the United
States.
Our Founding Fathers have left us with a most difficult type of
problem to resolve. To weigh in the context of our contemporary
society the subjective considerations of tribal status at several points
PAGENO="0061"
57
in our historical development is a most profound if not impossible
assignment.
We, in Rhode Island, have taken a somewhat independent view
of our own situation. Mr. Chairman, I would like to give both of the
distinguished committees the benefit of our thinking on the approach
to this problem.
First, the Rhode Island Indian land claim is small in relative terms.
The claim area encompasses some 3,200 acres in the single town of
Charlestown. In Mashpee, Mass., the claim is for some 16,000 acres;
and in Maine the claim is for over 10 million acres.
About half of the 3,200 acres claimed is State-owned land which, of
necessity, made the State government a defendant in this legal action.
Second, the Narragansett Indians have a strong local identity
because there has been a consistent presence in the community, and
in more recent years Indian organizations have been dedicated to
providing social servlces to, and expanding economic opportunities
for, their clientele.
Both of those goals are laudable. It seems clear to us that a land
base should be a positive factor, particularly in developing new job
opportunities. This is consistent with our State policy.
rfhird it appeared to the Governor at the beginning of settlement
negotiations that there was a strong will to settle this matter outside
of the lengthy and agonizing litigative process which was set in motion
by the filing of the claim initially.
I would like to emphasize at this point that the settlement was
negotiated by and between the parties in a businesslike and straight-
forward manner. There was a potential for extreme emotionalism due
to frustration and the economic effect which is being felt within the
community due to the restrictions of land transaction throughout
Charlestown. Yet, the parties were persistent in moving toward their
mutual objectives.
Mr. Chairman, all of the counsels to the parties should be compli-
mented for their professionalis~m and high standards. The individual
plaintiffs and defendants must be praised for their patience, endurance,
and courage in confronting this action directly.
All of you are familiar with the details of our settlement. It has been
iterated to you this morning by Senator Pell.
I would like to thank all of you on behalf of Governor Garrahy for
your special attention to this matter.
Before I close, 1 would like to thank the members of your respective
staffs who have worked so diligently with the Rhode Island delegation
in shaping the congressional bills necessary to enact the settlement.
Both Mr. Parker and Mr. Ducheneaux were very helpful; their
assistance is most appreciated.
I know that Speaker Manning is here to comment from the per-
spective of the Rhode Island Legislature. Mr. Jankel and Mr. Brody,
special assistants to the attorney general of Rhode Island, are here to
answer any specific or detailed questions that you may have on this
matter.
Incidentally, I would like to congratulate the chairman for his
statement with respect to the appreciation of the exigency of the
matter and his intention to move the matter forward expeditiously.
Thank you very much.
Senator ABOUREZK. Thank you very much.
Do you have a separate statement, Mr. Jankel?
PAGENO="0062"
58
Mr. JANKEL. No, Senator.
Senator ABOUREZK. We have a great many witnesses. We have got
to hear them this morning. Otherwise, we would have some questions
to ask you.
I just want to express my thanks and ask Congressman Roncalio,
chairman of the House Subcommittee on Indian Affairs, if he would
like to ask anything or say anything.
Mr. RONcALIO. I have no questions. I thank you for your testimony.
Senator ABOUREZK. Thank you very much.
The next witness is Hon. Edward P. Manning, spe aker of the Rhode
Island General Assembly in Providence, R.L Speaker Manning has
been before this committee at a prior time. He testified on the tribal-
State compact bill.
I would like to welcome you once again, Speaker Manning.
STATEMENT OP HON. EDWARD P. 1~ANNING, SPEAKER, RHODE
ISLAND GENERAL ASSEMBLY
Mr. MANNING. Thank you, Mr. Chairman and Chairman Roncalio.
I wonder if I may digress from this hearing for a moment and state
for the record that those of us who have been involved in Indian
affairs~ with the National Conference of State Legislators and the
Council of State Governments wish to wish you well, Senator, in
whatever your intentions are in your life. We are sad that you are
not going to come back to the Senate. You will be sorely missed by
those of us who are involved. We deeply appreciate your involvement
in these issues.
Senator ABOTJREZK. Thank you very much, speaker.
Mr. MANNING. Senator, you have heard testimony already with
respect to how these land cases in Charlestown have adversely affected
the economy of the area and the people and their inability to sell
their homes. You will hear more of that.
I am here basically to speak about a significant aspect of the settle-
ment proposal. That is the degree of Federal and State cooperation
needed to implement the settlement. The settlement proposal which
has been agreed upon contemplates the enactment of appropriate
legislation by both Congress and the Legislature in the State of Rhode
Island.
I think this conceivably could be a historic first. We certainly in
Rhode Island stand ready to coordinate and cooperate in every f ash-
ion with the Congress in implementing this so-called agreement.
I think that we have already put into the Rhode Island Legislature
a draft of the legislation that will be tailored to your own legislation
once you pass it. I submit that to you here.
I think Congress has the opportunity to take this first step in achiev-
ing the goal of cooperation between the State and Congress with re-
spect to an Eastern Indian land claim. Draft legislation, as I state,
is here. I assure you that we will dedicate, and my office will dedicate
all its efforts, to making sure that, if Congress does their part, the
State of Rhode Island and its legislature will do theirs.
Thank you, Senator.
Senator ABOTJREZK. Speaker Manning, thank you very much for an
excellent statement. I appreciate it.
I think we can get ours done.
PAGENO="0063"
59
Mr. Roncalio, the witnesses have been saying that, before this thing
comes apart, they would like to see it get through both the House and
Senate.
We are going to mark it up in about a week's time. You might want
to provide an estimate of when you think you can get it marked up.
Mr. RONCALIO. I think we can get it marked up fast enough, but
its success on the floor of the House will be a very serious undertaking.
We have a Hawaiian claims bill. We have two Indian claims types
of legislation to come before it. We will try to get it marked up.
Mr. MANNING. Thank you, Mr. Chairman.
Senator ABOUREZK. Thank you very much.
The next witness is William Brody, special assistant attorney
general.
Mr. BRODY. I would like to welcome you to the committee hearings.
STATEMENT OP WILLIAM G. BRODY, SPECIAL ASSISTANT ATTOR-
NEY GENERAL, STATE OP RHODE ISLAND AND PROVIDENCE
PLANTATIONS
Mr. BR0DY. Thank you, Mr. Chairman and Chairman Roncalio.
Mr. Chairman, I have prepared a statement which I have sub-
mitted to the staff already. With your permission, I would submit
that for the record.
Senator ABOTJREZK. I have encouraged all witnesses to submit their
written statements for the record and just ad lib their testimony. It
would be appreciated.
Mr. BRODY. Mr. Chairman, my ad lib would be simply to make
one point. This particular piece of legislation arises out of a settlement
agreement which was entered into by the parties and by the officials
of the State of Rhode Island.
I think it is a significant point that it comes from that direction.
After a great deal of negotiation, work, and exercise among the parties,
~ have arrived at that particular point, signed an agreement and
then came down to Washington to propose and draft legislation to
implement that particular agreement.
Along these lines, as a direct participant in all those negotiations,
I would like to take this opportunity to thank my fellow participants
for the hard work that they have put into it. I do not think that it
can be denied that everybody contributed everything they could. I
include in that group the attorneys for the plaintiffs, the private
defendants, the officers of the State of Rhode Island, the Governor's
office, the Speaker of the House of Representatives of the State of
Rhode Island, and the leaders of the General Assembly. Also in-
cluded, significantly, are the staff of our congressional delegation.
We are all very, very grateful, of course, to the staff of both the
House subcommittee and the Senate select committee.
Mr. Chairman, I would like to take this opportunity to submit into
evidence, as I indicated in my prepared testimony, a signed duplicate
copy of the joint memorandum of understanding concerning settle-
ment of the Rhode Island Indian land claims. In addition to that
original signed duplicate, I will submit a certification that an addi-
tional signed original copy of that document has been filed with the
Secretary of State of the State of Rhode Island for reference.
Senator ABOTJREZK. Without objection, that and your prepared
statement will be entered into the record.
[The material referred to follows :}
PAGENO="0064"
60
June 20, 1978
JOINT HEARING
UNITED STATES SENATE SELECT COMMITTEE
ON INDIAN AFFAIRS
UNITED STATES HOUSE OF REPRESENTATIVES
SUBCONITTEE ON INDIAN AFFAIRS AND PUBLIC LANDS
TESTIMONY OF
WILLIAM GRANFIELD BRODY
SPECIAL ASSISTANT ATTORNEY GENERAL
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PAGENO="0065"
61
Chairman Abourezk, Chairman Roncalio, members of the
Committees, first of all, on behalf of Julius C. Michaelson,
Attorney General of the State of Rhode Island, I wish to take
this opportunity to convey his sincere personal regrets that he
could not be here this morning to testify himself. Unfortu-
nately, other pressing matters prevented him from coming to
Washingtion today. He has asked me to express his sincere be-
lief that the Settlement Agreement, which is embodied in the
proposed legislation before you, is a fair and equitable solu-
tion to the situation now exising in the Town of Charlestown,
Rhode Island, and one which does justice not only to the plain-
tiffs and the defendants in the lawsuits, but also to all of
the citizens of Rhode Island, the State and the United States.
The bill before you has been proposed as part of a set-
tlement to two lawsuits that were originally filed in the United
States District Court for the District of Rhode Island in
Janua~ry, 1975. Later consolidated by order of the Court, one
of the lawsuits affected over 1,600 acres of State-owned land
in the Town of Charlestown, Rhode Island. The other involved
almost the same amount of privately owned land in that Town. In
both actions the Plaintiff Narragansett Tribe of Indians claimed
that the land in question had been, at some point prior to 1880,
sold or otherwise transferred in violation of the Indian Trade
and Intercourse Act of 1790 (currently found, as subsequently
amended, at 25 U.S.C. § 177), and each sought immediate return
of all the land to the Plaintiff.
I first person:ally became involved in this matter when
30-979 0 - 78 - 5
PAGENO="0066"
62
the State's case was assigned to me in January, 1976. From
that time I and all of the other legal counsel on both sides
became engaged in the enormous task of Preparing this case for
trial, in all of its complex legal and factual aspects. Sev-
eral legal issues have already been presented to the Court
while numerous others remain. At the sane time, the task of
investigating the factual and historical information involved
in a case of this type and magnitude was carried on in its
unique and astounding fashion.
During the course of these trial preparations, the law-
yers for the parties in the lawsuits began to sound each other
out as to, first of all, possible interest in settlement nego-
tiations. These initial soundings did produce results, although,
I must say in cander, they did not appear to be all too optimis-
tic. Well over a year ago, however,.we began the first of our
what later seemed innumerable, and at times interminable, set-
tlement negotiation sessions.
I think that the other participating lawyers will agree
with me that the biggest key to the eventual success of our
negotiations came from the personal interest, direct involvement
and crucial suggestions of Governor J. Joseph Garrahy. With
these as a backdrop, the negotiators were able'to perceive the
actual possibility of settlement and explored these opportunities
not only with their clients, but also with necessary "non-parties,"
such as Speaker Manning and the Rhode Island General Assembly,
the Charlestown Town Counsel, our Congressional delegation and
the White HOuse.
PAGENO="0067"
63
At the end of this long road we achieved what Attorney
General Michaelson has described as a "fair and equitable solu-
tion" to the pending lawsuits. The settlement agreement was
reduced to writing in a document entitled, "Joint Memorandum
of Understanding Concerning Settlement of the Rhode Island In-
dian Land Claims" and signed by counsel for all parties to the
lawsuits as well as Governor Garrahy and, after a unanimous
vote, the Charlestown Town Council (by its president, Robert
McLean). I am submitting today into the record of this hearing
a signed duplicate original of that document. For reference, a
signed original of the Joint Memorandum has also been filed
with the office of the Secretary of State of the State of Rhode
Island. I am also submitting into the record a certification
to that effect by the Secretary.
The importance of the Joint Memorandum to the proposed
legislation is obvious. If we had not first gone through the
long process that led to the signing of the Joint Memorandum,
we would not be here before you today. At the same time, if the
proposed legislation is not enacted by Congress, that Joint
Memorandum becomes a worthless pieceof paper. The parties to
these lawsuits simply cannot effect a settlement on their own.
Because of the very nature of these cases, brought under the
Indian Trade and Intercourse Act, and because of the exclusive
powers granted to Congress by Article 1, Section 8 of the United
States Constitution, appropriate action by Congress is required,
if we are ever to see a resolution of the situation now present
in Rhode Island.
PAGENO="0068"
64
Please let me advise the Committees that the Joint
Memorandum was not hastily drawn, nor was it drafted in any
vacuous manner for solely the interests of the parties to the
lawsuits. Rather, what the Joint Memorandum as well as the
proposed legislation evidence is a serious desire to arrive
at a settlement proposal in light of the grand picture, con-
sidering the position and best interests of all, both parties
and non-parties, whose assistance is needed for its implemen-
tation. This studied effort is reflected in the fact that the
agreement carries the signature of Governor Garrahy and Charles-
town Town Council President McLean, and was achieved only after
thorough consultation with Speaker Edward Manning and the leader-
ship of the Phode Island General Assembly. Prior agreement to
the settlement proposal by the Executive and Legislative Branches
of the United States, of course, was unfeasible. The concerns
of both the lawyers and the Administration, however, were amply
presented during our discussions and are, I believe, fully pro-
tected in the product' thereof.
I cannot say that the proposed settlement agreement or
the process by which it was achieved should be a nodel to be
followed by others in this country who face similar situations.
That is for others to judge. I can say, however, that the pro-
posed settlement is one of which all of us, plaintiffs, defend-
ants, Rhode Island and the United States, can be proud, not just
for its resolution of a legal controversy, but for its treatment
of the underlying concerns of both~ Native Americans and non-Indians
alike. For these reasons I respectfully urge passage of the
pending legislation.
PAGENO="0069"
65
11JointMeniorandurnof Understanding
Concerning Settlement of the Rhode
Island Indian Land Claims~
~tat~ ul ~tU~u1ir 3hdanb
anIi ~frnuth1?uri~ 1~1tnuIatijnm
3~rpartmrnt a! ~`tatr
UI ttti~ ~`rrrrtarg uI ~`tatr
~ruuthrun~
June 19, 1978
PAGENO="0070"
66
STATE OF RHODE ISLAND & PROVIDENCE PLANTATIONS
DEPARTMENT OF THE ATTORNEY GENERAL
PROVIDENCE COUNTY COURT HOUSE
PROVIDENCE
JUUUS C.MICHAELSON
ATTORNEY GENERAl.
June 1, 1978
The Honorable Robert F. Burns
Secretary of State
State House
Providence, RI 02903
Re: Narragansett Indian Land Claim Settlement Agreement
Dear Mr. Secretary:
Enclosed please find an original, executed "Joint
Memorandum of understanding Concerning Settlement of the
Rhode Island Indian Land Claims."
I am forwarding this document to you with the re-
quest that it be duly filed and recorded in the Office
of the Secretary of State.
Thank you for your attention to this matter.
Very truly yours,
C. MICHAELSON
GENERAL
JCM : JC
Enclosure
PAGENO="0071"
67
EXECUTION COPY 2728/78
JOINT MEMORANDUM OF UNDERSTANDING
CONCERNING SETTLEMENT OF THE.
RHODE ISLAND INDIAN LAND CLAIMS
All parties to Narragansett Tribe of Indians v.
Southern Rhode Island Land Development Co., et al, C.A. No.
75-0006 (USDC, DRI) . and Narragansett Tribe of Indians v.
Rhode Island Director of Environmental Management, C.A. No.
75-0005 (USDC, DRI) (together called the Lawsuits) and the
other undersigned persons interested in the settlement of
Indian land claims within the State of Rhode Island hereby
agree to the following principles and provisions of settlement
which are, except for the provisions of Section 18 below, to
be considered as inseparable, dependant requirements and
which are all conditioned upon requisite, favorable and
timely action by the appropriate executive and legislative
branches of the governments of the State of Rhode Island and
the United. States of America:
1. That astate chartered corporation (the "State
Corporation") will be created with an irrevocable charter
for the purpose of acquiring, managing and permanently
holding the lands defined in Sections 2 and 3 below (the
"Settlement lands); the State Corporation will be controlled
by a board of directors, the majority whose members will be
chosen by a Rhode Island corporation known as "The Narragansett
Tribe of Indians" (the "Indian Corporation") or its successor
and the remaining members chosen by the State of Rhode
Island.
2. That the State of Rhode Island will contribute
the Indian Cedar Swamp, the Indian Burial Hill, the land
around Deep Pond, and an easement from Kings Factory Road to
Watchaug Pond to the State Corporation. These public portions
of the Settlement Lands total approximately 900 acres.
Contribution of the State land around Deep Pond is subject
to the restrictions set forth below in Section 17.
3. That the Settlement Lands will also include
approximately 900 acres of land located within the area
outlined in red on the nap attached hereto marked Exhibit A.
The Settlement Lands shall specifically include those lands
held by the defendants named in the Lawsuits which are
enumerated on the schedule attached hereto as Exhibit B.
These privately held portions of the Settlement Lands shall
be acquired at fair market value established without regard
to the pendency of the Lawsuits. No private landowner shall
be required to convey any land hereunder without his or her
consent, which shall be deemed to have been given upon
PAGENO="0072"
68
execution of a mutually acceptable option agreement (the
"Option'). Any landowner executing an Option shall be paid
a nonrefundable option fee by the federal government equal
to 5% of the purchase price for a 2-year option. The optionee
shall have the right to renew the option for one additional
year for a renewal fee paid by the federal government of
2.5% of the purchase price.
4. That the parties to the Lawsuits will support
efforts to obtain deferral of both state and federal income
taxes resulting from the conveyance of privately held portions
of the Settlement Lands.
5. That the federal government will provide the
funds, in an amount not in excess of 3.5 million dollars, to
acquire the privately held portions of the Settlement
Lands.
6. That Federal legislation shall be obtained
that eliminates all Indian claims of any kind, whether
possessory, monetary or otherwise, involving land in Rhode
Island, and effectively clears the titles of landowners in
Rhode Island of any such claim. This Federal legislation
shall be in form and substance as set forth in the proposed
statutory language attached hereto as Exhibit C, unless
otherwise agreed by counsel for the private Defendants in
the Lawsuit. This legislation shall not purport to affect
or eliminate the claim of any individual Indian which is
pursued under any law generally applicable to non-Indians as
well as Indians in Rhode Island.
7. That the Settlement Lands shall be subject to
a speo~ial federal restriction against alienation, provided
that nothing in the federal restriction or in any other
aspect of this memorandum shall affect the ability of the
State Corporation to grant or otherwise convey (whether
voluntary or involuntary, including any eminent domain or
condemnation proceedings) easements for public or private
purposes.
8. That the Settlement Lands will be held in
trust by the State Corporation for the benefit of the descendants
of the 1880 Rhode Island Narragansett Roll.
9. That the Settlement Lands will not be subject
to local property taxation.
10. That the federal government will reimburse the
private defendants in the lawsuits for costs incurred or
paid for legal services and disbursements in connection with
the lawsuits with respect to any lands involved in the
Lawsuits which are not specified in Exhibit B and for which
an Option is not executed.
-2-
PAGENO="0073"
69
11. That the State Corporation will have the right
(after consultation with appropriate state officials) to
establish its own regulations concerning hunting and fishing
on the Settlenent Lands without being subject to state
regulations, but shall impose minimum standards for safety
of persons and protection of wildlife and fish stock.
12. All the Settlement Lands contributed by the
State will be permanently held for conservation purposes by
the State Corporation.
13. That, except as otherwise specified in this
Memorandum, all laws of the State of Rhode Island shall be
in full force and effect on the Settlement Lands, including
but not limited to state and local building, fire and safety
codes.
14. That all settlement lands will be subject to a
professionally prepared land use plan (the "Land Use Plan)
mutually acceptable to the State Corporation and the Town
Council. Acceptance of the Land Use Plan shall not be
unreasonably withheld by the Town Council. At least seventy-
five percent of the Settlement Lands not already committed
to conservation purposes by Section 12 above will be permanently
subjected to conservation uses by the Land Use Plan. Town
Council acceptance of the Land Use Plan shall be a condition
precedent to the acquisition of the Settlement Lands by the
State Corporation. The Town Council, after its acceptance
of the Land Use Plan, shall amend the zoning ordinance of
the Town of Charlestown in a manner consistent with the Land
Use Plan as it applies to the Settlement Lands. Thereafter,
the zoning ordinance, as amended to conform with the Land
Use Plan, shall control the use of the Settlement Lands and
shall not be further amended in a manner inconsistent with
the Land Use Plan without the consent of the State Corporation.
15. That the plaintiff in the Lawsuits will not
receive Federal recognition for purposes of eligibility for
Departhient of the Interior services as a result of Congressional
implementation of the provisions of this Memorandum, but
will have the same right to petition for such recognition
and services as other groups.
16. That the Town of Charlestown will be reimbursed
for future services provided in connection with the Settlement
Lands with funds provided by the Indian. corporation.
17. That contribution by the State of the land
around Deep Pond is conditioned upon required and appropriate
Federal approval of any conveyance of said land in such
manner so as not to affect, in any adverse manner, any
-3--
PAGENO="0074"
70
benefits received by the State under the Pittman-Robertson
Act (16 U.S.C. §669-669i) and the Dingell-Johnson Act (16
U.S.C. §777-777k), and further conditioned upon the retention
of permanent State control of and public accesa to an adequate
fishing area within said land.
18. That implementation of all provisions of this
Memorandum, except those of Sections 6, 10 and 19, and the
payment of the option fees provided for in Section 3 above
shall be contingent upon a prompt determination by the
Department of the Interior that the Plaintiff in the Lawsuits
have a credible claim to the lands involved in the Lawsuits.
Plaintiff shall have an opportunity for judicial review of
any adverse determination by the Department of the Interior.
19. The Plaintiffs in the Lawsuits agree to cause
the Lawsuits to be dismissed with prejudice at the time the
portion of the Federal legislation which eliminates title
problems pursuant to Section 6 above becomes effective.
WITNESS the execution hereof under seal as of this
twenty-eighth day of February, 1978.
HONORABLE J. JOSEPH GARRAHY,
Governor of State of Rhode Island
and Providence Plantations
~ «=e~L7
TOWN OF CHARLESTOWN, RHODE IS ND
TOWNC~V ø~
PLAINTIFF: NARRAGANSETT TRIBE OF INDIANS,
By their attorneys,
NATIVE CAN RIGH FUND
DEFENDANTS: EDWARD WOOD, RHODE ISLAND DIRECTOR
OF ~
~
~~i1li cfr~ nfie Brody,
Assistant At~øvney General,
State of Rhdde Island
-4-
PAGENO="0075"
71
David F. Giuliano
Paul E. Bennett
Alfred Testa
By GOODWIN/~PROCTER & HOAR,
their at eys,
By____
Robert E. Cherry
Castle Realty Company
Glenn F. Godden
Mildred L. Godden
John S. Johnson
Alice Johnson
Ethel W. Duguid
Providence Boys Club
Greater Providence Young Hens
Christian Association
Sarah J. Browning
William F. Arnold
Ruth Arnold
Thomas L. Arnold
William Arnold
Frank W. Arnold
Thomas L. Arnold, William
Arnold, Frank W. Arnold
and the Washingt~on Trust
Company as trustees for
the Estate of Frank Arnold
Thomas L. Arnold, Laurence
Whittemore and the
* C Washington Trust Company
as trustees for the
* ( Thomas L. Arnold Trust
Hope W. Hallock
Edna May McKenzie
Lloyd E. Fitzgerald
Joyce H. Fitzgerald
Edward A. Whipple
Pauline Whipple
By TILLINGHAST, COLLINS & GRAHAM,
their attorneys,
PAGENO="0076"
72
SOUTHERN RHODE ISLAND LAND
DEVELOPMENT CORP., /7
~
Archibald B. K~nyon,,4r.
/ /
FRANKLIN SHORES, INC..
by its attorney,
By O~&U~0~ ./
~ohn P. Toscano, Jr.
EDNA MAE REED, by her attorney,
CARL N. RICHARD, by his attorney,
By~~1~1i~ ~44~244~'
Francis Castrovillari
OLD STONE BAN~, by its attorney,
* By/~/MtJ~/~.
Frank Ra
OLD COLONY CO-OPERATIVE BANK,
by its attorney, *
ARCHIBALD B. KENYON,
-6-
PAGENO="0077"
73
EXHIBIT A
f~v1 A U ii~ Jrin~~
Exhibit "A'
PAGENO="0078"
74
EXHIBIT B
Providence Boys' Club (with the exception of approximately
100 acres of land adjoining Schoolhouse Pond and
Lot No. 17)
Greater Providence Young Mens' Christian Association
Hope W. Hallock
Edna May McKenzie
Southern Rhode Island Land Development Corporation
Franklin Shores, Inc.
Edna Mae Reed
Carl M. Richard (including only lots numbered 5, 7, 8
and 9 and provided further that this land shall be
held permanently for conservation purposes and neither
the State Corporation, Indian Corporation nor any
beneficiary thereof shall have standing in any z~ning
or other administrative or judicial proceeding involving
land presently owned by Castle Realty Company)
Approximately 12 acres of land of David F. Giuliano
PAGENO="0079"
75
2/13/78
R1IODC ISLf~ND EXHIBIT C
INDIAN CLAIt1S STATUTE
SEC. 1 (a) Any transfer of lands or waters located
within the State of Rhode Island from, by or on behalf of
any Indian, Indian nation or tribe of Indians, including but
not limited to a transfer pursuant to any statute of the
State of Rhode Island, was and shall be deemed to have been
made in accordance with the Constitution and all ~laws of the
United States that are specifically applicable to transfers
of lands or waters from, by or on behalf of any Indian,
Indian nation or tribe of Indians (including but not limited
to the Trade and Intercourse Act of 1790, Ch. 33, §4, 1
Stat. 138, and all amendments thereto and all subsequent
versions thereof), and Congress does hereby approve and
ratify any such transfer effective as of the date of the
said transfer.
(b) To the extent that any transfer of lands or
waters described in subsection (a) may involve lands or
waters to which any Indian, Indian nation or tribe of Indians
had aboriginal title, subsection (a) shall be regarded as an
extinguishment of such aboriginal title as of the date of
said transfer.
(c) By virtue of the approval and ratification of
a transfer of lands or waters effected by subsection (a) or
an extinguishment of aboriginal title effected thereby, all
claims against the United States, any state or subdivision
PAGENO="0080"
76
thereof, or any other person or entity, by any Indian,
Indian nation or tribe of Indians, inc1udin~but not limited
to claims for trespass damages or claims for use and occupancy,
arising subsequent to the transfer and that are based upon
any interest in or right involving such lands or waters,
shall be regarded as extinguished as of the date of the
transfer.
(d) As used in this section, the phrase `lands or
waters" shall include any interest in or right involving
lands or waters, and the term "transfer" shall include but
not be limited to any sale, grant, lease, allotment, partition,
conveyance, or any transaction the purpose of which was to
effect a sale, grant, lease, allotment, partition or conveyance;
or any event *or events that resulted in a change in,possession
or control of lands or waters.
-2-
PAGENO="0081"
77
~`tat~ ii! 3tUnt1ii~ ~Jztanb aub ~runth~urr ~tantatiauu
~i~tartnwut uf ~`tati~
(!3ffire uf tt~e ~,rrt~tarU uI ~Iatt'
f FREDERICK A. MASSARO, First Deputy ~ ~/e~U~?
q'& M~de o/~hie Jda,zd and ~Y3c~,zce ~nA~ó~
~ QIrrtif~j ,id~~e 7/'~2 oem, ~ó t~ae xerographic
~ the original, executed Joint Memorandum of Understanding Concerning
Settlement of the Rhode Island Indian Land Claims' together with a letter from
the Honorable Julius C. Michaelson, Attorney General of Rhode Island; the same
being --
A~en ,L~m d ~eco~c/~ ~ ~ o/~e and conz/ta~ed adtl de
documents aforesaid filed in this office on the fifth day of June,
A.D. 1978, - - ---~---
and noiii ~ iae~nt~z, on/b and o/~eccvi~dô~ ~ oj~e.
11n ~Ii~eIimutq~ ThI~i'rflhI, J4ave ,ie,'e(2ie~
~et my A~~d a~iui a/xed de ~ea/
$~ 0/~h JL~ tt~
ninteenth (/((f ~/2
June 21 ~
/ / /
First beputy Secretary of Stare.
30-979 0 - 78 - 6
PAGENO="0082"
78
JOINT MEMORANDUM OF UNDERSTANDING
CONCERNING SETTLEMENT OF THE
RHODE ISLAND INDIAN LAND CtAIMS
FROM THE OFFICE OF
- GOODWIN.PROCTER& HOAR
ATTORNEYS & COUNSELLORS
28 STATE STREET, BOSTON
PAGENO="0083"
79
EXECUTION COPY 2/28/78
JOINT MEMORANDUM OF UNDERSTANDING
CONCERNING SETTLEMENT OF THE
RHODE ISLAND INDIAN LAND CLAIMS
All parties to Narragansett Tribe of Indians v.
Southern Rhode Island Land Development Co., et al, C.A. No.
75-0006 (USDC, DRI) and Narragansett Tribe of Indiansv.
Rhode Island Director of Environmental Management, C.A. No.
75-0005 (USDC, DRI) (together called `the Lawsuits") and the
other undersigned persons interested in the settlement of
Indian land claims within the State of Rhode Island hereby
agree to the following principles and provisions of settlement
which are, except for the provisions of Section 18 below, to
be considered as inseparable, dependent requirements and
which are all conditioned upon requisite, favorable and
timely action by the appropriate executive and legislative
branches of the governments of the State of Rhode Island and
the United States of America:
1. That a state chartered corporation (the "State
Corporation') will be created with an irrevocable charter
for the purpose of acquiring, managing and permanently
holding the lands defined in Sections 2 and 3 below (the
"Settlement lands"); the State Corporation will be controlled
by a board of directors, the majority whose members will be
chosen by a Rhode Island corporation known as "The Narragansett
Tribe of Indians" (the "Indian Corporation") or its successor
and the remaining members chosen by the State of Rhode
Island.
2. That the State of Rhode Island will contribute
the Indian Cedar Swamp, the Indian Burial Hill, the land
around Deep Pond, and an easement from Kings Factory Road to
Watchaug Pond to the State Corporation. These public portions
of the Settlement Lands total approximately 900 acres.
Contribution of the State land around Deep Pond is subject
to the restrictions set forth below in Section 17.
3. That the Settlement Lands will also include
approximately 900 acres of land located within the area
outlined in red on the map attached hereto marked Exhibit A.
The Settlement Lands shall specifically include those lands
held by the defendants named in the Lawsuits which are
enumerated on the schedule attached hereto as Exhibit B.
These privately held portions of the Settlement Lands shall
be acquired at fair market value established without regard
to the pendency of the Lawsuits. No private landowner shall
be required to convey any land hereunder without his or her
consent, which shall be deemed to have been given upon
PAGENO="0084"
80
execution of a mutually acceptable option agreement (the
`Option). Any landowner executing an Option shall be paid
a nonrefundable option fee by the federal government equal
to 5% of the purchase price for a 2-year option. The optionee
shall have the right to renew the option for one additional
year for a renewal fee paid by the federal government of
2.5% of the purchase price.
4. That the parties to the Lawsuits will support
efforts to obtain deferral of both state and federal income
taxes resulting from the conveyance of privately held portions
of the Settlement Lands.
5. That the federal government will provide the
funds, in an amount not in excess of 3.5 million dollars, to
acquire the privately held portions of the Settlement
Lands.
6. That Federal legislation shall be obtained
that eliminates all Indian claims of any kind, whether
possessory, monetary or otherwise, involving land in Rhode
Island, and effectively clears the titles of landowners in
Rhode Island of any such claim. This Federal legislation
shall be in form and substance as set forth in the proposed
statutory language attached hereto as Exhibit C, unless
otherwise agreed by counsel for the private Defendants in
the Lawsuit. This legislation shall not purport to affect
or eliminate the claim of any individual Indian which is
pursued under any law generally applicable to non-Indians as
well as Indians in Rhode Island.
7. That the Settlement Lands shall be subject to
a special federal restriction against alienation, provided
that nothing in the federal restriction or in any other
aspect of this memorandum shall affect the ability of the
State Corporation to grant or otherwise convey (whether
voluntary or involuntary, including any eminent domain or
condemnation proceedings) easements for public or private
purposes.
8. That the Settlement Lands will be held in
trust by the State Corporation for the benefit of the descendants
of the 1880 Rhode Island Narragansett Roll.
9. That the Settlement Lands will not be subject
to local property taxation.
10. That the federal government will reimburse the
private defendants in *the lawsuits for costs incurred or
paid for legal services and disbursements in connection with
the lawsuits with respect to any lands involved in the
Lawsuits which are not specified in Exhibit B and for which
an Option is not executed.
PAGENO="0085"
81
11. That the State Corporation will have the right
(after consultation with appropriate state officials) to
establish its own regulations concerning hunting and~ fishing
on the Settlement Lands without being subject to state
regulations, but shall impose minimum standards for safety
of persons and protection of wildlife and fish stock.
12. All the Settlement Lands contributed by the
State will be permanently held for conservation purposes by
the State Corporation.
13. That, except as otherwise specified in this
Memorandum, all laws of the State of Rhode Island shall be
in full force and effect on the Settlement Lands, including
but not limited to state and local building, fire and safety
codes.
14. That all settlement lands will be subject to a
professionally prepared land use plan (the "Land Use Plan")
mutually acceptable to the State Corporation and the Town
Council. Acceptance of the Land Use Plan shall not be
unreasonably withheld by the Town Council. At least seventy-
five percent of the Settlement Lands not already committed
to conservation purposes by Section 12 above will be permanently
subjected to conservation uses by the Land Use Plan. Town
Council acceptance of the Land Use Plan shall be a condition
precedent to the acquisition of the Settlement Lands by the
State Corporation. The Town Council, after its acceptance
of the Land Use Plan, shall amend the zoning ordinance of
the Town of Charlestown in a manner consistent with the Land
Use Plan as it applies to the Settlement Lands. Thereafter,
the zoning ordinance, as amended to conform with the Land
Use Plan, shall control the use of the Settlement Lands and
shall not be further amended in a manner inconsistent with
the Land Use Plan without the consent of the State Corporation.
15. That the plaintiff in the Lawsuits will not
receive Federal recognition for purposes of eligibility for
Department of the Interior services as a result of Congressional
implementation of the provisions of this Memorandum, but
will have the same right to petition for such recognition
and services as other groups.
16. That the Town of Charlestown will be reimbursed
for future services provided in connection with the Settlement
Lands with funds provided by the Indian corporation.
17. That contribution by the State of the land
around Deep Pond is conditioned upon required and appropriate
Federal approval of any conveyance of said land in such
manner so as not to affect, in any adverse manner, any
PAGENO="0086"
82
benefits received by the State under the Pittman-Robertson
Act (16 U.S.C. §669-669i) and the Dingell-Johnson Act (16
U.S.C. §777-777k), and further conditioned upon the retention
of permanent State control of and public access to an adequate
fishing area within said land.
18. That implementation of all provisions of this
Memorandum, except those of Sections 6, 10 and 19, and the
payment of the option fees provided for in Section 3 above
shall be contingent upon a prompt determination by the
Department of the Interior that the Plaintiff in the Lawsuits
have a credible claim to the lands involved in the Lawsuits.
Plaintiff shall have an opportunity for judicial review of
any adverse determination by the Department of the Interior.
19. The Plaintiffs in the Lawsuits agree to cause
the Lawsuits to be dismissed with prejudice at the time the
portion of the Federal legislation which eliminates title
problems pursuant to Section 6 above becomes effective.
WITNESS the execution hereof under seal as of this
twenty-eighth day of February, 1978.
HONORABLE J. JOSEPH GARRAHY,
Governor of State of Rhode Island
and Providence Plantations
~ «=c~5
TOWN OF CHARLESTOWN, RHODE ISLAND
TOWN COU
By_____
PLAINTIFF: NARRAGANSETT TRIBE OF INDIANS,
By their attorneys,
NATIVE AMERr'CAN RIGHTS FUND
By~ ~
`Thoma~ `N. ~üreen
DEFENDANTS: EDWARD WOOD, RHODE ISLAND DIRECTOR
OF ENVIRONMENT~L-~NAGENENT
By ~ ..~ ~
~ William G~anfield'Brody,
Assistant Attorney General,
State of Rhode Island
PAGENO="0087"
83
David F. Giuliano
Paul E. Bennett
Alfred Taste
By GOOD~&, PROCTER & HOAR,
their t
`Donald P. Qd~inn~.
Robert E. Cherry
Castle Realty Company
Glenn F. Godden
Mildred L. Godden
John S. Johnson
Alice Johnson
Ethel W. Duguid
Providence Boys Club
Greater Providence Young Mans
Christian Association
Sarah J. Browning
William F. Arnold
Ruth Arnold
Thomas L. Arnold
William Arnold
Frank W. Arnold
Thomas L. Arnold, William
Arnold, Frank W. Arnold
and the Washington Trust
Company as trustees for
the Estate of Frank Arnold
Thomas L. Arnold, Laurence
Whittemore and the
Washington Trust Company
as trustees for the
Thomas L. Arnold Trust
Hope W. Hallock
Edna May McKenzie
Lloyd E. Fitzgerald
Joyce M. Fitzgerald
Edward A. Whipple
Pauline Whipple
By TILLINGHAST, COLLINS & GRAHAM,
their attorneys,
~ ~`~)
-5-
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84
SOUTHERN RHODE ISLAND LAND
DEVELOPMENT CORP., 7
By its attorney,
Archibald B. K2~ñ~Jf~/
FRANKLIN SHORES, INC.,
by its attorney, A
By JL1&LI~ /O~,~(
/ John P. Toscano,
EDNA MAE REED, by her attorney,
Haro d Soloveitzik
CARL M. RICHARD, by his attorney,
By
Francis Castrovlllar.
OLD STONE BANK, by its attorney,
/ /
r~-~ ~ 1,3
By~~/4~ ~ / ~I)/~i
Frank Ray
OLD COLONY CO-OPERATIVE BANK, by its
attorney,
~
1~CI(IBALD 13. KbNYUN, JR. f ./
7
-6-
PAGENO="0089"
85
EXHIBIT A
Nil A !~ ,, IrJrI/\N
Qci~LL»=t" B_.L
Exhibit "A"
(.
0
PAGENO="0090"
86
EXHIBIT B
Providence Boys' Club (with the exception of approximately
100 acres of land adjoining Schoolhouse Pond and
Lot No. 17)
Greater Providence Young Mens' Christian Association
Hope W. Hallock
Edna May McKenzie
Southern Rhode Island Land Development Corporation
Franklin Shores, Inc.
Edna Mae Reed
Carl M. Richard (including only lots numbered 5, 7, 8
and 9 and provided further that this land shall be
held permanently for conservation purposes and neither
the State Corporation, Indian Corporation nor any
beneficiary thereof shall have standing in any zoning
or other administrative or judicial proceeding involving
land presently owned by Castle Realty Company)
Approximately 12 acres of land of David F. Giuliano
PAGENO="0091"
87
2/13/78
RHODE ~LAN~ E)EIIBITC
INDIAN CLAIMS STATUTE
SEC. 1 (a) Any transfer of lands or waters located
within the State of Rhode Island from, by or on behalf of
any Indian, Indian nation or tribe of Indians, including but
not limited to a transfer pursuant to any statute of the
State of Rhode Island, was and shall be deemed to have been
made in accordance with the Constitution and all laws of the
United States that are specifically applicable to transfers
of lands or waters from, by or on behalf of any Indian,
Indian nation or tribe of Indians (including but not limited
to the Trade and Intercourse Act of 1790, Ch. 33, §4, 1
Stat. 138, and all amendments thereto and all subsequent
versions thereof), and Congress does hereby approve and
ratify any such transfer effective as of the date of the
said transfer.
(b) To the extent that any transfer of lands or
waters described in subsection (a) may involve lands or
waters to which any Indian, Indian nation or tribe of Indians
had aboriginal title, subsection (a) shall be regarded as an
extinguishment of such aboriginal title as of the date of
said transfer.
(c) By virtue of the approval and ratification of
a transfer of lands or waters effected by subsection (a) or
an extinguishment of aboriginal title effected thereby, all
claims against the United States, any state or subdivision
PAGENO="0092"
88
thereof, or any other person or entity, by any Indian,
Indian nation or tribe of Indians, including but not limited
to claims for trespass damages or claims for use and occupancy,
arising subsequent to the transfer and that are based upon
any interest in or right involving such lands or waters,
shall be regarded as extinguished as of the date of the
transfer.
(d) As used in this section, the phrase "lands or
waters" shall include any interest in or right involving
lands or waters, and the term "transfer" shall include but
not be limited to any sale, grant, lease, allotment, partition,
conveyance, or any transaction the purpose of which was to
effect a sale, grant, lease, allotment, partition or conveyance,
or any event or events that resulted in a change in possession
or control of lands or waters.
PAGENO="0093"
89
Mr. BRODY. If there are any questions, Mr. Chairman, I will be
glad to try to answer them.
Senator ABOUREZK. I do not have any questions, Mr. Brody.
Do you have any, Mr. Roncalio?
Mr. RONCALIO. No.
Senator ABOUREZK. We would like to thank you very much for
your appearance.
Mr. BRODY. Thank you, Mr. Chairman.
Senator ABOUREZK. Congressman Beard, welcome to the commit-
tee hearing. If you are ready to testify, please go ahead.
Mr. BEARD. Thank you very much. I apologize for being late.
STATEMENT OP HON. EDWARD P. BEARD, A U.S. REPRESENTATIVE
IN CONGRESS PROM THE STATE OP RHODE ISLAND
Mr. BEARD. Mr. Chairman, I am delighted to have the opportunity
to testify on H.R. 12860. I think we are finally arriving at a point
where we see some light on a very, very important issue in the southern
part of our State.
I think that there is in this legislation fairness for the Indians as
well as for the other residents of the Charlestown area and the areas
concerned.
I would hope that this legislation that is before this committee would
be given full consideration. It certainly has to be resolved on the part
of all the parties.
I think the legislation has been drafted so that no one group is going
to get short changed. I think that certainly what is owed to the Indians
in the State of Rhode Island is long overdue. They have a right to get
what belongs to them. On the other hand, the legislation has been
tailored to the modern times that we are living in and to the situations
at hand in Rhode Island. This has to be resolved in order for the
normal business to flow.
I would appreciate this committee giving all aspects, including
money and land, full consideration.
Senator ABOUREZK. We did talk about that some. We intend to
mark it up. I can give you the exact date of our markup session. It is
June 29. We intend to put it on the agenda then and mark it up and
send it to the Senate floor. It should not have any real problem on the
Senate floor.
The House is a different matter. That is something that you and Mr.
Roncalio can handle, I guess.
Mr. BEARD. I will be talking about it, of course, with my colleague.
Anything that can be done to expedite this will be a big help.
It is a dilemma in Rhode Island. It has to be resolved. We are a
small State; still, we need the help. I appreciate my colleague giving
us the chance.
Senator ABOUREZK. I do not think that this will unravel, but you
never know.
Thank you very much.
Mr. R0NCALI0. We will try to get to it by the 10th or 15th of July.
We will try to get it out next month.
Mr. BEARD. Thank you.
Senator ABOTIREZK. Without objection, your prepared remarks will
be mserted into the record.
PAGENO="0094"
90
° ~ on~rc~ o~ ti~it ~tc~i ~tate~ ~
3~ou~e of prt~entatibc.~ ~01
~1a~~ington, ~.C. 20515
TO THE CHAIRMEN OF THE JOINT HEARING OF THE SENATE SELECT COM
MITTEE ON INDIAN AFFAIRS AND THE HOUSE SUBCOMMITTEE ON INDIAN
AFFAIRS AND PUBLIC LANDS:
Mr. Chairmen, I want to thank you for the opportunity to cone
before your Committees to speak on behalf of my bill which
will resolve the differences between the State of Rhode Island,
the Narragansett Indians and the Southern Rhode Island Land
Development Company. Mr. Chairmen, I particularly want to
thank you personally for the time and effort you have given
to see that this bill was brought up during this session of
Congress.
The bill before you, H.R. 12860, the Rhode Island Indian Claims
Settlement Act, offers the best solution to the problems brought
forth in the two legal actions now pending concerning proper
title to various lands and water. This bill will resolve all
Indian land claims and it will do so to the satisfaction of all
parties. In doing so it will end a three-year old dispute which
has caused major disruption to all parties in the two suits as
well as the people who live in the disputed areas. I must stress
again that this bill will resolve the Indian land claims to the
complete satisfaction of all parties.
Beyond settlement of the pending suits, this legislation has
a definite urgency based on several facts. First, the bill,
while~presently supported by all parties, is in fact a com-
promise. As is always the case in writing compromise legis-
lation, this delicate coalition of differing factions may not
be a lasting thing. The longer we delay having this bill
approved, the more likely we are to find that one or more
of the parties will seek a change in the bill which would gain
them an advantage. Such an event would be very unfortunate
becuase this is a fair bill.
In addition to the urgency required to preserve the basic. f air-
ness of the bill, I wish to add that the town of Charlestown,
Rhode Island finds itself in the middle of this dispute and
that the town and its citizens are suffering very real economic
hardships because of it. Unless this bill receives the timely
PAGENO="0095"
91
(2)
action it deserves, those citizens will continue to suffer with-
out recource. Most of those suffering are in no way involved
in either of the two suits and yet they stand to lose the most.
As for the town of charlestown itself, it has reached a point
where real estate development is at a virtual stand still.
Because of the clouded titles there has been no land sales,
an impossible mortgage situation and the town has not been
able to present a single bond issue to raise revenues. Again,
the urgency of the bill cannot be stressed too much.
The bill provides for the establishment of the Rhode Island
Indian claims Settlement Fund in the U. S. Treasury and autho-
rizes a payment of $3.5 million to a state chartered corpora-
tion comprised of mainly of Narragansett Indians for the pur-
chase of private lands. The corporation will holdthe lands in
trust for the Narragansett Indians.
If this dispute is not resolve with passage of this bill, it
is quite likely that it will remain in the courts for another
5 to 7 years and the economic results will be most severe.
It is also likely that the Narragansetts will bring a new suit
claiming another 900 acres above the 900 acres they presently
claim, thus, bringing about another law suit.
In closing let me state again that the native Americans in this
dispute, the Narragansett Indians, and the other parties, the
State of Rhode Island and the Southern Rhode Island Land Devel-
opment Company have come together in support of this legislation.
With all involved favoring this legislation there seems to me
to be no reason why we should not have this bill reported with-
out delay. The price of this bill is small and the need is very
great.
Thank you.
PAGENO="0096"
92
Senator ABOIJREZK. Next is the president of the Charlestown Town
Council, Mr. Robert McLean. Welcome to the joint committee
hearing, Mr. McLean.
STATEMENT OP ROBERT McLEAN, PRESIDENT, TOWN COUNCIL
OP CHARLESTOWN, R.I..
Mr. MCLEAN. Gentlemen, I want to thank you for inviting me to
testify here this morning.
I have submitted a written statement for the sake of saving time.
But I do have a few comments I would like to make. at this time.
The town of Charlestown, as you know, was not named as a party
in the land claim suit. The town council became involved at the re-
quest of the residents of the town and at the request of the Tribal
Council of the Narragansett Indains. It was felt that the town
council might contribute in some way to help resolve this land claim
issue.
I would like to say that, from the onset, the meetings with the
Narragansett Tribe were honest, open, and completely without any
animosity. I think a great deal was accomplished by these meetings.
A result was that the town council voted unanimously to have the
town of Charlestown become a signatory to the joint proposals of
agreement of settlement. It felt that a settlement along these lines
would be in the best interests of all parties involved.
We agree with the plan and will actively participate in working
out a mutually agreeable land use plan. We feel also that a satisfactory
agreement can be reached on the town providing services to the
Narragansett Indian Tribe in lieu of taxes.
The land involved in the settlement, more than 50 percent of it,
is now tax exempt on the tax rolls of the town of Charlestown. As a
matter of fact, the land involved that would come off the tax rolls
would represent, at present level, only approximately $1,600 out of
the town coffers.
The principal reason for my appearing here this morning is to make
you aware of the fact that, on the basis of the talks of a~ settlement
having reached this plateau of government, the people of Charlestown
are optimistic that it will be resolved on an equitable basis. The
climate in the town has changed appreciably in the past several months
with the optimism of a settlement being imminent. New housing
starts are good, with 18 just in the month of May totaling approxi-
mately a half million dollars.
More importantly, the town of Charlestown, smce 1975, had been
unable to sell a bond issue of $1.1 million, which we had needed for an
addition to our elementary school. We had been forced to carry this
on short-term notes with interest costing the town approximately
$55,000 a year. For a small community of 3,800 people, it was a sizable
amount of money.
As of May 16, this bond issue was sold at a very favorable rate and
was fully insurable. In working with the banks and brokers on this
bond issue, they expressed the opinion that the prospects of a settle-
ment of the land claims issue was a maj or factor in the sale of this
bond.
PAGENO="0097"
93
In conclusion, the town council of Charlestown feels most strongly
that the best interests of the town and its residents will best be served
if this issue can be resolved in an equitable manner.
I ask your earnest support in bringing this about at your earliest
possible convenience.
Thank you very much.
Senator ABOUREZK. Thank you very much.
Counsel has a question he would like to ask.
Mr. PARKER. Mr. McLean, under section 8 of this bill, which in-
corporates the settlement agreement, the distribution of the $3~5
million Federal contribution is conditioned on acceptance of the land
use plan by the town coundil-
Mr. MCLEAN. Right.
Mr. PARKER [continuing]. The State corporation's land use plan.
It has been suggested to us that the bill be amended to make the
distribution of the purchase funds not conditioned on acceptance of
the land use plan but, rather, to make any use of the settlement lands
conditioned on acceptance of the land use plan.
The argument was that to hold up distribution of this Federal con-
tribution from the settlement fund until the land use plan has been
accepted would raise other problems, whereas the main interest that
is being protected is the town council being able to protect its interest
with respect to the land use plan.
What would your response be to such a proposal?
Mr. MCLEAN. I feel that, in the interests of this being settled more
promptly, that would be agreeable because a land use plan would. of
necessity take a considerable amount of time to put together. I am
sure that, if this money was appropriated, we could work along the
lines of working into this land use plan at a future date mutually
acceptable between the tribe-
Mr. PARKER. One other question: Since the land use plan is a con-
dition in the settlement agreement, is it your understanding that,
should there be a failure to reach an agreement between the State
corporation and the town council on any aspect of the land use plan,
that there would be an opportunity for some sort of judicial review of
the town council's decision?
I am projecting, possibly, just a theoretical question whether or not
in the future, if there were a failure to reach agreement on some
critical aspect of the land use plan, would the issue then go to some
sort of judicial review process-a court to decide whether or not
either the town council or State corporation was right in its
interpretation?
Mr. MCLEAN. Well, I would assume-I am not an attorney-the
town currently has a zoning code. Decisions made on that, if they are
not satisfactory, there is always resort to the court. I assume that this
will fall under the same category.
Mr. PARKER. That was your presumption then?
Mr. MCLEAN. Yes.
Mr. PARKER. Thank you.
Senator ABOUREZK. Thank you very much, Mr. McLean.
Mr. MCLEAN. Thank you, Senator.
Senator ABOUREZK. Without objection, your prepared material
will be inserted into the record.
[The prepared material follows:]
30-979 0 - 78 - 7
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94
ELIZABETH WALL ~ P. 0. BOX 372
1OWN CLERK RIIODEISLANDO 813
CLERK OF PROBATE COURT -~ ~ 401/3647718
TOWN OF CHARLESTO%Q4
June 15, 1978
The Honorable James Aboureszk, Chairman
Senate Select Committee on Indian Affairs.
Dirkson Senate Office Building, Room 5331
Washington, 0. C.
Dear Senator Aboureszk:
The Town Government of the Town of Charleston, Rhode Island, became actively
engaged in the land claims of the Narragansett Tribe of Indians in Charlestown,
Rhode Island, in May, 1977. As President of the Town Council, I called a special
meeting to be held May 16th, 1977. This meeting was called to hear and act upon
a petition addressing the Indian land claims. This petition bore the signatures
of approximately two thousand taxpayers (our Town's population is approximately
3800). The Town Council unanimously accepted this petition.
As elected officials, the Council is mandated to act in the best interest of the
community as a whole. The Council, being fully cognizant of the far reaching
ramifications of this issue, feels that in accepting this petition it was indeed
acting in the best interests of the Town to use the authority vested in it to
help resolve the land claim issue in a just and equitable manner.
Not only are we concerned with the hardships suffered by the residents and tax-
payers because of title questions created by these suits, but are vitally con-
cerned with the ability of the Town government to function efficiently within
the parameters which might be imposed if the issue is not addressed in an ex-
peditious manner.
Among our concerns in this area are the effects on the Town's financial credit
rating in regards to the borrowing of monies or the sale of municipal bonds at
a favorable rate. Further, the Town could conceivably suffer by a deterioration
of anticipated tax revenues.
As a further result of this meeting, the Town Council passed a resolution
Memorializing Congress to Resolve the Land Claims of the Narragansett Tribe
of Indians to Certain Land Claims in Charlestown, Rhode Island', (a copy of
which is appended hereto).
I subsequently was invited to take part in meetings with the interested parties,
which resulted in a "Joint Memorandum of Understanding Concerning Settlement
of the Rhode Island Land Claims", dated February 28th, 1978. Again, upon a
unanimous vote of the Charlestown Town Council, I was authorized as President
to have the Town become a signatory to this agreement.
The Town Council is of the opinion that a settlement of these land claims as
outlined in the joint memorandum is in the best interests of all parties
PAGENO="0099"
95
The Honorable James Aboureszk Page Two
concerned, and is acceptable from the Town government's point of view.
The lands involved in the settlement are, to a great extent, now tax exempt,
and in total will reduce the tax income to the Town by only approximately
$1,600.00. We further concur with the concept of a land use plan mutually
acceptable to the State Corporation and the Town Council, Charlestown, R. I.
It is my opinion, arrived at from conversations with many local people,
---that the majority of the people of the Town of Charlestown feel that the
best-interests of the Town and all others concerned will be best served by
a prompt resolution of this land claim case.
Therefor, at the request of the Charlestown Town Council, I urgently seek
your active support in resolving this issue on a federal level. Our concern
is not confined solely to our Town, but to all citizens seeking a just,
equitable and peaceful solution.
Respectfully,
C. Robert McLean
President
Town Council
CRMcL:s
enc.
PAGENO="0100"
96
RESOLUTI ON
Memorializing Congress to Resolve the Land Claims of
the Narragansett Tribe of Indians to Certain Land in
Charlestown, Rhode Island
WHEREAS, in January, 1975, two suits for the possession of certain
tribal lands in Charlestown, Rhode Island of the Narragansett Tribe of Indians
were filed in the United States District Court for the District of Rhode
Island by a group stating it was the Narragansett Tribe of Indians and that
it was entitled to the protection of 25 U.S.C. #177, the Federal Non-Intercourse
Act; and
WHEREAS, These suits have called into question the ownership of land
in Charlestown even through possession of much of this land has not been
requested in these suits since, if the group is able to prove that it is an
Indian tribe within the meaning of 25 U.S.C.#177, any conveyance of any land
by the Narragansett Tribe of Indians or its members which occurred after 1790
may be void and of no effect; and
WHEREAS, The residents and taxpayers of Charlestown have suffered
and are continuing to suffer widespread hardships because of the title
questions created by these suits; and
WHEREAS, The federal government bears the primary responsibility
for the peaceful and reasonable resolution of all the land claims of the
Narragansett Tribe of Indians in Charlestown, Rhode Island, because the wrongs,
if any, of almost two hundred years, are the responsibility of the federal
government for its failure to act under the law, now therefor be it
RESOLVED, That the Congress of the United States be and hereby is
memorialized to resolve the land claims of the Narragansett Tribe of Indians
to certain land in Charlestown, Rhode Island, by enacting remedial legislation
which recognizes the rights and obligations of all persons affected by these
claims, including, but not limited to, the residents and taxpayers of Charles-
town, the private defendants identified in the suits, the State of Rhode Island,
the Town of Charlestown, the Narragansett Tribe of Indians and the United States
of America; and be it further
RESOLVED, That the Rhode Island delegation in Congress actively support
such legislation; and be it further
RESOLVED, That the Town Clerk be authorized and directed to transmit a
duly certified copy of this resolution to the Rhode Island delegation in Congress.
VOTED AND PASSED as a Resolution of the Town of Charlestowri on May 16, 1977.
C. Robert McLean
President
Town Council
ATTEST:
PAGENO="0101"
97
Senator ABOUREZK. Mr. Brody, counsel would like to ask you one
or two questions more.
Mr. PARKER. Just to clarify something on the record, Mr. Brody,
the legislation as drafted intends to implement the settlement agree-
ment. It provides for an extinguishment. of all Indian claims within
the boundaries of the State after a 180-day statute of limitations
period.
What would be your interpretation of why that provision is in the
legislation?
Mr. BRODY. There are two reasons for that particular provision,
sir. The first is a practical reason. That is, through all the research
conducted by both the plaintiffs and the defendants in these lawsuits,
there are no realistic possibilities of any other Indian land claims being
filed within the State of Rhode Island. This gives us a realistic situa-
tion where we can accomplish for the entire State what we can accom-
plish by the legislation for the town of Charlestown.
The second reason is that the contribution that is being made of
the State land-approximately 1,060 acres-represents a contribution
to this settlement by all of the people and all of the citizens of the
State of Rhode Island. It is felt that, in return for that contribution,
all citizens of the State should be at least given this protection against
what may be possibly frivolous claims in the future based upon the
historical and realistic evidence that we have presented to us.
Mr. PARKER. Then it is the understanding and presumption of your
office that there are no other Indian claims which could be brought in
the State of Rhode Island other than by the Narragansett?
Mr. BR0DY. That is correct. We would not be in a position to
suggest to this committee that it take any arbitrary action if there
were any possible claims. The State's position is that, since there are
no possible claims, then this action can be taken in this instance.
Mr. PARKER. Finally, as drafted in the committee print, which this
committee prepared, the actual extinguishment would not take effect
until the State of Rhode Island had enacted legislation as contem-
plated by the settlement agreement. The extinguishment would then
take automatic effect upon certification by the secretary of state of
Rhode Island and publication of that certification by the Secretary
of the Interior in the Federal Register.
When would you anticipate-perhaps Speaker Manning may want
to speak to this-the State of Rhode Island having the opportunity to
enact this settlement legislation, thus bringing this settlement to its
final conclusion?
Mr. BRODY. I would defer to the speaker on that.
Mr. MANNING. As I stated before, Mr. Parker, the legislation has
already been filed. It will be filed again in January, when the session
starts. I would anticipate that the legislation would pass within, at
the very latest, the first 2 months of the session.
Mr. PARKER. Thank you.
Senator AB0UREZK. Thank you.
Is the administration witness here yet?
[No response.]
Senator ABOUREZK. There will be a panel next: James A. Jackson
and Normand Benoit of Tillinghast, Collins & Graham of Providence,
R.I.
PAGENO="0102"
98
That is a high-powered law firm.
Mr. JACKSON. Thank you very much. We like to be described as a
high-powered law firm.
Senator ABOIJREZK. Perhaps you can tell us what your specialty is.
Mr. JACKSON. They have removed the restriction on advertising,
so you give me an opening to give a long explanation of our many
specialties. But I will defer on that point.
STATEMENT OP JAMES A. JACKSON, ATTORNEY, TILLINGHAST,
COLLINS & GRAHAM, PROVIDENCE, R.I., ACCOMPANIED BY
NORMAND BENOIT, ATTORNEY
Mr. JACKSON. Chairman Abourezk and Chairman Roncalio, I
appreciate the opportunity to appear before the committee today. I
will follow the suggestion and encouragement of the chairman and
ask the committee to accept the written statement that I submitted
yesterday for the record.
Senator ABOUREZK. It will be accepted.
Mr. JACKSON. Thank you, Mr. Chairman.
I will not repeat the points that I made in the written statement.
I represent Tillinghast, Collins & Graham. The law firm of which I
am a partner represents the majority of the defendants in the litigation
that was brought in the U.S. District Court for the District of Rhode
Island by the Narragansett Indians. The litigation was brought some
3~ years ago.
The litigation has been very burdensome on the defendants in the
case. It has required a tremendous amount of time and effort in a
very, very complex litigation.
The litigation presented very many serious political and social
problems in the community of Charlestown in a situation where
landowners, the defendants in the litigation, were unable to utilize
their land. They were unable to sell their land and unable to mortgage
their land. Also, people in the town of Charlestown, outside of the
immediate area claimed by the Narragansetts, were restricted in the
alienation of their land and the mortgating of their land because of the
existence of potential claims in those areas.
However, commencing in approximately March of 1977, intensive
negotiations were undertaken by all parties. The negotiations resulted
in the settlement which has been submitted and made part of the
record dated February 28, 1978. This was the result of very intensive,
good faith, sincere negotiations on the part of all parties: The Narra-
gansetts, the private defendants, the community represented by the
president of the town council, and through the great assistance of the
office of the Governor of the State of Rhode Island.
However, that agreement cannot be implemented without the
legislation which is before this joint committee this morning. We ask,
and we certainly are encouraged by the remarks the chairman made
at the beginning of the meeting, that there be speedy action on the
legislation.
As the chairman mentioned, the parties have come to agreement.
Now is the time to implement that agreement. I cannot stress that
too much this morning.
PAGENO="0103"
99
The tensions in the community have been relieved, as the president
of the town council remarked this morning. But the tensions have been
relieved in the community only because the community is relying upon
the settlement that has been entered into and relying upon the hope
that that settlement will be implemented by the legislation that is
before the joint committee.
The private defendants support 5. 3153 as contained in the com-
mittee draft.
There is one point that I would like to emphasize. A very important
element in the settlement agreement is contained in paragraph 10 of
the settlement agreement. Under paragraph 10, provision is made for
reimbursement of the private defendants who are not selling their land
to the State corporation for legal expenses incurred in the litigation.
That was an absolute requirement on the part of the private
defendants for their entering into the settlement agreement. Some of
the private defendants will convey their land to the State corporation
under the settlement agreement. While those defendants do not choose
to convey their land under these circumstances, or would not choose
to convey their land under these circumstances, they are perfectly
willing to do so in order to effect the settlement agreement and solve
the political and social problems that exist in the community and the
judicial problem with which they are faced.
But the other defendants, the defendants who are not selling their
land, entered into the agreement on the basis that they would be
reimbursed for the legal expenses which they have incurred. Those
private defendants are innocent victims here. They have been made to
sustain the burden of defending this litigation for a period of over 3~
years.
If there has been a wrong committed in this case, it was not com-
mitted by the present generation. It was not committed by these
defendants. These private defendants who are not selling their land
should be made whole in this situation.
They, of course, have suffered a burden through the last 3~4 years on
the restriction that has been placed on their land against alienation or
mortgaging due to the cloud which has existed on the property result-
ing from the lawsuit. They do not ask to be compensated for that. They
do not insist on compensation for that. But they do ask that they be
reimbursed for the legal expenses which they have i~icurred.
That is a very reasonable request. It was an absolute condition to
their entering into the settlement agreement.
I make those remarks to point out the importance of that provision
of the agreement and that it was a condition precedent to the execution
of the agreement on the part of those private defendants.
I would like to close by thanking the committee for the opportunity
to appear before the committee this morning. I particularly want to
thank the committee counsels, Alan Parker and Frank Ducheneaux;
they have been of just tremendous assistance to us.
I told the private defendants what a reception that we have had in
Washington during the meetings that we have come to in Washington
to work on this legislation. Theyhave just been tremendously help-
ful. Barbara Berger has been just tremendously helpful, also, and so
has John Saxon recently.
PAGENO="0104"
100
To my left is Normand Benoit. He is an associate in our law firm
who has worked on the case and worked on the legislation with me.
I would like to introduce, on my right, Mr. Glen Godden. Mr.
Godden is one of the defendants in the case. He is a landowner in the
claim area. He is a community leader in the town of Charlestown. He
really represented and was the voice of the people in the town of
Charlestown. A great deal of the credit for reaching an agreement in
this case can be given to Glen Godden. That credit can be given to
Glen Godden because he approached the many complex issues with
an open mind and a very reasonable and rational approach.
This was a situation where, as I think the chairman pointed out
earlier, emotions could have prevailed and there would have been no
agreement. But Mr. Godden approached this problem with reason.
As a result, we do have an agreement which all parties approached
with reason and in good faith.
With the permission of the Chair, I would like to introduce Mr. Glen
Godden.
Senator ABOUREZK. Before we hear from Mr. Godden, without
objection, your written statement will be inserted in the record.
[The prepared statement follows:]
PAGENO="0105"
101
June 20, 1978
STATEMENT OF JAMES A. JACKSON SUBMITTED TO THE UNITED STATES
SENATE SELECT COMMITTEE ON INDIAN AFFAIRS AND THE INDIAN AFFAIRS
AND PUBLIC LAND SUBCOMMITTEE OF THE UNITED STATES HOUSE OF
REPRESENTATIVES INTERIOR AND INSULAR AFFAIRS COMMITTEE
My name is James A. Jackson and I am a partner in the
Providence, Rhode Island, law firm of TillinghaSt, Collins &
Graham. We represent the majority of the defendants in the case
entitled "Narragansett Tribe of Indians vs Southern Rhode
Island Land Development Company et al.' Civil Action No. 75-0006
which has been consolidated with the case of "Narragansett Tribe
of Indians vs Rhode Island Director of Environmental Management"
Civil Action No. 75-0005 now pending in the U. S. District Court
for the District of Rhode Island. In the consolidated actions,
the plaintiff seeks to recover possession of approximately 3,500
acres of land located in the Town of Charlestown, Rhode Island.
Among the defendants whom we have represented in this
case is the Providence Boys Clubs which owns approximately 460 acres
of land in the claim area on which it operates a summer camp pri-
marily to provide an opportunity for camping experience in a healthy
country atmosphere for children from the urban areas in Rhode
Island. Another defendant is the Greater Providence Young Mens'
Christian Association which also operates a camping facility in
the area. Among the other defendants whom we represent are in-
cluded a widow and others of moderate means.
The litigation which was commenced in January of 1975
has been a very heavy burden for these defendants to bear. The
litigation has proceeded through the pre-trial stage including
PAGENO="0106"
102
many complex motions and extensive pre-triál discovery.
The case was scheduled for trial on April 4, 1978 before a
jury in the U. S. District Court. By the most conservative
estimate, this trial would have taken four to five months
to conclude. However, in view of the settlement reached by
all parties and contained in the "Joint Memorandum of Under-
standing Concerning Settlement of the Rhode Island Indian Land
Claims" executed as of February 28, 1978, the trial has been
postponed. -
In the early stages of the litigation, it appeared
that a negotiated settlement would not be feasible. However,
during the period of March 1977 to February 1978, as a result
of sincere negotiations on the part of all parties with the
great assistance and participation of the Governor of the State
of Rhode Island, the settlement was reached. The negotiations
were intensive at times, particularly during the final three
months prior to the culmination of the agreement. However,
without the enactment of S3l53, the agreement cannot legally
be implemented.
The existence of the litigation raised serious poli-
tical and social problems in the Town of Charlestown, in addi-
tion to creating a severe hardship on the defendants whose
land was claimed in the litigation. The social and political
problems threatened to intensify but, in view of the settlement
negotiations and the ultimate agreement that was reached, the
social and political problems have been arrested. However,
these problems are under control only because the people of
Charlestown hope and believe that Congress will enact the legis-
lation necessary to implement the settlement agreement.
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PAGENO="0107"
103
There are other ai~eas in the Town of Charlestown potentially
subject to similar claims. People in these areas are unable to sell
or. mortgage their hones due to the potential claims that exist.
The legislation being considered at this hearing will re-
move those potential claims. The defendants in the law suit
have borne a heavy burden during the three year period of this
litigation. They have been faced with the burden of expense
of defending against the claim. They have been unable to sell
or mortgage their lands. The defendants, if the settlement
is not implemented, face the further burden of a four or five
month trial. Even if the defendants are successful in the trial
of the case, they face a further period of uncertainty in which
their land will continue to have a cloud thereon during the
period of the judicial appeals which would take several years.
During this period of judicial appeal, the cloud would also
remain upon the titles of others in the Town of Charlestown
whose land is potentially subject to similar claims.
The defendants whom we represent feel that the settle-
ment reached is a satisfactory solution to a serious social,
political and judicial problem. Some of the defendants will,
under the settlement, sell all or a portion of their land.
These defendants would not choose to sell their land under
these circumstances but they are willing to do so in order
to implement the settlement. Other defendants will retain their
land free of the cloud on title that has been created by the
litigation. The Providence Boys Clubs will retain sufficient
-3-
PAGENO="0108"
104
land to continue the operation of its camp. The Young r4ens'
Christian Association will be able to sell its land in the
claim area to the State Corporation and continue to operate its
camp on its other adjoining land.
The settlement agreement represents a resolution
of many complex problems through many compromises made by
all parties in the sincere and intensive negotiations. We
now ask that the United States Congress enact the necessary
legislation embodied in S3153 so that the settlement may be
implemented.
The question of Indian title raised in the litigation
is a Federal question. The Federal Government has a respon-
sibility to assist in the resolution of this problem. The pri-
vate defendants are present day innocent victims of this Federal
question and should not be made to sustain any further burden.
The State of Rhode Island has assumed in the proposed settlement
a great share of the burden in resolving the problem. The
Federal Government can carry out its responsibility in resolving
this problem by the adoption of S3153.
S3153, in the revised form in which it exists today,
is sati~factory. The legislation, in its present form, has
been developed with the assistance of Committee counsel. We
have appreciated the generous assistance, of the extremely com-
petent Committee counsel Alan R. Parker and Frank Ducheneaux,
staff attorney Barbara Berger and, more recently, John Saxon.
On behalf of the defendants whom we represent and,
on my own behalf, I want to thank you for your consideration
of this matter and for the opportunity of appearing before
you.
Respectfully submitted,
c97~7~w ~
PAGENO="0109"
105
STATEMENT OP GLEN GODDEN, PRIVATE DEFENDANT
Mr. GODDEN. Chairman Abourezk and Representative Roncalio, I
wish to thank you for this opportunity to speak on behalf of the
defendants.
I noticed on your agenda here that ourselves and the Indians are
at the bottom of your page. We just hope you are not too tired, so
please bear with us.
Senator, I have been having a debate about you. And I said, "Well,
should I be quiet?" My wife tells me, "Why don't you just be quiet."
But I bring you greetings from Mitchell, S. Dak. I was born in Red-
field, S. Dak. If you are familiar with the Corn Palace in Mitchell, my
father owned the shop across the street from it.
My great-uncle was an Indian agent on the Rosebud Reservation.
Senator ABOTJREZK. He was the Indian agent there?
Mr. GODDEN. Yes.
Senator ABOUREZK. That is where I was born, on the Rosebud
Reservation. What was his name?
Mr. GODDEN. Caldwell.
Senator ABOUREZK. I have heard the name.
Mr. GODDEN. What I really want to do is bring a word of warning.
In all of the legislation that you are going to have and the requests
that are going to come from the rest of the country, litigation should
be a dirty word.
I thought this day would never come that we would be here before a
legislative body, where these questions should be solved between
citizens, and citizens of good faith. This particular case is not Indian
and non-Indian-not at all. This is a title dispute, a title dispute
about whether or not, in 1880, the State of Rhode Island illegally sold
the land of the Narragansett Indians, and did the United States of
America ignore its stewardship and its fiduciary responsibility of
enforcing the 1790 Nonintercourse Act.
In 1880, all of our learned jurists and people of that time certainly
were aware that it existed. So, obviously, it was ignored.
It should have been brought out through legislation, through our
Senators and Representatives and people of good faith. The people of
the town of Charlestown have lived together for a good many years.
There are no reasons for ill feelings. But, when you see people who are
harmed, their homes are jeopardized, their jobs are lost, then these
are matters of record-cold, hard fact.
In my particular case, I have 32 years of my life invested, and every
single piece of land I own in Charlestown is involved. I can survive.
But there are those who just absolutely cannot. They have had to plead
with the banks just to carry their interest. This is through no fault
of their own.
You know, the average American citizen is not a great philanthro-.
pist. He is hurt; he gets mad, and things are said and done on both
sides that should never have been said or done.
If we had approached this thing through the legislative process at
the beginning, I am positive it would have been settled on a friendly
and a very just basis, which is what we are doing right now.
I sincerely plead with you, do not be sidetracked. Do not let personal
interests enter into your deliberations in marking `up this bill.
PAGENO="0110"
106
Senator ABOUREZK. What do you mean by personal interests?
Mr. GODDEN. I have no idea what people may want-other people
on committees or someone who may walk in and say I would like to
do this or do that-I am not saying anything about individuals. I have
been in this political game too long to know that someone can open
the door at the last minute and throw in his two bits worth.
What I am really saying is, please, hurry, push it. We agree. The
tribe is entitled to their lands. We agree. The quicker we get on with
it and get this terrible burden off the backs of these people who cannot
mortgage their homes and the hundreds of thousands of dollars that
are lost that we will never recover-I certainly, at least, want to see
our legal fees. But there is no way to measure what we have lost in
33~ years.
The reason we are here, you can realize it would have cost us over
$1 million if this thing had gone to the Supreme Court; and that is a
travesty. It has been a very traumatic experience.
I, representing the Charlestown Action Committee, which is com-
posed of 36 of the landowners, the nonnamed defendants, and the rest
of us, plead with you to enact this legislation as rapidly as possible.
Thank you so much for listening to me.
Senator ABOUREZK. Thank you very much. We would like to thank
all of you for your appearance this morning.
Mr. JACKSON. Thank you very much, Mr. Chairman and Chairman
Roncalio.
Senator ABOUREZK. The next witness is Donald Quinn of Goodwin,
Procter & Hoar of Boston, Mass. That is another high-powered law
firm.
Mr. Quinn, I take it that you must have represented some of the
defendants as well?
STATEMENT OP DONALD QUINN, ATTORNEY, GOODWIN, PROCTER
& HOAR, BOSTON, MASS.
Mr. QUINN. Thank you very much, Senator, and Congressman
Roncalio.
I also represented certain of the private defendants in this case.
I have submitted a written statement. Following your request, I
would be delighted to have it accepted.
I do have one technical, noncontroversial change which I would like
to suggest. I could either do it now or-
Senator ABOUREZK. Why don't you go ahead now.
Mr. QUINN. With respect to section 4, I think a change would be in
order to make it absolutely clear that any claims-this is page 7,
line 1. The purpose of this change is to make it absolutely clear that.
claims that are being eliminated by this section include claims prior
to the date of enactment of the act so that there is no problem such
as arose under the Alaska Land Settlement Act, Judge Gasch's decision
in Edmundson v. Morton.
The proposal I would have would be in line 1 to strike "of" and
replace it with "to." And then strike the words in lines 1 and 2 `tin-
volving or in any way relating to" and replacing that with "arising
prior to the date of enactment of this act that involve or in any way
relate to."
PAGENO="0111"
107
Senator ABOUREZK. It is consistent with the intent of the legisla-
tion, but I read it as already saying that; so it does not really matter
to me whether we put it in or not.
Mr. QUINN. Thank you, Mr. Chairman. I felt it would be important
to emphasize this, especially in view of the fact that in the Alaskan
case there was an issue that did arise out of that language.
Senator ABOUREZK. We do not have any objection to it.
Mr. QUINN. Thank you.
Senator ABOUREZK. And that is the intent of all the parties, I take it.
Mr. QUINN. I endorse the many comments that have been made to
date in today's testimony. I point out the absolute need for imp~e-
mentation. The settlement agreement can become unraveled if it is
not implemented by both the State and the Federal legislation.
If we have to go back to litigation, it will be very unfortunate, I
feel. This is the forum and the place where the decisions regarding
the Nonintercourse Act cases should be made, not the courts. I say
that from the viewpoint of someone who is involved in several of these
Nonintercourse Act cases in the Northeast. They are in litigation.
We feel that this is the place to settle it, not in litigation.
Senator ABOUREZK. Thank you very much, Mr. Quinn. We appre-
ciate it.
Mr. QUINN. Thank you.
Senator ABOUREZK. Without objection, your written statement will
be inserted.
[The prepared statement follows:]
PAGENO="0112"
108
STATEMENT OF DONALD P. QUINN CONCERNING S. 3153 AND H 12860
SUBMITTED TO THE UNITED STATES SENATE SELECT COMMITTEE ON
INDIAN AFFAIRS AND THE HOUSE SUBCOMMITTEE ON INDIAN AFFAIRS
AND PUBLIC LANDS OF THE UNITED STATES HOUSE OF REPRESENTATIVES
INTERIOR AND INSULAR AFFAIRS COMMITTEE
My name is Donald P. Quinn, a partner in the Boston law
firm of Goodwin, Procter & Hoar.
I would like to thank your Committees for the opportunity
to present my views on the proposed "Rhode Island Indian
Claims Settlement Act" at this Joint hearing. As counsel
for certain of the private defendants in the Narragansett
Indian cases, I have been deeply involved in the efforts to
settle the controversy. The proposed legislation you are
considering today goes a long way towards implementing the
settlement all the parties reached as an alternative to
continuing the three and one-half year old litigation.
If Congress enacts legislation in substantially the
form as that before you, and if the State of Rhode Island
passes other implementing legislation in a timely manner,
the Narragansett Indian Land Claim under the Trade and
Intercourse Act of 1790 will become history. If either the
State or federal legislation is not enacted, we will have to
return to extended and costly litigation, which can only
result in further bitterness and disruption of the lives of
those affected, no matter what the outcome.
We greatly prefer the passage of the implementing
legislation, not only because we recognize the uncertainty
PAGENO="0113"
109
of litigation but also because we truly feel that Federal
legislative intervention places responsibility for the Trade
and Intercourse Claim cases where it really belongs--in the
hands of the Federal Government.
It would be wrong for either the Federal or the State
Government to totally disclaim liability for the outcome of
Trade and Intercourse cases. The innocent landowner should
not be forced to defend his property against claims which
have only recently emerged after being hidden in Federal and
State archives for almost 200 years.
The proposed legislation creates a framework in which
the federal and state governments jointly play a responsible
role in disposing of the claim. There are certain basic
principles inherent in the proposed legislation which highlight
the spirit of fairness and compromise brought to the negotiating
table by all of the parties:
1. No private defendant is being deprived of his or
her land without consent. However, since many of the defendants
would not have chosen to sell their land, even at fair
market value, but for the settlement, the legislation gives
them tax treatment similar to that which accompanies an
involuntary taking.
2. All Narragansett claims are being totally eliminated
by the legislation, notwithstanding the outcome of the
"credible claim" administrative proceeding anticipated by
the bill.
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PAGENO="0114"
110
3. All other Indian claims within Rhode Island are
being eliminated by the legislation. Congress has recognized
the fact that the turmoil, and in some cases, paralysis,
which has been created by the mere assertion of a Trade and
Intercourse claim, cannot be allowed to continue unchecked.
4. While the legislation provides for substantial
amounts of land for the benefit of the claimants, it preserves
reasonable state and local controls over both the land and
the claimants, thus avoiding many of the legal dilemmas
which affect federal reservations.
5. The legislation provides for the adoption of a
land use plan to control the long-term usage of the settlement
lands in a way compatible to its neighbors, including the
restriction of over 85% of the land for conservation purposes.
6. The forum for the determination of the rights of
the plaintiff and the corresponding fate of the defendants
has been shifted from the "winner take all" atmosphere of
the Court to the Department of the Interior. The economic
and social disruption which would necessarily follow a final
verdict for the plaintiff has been averted. On the other
hand, after proving the credibility of this claim, the
plaintiffs will be assured of having a land base which they
might otherwise have lost in the litigation.
Because the proposed legislation solves so many of the
problems which have been created by this unfortunate case, I
-3-.
PAGENO="0115"
111
urge you to report favorably upon this bill. Since its
passage will be precedental for many aspects of other Trade
and Intercourse Act claims, I urge your careful consideration
of the effect of its passage upon other pending cases.
In closing, I would like to thank those many Congres-
sional staff people who have worked so hard with us to
advance this legislation, including Brad Penney and Win
Major of Senator Pell's staff, Janie Pound of Senator Chaf fee's
staff, Kathy McKenna of Congressman Beard's staff, and
especially Alan Parker, Mike Cox, Barbara Berger, and John
Saxon from the Select Committee Staff, and Frank Ducheneux
from the House Staff. I also wish to thank your Committees
for all your help to date and for agreeing to hear this
matter so expeditiously. Hopefully, your sense of urgency
in this matter will encourage your House and Senate colleagues
to pass this legislation without delay. The private defendants
who have had the burden of defending against this Claim for
over three and one-half years will welcome your action. The
private landowners of Rhode Island will applaud the lifting
of the cloud of uncertainty which has enveloped their titles
since the outset of this claim. Thank you very much.
-zi-
PAGENO="0116"
112
Mr. QUINN. I also wish to thank the committee members, members
of the staff, the Rhode Island delegation, and especially the members
of the staff of the Senate select committee and the House subcommittee
for their marvelous cooperation in this matter. Thank you.
Senator ABOUREZK. Thank you.
The next panel is Tom Tureen, attorney for the Narragansett
Tribe; Ferris Dove,, councilman, Narragansett Tribe; Ella Thomas,
tribal secretary; and Eric Thomas, tribal secretary.
We welcome you to the committee.
Mr. TUREEN. Eric Thomas has a very brief statement, Mr. Chair-
man.
STATEMENT OF ERIC THOMAS, TRIBAL SECRETARY, NARRAGAN-
SETT TRIBE; ACCOMPANIED BY FERRIS DOVE, COUNCILMAN;
ELLA THOMAS, TRIBAL SECRETARY; AND THOMAS TUREEN,
TRIBAL ATTORNEY
Mr. THOMAS. Chairman Abourezk and Chairman Roncalio, ladies
and gentlemen, good morning. My name is Eric Thomas. I am tribal
coordinator for the Narragansett Tribe of Rhode Island.
With me are Ferris Dove, councilman; tribal secretary, Ella rfhomas;
and Thomas Tureen, our tribal attorney. Our chief, Sachem George
Watson, our tribal medicine man, Lloyd Wilcox, and Lucille Dawson,
our tribal historian, asked us to say that they were sorry theSr could
not attend.
We wholly support 5. 3153 and H.R. 12860. These bills embody a
settlement to which our tribe agreed and, if enacted, will put an end to
a 98-year struggle to regain reservation lands torn from us in 1880
when the State of Rhode Island attempted to terminate our tribal
existence. Enactment of these bills will help to insure the continued
survival of our people and open the door for a new age of mutual
understanding and trust between our people and our neighbors.
The lands involved in this settlement include the central residential
area of our former reservation and the Indian Cedar Swamp. These
lands provided then, as they do today, the cradle for our community.
These are the places where we have lived and hunted. The Cedar
Swamp is the place where we have gotten our herbs for medicinal pur-
poses and sought refuge during harsh winters and colonial warfare.
These lands have been our life source, and returning them now will
insure their preservation and our survival.
We are proud of all of the parties who were involved in the effort
which led to the introduction of these bills. The bills are the result of a
course of fair and honorable dealings between Indians and non-
Indians, which is rare in the history of this country. We are most
pleased that the lgeal and moral dispute which underlies these bills
could be resolved without undue injustice or hardship on anyone.
Mr. Chairman, we thank you for the help which you and your staff-
and we thank the other Senators and Congressmen for the help which
they and their staffs-have provided in making these bills possible.
We urge your early favorable action. Thank you. If you have any
questions, we will be glad to answer.
Senator ABOUREZK. I do have some questions I would like to ask.
Can you explain why, under the settlement, the claims of tribes
other than the Narragansetts are extinguished?
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Mr. TUREEN. That was not put in at our request; it was put in
without our opposition.
It is our understanding that the State of Rhode Island wanted to
have it clear that there would not be Indian claims in the future in
Rhode Island. We did not oppose it because it is our opinion that there
are no other claims.
Senator ABOUREZK. You do not know of any other tribe which has
any kind of a claim, colorable or noncolorable, to land in Rhode Island
based on either aboriginal or recognized title?
Mr. TUREEN. Not only am I not aware of such another tribe, I am
confident that there is not such other tribe.
Senator ABOUREZK. Is the Narragansett Tribe satisfied that the
settlement and extinguishment is equitable?
Mr. DOVE. Yes; we are.
Senator ABOUREZK. Explain to me and to the committee what the
parties think is meant by the term "credible claim."
Mr. TUREEN. Certainly it is not an air-tight thing. A credible claim
is basically a claim which is not frivolous; one, I suppose, for which
a credible argument can be made; a claim which makes sense for which
a responsible theory can be laid out.
It is a difficult standard. We fished long and hard for a word to
define what that standard should be. It was the solicitor of the De-
partment of the Interior, Leo Krulitz, who came up with the parti-
cular term "credible." He probably would be the best one to explain
what he means by it.
We understand it to be something short of an absolute certain
claim, an air-tight claim, something short of a claim for which no
argument can be made in opposition, but a claim which is credible.
I have trouble with the word myself, as you see.
Senator ABOUREZK. Do you think that there might be a conflict
of interest arising out of that term with the Secretary being given the
right to that determination?
Mr. TUREEN. Well, it is not a perfect world. Sure, there is a conflict
there. I would prefer that the decision did not have to be made in that
way, but I do not see any other way around it.
Senator ABOUREZK. What standard of judicial review should be
employed in the case of an adverse determination?
Mr. TUREEN. We would prefer to see review de novo, the kind of
review that one gets when you are appealing from a decision by a
magistrate.
Senator ABOUREZK. In the Federal district court?
Mr. TUREEN. In the district court.
We see no reason why that should not happen. Because credible
claim is such a very loose standard, we may well wind up in effect
under this standard with a review de novo. It may amount to the
same thing because the standard for credibility is one which we view
and we think the court would view as being very flexible.
Senator ABOUREZK. Is it your understanding that there is a judicial
remedy in the event that the town unreasonably withholds consent to
the land use plan?
Mr. TUREEN. That provision was written into the agreement spe-
cifically to provide the tribe with legal recourse in the event that the
town should refuse to adopt the land use plan. There is no similar
requirement on the tribe. The tribe can accept or reject the plan.
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114
The town, on the other hand, is prohibited from unreasonably
rejecting the plan.
During the negotiations, we specifically inserted that language. It
was a compromise. It was a device for giving the tribe a means of
judicial review of any decision by the town, any unreasonable decision
rejecting the land use plan by the town.
Mr. DOVE. There is also a political aspect to it. We were fortunate
to have such a favorable council in office at this time to work with
us. It may not be favorable, the next council; so, we have to figure
on politics.
Mr. TUREEN. It is~ our hope that that plan will be put together
quickly, that work will begm on it this summer, and that it can be
before the town before long.
Senator ABOUREZK. So far as the tribal representatives on the State
corporation are concerned: What elements might they think impor-
tant with respect to the land use plan?
Mr. TUREEN. I do not know that the tribe is in a position to say
that yet. We have not begun working on it.
*As you know, the agreement provides that 75 percent of the land
will be kept in the natural state, which is agreeable to the tribe. That
is a condition that they have already consented to.
Mr. RoxcALlo. Does that mean open area and no development of
any kind and continued agricultural use?
Mr. TUREEN. That is correct.
I do not think it is inconsistent with agricultural use. But it would
be open area.
Senator ABOUREZK. Do you feel that under the bill there are ade-
quate assurances that the State and local governments and the private
defendants also will live up to their part of the bargain?
Mr. TUREEN. Well, again, it is not a perfect world. The settlement
represents compromise. We put in as many assurances as we could
get. We feel it is adequate.
Any settlement involves a measure of good faith. You try to make
as few things as possible turn on the good faith of the parties, and I
think we have come pretty close to that in this agreement.
Senator ABOUREZK. Have you as a tribe already entered into any
option agreements with private defendants?
Mr. TUREEN. We have not entered into the option agreements. That
is an area that does concern us. It is our view that the private defend-
ants are committed to providing the option agreements by the joint
memorandum of understanding. The joint memorandum of under-
standing specifically names the defendants who are obliged to provide
option agreements.
We feel that there is a contractual obligation there at a minimum.
We do not yet have those obligations in hand.
Personally, from my dealings with counsel for those parties and
given the appraisals that we have in hand already for those lands, I
think we should be able to put those option agreements together rela-
tivel.y easy. I do not anticipate a problem there.
Senator ABOUREZK. What is your understanding of what would
happen in the event all the option agreements have not been completed
by the time the extinguishment is accomplished?
Mr. TUREEN. Well, we have always taken the position that we
expected, if not all, substantially all of those option agreements to be
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115
in hand by the time the extinguishment is accomplished. If it is not,
as I said before, it is my position that they would have a contractual
obligation to go through with those through the joint memorandum
of understanding.
Senator ABOUREZK. What if the options expire before the land use
plan is accepted?
Mr. TUREEN. There was testimony earlier that it is probably not
a good idea to have extinguishment turn on adoption of the land use
plan. I think that probably makes sense.
If the option should expire before the land use plan is adopted-
well, I suppose we would have a real problem then. It may not make
sense to have it turn on that either because the two really are
unrelated.
I should say that we anticipate having that land use plan put to-
gether this summer. We intend to begin working with the State on
that plan this summer. It is our hope that it will be adopted soon.
I do not see room for a great deal of controversy over that since
75 percent of the privately held land will be committed to conservation
purposes.
Mr. DOVE. There is one thing that I can say. If it goes through this
summer, with the political impact that we have in the State of Rhode
Island with our Senator and our Governor and with the town council
at present, I am sure everything will be all right.
Mr. TUREEN. And the tribe is also working with the local university
and the town council president.
Senator ABOUREZK. I guess those are all the questions we have. We
want to express our thanks for your appearance.
We are waiting for the administration witness. While we are waiting
for Leo Krulitz to show up, counsel said he would like to ask the private
lawyers a couple of questions.
Mr. TUREEN. Mr. Chairman, we do want to echo Mr. Jackson's
praise of all the staff people involved. None of this could have been
done without the cooperation of everyone. We very much appreciate it.
Mr. DOVE. We hope that this is our last mile because we have gone
a long time.
Senator ABOUREZK. Mr. McLean?
Mr. MCLEAN. I would like to comment with regard to the political
situation and the land use plan.
Senator ABOUREZK. Certainly.
Mr. MCLEAN. I do not anticipate being in office as president of the
town council indefinitely. However, I do feel it is a small town. I do
have the confidence of the majority of the people in the town council.
I would be very happy at this time to go on record as saying that I
would be willing to devote as much time as necessary to work with all
parties concerned on the land use plan.
Senator ABOUREZK. Thank you very much.
Mr. Quinn and Mr. Jackson, counsel would like to direct a couple
of questions to you.
Mr. PARKER. For either of you: We have had several negotiating
sessions with the administration, I understand that they are not ready
as of yet to propose this on the record, but there has been some dis-
cussion that the administration may be able to, in effect, certify to
the committees that in their opinion the claim is credible for purposes
PAGENO="0120"
116
of justifying the settlement legislation. That would have the effect of
making the section 8 condition of a credible claim somewhat moot in
the legislation.
What would be your response to that, realizing that this is just an ad
hoc kind of question. You really have not had much time to prepare
an answer to that.
Mr. JACKSON. Of course, this is a new concept that has been pre-
sented for the first time at this hearing. I learned that this might be
proposed just moments before the hearing commenced this morning.
The procedure set up in the legislation, whereby the determination
would be made by the Secretary of the Interior of a credible claim,
has been very basic in the settlement agreement and in the negotia-
tions that immediately led up to the settlement agreement and
throughout all of the discussions on the legislation. So, it is difficult for
me to give a response to that question immediately.
There was some ieliance, I would say, on the part of the private
defendants that the issue of whether or not a credible claim exists in
this case-or call it what you may, a valid claim or credible claim
exists-will' be determined by the Secretary of the Interior. They were
relying on that determination that that issue would be considered by
the Secretary of the Interior and a determination made so that they
were relying on that fact that there would be a determination.
Now, whether that determination is made at this point in time or a
point in time just prior to the enactment of legislation or subsequent
thereto, initially I would not see a great problem in that approach.
Although I would want to reserve further comment after considering
it with more deliberation than I have had an opportunity to consider.
Mr. PARKER. Mr. Quinn?
Mr. QUINN. As Mr. Jackson stated, I also heard of this concept
just moments prior to this morning's hearing. I had no real chance to
analyze it.
However, we, the defense, did spend an extraordinary amount of
time in preparation for litigation. We have analyzed the elements of
the strength of the claim of the plaintiffs in this case. We have had
extensive historical material prepared going back to precontact history
in Rhode Island. We have taken extensive depositions of the current
members of the plaintiff group.
We feel that this material should also be considered in the deter-
mination. Whether it is made in 60 days or 30 days or presently, it still
should be considered so that an accurate and well-informed opinion
can be rendered by the Secretary of the Interior.
I think, without having the benefit of the work that we have done,
this may not enable the Secretary to make a well-informed decision.
Mr. PARKER. This question refers to that $3.5 million Federal
contribution being contingent upon acceptance of the land use plan.
As you probably recall, I asked the State witnesses whether to make
a slight alteration in that and.make the use of the land, as opposed to
deposit of the funds in the settlement fund by the United States,
contingent upon acceptance of the land use pian.
Do you have any problems with that kind of an alteration or
* amendment?
Mr. Quinn. Would you repeat that question please, Mr. Parker?
Mr. PARKER. The bill, as it now reads, makes the distribution of
the $3.5 million Federal contribution contingent upon acceptance of
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117
a land use pian by the town council and the State corporation. My
question is this: Could you support amending the bill so that the
purchase of the settlement lands was no longer contingent on accept-
ance of the land use plan but, rather, the use or development of the
lands would be dependent on acceptance of the plan?
Mr. QUINN. So long as all claims ~have been completely and irrevo-
cably eliminated, what happens in that land use plan is of no great
concern to my clients. I believe that Mr. Jackson may feel differently
about that since some of his clients who are not selling their property
are very concerned about the land use plan and about the implemen-
tation of it. Possibly the use of the land is what they are concerned
about. He may find that acceptable. I would find it acceptable.
Mr. PARKER. Mr. Jackson?
Mr. JACKSON. Under the settlement agreement, the acquisition of
the settlement lands is expressly conditioned upon the acceptance
of the land use plan. It is a condition precedent to the acquisition of
the land. That provision in the settlement agreement was very specifi-
cally considered and discussed in the settlement negotiations.
Naturally, there was concern on the part of the private defendants
as to what use would be made of the land and how that would affect
adjoining land, particularly adjoining land of private defendants that
would be retained by the private defendants-the details of the land
use plan or the concept of a land use plan being a condition precedent
to acquisition of the land satisfied those concerns. So it was important
to the private defendants that acceptance of the land use plan be a
condition precedent to the acquisition.
Mr. PARKER. The acquisition, as opposed to actual development
or use.
The suggestion was offered-this is my understanding-because
there were certain related difficulties with making the distribution of
the funds and the deposit of the funds in the settlement fund. There
were unrelated problems with making that conditioned upon the actual
acceptance of the plan, as opposed to making any use of those lands
conditioned on acceptance or going forward with any development of
the land.
Mr. JACKSON. Could the funds not be deposited, the moneys de-
posited in the fund but not actually distributed from the fund until
such time that the land was going to be acquired?
Mr. PARKER. Yes; that is the point as I read section 8: "no money
shall be deposited in the fund," and then subsection (b), "until town
council has accepted the land use plan."
Mr. JACKSON. Under section 8, it is a prohibition on the distribution
from the fund; is it not?
Mr. PARKER. Distribution; right.
Mr. QUINN.~ Mr. Parker, with respect to your earlier question, it
might be advisable to discuss that matter with Mr. Brody. I am
talking about the credible claim finding. And also the question of land
use plan adoption.
The State would contemplate conveying the public land at the time
that the private settlement lands were conveyed to the State corpora-
tion. That would be at the time of acquisition. So, I think that the
question that you asked with respect to waiving the adoption and just
preventing the use impinges upon the timing of the State contribu-
tion. I think that that is an important consideration for the State.
Possibly Mr. Brody can address that.
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Mr. RONCALIO. We will stand in recess for 10 minutes.
[Recess taken.]
Mr. RONCALIO. The subcommittee will come to order.
We are happy to have you here, Mr. Solicitor.
We have heard evidence this morning from Senator Pell, Senator
Chaffee, Oongressman Beard, and several panels and officials rcgard-
ing what is the nearest thing in my experience so far to a virtual
agreement and settlement. We are hopeful that you can add to this
so that we can have a simultaneous markup of this bill in both the
House and Senate.
You may proceed.
STATEMENT OF LEO M. KRULITZ, SOLICITOR, DEPARTMENT OP
THE INTERIOR; ACCOMPANIED BY TIM VOLLMANN, SPECIAL
ASSISTANT TO THE SOLICITOR
Mr. KRULITZ. Thank you very much, Mr. Chairman. I do appreci-
ate your accommodating our time schedule.
Mr. Chairman and members of the committees, I appreciate the
opportunity to appear before you today to testify on the bills intended
to implement a settlement of the Narragansett Indian land claims in
the State of Rhode Island.
This legislation is intended to resolve once and for all the claims
being asserted by the Narragansett Indians to lands in the town of
Charlestown on the ground that the past transfers of those lands may
have been in violation of the I nñian Nonintercourse Act. The bills
are drawn against the background of an agreement reached among
all of the parties to the Indian claim litigation on February 28, 1978.
I want to begin by applauding the parties to the litigation-the
State of Rhode Island, the Indian plaintiffs, and the non-Indian
defendants-and Senator Pell, Senator Chafee, their staffs, and other
members of the Rhode Island delegation, for their constructive ap-
proach toward resolution of a very difficult problem.
It is reassuring to me to see that attempts to resolve such Indian
claims can be made in an atmosphere of cooperation. The parties here
have faced each other through 3 years of litigation, but they remain
willing and anxious to look toward the future in a renewed spirit
of brotherhood. Their agreement is evidence of that spirit.
I feel that I am particularly sensitive to the problems inherent in
the modern assertion of Indian claims. In my 15 months as Chief
Legal Officer of the Interior Department, I have had to wrestle with
extremely difficult problems arising out of Indian claims to natural
resources in the West, and also the dozen or so Nomntercourse Act
land claims made on the eastern seaboard.
A number of such claims are legitimate, and Secretary Andrus has
directed me to insure that Indian people obtain the justice which has so
long been denied them. On the other hand, some Indian claims which
have come before me do not have substantial merit, and I have refused
to condone the expenditure of the taxpayers' money to support them.
Unfortunately, in both circumstances the mere pendency of the
Indian claims has sometimes resulted in economic stagnation in the
localities where they have been asserted. As Interior Solicitor, I
have no more difficult task than to resolve the conflict between the
PAGENO="0123"
119
rights of Indian people to assert valid legal claims and the legitimate
concerns of innocent non-Indian purchasers of real property who fear
for their homes and their livelihoods.
The administration supports and encourages just and amicable
settlements of credible Indian claims, and under certain circumstances
we are willing to recommend contributions toward such settlements.
We are, however, unwilling to have the Federal Government assume
the entire burden of resolving Indian claims that are not now even
being brought against us-that is, the United States. We have insisted,
for example, on State contributions to the settlement of legitimate
Nonintercourse Act claims since in such cases we see the State as bear-
ing part of the responsibility for the problems arising from a failure
to comply with the Nonintercourse Act.
Frivolous Indian claims, brought under the Nonintercourse Act or
otherwise, can also have a chilling effect on the economy of an affected
community. Nevertheless, the administration is unwilling to recom-
mend contributions to any settlements of frivolous claims. "Paying
off" such claimants could only encourage other such frivolous suits and
cause problems in other communities. Such claims are best defended;
and, indeed, the Interior Department has itself been sued in two
Nonintercourse Act claims which we regard as having no merit.
Needless to say, the Government is defending itself.
In the case of the Narragansett Indians in Rhode Island, we deter-
mined that the claim is sufficiently plausible to warrant the admin-
istration's participation in settlement talks among the parties.
Representatives of the Executive Office of the President and I have
worked closely with the parties in the past few months to assist them
in ironing out some of the details of their agreement. Much progress
was achieved, but the bills before us were introduced with the under-
standing that further refinement may be necessary.
The Federal Government was, of course, not a party to the claims
litigation; nor was it in danger of any liability arising out of the
Narragansett claims. Yet the agreement of the parties and the legisla-
tion call for a significant Federal contribution toward resolution of the
claims; and Federal officials have been understandably concerned that
Federal expenditures be justified, that the interests of the Federal
Government are adequately protected, and that the legislation clearly
accomplishes the purposes of the settlement agreement.
As I have said, we have insisted on a significant State contribution
to the settlement of Nonintercourse Act claims, and the amount of the
Federal contribution must be dependent upon the extent of the State's
participation. We have not yet finally evaluated the worth of the State
of Rhode Island's offer to contribute 900 acres of State public lands
to the settlement.
In short, we have a problem with conflicting appraisals of those
lands. The State's appraisal came in just last week, and it was only
last Friday that the Interior Department appraisers had an oppor-
tunity to sit down with the State's appraisers to determine the basis
of the discrepancies in their respective appraisals. I expect that this
can be worked out very soon, but today I cannot tell you whether the
administration is willing to supportthe size of the Federal contribution
specified in the legislation.
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Apart from the critical question of the amounts of the Federal
contribution and State contribution to the overall settlement, we have
objections to some relatively minor provisions of the settlement bill.
Several other provisions seem overly cumbersome. Accordingly, early
next week we will send to you a report in the form of an alternate bill.
I will not now go into great detail on the changes we think need to be
made in the settlement legislation. I will, however, point out the most
important alterations that we deem necessary.
First, I note that section 4 of the committee print changes the
language by which the claims of the Narragansetts are eliminated. It
is the intention of the administration and the parties to effect an
approval of the conveyances as of the date of transfer, to extinguish
Indian titles as of the date of transfer, and to extinguish all trespass,
ejectment, or other claims based on Indian title or transfers that may
have violated the Nonintercourse Act.
To clarify this matter, the administration believes strongly that the
language of the bill should provide for both extinguishment and ratifi-
cation as of the time that the original transfers occurred. This is an
important point, since with this language we need to provide as much
assurance as possible to the United States that the bill will not form
the basis for a claim of a taking as of the date of enactment.
Should there be any basis for such a claim, the potential liability
of the United States might be measured by the fair market value of
the claims which have been eliminated-an amount substantially in
excess of the settlement which has been agreed to. Because the
language of the committee print is not as clear as it might be on this
critical point, we strongly favor changing that language to provide
for both extinguishment and ratification as of the date of the original
transfers.
Second, we are seriously considering recommending deletion of the
condition provided for in section 8(c) that within 60 days of enactment
the Secretary must determine that the plaintiff in the lawsuits has a
credible claim and that a Federal contribution toward the settlement
will be made contingent upon an affirmative finding by the Secretary.
This was a condition originally proposed by the administration,
but we have now had an opportunity to examine the merits of the
Narragansett claim; and it appears that we will be able to determine
in the near future whether the claim is sufficiently plausible to justify
the U.S. contribution to the settlement.
Deletion of the provision for an administrative determination of
the credibility of the claims would greatly simplify the - legislation,
and we expect that no one would be opposed to it.
The change would also expedite the settlement process after enact-
ment. Thus, the need for long-term options to purchase the private
settlement lands would be eliminated. After the Rhode Island Legisla-
ture had provided: (1) For the creation of the State corporation
authorized to act for the benefit of the Narragansett Indians, (2) for
the State's contribution to the settlement, the purchases of the
private settlement lands could proceed.
Only short-term options would be necessary pending State legisla-
tive action early in 1979. As already provided in the bills before us,
the fee for these options could then be applied to the total purchase
price of the lands.
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Third, we are inalterably opposed to the authorization of any ex-
penditure for the payment of attorney and consultant fees to the
private defendants for the cost of defending the Indian claim lawsuits.
This has been our consistent position in all our conversations with the
parties. Such an expenditure sets a dangerous precedent. We do not
want to give anyone the impression that the Federal Government is
always ready to come to the rescue to pay for the costs of defense of
an Indian claim.
We are considering whether some change might not be appropriate
in the role of the Secretary in the implementation of the legis1ation~
Rather than providing, as in section 6(a) of the bills, that the Federal
funds be paid to the Governor of Rhode Island for the purchase of
options until the State corporation is created, it may be possible for
the Secretary to assume that responsibility and also the responsibility
for acquiring the lands after the State corporation is formed.
Such acquisition would, of course, be done in full consultation with
the Governor and the State corporation. Upon completion of the pur-
chases, the excess funds would remain in the U.S. Traesury and the
lands would be transferred to the State corporation. This would avoid
the complexities of transferring funds to the State or to the corporation.
The current bills are also vague with respect to the Secretary's later
role. For example, in section 9, the Secre.tary is given the responsibility,
along with the Governor, of approving later conveyances of State
corporation lands. But no standards are provided for that approval
authority.
We feel that the relationship of the Secretary to the State corpora-
tion has to be clarified before a settlement bill is enacted. That corpo-
ration will not be an "Indian tribe" to whom the Secretary owes any
trust responsibility. Indeed, the Interior Department has never deter-
mined that the plaintiff in the lawsuits, the Narragansett Tribe of
Indians, Inc., is entitled to tribal status or the Federal services that
flow from that status. This legislation changes nothing in that respect.
The Narragansett' Indians-though not the new State-chartered
corporation contemplated by this settlement legislation-may still
petition the Assistant Secretary for Indian Affairs for a ruling on tribal
status. Whether they obtain such a ruling has no bearing on the settle-
ment or on this legislation.
Further refinements in the legislation will appear in our proposed
amended bill which, as I have said, will be provided to the committees
early next week.
We are then certainly willing to work with the staffs to iron out any
details.
That completes my statement, Mr. Chairman. I would be glad to
respond to questions.
Mr. R0NcALI0. Thank you very much, Mr. Krulitz.
I was about to ask a question this morning as to whether or not
there was ever any judicial determination the Narragansetts are a
tribe. Has there been such a determination?
Mr. KRULITZ. There has been no determination, Mr. Chairman.
Mr. RONCALIO. You will have a draft within a week?
Mr. KRULITZ. Yes, sir.
Mr. R0NcALI0. You will have it within a week.
Mr. KRTJLITZ. I am assured by all my compatriots that we will.
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Mr. RONCALIO. It is so rare where we can find agreement amono' all
parties on an issue like this. I think it is in the best interests of ev~ry-
body concerned if we move it as fast as we can.
Mr. KRULITZ. We agree.
Mr. R0NcALIO. We will refer the bill to the full House Interior
Committee with the notice that there will be amendments to be
submitted. We look forward to your bill for those amendments.
Mr. KRULITZ. Yes, sir.
Mr. RONCALIO. We hope we will have them.
If we are going to have a hangup on these attorneys' fees, maybe
we will not have it. I thought these were attorneys' fees for the counsel
to the tribe, but it is not; it is for counsel to the defendants. We
may have a problem with that.
I do not know about the deletions of section 8(c). We will defer
to the excellent staff members we have. We hope we can work with
them on that.
I would like very much to have a general approval of the Department
to this legislation. It would help very, very much without necessarily
settmg a dangerous precedent in that area.
Mr. KRULITZ. I feel fairly confident, Mr. Chairman, that can be
achieved.
Mr. RONCALLO. Fine.
I think the contribution of 900 acres of land is a very substantial
and real State contribution. I would project that the amount of $3
million from the Federal Government may have a diminution in
value next year of 2, 3, or 4 percent, whereas those 900 acres may
have appreciation.
I would not quibble about it; I know it is a very good contribution.
I know when we get land in our family, we keep it; but when we get
money, we spend it.
We thank you for putting together this statement and helping with
the markup.
I believe counsel has a question.
Mr. PARKER. Mr. Krulitz, I have just one question on your sug-
gestion that the section 4 language be amended. Would you have
actual proposals to send to us? We would like to see your proposals
before your 1 week for a complete administration proposal.
As you know, that language in section 4 has been particularly an
issue that everyone wants to look at very closely.
Mr. KRULITz. Yes, Mr. Parker, I am sure that we can, very early
next week, have alternative language for section 4.
Mr. PARKER. As I understand your statement, you feel that if the
extinguishment was made effective as of the date of any transfers,
that would satisfy your analysis or your feeling that that would be an
effective clause then. Is that right?
Mr. KRULITZ. Yes. Mr. Parker, what we are trying to do is eliminate
the potential exposure for taking at current values. The theory is that,
by ratifying the transfers as of the date of the transfer and in effect a
retroactive approval, in essence what we are doing is complying with
the Nonintercourse Act, which required Federal approval of the trans-
fers. So, by doing that retroactively, we think that there-will be added
protection that will be important, not so much in this case but perhaps
in others.
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Mr. RONCALIO. We thank you very, very much. Give our regards
to your wonderful boss.
Mr. KRULITZ. Thank you, Mr. Roncalio.
Mr. RONCALIO. Who wanted to be heard one more time? Mr. Brody,
you wanted to say something else?
Mr. BRODY. Thank you, Mr. Chairman. I have just one point with
respect to what the Solicitor referred to as a disagreement concerning
the appraisals that are submitted. It is a very difficult situation that
we are facing in this respect.
What has been asked of the State is to provide a definite monetary
valuation upon what has been now counted as over 1,060 acres, which
is the State's contribution. It is a difficult task to put a monetary
valuation on this particular land, which is now in its natural state. It is
a conservation area. It is a wildlife preservation area. And it is the
area in its natural state in this particular location, which is of the
highest and the greatest value to the tribe in this particular case, not
only because of its location but because of its historic value and its
present natural state.
I think, first of all, the contribution that the State is making is a
significant one. I think that, at times, attempting to put a strict mone-
tary valuation on it, to compare it to what may be other land that is
closer to roadside, that may be clearly of a more developable nature
for residences, et cetera, is something akin to comparing apples and
oranges.
I think, for the sake of clarification, the land does have a signifi-
cantly high appraisal value as a wildlife preserve area. The esti mate
from the appraisal is somewhat near $2.7 million. But, again, the
appraiser himself has indicated that that figure is something which
may be extremely low in the honest evaluation of the value of this
land in its present state. It is something that could not be replaced for
hundreds of millions of dollars.
Mr. RONCALIO. We appreciate that. We appreciate the difficulty of
appraisal on these types of matter.
Mr. BRODY. Thank you, Mr. Chairman.
Mr. RONCALIO. This joint hearing on this legislation will stand in
recess subject to the call of either of the committee chairmen.
[Whereupon, at 11 :55 a.m., the committees stood in recess, subject
to call of the chair.]
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