The Reagan administration is expected to give its support to legislation, to be introduced Tuesday in the House and Senate, that could virtually wipe out pending land claims by Indian tribes for millions of acres in states along the East Coast.
A draft of the bill, obtained by The Washington Post, provides that the tribes no longer be able to recover any lands taken illegally. Instead, the Indians would be restricted to monetary damages limited to the value of the lands when they were taken, plus a small interest payment.
The legislation would also remove Indian lawsuits from the federal court system and require the tribes to take their cases either to Interior Secretary James G. Watt or to the U.S. Court of Claims, which deals only in claims for monetary damages against the government. Watt's decisions would not be subject "to review by any court" and Claims Court decisions could be appealed only to the U.S. Supreme Court.
Rep. Gary Lee (R-N.Y.), the author of the legislation, will introduce the bill in the House. Cosponsors in the Senate are Sen. Alfonse D'Amato (R-N.Y.) and Sen. Strom Thurmond (R-S.C.).
"The people who live on this land today should not be the ones penalized for something that did or did not happen in 1795," D'Amato said. "We're looking for a bill that not only will protect those families who have bought homes on this land, but will also define a course of action for those Indians who believe they have a viable claim against the government."
As it is now drafted, the bill would affect Indian lawsuits in New York, South Carolina and Connecticut, but a source involved with the legislation said that other interested states may be added by amendment during the hearing process.
Meanwhile, members of the congressional delegation from Connecticut have complained that they weren't consulted on the bill. Rep. Samuel Gejdenson (D-Conn.) said, "My understanding is that they want to limit judicial remedies. I think that's wrong."
Peter Gillies, deputy attorney general of Connecticut, said he had been called about the bill and was told that it was merely a provision to shift the cost of the claim settlements from the states to the federal government. He said he supported it in concept and requested a copy of the legislation, but he has not received one.
Indian advocacy groups have expressed outrage at the proposal.
"It's one of the most callous power plays we've seen in the area of Indian land claims," said Steven Tullberg of the Indian Law Resource Center. "It's a crass, discriminating bill. . . . It's just racism."
Congressional and administration sources say the legislation has been approved by the Justice Department, by Office of Management and Budget Director David A. Stockman and by Secretary Watt.
At the heart of the issue is the 1790 Nonintercourse Act, which provided that all transactions involving the tribes had to be ratified by Congress. Most of the claims have been made in cases where states or other land purchasers did not obtain the required congressional approval.
In New York, Indian tribes have already sued to recover 314,000 acres and have threatened suit over more than 16 million additional acres.
There are three current cases in Connecticut, involving 2,700 acres under litigation and 2,000 acres that are threatened with litigation. The South Carolina lawsuit by the Catawba Indian tribe is for 144,000 acres in the center of the state.
Arthur Gajarsa, attorney for the Cayuga tribe in New York, said he believes the proposed legislation violates the constitutional guarantees that the federal government may not seize property without adequate compensation.
His case involves 64,000 acres that was worth about $280,000 when it was taken by New York State in 1795. The Indians were paid $7,800 when the land was taken. It was appraised two years ago at more than $300 million.
The Cayuga tribe reached a settlement with the government in 1980 under which the tribe agreed to take 6,200 acres and an $8.5 million trust fund to end their claim to the 64,000 acres. But the settlement fell apart after Lee, who first supported it, urged the House to defeat it.
Gajarsa has since filed suit against New York State and 8,000 private property owners to gain possession of the full 64,000 acres of land.
He and other lawyers handling Indian claims say they will challenge the constitutionality of the measure if it does become law, but they warned that in the future Indian tribes may be less willing to negotiate and settle than they have in the past.
"They're adding 10 to 15 years to the litigation process that is now going on," said Suzan Harjo of the Native American Rights Fund. "What I'm fearful of is that tribes that are now negotiating in good faith will back off and refuse to compromise."
The proposed legislation would extinguish all claims to land and natural resources, including minerals, timber, water and hunting and fishing rights. It would also extinguish all Indian trespass claims.
The tribes would be able to seek only monetary damages for the value of the land at the time it was taken, minus any money received by the tribe at the time the land was taken.
Tribes would be eligible for interest since the lands were taken at an annual rate of 5 percent on lands for which they held a recognized title. For "aboriginal title" lands, Indian homelands, the annual interest rate would be just 2 percent.