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[Congressional Record Volume 155, Number 1 (Tuesday, January 6, 2009)]
[Senate]
[Pages S67-S69]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. INOUYE:
  S. 65. A bill to provide relief to the Pottawatomi Nation in Canada 
for settlement of certain claims against the United States; to the 
Committee on the Judiciary.
  Mr. INOUYE. Mr. President, almost 14 years ago, I stood before you to 
introduce a bill ``to provide an opportunity for the Pottawatomi Nation 
in Canada to have the merits of their claims against the United States 
determined by the United States Court of Federal Claims.''
  That bill was introduced as Senate Resolution 223, which referred the 
Pottawatomi's claim to the Chief Judge of the U.S. Court of Federal 
Claims and required the Chief Judge to report back to the Senate and 
provide sufficient findings of fact and conclusions of law to enable 
the Congress to determine whether the claim of the Pottawatomi Nation 
in Canada is legal or equitable in nature, and the amount of damages, 
if any, which may be legally or equitably due from the United States.
  Nine years ago, the Chief Judge of the Court of Federal Claims 
reported back that the Pottawatomi Nation in Canada has a legitimate 
and credible legal claim. By settlement stipulation, the United States 
has taken the position that it would be ``fair, just and equitable'' to 
settle the claims of the Pottawatomi Nation in Canada for the sum of 
$1,830,000. This settlement amount was reached by the parties after 7 
years of extensive, fact-intensive litigation. Independently, the Court 
of Federal Claims concluded that the settlement amount is ``not a 
gratuity'' and that the ``settlement was predicated on a credible legal 
claim.'' Pottawatomi Nation in Canada, et al. v. United States, Cong. 
Ref. 94-1037X at 28 (Ct. Fed. Cl., September 15, 2000) (Report of 
Hearing Officer).
  The bill I introduce today is to authorize the payment of those funds 
that the United States has concluded would be ``fair, just and 
equitable'' to satisfy this legal claim from amounts appropriated under 
section 1304 of title 31 of the United States Code. If enacted, this 
bill will finally achieve a measure of justice for a tribal nation that 
has for far too long been denied.
  For the information of our colleagues, this is the historical 
background that informs the underlying legal claim of the Canadian 
Pottawatomi.
  The members of the Pottawatomi Nation in Canada are one of the 
descendant groups--successors-in-interest--of the historical 
Pottawatomi Nation and their claim originates in the latter part of the 
18th century. The historical Pottawatomi Nation was aboriginal to the 
United States. They occupied and possessed a vast expanse in what is 
now the States of Ohio, Michigan, Indiana, Illinois, and Wisconsin. 
From 1795 to 1833, the United States annexed most of the traditional 
land of the Pottawatomi Nation through a series of treaties of 
cession--many of these cessions were made under extreme duress and the 
threat of military action. In exchange, the Pottawatomis were 
repeatedly made promises that the remainder of their lands would be 
secure and, in addition, that the United States would pay certain 
annuities to the Pottawatomi.
  In 1829, the United States formally adopted a Federal policy of 
removal--an effort to remove all Indian tribes from their traditional 
lands east of the Mississippi River to the west. As part of that 
effort, the government increasingly pressured the Pottawatomis to cede 
the remainder of their traditional lands--some 5 million acres in and 
around the city of Chicago and remove themselves west. For years, the 
Pottawatomis steadfastly refused to cede the remainder of their tribal 
territory. Then in 1833, the United States, pressed by settlers seeking 
more land, sent a Treaty Commission to the Pottawatomi with orders to 
extract a cession of the remaining lands. The Treaty Commissioners 
spent 2 weeks using extraordinarily coercive tactics--including threats 
of war--in an attempt to get the Pottawatomis to agree to cede their 
territory. Finally, those Pottawatomis who were present relented and on 
September 26, 1933, they ceded their remaining tribal estate through 
what would be known as the Treaty of Chicago. Seventy-seven members of 
the Pottawatomi Nation signed the Treaty of Chicago. Members of the 
``Wisconsin Band'' were not present and did not assent to the cession.
  In exchange for their land, the Treaty of Chicago provided that the 
United States would give to the Pottawatomis 5 million acres of 
comparable land in what is now Missouri. The Pottawatomi were familiar 
with the Missouri land, aware that it was similar to their homeland. 
But the Senate refused to ratify that negotiated agreement and 
unilaterally switched the land to 5 million acres in Iowa. The Treaty 
Commissioners were sent back to acquire Pottawatomi assent to the Iowa 
land. All but seven of the original 77 signatories refused to accept 
the change even with promises that if they were dissatisfied ``justice 
would be done.'' Treaty of Chicago, as amended, Article 4. 
Nevertheless, the Treaty of Chicago was ratified as amended by the

[[Page S68]]

Senate in 1834. Subsequently, the Pottawatomis sent a delegation to 
evaluate the land in Iowa. The delegation reported back that the land 
was ``not fit for snakes to live on.''
  While some Pottawatomis removed westward, many of the Pottawatomis--
particularly the Wisconsin Band, whose leaders never agreed to the 
Treaty--refused to do so. By 1836, the United States began to 
forcefully remove Pottawatomis who remained in the east--with 
devastating consequences. As is true with many other American Indian 
tribes, the forced removal westward came at great human cost. Many of 
the Pottawatomi were forcefully removed by mercenaries who were paid on 
a per capita basis government contract. Over one-half of the Indians 
removed by these means died en route. Those who reached Iowa were 
almost immediately removed further to inhospitable parts of Kansas 
against their will and without their consent.
  Knowing of these conditions, many of the Pottawatomis including most 
of those in the Wisconsin Band vigorously resisted forced removal. To 
avoid Federal troops and mercenaries, much of the Wisconsin Band 
ultimately found it necessary to flee to Canada. They were often 
pursued to the border by government troops, government-paid mercenaries 
or both. Official files of the Canadian and United States governments 
disclose that many Pottawatomis were forced to leave their homes 
without their horses or any of their possessions other than the clothes 
on their backs.
  By the late 1830s, the government refused payment of annuities to any 
Pottawatomi groups that had not removed west. In the 1860s, members of 
the Wisconsin Band--those still in their traditional territory and 
those forced to flee to Canada--petitioned Congress for the payment of 
their treaty annuities promised under the Treaty of Chicago and all 
other cession treaties. By the Act of June 25, 1864 (13 Stat. 172) the 
Congress declared that the Wisconsin Band did not forfeit their 
annuities by not removing and directed that the share of the 
Pottawatomi Indians who had refused to relocate to the west should be 
retained for their use in the United States Treasury. (H.R. Rep. No. 
470, 64th Cong., p. 5, as quoted on page 3 of memo dated October 7, 
1949). Nevertheless, much of the money was never paid to the Wisconsin 
Band.
  In 1903, the Wisconsin Band--most of whom now resided in three areas, 
the States of Michigan and Wisconsin and the Province of Ontario--
petitioned the Senate once again to pay them their fair portion of 
annuities as required by the law and treaties. (Sen. Doc. No. 185, 57th 
Cong., 2d Sess.) By the Act of June 21, 1906 (34 Stat. 380), the 
Congress directed the Secretary of the Interior to investigate claims 
made by the Wisconsin Band and establish a roll of the Wisconsin Band 
Pottawatomis that still remained in the East. In addition, the Congress 
ordered the Secretary to determine ``the Wisconsin Bands proportionate 
shares of the annuities, trust funds, and other monies paid to or 
expended for the tribe to which they belong in which the claimant 
Indians have not shared, and the amount of such monies retained in the 
Treasury of the United States to the credit of the claimant Indians as 
directed the provision of the Act of June 25, 1864.''
  In order to carry out the 1906 Act, the Secretary of the Interior 
directed Dr. W.M. Wooster to conduct an enumeration of Wisconsin Band 
Pottawatomi in both the United States and Canada. Dr. Wooster 
documented 2007 Wisconsin Pottawatomis: 457 in Wisconsin and Michigan 
and 1550 in Canada. He also concluded that the proportionate share of 
annuities for the Pottawatomis in Wisconsin and Michigan was $477,339 
and that the proportionate share of annuities due the Pottawatomi 
Nation in Canada was $1,517,226. The Congress thereafter enacted a 
series of appropriation Acts from June 30, 1913 to May 29, 1928 to 
satisfy most of the monies owed to those Wisconsin Band Pottawatomis 
residing in the United States. However, the Wisconsin Band Pottawatomis 
who resided in Canada were never paid their share of the tribal funds.
  Since that time, the Pottawatomi Nation in Canada has diligently and 
continuously sought to enforce their treaty rights, although until this 
congressional reference, they had never been provided their day in 
court. In 1910, the United States and Great Britain entered into an 
agreement for the purpose of dealing with claims between both 
countries, including claims of Indian tribes within their respective 
jurisdictions, by creating the Pecuniary Claims Tribunal. From 1910 to 
1938, the Pottawatomi Nation in Canada diligently sought to have their 
claim heard in this international forum. Overlooked for more pressing 
international matters of the period, including the intervention of 
World War I, the Pottawatomis then came to the U.S. Congress for 
redress of their claim.
  In 1946, the Congress waived its sovereign immunity and established 
the Indian Claims Commission for the purpose of granting tribes their 
long-delayed day in court. The Indian Claims Commission Act, ICCA, 
granted the Commission jurisdiction over claims such as the type 
involved here. In 1948, the Wisconsin Band Pottawatomis from both sides 
of the border--brought suit together in the Indian Claims Commission 
for recovery of damages. Hannahville Indian Community v. U.S., No. 28 
(Ind. Cl. Comm. Filed May 4, 1948). Unfortunately, the Indian Claims 
Commission dismissed Pottawatomi Nation in Canada's part of the claim 
ruling that the Commission had no jurisdiction to consider claims of 
Indians living outside territorial limits of the United States. 
Hannahville Indian Community v. U.S., 115 Ct. Cl. 823 (1950). The claim 
of the Wisconsin Band residing in the United States that was filed in 
the Indian Claims Commission was finally decided in favor of the 
Wisconsin Band by the U.S. Claims Court in 1983. Hannahville Indian 
Community v. United States, 4 Ct. Cl. 445 (1983). The Court of Claims 
concluded that the Wisconsin Band was owed a member's proportionate 
share of unpaid annuities from 1838 through 1907 due under various 
treaties, including the Treaty of Chicago and entered judgment for the 
American Wisconsin Band Pottawatomis for any monies not paid. Still the 
Pottawatomi Nation in Canada was excluded because of the jurisdictional 
limits of the ICCA.
  Undaunted, the Pottawatomi Nation in Canada came to the Senate and 
after careful consideration, we finally gave them their long-awaited 
day in court through the congressional reference process. The court has 
now reported back to us that their claim is meritorious and that the 
payment that this bill would make constitutes a ``fair, just and 
equitable'' resolution to this claim.
  The Pottawatomi Nation in Canada has sought justice for over 150 
years. They have done all that we asked in order to establish their 
claim. Now it is time for us to finally live up to the promise our 
government made so many years ago. It will not correct all the wrongs 
of the past, but it is a demonstration that this government is willing 
to admit when it has left unfulfilled an obligation and that the United 
States is willing to do what we can to see that justice--so long 
delayed is not now denied.
  Finally, I would just note that the claim of the Pottawatomi Nation 
in Canada is supported through specific resolutions by the National 
Congress of American Indians, the oldest, largest and most-
representative tribal organization here in the United States, the 
Assembly of First Nations, which includes all recognized tribal 
entities in Canada, and each and every of the Pottawatomi tribal groups 
that remain in the United States today.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 65

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SETTLEMENT OF CERTAIN CLAIMS.

       (a) Authorization for Payment.--Notwithstanding any other 
     provision of law, subject to subsection (b), the Secretary of 
     the Treasury shall pay to the Pottawatomi Nation in Canada 
     $1,830,000 from amounts appropriated under section 1304 of 
     title 31, United States Code.
       (b) Payment in Accordance With Stipulation for 
     Recommendation of Settlement.--The payment under subsection 
     (a) shall--
       (1) be made in accordance with the terms and conditions of 
     the Stipulation for Recommendation of Settlement dated May 
     22, 2000, entered into between the Pottawatomi

[[Page S69]]

     Nation in Canada and the United States (referred to in this 
     section as the ``Stipulation for Recommendation of 
     Settlement''); and
       (2) be included in the report of the Chief Judge of the 
     United States Court of Federal Claims regarding Congressional 
     Reference No. 94-1037X, submitted to the Senate on January 4, 
     2001, in accordance with sections 1492 and 2509 of title 28, 
     United States Code.
       (c) Full Satisfaction of Claims.--The payment under 
     subsection (a) shall be in full satisfaction of all claims of 
     the Pottawatomi Nation in Canada against the United States 
     that are referred to or described in the Stipulation for 
     Recommendation of Settlement.
       (d) Nonapplicability.--Notwithstanding any other provision 
     of law, the Indian Tribal Judgment Funds Use or Distribution 
     Act (25 U.S.C. 1401 et seq.) does not apply to the payment 
     under subsection (a).
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