Would this meet the issue, as you have raised it, if the bill should require the Secretary to submit legislation which would then require an affirmative act of Congress?

Mr. SONOSKY. Yes. Our position on that is this.

No plan should be submitted to Congress unless the tribes agree. If the tribes disagree, then the Secretary should submit proposed legislation. That is the existing law. That should be continued.

That was the intent from the beginning. I have attached to my written statement a list of the statutes. The chairman will see that this committee did not surrender its supervision and desire to handle these matters. What it was asking for was administrative aid.

It became a burden on the committee. What the Interior witness forgot to mention was the same committee report made clear the committee was concerned it was a delay on the Indians. That is why they gave the Secretary 6 months and another extension of 90 days. That was because if he could not do it in a short time, they were saying: "Then bring it back to us and we will do it."

Now the Secretary has forgotten all of that. It is a matter of administrative expediency with him to see how much time he is going to need to do the job. There is no amount of time you can specify in a statute that he is going to need to do his job.

You have to put some pressure on him. If the tribes do not agreeand in 80 percent of the cases they do agree-and he gets a plan, he brings it up here and it is done.

The other 20 percent should stay with Congress.

Senator HATFIELD. We thank you for your testimony. You were succinct and to the point.

[The prepared statement follows:]

PREPARED Statement of MARVIN J. SONOSKY

Mr. Chairman, my name is Marvin J. Sonosky. I am a partner in the law firm of Sonosky, Chambers & Sachse in Washington, D.C. I appear here to testify on behalf of tribal clients whom we represent in claims cases, in general opposition to the draft bill to amend the Distribution of Judgment Funds Act submitted by the Department of the Interior with its letter of November 1, 1979. My objections go to four major points:

1. The draft would vest the Secretary with the power to divide an award between two or more competing tribal entities without the consent of the affected tribes. This would be accomplished by the Secretary's new Section 2a. That new section specifies that: "Such plan shall include *** a formula for the division of the funds among two or more beneficiary entities if such is warranted." In other words, without tribal consent, the Secretary would divide the award as he pleased, put that division formula in the plan and send it to Congress. If the tribes were dissatisfied all they would have to do is get both the Senate and the House to veto the plan and do it within the 60-day legislative layover period. A formidable burden for the Secretary to lay on his tribal wards.

The present law is silent on granting so broad a power to the Secretary. Except in the Seminole case, the Secretary never has divided an award between competing tribes without the consent of the affected tribes. And the division in Seminole never came to pass because the Secretary was late in filing the plan with Congress. Even though this proposed amendment would be the paramount substantive change in existing law, the Secretary does not plainly disclose to the Committee that he is asking for this new power. The Secretary is mute on this most revolutionary change in the law he proposes. The Secretary's letter does not point to the proposed change. His section-by-section analysis of the proposed bill is silent on this unprecedented assumption of power. The provision simply is slipped into Section 2.

I do not propose here to argue the point that the Secretary has no more power to divide tribal awards that stand in lieu of the lands than he has to divide tribal

lands. Only Congress can do that (25 U.S.C. 177). I submit a copy of the brief on appeal that I filed in the Seminole case, No. 79-2052 in the United States Court of Appeals for the District of Columbia. The argument that the Secretary is without power to divide an award between competing Indian groups appears at pages 11-21 of the brief.

I say if the Secretary wants the power to divide tribal awards let him_ask Congress for it in such a way that the question is out in the open. Then if Congress wishes to entertain the proposition, bills will be introduced, hearings will be heid, tribes will have an opportunity to present their views and the Committee will have the benefit of both sides of the issue. So far-reaching a power ought not be slipped into a bill seemingly designed to handle house keeping corrections.

2. The Secretary should not charge Indian tribes for his services in carrying out a law of the United States. Section 8 of the Secretary's draft, would empower the Secretary to use tribal funds "to pay part or all of the cost of the preparation of a roll for such distribution." There is no more reason for charging an Indian tribe for the preparation of a distribution roll than there would be for charging the tribe its pro rata share of the costs of the Indian Claims Commission, or of the Court of Claims. One as much as the other represents the cost of performing the governmental function necessary to carry out the laws of the United States. The Secretary should appreciate that a tribal award stands in lieu of the land that the tribe lost to the United States. When tribal land was allotted to individua! Indians, Interior did not charge each Indian the cost of allotting. The Secretary was performing a governmental function in executing the requirements of the allotment statutes. What is the rationale for charging Indians the cost of dividing the money that stands in lieu of the land?

If, in the first place, the United States had paid the tribe the fair value of the land, there would be no award against which to make charges. The award represents the difference between what the Government paid and the value of the land at the time of acquisition. The Government took the land without the tribe's consent, or acquired the land with the tribe's uninformed consent, paid nothing or an unconscionable consideration, closed the courts of the United States so that tribes could not bring suit, waited for decades before it permitted tribes to sue under the Indian Claims Commission Act, and then finally after 20 to 30 years of fierce opposition from the Government, the courts grant the tribes an award substituting 1980 inflated dollars without interest, for the land. Now the Department of the Interior wants authority from Congress to charge every Indian for dividing up the money that stands in place of their lands. The Department should be embarrassed to assert such a proposition. Indian tribes shudder to think that it would be compelled to give the Bureau of Indian Affairs carte blanche in spending tribal award money to pay government employees for preparing a distribution roll. 3. The draft of bill contains no guides for defining beneficiaries. As part of the oversight review we urge the Committee to call on the Bureau to advise what criteria and standards it uses in determining beneficiaries and what criteria and standards it uses in preparing recommendations for the division of awards among competing tribal entities. The 1973 Act leaves everything to the Secretary's discretion a discretion ultimately exercised by an individual in the lower echelons. Some guides should be fixed in the statute. But before guides can be framed the Committee must be informed of the facts.

An outsider gains the impression that except where a tribe now has a roll approved by the Secretary, the Bureau treats an award as if it were the property of individual Indians. We appreciate that a standard cannot be uniformly applied in all instances. For example, awards are granted in the name of tribes that no longer exist. A separate set of criteria would apply in that situation.

Frequently, awards are granted in the name of the land-owning treaty-signing tribal entity, that today is split into two or more segments, each with its own reservation. For example, the Sisseton and Wahpeton Sioux Tribes, now divided into the Sisseton and Wahpeton Tribes of North Dakota and the Sisseton and Wahpeton Soux Tribes of South Dakota; or the Medawakanton and Wahpakoota Tribes, now divided into the Santee Sioux of Nebraska, the Flandreau Santee Sioux, the Lower Sioux Indian Community of Minnesota and the Prairie Island Indian Community of Minnesota, or the Sioux Nation today représented by the Standing Rock Sioux, the Cheyenne River Sioux, the Rosebud Sioux, the Pine Ridge Sioux, the Lower Brule Sioux and the Crow Creek Sioux, as well as the Sioux of the Fort Peck Reservation. Each of those tribes resides on a separate reservation. Each desires to make its own plans for the use of any award. What criteria does the Bureau apply in determining how an award to the entire Sioux

Nation should be allocated among the several tribes. One tribe has an enrollment of nearly 30,000 because it has no limitation based on degree of Indian blood. A drop of Indian blood and a parent on the rolls is sufficient to fix eligibility. Another tribe does not enroll unless the applicant is at least one-quarter blood of that tribe and consequently has a much smaller membership. What standard does the BIA apply in this circumstance? Does it divide by tribes, by tribal membership, or by going back to a date when all seven tribes were composed mainly of fullbloods?

We urge the Committee to call on the Bureau to advise what standards it applies in each of the several fact situations that it has faced and in particular to advise whether it regards awards to be the property of individual Indians, regardless of whether that Indian has any connection with the tribe, or holds himself out to be an Indian, or is recognized as an Indian in the community in which he resides.

When the facts are before the Committee, we think it will be possible to develop legislative standards so that the determination of beneficiaries will be fair, just and consistent.

4. No legislation should be adopted that permits the Secretary to submit a plan to Congress unless the tribe consents to the plan. That is the intent of the existing 1973 Distribution Funds Act. Section 1(b) of the law specifies that "[I]n any case where the Secretary determines that the circumstances do not permit the preparation and submission of a plan * * *, he shall submit, *** proposed legislation ***." In the draft submitted to this Committee the Secretary struck that requirement saying in effect that if the Secretary cannot succeed, neither can Congress. ("We do not believe that any of those [difficult] situations could have been alleviated via the legislative route.”) Instead, the Secretary offers a proposal that for all practical purposes is worth nothing to Indian tribes. The Secretary proposes that if both Houses of Congress disapprove of a plan, then tribes could seek legislation. We all know that we do not need an act of Congress to tell us that we are free to seek legislation. But the task of getting the House and Senate to set aside a Secretarial plan would be insuperable. Interior knows this. Under the draft proposal any plan issued by the Secretary would be set in concrete.

The Secretary has overlooked the history of the Judgment Funds Distribution Act and the reason it was adopted. The legislative history of the 1973 Act discloses that Congress did not enact the 1973 Act to rid itself of responsibility for the use and distribution of Indian funds. Congress was seeking administrative assistance, not an administrative substitution for Congress.

The draft submitted by Interior presents an 180 degree departure from the objective of the 1973 Distribution of Funds Act. Before the 1973 Act, every Indian award came before Congress for legislation authorizing the use and distribution of the money and where necessary, directing the division of an award. This continued after the Indian Claims Commission began to enter awards in the 1950's. In the 10 years prior to 1968, Congress enacted from 1 to 5 distribution laws each year. Congress experienced no problem until the Indian Claims Commission began to enter numerous awards. Then the distribution bills became a burden and Congress was concerned that the legislative process contributed to additional delay in making the funds available to the Indian people. (See annexed table.) Sen. Rept. No. 93–337, 93d Cong., 1st sess., pp. 4–5 (1973); H. Rept. No. 93-337, 93d Cong., 1st sess., pp. 4-5 (1973). See Hearings, Senate Subcommittee on Indian Affairs, 93d Cong., 1st sess., April 13, 1973, p. 1 (hereafter "Hearings"). In 1968, 13 distribution laws were adopted, in 1970-7; in 1972-14. Congress decided to provide "an alternative method for processing" the tribal awards. Hearings, p. 1. Now Interior proposes changes in the law that would let the Secretary divide awards and submit plans for a 60-day layover period, whether the affected tribes agree or not, knowing full well that for Indian tribes the 60-day layover period is simply legislative conversation, without real meaning. Indians are left without a remedy or review of any administrative injustice or partisanship.

Conclusion. The reasons for the 1973 Distribution of Funds Act have largely disappeared. The great bulk of the claims cases have been concluded. The problem of legislation for each award is a diminishing one. We suggest that the 1973 Act be repealed and the entire subject returned to Congress.

In the alternative, the act should be modified to limit the Secretary to the function of aiding in the development of a proposed plan. If the affected tribes consent, the plan should be submitted for the 60-day layover period. If any affected tribe does not consent, the Secretary should propose affirmative legislation. That is what the 1973 Act contemplated.

ACTS OF CONGRESS PROVIDING FOR THE DIVISION AND DISTRIBUTION OF JUDGMENT FUNDS BEFORE AND AFTER THE DISTRIBUTION OF JUDGMENT FUNDS ACT OF 1973

Senator HATFIELD. We call now Mr. Robert Coulter for the Indian

Law Resource Center.

Mr. Coulter, welcome. You may proceed.

1300

1300b

1300c

1300d

Assiniboine.

89-1093 Sac and Fox (Division).
90-2503

1300e

883

STATEMENT OF ROBERT T. COULTER, DIRECTOR, INDIAN LAW RESOURCE CENTER

Mr. COULTER. Thank you, Mr. Chairman. I will try to be as succinct as possible.

My name is Robert Coulter. I am an attorney and am director of the Indian Law Resource Center, a law office here in Washington, D.C. My office also represents a good many Indian governments which are very much concerned with the matter under consideration here today. Our concern-let me first say this. I agree entirely with Mr. Sonosky and all of his criticisms of the proposed bill. I will omit further remarks on those subjects.

Our particular concern, however, with this subject area is this. The payment of these judgment awards has a very profound legal effect, in many cases, on the existing land rights of the Indian people involved.

In a good many cases, it is becoming known that the Indian entities involved still have good title to the land which has been made subject to the claim process. Or, they have a colorable legal claim to the land.

Then when the payment of the judgment award is made and when that payment occurs, the surviving land rights of the Indian people involved are extinguished and done away with.

So, to state it succinctly, the process of payment is, in some cases, a process of actually taking existing Indian land that is owned by the Indian entities involved. It is not supposed to be that way so far as Congress is concerned.

That is the reason why this payment process deserves such careful scrutiny and why it must be surrounded with every legal safeguard that we can give it because it is very, very crucial.

Land rights are being lost by the stroke of a pen, I fear. We should not be in the position, that is, the United States should not be in the position of taking Indian land, either by mistake or inadvertently, or certainly not deliberately.

In fact, so grave are the Indian rights involved here that my office has already filed with the United Nations Commission on Human Rights several formal legal human rights complaints on behalf of Indian nations and Indian governments which have lost, or which may have lost, land rights because of this process.

The existing process for the payments of these awards is permitting many abuses. In light of your time restrictions, Senator, I will not try to detail them. But there have been many shenanigans and abuses engaged in by the Interior Department in an effort to pay off these awards. And, by so doing, it affects the extinguishing of the Indian land rights.

The proposed bill, I think, would very much aggravate that situation. It appears, as Mr. Sonosky has already said, to be a power grab. The time limits would be abandoned and the division of power would be slipped in there.

Another matter that should be given attention would be the amendment-again, not mentioned by the Interior Department—that