before the Commission on which no hearing has been held, and where the Commission determines there is no valid reason for not setting the case for hearing.

(b) If a claimant, without cause, fails to proceed with the hearing of its claim on the date set for that purpose, or any extension thereof, the Commission for cause, may dismiss for lack of procesution. No extension shall be granted except for good cause shown.

This language would make the Congressional intent unmistakably clear that the Commission is to proceed with dispatch and firmness, but would permit usual judicial discretion to avoid inequities.

SETTLEMENTS

The Commission has disposed of many claims. The Court of Claims has reviewed the Commission on many issues. A large body of precedents has been established, including valuation of lands in various localities and at various dates. These should serve as an ever increasing basis for settlements. The pretrial activity of the Commission and the parties should include thorough exploration of settlement possibilities, as generally fair settlements are to be favored. Much of the Commission's time can be saved by a timely settlement. The Department of Justice might profitably review its policy and practice on settlements and consider assigning more personnel to considering proposals for fair settlements. If all pending cases must be tried through the various phases: (1) title or liability, (2) value, (3) offsets and consideration, and (4) possible appeals, it will take years to finish the Commission's work on all cases. In most courts, only a small part of the cases on the docket are tried to conclusion because of bona fide settlement efforts by the parties and the Court. Similarly, the Commission's case load should be reduced by such efforts.

EXTENSION FOR 5 YEARS

Section 1(b), of S. 307, would extend the life of the Commission for five (5) years, until April 10, 1972, or such earlier time as the Commission shall have made its final report to Congress.

We favor the extension for at least five (5) years. All concerned with the Indian claims litigation are anxious that the claims be disposed of without undue delay and that the work of the Commission be concluded. Nevertheless, considering the several stages or phases necessary for most of the complex litigation before the Commission, the appeals that may occur in some cases, proceedings on cases which may be remanded for further consideration, and all related factors, it is reasonable to state that at least five (5) years, and probably longer, will be required to conclude all of the cases pending before the Commission. The extension for any lesser period would have a negative effect on the ability of the Commission and the Department of Justice, Indian Claims Section, to employ and retain qualified staff personnel. We point out that it is only human nature that competent professional staff people (especially lawyers) would seek employment with tenure and tend to leave the Commission and the Indian Claims Section of Justice, if the extended tenure of the Commission is unreasonably short. This would lead to inefficiency of the Commission and the Department of Justice. It should be avoided by an extension for the period necessary to conclude the Commission's work. This is probably nearer ten (10) years than five (5), considering that there are various stages in each of these cases and that some related cases must be disposed of in sequence because issues in one are dependent upon resolution of issues in others.

We hope these observations will be helpful to your Committee.

Sincerely yours,

[From The Federal Bar Journal]

ROBERT W. BARKER.

The Commission has adopted many rules which have facilitated disposition of cases. Counsel are required to exchange documentary evidence at least 30 days prior to trial to allow study or cross-examination and preparation of rebuttal evidence. Rebuttal documents are to be filed within 20 days of the exchange.13 Recent progress has been made in getting stipulations and agreements between the Department of Justice and the tribal attorney. However, some improvements must be made in settlements and pre-trial activity. The Commission must exert proper leadership through the employment of appropriate methods to dispose of more cases.

VI. SUGGESTIONS FOR OVERCOMING DELAYS AND IMPROVING PRACTICE A. Department of Justice

1. The Indian Claims Section of the Lands Division of the Department of Justice should be given an increased staff. In general, cases move no faster than the attorneys for the Department of Justice can prepare their defense. Therefore, prompt resolution of pending claims before the Commission cannot be realized until more attorneys are assigned to the Indian Claims Section to reduce the heavy caseload on the individual trial attorney.

2. As precedents are established by decisions, the Department of Justice should make increased effort to stipulate facts, settle issue, compromise cases, and otherwise clear the docket of matters which do not require and justify trial and consideration and decision by the Commission. For example, where land to be valued is surrounded by other similar areas which have been valued at substantially the same valuation date by the Commission or the Court of Claims, a basis for compromise is afforded and compromise would usually save many thousands of dollars of trial expense, witness fees, and perhaps two years in time.

B. Counsel for petitioners

1. Counsel for the Indians should organize their schedules in such a way that extensions of time and postponement of hearings and trials may be avoided. This, of course, should be matched by counsel for defendant and rewarded by the Commission by demanding the same of the Government.

2. Counsel for the Indians, as well as counsel for the Government, should be diligent in preparation for trial, narrowing issues, presentation of proposals for stipulation and settlement and enlisting aid of the Commission and counsel for the Government to avoid unnecessary delays.

3. Counsel should examine cases in light of decided precedents and dismiss, compromise or stipulate cases and issues which can be disposed of by precedent, clearing the way for genuine disputes. Dismissal and compromise, of course, must be done only after consent of the client, where such consent is appropriate or necessary.

C. The Commission

1. The Commission should use the pre-trial conference effectively to eliminate issues, to dispose of proof on matters not really in controvesy, and secure admission and stipulations of fact or law, together with agreement on trial dates, dates for exchange of documents, etc. Possibilities of settlement should be developed at the various stages of the cases. Pre-trial conference should be held immediately after answer and throughout the course of the case, from time to time, especially prior to and after trial of each stage of the case.

2. The Indian Claims Commission, as an agency within the scope of the Administrative Procedure Act, 14 should use trial examiners provided by section 11 of that act to conduct pre-trial and trial proceedings, and to make initial findings of fact and decisions, reserving to the Commission time for reivew of initial decisions and findings of fact and disposition of legal questions requiring en banc consideration. Obviously, several qualified trial examiners could more effectively keep up with day by day developments and push counsel for orderly development of the many cases and would enable the busy Commission to move forward on a broader front than at present. Trial Examiners attempting to keep a full and orderly agenda would probably be more effective in precluding continuances and following up to see that counsel meet deadlines.

3. The Commission should prohibit piecemeal trial. In the past, defendant has in several cases waited until the tribe has put on its evidence, only to ask for a long continuance to prepare and present its case-in-chief on the same issue. This not only departs from due process, but breeds delay and irresponsibility in the

extreme.

4. The Commission should exercise aggressive leadership in requiring counsel to get cases prepared, heard and concluded. It should summon counsel for conferences on need for extensions, particularly when the extensions are requested by the Department of Justice. In addition, the Commission should insist on compliance with its rule on exchange of documentary evidence thirty days in advance of trial. This rule should be interpreted to embrace appraisal reports and similar

written documents filed in connection with testimony of expert witnesses. 15 This would result in more orderly and expeditious examination at trial, and serve as a practical basis for stipulation of facts and issues, and possible compromise.

5. The Commission should use its investigation division, provided by section 13(b) of the act, now seldom used, in any manner which will make more effective the work of the Commission and its examiners, including the following:

a. To review the facts and posture of a particular case in comparison with other cases so that the Commission can conduct more effective pre-trial and avoid expenditure of time, funds and effort on consideration of questions or issues which have been disposed of in other cases.

b. To prepare bases for suggested settlements or stipulations so that the Commission can take an effective part. c. To consider valuation problems for the sake of reaching effective stipulations.

-

STRASSER, SPIEGELBERG, FRIED, FRANK & KAMPELMAN,

Washington, D.C., February 13, 1967.

Re extension of Indian Claims Commission Act.

Hon. HENRY M. JACKSON,

Chairman, Committee on Interior and Insular Affairs,
U.S. Senate, Washington, D.C.

DEAR SENATOR JACKSON: We are enclosing copies of Resolution No. 34-66, adopted by the Hualapai Tribe of Indians, and Resolution No. 66-41, adopted by the San Carlos Apache Tribe of Indians, both of which respectfully petition Congress "to provide such extension of the life of the Indian Claims Commission to the end that a just completion may be had of its tribal claims as well as all other Indian tribal claims pending before the Indian Claims Commission."

We would appreciate your making these resolutions a part of the record of the hearing scheduled by your Committee on Wednesday, February 15, 1967. ARTHUR LAZARUS, Jr.

Sincerely yours,

RESOLUTION NO. 34-66 OF THE GOVERNING BODY OF THE HUALAPAI TRIBE OF THE HUALAPAI RESERVATION (A FEDERALLY CHARTERED INDIAN CORPORATION), PEACH SPRINGS, ARIZ.

Whereas the Indian Claims Commission was created by Act of Congress of August 13, 1946, 60 Stat. 1049 (25 USC 70) to adjudicate Indian claims which came into existence between July 4, 1776, and August 13, 1946, and

Whereas under the terms of said act the existence of the Commission was to terminate not later than ten years after its first meeting which date of termination would have been April 10, 1957, and

Whereas the life of the Indian Claims Commission has been extended on two different occasions and the Second Session of the 89th Congress also had before it bills to extend the life of the Commission, however, due to differences, no action was taken, and

Whereas the life of the said Indian Claims Commission will expire on April 10, 1967, unless an additional extension is granted by the 90th Congress, and Whereas the Hualapai Tribe has pending before the Indian Claims Commission

Dockets Number 90 and 122, and

Whereas the Hualapai Tribe acting through its Claims Attorneys, has done everything possible to expedite the adjudication of its claims, and

Whereas by statements made by the Indian Claims Commission and the Department of Justice, it will be impossible to finally dispose of all the pending cases by even April of 1969, and

Whereas it was the intention of the Congress that Indian tribes should have their day in court by the establishment of the Indian Claims Commission so that they may once and for all have their claims against the government adjudicated: Now, therefore, be it

Resolved by the Hualapai Tribal Council in regular meeting this 3rd day of December, 1966, That it respectfully requests and urges the 90th Congress to provide

13 The Commission has recently ruled that reports of expert witnesses should be exchanged at least two days in advance of oral testimony of that expert. Order of November 25, 1959. This seems to the author to be an unwise restriction on advance preparation and continues the old fashioned practice of "surprising the opponent" instead of encouraging the parties to lay their case on the table and to attempt to arrive at a settlement before protracted trial.

such extension of the life of the Indian Claims Commission to the end that a just completion may be had of its tribal claims as well as all other Indian tribal claims pending before the Indian Claims Commission; and be it further

Resolved, That copies of this Resolution be forwarded to the Arizona Congressional Delegation and to the Committee of Congress that might be considering legislation extending the life of the Indian Claims Commission, and that its Tribal Attorneys, Royal D. Marks and Arthur T. Lazarus are authorized to appear before the Congressional Committee that may be considering said legislation and testify on behalf of the Hualapai Tribe in connection with the extension of the life of the Indian Claims Commission.

CERTIFICATION

I, the undersigned, as Acting Secretary of the Hualapai Tribal Council, hereby certify that the Hualapai Tribal Council of the Hualapai Tribe is composed of 9 members of whom 7 constituting a quorum were present at Regular Meeting this 3rd day of December, 1966; and that the foregoing resolution was duly adopted by the affirmative vote of six (6) members, pursuant to authority of Article VI Section 1 (a) and (b) of the Revised Constitution and Bylaws of the Hualapai Tribe approved October 22, 1966.

[SEAL]

MRS. EDNA BENDER,

RESOLUTION NO. 66-41

Acting Secretary.

Whereas the Indian Claims Commission was created by the Act of Congress of August 13, 1946, 60 Stat. 1049 (25 USC 70) to adjudicate Indian claims which came into existence between July 4, 1776, and August 13, 1946, and

Whereas under the terms of said act the existence of the Commission was to terminate not later than ten years after its first meeting which date of termination would have been April 10, 1957, and

Whereas the life of the Indian Claims Commission has been extended on two different occasions and the Second Sess ion of the 89th Congress also had before it bills to extend the life of the Commission, however, due to differences, no action was taken, and

Whereas the life of the said Indian Claims Commission will expire on April 10, 1967, unless an additional extension is granted by the 90th Congress, and

Whereas the San Carlos Apache Tribe has pending before the Indian Claims Commission Dockets No. 22D, 22H, 22J, and

Whereas the San Carlos Apache Tribe acting through its Claims Attorneys, has done everything possible to expedite the adjudication of its claims, and Whereas by statements made by the Indian Claims Commission and the Department of Justice, it will be impossible to finally dispose of all the pending cases by even April of 1969, and

Whereas it was the intention of the Congress that Indian tribes should have their day in court by the establishment of the Indian Claims Commission so that they may once and for all have their claims against the government adjudicated: Now, therefore, be it

Resolved by the San Carlos Apache Tribe in regular meeting this 6th day of December, 1966, That it respectfully requests and urges the 90th Congress to provide such extension of the life of the Indian Claims Commission to the end that a just completion may be had of its tribal claims as well as all other Indian tribal claims pending before the Indian Claims Commission; and be it further

Resolved, That copies of this Resolution be forwarded to the Arizona Congressional Delegation and to the Committees of Congress that might be considering legislation extending the life of the Indian Claims Commission.

CERTIFICATION

I, the undersigned, Secretary of the San Carlos Council, hereby certify that the San Carlos Council is composed of 11 members, of whom 10, constituting a quorum were present at a regular meeting thereto held on this 6th day of December, 1966; and that the foregoing Resolution No. 66-41 was duly adopted by a unanimous vote of the Council, pursuant to the provisions of Section 1, (a) Article V, amended Constitution and Bylaws of the San Carlos Apache Tribe, effective February 24, 1954.

JANIE B. FERREIRA, Secretary.

STRASSER, SPIEGELBERG, FRIED, FRANK, & KAMPELMAN,

Hon. HENRY M. JACKSON,
Chairman, Committee on Interior and Insular Affairs,

U.S. Senate, Washington, D.C.

February 14, 1967.

DEAR SENATOR JACKSON: Supplementing our letter to you of February 13, 1967 on the same subject, we are enclosing a copy of Resolution No. SR-570-67, in which the Salt River Pima-Maricopa Indian Community in Arizona petitions Congress for an extension of the Indian Claims Commission Act, of sufficient duration to ensure that all outstanding claims can be finally determined. We would appreciate your making this resolution also a part of the record of the hearing on S. 307 tomorrow morning.

Respectfully submitted.

ARTHUR LAZARUS, Jr.

RESOLUTION NO. SR-570-67 OF THE SALT RIVER PIMA-MARICOPA
INDIAN COMMUNITY TRIBAL COUNCIL

Whereas the Indian Claims Commission was created by the Act of Congress of August 13, 1946, 60 Stat. 1049, (25 USC 70) to adjudicate Indian claims which came into existence between July 4, 1776, and August 13, 1946; and

Whereas under the terms of said act the existence of the Commission was to terminate not later than ten years after its first meeting which date of termination would have been April 10, 1957; and

Whereas the life of the Indian Claims Commission has been extended on two different occasions and the Second Session of the 89th Congress also had before it bills to extend the life of the Commission, however, due to differences, no action was taken; and,

Whereas the life of the said Indian Claims Commission will expire on April 10, 1967, unless an additional extension is granted by the 90th Congress; and,

Whereas the Salt River Pima-Maricopa Community has pending before the Indian Claims Commission Docket No. 228; and,

Whereas the Salt River Pima-Maricopa Community acting through its Claims' Attorneys, has done everything possible to expedite the adjudication of its claims; and,

Whereas by statements made by the Indian Claims Commission and the Department of Justice, it will be impossible to finally dispose of all the pending cases by even April of 1969; and,

Whereas it was the intention of the Congress that Indian tribes should have their day in court by the establishment of the Indian Claims Commission so that they may once and for all have their claims against the government adjudicated: Now, therefore, be it

Resolved by the Salt River Pima-Maricopa Community in regular meeting this 8th day of December, 1966, That it respectfully requests and urges the 90th Congress to provide such extension of the life of the Indian Claims Commission to the end that a just completion may be had of its tribal claims as well as all other Indian tribal claims pending before the Indian Claims Commission; be it further Resolved, That copies of this Resolution be forwarded to the Arizona Congressional Delegation and to the Committee of Congress that might be considering legislation extending the life of the Indian Claims Commission.

CERTIFICATION

Pursuant to authority contained in Article V, Section 1 (d) (g) and (k) of the Constitution and By-laws of the Salt River Pima-Maricopa Indian Community ratified by the tribe May 17, 1940 and approved by the Secretary of the Interior June 11, 1940, the foregoing resolution was adopted this 8th day of December, 1966 at a duly called meeting called by the Community Council at Salt River, Arizona, at which a quorum of 7 members were present by a vote of 6 for; 0 against; 0 member absent; and 1 present not voting.

Attest:

FILMORE CARLOS, President.
BETTY PABLO, Secretary.