THE DEPARTMENT OF JUSTICE

Justice is charged with the defense of the United States against the Indian claims. All defenses are available except laches and the statute of limitations. The Claims Act provides for the Indian's "day in court." Justice Department attorneys take their tasks seriously and each claim is thoroughly analyzed and defenses are set up where the facts and the law justify legal opposition.

Just how many supervisors, attorneys, secretaries, experts, et cetera, are engaged in the Indian Claims Section of Justice the Commission has no means of knowing. But there must be a considerable number. In the matter of a writ of certiorari to the Supreme Court we are advised that the Solicitors Office must approve such a move. It is understood that the Solicitor has a considerable staff which aids him in carrying out his duties.

GENERAL ACCOUNTING OFFICE AND GENERAL SERVICES ADMINISTRATION, INDIAN CLAIMS SECTION

In the last paragraph of section 2 of the Claims Act, it is provided that the Commission shall make appropriate deductions for all payments made by the United States on the claims and for other offsets, counterclaims, and demands that would be allowable in a suit brought in the Court of Claims under section 145 of the Judicial Code (36 Stat. 1136; 28 U.S.C. sec. 250) and also for certain gratuities which under special circumstances may also be offset against any money judgment made to Indian claimants.

In connection with this subject it should also be remembered that most of the takings of lands by the United States from Indians has been by treaty or, in later years, by contract with Indians which had to be approved by both Houses of Congress.

The Indian treaties and contracts with Indians approved by Congress are in the National Archives for the most part. Very few cases can be adjudicated without the services of those who search the records in the Archives.

May I mention here, at this point, that the Department of Justice is charged, with, of course, setting up all the defenses and making any claims for offsets that are allowable. No progress can be made with offsets without getting the information from Archives, and if the section has not secured that information the proceedings will have to be held up until the information is supplied.

Now, it has a big job-I realize that. It was of course almost impossible to predict when the work started just when the cases would come to trial or which ones would be first. Someone had to be more or less in charge of the order in which investigations would be made. The Justice Department has fixed the order in which the claims would be audited.

Mr. Campbell, who was the General Accounting Office Comptroller at the time, stated he had between 60 and 80 people working in the Indian Claims Section and figuring salaries and general overhead the cost of the Section ran about a million dollars a year. That is something most people have never heard about the immense task they had to perform.

When it comes to these accountings for funds appropriated by Congress, to see whether or not the Indians had a fair deal in land

cession claims, whether somewhere along the line the Government employees failed to get the money to them that is a big job, and absolutely necessary to the progress of adjudication.

There are also a considerable number of general accounting claims filed by Indians with the Commission. The only evidence available for these cases is in the National Archives.

For many years prior to the creation of the Indian Claims Commission the Indian Claims Section of the GAO had been working on this material for use in the Court of Claims in Indian claims determined by the court under the various jurisdictional acts. This activity has now been transferred to the General Services Administration.

I think their representative will be here to testify today.

THE CONGRESS

Since the Commission is a legislative judicial arm of the Congress, organized to process these Indian claims, the relationship between the Commission and the Congress is a very close one. The Commission finds as a matter of practice that it is required to report frequently to the Congress through the Subcommittees on Indian Affairs of the Senate and House. We must also go before the Appropriation Committees of both Houses to get approval of our request for funds to carry out the work of the Commission.

When a final judgment has been entered in favor of any Indian claimant the Commission is required to report to the Congress the entry of the final judgment. This means not only the judgments in which an award is made to the Indian claimants, but also we must report all of the cases which are adverse to the Indians. These reports of awards are authority for the Congress to appropriate money under sections 21 and 22 of the Claims Act.

We have found as a matter of fact that a practice has grown up with attorneys representing Indians who are receiving an award, to come and get a certified copy of the judgment and then take it to the Treasury where it would probably be included in an estimate of appropriations to be sent to the Bureau of the Budget and by the Bureau to Congress.

We are convinced that this last method is not the proper one under the law. We found, as a matter of fact, that a large number of final judgments made by the Commission had not been reported to the Congress as the law requires; but gradually we are taking care of this situation and we will soon have all of these reported. So the law will finally be complied with.

As more and more awards are made to Indian claimants more and more interest is generated among other Indian groups not receiving awards but who have claims before the Commission. They want to know why their cases have not been adjudicated as early as these others. The claims were all filed about the same time, and they cannot understand one tribe getting a large award, and why theirs has not been taken care of also.

This situation has brought numerous requests from members of Congress to the Commission for reports on various Indian claims. For instance, not long ago we received a request for a report on the status of some 90 dockets. Naturally this required considerable research and effort on the part of the Commission to furnish such a report. However, we promptly try to answer all congressional requests.

BUREAU OF THE BUDGET

It is necessary for the Commission to present its budget needs to the Bureau to secure its approval. In the event of legislation with respect to the activities of the Commission, the Commission is also required to answer inquiries from the Bureau of the Budget.

COURT OF CLAIMS (AND POSSIBLY THE SUPREME COURT)

All final judgments and interlocutory orders with respect to liability are appealable to the Court of Claims. Appeals are comparatively easy to take, so many cases are appealed. Appeal procedure from the time one is begun in the Commission to the time the court hands down its opinion is very complicated and has many built-in delays which are time consuming.

Even after the court hears the appeal and issues its opinion there are many moves a party can make in order to get a review by the Supreme Court. This means more delay, so that from the time moves are made in the Commission in preparation for an appeal, until all moves following the issuances of the court's decision to try and get the case reviewed by the Supreme Court are made, nearly 2 years, on an average, have expired. And if the Commission is reversed, then, of course, more proceedings are necessary to carry out the court's orders.

I had an expert lawyer trying to simplify these procedures so a layman could understand them. He started out by reading all of the rules on appeals of the Court of Claims and the Supreme Court and the Commission. He thought he would write it up in that fashion. I said, "I am having a rough time understanding the appellate procedure, and I have had to live with it a long time."

Incidentally, we gave up, and hence this statement is a very general summary. If anybody wants to go into the rules, they can do so. Probably altogether it would take about 2 years on the average to get a claim through all appellate procedure and back in the hands of the Commission for further action.

For the most part we have been able to work in harmony with the various departments, the court, and with Congress over the past 6 years and we have taken some definite steps forward to expedite the adjudication of these claims. One of our most significant accomplishments was in the field of compromise settlements.

COMPROMISE SETTLEMENTS

Prior to 1960 the matter of compromise settlements hadn't developed to the point where a definite program had been outlined, except to follow the practice in the Court of Claims in the matter of Indian claims settlements.

I came on the Commission in August 1959. Shortly thereafter, the attorneys in dockets Nos. 225-A, 225-B, 225-C, and 225-D came to the Commission with a stipulation and final judgment for the Commissioners to sign. I was confronted with the request to sign the judgment immediately. I raised the question of procedure with re

spect to compromises and suggested to my colleagues that a definite procedure should be set up whereby the Indians would have an opportunity to know about the proposed settlement and also have their wishes known with respect to whether or not the settlement should be approved. After some discussion I was assigned to the case and prepared a suggested compromise procedure. The attorneys were advised that they should follow the procedure suggested. Some of the leading Indian attorneys were somewhat indignant that this procedure had been adopted. They said they thought we were penalizing the lawyers.

It was claimed that even in the big Ute case, which was settled by compromise in the Court of Claims, that the signatures of the contract attorney and the Assistant Attorney General were all that were required on the compromise stipulation. Nevertheless, the Commission insisted that compromise settlements follow the procedure outlined in docket 225-A, B, C, and D, which became known as the "Omaha rule."

In 1941 when the Indian claims legislation was before the Congress there was some fear, because of the long and unfortunate history of Indian claims, that no matter how many times the claims were adjudicated they would never be settled permanently. This fear was expressed at that time by President Franklin D. Roosevelt in a letter to Secretary of the Interior, Harold Ickes.

Said President Roosevelt:

If Indian claims could be disposed of with finality through the establishment of an Indian Claims Commission, my attitude might be somewhat different. The past history, however, of these claims demonstrates the futility of any hope that this purpose would be thus accomplished. Final action by the Claims Commission would be no bar to the representation of the claim to the Congress by the dissatisfied Indians or their attorneys.

Senator BURDICK. Would you elaborate on that? If it is an adjudication and it is accepted, is that not a bar to future litigation? Mr. WATKINS. I don't get just what you mean.

Senator BURDICK. You read from the statement apparently made by President Roosevelt, and then you commented that after the claim has been adjudicated by the Claims Commission and the consideration paid, it isn't a settlement.

Mr. WATKINS. That is supposed to be a settlement; yes.
Senator BURDICK. Isn't it in law?

Mr. WATKINS. No, I don't think it does not prevent them from coming back again if the Indians did not succeed.

Senator BURDICK. I understand that. But do you know anybody who has come back successfully?

Mr. WATKINS. They haven't had time yet.

Yes; I do know some. A lot of these claims once upon a time had been before the Congress. Some of the claims we now have are back again. And some claims in the Court of Claims that were turned down for various reasons, have, of course, come before us again. None of these claims had been approved.

But I think President Roosevelt had a point.

Senator BURDICK. I mean if our machinery does not bring a complete adjudication to a client, what good is the machinery?

Mr. WATKINS. I want to point out that we tried to make it that way, in the matter of compromise settlements. I think you will get

the point and see why we laid down a special rule for compromise settlements.

Senator McGOVERN. On that point-as long as that has been opened up-is there any case or any considerable number of cases where the Commission has made a ruling, where it has been appealed to the Court of Claims, where the Court of Claims has reached a different decision on it?

Mr. WATKINS. You mean between us and them? That happens frequently. Of course, they may have different views. They are supposed to review matters of law. We sometimes think they try the cases de novo on facts as well as law.

Senator McGOVERN. They have overruled you in numerous cases? Mr. WATKINS. Yes; and they send the case back and tell us to start over again in some respect. A lot of cases I could go into that would be very interesting. I am going to mention one. It's the Sioux case. An old lawyer by the name of Case, up in one of the Dakotas, who had been attorney for the Sioux Indians for many years, prosecuted it to a conclusion before the Commission. The Commission denied the claim. He appealed to the Court of Claims. The Court of Claims affirmed the decision of the Commission. Mr. Case sought certiorari to the Supreme Court. But certiorari was denied. Shortly thereafter Mr. Case died.

Well, some other attorney was employed by the Indians who went to the Court of Claims and convinced it the case ought to be reopened, so the court sent it back to the Indian Claims Commission for further action. It got there before I came on the Commission. And that case is before the Commission again for trial on its merits.

Now, if it had been white people's litigation, they would have been through, absolutely through.

In the Omaha Tribe of Nebraska v. United States (8 Ind. Cl. Comm. 392, 416-419, Feb. 11, 1960) the Commission outlined the following steps and requirements which should be followed in the matter of compromise settlements.

May I suggest to you in this particular case, the Omaha case, there was a part of the petition which set forth the U.S. Indian Bureau people-or the Government representatives at the time this took place actually set up a bogus chieftain of their choosing and made a treaty with him, and ignored the real Indian chief. And that was one of the grounds for relief. So you can see why we were alerted by this particular case.

Now, the Commission outlined these steps and requirements which should be followed in the matter of compromise settlements. Ordinarily I would not read all of this. But you gentlemen are men who want to understand exactly what we are doing and why we are doing it. Now, on the part of the petitioners-we said the petitioners had to do this:

The original compromise agreement should be signed by the Tribal Council Chairman or other officials properly designated to do so, by individual petitioners who are acting in a representative capacity, by all attorneys whose contracts of representation with petitioners have been approved by the Secretary of Interior and who have a contingent interest for attorney fees in the compromise settlement. Signed duplicates of the original agreements by individual petitioners and attorneys, and officials of organized tribes may be substituted as evidence of approval.

When the petitioners are all individuals acting in a representative capacity, and one or more of them become unable to act, either by death or for other reasons, then upon proper application the Commission will allow the substitution