of new petitioners who have been properly nominated by the Indian tribe involved. In the event one individual is the petitioner in a representative capacity, these procedures may be modified to meet that situation. Deceased attorneys of record should be represented by their duly appointed legal representatives. Surviving attorneys of record should anticipate the necessity of meeting this requirement either before negotiations for settlement are begun or soon thereafter. This requirement should not work a hardship because distributions of the attorney fees and allowable expenses in any event are ordinarily paid only to the estate of the deceased attorney through the legal repre sentative. Now, what is to be done on the part of the defendant, the United States? Compromise agreement should be signed by the Attorney General or someone acting in his behalf. Other requirements were as follows: Filing with the Commission a joint motion of the parties together with the original compromise settlement, praying for the approval of the compromise and for the setting of a date for hearing the motion. On the date set an open hearing will be held by the Commission. At the hearing both oral and documentary evidence will be received by the Commission. The petitioners should present as witnesses: If an organized tribe is appearing as petitioner, the Tribal Chairman, the Secretary of the Tribe or Tribal Council, and in addition, any other Tribal members the petitioners desire to have testify. If petitioners are individual Tribal members who appear in behalf of the tribe, at least two should attend as witnesses. The Commission will require evidence from these witnesses of what has been done by them or the attorneys for petitioners to acquaint tribal members with the provisions of the compromise agreement. Other appropriate information may be required. The attorneys for petitioners and the defendant will be required to make appropriate statements with respect to the settlement. Documentary evidence required will consist of resolutions from both the Tribe and Tribal Council approving the proposed comprimse settlement; and authorizing their Chairman or other officials to sign and execute the compromise in their behalf. All proceedings connected with the calling and holding of the meetings of the Tribe and the Tribal Council shall be fully authenticated, as shall be the signatures of the necessary officials signing the resolutions and the compromise agreement. A letter of approval of the Compromise Agreement signed by the Secretary of the Interior or by someone duly authorized to act for him is required. The same procedures should be followed with respect to compromise of offsets when sums involved are substantial. The foregoing outlined steps and requirements seem to be basic and necessary to carry out fully the purpose of the Act, but unusual and unexpected circumstances may exist, not anticipated at this time, which conceivably could cause undue hardships to the parties to a compromise agreement, if these procedures were rigidly enforced. If any such situations should occur, the Commission will hear counsel for the parties with respect to any modifications that may properly be allowed. There was some opposition to the compromise settlement procedure in the beginning. I think it will be conceded now that the big consolidated California case could never have been settled by compromise without using the procedures adopted in the Omaha case. Even with that procedure which was followed carefully, a small minority of Indians tried to upset the settlement both in the courts and in Congress. Melvin Belli, a well known California lawyer, tried to avoid the settlement in the Federal district courts in San Francisco, in the Court of Claims, and applied to the Supreme Court for a writ of mandamus to compel the Claims Commission to allow him to perfect an appeal to the Court of Claims. He met defeat in all the Federal courts. The settlement withstood all attacks. Experts testified before the Commission that except for the compromise settlement that case would have taken another 15 years to have fought it through to conclusion. I insist, and I think I can maintain it successfully, that the procedure with respect to these Indian claims that are settled by compromise, giving the Indians a final chance to say whether they disapprove or approve and see that it is done properly, is one step that will contribute to the finality of these cases, and they will not be back again. Otherwise I think President Roosevelt could be absolutely right. Senator BURDICK. Let's pursue that. Mr. Watkins, are you telling the committee that after a claim has been adjudicated by the Claims Commission, it then goes through all the appellate courts that are available to it, the Court of Claims, the circuit court, the Supreme Court, and in the end, when they have exhausted the legal remedies on appeal, the award is confirmed. You mean that does not bring a final adjudication? Mr. WATKINS. Yes. But we are talking about compromise, that means by the agreement of the parties, not by the judgment of the Commission in its ordinary meaning. Senator BURDICK. The legal machinery does permit you to settle a case? Mr. WATKINS. Yes, indeed. Senator BURDICK. Now, if you go to a compromise, is that based upon rules the Commission has set up? Mr. WATKINS. The Commission has set up, yes. We had the power under the act. Senator BURDICK. In the same case there, where you have reached a compromise with the party-assume the parties are properly represented by lawyers, and there has been acceptance by a majority of the tribe or whatever it states in your rules-has that determination ever been upset after the appellate procedure has been exhausted? Mr. WATKINS. You mean where we entered a final order approving the compromise? Senator BURDICK. Yes. Mr. WATKINS. No. I believe when the Indians take part in approving the settlement that these compromises will never be upset. Senator BURDICK. At least there is some finality. Mr. WATKINS. Yes. But this is a matter of compromise. We think the greatest hope in getting this work done more rapidly is in the field of compromise. There is no reason, after we have made decisions on a number of cases in an area and after the matter of title has been decided, why they cannot settle other cases in the same area by compromise. And we have urged that. Senator BURDICK. Either by adjudication that is made by you in your judicial capacity, or by compromise, we can get finality. Mr. WATKINS. That is right. This is the only loophole left. Under our procedure on compromise we won't have these cases back again. I do not like to prove President Roosevelt wrong. I did not always agree with him when he was President. But at the same time I think he made a point. And when I read that, it rang a bell with me-because I was raised in Indian country, and I know something about how they feel that they have been misrepresented at times by their lawyers. We had one case before us in which they-the Indians-admitted that they had asked the United States to sell certain property belonging to these same Indians. The United States, through the Indian Bureau, sold the land. They found out afterward it was not a very good deal. So now they sue, because the United States should not have listened to them, shouldn't have done as they wanted. And so we have to determine that case. I do not know just what the decision will be. But here they are. The United States did what they wanted it to do. But I think the courts will hold, because of their special background, lack of experience and so on, as a primitive people, that you have to use every precaution in dealing with them. Senator BURDICK. I understand that. Isn't there some way that you can use notice by publication, or give adequate notice to all parties that would buttress this Mr. WATKINS. That is exactly what we require them to do-put a notice of a meeting-they hold a tribal meeting under their rules and bylaws, they advertise over the radio, over television, run it in the papers, send out personal notices to every member of the tribe that they know anything about. We want to show that these Indians really have had their day in court. And finally-when they get down to having the court make the decision-if their attorneys were going to make the decision on compromise alone, we say to it that the client had a right to say something about it. As I say, in this California case I am sure Congress would have upset that settlement if their attorneys had just attached their names to the compromise stipulation and the Department of Justice had attached theirs, and let the settlement go through on that basis. That is what would have happened ordinarily. That is what some of the attorneys were kicking about, that we would not permit them to settle a case on a mere attorney's stipulation. But I think we all realize now it was necessary to be sure we had Indian approval. We want this job finished. It is one thing to do a job, and it is another thing to get it done finally. And if you don't get it done finally, you have not made any progress. I became a member of the Commission in August of 1959. The following July 1 was appointed Chief Commissioner to fill the vacancy created by the resignation of Chief Commissioner Witt. Soon after I became a member I had a conversation with Commissioner Witt about the policy of the Commission. He inquired as to what the feeling was in Congress with respect to the work of the Commission. I told him that Members of the Congress who had large groups of Indians in their States and districts were very much concerned about the slow rate with which the Commission was disposing of these cases. They felt it was proceeding entirely too slow. He said in the beginning he had felt the same way about it and had talked to his sponsor, the late Senator Tom Connally of Texas, about the matter. He said the Senator told him not to worry about it, that if the judgments were speeded up it would mean the United States would have to borrow money to pay them and then pay interest on the borrowed money, so that it would be better to let nature take its course. The hearing calendar showed a number of cases set for September and October of 1959, and I looked forward to an interesting experience in these hearings, but I soon learned that in most of the cases the hearings had been taken off the calendar. I said, "Who takes them off?" Well, they just called up and said they could not be there. And they all disappeared. Upon checking the matter I found that cases were not set according to any program, but were set only when the Indian lawyers and the lawyers for the Justice Department could agree on a date. They would then notify the Commission they wanted a hearing set. When I became Chief Commissioner and the Chief Commissioner is responsible for many of these things, has almost the sole responsibility of initiating actions, except that on most of them he has to get the approval of his co-Commissioners-when I became Chief Commissioner, I immediately began planning a regular calendar which would be controlled by the Commission. Commissioner Holt, who was the holdover Commissioner, and Commissioner Scott, who was newly appointed, joined with me in planning a calendar conference in which all of the attorneys of record for the Indians and the attorneys for the United States would be invited to meet with the Commission and help set the calendar for a 3-year period. I had only been Chief Commissioner 3 months but at this conference I stated: This conference is the first step in a program adopted by the Commission to accelerate the adjudication of claims now pending. It involves the setting of cases for trial over a period of three years, spaced, we hope, at intervals which will permit sufficient time to properly present the claims to the Commission and allow time for the Commission to prepare and enter Findings, Opinions, and Final Judgments. Because of these and other time-consuming matters encountered in carrying out the unprecedented program of providing a day in court for the consideration of the long-standing claims of Indians for grievances against the United States, it becomes imperative that every effort should be made to expedite, within reason, the judicial process provided for the determination of these claims and grievances. If this is not done, the well intentioned purposes of the Indian Claims Commissioner Act will be seriously weakened if not entirely thwarted. Our experience demonstrates that the long delay in the adoption of the act authorizing adjudication of Indian claims has made it extremely costly and difficult to carry out the program. More delay will add to the burden to be carried and will give new life to the oft quoted legal maxim, 'that justice delayed is often justice denied.' As I read the committee's invitation, especially the letter sent by Senator Jackson to me, it looked like the Indian Commission was on trial. So I am just trying to point out some of the things we tried to do away ahead of what Congress is now suggesting. To continue with quotes from my statement to the conference: Our proposal for a program to try to meet and solve this situation within a reasonable period of time embraces the following: 1. A continuous three year schedule of hearings on the merits of the claims at the average rate of 30 per year; this means at the end of the first year period, another year's hearings will be scheduled and this will be followed until all cases have been disposed of. 2. No continuances will be granted except for extreme emergencies. To carry out this program a practice of having cases postponed for the convenience of witnesses, counsel or the parties, must necessarily be abandoned. In one case I counted some 33 continuances or extensions of time. Senator BURDICK. When the time for filing a claim expired-what year was that? Mr. WATKINS. 1951. They had 5 years after the enactment of the act. Senator BURDICK. How many claims were filed by the expiration date, in number? Mr. WATKINS. I think it was 370 docket numbers. I mean overall claims. And then they were broken down later into additional docket numbers. Senator BURDICK. How many docket numbers does 370 make? Senator BURDICK. 590? Mr. WATKINS. Don't hold me too closely to this. (Following the hearing, Commissioner Watkins sent the following clarifying information:) Hon. HENRY M. JACKSON, INDIAN CLAIMS COMMISSION, Washington, D.C., February 27, 1967. Chairman, Interior and Insular Affairs Committee, DEAR MR. CHAIRMAN: At the Senate Hearing on S. 307 held on February 15, I was asked the question with respect to the total number of Dockets filed with the Commission. I hesitated in answering because I couldn't remember the number which was arrived at by Commissioner Holt and the staff members who had been checking this item. Just before I left for the hearing our files were being checked with those of the Indian Bureau. The Bureau is required to keep records of the Indian attorneys and the docket numbers they are prosecuting. After a thorough check into this matter I report that the total number of dockets filed is 583, subject to the followind condition: In Docket 326 it was ordered that the five claims alleged in that docket number be separately stated in 5 sub-dockets and sub-dockets were set up for this purpose. There was no date set when this should be done and the order has not been carried out by petitioners. However they claim they will eventually file these entual separate dockets when the GSA accountants finish their job on these claims. Sub-dockets A, B, C, D, and G, were counted in the total of 583, but if it should be ruled that they should not be counted, then the total number of dockets filed would be 578. Respectfully submitted. ARTHUR V. WATKINS, Chief Commissioner. Senator BURDICK. How many of those 590 have been acted upon in some manner by the Commission? Mr. WATKINS. We have answered a letter, Senator Senator BURDICK. I don't consider that acting upon it-letters. Mr. WATKINS (continuing). Written by this committee. Senator BURDICK. I mean parties that got in before the Commission, as we do in a lawsuit. How many of the 590 that came that way have been acted upon? Mr. WATKINS. Well, I would have to take the schedules of the filings and the whole history of it. Senator BURDICK. I know. Mr. WATKINS. If you will let me go ahead just a moment, I will say that Senator Jackson asked five specific questions about our activities about numbers and all that sort of thing. It is all set forth in my answer. And I don't pretend to remember all of it. Senator BURDICK. All I am asking is how many of these cases have been acted upon judicially at some stage. Mr. WATKINS. It will all be shown there. Senator BURDICK. Would it be half of them? Mr. WATKINS. Yes, more than half of them at some stage. Mr. WATKINS. Three-fourths. Senator BURDICK. That would leave 150 with no action at all. Would that be a fair statement? |