If we say, "No; you cannot have it," and if we decide the case without their briefs and they should be defeated-if they set that up before the Court of Claims on appeal, I am just as certain as I can be the Court of Claims will send the case back for further hearing by the Commission.

Senator BURDICK. Have they done so?

Mr. WATKINS. They haven't done so. It hasn't got to that point. Senator BURDICK. Let's find out.

Mr. WATKINS. It takes 2 years to get one up there and back and get the appeal settled.

Senator BURDICK. I cannot speak for the court, but I think they are going to treat this with reason, too. They don't want to continue it unreasonably.

Mr. WATKINS. What would you say about the Tlingit case up there that I mentioned earlier in his statement. The jurisdictional act was enacted in 1935.

Senator BURDICK. I know nothing about the case.

Mr. WATKINS. Well, I am calling it to your attention. There are a lot of cases that have lasted a long time in the Court of Claims. Going back to my statement: In connection with this fact it should be kept in mind by the committee that the Indians wanted their day in court. That was the reason for the enactment of the Indian Claims Commission Act. The burden is on the Indians, through their lawyers, to take the initiative in preparing these cases and getting them tried by the Commission. The Justice Department represents the United States in its defense against these claims. Ordinarily a defendant who has no possibility of recovering on a counterclaim might hope that the claims would never be tried, and possibly would be justified in using any legitimate means in seeing that they did not come to trial. But it must be said to the credit of the Justice Department that it has taken the position that it will cooperate and has, at least since I have been connected with the Commission, been willing and prepared to proceed with many more cases than have the Indians' attorneys.

What I am saying about Indians' attorneys does not apply to the major portion of Indian attorneys, because they have been proceeding in advancing their claims to final judgment; and the progress that has been made has been made mostly in those cases where they have counsel who have had some Indian claims experience. They have organized to handle these cases, and they have the financial resources to go through a long period of time without a payday.

The Commission did increase its housing facilities in November of 1960. Individual rooms for attorneys, two hearing rooms and other needed space was acquired and furnished largely from existing surplus used furniture and carpets from GSA. Our legal staff was increased from six to nine and also there were some changes in legal personnel. We have planned for a heavy increase in hearings. The Bureau of the Budget has approved our request for additional lawyers to assist the Commission in reviewing the voluminous evidence presented and in writing reports which can be used as the basis for the decisions which will be entered by the Commission.

In conclusion, let me point out that every one of the programs we undertook which I have mentioned have made a substantial contribution to a healthy increase in claims finally disposed of in the little over 6 years I have been Chief Commissioner.

The things we have done have made progress. We have not succeeded 100 percent, but I think we have made important progress. But we can and should make greater progress.

Let me again emphasize that we are only one small group which cannot succeed at all unless there is the fullest cooperation with all the Federal agencies which I have named earlier in this statement. And again let me repeat that the initiative lies with the Indian claimants and their lawyers. We cannot make much progress without their cooperation.

I want to say, gentlemen, I have not mentioned S. 307, except in the very beginning. I am not commenting on S. 307 and its amendments. It is exactly the same as S. 3068, except that one date has been changed from 1969 to 1970.

The Commission made voluminous comments on S. 3068 in the 89th Congress. We believe it would be useless repetition to restate our views on the same subject.

But we do have a suggestion for an amendment to the Claims Act we think will help accelerate our work. We hope you will give it serious and sympathetic consideration.

Our suggestion is that clause 3 of section 2 of the Claims Act be amended by striking out the word "unconscionable" as it appears before the word "consideration" in the fourth line of said clause 3, and substituting in lieu thereof the word "inadequate". We made the same suggestion 6 months ago. I ask permission at this point to insert in the record a statement of our reasons for this suggested amendment.

Senator McGOVERN. Without objection. (The statement referred to follows:)

AMENDMENT PROPOSED BY THE INDIAN CLAIMS COMMISSION TO THE INDIAN CLAIMS COMMISSION ACT OF 1946

In conjunction with this Commission's efforts to seek further means and methods of speeding up the adjudication process relative to those tribal claims still pending before the Commission, we believe the Subcommittee should give serious consideration to the following suggestion:

Without a doubt a great many of the tribes who have filed claims before the Commission seek to recover a judgment against the United States under the following provision of Section 2 of the Indian Claims Commission Act.

"SEC. 2. The Commission shall hear and determine the following claims against the United States * * * (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; * * *" (emphasis supplied).

The question that has been confounding the Commission as a result of recent decisions of the Court of Claims is where in simple justice to a particular claimant do you draw the line between unconscionable consideration and a mere inadequacy of consideration. In the case of Sioux Tribe of Indians, et al v. United States, Appeal No. 4-55, C. Cls. decided November 7, 1956, the Court of Claims stated that unconscionable consideration "is that consideration which is so much less than the actual value of the property sold that the disparity shocks the conscience."

The Court has also acknowledged the fact that there is no exact formula upon which to measure this "disparity" between price and value. The Court has indicated, however, that this "disparity" must be "very gross." The Commission has had no difficulty in those cases where the disparity is indeed "very gross." For example: If the tribal land is valued by the Commission at $1.00 per acre

at the time it was taken by the United States from the Indians by purchase, and the total consideration flowing to the tribe amounts to 20 cents per acre, the Indians are recovering only 4th the true value of the land. Such disparity between price and actual value indicates an unconscionable consideration was paid to the Indians for the release of their lands.

The real problem, however, arises when the consideration approaches the area of fifty percent of the fair market value of the tribal lands as found by the Commission. In one case the Court of Claims agreed with the Commission "that payment of less than half the true value is unconscionable." (Miami Tribe

of Oklahoma, et al v. United States, 150 C. Cls. 725)

Since

In three cases, this Commission has denied liability on the part of the United States because we found that the consideration flowing to the Indians under the treaty or agreement by which they ceded their tribal lands was not unconscionable when compared with the then fair market value of the said tribal lands. In each instance the tribal claimant successfully appealed to the United States Court of Claims and the Commission was reversed. In the first case, The Miami Tribe of Oklahoma, et al v. United States, supra, the Commission determined that the Miami Tribe ceded tribal lands found by this Commission to have a fair market value of $217,697.93, for which they received $200,000 from the United States. The consideration consisted of a $50,000 cash payment with the $150,000 balance being paid out in 20 year installments at the rate of $7500.00 per annum. the Indians received consideration in an amount equivalent to about 60 percent of the then fair market value, the Commission concluded that the disparity between the price paid and the then fair market value was not so shocking as to entitle the claimants to recover on the grounds that they had been paid an unconscionable consideration. The Court of Claims sustained the Commission's ultimate finding relative to the fair market value of the Miami land but reversed the Commission's finding that the Miami Indians had in fact received $200,000 for the cession of their lands. The Court reasoned that, since part of the consideration, namely the $150,000, was to be paid out over a twenty year period ($7500×20=$150,000), it had an actual capitalized value at the time of the cession considerably less than as stated. The Court explained its action as follows:

"* * * The payment of $50,000 to be held at interest had a treaty-date cash value of $50,000. But $150,000 payable in twenty yearly installments of $7,500 commencing six years after the treaty date had a treaty-date value of only $71,974.23, which was the then present value of the right to receive such payments, on standard annuity tables, computed at a 5% interest rate. The treaty-date value of the consideration which the Miami Tribe received was therefore $50,000 plus $71,974.23, or $121,974.23." (150 C. Cls. 725, 735)

Having done this, the Court went on to say:

"The Miami received $121,974.23 for land which the Commission found to be worth $317,697.93. This is unconscionable consideration. It is only 38% of the value of the land. It is true that there is no exact dividing line between what is unconscionable and what is not. The disparity between the price paid and the fair market value of the land must be very great. We think that the Commission was correct when it said in this case that payment of less than half the true value is unconscionable." (Supra, p. 736)

Two years later in the case of the Pawnee Indian Tribe of Oklahoma, et al v. United States, 157 C. Cls. 134, the Court reversed itself with respect to the capitalization of the twenty year annuity in the Miami case, on the grounds that such action,

*** is tantamount to charging the United States with interest-in face of the well established rule that the United States is not liable for interest, in the absence of a contractual or statutory requirement to pay interest. (P. 138)

However, by this time the Miami tribe had secured its judgment which was satisfied by the defendant, so the court's ruling in the Pawnee case was of no consequence to these Indians, nor did it benefit the defendant.

In the case of the Sac and Fox Indians of Oklahoma, et al v. United States, Docket No. 220, 11 Ind. Cl. Comm. 5, 78 (reversed 167 C. Cls. 710 (1964)), the Commission denied recovery to the Sac and Fox petitioners on their claim for additional compensation for their reservation lands in Oklahoma ceded to the United States under the 1890 Jerome agreement (agreement of June 12, 1890, ratified Feb. 13, 1891, 26 Stat. 749), wherein the United States purchased said lands for roughly $1.23 per acre. The Commission valued these as of the effective date of the Jerome agreement at $1.75 per acre, and denied recovery on the grounds that the consideration paid for said lands was not unconscionable under our Act. On appeal to the Court of Claims the Commission's finding on value was reversed, the Court concluding that the Sac and Fox lands in Oklahoma were worth at least $3.00 per acre; hence the payment of $1.23 per acre for these lands was unconscionable.

The most recent decision from the Court of Claims and the most far reaching as far as practically rendering nugatory any basis for denying a tribal claim founded on unconscionable consideration, is the decision in the case of the Nez Perce Tribe of Indians v. United States, appeal No. 5-64, decided July 15, 1966 (Docket No. 175-B, 13 Ind. Cl. Comm. 184).

In the Nez Perce case, this Commission found that under the agreement of May 1, 1893, ratified April 15, 1895, 28 Stat. 286, the Nez Perce tribe ceded its surplus reservation lands to the United States for $2.97 per acre. The Commission fixed the fair market value of these lands as of the effective date of the above agreement at $4.00 per acre, and denied recovery to the Nez Perce on the grounds that the disparity between price paid and the then fair market value of the Nez Perce lands did not make out a case of unconscionable consideration. On appeal the Court of Claims found that the Commission's finding that the land was worth $4.00 per acre was supported by substantial evidence, but injected the observation that this $4.00 value was indeed a minimum value and that the evidence in fact would support a higher value. The Court stated that the Commission might look to some higher unstated value in resolving the "unconscionable consideration" issue. The Court further observed that the total difference involved ($566,045.77) was a substantial sum of 1894 and further that if such an amount had been able to draw interest the percentage discrepancy would have been even larger.

While the court's reasoning obviously avoids any strict adherence to a simple mathematical determination of the disparity needed to resolve the unconscionable consideration question, it seemingly could penalize those tribal claimants who possessed relatively small areas of land upon which they claim payment of an unconscionable consideration.

In any event, based upon the court's past performances, the Commission sees little prospect in the future of being sustained on appeal in the event it should rule in similar fashion on any of the now pending claims. Be that as it may, the Commission cannot in good conscience take umbrage with the court in reversing the Commission, except for the fact that Congress took the position it did, and the Commission has sought faithfully to follow the legislative will. The Court of Claims has made it abundantly clear that it apparently favors, as a matter of simple justice, payment to the Indian tribes in all cases where the consideration paid to said tribes for their land does not measure up to the then fair market value. As a strict matter of equity and not taking into consideration the strict terms of the Act with respect to "unconscionable" consideration, the Commission cannot find fault with that position. With this in mind, and the practical situation facing us, we recommend that Congress consider taking a position that hereafter those tribal claimants now before the Commission seeking additional compensation for the loss of their tribal lands be allowed recovery against the United States when there is any disparity between the consideration paid to the tribe for said tribal lands and the then actual fair market value. If the Congress believes that a change in the present policy is warranted, then the Commission specifically recommends that Section 2(b) of the Indian Claims Commission Act be amended by striking out the phrase "unconscionable consideration" and inserting in lieu thereof "inadequate consideration." An inadequate consideration would be simply any valuable consideration paid by the Ünited States for tribal lands that is less than the fair market value of said lands as of the effective date of acquisition.

If this proposal is adopted the Commission envisions a more compelling reason and willingness on the part of some reluctant claimants to go forward more rapidly with their "unconscionable consideration" claims that they now consider borderline and of doubtful recovery. The Commission believes that while this proposition may promote more recoveries it should lessen time-consuming appeals to the Court of Claims with respect to this particular cause of action. This amendment should also promote a more favorable attitude toward compromise settlement of these claims. We believe also that there could be a shorter period of time needed to prepare a case founded on mere inadequacy of consideration, while at the same time we find that more realistic land appraisals would be forthcoming from both sides, with expert opinions being buttressed more on facts and less upon advocacy. At present any wide disparity in expert opinion renders highly

a

suspect the validity of the expert witness' entire work in a particular case. Frequently the Commission in such situations is forced to give little or no weight to such expert opinion in resolving the fair market value question in these cases.

Mr. WATKINS. Now, that, gentlemen, is a statement of the overall picture, and I hope it will be of some help in understanding the peculiar type of work the Commission has performed, and what it is trying to do, and what it wants to do.

Frankly, I am not satisfied with the progress we are making, and I think maybe my colleagues feel I am unfair in that, because they think we are making good progress. But considering all of the factors, and the fact that you have to have all of these other departments of Government work with you, or you don't get anywhere, any one of them can block you. That all has to be taken into consideration, but even so we should make greater progress.

Senator McGOVERN. Thank you very much, Mr. Watkins, for your statement, and your efforts to be helpful to the committee.

You state in the opening page of your statement that very few Members of the Congress, even those of many years' standing, have a working knowledge of the Commission and its operations. Of course, I have been hopeful that one of the things that can come out of these hearings is a better understanding on the part of the Congress of some of the problems you have, and also a better insight into the procedures that are being used.

I have been impressed with the way our committee and other committees of the Congress keep their legislative calendars, so that busy Members of the Congress can see with comparative ease just what the status is of every bill and every action of the committee. I know as a former Member of the Senate you are familiar with that procedure.

This is our calendar, dated December 1, 1966. It contains almost as many bills and maybe more than you have dockets and pending claims before the Commission. Every one of those bills has a progress report that brings it up to date. It is prepared by our staff.

Here, for example, is the bill that Congressman Haley introduced, to which a companion bill was introduced in the Senate by Senator Jackson last year, legislation that we are now considering. It gives the date when the bill was introduced, and then a series of dates describing exactly what happened to that bill at each stage of the way: when it was reported from the House, when it was passed, when it was placed on the Senate calendar, what action the Senate took, and so on down through the legislative session.

Now, why wouldn't it be possible for the Commission staff, working in cooperation with the staff of our committee, and the appropriate House staff, to prepare a calendar like that on all these pending cases before the Commission, so that the answers to questions like Senator Burdick's could be readily available to any Member of the Congress or anyone that is interested in these procedures?

It would seem to me that this could be done without excessive effort on the part of the Commission's staff. I am sure the committee staffs here would be more than happy to work closely with you. Without too much effort, I would think that the numbers could be logged as to specific stages in the procedure so that we would know how many of these cases are tied up in the Court of Claims, how many are tied up in the Justice Department, how many are stalled by GSA, or some other agency. We would know how many were in the Offices