Senator BURDICK. What is your comment about letting the Commission die? Should we?

Mr. WATKINS. No, I don't think you should. I think you are under an obligation now to all these people who have spent hundreds of thousands if not millions of dollars of effort in getting their cases prepared. I think it would be one of the worst cases I know of breach of good faith.

Senator BURDICK. I just wanted your answer for the record.
Senator HATFIELD. I have no questions.

Senator McGOVERN. Well, thank you very much, Mr. Watkins.
Mr. WATKINS. Well, thank you.

I don't know whether the reporter has everything I have said. I speak rather rapidly. And sometime the record looks like there was an explosion.

Senator McGOVERN. At this point in the record we will print Senator Jackson's letter to you and the reply to the questions he asks. (The data referred to follows:)

U.S. SENATE,

COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Hon. ARTHUR V. WATKINS,

Chief Commissioner, Indian Claims Commission,

Washington, D.C.

January 25, 1967.

MY DEAR MR. COMMISSIONER: Under date of January 19, I advised you that the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs has scheduled a hearing for Monday, February 6, 1967, on S.307, a bill that would extend the life of the Indian Claims Commission.

We are attempting to elicit as much information as possible concerning the causes for delay in the final disposition of cases pending before the Commission. Set forth below are several questions, or requests for material, which we would appreciate having answered:

1. Furnish a complete list of all cases (whether or not potential overlapping with another claim is involved) where final briefs have been filed by the parties on an issue of liability, evaluation, or offsets, and the Commission has not rendered a decision as of January 1, 1967, giving as to each case the name, docket number, and date when the last brief was filed.

2. Furnish a complete list of all cases where the petitioner is represented by counsel having an approved attorney contract which is presently in effect and where (a) no action has been taken to move the case forward to judgment or (b) some preliminary action has been taken but the case has not yet been scheduled for trial. With respect to each case, describe its current status and then state whether the petitioner's attorney has been unready for trial, or defendant's attorney, or both, and the reasons given by the parties for not advancing to trial. Also describe what measures, if any, the Commission takes to prompt counsel to bring claims to trial.

3. Describe (a) the procedure the Commission follows in considering and approving settlements, and whether any proposed settlement has been rejected; and (b) Whether the Commission follows the same settlement procedure where a compromise of offsets is involved, regardless of the amount, as it does where the settlement covers the more significant issues of basic liability and valuation; (c) In each case where a settlement was approved, how long a time passed between the date of final acceptance of petitioner's settlement offer by the Government and the date of final judgment;

(d) What has the Commission done to encourage settlements and include a list of cases in which the Commission has held a settlement conference, together with the results thereof.

4. Does the Commission use pre-trial procedures to eliminate issues from the cases, as contrasted with the clarification of issues, and if so, submit representative samples of pre-trial orders to such effect. Indicate whether the Commission has established an investigation division as provided in Section 13(b) of the 1946 Claims Commission Act and if so, what function this division performs.

5. Furnish a schedule showing with respect to each case in which a decision of the Commission was reversed by the Court of Claims, the date when the Court's order on remand was received, the date when the Commission acted in accordance therewith, and the action taken.

In order that the information you have been asked to provide may be properly analyzed, it would be appreciated if it is submitted as far in advance of the hearing date as possible.

Sincerely yours,

Hon. HENRY M. JACKSON,

INDIAN CLAIMS COMMISSION, Washington, D.C., February 14, 1967.

Chairman, Committee on Interior and Insular Affairs,

U.S. Senate.

DEAR MR. CHAIRMAN: This is in reply to your letter of January 25, 1967, requesting certain information desired by your committee in connection with its consideration of S. 307, a bill that would extend the life of the Indian Claims Commission.

Our responses to the specific requests in your letter are set out below in the same numerical order as the related questions, or requests for material, appear in the numbered paragraphs of your letter. However, because of the amount of material involved in these answers, each question has been set out in a separate section, which we believe will make the report easier to follow.

SECTION I

1. List of cases where final briefs have been filed as of January 1, 1967 on issue of liability, valuation, or offsets, and in which the Commission has not yet rendered a decision.

1 Docket 167-Creek Nation. The case was appealed to the Court of Claims and reversed and remanded on Dec. 11, 1964. The case was retried on Sept. 27, 1965. The final brief was filed on Feb. 1, 1966 and the case argued on Sept. 8, 1966.

Docket 282-I was consolidated with docket 275 in September 1962. Hearings were held Jan. 15, 1964. Commission wrote to petitioners' attorney Oct. 5, 1964, requesting findings and briefs. No reply received to date. Petitioners' attorney contract in docket 282-I expired May 19, 1964.

Each of these 8 cases was involved with the overlapping claim of docket 229, Navajo Tribe; the plaintiff in docket 229 having to file requested findings of fact and brief in each of the 8 cases. All are now under consideration by the Commission except the main case in docket 229 in which plaintiff's findings were filed Feb. 3, 1967.

Dockets 27-A and 241 were tried under a legal theory which has been overruled by this Commission. A companion case tried under the same theory is now awaiting valuation of land in the same area at the same time and will undoubtedly control the valuation phase involved in the offsets now pending in dockets 27-A and 241. This case has been under consideration and is being held in abeyance pending determination of the value as stated above, at which time it can be finally determined and award made.

SECTION II

Question No. 2. Furnish a complete list of all cases where the petitioner is represented by counsel having an approved attorney contract which is presently in effect and where (a) no action has been taken to move the case forward to judgment or (b) some preliminary action has been taken but the case has not yet been scheduled for trial. With respect to each case, describe its current status and then state whether the petitioner's attorney has been unready for trial, or defendant's attorney, or both, and the reasons given by the parties for not advancing to trial. Also describe what measures, if any, the Commission takes to prompt counsel to bring claims to trial.

2. The following is a list of all cases where the petitioner is represented by counsel having an approved attorney contract which is presently in effect and where (a) no action has been taken to move the case forward to judgment or (b) some preliminary action has been taken but the case has not yet been scheduled for trial:

We regret that all of the additional information requested (in paragraph 2 of your letter) on the foregoing cases must be given in general terms. The limited time available for developing this information precludes us from furnishing it on an individual case basis.

It more commonly occurs that the trial of a case is delayed because the petitioner's attorney is unready than because the defendant's attorney is unready. Although the Commission does not know with certainty the reasons of the parties for the nonadvancement of the individual cases to trial, we believe that in nearly all instances such reasons would be among the following:

Lack of funds with which to hire expert witnesses. - As the Committee knows, legislation, which this Commission supported, was enacted in 1963 under which a revolving fund was established from which the Secretary of the Interior may make loans to Indian tribes and bands and to other identifiable groups of American Indians for their use in obtaining expert assistance other than the assistance of counsel, for the preparation and trial of claims pending before the Commission. Although we think the standards that successful loan applicants must meet are reasonable, some of the petitioners involved in the foregoing cases are unable to qualify for loans. Some time, of course, is necessarily required for the processing of each loan that is approved.

Limited availability of expert witnesses. Most of the expert witnesses in these cases, especially in the land title phases thereof, are eminent doctors of history, anthropology, ethnology and similar disciplines. Nearly all of them hold regular professional positions in universities and can only be available to testify during their vacation periods. They are also limited by the pressure of their academic duties as to the amount of time they can devote during any one year in the preparation of a case. Although their time limitations inevitably cause delays, the services of these experts are indispensable to the advancement of the cases and the proper determination of them.

Illness or death of an expert witness or the petitioner's attorney. In a few instances cases may have been delayed because of the serious illness or death of an expert witness or the petitioner's attorney. When such deaths occur, considerable time is usually required for the replacement to become employed on the case and sufficiently familiar with it that it can be carried forward.

Further action dependent upon the outcome of a related case. Some of the cases are in the nature of suits for damages on account of trespasses upon and mismanagement of properties with respect to which the petitioner's title claims are being litigated in another docket. Such cases cannot be advanced until it is determined, in the related title case, that the petitioner has a compensable interest in the properties involved. Such matters as intervening petitions and appeals from rulings of the Commission have delayed the determination of some of the related title cases for extended periods of time.

The attorney's occupation with other cases. In each of the cases the attorney's contract with the petitioner provides that his compensation shall depend upon a recovery for the tribal group. Even though the attorney is successful in obtaining such recovery, there is normally a long wait between the time when his legal services are performed and the date he is paid for them. These circumstances are undoubtedly responsible for a tendency of the attorneys to work intermittently on their Indian cases as permitted by breaks in the demands on their time of other clients.

The Commission has endeavored to prompt counsel to bring claims to trial by limiting the availability of extensions of time and by direct correspondence with petitioners' counsel urging them to file the necessary papers for the carrying on of their cases. Such efforts, however, in the absence of effective legal sanctions are largely futile. The truth of the situation is that under established precedents the Commission is practically without power to require diligence in the prosecution of claims.

SECTION III

Question No. 3. Describe (a) the procedure the Commission follows in considering and approving settlements, and whether any proposed settlement has been rejected; and

(b) Whether the Commission follows the same settlement procedure where a compromise of offsets is involved, regardless of the amount, as it does where the settlement covers the more significant issues of basic liability and valuation; (c) In each case where a settlement was approved, how long a time passed between the date of final acceptance of petitioner's settlement offer bythe Government and the date of final judgment;

(d) What has the Commission done to encourage settlements and include a list of cases in which the Commission has held a settlement conference, together with the results thereof.

3. (a) The Commission has a definite procedure which it follows in considering and approving compromise settlements. The first step of this procedure requires the filing of a joint motion of the parties praying for approval of the compromise settlement and the setting of a date for hearing the motion. The original compromise agreement must be filed with the Commission along with the joint motion. However, signed duplicates of the original agreements by individual petitioners and attorneys, and officials of the organized tribes may be substituted as evidence of approval.

The original compromise agreement is to 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 the Interior and who have a contingent interest for attorney fees in the compromise settlement, and by the Attorney General or someone acting in his behalf. In the event that petitioners who are individuals acting in a representative capacity become unable to act either by death or for other reasons, new petitioners who have been properly nominated by the Indian Tribe involved can be substituted. Deceased attorneys of record should be represented by their duly appointed legal representatives.

After the filing of the joint motion and the original compromise agreement, a date is set for an open hearing before the Commission at which both oral and documentary evidence pertaining to the settlement is received. The hearing is then held and organized tribes appearing as petitioners are required to present as witnesses, the Tribal Chairman, the Secretary of the Tribe or Tribal Council, and any other tribal members who desire to testify. If the petitioners are individual tribal members who appear on behalf of the tribe, at least two should attend as witnesses. The Commission requires from these witnesses' evidence of what has been done by them or the attorneys for petitioners to acquaint tribal members with the provisions of the compromise agreement, as well as other information which may be appropriate. The attorneys for petitioners and the defendant are also required to make appropriate statements with respect to the settlement. The documentary evidence required to be submitted at the hearing consists of resolutions from both the tribe and the Tribal Council approving the proposed compromise settlement and authorizing their Chairman or other officials to sign and execute the compromise on their behalf, and a letter of approval of the compromise agreement signed by the Secretary of the Interior or by someone duly authorized to act for him. All proceedings connected with the calling and holding of the meetings of the tribe and Tribal Council shall be fully authenticated, as shall be the signatures of the necessary officials signing the resolutions and the compromise agreement. Every care is taken to make sure that the compromise settlement is fair and agreeable to all parties. In the California case we required further hearings to make sure that the Indians involved understood the terms of the settlement and approved them.

In the event that the above procedures may cause undue hardship if rigidly enforced, the Commission will hear counsel for the parties with respect to any modifications that may properly be allowed. These procedures are fully set out in Omaha Tribe of Nebraska v. United States, 8 Ind. Cl. Comm. 392, pp. 416-419. 3. (b) The same procedures described in 3(a) above are followed with respect to the compromise settlement of offsets where the amounts involved are substantial. However, the Commission is less rigid in its procedural requirements where the amounts involved are small.

(c) Following is a list of cases giving the date of approval by the Bureau of Indian Affairs of the compromise and the date on which the Commission approved it.