Senator McGOVERN. Mr. Flickinger is the chairman of the Indian Law Committee of the National Bar Association. He is our next witness.

STATEMENT OF SAM J. FLICKINGER, CHAIRMAN, INDIAN LAW COMMITTEE, FEDERAL BAR ASSOCIATION

Mr. FLICKINGER. Mr. Chairman, members of the committee, I assume you know about the Federal Bar Association. We have some 13,000 members throughout the United States. Among the larger and more active committees is the Indian law committee, of which I am chairman. It was organized about 8 years ago for the purpose of aiding and to a certain degree protecting the interests of the Indians.

In respect to this particular proposed legislation, the Federal Bar Association, Indian Law Committee, at a duly called and held meeting, considered the pending proposal concerning the extension of the life of the Indian Claims Commission, including S. 307, H.R. 537, and H.R. 2536.

It is the view of the Indian Law Committee of the Federal Bar Association that the best interests of the United States and the Indian tribes, bands, and other identifiable groups concerned, would be served by, (1) a simple extension of the life of the Commission for 7 years to April 10, 1974, without other amendments; (2) making an appropriate legislative history in the committee report, but no statutory provision that it is the intent and desire of the Congress that the claims pending before the Indian Claims Commission be judiciously disposed of with reasonable dispatch, and that the Indian Claims Commission, if necess necessary, amend its rules of practice and exercise all of the usual powers and practice of a judicial tribunal to control its docket and facilitate the proceedings by appropriate sanction, for example, Federal Rules of Civil Procedure 16, 37, 41(b), and 55.

Senator McGOVERN. Mr. Flickinger, in that connection do you really think simply an expression of the wish of Congress that these matters be handled expeditiously would carry enough force to change the present pattern of operation in the Commission?

Mr. FLICKINGER. I think it certainly would be a very definite suggestion, coming from a committee of the Congress-committee setting that forth. I would hate to be in the shoes of any official who failed to pay attention to it.

It is important that the work of the Commission and the adjudication of the pending claims be completed as soon and as sufficiently and judiciously as practicable, considering the complicated nature of the litigation before the Commission.

For the most efficient and judicial disposition of the work of the Commission, it is important that the Commission retain its most competent staff personnel-for example, legal advisers-and be able to interest other competent persons in employment.

This would permit the Commission to operate with optimum production.

It can be accomplished only if the qualified personnel have some reasonable assurance of tenure in their work. Otherwise, undoubtedly the personnel will continue their search which, as understood, has been begun because of the Commission's short or uncertain tenure, for other suitable employment.

To extend the life of the Commission for only 2 years or less, in the judgment of the Indian Law Committee of the Federal Bar Association, would cause the Commission to limp along with inadequate staff and unsatisfactory productivity.

Senator McGOVERN. In that connection, you know that the legislation proposes a 5-year extension, not a 2-year extension.

Mr. FLICKINGER. Your proposed legislation does. The House, I believe, has a 2-year. And that is the reason-while it does not really belong here before your committee-we took action on both. A reasonable estimate of the time required to dispose of the pending cases, if handled with reasonable dispatch, is 7 years. We accordingly suggest that this additional term be given the Commission.

Courts have inherent power to control and supervise their docket. For example, in Wink v. Wabash Railroad Company, 370 U.S. 626, 1962, the Supreme Court upheld the right of the district court to dismiss an action for failure of the plaintiff's counsel to appear at a pretrial hearing after repeated delays. The Commission, as a judicial tribunal, can, without further legislation, establish and enforce appropriate rules for dispatch of its business. We urge the Congress to make clear that this is intended.

However, we suggest that it is very unwise and would lead to inevitable hardship for legislative mandate of dismissal to be provided by the Senate amendment, S. 3068, and H.R. 5392, 89th Congress, adding a new section 27 to the Indian Claims Commission Act.

a

We can visualize many situations where, under statutory mandate, the Commission would be required to dismiss claim for failure or inability of the Indians to proceed due to matters clearly beyond their control. This would create severe hardship and inequity. It would undoubtedly lead to innumerable requests for new special jurisdictional legislation similar to those happenings prior to the enactment of the Indian Claims Commission Act. Examples may illustrate the problem.

1. Plaintiffs cannot proceed due to failure of the U.S. General Services Administration to prepare its report in a General Accounting claim.

2. Last-minute illness of counsel, witnesses, or destruction of exhibits or other evidence.

3. Unavailability of the Commission or the Government counsel or witnesses.

In any of these instances, it would be undesirable for the Commission to be under a compulsory mandate to dismiss a case because plaintiff was unable or unwilling to proceed on a set date. In other words, judicial discretion should be vested in the Commission subject to the usual judicial review. Moreover, many delays have been due to the defendants, the plaintiffs, and the Commission. Accordingly, the sanctions should not be all against the Indians, but should be evenly applied against the parties.

It is our hope that these views of the Federal Bar Association and the law committee may be of help to the committee.

Senator McGOVERN. Well, thank you ever so much, Mr. Flickinger. Your views will certainly be considered. Thank you very much. Is Mr. Wilkinson in the room? Mr. Wilkinson, would you like to be heard now?

Mr. Wilkinson is treasurer and chairman of the Claims Committee, Three Affiliated Tribes of the Fort Berthold Reservation, New Town, N. Dak.

We would be happy to have your statement now.

STATEMENT OF JOHN WILKINSON, TREASURER AND CHAIRMAN OF THE CLAIMS COMMITTEE, THREE AFFILIATED TRIBES OF THE FORT BERTHOLD RESERVATION, NEW TOWN, N. DAK.

Mr. WILKINSON. My name is John Wilkinson, Sr., and I am the treasurer of the Three Affiliated Tribes of the Fort Berthold Reservation, New Town, N. Dak. I am also chairman of the tribes' claims committee.

Our tribes presently have eight claims pending before the Indian Claims Commission.

We strongly support the proposal to extend the life of the Indian Claims Commission. Our claims have been pending for many years, but several of our claims are now advanced to the point where a final decision will be handed down in the relatively near future. If the Congress fails to extend the life of the Commission now, the people of our reservation would feel betrayed; they would feel that they had been unfairly discriminated against and denied their day in court.

We believe the life of the Commission should be extended for at least 8 more years. While most of our claims will probably be completed within the next 5 years, we have at least one claim, involving a question of title which overlaps claims of other tribes, and it sometimes takes many years ars to clear up overlap problems because of all the parties involved. We know that many other tribes have claims that could not be completed within the 5-year period specified in S. 307.

We are very much in favor of expediting the claims, but we do not believe that any legislation is needed to do this. The Commission has adequate authority under existing law to keep the cases moving in an orderly manner. We certainly oppose any legislation that would forfeit our claims just because the Department of Justice, or for that matter our own attorneys, were slow in processing them.

Senator McGOVERN. Thank you for your statement.

Is Mr. Adams in the room? Mr. Hank Adams, of the National Indian Youth Council?

We would be happy to have your statement.

STATEMENT OF HANK ADAMS, MEMBER, BOARD OF DIRECTORS, NATIONAL INDIAN YOUTH COUNCIL

Mr. ADAMS. Mr. Chairman, my name is Hank Adams. I am a member of the board of directors of the National Indian Youth Council.

I respectfully request permission to offer this statement into the record of these hearings in behalf of the National Indian Youth Council (NIYC) and in support of extension of the life of the Indian Claims Commission for an indefinite period, but with qualification relating to need for change in its operations and need for change in the policies which have applied to the disposition of awards.

Much has been said and written about the Claims Commission since its inception almost 20 years ago, which tend either to support or oppose it in nature and in purpose. Most have agreed that the Commission is preferable to individual authorizations by Congress to Indian tribes for bringing such suits against the United States.

But others, such as Reader's Digest's Blake Clark in the latter 1950's have maintained, in effect, that if the Indians should have material need, this Nation should respond to its own sense of morality and meet such need. But in no case should this Nation subject itself to the humiliation of bringing forth the remnants of a defeated people to make judicial demand upon the public for wrongs inflicted by one's ancestors upon the other's. In this line, humiliation becomes a oneway street.

Others assert that the Indian is entitled to his day in court in any case, win or lose, because that is the American way. America sustained in principle, interest does not extend beyond expression. Whether America may die in process or resulting action is of little concern to the expressor.

Some are even surprised in learning that the Commission exists, such surprise having extended even to a former U.S. Attorney General in learning that the Justice Department at that time had 23 lawyers hidden away in its bureaus, arduously working in defense of the United States in denying the skeletons in the country's closet.

Then come forth the lawyers and law firms, asserting that no money can be had by working with the Indians, but that money is less scarce in working with the Government. Nominal retainers from tribes for incidental advices may be tolerated, if, at the end of the rainbow, lies the pot of gold. Not many make a million dollars in a single whack-but some do, and some several times over-but 10 percent is slim price for the expense of waiting, and smaller yet in having been the ones to tolerate the clients for the duration. Additional are those who humorously note that "we're buying it back from the Indians." They become alarmed, however, in learning that if all judgments were sustained in the claimed amount, it would approach in total the several billions spent in all the years since 1813 on the contingencies of this Nation's "Indian policy."

a

The Commission has demonstrated the fallacy of such notion, however, and it sometimes becomes confusing as to who is paying whom. The United States trying to regain any portion of those past several billion that it might, the Indians find themselves paying for such items as education they did not receive, schools they do not then own, or lands they did not surrender.

The public should be aware that claims are no great boon to the Indians, and that the approximately $200 million awarded thus far has been of benefit to a limited number of Indians. The public should be aware that an excessive percent of these awards go to a selected band of lawyers and law firms; in amount, equaling almost double the $12 million for which this Nation saw fit to spend on community action programs (OEO) nationally this year on Indian reservations.

On the other hand, many tribes will benefit more each year, financially, under the Nation's war on poverty, than they shall ever benefit from awards made through the Indian Claims Commission.

Perhaps the central issue involved in considering termination or extension of the life of the Commission is consideration of how Indians shall benefit from such awards and what these benefits shall be.

For some tribes claims judgments perhaps aren't too meaningful in amount. Yet, for some of them, as well as others, these awards can provide the only gleam of hope in a bleak future, as created and sustained by a bitter past.

But in practice, this hope has gone the way of prior hopes and previous destroyed dreams. Tribes have found too often that the award is there in name only-at best a bookkeeping device and at worst the price of what remains theirs in the way of resources, community life, land base, and Federal services.

The Kalispels of eastern Washington State and Idaho may well have continued to survive on an average per capita income of $96 per year, had they not received a $2.7 million judgment. The Bureau of Indian Affairs then discovered there were Kalispel Indians, and a new tribal name began appearing in proceedings of this Senate committee. No program has been or was offered previously for these people from either source. The Bureau learned that the Kalispels could now afford to benefit, and the Senate subcommittee learned then that the Kalispels could now afford to be free.

Few people in America would permit themselves to be bought out with their own resources, but for the Indian it has come to be expected as a matter of course. And should the awards of the Indian Claims Commission continue to be used as the Government's money, merely as supplemental appropriations to the BIA's budget, or even displacement, to sustain the proven failures, or failure-ridden programs, then perhaps the Commission should be terminated. Indians have been programed through a poverty program for the past 130 years, and the most obvious manifestation of this Nation's efforts is that they have failed. Permit the Indian communities to now stand as Indian communities, in large part to plan for themselves, but also to take advantage of the genius this Nation could bring to bear on the many problems confronting us in a mutual-help effort at finding solutions. Utilize the Claims Commission that the Indian may benefit from this Nation's strengths, and not forever be the lasting victim of its unwitting weaknesses.

Mr. Chairman, I would like to make a couple of statements on specific issues of the legislation.

Senator McGOVERN. We would appreciate having your statement. Mr. ADAMS. First of all, we feel that if there was any justification for having these claims entered against the United States in the first place, or that the United States agreed to consider them, they should not be dismissed without appropriate hearing and without some definite conclusion on an arbitrary date.

We see on the other hand, a need to expedite the action before the Claims Commission. We feel that it has been too slow perhaps, for understandable reasons in many cases, and in some cases not.

Senator MCGOVERN. I am sure the members of this committee share your concern about protecting fully the interests of the Indian claimants. That is really the purpose, as I understand it, of this legislation. It is to see that these claims are not delayed interminably, that they are brought to trial and a judgment made, so that the Indians are not left waiting forever on claims that may have real validity.

Mr. ADAMS. Well, we think that there perhaps is need for some modification in functioning of the Claims Commission.