Senator ANDERSON. Well, if Congress decides, on the basis of the light furnished it by the Department of Interior-you know the Department of Interior furnishes us this light—that the best way to own real estate is by the tribe and not by the individual. Is that a correct analysis?

Mr. CARVER. The Department is suggesting that we should strengthen the tribal land base rather than break it up.

Now there will be exceptions, obviously.

Senator ANDERSON. Are these individually allotted lands now owned by individuals and fractionated? Are they part of the tribal land base?

Mr. CARVER. No; they are not.

Senator ANDERSON. Then why do you keep talking about them as if they were in the tribal land base?

Mr. CARVER. They are lands which

Senator ANDERSON. Does this bill do anything with the tribal land base the tribe now owns?

Mr. CARVER. No, sir.

Senator ANDERSON. Then why do we keep getting that into the conversation?

Mr. CARVER. Well, because we add it to the tribal land base. It is an Indian land base now. It is now owned by Indians, and it won't be owned by Indians if we go the other route.

Senator ANDERSON. Well, it might be.

Mr. CARVER. It might be, of course, in certain instances.

Senator ANDERSON. If they have rights to purchase.

Mr. CARVER. That is correct.

Senator ANDERSON. It is only by your proposal that says, "We will put it into the tribe," that the individuals don't have rights to pur

chase.

Mr. CARVER. Yes, sir.

Senator ANDERSON. Has Justice told you that this is a perfectly constitutional taking?

Mr. CARVER. No, sir; Justice hasn't told us anything. The Justice Department has told the committee that it isn't.

Senator ANDERSON. Well, would that bother you any? Would you want an unconstitutional taking?

Mr. CARVER. I don't want to get involved in

Senator ANDERSON. But you are involved. You just involved yourself by saying the Department took a different position. Now, having said that, you are involved.

Mr. CARVER. Yes, sir. I am perfectly willing. All I was about to

say

Senator ANDERSON. Now do I understand that your testimony is that the Department of the Interior favors an unconstitutional taking? Mr. CARVER. No, sir.

Senator ANDERSON. Well

Mr. CARVER. I am entitled, I think

Senator ANDERSON. If the Department of Justice says there is one, and you support your bill, how do you get off the hook?

Mr. CARVER. Well, I don't say that they are the final judges of constitutionality.

Senator ANDERSON. Oh, I see.

Well, you have lost faith in the Department of Justice.

Mr. CARVER. As to this matter I have; yes, sir.

Senator ANDERSON. All right; now we are getting somewhere. Mr. CARVER. I made a part of my statement directed to that point, Senator Anderson, in which I suggested

Senator ANDERSON. I regret I didn't hear the statement.

Mr. CARVER. They were saying, if I understood them correctly, that we had a bill in the nature of eminent domain, and I was saying we had a bill in the nature of carrying out of trust responsibilities and instructions by the Congress to the trustees as to how they should be carried out.

Senator ANDERSON. Well, I only suggest to you that once, when I was on the other side of the desk, I was subpenaed by the august Members of the Senate to produce some records. I did not depend upon the counsel of the Department of Agriculture. I went to the chief law adviser, who was the Attorney General representing the Department of Justice, and if I was in a position where the Department of Justice said this is unconstitutional taking, it would make me pause a little bit.

Mr. CARVER. It has made us pause, but let me say I have not until just this morning seen their formal statement.

Senator ANDERSON. Well, I haven't seen it at all, except I understood that was their position.

Oliver LaFarge, who lives in my State and is highly regarded by many people in my State, and I among them, had an article in Indian Affairs for February 1961. I don't intend to read it all, but he said we need an Indian development fund, and I am very glad that this committee is stanchly in favor of an Indian development fund.

In the next paragraph, he says:

A portion of this fund should be promptly available for purchase of allotments coming up for sale by tribes that offer a sensible plan of land consolidation and use. All of it should be available for businesslike practice, general development programs, provided those programs come from the whole community as stated above. This provision will insure success—

and so forth.

Now, he would like to use this development fund to purchase some of these fractionated allotments, wouldn't he?

Mr. CARVER. Yes, sir; and that is possible under our bill.
Senator ANDERSON. Under your bill?

Mr. CARVER. We provided that loans could be made. We have said

Senator ANDERSON. You are going to let the tribe buy. Aren't you letting the tribe buy these even if the individual offers more? The tribe will still get it if it wishes to do so. How does that let the individual buy them?

Mr. CARVER. I had the feeling, Senator Anderson, that Mr. LaFarge's position on this, and this is the first time I heard it, but I had the feeling he was in favor of the tribal approach that we have been talking about. I may be in error.

Senator ANDERSON. Oh, I don't attempt to say how Mr. LaFarge feels about this bill, whether he supports the Department's position or the Church bill. I was just trying to find something that I could anchor my faith to, and he says that he would like to have a develop

ment fund, and he would like to use that fund so the individuals might purchase some of these tracts. That seems to me like a pretty good thing.

Mr. CARVER. There isn't anything in our bill that forecloses the individuals from doing that.

Senator ANDERSON. No; except that if he wants to bid $10, and the tribe bids $6, you would sell it to the tribe because you want to discourage the individual ownership of property.

Mr. CARVER. Well, I hope I haven't misspoken myself when I said

Senator ANDERSON. I hope I haven't misquoted Mr. LaFarge or misinterpreted your position either.

Did you have occasion for review of the report on H.R. 5144, a bill which the House of Representatives has passed and is now before the Senate? It is a bill providing for the payment for individual Indian aid and tribal land of the Lower Brule Sioux Reservation in South Dakota.

Mr. CARVER. I have not, Senator Anderson. The chairman of the subcommittee announced he was going to take that up Tuesday, and told him that at that time

Senator ANDERSON. How did it get out from the House without the Department of the Interior knowing about it?

Mr. CARVER. I am sure we did. I don't have it before me now. I may have signed the report. I don't recall it now. I would be glad to refresh my recollection if we had one at the table. We don't have one here at the table.

Senator ANDERSON. The bill H.R. 5144 is somewhat similar to the Church bill in terms of these fractionated lands and the Department recommended favorably upon it before the House.

Mr. CARVER. Yes, sir; that is correct.

Senator ANDERSON. A hundred years or so ago a man said_something about a house divided against itself cannot stand. Is the Department of the Interior for one bill in the House and a different bill in the Senate?

I wish you would examine the report because it says:

Upon receipt of request from the required ownership interest, the Secretary shall notify the tribe, and each owner of an undivided Indian interest in the land by letter directed to his last known address for such owner

and so forth, and—

The tribe has the right to purchase; that each such owner and the tribe has a right to purchase the land for its appraised value unless one of the owners objects within the time fixed by the Secretary or for a lower price if all of the owners agree.

When we get down into this thing we find that it has something to say about 25 percent of the owners. Do you want 50 percent over here? Mr. CARVER. The fact

Senator ANDERSON. Should we take this bill that comes to us now from the House and allow the individual owner to buy it and change it so that it shall pass into the ownership of the tribe and the tribe shall have preferred right to buy even at a lower price?

Mr. CARVER. Well, I think we misstate one point here.

Senator ANDERSON. I am just trying to get at a uniform policy.

Mr. CARVER. In dealing with what the Secretary may do, with what standards Congress authorizes him to apply, we have said that he may give to the tribe the preferential right to purchase.

Senator ANDERSON. I don't want to take the time-as my friend from Colorado generously suggested a while ago, we all ought to have some opportunity, and I will be glad to stop here if you will agree to furnish for the record an analysis of what H.R. 5144 does in this particular instance and what your bill would do under the same circumstances. I think you will find them in direct conflict.

Mr. CARVER. We will do that. I think that we will find that it takes a third approach, different from Senator Church's bill and different from the general bill we proposed.

(Subsequently Mr. Carver transmitted the following communication :)

Hon. FRANK CHURCH,

DEPARTMENT OF THE INTERIOR,

Chairman, Subcommittee on Indian Affairs,
U.S. Senate, Washington, D.C.

OFFICE OF THE SECRETARY, Washington D.C., August 23, 1961.

DEAR SENATOR CHURCH: During the hearings on S. 1392, the Indian heirship bill, you asked us to compare the various proposals that have been enacted or proposed. The major provisions of the various proposals that can be compared are as follows:

1. Fort Randall legislation for the Crow Creek and Lower Brule TribesPublic Law 85-916 and Public Law 85-923:

(a) Fifty-one percent of the ownership interest may initiate administrative partition and sale proceedings. The sale is discretionary with the Secretary.

(b) The tribe and the individual Indian coowners have a preferential right to buy at the appraised value if 51 percent of the ownership interest agrees.

2. Oahe legislation for the Standing Rock Tribe-Public Law 85-915:

(a) Twenty-five percent of the ownership interest may initiate administrative partition and sale proceedings. The sale is discretionary with the Secretary.

(b) The tribe and the individual Indian coowners have a preferential right to buy at the appraised value if 25 percent of the ownership interest agrees.

3. Big Bend pending bills for the Crow Creek and Lower Brule Tribes-H.R. 5144 and H.R. 5165:

(a) Twenty-five percent of the ownership interest (if less than 10 owners) or 51 percent of the ownership interest (if 10 or more owners) may initiate administrative partition or sale proceedings. A sale is discretionary with the Secretary.

(b) The tribe and the individual Indian coowners have a preferential right to buy at the appraised value, if no owner objects.

(c) The tribe has a preferential right to meet the high bid, if no owner objects.

(d) The tribe and the individual Indian coowners have the right to compel an auction sale in order to have a better opportunity to buy. 4. S. 1392 by Senator Church:

(a) One coowner may initiate administrative partition or sale proceedings.

(b) The sale is mandatory unless the Secretary makes a finding and reports to Congress.

(c) The tribe and individual Indian coowners have a preferential right to buy at the appraised value, if no owner objects.

(d) The tribe and individual Indian coowners have a right to compel an auction sale in order to have a better opportunity to buy.

5. Departmental substitutes for S. 1392:

(a) Fifty-one percent of the ownership interest may initiate an administrative partition or sale proceeding. The sale is discretionary with the Secretary, and the effect of the sale on the community is one of the factors to be considered.

(b) The tribe has a preferential right to buy at the appraised value. (c) One coowner can initiate judicial partition and sale proceedings, with the approval of the Secretary.

Both S. 1392 and the Department's substitute have other provisions that are not comparable.

Sincerely yours,

JOHN A. CARVER, Assistant Secretary of the Interior.

Senator ANDERSON. Wouldn't it be nice to have a single approach? Mr. CARVER. Yes, sir, it would.

Senator ANDERSON. Thank you.

Senator CHURCH. You will have an opportunity, Secretary Carver, to make that presentation on Tuesday when the bill that Senator Anderson referred to is up before the subcommittee.

Senator CHURCH. I notice that Senator Case is here and also Congressman Berry.

I don't want to dismiss you gentlemen yet from testifying, but I wanted to inquire if either Senator Case or Congressman Berry have a statement they would like to make, because I would like to oblige them and not keep them here an unduly long time. I am sure that the departmental witnesses would not object at all to deferring their testimony in order to accommodate you gentlemen.

Senator CASE. Thank you very much, Mr. Chairman.

I do have a statement that I would like to make. Congressman Berry also has one.

Senator CHURCH. Fine, Senator. Will you come forward then. And, Congressman Berry, won't you accompany him, and we will be very happy to hear from you both.

STATEMENT OF FRANCIS CASE, A U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA

Senator CASE. Thank you very much, Mr. Chairman.

First of all, let me commend the chairman and the committee for having this hearing on this most important matter. This is a matter which certainly illustrates the old adage that justice delayed is justice

denied.

This matter to which these several bills address themselves is one of long standing. It cries for relief.

I introduced bills on this subject in prior Congresses, but in this Congress the bill I introduced is S. 628, the 26th of January, which would authorize the partition or sale of inherited interest in allotted Indian land in South Dakota, to provide for an interim trust patent, and for other purposes.

I assume, Mr. Chairman, that bill has been made a part of the hearing. If not, I would like to have it included.

Senator CHURCH. We will make it a part of the hearing by placing it at this point in the record.