But it really doesn't give him an opportunity to be heard. He can yell, and that is all he can do.

Mr. SELLERY. I would think that perhaps one reason for the provision in its present form is the fact that if hearings were to be held at a site convenient to the Indian protestants or Indians at interest, the Bureau would be required to recruit itself another force of examiners, hearing officers, to hear this thing.

I think the elements of due process with respect to notice and opportunity to be heard do not require an opportunity to be heard in

person.

If you have an opportunity to record your objections to the action, I believe that will comply with

Senator ALLOTT. May I point out that it doesn't even require that the Secretary can consider these objections. It says he has a right to file them. I think there is a real question of constitutionality from the due process angle in this one respect.

You have here an administrative officer, not a judicial officer, and a judicial officer takes an oath to administer the laws and uphold his duties in accordance with the laws and the Constitution. Of course, the Secretary does, too, but here you don't even have a requirement that he shall consider, in arriving at his decisions under section 7 of the substitute draft H.R. 8077 in the House, you don't even have_a requirement that he shall consider this in arriving at his decision. It simply says that a man shall have a right to voice objection.

Mr. SELLERY. Well, I think the bare words permit you to draw that conclusion. I would think the implication of the statute is that he will consider the objections if filed. But, technically speaking, there is certainly nothing in this particular section, I think, which in specific words requires him to consider those objections.

Senator BURDICK. Will the Senator yield?

Senator ALLOTT. I am finished, Senator. I will yield to you.
Thank you, sir.

Senator BURDICK. The Senator from Colorado picked on a point that I was going to pursue, too. Do you feel that there are any constitutional objections to permitting the Secretary to exercise the judicial functions in making oral petition?

Mr. FRANCE. No, sir.

Senator BURDICK. Suppose that an owner of an undivided interest comes in and asks the Secretary to start a partition action, and suppose that an adverse claimant to this interest appears, and suppose that the Secretary partitions in favor of the original petitioner. What rights does the adverse holder have by way of an appeal? Mr. FRANCE. Are you talking about the Interior substitute draft now?

Senator BURDICK. I am talking about S. 1392.

Mr. FRANCE. I don't believe either draft provides any appeal. Consequently, the only appeal that would be available at all would be for the owner to go into court and test whether or not the Secretary had exceeded his authority in granting the partition.

Senator BURDICK. Let us assume now the Secretary follows the legislation in every detail, and that the legislation does not provide for appeal. Wouldn't that be denial of due process to an adverse claimant?

Mr. FRANCE. No, I don't think so.

Senator BURDICK. Suppose that individual owner A comes in and asks for a partition. B comes in and claims I have a right to that allotment. The Secretary holds for A. Doesn't B have any recourse?

Mr. FRANCE. Senator Burdick, if I understand your problem, you will probably have a procedural setup over in the Department of the Interior a little different than you assume. Probably in the first instance this matter will be handled by someone in the Bureau of Indian Affairs, and the ruling in the first instance will be made there. I would assume, under the usual departmental procedure, the losing party in the Bureau of Indian Affairs would have a right of appeal to the Secretary of the Interior. That would be the usual procedure over there, and he would get his case heard on an appeal to the Secretary.

On the other hand, if the Secretary decided that he wanted to hear the matter himself in the first instance rather than have it come up on appeal, I don't think that would raise any constitutional question.

Senator CHURCH. May I suggest that perhaps the reason is that no statutory appeal needs to be provided inasmuch as the complaining party or the aggrieved party always has access to the courts where he contends that the Secretary has exceeded his lawful authority, or where he contends that he has been denied a constitutional right. So there is, in that sense, a right of appeal that the statute does not have to provide.

Senator BURDICK. There is a difference between exercising constitutional rights and a question of disagreeing with the decision.

Senator CHURCH. That is right, but the question raised is one of due process, and I think due process is given because there is always the right of access to the courts if one contends he has been denied a constitutional right.

Senator BURDICK. All I am trying to do is find a legal basis for this problem.

Is it your opinion that the Secretary of the Interior can cut off the right of B in favor of A without any further judicial determination, without meeting any constitutional objection?

Mr. FRANCE. If authorized by Congress, yes, sir.

Senator BURDICK. OK. That is all

Senator ALLOTT. There is one other thing I would like to ask, Mr. Chairman, if I may.

You heard the extensive discussion yesterday on various phases of the bidding and the responsibilities of the Government as a trustee. And I am sure you also heard the statement by the General Accounting Office. Do you agree with the statement of the General Accounting Office in this respect as given yesterday?

Mr. SELLERY. My recollection of the General Accounting Office statement was that it dealt largely with the facts, and that, in terms of the bidding process, I don't recall that they made a recommendation, sir.

Senator ALLOTT. Well, maybe I can turn to it quickly here.

Well, this is a rather lengthy letter, and my eyes don't happen to fall on it, but my recollection is that the GAO said yesterday in their statement that they did not think that the sale by the trustee, the Fed

eral Government acting as trustee, to a tribe at the appraised value and foreclosing any opportunity for higher bids constituted a fulfillment of the obligations of the trustee.

Mr. SELLERY. I think the Senator may be referring to the paragraph or the subparagraph No. 1 on page 8 of the General Accounting Office

statement.

Senator ALLOTT. Well, I will tell you, the reason I can't find it, I was looking at his letter and I didn't have the statement before me. Yes, subparagraph 1. And I think they touch on it in the first two, as a matter of fact. you agree with these?

Do

Mr. SELLERY. I think it depends upon the approach you take, Senator. The just compensation provision of the fifth amendment is applicable, of course, in the eminent domain type of decision. It requires that the owner be given just compensation, which the courts have held, loosely speaking, to be the fair market value.

In the case of the Department's trust responsibilities I think you may there have a policy question as to whether or not you wish to go further than the Constitution itself would require you to go, or to analogies to just compensation types of

Senator ALLOTT. Where is there a policy decision when you are talking about trust laws? The trust laws of this country are pretty well established in every State of the Union. Where do you get policy? You are either fulfilling the obligation of the trust or you are not fulfilling it. What does policy have to do with it?

Mr. SELLERY. Well, the basis for the view that the United States has a trust responsibility or relationship to the Indian is an old one, and I do not know whether it is based precisely upon analogies of trust law or whether it is merely an effort to separate legal and equitable title.

If you have satisfied the constitutional requirements, I think the administration as prescribed by Congress of the trust responsibility is an entirely separate question.

Senator ALLOTT. Well, this No. 1 says:

Tribes, instead of the owners, are given preferential rights to buy certain lands in heirship status, and would be able to acquire such lands at the appraised fair market value.

This does not mean the fair market value. The appraised fair market value which would not necessarily assure the owners of the highest possible price.

These provisions appear to be inconsistent with the Department's trust responsibility.

When you take these words and you interpolate them into the situation the Federal Government had with the Menominee Indians where they paid an $8.5 million judgment to the Menominee Indians because we were accused of not operating their forest lands in the best possible manner, how can it possibly be said that when you throw this property, which belongs to an individual for sale, on the market at less than the most you can get for it that you are not violating your trust responsibility? I can't see where policy can come into this. You are dissipating assets.

Mr. SELLERY. I don't think you are dissipating assets, Senator. You may not conceivably be getting the maximum that it is possible to get for it, but you are not dissipating.

Senator ALLOTT. If you don't get the most you can when you sell trust property for the beneficiaries in trust, you are dissipating assets, are you not?

Mr. SELLERY. I wouldn't agree with that, sir.

Senator ALLOTT. How can you avoid it?

Mr. SELLERY. You have not dissipated the assets. You may not have gotten all for them that is possible to get, but you haven't dissipated them.

Senator ALLOTT. All right, you have three pieces of property that are worth $100,000, at the fair market value. You sell one of these at the appraised fair market value is the words they use at $80,000. Therefore, you have dissipated the assets because you end up with two pieces of property worth $100,000 apiece, and you end up with $80,000 in cash instead of the $100,000 in cash you should have ended up with on the third piece of property. You have dissipated the assets.

Mr. SELLERY. Well, in the Senator's sense that is correct.

Senator ALLOTT. Well, I assume then that you don't wish to either endorse or comment positively on either section 1 or 2 on page 8 of the GAO statement, either for or against?

Mr. FRANCE. Senator Allott, with respect to your question as to whether I would agree with paragraphs 1 and 2, I probably would agree with paragraph 2. I would have some hesitation about paragraph 1.

Senator ALLOTT. Why?

Mr. FRANCE. Because I disagree with your statement that the United States has no policy matters in dealing with Indians. The courts have held their the trust or guardianship relationship between the United States and the Indian is not a true trust or guardianship but that the terms are those to be prescribed by Congress, and I think in prescribing the terms of the trust the Congress can, and for 100 years has exercised a definite policy determination.

Senator ALLOTT. If you have a definite policy determination by Congress, yes, but in the handling and disposition of property there is just one question here, and that is that the proposed substitute bill would give the power to the Secretary to sell property at less than the fair market value.

Mr. FRANCE. I do not interpret the bill that way Senator Allott. Senator ALLOTT. Well, it says that it can be sold to the tribe for the appraised value, not the fair market value.

Mr. FRANCE. Well, I would assume that appraised value would be substantially the same as fair market value. If not, then, of course, I would agree with your statement that the Secretary doesn't have authority to dispose of it at something less than fair market value as determined in a reasonable manner,

Senator ALLOTT. That is all I have.

Senator CHURCH. Thank you very much, gentlemen.

Senator BURDICK. I have one more legal milepost to pass.

Getting back to my illustration, suppose that the individual owner who makes the application for partition is an Indian and has a restricted right. And assume that the diversity is brought about by the fact that an interest is owned by a non-Indian who has a nonrestricted right to this property. Do you believe the Secretary of the Interior

could litigate the matter without violating any rights of the nonIndian?

Mr. FRANCE. No, sir.

Senator BURDICK. He couldn't?

Mr. FRANCE. It is my personal view that he could not. There may be some difference of opinion with some people on that, but it is my personal view that he could not.

Senator BURDICK. In other words, this section would only grant partition in case all the owners of the interest were Indians?

Mr. FRANCE. Or they got the consent of the non-Indians.

Senator BURDICK. That is right. In other words, you wouldn't clear up a piece of property then where we have a non-Indian with an unrestricted right without his consent?

Mr. FRANCE. It is my opinion, sir, that that could not be done.
Senator BURDICK. Thank you.

Senator CHURCH. Thank you very much, gentlemen.

Senator CHURCH. Our next witness is Mr. Paul Jones, the chairman of the Navajo Tribal Council.

Mr. Jones, we are very pleased to welcome you.

STATEMENT OF PAUL JONES, CHAIRMAN, NAVAJO TRIBAL COUNCIL

Mr. JONES. Thank you, Mr. Chairman.

Mr. Chairman, I would like to display a map showing the allotments of our Navajos outside the reservation property.1

First of all, Mr. Chairman and members of the committee, I would like to give you a brief explanation of the map.

This portion of the white part of the map is the general reservation which is only partially shown, which consists of about 16 million

acres.

This [indicating] is outside the reservation allotments of our Navajo people in the State of New Mexico.

This [indicating] is what we call the Ramah area which is now near the Navajo Reservation.

This one [indicating] is the Canoncito, which is west of Albuquerque about 30 miles.

And this [indicating] was the Alamo near Magdalena, N. Mex., also south of Canoncito.

These numbers indicate here the numbers of our community living areas. Here we have 196. And in between are the non-Indians living there.

These white areas represent the non-Indians living within these allotments of the Navajo people.

Senator ALLOTT. Mr. Jones, will you repeat that last again. I didn't quite understand you. What does the white represent?

Mr. JONES. These white areas in here are occupied by non-Indians, the white ranchers who may have leased a portion of the reservation. I mean the allotment of the Indians here, to make it worthwhile to operate a ranch, and so that it will be large enough to make it worthwhile for him to raise some stock.

1 The map referred to is in the committee files.