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have the right to an award of title, subject to the lease, and to an assignment of all payments becoming due to the United States under the lease. Where a public-land claim requires further action for its perfection, as in the case of a homestead entry that has not yet gone to final proof, a successful claimant of possessory rights should be accorded the option of waiting for a reasonable length of time until it can be determined whether the claim will be relinquished or terminated so that an award of title can be made for the particular tract involved, or will be perfected and thereby necessitate a money award for that particular tract. Finally, the protection which the bill would accord existing public-land claims should also be extended to those validly initiated after its enactment but prior to a judicial determination sustaining a claim of possessory rights to the same lands. Such a provision would help promote the continued economic development of Alaska during the period while the claims of possessory rights were being adjudicated.
For the successful working of the bill it is important that an orderly system be established for the ascertainment of those public-land claims that affect any areas to which claims of possessory rights are upheld, and for the determination of the validity of such public-land claims to the extent necessary for the purpose of enabling the Court of Claims to decide whether the award must be in land or in money. The proposed amendments would provide the legislative framework requisite for this purpose. Under them, the adjudicatory process would be divided into two principal stages. The first stage would be a determination by the Court of Claims of the question whether a valid claim of possessory rights exists to a particular area of lands. The second stage would be a determination by the Court of Claims of the question whether any public-land claims exist with respect to that particular area which would be valid in the absence of, or in spite of, the claim of possessory rights. To assist the court in making the latter determination, three important ancillary procedures would be established by the amendments.
First, the Secretary of the Interior would be required to certify to the Court of Claims a list of the patents, entries, leases, and other public-land claims of record in the district land offices which affect lands within any area to which the court has determined that a valid claim of possessory rights exists, and which appear to be valid as of the date of that determination. Each such list would be prima facie evidence of the validity of each public-land claim therein certified as valid.
Second, any person claiming an interest in lands in Alaska under the public-land laws would be accorded the right to file a notice of his claim in the appropriate district land office within a reasonable time after the passage of the bill, or promptly after the initiation of his claim in the event it is initiated at a later date. If, subsequent to the initiation of any public-land claim covered by such a notice, the Court of Claims should determine that a valid claim of possessory rights exists with respect to the same lands, the Secretary of the Interior would be required to transmit the notice to the court, and the court would be required to make the public-land claimant a party defendant to the second stage of the proceedings.
Third, the Court of Claims would be directed to give notice by publication of each determination by it in which the validity of a claim of possessory rights is sustained, and of the description of each tract of land included in such determination. Any holder of an allegedly valid public land claim to the same property would thereupon be entitled to present the latter claim to the court within a time fixed by it, which could not be less than 90 days from the date when publication was completed.
The Court of Claims would have full authority to adjudicate the validity of of any public-land claim presented to it through any of the three procedures just outlined. However, in the interest of the orderly administration of justice, the court would be directed to provide, wherever practicable, for the submission of uncertified claims to the judicial or administrative agencies that would ordinarily adjudicate the validity of such claims in the absence of the bill. Unpatented claims not presented to the court through one or the other of these procedures would be forever barred.
The Department is convinced that provisions along the foregoing lines should be included in the bill in order to afford due protection to the holders of publicland claims as well as to the holders of claims of possessory rights.
Mention has already been made of the requirements in the bill that a money judgment be awarded the holder of a valid claim of possessory rights for the value of any lands to which such holder is not awarded title because the lands are below high water mark, or because they are within a national forest, or be
cause they are subject to a valid public-land claim. The bill provides that the lands are to be valued, in the first two cases, as of the date the bill is enacted, and, in the third case, as of the date the public-land claim was initiated. No reason appears for this variation in dates. Moreover, the process of valuation would be simpler and the results achieved would be more equitable if the valuation were made with reference to as current a date as possible. Accordingly, it is recommended that the date on which the court determines that a valid claim of possessory rights exists with respect to the lands in controversy be used in all cases as the date with reference to which the value of the lands is to be determined.
While the bill provides definite procedures for awarding title to lands, subject to the exceptions mentioned above, to successful claimants of possessory rights, it does not define, as clearly as would be desirable, the status of any lands in controversy that are not so awarded. The proposed amendments would provide specifically for the entry of judgments by the Court of Claims confirming in the United States title to lands which are not awarded to successful claimants of possessory rights. The amendments would also provide that any such confirmation of title shall inure, subject to all applicable provisions of the land laws, for the benefit of any holder of a valid public-land claim to the same lands. These provisions would eliminate any uncertainty concerning the title to those lands which are not awarded to a successful claimant of possessory rights.
The provisions of the bill dealing with the employment of attorneys by claimants of possessory rights appear to imply that in no case may the attorneys be paid a fee in excess of 10 percent of the amount of the recovery, plus the reasonable expenses incurred in the prosecution of the claim. This is contrary to the precedent established by section 15 of the Indian Claims Commission Act of August 13, 1946 (60 Stat. 1053; 25 U. S. C., sec. 70n), which permits the amount of the fee to be fixed by contract between the claimant and the attorney, without regard to any percentage limitation. An overall requirement that all fees be on a percentage basis could tend to hinder the natives of Alaska in obtaining competent legal counsel, since it would mean that all fees must be on a contingent basis, and since 10 percent of the recovery might be a totally inadequate compensation for the prosecution of some of the smaller claims. It is recommended, therefore, that the bill be amended so as to limit the application of the 10 percent limitation to cases where the amount of the fees is not prescribed by contract between the attorney and the claimant.
The bill provides that if an award to a successful claimant of possessory rights does not include a money judgment, or includes a money judgment which is insufficient to pay the fee of the attorney, the court shall except from the award lands of a value equivalent to the fee, and shall either grant such lands to the attorney or order them sold to pay his fee. It is recommended that the bill be amended to exempt from this provision so much of the land awarded to a successful claimant as would constitute a family homestead under the laws of Alaska relating to exemptions from judicial sales. Such an amendment would apply to attorneys in proceedings under the bill the same rule to which attorneys in all types of litigation are normally subject in jurisdictions which, like Alaska, provide for a homestead exemption.
The bill is silent with respect to payment of the court costs of a successful claimant, as distinguished from the fees of the attorney for the claimant. The principle that court costs should be paid by the losing party is widely accepted, and has been extended by the Congress to several important categories of claims against the United States. In line with these precedents, the bill should be amended so as to make the court costs of a successful claimant of possessory rights taxable against the United States.
Section 2 of title I of the act of August 12, 1935 (49 Stat. 596) contains provisions to the effect that certain classes of expenditures gratuitously made by the United States in favor of Indian tribes may be offset against such tribes in proceedings brought by them in the Court of Claims. While that section has been largely superseded and replaced by subsequent legislation, it is possible that its provisions might be construed as applicable to proceedings brought under the bill. The allowance of gratuities as offsets is not now required by the statutes applicable to most classes of Indian claims, is contrary to the rules of law applicable to non-Indians who have claims against the United States, and would produce highly inequitable results if enforced against communities of natives presenting claims under the bill. Hence, the proposed amendments contain an express provision to the effect that the provisions of section 2 of title I of the act of August 12, 1935, shall not apply to proceedings under the bill.
Section 1502 of title 28 of the United States Code declares that, except as otherwise provided by act of Congress, the Court of Claims shall not have juris
diction of any claim against the United States growing out of or dependent upon any treaty with foreign nations. The treaty with Russia of June 20, 1867 (15 Ştat. 539) whereby Alaska was ceded to the United States is pointed to by some authorities as confirming or recognizing native rights of occupancy in Alaska, and is pointed to by other authorities as denying or extinguishing such rights. From either standpoint, it is obvious that the Court of Claims must be permitted to consider the legal effect of the treaty on these alleged rights if it is to adjudicate effectively their validity. In order to prevent any inference that the court would not have any authority to take the provisions of the treaty into account, the proposed amendments expressly provide that section 1502 of title 28 of the United States Code shall not apply to the litigation which the bill contemplates.
Section 792 of title 28 of the United States Code authorizes the appointment of not to exceed seven Commissioners by the Court of Claims. These Commissioners hear evidence and report recommended findings to the court. It is apparent that the proceedings to be authorized by the bill will necessitate extensive use of the services of the Commissioners. In all probability several Commissioners will have to be assigned to duty in Alaska on a substantially full-time basis while these proceedings are pending. Hence, the proposed amendments would permit the Court of Claims to employ additional Commissioners, in excess of the seven now authorized, during this period.
I turn now to the form of tenure by which land or money that is awarded to a successful native claimant of possessory rights should be held. As introduced, H. R. 1921 provides that the Secretary of the Interior shall issue unrestricted patents in fee for all awards of land. As reported by the Subcommittee on Territories and Insular Affairs, H. R. 1921 includes a provision that "the court may award a resricted title for a period not to exceed 25 years if it finds the community of natives or individual claimants are incompetent." In either form, it is silent with respect to awards of money.
While the Department believes that Federal responsibility for administering the business affairs of Indian tribes and individual Indians should be terminated as rapidly as is consistent with the ability of the Indians, either as groups or as individuals, to take over the management of their own properties, the Department is not prepared to state that all communities of natives or individual natives who might receive an award of lands or money under the bill are necessarily ready for such termination and transfer.
In line with the amendment recommended by the Subcommittee on Territories and Insular Affairs, the amendments proposed by the Department would empower and direct the Court of Claims to determine whether the awards made to each community of natives or individual natives should be restricted or unrestricted. If, in the case of an award to a community of natives, the court finds that the members of the community, acting as a group, are reasonably able to manage the community's property and business affairs, then the judgment of the court is to include a direction that the award, whether of land or money or both, shall be unrestricted. If, in the case of an award to an individual native, the court finds that such native is reasonably able to manage his property and business affairs, then the judgment of the court is to include a direction that the award, whether of land or money or both, shall be unrestricted. In all other cases a restricted award would be called for by the proposed amendments.
If the court comes to the conclusion that the award should be restricted, it is desirable that the restrictions be limited in time and effect. Where the award is of land, the amendments would provide for the issuance of a patent in fee containing a restriction against alienation, without the consent of the United States, for a period of 30 years from the date of approval of the bill, except that if the patentee is an individual native who dies before the expiration of the 30year period, the restriction against alienation would continue only until his death. Where the award is of money, the amendments would provide for the retention of the funds in trust for a like period and with a like exception.
In the interest of public certainty with respect to the staus of propery, it seems to be desirable for any restrictions imposed by authority of the bill to have a uniform final termination date. Hence, the proposed amendments provide that the restrictions shall terminate at the end of 30 years from the effective date of the bill. Taking into account the time that will necessarily elapse prior to the making of any awards under the bill, it is believed that the duration of the proposed 30-year restrictions would not be substantially different from the average duration of the restrictions recommended by the Subcommittee on Territories and Insular Affairs, which would be for a period of not to exceed 25 years from the date of the award. The provision in the amendments whereby any
restrictions upon the land awarded an individual claimant would expire on his death is designed to avoid the heirship problems that have presented so many difficulties in the administration of Indian property in the continental United States. The amendments would also permit the Secretary of the Interior to terminate at any time the restrictions with respect to the lands or money of any specific community of natives or any specific individual native if the Secretary determines that such community or individual native no longer needs the benefits of those restrictions.
In order to develop experience in the management of lands by those communities or persons to whom restricted awards are made, the amendents would permit the owner to lease the lands and any improvements thereon for a period of not more than 5 years and to sell the products of the lands, without regard to any restriction on alienation, unless such lease or sale would involve the disposition of a capital resource, such as a stand of timber or a deposit of minerals. The owner would also be permitted, with the approval of the Secretary of the Interior, to sell, mortgage, lease, or otherwise alienate any lands in a restricted award.
In order to develop experience in the expenditure of money by those communities or persons to whom restricted awards are made, the amendments would provide that one-half of all income accruing on any restricted award of money should be paid over as it accrues to the community or individual native for whom the award is held in trust. The principal of any such award, together with all income not so paid over, would be available, with the approval of the Secretary, for advance to or expenditure on behalf of the community or individual native for whom it is held in trust.
The amendments would place jurisdiction over the probate of the estates of persons holding restricted lands or moneys awarded under the bill in the tribunals having jurisdiction over probate matters in Alaska. This would relieve the Secretary of the Interior from the duty of probating such estates under section 1 of the act of June 25, 1910 (36 Stat. 855), as amended (25 U. S. C., sec. 372). Distribution of estates would be in accordance with the laws of Alaska, but, in order to protect the family of the decedent, approval of wills by the Secretary would be required, and debts incurred by the decedent would be chargeable against the estate only if of the types customarily given priority by law or if incurred with the approval of the Secretary. In the case of restricted awards of land the amendments, by providing for the use of patents in fee containing a restriction on alienation instead of trust patents, would also obviate the necessity for the issuance of new patents upon the termination of the period of restrictions.
I fully agree with the intent of the bill that no new Indian reservations should be created in Alaska under authority of section 2 of the act of May 1, 1936 (49 Stat. 1250; 48 U, S. C., sec. 358a). However, I would question the wisdom of repealing that section in its entirety, because of the problems which such a repeal might raise with respect to the status of the existing reservations. The proposed amendments, therefore, include a prohibition against the use of that section to create new reservations, but do not provide for its repeal.
In addition to these matters of a substantive character, the proposed amendments set forth in the enclosure to this report cover a number of minor points on which clarification, expansion, or implementation of the bill appears desirable.
Finally, I come to the question of what period of time should be imposed as a statute of limitations upon the filing of claims of possessory rights to lands in Alaska. As written, H, R. 1921 provides that within 6 months from the date of its approval, the Secretary of the Interior shall publish a notice that all claims of possessory rights to lands in Alaska must be filed with the Court of Claims within 2 years from the date of such notice. All claims not so filed within the time so specified would be forever barred. The Department has received suggestions from various organizations and persons that these provisions would not afford sufficient time for the employment of counsel by the natives, for a review of the choice of counsel and the fee arrangements by the Department in those cases where the claimant is a community of natives, for an investigation and analysis by the attorney of his client's claim, and for the drafting of a statement of the claim by the attorney and its approval by his client. The suggestions received generally advocate a 5-year statute of limitations, which is the period of time allowed by section 12 of the Indian Claims Commission Act of August 13, 1946 (60 Stat. 1052; 25 U. S. C., sec. 70k) for the filing of claims under that Act. In view of the importance which the natives of Alaska and organizations interested in their welfare appear to attach to this question, your committee may wish
to give special attention to the adequacy of the maximum period of 212 years after the passage of the bill that would be allowed for the filing of claims of possessory rights under the present provisions of H. R. 1921. If this period is lengthened, it might be desirable to provide for a similar lengthening of the 5-year period of exclusive occupancy and use provided for in the portion of the proposed amendments relating to improved lands.
Since I am informed that there is a particular urgency for the submission of the views of the Department, this report, has not been cleared through the Bureau of the Budget and, therefore, no commitment can be made concerning the relationship of the views expressed herein to the program of the President. Sincerely yours,
ORME LEWIS, Assistant Secretary of the Interior.
PROPOSED REVISION OF H. R. 1921
A bill to settle possessory land claims in Alaska Be it enacted by the Senate and House of Representatives of the United States of America in Congress asembled, That this Act may be cited as the “Alaska Native Lands Act”.
DECLARATION OF POLICY SEC. 2. The purpose of this Act is to provide for the settlement of all claims of possessory rights to lands in Alaska, but nothing contained in this Act shall be construed to create, recognize, or deny the validity of any such claim or to affect the substance of the rights claimed or to enlarge their [scope. The] scope, except as otherwise expressly provided in subsection (b) of section 6. Subject to that exception, the purpose of this Act is limited to providing the forum and to establishing the procedure for determining under existing law the validity of any such claims.
SEC. 3. As used in this Act
(a) The term "community of natives” means any clan, village, or other community group of natives of Alaska.
(b) The term “individual claimant” means any individual native of Alaska and any other person, except a community of natives, who claims lands in Alaska under color of possessory rights.
(c) The term “possessory rights” means all rights, if any should exist, which are based upon aboriginal occupancy or title, or upon section 8 of the Act of May 17, 1884 (23 Stat. 24), section 14 of the Act of March 3, 1891 (26 Stat. 1095), or section 27 of the Act of June 6, 1900 (31 Stat. 321 ; 48 U. C., sec. 356), and which have not been confirmed by patent, court decisions, or other valid legal action.
(d) The term “lands” means any lands, [water,] waters, minerals, fisheries, or other natural resources, and any interest therein or improvements thereon, which are claimed under possessory rights or which are otherwise subject to disposition by the United States.
(e) The term "improved lands" means lands in Alaska that have been im-. proved in any manner by a community of natives, or by an individual claimant of possessory rights in such lands, for occupancy or use as towns, villages, building sites, cultivated fields or gardens, hunting or fishing camps, dock or landing sites, business sites, meeting places, missionary stations, burial grounds, or other like purposes, and that have been occupied or used for such purposes by a community of natives, or by an individual claimant of possessory rights in such lands, in a manner which, having in view the physical conditions and customary practices of the locality where the lands are situated, is exclusive throughout the five years immediately preceding the filing of a claim to such lands under this Act.
(f) The term “valid public land claim” means any right, title, interest, or estate, except an interest revocable at will or a claim of possessory rights, acquired or initiated in accordance with the applicable land laws of the United States, including the allotment, homestead, town site, and mining laws, that would be valid under any of those laws in the absence of, or in spite of, a conflicting claim of possessory rights to the same lands,