Mr. FLINT. I don't believe there's any legally compensable damage, Congressman. Mr. SYNAR. So nothing happened when they built this whole- Mr. FLINT. But the fact is that there is no legally compensable damage as a result of that. Mr. SYNAR. "Legally compensable damage," how do you define that? Mr. FLINT. Damage is a legal issue. The question is whether or not there is some activity that is taken on for which there is compensation owed, and if there is, it Mr. SYNAR. Well, let me repeat my question. Legal damage aside, was there damage? Mr. FLINT. There was change in the river as a result of the activity. Mr. SYNAR. OK. Therefore, the tribes' property was damaged; correct? Mr. FLINT. No——— Mr. SYNAR. Legal damages aside, the property was damaged? Mr. FLINT. No, I believe that's what the court decided and the court said no. Mr. SYNAR. No, they said legal damages-I'm talking aboutMr. FLINT. They said on both the legal and fair and honorable dealings ground, Congressman. Mr. SYNAR. All right, forget the doctrine of navigational servitude and constitutional claim. Let me ask you this, Mr. Flint: Has the Government been fair and honorable in their dealings with respect to the tribes in this matter? Mr. FLINT. That was the issue that we tried before the district court in the tenth circuit in which the tenth circuit said yes; said that there was no Mr. SYNAR. Mr. Flint, is it your opinion that the Government acted in good faith and with honor by marching these tribes across the Nation in the late 1800's? Mr. FLINT. That is not the issue that we have before us. Mr. SYNAR. I'm just asking, Mr. Flint, was that fair and honorable dealings Mr. FLINT. Do I approve of that? No. Mr. SYNAR. Mr. Flint, was it fair and honorable dealings that we established this territory called Oklahoma, land of the red man, and gave this to the tribes to never be taken from them and then later it became a State? Is that fair and honorable? Mr. FLINT. Probably not. Mr. SYNAR. Was it fair and honorable that we built this navigational system on fee simple land controlled by the tribes without compensation? Mr. FLINT. The courts have said yes. Mr. SYNAR. OK. You are aware of the Willow Power case, are you not? Mr. FLINT. Yes. Mr. SYNAR. Willow River Power case. How can you justify this position that the Justice Department takes, given the fact that you went to court and changed the position of the Justice Department in order to compensate private landowners when a public works project was built on their property. Department of Justice did that not on the basis of a constitutional claim, but on the basis of fair and honorable dealings with the Government, and yet in this case, where native Americans are involved, you come completely out on the other side? Mr. FLINT. I believe that the position that we have taken in this case is consistent with the position that the Government has always taken. Mr. SYNAR. Well, then how do you square it with the Willow River Power case? Mr. FLINT. I am not familiar with the basic facts of that. Mr. SYNAR. Oh, well, let me share it with you; OK? That's the South Carolina case that has got this whole-"And in non-Indian private property rights, the Reagan and Bush administrations have been extraordinarily aggressive in restricting the exercise of constitutional powers." Executive Order 12630, March 15, 1988. "On March 1, the United States argued to the Supreme Court that the lower court decision upholding the noncompensability of the regulatory action to protect coastal zones should be vacated. In Lucas v. South Carolina Coastal Council, in effect, the United States abandoned the judicial victory for the benefit of the public interest and the environmental protection, in order to expose itself to liability for the benefit of the private citizen." The question is, How could you do it in that case where it was a white person, but in this case where it's native Americans we have a completely different application? Mr. FLINT. I think the statement that you were reading from is inaccurate, because, as a matter of fact, it's the Lucas case, and the United States was not a party to the Lucas case. It's not the Willow Power case. Mr. SYNAR. You're correct on that. Mr. FLINT. And the issue there did not involve any question about the navigable servitude or the authority of the Federal Government with respect to the exercise of that power. Mr. SYNAR. It involved liability because of damage because of the project. Mr. FLINT. No, as a matter of fact, in that particular case, it was a regulatory-taking case Mr. SYNAR. I'm sorry, you're correct. Mr. FLINT. In that particular situation, it was a decision by the State of South Carolina not to permit somebody to construct a house on property that the homeowner owned in South Carolina. Mr. SYNAR. Mr. Flint, I'm having a hard time with this one. I think of all the people in the room, with the exception of the ones who will testify later, I have followed this with greatest interest. Obviously, it's been something more than just a legislative effort by an individual Congressman. I happen to have, obviously, parochial interests, representing these various tribes and also having the largest native American district in the country. That aside, being on the Judiciary Committee, I would probably hold these tribes to a higher standard to meet a test for me to carry the kinds of responsibility and the water on this issue. I am hard-pressed to believe that there have been fair and honorable dealings from day one on this. We have had to fight from day one to even get the Department of the Interior and the Department of Justice to be responsive. It was only after we did the first original legislation, which you mentioned in your testimony, we even got people to the table. As I said in my opening statement, this legislation should not be necessary. It should not be necessary. This should be done and you all should resolve this issue. I don't see how you can express any terms other than legalese and semantics, that the application that this administration is holding up to all the rural people of this country on Federal actions regarding private property rights, is any different than these tribes who will testify later, want for their own individual private property rights. This member is hard-pressed to believe that there's a difference, semantics excepted. I'm really shocked at this because this is not right. You agree that there has never been fair and honorable dealings with these three tribes. The history is clear on that. Why didn't you Mr. FLINT. Mr. Mr. SYNAR. Let me finish. Why can't we finally resolve this once and for all? Mr. FLINT. In 1982, when Congress passed the bill that is the law that this proposal intends to amend. My predecessor, Tony Liotta, came before this committee, or a committee of Congress, and he was queried at length about the Government's position. Mr. Liotta testified that the Government did not believe it had any liability, and the question was: "Well, you have no case in point that establishes that; we're not trying to pass a piece of legislation which says the courts must provide compensation for the tribes. We are trying to pass a piece of legislation which will enable the tribes to have their day in court." We think that that's the process that we have been involved for the past 10 years. The conclusion of the courts at this juncture is consistent with the position that we took before the Congress 10 years ago. It's consistent with the position that was stated by Mr. McIntyre in 1977. This is not a new position on the part of the Department and the Government. Mr. SYNAR. Two final questions, Mr. Chairman. If a private person did what we are saying the Government did to these tribes, would they be liable, Mr. Flint? Mr. FLINT. They would have no authority to do it, and they could be stopped from doing it. Mr. SYNAR. In other words, they would be liable. Then the question, I guess, is: Given the trust responsibility of the Federal Government to these tribes, do you not have some special obligation to go the extra mile to try to solve this problem? Mr. FLINT. Clearly, the Government has the responsibility under the Claims Act to deal appropriately with the tribes. Mr. SYNAR. Fair and honorable. Mr. FLINT. And if it breaches that obligation, it has an obligation to pay. But not every assertion of a breach of that responsibility leads to a determination of liability and the payment of damages. Congress has seen fit to enable tribes to sue the United States in court, and the courts have been the agency which have made that determination. In this particular case, Congressman, the court has determined that there is no responsibility. Mr. SYNAR. Just to put it on the record-who built the project? Mr. FLINT. The United States. Mr. SYNAR. Did anyone else lift a shovel? Mr. FLINT. Not to my knowledge. I don't know, Congressman. Mr. SYNAR. And the Government is the trustee of the tribes? Mr. SYNAR. Well, if the Government's not liable, who's going to be liable? Mr. FLINT. In this case, the courts have said that the Government has no liability. Mr. SYNAR. Who is going to be liable then for this damage? Mr. FLINT. There is no liability. In part, this is the nature of the right that their right is subject to the power of the Government to do what the Government did in this case. Mr. SYNAR. Have you ever been out there? Mr. FLINT. Yes, I have, but it's been many, many, many years and only once. Mr. SYNAR. It's a marvel, isn't it, what they did back in the fifties, isn't it? Mr. FLINT. Well, I really don't have much a recollection. I drove in on my way to Washington, DC, 24 years ago to come to work at the Justice Department. Mr. SYNAR. You're not of any native American blood, are you? Mr. SYNAR. OK. Mr. FLINT. But I will say, Congressman, just for the record, that I established the Indian Resources Section and the Environment in what was then the Lands and Natural Resources Division of the Department of Justice and have litigated Indian issues on behalf of Indian tribes for many years. Mr. FRANK. Mr. Flint, let me just ask you a couple of questions. Mr. FLINT. Surely. Mr. FRANK. You very carefully said to Mr. Synar that there were no legally compensable damages. Was there harm, physical harm? Forget that we're lawyers. Mr. FLINT. The river was clearly changed, Congressman. Mr. FRANK. For the better? Is it a better river after the Mr. FLINT. Congress seems to think so, yes. I mean, they authorized the project. Mr. FRANK. Well, your touching faith I appreciate, that everything we do is right. [Laughter.] Mr. FRANK. But do you think, from the standpoint of native Americans, was there any harm to their interests, any damage? Well, forget damage because that will trigger your legal talk. Was there any harm? Was there any detriment? Mr. FLINT. It changed the river bed. It did not change anything below the subsurface of the river. Mr. FRANK. Good. When someone asks you that question, you can answer. Now answer mine. Mr. FLINT. I'm sorry? Mr. FRANK. When someone asks if there was any change below the subsurface of the river, you can answer that, but I didn't ask you that. I asked you whether Mr. FLINT. I believe I said, Congressman, it changed the surface of the river. Mr. FRANK. Yes. Mr. FLINT. It channelized the river. Mr. FRANK. From the standpoint of the native Americans, was that better or worse, from their standpoint? From the standpoint of the owners? We acknowledge they had ownership rights in that; right? And the Government decided to change it, to change the situation. Mr. FLINT. Subject to using its navigational servitude powers, yes. Mr. FRANK. Yes; right. From the standpoint of the owners, was that change better or worse, from their standpoint? Mr. FLINT. I think they're better able to answer that than I am. Mr. FRANK. I'll ask them, too. But their being better able doesn't mean that you're not able. Mr. FLINT. Well, I say they're obviously before this committee saying no. Mr. FRANK. Well, what do you think? We'd like the benefit of your opinion on this, too. Do you think it was better or worse from their standpoint? Mr. FLINT. I don't know that it made that much difference. Mr. FRANK. Then you think they're just being like hypersensitive and neurotic, and that's why they sue? Mr. FLINT. No. Mr. FRANK. Well, then, I mean-I understand that you have said that we have the legal right to do what we did, and from your position we are legally immune from having to pay for it. But that leaves aside the public policy question: Do you think that they are incorrectly objecting that they had something that was, from their standpoint, less good after than before? Mr. FLINT. I think that this is a complaint that, quite frankly, we hear from people on navigational projects with some frequency, and the courts have uniformly Mr. FRANK. I understand the courts have uniformly said that. Mr. Flint, it's nice to be a lawyer, but don't always be a lawyer. If there's a fire in the house at 2 o'clock in the morning, don't go to the law books; get out of the house. Mr. FLINT. All right. Mr. FRANK. All right. The point I'm asking you now is not whether or not there was legally compensable harm-because, remember, this is not a court. We are not bound by those rules. We have a public policy charge. What I'm trying to get your advice on is: Was there, in fact, some damage suffered by the native American tribes that owned this water, this river bed, damage inflicted not maliciously, but for a greater public good? That's the question I'm asking you. Mr. FLINT. In our opinion, no. Mr. FRANK. No, not legally compensable damage; I'm talking about physical harm. |