1 2 3 4 5 6 4 (I) by striking "said Cherokee Nation in fee simple" and inserting in lieu thereof the fol Mr. FRANK. We'll invite Mr. Synar to sit with us. We'd ask the witnesses on H.R. 4209 to come forward. We will first hear Mr. Myles Flint. But before that, we will have a statement from Mr. Synar. STATEMENT OF HON. MIKE SYNAR, A REPRESENTATIVE IN Mr. SYNAR. First of all, let me thank you very much for holding this hearing in this expeditious way. This situation is a long and tragic affair. It an embarrassing chapter of our Nation's history regarding the treatment of our native people. I've been involved in this issue since 1982, and we're still trying to get justice done. Frankly, I'm disappointed that legislation is even necessary. The Government continues to maintain that even though they took property of the tribe, that they shouldn't pay damages. This thinking flies right in the face and is contrary to our notion of property ownership and contrary to this own administration's support of private property rights. The tribes deserve compensation, and H.R. 4209 will permit the tribes to go to court to litigate the question of damages. The bill does not negate the doctrine of navigational servitude. I appreciate the opportunity to have this considered by this subcommittee. Mr. FRANK. Thank you. The gentleman has been very diligent in bringing this to our attention. I know this is a very real concern to Mr. Synar. I think the people involved are fortunate that he's a member of the Judiciary Committee because that gives him a chance to bring his very serious concerns and talents to bear. We will put into the record, without objection, the statement by the Department of the Interior. [The prepared statement of Mr. Matheson follows:] STATEMENT OF DAVID MATHESON, DEPUTY COMMISSIONER OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, BEFORE THE HOUSE JUDICIARY SUBCOMMITTEE ON ADMINISTRATIVE LAW AND GOVERNMENTAL RELATIONS, ON H.R. 4209, A BILL TO AMEND THE ACT ENTITLED "AN ACT CONFERRING JURISDICTION ON CERTAIN COURTS OF THE UNITED STATES TO HEAR AND RENDER JUDGEMENT IN CONNECTION WITH CERTAIN CLAIMS OF THE CHEROKEE NATION OF OKLAHOMA", APPROVED DECEMBER 23, 1982. April 1, 1992 Mr. Chairman and Members of the Committee, I submit, on behalf of the Department of the Interior, its view on H.R. 4209, a bill to amend the Act entitled "An Act conferring jurisdiction on certain courts of the United States to hear and render judgement in connection with certain claims of the Cherokee Nation of Oklahoma", approved December 23, 1982. As the issues involved in this legislation are the subject of pending litigation, we defer to the Department of Justice for the Administration's position on H.R. 4209. We are sympathetic to the Cherokee, Chickasaw and Choctaw Nations' attempts to settle this longstanding question. However, the federal courts have ruled that the construction in question provided no basis for legal, equitable or moral claims against the United States by the three tribes. This concludes my prepared statement. I am ready to answer any questions the Committee may have. Mr. FRANK. We will hear first from Myles Flint, who is the Deputy Assistant Attorney General for the Environment and Natural Resources Division. General, please go ahead. STATEMENT OF MYLES E. FLINT, DEPUTY ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE Mr. FLINT. Thank you very much, Mr. Chairman. I believe my comments, my written remarks, have been supplied. Mr. FRANK. Without objection, they are part of the record. I will only make a brief statement summarizing a couple of points. I am Myles Flint. I am Deputy Assistant Attorney General in the Environment and Natural Resources Division of the Department of Justice. I am pleased for the opportunity to appear here today. My understanding is that the timing of this hearing was rescheduled in part because of my inability to appear next week, and I appreciate the opportunity to be here. I am here today to testify against the proposal H.R. 4209, which is being considered by the committee. Ten years ago almost, my predecessor, Tony Liotta, appeared before this committee in opposition to a bill that was then being considered by the committee which the committee is now considering amending. At that time, the Department of Justice commented that it did not believe that the 1982 legislation was necessary because it was the belief of the United States that it had no obligation, legal or otherwise, in which to compensate the Cherokee Tribe and the two other tribes that are involved. Despite the opposition of the Department of Justice at that time, Congress passed legislation which enabled the Cherokee Tribe to bring suit against the United States in which it could pursue any claims that it would have, either legal or under the fair and honorable dealings clause of the Indian Claims Commission claims act. Since 1982, the Government and the tribe have been involved in litigation. That litigation has led to a decision by the U.S. Supreme Court that the United States had no obligation to compensate the tribe for the exercise of its powers under the navigational servitude. In addition, after remand from the Supreme Court of the United States on the legal issue, there has been a trial and a proceeding in the district court which has led to an appeal in the Tenth Circuit Court of Appeals, on the issue of whether or not the Government has a moral or fair and honorable dealings kind of obligation to compensate the tribe for the construction of the McClellan-Kerr Navigation Project on the Arkansas River. The decision of the tenth circuit, which was issued last year, and subsequently modified in part on the basis of a motion for reconsideration filed by the tribe, was that the United States had no obligation to pay the tribe compensation under the fair and honorable dealings clause. We believe that the purpose of the 1982 act was to permit the tribe to try its claims before the court to get a judicial declaration as to whether or not it was entitled to compensation and, if so, then it would be able to proceed with presentation of its damage claim. We believe that that has been accomplished here. I'm sure that the committee is aware that the tribe has filed a petition for certiorari from the recent decision of the tenth circuit on the fair and honorable dealings claim, and the court has not yet responded to that petition. The United States has not yet responded to that petition for certiorari. However, I think that, given the strength of the statements that were made by the district court on that proceeding and the court of appeals, that the Government feels very strongly as to the legitimacy of its position. This bill would permit the tribes to go back to a court and proceed to present not any issues with respect to liability, but issues as to how much the Government-what damages the United States was obligated to pay to the tribe without any liability having been determined. We think that, given the status of the law, the pronouncements by the courts on this issue, the issues that are the topic of this legislation, that this would result in a gratuity having been given to the tribe. We think that it essentially denigrates the process that we've been involved in for the past 10 years in the judicial system. We think that it involves giving preferential treatment to the tribes that are here involved, and we think that it presents an issue where-and I've been involved in the Indian business and Indian legal issues for some substantial period of timeit would establish a precedent which would lead to other similar matters being brought before this committee or to the courts at a later time. Furthermore, it is our view that, as the bill is currently before the committee, it appears to circumvent the appropriations process and provides a mechanism where, if the court determines that there is money or a sum of money due and owing by the United States, that the moneys would be paid out of the Treasury without any appropriation. In light of the Government's strong objections to the legislation, I have been authorized to state that the Attorney General would recommend veto of this piece of legislation. Mr. FRANK. Thank you, Mr. Flint. [The prepared statement of Mr. Flint follows:] |