Secretary is unable, within a year, to send up a plan, he may send up schedule indicating when compliance will be forthcoming.

We believe this will give the tribes adequate time to come up with i plan and would allow for those cases where the tribes are just not ready to come up with a plan within a year.

Those are the highlights of my statement. I would ask that my complete statement be inserted in the record at this point.

Senator HATFIELD. Thank you. Without objection, so ordered. [The statement follows:]

PREPARED STATEMENT OF RALPH R. REESER, ACTING DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DepartmENT OF THE INTERIOR

Mr. Chairman and Members of the Committee, I am pleased to have this opportunity to present the views of the Department of the Interior on the implementation of the Indian Judgment Funds Act of 1973.

Prior to the passage of the Indian Judgment Funds Act of 1973 Indian awards determined by the Indian Claims Commission and the United States Court of Claims were disposed of by authorizing legislation enacted into law for each individual award. The process was time-consuming with limited Indian input at the scheduled hearings in Washington. As Senator Abourezk commented at the time, it "imposes an undue burden on the Senate Interior and Insular Affairs Committee and limits the Committee's capacity to address its energies and resources to the substantive issues in the Indian field." He went on to comment regarding the sheer volume of Indian judgments that "the processing of specific judgment bills during the 92nd Congress accounted for 50 percent of the Committee's legislative workload on Indian-related measures." For instance, from 1955 through 1972 the Bureau sent some 95 proposed bills involving 170 claims dockets with awards totalling $370 million to the Congress. Legislation, which became the Indian Judgment Funds Act of 1973, was introduced as an alternative method for processing the increasing number of judgment awards.

The 1973 Act basically provided that within 180 days of the appropriation of an award the Secretary of the Interior, after consultation with the tribes or groups involved through public hearings of record, would submit a proposed Secretarial plan to the Congress for the use and disposition of these funds. A possible 90-day extension was provided for.

At the hearings held on the proposed legislation it was indicated that the primary motive for the time limit was to prevent the Department from becoming dilatory. Some question was raised by Jerry Straus, an attorney representing the National Congress of American Indians as well as various individual tribes, that the time period might be too short. He, too, did not want the Secretary to be dilatory but felt that extensions at the request of the affected Indian groups should be granted and that the Bureau should be required to take additional time if the tribe desired it.

By January 15, 1974, regulations governing the Act of October 19, 1973, were published in the Federal Register after a request for written comments and a public hearing in Denver. Bureau personnel were trained on the procedures to be used. While awaiting the passage of the 1973 Act a backlog of some 26 awards had accrued. It soon became evident that the time limits in the 1973 Act were unrealistic if we were to accomplish the end results desired. On January 15, 1976, Congressman Lloyd Meeds, Chairman of the House Indian Affairs Subcommittee stated in a letter to the Secretary of the Interior:

"The Indian Judgment Funds Distribution Act has now been in effect for over two years. While the Committee has been quite lenient with the Department's lack of compliance with the time limits required by the law, and while the Committee realizes that matters beyond the control of the Secretary. . . will often prevent the timely development of distribution proposals, the Committee feels strongly that the Act should be amended to allow for such complications."

He went on the request "an early submissal to the Congress of draft legislation amending and perfecting" the 1973 Act. Draft legislation was not cleared for Congressional consideration until this past year.

In the meantime some 57 plans were submitted to the Congress, none of which were disapproved by the Congress, but none met the 180-day deadline and none met a further deadline when a 90-day extension had been granted. On July 9

1979, the U.S. District Court for the District of Columbia ruled that the dese lines in judgment fund plans were not directive but mandatory and specs legislation was required to legalize those plans already adopted. Such legislacion was enacted as Public Law 96-194 for all but two plans, which were involved in litigation.

At the present time there are some 30 judgment awards which have now exceeded the time requirements of the 1973 Act and for which we will have to forward to the Congress separate pieces of proposed legislation if the 1973 Art å not amended to permit the submission of plans.

Obviously, many problems have been encountered in carrying out the provisions of the 1973 Act. Basically, we have found that even given ideal conditions such as a single, organized beneficiary tribe with a governing body eager ta develop a proposal for the utilization of the funds, it has not usually been possible to meet the statutory deadline. With awards involving two or more beneficiary tribes or groups, and sometimes combinations of organized tribes and descendant entities, it is clear that meeting such deadlines is not possible.

We have found that public hearings of record in the field have little meaning without careful preliminary planning and widespread dissemination among the concerned Indians of possible choices open to them. There is tribal resentment of imposed deadlines, particularly if there has been a recent change through elections in the make-up of the tribal council.

There has been an increased tendency to resort to law suits, particularly when there are inter-tribal disputes over the decisions as to who shares in these awards or as to the proper division of these funds between two or more groups.

Two additional problems have developed over the past decade that could not have been fully anticipated at the time of the hearings on the 1973 Act. There has been developing a strong commitment to Indian "self determination" in programs affecting the tribes. There are no programs in which the BIA is involved that Indian people feel are more their own than the use and distribution of judg ment awards. The BIA has concentrated upon the development of sound Secretarial plans with full Indian input rather than a rigid adherence to time tables. There has also been a growing minority resistance among certain Indiaa tribes, based partly upon court actions taken with the Passamoquoddy and Penobscot in Maine, urging that their claims be settled through the return of land rather than money.

Finally, as various claims under the 1946 Indian Claims Commission Act have reached the point of conclusion, we are now dealing with more complicated awards involving larger sums of money and two or more tribal groups.

We have been very consistent with the spirit of the law and the policy of Indian self-determination, in not holding the required hearings of record until a suitable tribal proposal has been submitted and reviewed. In the same vein we also encourage tribal governing bodies and judgment fund committees to discuss their proposals at community and general meetings before submission to the Secretary. We prefer to continue to operate on this basis but are unable to do so without amending the 1973 Act or submitting individual legislative proposals for each award. Our recommendations in this regard were submitted to the President of the Senate on November 1, 1979.

Our proposed amendments would provide a full year after appropriation of the judgment funds for the submission of a Secretarial plan. They also provide that if the Secretary is unable within a year to submit a plan he may submit a schedule indicating when compliance would be forthcoming. A new section recommends allowing a part or all of the cost of roll preparation to be paid from the judgment funds. This authority is needed for instances such as a large per capita distribution where the workload and costs cannot be absorbed within our available staff and budget.

It is in all our interests that these funds move as rapidly as possible to the proper beneficiaries and that the use of these funds be carefully worked out for the greatest benefit of the Indian recipients. We feel that the proposed amendments would accomplish this purpose.

This concludes my prepared statement and I will be pleased to respond to any questions the Committee may have.

Senator HATFIELD. Let me ask one question for the record. Section 5 of the administration's bill would add a new section 8 which provides for the costs of development of distribution. Those would be charged to the award.

Is not this contrary to the general policy that has been followed in he past? Other than perhaps saving the Government money by harging costs to the injured party, is there any purpose which would e served by allowing the Interior Department to utilize funds apropriated in the satisfaction of these awards?

Or, possibly these funds could be reimbursed in the following ppropriation period for that fiscal year; is that correct?

Mr. REESER. A reimbursement scheme would certainly be feasible. You are right. It is not the general rule that the judgment awards are tapped for the cost of the distribution. It would be the exception. There have been some judgment distribution bills passed by the Congress prior to the 1973 act which did authorize that. What would happen in those cases is that we would use our regular budget to the extent we could, and if that was not adequate, then we would tap the judgment funds for the balance of the cost.

The problem has been one in the budget-planning process. The lead time for budgeting to increase staff to handle a sudden large distribution is such that it would require the tribes to wait probably an extra year or two for the distribution if we had to go through the regular budget cycle to get their money.

The language in our proposal would let us use that money right

away.

Your idea of a later reimbursement of the Snyder Act, I guess, would be the basis for that. It sounds like a fair way to handle it. Senator HATFIELD. We have precedent in the Forest Service. We cannot predict what kind of forest fires are going to break out on the Federal forest lands, so forest fire costs are reimbursable in the fiscal year following the fire.

G

Mr. REESER. We have a similar thing within our budget where we have to get extra money each year for fires. Senator HATFIELD. Thank you.

We will now invite Marvin Sonosky to be our next witness.

Mr. Sonosky is a partner in the law firm of Sonosky, Chambers & Sachse.

Welcome. You may proceed.

STATEMENT OF MARVIN J. SONOSKY, ATTORNEY, SONOSKY, CHAMBERS, & SACHSE

Mr. SONOSKY. Thank you, Mr. Chairman.

Mr. Chairman, my name is Marvin J. Sonosky. I am a partner in the law firm of Sonosky, Chambers & Sachse.

I appear here this morning on behalf of tribal clients whom we represent in claims cases. I appreciate this opportunity to express our views with respect to the proposed draft bill that has been submitted by the Department of the Interior.

Our primary concern is that what the Secretary has done here-and I might say, Mr. Chairman, I am not going to read my statement. I will try to spell out my major points.

I would ask that my statement be inserted in the record at this point. Senator HATFIELD. Without objection, it will be included at the end of your testimony...

Mr. SONOSKY. The primary concern that we have with the drafted bill is, that without telling the committee, and without explaining

it in letter, and without setting it out in their section-by-section analysis, they have slipped into this drafted bill a provision that would let the Secretary of the Interior divide the tribal awards between two or more competing segments.

For example, where you have the Indian Claims Commission, now the court of claims grants awards to the land-owning treaty-signing entity.

There are many tribes that no longer exist in the same form that they did when they signed the treaty. A good example is the Sioux Nation: the Sisseton and Wahpeton Sioux Tribes now divided into the Sisseton and Wahpeton Tribes of North Dakota and the Sisseton and Wahpeton Sioux Tribes of South Dakota; or the Medawakanton and Wahpakoota Tribes, now divided into the Santee Sioux of Nebraska. the Flandreau Santee Sioux, the Lower Sioux Indian Community and the Prairie Island Indian Community of Minnesota.

The Sioux Nation signed a treaty. Then these tribes were divided and disbursed so that today for the Sioux Nation we go to eight tribes. Then for the Sisseton and Wahpeton Tribes we go to three tribes.

So, we have a problem, then, of allocating the award between two. In our view, the award for the land stands on the same footing as the land itself. The award is the substitute for the land.

The policy of Congress ever since the beginning of this Government has been that tribal land may not be alienated without the consent of Congress.

The same thing attaches to the money that stands in lieu of the land. The Secretary has never undertaken to divide an Indian award between two competing entities without the consent of both. He has never done it.

He may have made a division within a tribe, but not within two competing entities, separate tribal entities.

Now, he is undertaking to get that authority through this proposed draft without even mentioning in his letter, or section-by section analysis that that is what he is doing.

We very much oppose charging Indian tribes the cost of preparing the distribution.

Let me tell you that Indian tribes would shudder to think that the Bureau of Indian Affairs had at their disposal an award that they could use, as they deem necessary, to prepare distributions. They would never end.

I represented a tribe where I got an award in 1967. They are still waiting for their money. God help us if a tribe had been paying for it. I do not know how much longer it would take. This was the Bureau paying for it. That is the Santee Sioux Tribe of Nebraska-from 1967 to 1980, that is 13 years. I talked with the chairman last week. They still have not gotten their money.

Senator HATFIELD. Excuse me; let me interrupt you and ask you a question.

Mr. SONOSKY. Certainly.

Senator HATFIELD. I am sorry, but the majority leaders have decided to call up the draft registration bill at this moment on the floor when we had planned it for 12:30 p.m. So, it cuts me short here. Let me go back to the question you raised about the power and the authority of the Secretary to make these awards.

Would this meet the issue, as you have raised it, if the bill should require the Secretary to submit legislation which would then require an affirmative act of Congress?

Mr. SONOSKY. Yes. Our position on that is this.

No plan should be submitted to Congress unless the tribes agree. If the tribes disagree, then the Secretary should submit proposed legislation. That is the existing law. That should be continued.

That was the intent from the beginning. I have attached to my written statement a list of the statutes. The chairman will see that this committee did not surrender its supervision and desire to handle these matters. What it was asking for was administrative aid.

It became a burden on the committee. What the Interior witness forgot to mention was the same committee report made clear the committee was concerned it was a delay on the Indians. That is why they gave the Secretary 6 months and another extension of 90 days. That was because if he could not do it in a short time, they were saying: "Then bring it back to us and we will do it."

Now the Secretary has forgotten all of that. It is a matter of administrative expediency with him to see how much time he is going to need to do the job. There is no amount of time you can specify in a statute that he is going to need to do his job.

You have to put some pressure on him. If the tribes do not agree— and in 80 percent of the cases they do agree-and he gets a plan, he brings it up here and it is done.

The other 20 percent should stay with Congress.

Senator HATFIELD. We thank you for your testimony. You were succinct and to the point.

[The prepared statement follows:]

PREPARED STATEMENT OF MARVIN J. SONOSKY

Mr. Chairman, my name is Marvin J. Sonosky. I am a partner in the law firm of Sonosky, Chambers & Sachse in Washington, D.C. I appear here to testify on behalf of tribal clients whom we represent in claims cases, in general opposition to the draft bill to amend the Distribution of Judgment Funds Act submitted by the Department of the Interior with its letter of November 1, 1979.

My objections go to four major points:

1. The draft would vest the Secretary with the power to divide an award between two or more competing tribal entities without the consent of the affected tribes. This would be accomplished by the Secretary's new Section 2a. That new section specifies that: "Such plan shall include *** a formula for the division of the funds among two or more beneficiary entities if such is warranted." In other words, without tribal consent, the Secretary would divide the award as he pleased, put that division formula in the plan and send it to Congress. If the tribes were dissatisfied all they would have to do is get both the Senate and the House to veto the plan and do it within the 60-day legislative layover period. A formidable burden for the Secretary to lay on his tribal wards.

The present law is silent on granting so broad a power to the Secretary. Except in the Seminole case, the Secretary never has divided an award between competing tribes without the consent of the affected tribes. And the division in Seminole never came to pass because the Secretary was late in filing the plan with Congress. Even though this proposed amendment would be the paramount substantive change in existing law, the Secretary does not plainly disclose to the Committee that he is asking for this new power. The Secretary is mute on this most revolutionary change in the law he proposes. The Secretary's letter does not point to the proposed change. His section-by-section analysis of the proposed bill is silent on this unprecedented assumption of power. The provision simply is slipped into Section 2.

I do not propose here to argue the point that the Secretary has no more power to divide tribal awards that stand in lieu of the lands than he has to divide tribal