United States Department of the Interior OFFICE OF THE SECRETARY Honorable Walter F. Mondale ΠΟΥ 1 - 1973 President of the Senate Washington, D. C. 20510 Dear Mr. President: There is enclosed a draft bill with the short title, "Indian Judgment Funds Act Amendments of 1979". We recommend that the bill be referred to the appropriate Committee for consideration and that it be enacted. Section 2 of the craft bill would amend section 2 of the Indian Judgment Funds Act (25 U.S.C. 1402). Section 2 of the Act provides for the submission by the Secretary of the Interior to the Congress of plans for the use or distribution of funds appropriated in satisfaction of judgments of the Indian Claims Commission or of the Court of Claims in favor of Indian tribes or groups. That provision calls for the submission of a plan by the Secretary within 180 days after appropriation of the judgment fund. Section 2 of the Act also provides that, if the Secretary is unable to submit a plan within the above 180-day period, the Secretary (or the affected Indian tribes through the Secretary) may either request an extension of up to 90 additional days from the two appropriate Congressional Committees or submit to the Congress proposed legislation and a report thereon, authorizing use or distribution of the funds. Section 2 of the attached draft bill would amend the Act to substitute for the 180-day provision a period of one year; and for the 90-day extension provision a requirement that the Secretary submit a schedule for submission of the plan to the Congress specifying a date by when the Secretary will submit a proposed plan to the Congress if a plan is not submitted within one year. A change in the deadline extension provisions is urgently needed if the Indian Judgment Funds Act method of providing for the use and distribution of judgment funds is to be continued. We had considered the deadline as directory only and that plans could validly be submitted to the Congress after expiration of the deadlines. However, the U.S. District Court for the District of Columbia has ruled otherwise in its July 9, 1979, decision in Seminole Indian Tribe of Florida vs. Andrus (copy attached). Under that ruling (the Seminole Tribe has appealed all aspects of the decision except the one involving the deadline) we cannot submit plans to the Congress after the deadline in the Act has been passed. Plans are in various stages of preparation for approximately 60 awards; however, funds for most of those awards were appropriated more than six months ago and under the ruling in the Seminole decision it is not likely that plans for more than one or two of such awards could be submitted to the Congress under the current provisions of the Act. It would be necessary for the Congress to enact authorizing legislation for the distribution of those awards if the Indian Judgment Funds Act is not amended in a manner such as proposed in section 2 of the enclosed draft bill. To date 62 plans have been submitted to the Congress and none has been disapproved by the Congress. Except for the three most recent submissions, not one plan met the 180-day deadline and not one met a further deadline when a 90-day extension was granted. One reason for this situation was the large number of awards for which there was no enabling legislation introduced during the period in which the Congress and the Department awaited the passage of the Indian Judgment Funds bill, and then the finalizing of implementing regulations. However, we have found that even given ideal conditions such as a single, organized beneficiary tribe being involved, with a governing body eager to develop a proposal for the actual utilization of the funds, it has not 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 ordinarily possible. The principal problems encountered, particularly when more than one tribal entity is involved, are (1) completing research within a few months to identify beneficiary tribes and groups and developing a formula for the division of the funds, and (2) working with the same beneficiary tribes in developing and processing tribal proposals for the actual utilization of their anticipated shares. Assuming questions of division of the funds are resolved in a relatively short time, which is rarely the case, tribes usually experience considerable difficulty in creating proposals suitable for a Hearing of Record required by the Act. We have been very consistent with the spirit of the law, and the policy of Indian self-determination, in not holding 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 funds committees to discuss their proposals at community and general meetings before submission to the Secretary. The amendments in Section 2 of the draft bill do not include provision for the Secretary to submit proposed legislation in lieu of a plan. We have encountered considerable difficulty in handling many of the above cited 50 plus cases, and many of those which were brought to completion prior to the 1973 Act. We do not believe that any of these situations could have been alleviated via the legislative route. We do, however, in section 4(b) of our draft bill, recommend an amendment to section 5(b) of the Act to the effect that upon disapproval by the Congress of a plan the disposition of the judgment funds be subject to legislation. Such legislation could be sought by any of the affected tribes or groups or by the Secretary. Section 3 of the draft would amend the current requirements in section 3(b) of the Act that "not less than 20 per centum" of the funds under a plan shall be programmed for common tribal needs (and thereby not be available for per capita distribution) "unless the Secretary determines that the particular circumstances of the pertinent Indian tribe clearly warrant otherwise". Our amendment would make clear that the provision is only applicable to tribes which are federally recognized. The amendment would also expressly provide that the funds may be set aside for programming or may be invested for eventual programming. Section 3 of the draft bill would also remove the authority of the Secretary to include a provision for less than a 20 percent programming of funds in a plan to which the programming requirement is applicable. It is our view that the current provision in section 3(b)(5) of the Act, which authorizes the Secretary to submit a plan with less than 20 percent of the funds programmed, does not provide adequate standards upon which the Secretary's determination can be based. We believe that in situations where a tribal governing body recommends less than 20 percent programming it would be appropriate for the Congress to consider the disapproval of a plan. If disapproved, the Congress could then consider the tribe's views in conjunction with legislation proposed by the tribe or the Secretary. Finally, the amendment in section 3 of the draft bill makes clear that minority Indian interests refers to a minority or faction within an organized tribe. Section 4 of the draft bill amends section 5 of the Act to provide specificaLy for the amendment or withdrawal of submitted plans prior to their effective date. These provisions (except for withdrawal) would also apply to schedules submitted by the Secretary when the one year requirement in section 2 of the Act cannot be met. Section 5 of the draft bill would add two new sections to the Act. The new section 8 would authorize the Secretary to provide in a plan that part or all of the cost of preparing a roll for a per capita distribution of funds called for in the plan may be paid from the funds which are the subject of the plan. This authority is needed, for instance, in cases of large per capita distributions where the workload and costs cannot be absorbed within our available staff and budget. Similar authority has been provided by the Congress in the past in connection with legislation authorizing per capita distributions of judgment funds. See, for example, section 10 of the Act of October 14, 1966 (80 Stat. 910; 25 U.S.C. 1120), relating to judgment funds for the Miami Indians. The Office of Management and Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's program. A BILL To amend the Act of October 19, 1973 (87 Stat. 466), relating to the use or distribution of certain judgment funds awarded by the Indian Claims Commission or the Court of Claims, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Indian Judgment Funds Act Amendments of 1979". Sec. 2. Section 2 of said Act is amended to read as follows: "(a) Within one year after the appropriation of funds (including appropriation pursuant to section 1302 of the Supplemental Appropriation Act, 1957, as amended (31 U.S.C.724a)) to pay a judgment of the Indian Claims Commission or the Court of Claims to any Indian tribe, the Secretary shall prepare and submit to the Congress a plan for the use and distribution of the funds. Such plan shall include the identification of the present-day beneficiaries, a formula for the division of the funds among two or more beneficiary entities if such is warranted, and a proposal for the use and distribution of the funds. The Secretary shall simultaneously submit a copy of such plan to the governing body or official representative of each affected tribe or group." |