The Department of Justice, at page 5 of the statement of Anthony J. Liotta filed with the Committee, asserts that the bills constitute "a broad exception to the policy of Congress to bring to a final conclusion all ancient Indian claims." The Department expresses three concerns. First, that as framed the bills do not make clear that the 50¢ per acre value fixed in the adjudicated case by the Court of Claims in the 1930's, may not be reopened. (Statement, p. 7.) Second, that the use of the word "damages" in S. 343, the Fort Berthold bill, might encompass payment for the inflation loss in the value of the dollar. (Statement, p. 7.) Third, that there are three other cases where tribes have had Fifth Amendment taking claims barred by res judicata. (Statement, p. 8, fn. 1.) We answer each of these contentions. 1. The bills do not present a broad exception to the policy of Congress. The policy and intent of Congress in the Indian Claims Commission Act was to afford every tribe its day in court on the merits of the claim. The language of the Act may not be read to thwart this broad remedial objective by strict application of the highly technical and legalistic defense of res judicata, so as to bar tribes from ever having their claims heard on the merits. (See Statement of Marvin J. Sonosky, pp. 8-10.) 2. The Department's "50¢ value point" and the "damage" point are makeweight. The intention of the bills is that the 50¢ value is fixed and may not be reopened. This intent rests on the premise that, although the 50¢ does not rest on any valid basis, there was a hearing on the merits of the value issue. The word "damages" does not appear in S. 1795 and S. 1796. The use of the word in S. 343 is intended to reflect the interest component of just compensation, nothing more. There is no basis to the Department's concern and language changes can be made to satisfy the Department. The proposed amendments to S. 1795 and S. 1796, set out on page 15 of my statement, would dispose of the objection concerning the finality of the 50¢ value. Further, S. 343 can be modified to eliminate the word "damage" and conformed to the language employed in S. 1795 and S. 1796. 3. The three cases cited by the Department of Justice are not candidates for the relief sought by the bills. Whenever an Indian tribe seeks relief from Congress, the Department of Justice raises the specter that to grant such relief would establish a precedent that would result in a horrible economic impact on the budget of the United States. The Department took the same tack here. The Department had to scrape the bottom of the barrel to come up with the three cases cited at page 8, fn. 1 of the Department's statement. Two of the three cases, Pueblo de Pecos and Southern Ute, do not even deal with takings under the Fifth Amendment. In neither of those two cases did the United States take the land. In Pueblo de Pecos the Commission held (8 Ind. Cl. Comm. at 218): "Obviously there was no 'taking' of the lands The Court of Claims affirmed. (152 Ct. Cl. 865 (1961).) Southern Ute involved an 1880 Act claim. The tribe had settled a number of claims with the United States for over $31 million, including claims for land ceded to the United States (400 U.S. at p. 160, fn. 1). The Supreme Court held that the 1880 Act claim fell within the language of the settlement agreement and was not open for relitigation because the tribe had ceded the lands to the United States. In short, as is immediately apparent, neither Pueblo de Pecos nor Southern Ute has anything to do with a Fifth Amendment taking, and therefore has nothing to do with the bills pending before the Committee. Minnesota Chippewa Tribe, the third case cited by the Department, does involve Fifth Amendment taking claims, The Department refers to two claims. The Indian Claims Commission ruled that one claim was barred by res judicata (29 Ind. Cl. Comm. 220-223) and the other by collateral estoppel (idem at 232-235). However, the Commission's rulings are interlocutory, not final. Following transfer of the Minnesota Chippewa case to the Court of Claims, the claimants raised with the Court the correctness of the Commission's earlier rulings. On October 17, 1979 the Court reversed the Commission's collateral estoppel holding (Red Lake Band v. United States, No. 189C) although the Department of Justice, in its anxiety to find some color for its position, makes no mention of this. As to the remaining claim in Minnesota Chippewa, the returns are not yet in. We are awaiting the decision of the Court with respect to the Commission's prior holding of res judicata. In other words, as matters stand, the Department has come up with one possible claim in Minnesota Chippewa analagous to the claims affected by the bills. And whether that claim is res judicata is still open for determination by the Court of Claims. Certainly, there is no validity to the Department's contention that the bills set an unfavorable precedent, or in any way will reopen a myriad of cases. The possibility that there may be four claims instead of the three presented by the bills will not deter Congress from legislating to do justice. In summary we understand that the bills will permit the Tribes to pursue their claims for just compensation, that the 50¢ value fixed by the Court of Claims is binding and not open for relitigation, that the Court's allowance of offsets in the adjudicated cases is not binding, and that the Government will be free to seek the offset of all payments on the claims and all gratuities in accordance with the provisions of the Indian Claims Commission Act. CC: Assiniboine Tribe of the Fort Peck Reservation TABLE A ANALYSIS OF EXPENDITURES REPORTED BY GAO IN ASSINIBOINE TRIBE v. UNITED STATES 77 C. CLS. 347 (1933) (All references are to record (R.) and GAO report in the reported case) 1. 1888 Act consideration Fort Belknap Assiniboine $ 12,794.61 > 23,535.80 R.776; Table 2, p.891 611,112.84 $1,242,796.18 Items 1 and 2 (1,450.00) R.776, Par. 3 232,014.91 See Note 1, annexed d. Ft. B. Assiniboine share of joint exp. 2. 1888 Act consideration Fort Peck Assiniboine b. Ft. Peck Assiniboine share of joint exp. Total 1888 Act consideration to Assiniboine 3. 1896 Act Fort Belknap cession of 400,000 acres c. Ft. B. Assiniboine share of cash |