In Second, the bill would denigrate the judicial function. keeping with traditional and logical institutional roles, Congress found it appropriate in 1982 to have the courts make the determination of whether there was any basis for federal liability to the Tribes. To set the process in motion, allow it to run its course, and then simply ignore the result and pay money to the Tribes would be an insult to the judicial process, and also to the intentions of an earlier Congress. In addition, it would be in interference in ongoing litigation. While we think it extremely unlikely that the Supreme Court will grant the Tribe's petition for certiorari (or that the Court would rule for the Tribe if it did review the case), the case is still pending and would be directly affected by this legislation. In justification of H.R. 4209, some proponents argue that Congress, when it passed the special jurisdictional act in 1982, presumed that there was federal liability towards the Tribes and intended the courts were only to determine the amount of damages. Under this view, the years of litigation over liability and the navigational servitude were an unintended misadventure, and H.R. 4209 is simply a necessary clarification of Congress's original intent in 1982. This same baseless argument was made in court, where it was 11 flatly and properly rejected. 6 The 1982 jurisdictional act provided that the federal courts were to "hear, determine, and render judgment, under the jurisdictional provisions of the [ICCA], on any claim which the [Tribes] might have against the United States for any and all damages to [specified tribal interests].” In the many cases decided under the jurisdictional grant of the ICCA, the threshold issue was one of federal liability, and there is nothing in the quoted language to indicate that Congress intended something different for the three Tribes. The legislative history also clearly indicates that Congress intended that the Tribes would have to prove federal liability. The Judiciary Committee Report on the 1982 legislation notes that the purpose of the bill was simply to "waive[] the statute of limitations applicable to two claims against the federal government by the Cherokee Nation, the Choctaw Nation and the Chickisaw Nation of Oklahoma. The claims are for damages to tribal assets stemming from the construction of the Arkansas - See Cherokee Nation v. U.S., 937 F.2d 1539, 1547 (10th Cir. 1991) ("The courts were charged under the [1982] statute with determining, not only what compensation (if any) was appropriate, but whether the claims could prevail at all. * * * We agree that Congress intended the Nation to have the full panoply of remedies legal, equitable and moral laid out in the five clauses of the Indian Claims Commission Act. That does not mean, however, that recovery by the Nation was automatically intended. The Cherokee Nation still had the burden of establishing the elements of those claims and, for reasons we have expressed, we must agree with the district court's conclusion that the fair and honorable dealings claim has not been established here.") River Navigation System . . The Report goes on to state that "[t]he Committee does not agree with the view of the Department of the Interior that the doctrine of navigational servitude' necessarily requires that the issue of compensation be resolved in favor of the United States. This issue is appropriate for resolution by the courts." #8 The Report echoes statements made by key members of Congress during hearings on the bill.9 Third, passage of H.R. 4209 would result in the waste of the considerable judicial and litigation resources already expended in resolving the Tribes' claims, and require the expenditure of even further resources to litigate the value of the 'Tribes' socalled damages. As indicated by Executive Order 12778, the Administration is resolved against wasteful, unnecessary civil 7 8 9 H. Rep. No. 453 Part 1, 97th Cong., 2d Sess. 1 (1982). For example, Representative Synar, who introduced the legislation and was active in the hearings, stated, inter alia: [I]f the Government has no liability, the court can so The court would be called upon to hear the case and [C]learly, Congress could settle this claim itself by simply appropriating the funds. * Rather, we simply ask that Congress allow the court to determine the extent of the Government's liability. the court can so rule." If the Government has no liability, (Id. at 6.) 13 litigation. It is difficult to imagine a clearer example of waste than that which would be occasioned by H.R. 4209. Fourth, the bill would be a precedent for other tribes or entities to seek similar special legislation to compensate them for the impacts of navigation improvements which, like those here, are valid exercises of the navigational servitude and thus non-compensable under any theory of liability. Similarly, the bill would be unfair to the many other tribes who brought claims against the United States, under the ICCA or subsequent jurisdictional acts, but were denied payment upon a judicial finding of no legal, equitable or moral culpability by the United States. Without doubt, such unfairness would also lead to attempts by many of these tribes to seek special legislation like H.R. 4209, so they too could be compensated by Congress for claims perceived by them to have been wrongly decided by the Commission or the courts. We strongly oppose legislation that would tend to re-open matters that were to be put finally to rest by the ICCA. And fifth, the bill's funding mechanism is objectionable. The bill provides "that the Secretary of the Treasury shall pay [to the Tribes], out of the money in the Treasury not otherwise appropriated . such sums as shall be determined in valuation proceedings [by the courts].” We are advised by the office of Management and Budget that the interpretation of this arcane language is that the Tribes, once there was a judicial determination of the amount of "damages," would collect that amount directly from the Treasury without further action by Congress. This means the bill is a direct spending measure, subject to the pay-as-you-go requirement of the Budget Enforcement Act of 1990 ("BEA"). The BEA requires that direct spending increases be offset by corresponding decreases, but none are offered in this bill. Alternatively, the bill might be interpreted to allow the Tribes to obtain payment from the Claims and Judgment Fund. Because the Tribes' claims cannot be justified by federal litigation exposure, their payment from the Claims and Judgment Fund would be wholly inappropriate. In keeping with a longstanding policy of this Department, we strongly object to this provision of the bill if its intention is to allow such payments from the Fund. Conclusion For all of the above-mentioned reasons, the Justice Department strongly opposes H.R. 4209. The Attorney General will recommend that the President veto this bill or similar any legislation. 15 |