SENATE BILL 968

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, notwithstanding any other provision of law, if any application made by any Indian, Indian tribe, Indian council, or any band or group of Indians under any law requiring the approval of the Secretary of the Interior or the Commissioner of Indian Affairs of contracts or agreements relating to the employment of legal counsel (including the choice of counsel and the fixing of fees) by any such Indians, tribe, council, band, or group is neither granted nor denied within ninety days following the making of such application, such approval shall be deemed to have been granted.

Virtually all witnesses agreed with the intent of this bill, but a number appeared to have doubts about certain of its mechanics. There was also some question concerning the need for the bill, agreement with its intent notwithstanding.

Solicitor Barry expressed his very firm opposition to lengthy delays in the approval of attorney contracts but stressed that since 1962, with very few exceptions, "approvals have been promptly made." 90 Accordingly, Mr. Barry urged, there is probably no need for S. 968 at present. The testimony of other witnesses, indicating for the most part little or no knowledge of inordinate delays since 1962, would seem to bear the Solicitor out.91

Mr. Barry also noted that the imposition of a time limit on the approval of attorney contracts might result in the disapproval of unobjectional contracts merely to avoid an impending deadline. 92 Commissioner Nash made the same point:

A good many of the contracts that have come to the Area Directors have to be negotiated. There are matters, major or minor, that have to be talked out. I think the establishment of a time limitation, whether it is 90 days, or 120 days, would have the effect of causing the Area Directors to protect themselves by disapproving a contract subject to renegotiation if there is anything wrong with it in their opinion, or anything needed to be renegotiated at the time it came in. I think the practical effect would be the same as what is going on now. 93

Other witnesses, favoring passage of S. 968, also expressed uncertainties about the 90-day limitation. Periods of up to 6 months were suggested as substitutes for the 90-day provision. It was also suggested, as a means of avoiding the inflexibility in any specified time limitation, that the bill be amended to authorize extension of the allotted time period if so requested by the tribe and attorney concerned. 95

Mr. Norman M. Littell, General Counsel for the Navajo Tribe, has been engaged in litigation with the Interior Department and has experienced rather lengthy delays in securing approval for his contracts with his Navajo clients. Though unable to testify because of illness, Mr. Littell suggested in a prepared statement that S. 968 was "highly desirable," but that it should be amended to provide for "expedited administrative appeal" or "access to the Federal court for a declaratory judgment on the adequacy and competency of the particular attorney whose employment has either been disapproved or not approved within the 90 days." 96

90 Id., p. 21.

1 See, e.g., testimony of Lester Oliver, id., p. 208, and Edison Real Bird, id., p. 236.

* Id., p. 40.

#3 Id., p. 43.

4 See, e.g., testimony of Emory Sekaquaptewa, Sr., p. 105, and William Day, id., p. 160; and statements of Leo T. Connor following id., p. 218.

95 See testimony of Arthur Lazarus, p. 68.

* Id., p. 295.

SENATE JOINT RESOLUTION 40

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, in order that the constitutional rights of Indians might be fully protected, the Secretary of the Interior is authorized and directed

to

(a) have the document entitled "Indian Affairs, Laws and Treaties" (Senate Document Numbered 319, volumes 1 and 2, Fifty-eighth Congress) revised and extended to include all treaties, laws, Executive orders, regulations, and other matters relating to Indian affairs in force on July 1, 1964, and to have such revised document printed at the Government Printing Office; and

(b) have prepared an accurate compilation of all of the official opinions, published and unpublished, of the Solicitor of the Department of the Interior relating to Indian affairs rendered by the Solicitor prior to July 1, 1964, and to have such compilation printed as a Government publication at the Government Printing Office.

SEC. 2 There is authorized to be appropriated for carrying out the provisions of this joint resolution, with respect to the preparation but not including printing, such sum as may be necessary.

In general, the reaction of witnesses to Senate Joint Resolution 40 was favorable. Solicitor Barry, however, had certain reservations. Though favoring an updating of "Indian Affairs, Laws and Treaties,' he opposed the inclusion of "regulations, and other matters related to Indian affairs." The regulations are already being kept up to date in 25 CFR, the Solicitor pointed out, while "other matters," he added, "is too vague*** and would permit as much or as little to be included as the compiler might desire." 97 Mr. Barry went on:

We do not recommend that regulations no longer effective be included and we do not recommend that the older volumes be revised and extended to include all the items enumerated in subsection (a). The cost of any such project would far exceed the utility of its product.98

Solicitor Barry was also opposed to the preparation of the compilation of opinions directed in section (b) of Senate Joint Resolution 40. As he stated to the subcommittee:

We recommend against preparation of the compilation described in Subsection (b).

The Bureau of Indian Affairs, is one of the oldest agencies in the United States Government. To compile all of the official opinions published and unpublished of the Solicitor would be a monumental and expensive enterprise. A very large number of the legal opinions rendered by the Department are contained in correspondence, in official communications, and in opinions signed by the Assistant Secretaries, Acting Secretaries, and the Secretary himself. To include only the opinions of the Solicitor, or the chief legal officer of the Department, would exclude all of these other documents, and would exclude documents clearly expressive of legal views of past General Counsels of the Bureau of Indian Affairs."

Other witnesses, including several attorneys with Indian communities as clients, found Senate Joint Resolution 40 eminently desirable. The printed opinions of the Solicitor, the subcommittee was told, are easily accessible, as are the so-called unpublished opinions. But as Mr. Arthur Lazarus, Jr., observed:

The opinions that are very difficult to get at are opinions of the type in the San Carlos case which are only in the file of that particular case, and which any other attorney would not know about. He would not have difficulty finding it because he would not know it existed and, therefore, would not look for it.100

It was Mr. Lazarus' view that this latter form of opinions could be made available through the compilation directed by Senate Joint Resolution 40. Mr. Lazarus also pointed out that at present no index to the unpublished opinions, other than one the individual attorney might prepare for himself, is available. He proposed, accordingly, that Senate Joint Resolution 40 might be amended so as to include as one of the Interior Department's tasks the preparation and publication of such an index.101 Mr. Lazarus suggested, as well, that the Handbook of Federal Indian Law,102 now out of print, be reissued by the Department of the Interior.

The last suggestion relative to Senate Joint Resolution 40 was received from Mr. Norman M. Littell. Mr. Littell asked that Senate Joint Resolution 40 be amended to provide a right of access to correspondence or memorandums bearing on Indian problems in which an attorney may be professionally interested."

101 Statement following id., p. 68.

103

102 U.S. Solicitor for the Department of the Interior, Federal Indian Law (Washington: Government Printing Office, 1958).

103 Statement following id., p. 295.

CONCLUSIONS AND RECOMMENDATIONS

CONCLUSIONS

Responsible and informed testimony, statements filed with the subcommittee, and staff investigations have led the subcommittee to the following conclusions:

1. The historical development of a unique relationship between the Indian communities and the United States has resulted in a situation in which there exists, unfortunately, both the potentiality and the actuality of deprivation of individual rights by tribal governments.

2. Though evidence of the denial of substantive and political rights has been brought to the subcommittee's attention, it is apparent that an Indian citizen's rights are most seriously jeopardized by the tribal government's administration of justice. These denials occur, it is also apparent, not from malice or ill will, or from a desire to do injustice, but from the tribal judges' inexperience, lack of training, and unfamiliarity with the traditions and forms of the American legal system.

3. Besides extending protection to the rights of individual Indians, it is also important that the legitimate interests of the Indian communities in a lawful and peaceable order be recognized. Accordingly, it is essential that provision be made for the trial and punishment of offenses not now dealt with in an adequate manner by tribal authorities.

4. Indian governments do not, of course, bear full responsibility for those denials of rights which have occurred or which in the future may occur. It appears, paradoxically, that the States have also erred, both by failing to prosecute offenses and by assuming civil and criminal jurisdiction when that assumption was clearly against the wishes of the Indian peoples affected. Concurrent jurisdiction by the United States in the first instance and a repeal of Public Law 280, or at least its modification to include tribal consent as a precondition of the State's assumption of jurisdiction, would seem to provide a suitable remedy.

5. Blame for the denial of the rights of Indians must also be assigned, at least in part, to actions of the Government of the United States. In addition to the actions implicit in the foregoing, reference is also made to the delays Indian tribes have experienced in the approval by the Secretary of the Interior of contracts with their attorneys. To the extent that such delays take place, Indian peoples are denied, in a very broad sense, the fundamental right of counsel. To the credit of the Department of the Interior, however, it is apparent that very few such delays have occurred since 1962.

6. The need for adequate and up-to-date research tools in the area of Indian affairs is pronounced. If our Indian citizens are to receive benefits in full measure from their own efforts, as well

as from the activities of their attorneys and of scholars working on their behalf, full and easy access must be had to relevant documentary sources. Instances of out-of-print, out-of-date, and out-of-circulation materials must be corrected.

In short, the subcommittee concludes that situations brought to light in its 1961-63 investigations remain in need of remedy. The subcommittee also retains a conviction in the general validity of the legislation introduced to secure that remedy. Modifications, as proposed below, will only strengthen the position of the American Indian in claiming and defending his constitutional rights.

Finally, it must be said that by charging tribal governments, as well as the governments of the States and the United States, with the responsibility for the denial of rights to either Indian individuals or communities, the subcommittee has no intention of demeaning the very commendable efforts of particular tribes, States, and officials of the United States in securing to Indian citizens the full advantages of adherence to the rule of law. Without making light of the serious grievances held by many Indians, the subcommittee is convinced of the sincere desire of Indian and non-Indian officials alike to do justice as they perceive it. Nor does the subcommittee lay claim to an infallibility of judgment in the recommendations which follow. Its position is essentially that of the House Committee on Indian Affairs, reporting to the 23d Congress in 1834:

The committee are aware of the intrinsic difficulties of the subject-of providing a system of laws and of administration, simple and economical, and, at the same time, efficient and liberal-that shall be suited to the various conditions and relations of those for whose benefit it is intended; and that shall, with a due regard to the rights of our own citizens, meet the just expectations of the country in fulfillment of its proper and assumed obligations to the Indian tribes. Yet, so manifestly defective and inadequate is our present system, that an immediate revision seems to be imperiously demanded. What is now proposed is only an approximation to a perfect system. Much is necessarily left for the present to executive discretion, and still more to future legislation.104

RECOMMENDATIONS

While many objections were heard during the hearings relating to the general nature of S. 961, most witnesses felt that the substance of the bill was essential to the protection of the individual Indian's constitutional rights. Accordingly, the subcommittee believes that S. 961 should be changed in order to indicate in more specific terms the constitutional protections the American Indian possesses in relation to his tribe, and it recommends that portions of the Interior Department's substitute bill be used in lieu of the present wording of S. 961.

The Department of Interior's bill would, in effect, impose upon the Indian governments the same restrictions applicable presently to the Federal and State governments with several notable exceptions, viz, the 15th amendment, certain of the procedural requirements of the 5th, 6th, and 7th amendments, and, in some respects, the equal protection requirement of the 14th amendment.

The subcommittee maintains that one of the most blatant examples of the denial of an Indian's rights is the absence of his right to appeal from an adverse decision of an Indian tribal court; and, where there

104 Quoted in Federal Indian Law, pp. 103-04.