Remarks by Michael D. Jackson
Senior Associate, Will & Carlson, Inc.
July 23, 2001

My purpose today is to provide you with a very brief summary of past efforts to settle Indian land and water claims and a summary of pending claims.

This information is context for understanding why legislation is necessary to correct what Senator Domenici has described as "a flaw in the Budget Enforcement Act as it relates to the funding of Indian land and water settlements".

First, a little history: Indian claims have their origins in the United States’ policy of seeking to acquire tribal lands by legal means, primarily treaty-making, rather than by conquest and confiscation.

Altogether, the United States entered into more than 800 treaties with tribes, and Congress ratified 370 of them.

By 1900, in what has been called the largest real estate transaction in history, the United States had purchased 95 percent of its public domain – nearly two billion acres of land -- from tribes for an estimated $800 million in 19^th century dollars.

However, the United States also violated the terms of every treaty it signed with tribes, and frustrated tribes’ attempts to secure enforcement of treaty provisions or to obtain compensation for damages for injuries and injustices done to them by the United States.

In 1831, the Cherokee Nation was the first tribe to seek legal redress from the United States by going directly to the U.S. Supreme Court. However, the Court held that tribes were neither states nor nations as defined in the Constitution, and thus didn’t qualify to bring a claim under the Court’s original jurisdiction.

In 1855, Congress established the U.S. Court of Claims, and several tribes brought suit against the United States for treaty violations. However, in 1863, before the Court had ruled on any of these claims, Congress amended the Court’s enabling Act to exclude tribal claims.

Finally, in 1881, the Choctaw Nation succeeded in persuading Congress to pass the first special jurisdictional Act allowing a tribe to sue the United States in the Court of Claims.

Over the next 64 years, Congress enacted similar jurisdictional statutes under which tribes filed more than 240 claims before the Court. However, all but 46 of these claims were dismissed, typically for technicalities having to do with the varying language of the statutes. The total of the amounts awarded to successful claimants was about $200 million.

In 1946, Congress established the Indian Claims Commission, before which tribes filed more than 600 claims, mostly dealing with the under-evaluation of lands transferred to the United States by treaty, the failure of the United States to abide by treaty provisions, and the mismanagement of tribal assets by the United States.

By 1978, when the Commission expired, it had awarded judgments to Indian claimants in more than 60 percent of the cases, in amounts totaling about $800 million.

In 1971, Congress enacted the Alaska Native Claims Settlement Act. This largest of land claims settlements provided Alaska Natives $965 million, appropriated over ten years, together with rights to 44 million acres of land.

Congress subsequently enacted legislation to settle land claims based on violations of Federal law that requires the consent of the United States to the sale or transfer of Indian land to third parties. These settlements for tribes in Maine, Rhode Island, Massachusetts, Connecticut, South Carolina and Washington together authorized Federal payments of more than $200 million.

Indian water rights claims have their origins in the legal doctrine which holds that the United States reserved water necessary to fulfill the purposes of a reservation at the time of its creation.

In the latter part of the 20^th century, the United States found itself representing tribal as well as its own interests in various state court proceedings to determine the respective rights of all water users in particular watersheds.

For the past 30 years, successive Congresses and Administrations have consistently embraced a policy of supporting negotiation and settlement, rather than litigation of Indian water rights claims.

The fundamental basis for this policy remains unchanged: litigation can take decades, can be extremely costly, and can produce highly unsatisfactory outcomes.

By contrast, negotiated settlements can benefit not only tribes, but also States, local governments, miners, farmers, ranchers, and other interests.

For the United States, negotiated settlements are a means to fulfill its legal and moral obligations as trustee for tribes.

For tribes, settlements are necessary to secure reliable, long-term water supplies that are essential to their survival, and, in many cases, to obtain funding to assist in developing their reservation economies.

For states, local governments and others who are exposed to legal liability or are otherwise affected by Indian claims, settlements can remove the cloud of litigation and provide certainty with respect to water or land rights.

For these and other reasons, the policy of seeking negotiated settlements of Indian land and water rights claims is clearly in the public interest.

Over the past 25 years, Congress has enacted more than 20 statutes authorizing amounts totaling more than $1 billion to pay the Federal share of negotiated settlements of the water rights claims of some 30 tribes.

Over the past 10 years, Congress also has enacted settlement legislation providing about $1 billion in additional compensation to tribes on the Missouri River whose lands were flooded by Federal dams.

The sum of all of these Federal appropriations for Indian land and water settlements, over the past 120 years, without any adjustments for changes in the value of the dollar, is a very approximate $6 billion.

Whether this number seems fair or not depends on your point of view. In any case, from the tribal perspective, no amount of money can ever adequately compensate for the loss of access to ancestral homelands, sacred areas, and a way of life associated with boundless land and free-flowing waters.

Efforts to reduce the number of remaining unresolved land and water rights claims, by negotiation as well as by litigation, are ongoing. As of April of this year, the Department of the Interior, under the direction of staff in the Office of the Secretary, had 17 teams working on settlements involving more than fifty tribes. The Department also had thirteen teams working on implementing existing settlements and four teams assessing claims for future negotiations.

Typically, these Federal teams are comprised of representatives from the Bureau of Indian Affairs, the Bureau of Reclamation, the Fish and Wildlife Service, the Solicitor’s Office, and the Department of Justice.

It is impossible to predict with any certainty whether or when any particular negotiation is going to produce an agreement. Each negotiation embodies a unique interplay of historical, geographic, legal, political, personality and other factors that together influence its course.

Similar variable factors affect the process by which settlement legislation is drafted, enacted and funded by Congress and implemented by the Executive Branch.

Although no settlement proposals have yet been introduced in the 107^th Congress, it is likely that some will be. If enacted, however, their impact on the budget would not likely be felt until Fiscal Years 2003 or 2004.

For 120 years the United States has attempted to fulfill its legal and moral obligation to resolve Indian land and water claims. As noted, these efforts to date have resulted in nearly all of the land claims as well as a significant number of water claims having been settled.

The universe of remaining unresolved claims includes a handful of land claims, mostly in New York, and more than fifty tribal water claims in states including Arizona, New Mexico, California, Montana, and Idaho.

How long it will take to complete resolution of all of them is impossible to predict with any precision. However, if we assume that most of the existing negotiations eventually will lead to settlements, and that future Congresses are each able to enact two or three settlements, then completing this process will take at least another twenty years.

One can only guess how much the United States would pay as its fair share of these settlements. Given the size and number of the remaining claims, a good guess is probably somewhere between one and three billion dollars.

In its proposed Fiscal Year 2002 budget for the Department of the Interior, the Administration proposed appropriation of $61.9 million for payments to meet Federal obligations in six legislated land and water settlements and a court-decreed fishing settlement.

Historically, appropriations to pay claims judgment awards to tribes by the Court of Claims and Indian Claims Commission were made through the Judgment Fund of the United States, which is administered by the Departments of Treasury and Justice.

Although Congress has fully appropriated the Federal share of every settlement enacted to date, most of these funds were appropriated in addition to existing program funding within the Interior Department’s budget, before enactment of the Budget Enforcement Act.

Regrettably, the effect of the operation of the budget caps under the Budget Enforcement Act has become an obstacle to completing settlement negotiations.

These caps in effect treat settlement funding as an offset or a reduction in increases in funding for Interior programs intended to benefit all tribes. The knowledge that the Federal funding for a settlement will impact funding for other Interior programs serves as a disincentive to tribal as well as Departmental negotiators.

The Interior Department’s proposed budget justification for fiscal year 2002 neatly illustrates the problem. It describes a $61 million increase in funding for Bureau of Indian Affairs programs, then later states that $23.5 million of this increase is to cover the Federal cost for four land and water settlements.

This $23.5 million, which represent the United States’ contribution to out-of-court claims settlements with individual tribes, cannot fairly be considered an increase in funding for BIA programs benefiting all tribes.

These appropriations are payments to resolve legal and moral liabilities of the United States of America as a whole.

Consequently, they should not be treated for budgetary purposes as liabilities chargeable only to programs within the Department of the Interior.

Appropriations authorized to pay the United States’ obligations under terms of negotiated settlements enacted by Congress should be treated as if they were out-of-court settlement awards certified by Federal Courts.

Just as the amounts awarded each year by the Courts and paid through the Judgment Fund of the United States are not relevant to determining annual program budget requests for the Department of Justice, so should authorized payments to tribes in settlement of their land and water claims not be relevant to determining annual program budgets for the Department of the Interior.

That the Budget Enforcement Act in effect operates to make settlement payments a factor in determining Interior budget increases or decreases is an apparently unintended flaw in the law.

Tribes, the previous Secretary of the Interior, the Western Governors Association, the Western States Water Council, the Ad Hoc Group on Indian Water Rights, the Native American Rights Fund, and a bipartisan group of Senators have all concluded that the Budget Enforcement Act should be amended to correct this flaw.

On July 17th, Senator Domenici and eight other Senators joined in introducing such an amendment to the Budget Enforcement Act. Here now to discuss the "Fiscal Integrity of Indian Settlements Protection Act of 2001" are members of the staff of the Senate Budget Committee.