Post by mdenney on Aug 23, 2008 1:00:54 GMT -5
Just adding this for those that want to understand this OK
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Legislative Hearing
before the
Senate Committee on Indian Affairs
on
H.R. 976, the Mississippi Sioux
Judgment Fund Distribution Act
Tuesday, October 21, 1997
10:00 a.m.
485 Russell Senate Building
VICE CHAIRMAN'S STATEMENT
STATEMENT OF SENATOR DANIEL K. INOUYE
VICE CHAIRMAN
COMMITTEE ON INDIAN AFFAIRS
BEFORE THE
OCTOBER 21, 1997 HEARING
ON
H.R. 976
THE MISSISSIPPI SIOUX JUDGMENT FUND
DISTRIBUTION ACT OF 1997
THE COMMITTEE MEETS TODAY TO RECEIVE TESTIMONY ON H.R. 976, THE MISSISSIPPI SIOUX JUDGMENT FUND DISTRIBUTION ACT OF 1997. A COMPANION BILL TO H.R. 976 -- S. 391 -- WAS INTRODUCED IN THE SENATE ON MARCH 4, 1997 BY SENATOR DORGAN, FOR HIMSELF AND SENATORS CONRAD, JOHNSON, DASCHLE, BAUCUS AND BURNS, AND WAS REFERRED TO THE COMMITTEE ON INDIAN AFFAIRS.
THE PROVISIONS OF H.R. 976 AND S. 391 REPRESENT THE MOST RECENT EFFORT TO RESOLVE A LONG-STANDING CONTROVERSY OVER THE DISTRIBUTION OF A JUDGMENT AWARD THAT WAS ENTERED BY THE INDIAN CLAIMS COMMISSION A LITTLE OVER THIRTY YEARS AGO (JULY 25, 1967).
THE CLAIMS COMMISSION FOUND THAT THE UNITED STATES HAD VIOLATED CERTAIN TREATY COMMITMENTS MADE TO THE SISSETON AND WAHPETON BANDS OR TRIBES OF SIOUX INDIANS, WHEN IT FORCED THE DISPERSAL OF THE ABORIGINAL UPPER SIOUX BANDS FOLLOWING WHAT CAME TO BE KNOWN AS THE "MINNESOTA OUTBREAK OF 1862".
PURSUANT TO THE ACT OF OCTOBER 25, 1972, PUBLIC LAW 92-555, THE CONGRESS PROVIDED FOR THE APPORTIONMENT OF THE $5.874 MILLION CLAIMS COMMISSION'S JUDGMENT BETWEEN THE THREE SUCCESSOR TRIBES AND THE LINEAL DESCENDANTS OF THE SISSETON WAHPETON MISSISSIPPI SIOUX.
THE DEVIL'S LAKE SIOUX TRIBE OF NORTH DAKOTA, NOW THE SPIRIT LAKE SIOUX TRIBE, WAS TO RECEIVE 21.68 PERCENT OF THE TOTAL JUDGMENT. THE SISSETON-WAHPETON SIOUX TRIBE OF SOUTH DAKOTA WAS TO RECEIVE 42.97 PERCENT OF THE TOTAL JUDGMENT. THE ASSINIBOINE AND SIOUX TRIBES OF THE FORT PECK RESERVATION IN MONTANA WERE TO RECEIVE 10.31 PERCENT OF THE TOTAL. AND THE LINEAL DESCENDANTS OF THE SISSETON AND WAHPETON SIOUX WERE TO RECEIVE 25.02 PERCENT OF THE TOTAL JUDGMENT AWARD.
SINCE THAT TIME, THERE HAS BEEN MUCH LITIGATION OVER WHETHER THE LINEAL DESCENDANTS ARE ENTITLED TO A SHARE OF THE JUDGMENT, INCLUDING A CHALLENGE TO THE CONSTITUTIONALITY OF THE 1972 ACT. IT IS THEN, PERHAPS NOT SURPRISING, THAT THE LINEAL DESCENDANTS' SHARE OF THE FUND HAS YET TO BE DISTRIBUTED. THE DEPARTMENT OF THE INTERIOR INDICATES THAT THE DESCENDANCY SHARE NOW AMOUNTS TO MORE THAN $14 MILLION.
H.R. 976 WOULD AMEND THE DISTRIBUTION PLAN OF THE 1972 ACT BY DIRECTING THAT $1,469,831.50 BE DISTRIBUTED TO THE LINEAL DESCENDANTS -- AN AMOUNT WHICH IS APPARENTLY DETERMINED BY MULTIPLYING THE PERCENTAGE OF THE INDIAN CLAIMS COMMISSION JUDGMENT APPORTIONED TO LINEAL DESCENDANTS UNDER THE 1972 ACT BY THE TOTAL AMOUNT OF THE JUDGMENT.
UNDER THE TERMS OF H.R. 976, THE BALANCE OF THE $14 MILLION WOULD BE DISTRIBUTED TO THE THREE FEDERALLY-RECOGNIZED SUCCESSOR TRIBES TO THE SISSETON AND WAHPETON MISSISSIPPI SIOUX TRIBE.
THE COMMITTEE IS ADVISED THAT THE DEPARTMENT OF THE INTERIOR HAS SERIOUS CONCERNS WITH REGARD TO THIS LEGISLATION, AND WE LOOK FORWARD TO RECEIVING THE ADMINISTRATION'S VIEWS AS WELL AS THE VIEWS OF THOSE WHO REPRESENT THE LINEAL DESCENDANTS -- MANY OF WHOM COULD NOT BE HERE TODAY, BUT WHO HAVE WRITTEN TO THE COMMITTEE TO EXPRESS THEIR OPPOSITION TO H.R. 976.
Return to Witness List
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SENTOR CONRAD'S STATEMENT
Opening Statement of Senator Conrad
Hearing on H.R. 976, the Mississippi Sioux Tribes
Judgment Fund Distribution Act of 1997
Mr. Chairman, thank you for holding this hearing to discuss the Mississippi Sioux Tribes Judgment Fund Distribution Act.
In 1967, the Indian Claims Commission rendered a judgment in favor of the Sisseton-Wahpeton Sioux Tribe, the Devils Lake Sioux Tribe (now the Spirit Lake Nation), and the Assiniboine and Sioux Tribe of Fort Peck, to satisfy land compensation claims. In 1968, Congress appropriated $5.9 million for this settlement.
In 1972, Congress passed legislation to provide for the distribution of this award to the three tribes. Twenty-five percent ($1.5 million) was set aside for lineal descendants who are not tribal members. Funds were distributed to the Devils Lake Sioux and the Sisseton-Wahpeton Sioux in 1974, and a partial distribution was made to the Assiniboine and Sioux Tribe in 1979. However, because the original judgment did not include shares for the lineal descendants, the issue has been tied up in litigation and the lineal descendants' share of the funds has remained undistributed since the passage of distribution legislation in 1972.
Mr. Chairman, this situation has gone on long enough. The funds from this judgment and the accrued interest should be distributed. No one benefits from these funds being tied up in court. The legislation we are considering today is a compromise between the three tribes and the lineal descendants of tribal members. Under this act, the principal of the judgment fund -- approximately $1.5 million -- will be released from litigation and awarded to the lineal descendants. The accrued interest -- approximately $12.5 million -- will be awarded to the three Sioux Tribes for economic and resource development, education, and social welfare programs. Mr. Chairman, as you know, funds for these purposes are urgently needed by tribal governments.
If these funds are ever to move out of the litigation process, we need to take action. We need to pass this legislation to allow this distribution process to move forward.
I understand that the Department of the Interior has expressed concerns about this legislation, and I am willing to work with the Department to resolve those concerns.
Finally, I'd like to thank Chairwoman Myra Pearson, Chairman Andrew Grey, Sr., and Chairman Raymond Ogle, Jr., for their cooperation in this process.
Mr. Chairman, I thank you for holding this hearing, and I look forward to passage of this legislation.
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SENTOR DORGAN'S STATEMENT
STATEMENT OF SENATOR BYRON DORGAN
HEARING OF THE SENATE INDIAN AFFAIRS COMMITTEE
ON H.R. 976, THE MISSISSIPPI SIOUX TRIBES JUDGMENT FUN
DISTRIBUTION ACT OF 1997
October 21, 1997
I want to first thank Chairman Campbell for agreeing to allow the Committee to move forward with a hearing on this legislation and to Vice Chairman Inouye for agreeing to chair this hearing.
I introduced the Senate version of the legislation before us today, along with my colleagues from North Dakota, South Dakota, and Montana, to resolve a long-standing problem involving a judgment fund distribution to Sioux tribes in the Dakotas and Montana. It seems to me that the current situation, which is destined to remain mired in legal disputes for years, is not in the best interest of any of the parties involved. It was my hope and intention in introducing this bill that we would at long last resolve this matter in way which is fair both to the Tribes involved and to the lineal descendants who are not enrolled members of these Tribes.
Let me first describe in short the events that have brought us to this point. In 1967, the Indian Claims Commission entered a judgment in favor of the Spirit Lake Sioux Tribe of North Dakota, the Sisseton and Wahpeton Sioux Tribe of North and South Dakota, and the Assiniboine and Sioux Tribes of the Fort Peck Reservation in Montana in compensation for 27 million acres of land that was taken from their predecessor aboriginal tribe during the 19th century.
In 1972, Congress enacted legislation which authorized the Secretary of the Interior to distribute 75 percent of the $5.9 million judgment award to the Tribes. The three Sioux tribes received their respective shares of the judgment award by the mid-1970s.
The remaining 25 percent was to be distributed to individuals who could trace their lineal ancestry to a member of the aboriginal Sisseton and Wahpeton Sioux Tribe. To date, the funds allocated to the lineal descendants have not been distributed for a number of reasons. This has resulted in a situation where the original principal of about $1.47 million designated for the lineal descendants has grown to more than $14 million.
Quite frankly, I question the wisdom of the 92nd Congress in awarding 25 percent of the original judgment to the lineal descendents for several reasons. The Congress made this decision at the urging of the Department of Interior at that time, because the Interior Department felt that historical events warranted a departure from precedent. The fact is that the 1967 Indian Claims Commission judgment awarded compensation only to the descendent Tribes, not to individual lineal descendents. The Indian Claims Commission decision was consistent with federal policy regarding the distribution of Indian judgment funds. In fact, a 1986 letter from the Department of Interior to the then Chairman of the Senate Select Committee on Indian Affairs stated:
"As a general rule, we believe that each distribution of Indian judgment funds should benefit the aggrieved historic tribe for which the award was made. If the historic tribe is no longer in existence, we believe that judgment funds should be programmed, to the greatest extent possible, to the present-day successor tribe(s) to the historic tribe."
Nevertheless, even if you subscribe to the belief that lineal descendents not enrolled in one of the successor tribes should have received an award, I also question why they were given a 25 percent share in the judgment. According to the Department of Interior's enrollment data, which was prepared under the 1972 Act, lineal descendants made up only about 2,000, or 14 percent, of the identified lineal descendants. It seems to me that it would have been much more fair and equitable for the lineal descendants to be awarded a percentage of the judgment in proportion to their percentage of those with an interest. Under the 1972 Act, even if the lineal descendants receive per capita payments only from the allocated principal, they would receive twice as much as the enrolled tribal members -- who can also trace their ancestry back to the aboriginal tribe -- did in the 1970s. Today, if the lineal descendants receive their per capita payment, plus accrued interest, they would be paid more than 18 times what the enrolled members received.
Quite understandably, since the passage of the 1972 Act, the three Sioux tribes have questioned the right of the lineal descendants to any of the judgment award, and in 1987, the tribes filed suit in Federal court challenging the constitutionality of the lineal descendency provisions.
In 1992, in an attempt to resolve this issue, Congress enacted legislation which authorized the Attorney General to settle the case on any terms agreed to by the parties involved. I supported this approach because I believe that it is long overdue that this matter be resolved. Unfortunately, however, the Department of Justice has steadfastly refused to proceed with any settlement negotiations and has taken the position that the 1992 law did not authorize the Department to settle the case on any terms other than those laid out in the original 1972 Act. While I view this interpretation as flying in the face of Congressional intent, the Department has been unwilling to change its position or actively seek a resolution of this matter outside of the courts.
In my view, the legislation before us today represents a reasonable solution to this protracted matter. In contrast to earlier legislation, which was reported out of this Committee in 1986, the Mississippi Sioux Tribes Judgment Fund Distribution Act would retain the undistributed principal for the lineal descendants, as was pledged by the 1972 Act. Even though I question whether the lineal descendants should have been awarded a share, I understand that for the last 25 years, lineal descendants have had an expectation that they would be receiving a monetary per capita payment. I therefore think that, in the interest of fairness, it is appropriate that lineal descendants finally receive the $1.47 million in principal.
However, under H.R. 976, the accrued interest would be distributed to the three Sioux tribes for use for economic development, resource development, or for other programs that collectively benefit tribal members, such as educational and social welfare programs. This is consistent with the policy of Congress to help tribes in achieving self-determination and economic self-sufficiency. The unemployment rate on the Fort Totten Reservation, the home of the Spirit Lake Sioux Tribe, is a substantial 25 percent. The death rate from diabetes among Indians on the Reservation is three times the rate for other races. This bill can help the Indian people of the Sioux tribes of North Dakota, South Dakota and Montana to move from poverty to economic independence.
I believe this legislation takes a fundamentally fair approach. It keeps the commitment that the Federal Government made to provide compensation to lineal descendants, while ensuring that most of the remaining undistributed funds go to the Mississippi Sioux Tribes. It was the Tribes after all that were wronged and should be compensated.
Nevertheless, if there are those who disagree with I disagreeessment that this legislation is fair to all concerned -- and I know that there are -- then I challenge them to work with me to reach consensus on a legislative solution. I direct this challenge in particular to the Departments of Interior and Justice, which have been very quick to shoot down virtually every legislative approach that has been attempted by Congress over the last decade but at the same time have been unwilling to actively work to resolve this matter outside of the courts.
I also direct this challenge to my Colleagues. The House of Representatives has already passed this legislation, and it is my hope that the Senate, too, can pass a bill that would bring a resolution to this matter. I am not wedded to the approach taken in H.R. 976, and in fact, I am aware of some other suggestions for how this matter might be resolved that I think are worthy of additional consideration.
But I am convinced of one thing: Twenty-five years is much too long for this issue to be lingering. We have a chance to end it, and I am hopeful that we will do so.
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WITNESS LIST
PANEL I
Mr. Michael Anderson, Deputy Assistant Secretary for Indian Affairs, U.S. Department of the Interior, Washington, D.C.
STATEMENT OF MICHAEL ANDERSON, DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, AT THE HEARING BEFORE THE SENATE COMMITTEE ON INDIAN AFFAIRS ON H.R. 976, A BILL TO PROVIDE FOR THE DISPOSITION OF CERTAIN FUNDS APPROPRIATED TO PAY JUDGMENT IN FAVOR OF THE MISSISSIPPI SIOUX INDIANS, AND FOR OTHER PURPOSES."
October 21, 1997
Good morning Mr. Chairman and members of the Committee. Thank you for the opportunity to present the views of the Department of the Interior on H.R. 976, a bill entitled "The Mississippi Sioux Tribes Judgment Fund Distribution Act of 1997."
H.R. 976 is a proposed amendment to Title II of Public Law 92-555 dated October 25, 1972. Title II provides that after the payment of attorney fees and litigation expenses, the funds awarded in Indian Claims Commission Docket 142 and one-half of the funds awarded in Docket 359, plus accrued interest, shall be apportioned on the basis of reservation residence and other residence shown on the 1909 McLaughlin annuity roll. (See attached table.)
We cannot support H.R. 976 for reasons stated herein.
In 1967, the Indian Claims Commission awarded $5,097,575 in Docket 142, and $776,464.50, the share of the Sisseton and Wahpeton Sioux Tribes of an award in Docket 359, to the Eastern or Mississippi Sioux. The awards to the Sisseton and Wahpeton Bands of Sioux represent additional payment for over 25 million acres of aboriginal land in Minnesota, Iowa, and South Dakota taken in 1831 and 1851. In 1972 Congress enacted legislation to distribute these funds to the Sisseton-Wahpeton Tribe of South Dakota, the Devils Lake Tribe (now the Spirit Lake Tribe) and the Assiniboine and Sioux Tribe of the Fort Peck Reservation, and all other Sisseton and Wahpeton Sioux Indians (lineal descendants). In 1971, the tribal groups favored using the 1909 McLaughlin roll as the basis for arriving at the percentages for dividing these funds. The distribution was made to the tribes.
The lineal descendants' share of this award amounts to $1,469,831.50. With accrued interest, currently the account is valued at $14 million. The Bureau of Indian Affairs has yet to distribute these funds due to the difficulties associated with preparation of the roll. The funds have been the subject of four law suits since 1987, three of which were initiated by the tribes. As a result, these funds remain undistributed.
The case of Loudner v. U.S. is still pending before the court. The decision in the Loudner case will require the Secretary of the Interior to reopen the enrollment application process for the lineal descendants before the funds can be distributed. The Loudner case counsels against enactment of H.R. 976. Section 8 of H.R. 976 requires fund distribution of the originally appropriated amount, $1,469,831.50, to the lineal descendants of the Mississippi Sioux Tribe within one year of passage of the bill. It is not likely that all lineal descendants, to whom a fiduciary duty is owed under Loudner, will be determined within one year.
Prior to the enactment of the 1972 distribution Act, considerable time and effort was spent in consulting with the tribes and the tribal members on various methods for distributing these funds. Equal time and effort was spent in developing the lineal descendants' roll. The 1,988 individuals who are listed as eligible to share in this award have also expended a great deal of effort in establishing their eligibility to share in this award. We further anticipate that additional steps will be necessary relative to the enrollment application process to conform with the decision of the court in the Loudner case.
It is essential that the interests of the 1,988 lineal descendants be given due consideration. For many years the descendants have anticipated receiving a share of the judgment funds from Dockets 142 and 359. Therefore, it is inequitable to now change the law to reduce their share of the award to a mere 10 percent of the anticipated share and re-distribute 90 percent to those who have already received their share. Having anticipated payments in accordance with the 1972 Act and given the substantial sums of money at stake, we would expect the lineal descendants to challenge H.R. 976, if enacted. Even if their challenges were ultimately rejected, the litigation could result in considerable expense to the government and additional delay in resolving the matter of compensation for the Mississippi Sioux.
We further believe that enactment of this legislation would set an undesirable precedent. It is not in the interest of the United States to amend the initial distribution scheme ratified by Congress after ample participation by the affected tribes has occurred. The preferred policy in this regard is for the United States to abide by the commitment made to the lineal descendants by the distribution process outlined in the original legislation.
This concludes my prepared statement. I will be happy to answer any questions the Committee may have.
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Public Law 92-555, October 25, 1972
Within the Act, Title II provides that after the payment of attorney fees and litigation expenses, the funds awarded in Indian Claims Dockets 142 and one-half of the funds awarded in Docket 359, plus accrued interest, shall be apportioned on the basis of reservation residence and other residence shown on the 1909 McLaughlin annuity roll as follows:
TABLE I
Tribe or Group Percentage
Devils Lake Sioux Tribe (a.k.a. Spirit Lake Sioux Tribe) 21.6892
Sisseton-Wahpeton Sioux Tribe 42.9730
Assiniboine and Sioux Tribe of the Fort Peck Reservation 10.3153
All other Sisseton and Wahpeton Sioux 25.0225
TABLE II
The enrollment that was prepared under the 1972 Act was as follows:
Tribe or Group Enrollees Percentage
Spirit Lake Sioux Tribe 2,187 15.7963
Sisseton-Wahpeton Sioux Tribe 6,006 43.3803
Assiniboine and Sioux Tribe of the Fort Peck Reservation 3,664 26.4644
All other Sisseton and Wahpeton Sioux (lineal descendants) 1,988* 14.3590
* Information from Bureau of Indian Affairs Enrollment
Return to Witness List
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PANEL II
The Honorable Andrew Grey, Chairman, Sisseton-Wahpeton Sioux Tribe, Agency Village, South Dakota
STATEMENT OF
ANDREW GREY, SR., CHAIRMAN
SISSETON-WAHPETON SIOUX TRIBE
MYRA PEARSON, CHAIRWOMAN
SPIRIT LAKE TRIBE
RAYMOND OGLE, JR., CHAIRMAN
FORT PECK SISSETON-WAHPETON SIOUX COUNCIL
ON H.R. 976
A BILL
TO PROVIDE FOR THE DISPOSITION OF CERTAIN FUNDS
APPROPRIATED TO PAY JUDGMENT IN FAVOR OF THE
MISSISSIPPI SIOUX INDIANS, AND FOR OTHER PURPOSES
DELIVERED BEFORE A HEARING OF THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
OCTOBER 21, 1997
Mr. Chairman and members of the Committee, I am Andrew Grey, Sr., Chairman of the Sisseton-Wahpeton Sioux Tribe of the Lake Traverse Indian Reservation, North Dakota and South Dakota. I am presenting this testimony on behalf of my Tribe and on behalf of Myra Pearson, Chairwoman of the Spirit Lake Tribe (formerly known as the Devils Lake Sioux Tribe) of the Ft. Totten Indian Reservation, North Dakota, and Raymond Ogle, Jr., Chairman of the Ft. Peck Sisseton-Wahpeton Sioux Council of the Ft. Peck Indian Reservation, Montana.
All three Tribes strongly support enactment of H.R. 976. Enactment of this legislation would correct a serious injustice and, in addition, is vital to the future development and progress of the three Sisseton-Wahpeton Sioux organized tribal entities and their nearly 20,000 enrolled members. The legislation, in effect, would amend P.L. 92-555, enacted in 1972, to provide a per capita distribution of $1,469,831.50, to Sisseton-Wahpeton Sioux lineal descendants, from funds appropriated in satisfaction of a 1967 judgment rendered by the Indian Claims Commission in favor of the Tribes. This amount results from multiplying the percentage of the judgment that P.L. 92-555 set aside for lineal descendants by the total judgment awarded.
The legislation would further provide that the interest that has accumulated on the $1,469,831.50 be distributed directly to the three Sisseton-Wahpeton Sioux tribal governments for economic and resource development, and education, social welfare and other tribal programs that would significantly improve the social and economic circumstances of all tribal members.
As the Committee knows, none of the appropriated funds affected by H.R. 976 have been distributed.
Review of the history of the Sisseton-Wahpeton Sioux claims and their disposition in the Indian Claims Commission underscores the merit of H.R. 976 and the injustice of the lineal descendancy distribution provisions of P.L. 92-555.
Nearly 50 years ago, the Sisseton-Wahpeton Sioux Tribe and the Devils Lake Sioux Tribe petitioned the Indian Claims Commission for a judgment against the United States for the loss of 2 million acres of land in 1830 and another 25 million acres of land in 1851. At the time of the loss, the tribe held recognized treaty title to the land. No individual member of the tribe held title to any of these lands. Acknowledging this fact, the Commission, in a 1962 order, determined that the petitioning tribes, alone, were entitled to litigate the Sisseton-Wahpeton Sioux claims.
The Indian Claims Commission action was prosecuted solely by the two petitioning tribes. Before entry of final judgment, these two tribes consented to the joinder of the Ft. Peck Sisseton-Wahpeton Sioux as a party-petitioner. Throughout the nearly 20 years of litigation, lineal descendants did not seek to nor did they participate in the prosecution of these claims.
On July 25, 1967, the Commission entered judgment in favor of the Tribes. The judgment concluded that it was the Sisseton and Wahpeton Sioux Tribe that had been wronged by the United States for it was the Tribe, as an entity, that had owned the land at issue in the litigation. Not surprisingly, therefore, the judgment did not recognize and made no award to lineal descendants. The judgment was agreed to by the United States in a stipulated settlement approved by the Commission. Prior to entry of the judgment, the Commission required the settlement agreement to be approved by the Tribes. The agreement was presented for approval to the members of the Tribes alone - not to lineal descendants. Bureau of Indian Affairs' representatives participated in this presentation and never once suggested that any persons not members of the Tribes would or could receive a portion of the judgment. The Tribes and their members approved the agreement on the understanding that 100% of the judgment would be distributed to them. The record is clear on this. See Sisseton and Wahpeton Bands or Tribes v. United States, 18 I.C.C. 477, 486-493 (1967).
Notwithstanding the settlement negotiated by the United States with the Tribes and the Commission judgment, the Congress in 1972, at the urging of the Department of the Interior, allocated just over 25% of the Tribes' award to lineal descendants, persons whose ancestors had severed their tribal relations with the Sisseton-Wahpeton Sioux well over 100 years ago and who themselves maintain no current relations with the Tribes. The Tribes did not support this allocation but, under duress, were compelled to accept it. We believe it to be unprecedented for the Congress, as it did in 1972, to award any part of a judgment against the United States to persons who had no participatory role in the litigation that brought about the judgment and whose interests, if any, were not addressed by or included in the judgment.
Receiving full recompense for the taking of tribal lands has great historical dimension and significance, as well as emotional resonance, for the Tribes and their members. Because the Tribes believed, in addition, that the loss of 25% of their judgment, representing compensation for 6.75 million acres of land, to persons who were not the beneficiaries of the Commission's judgment constituted an unconstitutional taking and denial of due process, as well as a failure to fully settle the Tribes' land claims, the Tribes supported enactment in the 99th Congress of legislation (S. 2118) that would have eliminated any lineal descendancy distribution. The legislation was also supported by the Department of the Interior and the Department of Justice. The Select Committee on Indian Affairs favorably reported the legislation at the end of the 99th Congress. Unfortunately, time did not permit further consideration of the measure.
Soon after the end of the 99th Congress, the Tribes were informed that the Bureau of Indian Affairs intended to proceed with the lineal descendancy distribution. In April 1987, the Tribes filed suit before the United States District Court for the District of Montana to block this distribution. In this suit, Sisseton-Wahpeton Sioux Tribe et al. v. United States, Civil No. CV-87-095-GF (D.Mont.), the Tribes challenged the constitutionality of those portions of P.L. 92-555 that provided for the distribution of approximately 25% of the 1967 judgment fund to Sisseton-Wahpeton Sioux lineal descendants.
In their complaint, as originally filed, the Tribes claimed that P.L. 92-555:
(1) by granting a portion of the funds, that had vested in the Tribes when the United States paid the Indian Claims Commission judgment in 1968, to persons having no right to or interest in the Indian Claims Commission judgment, deprived the Tribes of their property without due process of law in violation of the Fifth Amendment;
(2) by granting a disproportionate percentage of the judgment fund to lineal descendants and by granting any portion of the judgment fund to persons who do not have a Sisseton-Wahpeton Sioux lineal ancestor (the allegation being that the persons now slated to receive the money do not have such an ancestor) was arbitrary and discriminatory and, accordingly, violated the tribes rights to due process of law and to the equal protection of the law as guaranteed by the Fifth Amendment;
(3) by taking funds that had vested in the Tribes by judgment and contract, took private property for public use without just compensation in violation of the Just Compensation Clause of the Fifth Amendment; and
(4) breached the United States' trust responsibility to the Tribes to manage the Tribes' property in a manner that would protect the property and promote the interests of the tribes.
In a 1987 ruling granting the Tribes' motion for a preliminary injunction enjoining the United States from disbursing the judgment funds, the federal district court noted that the "Tribes' complaint raises serious questions which warrant litigation." In particular, the court concluded that if, as alleged by the Tribes, "the individual lineal descendants were not parties" to the settlement with the United States incorporated in the final decree of the Indian Claims Commission, "the Distribution Act of October 24, 1972, may well constitute a deprivation of the 'property' rights of the Sioux Tribes, in violation of the proscription of the fifth amendment."
In 1988, the court dismissed the claims, concluding that they should have been filed within six years of the enactment of the 1972 distribution statute. The Tribes appealed.
In 1990, the United States Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the claims as barred by the statute of limitations. In doing so, it, too, observed that the "Tribes' substantive claims appear to have some merit; they assert that at no time prior to or including the entry of the final judgment [of the Indian Claims Commission] did the United States represent that non-members would have a right to any portion of the judgment funds, and that in approving the settlement, none of the tribes understood that lineal descendants would be sharing in the distribution of the judgment fund." As noted, lineal descendants were not required to and did not participate in the negotiation or approval of the settlement.
The Ninth Circuit also ruled that if the Tribes amended their complaint to allege that no persons on the lineal descendancy distribution roll have a Sisseton-Wahpeton Sioux lineal ancestor or that only an exceptionally small number of such persons have a Sisseton-Wahpeton Sioux lineal ancestor, the complaint would state valid constitutional and legal claims not barred by any statute of limitations.
The Tribes amended their complaint to allege that an exceptionally small number of persons on the lineal descendancy roll have a Sisseton-Wahpeton Sioux lineal ancestor. The Tribes based this claim on the Secretary of the Interior's representation to the Congress in 1971 that to qualify as a lineal descendant, a person would have to trace lineal ancestry to a member of the Sisseton and Wahpeton Mississippi Sioux Tribe, the aboriginal predecessor entity to the three tribes represented here today. In enacting, P.L. 92-555, the Congress adopted this tracing requirement, the Senate Committee on Interior and Insular Affairs noting that lineal descendants "shall receive their proportionate share of the funds on proof of lineal descendancy with the aboriginal band." (S.Rep.No. 92-144, p. 3).
The aboriginal Sisseton and Wahpeton tribe ceased to exist in 1862. While the Secretary's lineal descendancy roll contains nearly 2,000 names, the undisputed evidence offered during the litigation showed that only 65 traced ancestry to a member of the Sisseton and Wahpeton Mississippi Sioux Tribe alive in 1862. If the nearly 2,000 persons on the Secretary's roll were to receive the distribution contemplated by P.L. 92-555, each would receive, in principal, more than double the principal amount, calculated on a per capita basis, allocated by that law for distribution to the Tribes and their members. If the distribution were limited to the 65 persons who properly traced their lineal ancestry, each of these persons would receive more than 60 times the amount allocated to the Tribes and tribal members.
During the district court's consideration of this phase of the litigation, the Congress, in 1992, amended P.L. 92-555 to waive the statute of limitations defense so that the Tribes could litigate their constitutional claims. This legislation was vetoed. Later in 1992, legislation was enacted authorizing the Attorney General to negotiate a settlement of this litigation with the Tribes. The Attorney General refused to do so.
In 1996, the Ninth Circuit ruled against the Tribes on their amended complaint. The court refused to consider the tracing requirement, clearly stated by the Senate and House Committees in their reports to the Congress, ruling that the language of P.L. 92-555 standing alone authorized the Secretary to forego this requirement.
Recently, the Tribes filed a new federal lawsuit claiming that the lineal descendancy distribution provisions of P.L. 92-555 violate the separation of powers doctrine because they reopen and revise a final judgment. This claim is based on Plaut v. Spendthrift Farm. Inc., 514 U.S. 211 (1995), where the Supreme Court specifically states that the separation of powers doctrine is violated where a federal law reopens and revises a judgment. If, as seems clear from Plaut, the Tribes are correct, the lineal descendancy distribution provisions of P.L. 92-555 are void enactments and were void on the day they were enacted because Congress acted beyond its constitutional powers in reopening and revising the 1967 Indian Claims Commission judgment. Unfortunately, this claim, too, has been dismissed on the ground that the tribes should have raised the claim in their first suit in 1987. The Tribes have appealed this dismissal.
In sum, although the Tribes have been denied the opportunity to litigate their constitutional claims, there is strong support for their position that the lineal descendancy distribution provisions of P.L. 92-555 are constitutionally defective and, indeed, are probably void enactments. These provisions are historically wrong and unfair as well. The Select Committee on Indian Affairs and the Department of the Interior acknowledged this to Congress in 1986 in supporting the elimination of the lineal descendancy distribution required by P.L. 92-555.
After some 150 years of seeking to settle their land claims with the United States, the claims of the Sisseton-Wahpeton Sioux, as presented to the Indian Claims Commission, have not been settled. While the Tribes continue to believe (as did the Department of the Interior in 1986) that lineal descendants should have no right to receive any portion of the 1967 judgment, they support enactment of H.R. 976. This measure fairly settles the Tribes' claims and fulfills the obligations undertaken and commitments and promises made by the United States to the Tribes during the 19th century and as recently as 1967. H.R. 976 should be enacted in the interests of justice and fundamental fairness.
In addition to righting an historical and legal wrong, enactment of H.R. 976 would have an immediate and positive tangible impact on the health, well-being and advancement of the Tribes and their members now and in the future. In these times of severe federal budget cuts, it is evident that an infusion of millions of dollars into tribal programs and projects would facilitate the ability of the Tribes to maintain essential services to tribal members and to develop long-term projects that would economically and socially benefit the entire tribal community for years to come. These monies would reduce Federal dependency by providing the Tribes and others who would be employed by them with income through the economic ventures that these monies will generate. The reallocation of the accumulated interest to the Tribes would clearly further the national policies of tribal self-determination and economic self-sufficiency.
If the funds are distributed per capita, as now contemplated, there is no overall gain for the Tribes as a whole, there is no long-term economic development, no job creation, no ongoing education, no ongoing social and health programs, no investment Leveraging and no capital formation. Moreover. there are no long-term benefits to the individual distributees. In short, a per capita distribution under P.L. 92-555 is contrary to Congress' tribal self-determination policies.
The Department of the Interior opposes enactment of H.R. 976. Among the reasons for the Department's position is the concern that H.R. 976 would effect a taking of property that P.L. 92-555 supposedly vested in the lineal descendants. In 1986, the Department of Justice definitively stated that Congress has the power to review and revise P.L. 92-555's distribution plan without effecting a Fifth Amendment taking. (I am appending a copy of the Department of Justice's opinion for the Committee's review as well as a copy of the Department of the Interior's statements in support of the 1986 legislation which was quite similar to H.R. 976 in general purpose). The Department of Justice was right.
The lineal descendants have never had a vested property right in the funds at issue. As the Department of Justice noted in 1986, these funds have not been paid to them. Relying on "analogous facts" in United States v. Jim, 409 U.S. 80, 82 (1972), the Department observed that P.L. 92-555 established a distribution scheme for tribal property which Congress has the power to subsequently alter. Of central importance, according to the Department, is the fact that "[f]unds appropriated under the Indian Claims Commission Act are tribal property." As Justice Brandeis wrote for a unanimous Court "Congress may make such changes in the management and disposition [of tribal property] as it deems necessary to promote the welfare" of the tribe. Morrison v. Work, 266 U.S. 481, 485 (1925); see also e.g., Sizemore v. Brady, 235 U.S. 441, 449 (1914).
The Department's position was legally correct in 1986 and it continues to be legally correct today. When appropriated in 1968, the funds at issue became tribal property and the judgment in favor of the Tribes was considered paid. United States v. Dann 470 U.S. 39, 44-45, 50 (1985). These funds were placed in an account in the United States Treasury in trust for the Tribes. Id. Thereupon, the Tribes had a constitutionally protected vested right to these funds subject only to the power of Congress, as trustee, to ensure that the money was "ultimately distributed in a manner consistent with the best interests of the Tribe." Id. at 49-50. These "funds were appropriated to pay an award redressing the breach of a treaty with a tribal entity... that suffered from the United States' breach, and both the Commission award and the appropriation by Congress were the means of compensating that tribal entity for the wrong done to it." Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 85 (1977). Accordingly, "individual Indians... [have] no vested rights" in these funds. Id.
That the lineal descendants have no vested rights in the Tribes' judgment fund is further underscored by examination of who these people are. They are non-tribal members whose lineal ancestors either resigned from or disaffiliated with the Sisseton-Wahpeton Sioux 135 years ago, in 1862. As Weeks makes clear, these lineal descendants have no entitlement to a share of the Tribes' judgment. Weeks cited with approval Minnesota Chippewa Tribe v. United States, 315 F.2d 906 (Ct.Cl. 1963). In that case, the Court of Claims stated that: "Tribal lands are communal property in which the individual members have no separate interest which can pass to their descendants who are no longer members of the group" and held that "the Indian Claims Commission Act requires that the awards be made, not to the individual descendants of tribal members at the time of the taking, but to the tribal entity or entities today." 315 F.2d at 913, 914 (emphasis added). And in Halbert v. United States, 283 U.S. 753, 762-763 (1931), the Supreme Court reiterated the general rule, stated in many prior decisions, that "the right of individual Indians to share in tribal Property whether lands or funds. depends on tribal membership and is terminated when the membership is ended " (Emphasis added).
The 1972 Distribution Act was, therefore, an aberration. It occurred, in part, because Department of the Interior representatives misrepresented to Congress that their were no successor tribal entities to the aboriginal Sisseton and Wahpeton Mississippi Sioux Tribe. Traditionally, Congress has not allowed lineal descendants whose ancestors renounced their tribal membership and separated from the tribe to share in a judgment fund distribution. When this has occurred, the circumstances have been unique, generally resulting from the non-existence of any modern-day tribal entity. When a modern-day tribal entity exists, Congress has virtually always assured that Indian Claims Commission judgment funds are distributed only to that tribal entity. The Department of the Interior acknowledged this in 1986 (see attachment) with respect to the judgment fund at issue in H.R. 976. The Department essentially admitted that the 1972 Distribution Act was a mistake and that the Sisseton-Wahpeton Sioux tribal entities should receive all of the funds awarded to them by the Indian Claims Commission.
In fact the lineal descendancy provisions of the 1972 Distribution Act were much more than a mistake. They were an act of confiscation. These provisions were a taking from the Tribes of constitutionally protected vested property rights, Shoshone Tribe v. United States, 299 U.S. 476, 496 (1937); McCullough v. Virginia, 172 U.S. 102,123-124 (1898), precisely because they were not in the benefit of the Tribes nor did they promote their welfare in any way. For this reason, these provisions exceeded Congress' broad trustee authority with respect to the management and disposition of tribal property.
Now, when the Congress has the opportunity to correct the mistake made in 1972, the Department asks this Committee to disregard its own policy, well-established in numerous statutes, and the law long ago established in numerous judicial decisions, and permit "lineal descendants" to receive a substantial portion of the judgment funds awarded to the tribes.
'Taking issue with its 1986 position, the Department, we have been informed, bases its current position on again representing to Congress that there are no successor entities to the aboriginal Sisseton and Wahpeton Mississippi Sioux Tribe. Accordingly, the Department, as it did in 1972, asks the Congress, in effect, to treat the descendants of that aboriginal Tribe, including both the members of the three modern-day Sisseton-Wahpeton Sioux tribal entities and the non-members, as one group of lineal descendants and to treat the judgment award of the Indian Claims Commission as essentially having created an estate that should be passed out to heirs. Not only does this distort what the Congress did in the 1972 Distribution Act - which recognizes each of the three Sisseton-Wahpeton Sioux tribal entities as entitled to share in the judgment as successor tribal entities to the aboriginal Sisseton and Wahpeton Mississippi Sioux Tribe, it disregards the fact that the Indian Claims Commission expressly found that these tribes are the successors in interest to the original Sisseton and Wahpeton Sioux bands. Sisseton and Wahpeton Bands or Tribes v. United States, 10 I.C.C. 137, 139 (1962); 18 I.C.C. 526-a (1967). Moreover, the position ignores the 1867 Treaty with these tribes (15 Stat. 505) which recognizes their successor status and contravenes the Indian Claims Commission Act by disregarding the fact that a Commission award redresses tribal claims to communally held tribal property, not an aggregation of individual claims.
The Department, we are informed, again (as it did in 1972) relies on the 1862 Minnesota Sioux Outbreak as justification for supporting the lineal descendancy distribution provided for in the 1972 Distribution Act. Because of this 1862 event, various Sisseton and Wahpeton Sioux scattered, never to affiliate again as part of a Sisseton and Wahpeton Sioux tribal entity. This choice, freely made, surely provides no reasonable basis for distributing tribal property to them or their descendants. Shortly after the Outbreak, the Sisseton and Wahpeton Bands reorganized as the three successor entities on whose behalf this testimony is provided today. The lineal descendants' ancestors could have - but chose not to -affiliated with one of these successor entities. As we have noted, the Supreme Court and other courts have consistently held that descendants have no right to share in tribal communal property based on descendancy from a lineal ancestor who terminated his or her membership in the tribe. When that ancestor terminated membership, he or she also relinquished any interest in tribal property which, in any event, was not a separable individual interest. Moreover, the Indian Claims Commission judgment corrects an injustice to the tribal entity; it is not intended to "make whole" any individual tribal member, as the Department, in effect, now suggests.
The Committee should take note that if the Department's position is accepted with respect to including lineal descendants in a judgment fund distribution because historical circumstances caused their lineal ancestors to disaffiliate with the tribe, numerous judgment fund distribution laws affecting other tribes would be subject to challenge and review. Historical circumstances similar to the 1862 Minnesota Sioux Outbreak resulted in the members of many tribes ending their tribal membership. Under the Department's view, generally rejected by Congress, persons lineally descended from members of these tribes who disaffiliated with their tribes in the last century would also be entitled to share in Indian Claims Commission judgments awarded to the tribe.
The Department also takes the position that Congress should not consider H.R. 976 because of two different pending lawsuits. The Department made the same argument before the House. The House correctly rejected the argument as not having merit.
One of the pending lawsuits is Sisseton-Wahpeton Sioux Tribe v. United States. As we have noted, this case challenges the 1972 Distribution Act as unconstitutional - a violation of the separation of powers doctrine. It is not unusual for Congress or this Committee to pass legislation while litigation is pending, especially to settle litigation. Since the tribes support H.R. 976, in the event that H.R. 976 is passed and becomes law, the tribes are committed to dismissing their lawsuit and to accept H.R. 976 as fully satisfying their claims. Under these circumstances, there is no policy impediment to acting on H.R. 976. Furthermore, as with the Tribes obligation before the Ninth Circuit, the present litigation is not likely to reach the merits. The Government has vigorously sought to have each of the Tribes' cases dismissed on procedural grounds. Prior to seeking congressional enactment of H.R. 976, the Tribes' were more than willing to litigate the merits of their claim that the lineal descendancy provisions of the 1972 Distribution Act are unconstitutional for a variety of reasons. In 1992, Congress passed a bill that would have waived procedural defenses to this claim. That bill was vetoed. While we are confident that the Tribes would prevail in litigation that reached the merits, it appears now that only Congress will have the opportunity, through H.R. 976, to consider the merits of the Tribes' position that the 1972 Act was mistaken, misguided and a miscarriage of justice.
The Department also opposes H.R. 976 because of the pendency of Loudner v. United States, On March 13, 1997, the Eighth Circuit in Loudner recognized that certain persons - all of whom apparently are members of the Crow Creek Sioux Tribe - claiming to be Sisseton and Wahpeton Sioux lineal descendants should have the opportunity to apply for inclusion in the lineal descendancy distribution provided for in the 1972 Distribution Act. The eligibility of these individuals remains to be determined. The position that this litigation should deter Congress from acting on H.R. 976 also has no legal or policy merit.
Loudner has no consequence for H.R. 976. H.R. 976 would revise the distribution plan in P.L. 92-555 to distribute the principal to the lineal descendants and the accumulated interest to the tribes. If this legislation is enacted, Loudner will either result in the existing pool of lineal descendants sharing the principal, should no other persons be found eligible to share, or in an enlarged pool should others be found eligible to share. In either case, H.R. 976 would still distribute the accumulated interest to the tribes. Therefore, any ongoing legal proceedings in Loudner are entirely irrelevant to Congress' determination of the merits of distributing the accumulated interest to the tribes. The question before the Committee is whether non-tribal persons, whose ancestors either resigned or otherwise disaffiliated themselves from the Sisseton and Wahpeton Sioux more than a century ago should be allowed to receive a substantial distribution of assets that even now still belong to the three tribes. The number of people in the pool of lineal descendants simply is not relevant to answering this question and nothing in Loudner imposes any restraint on the power of Congress to answer this question by amending the 1972 Distribution Act in the manner proposed in H.R. 976.
Finally, I wish to point out that the Administration's suggestion that Congress should do nothing while Loudner remains pending is nothing more than a smokescreen to undermine any possibility for Congress to consider the merits of H.R. 976 or similar legislation. We say this because in 1991, the Department of the Interior, in testimony before the Senate Select Committee on Indian Affairs on legislation concerning the Tribes' claim that P.L. 92-555's lineal descendancy distribution provisions are unconstitutional, stated that just as soon as the litigation ends, the Department would distribute the funds at issue. See Senate Hearing 102-558, pp. 8-9. Obviously, if the Congress delays consideration of H.R. 976 or a future similar bill until such time as these funds are distributed, the Congress will either be deprived of any opportunity to review the fairness of P.L. 92-555 or may need to consider additional appropriations. Delay will only serve to undermine if not eliminate the ability of the tribes to secure any consideration, much less a fair one, by the Congress of their request for a change in P.L. 92-555's distribution plan.
Our final word respects the lineal descendants and their position on H.R. 976. Say what one will, they seek a windfall - to which they have no legal or moral right or entitlement - at the Tribes' expense. Congress mistakenly allowed them the opportunity to receive a share of a judgment that does not belong to them. This mistake does not mature into a right solely because of lapse of time. However, the Tribes are realistic. They understand that these people have developed an expectation that they would receive a distribution of the Tribes' property and that this expectation, although not creating a constitutionally protected property interest, has made some members of Congress uncomfortable with completely eliminating a lineal descendancy distribution, despite their understanding that the 1972 Distribution Act should never have authorized such a distribution in the first place. It is for this reason, that the Tribes have agreed to support H.R. 976 to permit some distribution to be made to lineal descendants while recognizing that the Tribes, in satisfaction of their 1967 Indian Claims Commission award, have a legitimate right to receive the funds H.R. 976 would allocate to them.
For all of the reasons I have stated, the tribes again urge the Committee to approve H.R. 976.
Thank you.
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part 1
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Legislative Hearing
before the
Senate Committee on Indian Affairs
on
H.R. 976, the Mississippi Sioux
Judgment Fund Distribution Act
Tuesday, October 21, 1997
10:00 a.m.
485 Russell Senate Building
VICE CHAIRMAN'S STATEMENT
STATEMENT OF SENATOR DANIEL K. INOUYE
VICE CHAIRMAN
COMMITTEE ON INDIAN AFFAIRS
BEFORE THE
OCTOBER 21, 1997 HEARING
ON
H.R. 976
THE MISSISSIPPI SIOUX JUDGMENT FUND
DISTRIBUTION ACT OF 1997
THE COMMITTEE MEETS TODAY TO RECEIVE TESTIMONY ON H.R. 976, THE MISSISSIPPI SIOUX JUDGMENT FUND DISTRIBUTION ACT OF 1997. A COMPANION BILL TO H.R. 976 -- S. 391 -- WAS INTRODUCED IN THE SENATE ON MARCH 4, 1997 BY SENATOR DORGAN, FOR HIMSELF AND SENATORS CONRAD, JOHNSON, DASCHLE, BAUCUS AND BURNS, AND WAS REFERRED TO THE COMMITTEE ON INDIAN AFFAIRS.
THE PROVISIONS OF H.R. 976 AND S. 391 REPRESENT THE MOST RECENT EFFORT TO RESOLVE A LONG-STANDING CONTROVERSY OVER THE DISTRIBUTION OF A JUDGMENT AWARD THAT WAS ENTERED BY THE INDIAN CLAIMS COMMISSION A LITTLE OVER THIRTY YEARS AGO (JULY 25, 1967).
THE CLAIMS COMMISSION FOUND THAT THE UNITED STATES HAD VIOLATED CERTAIN TREATY COMMITMENTS MADE TO THE SISSETON AND WAHPETON BANDS OR TRIBES OF SIOUX INDIANS, WHEN IT FORCED THE DISPERSAL OF THE ABORIGINAL UPPER SIOUX BANDS FOLLOWING WHAT CAME TO BE KNOWN AS THE "MINNESOTA OUTBREAK OF 1862".
PURSUANT TO THE ACT OF OCTOBER 25, 1972, PUBLIC LAW 92-555, THE CONGRESS PROVIDED FOR THE APPORTIONMENT OF THE $5.874 MILLION CLAIMS COMMISSION'S JUDGMENT BETWEEN THE THREE SUCCESSOR TRIBES AND THE LINEAL DESCENDANTS OF THE SISSETON WAHPETON MISSISSIPPI SIOUX.
THE DEVIL'S LAKE SIOUX TRIBE OF NORTH DAKOTA, NOW THE SPIRIT LAKE SIOUX TRIBE, WAS TO RECEIVE 21.68 PERCENT OF THE TOTAL JUDGMENT. THE SISSETON-WAHPETON SIOUX TRIBE OF SOUTH DAKOTA WAS TO RECEIVE 42.97 PERCENT OF THE TOTAL JUDGMENT. THE ASSINIBOINE AND SIOUX TRIBES OF THE FORT PECK RESERVATION IN MONTANA WERE TO RECEIVE 10.31 PERCENT OF THE TOTAL. AND THE LINEAL DESCENDANTS OF THE SISSETON AND WAHPETON SIOUX WERE TO RECEIVE 25.02 PERCENT OF THE TOTAL JUDGMENT AWARD.
SINCE THAT TIME, THERE HAS BEEN MUCH LITIGATION OVER WHETHER THE LINEAL DESCENDANTS ARE ENTITLED TO A SHARE OF THE JUDGMENT, INCLUDING A CHALLENGE TO THE CONSTITUTIONALITY OF THE 1972 ACT. IT IS THEN, PERHAPS NOT SURPRISING, THAT THE LINEAL DESCENDANTS' SHARE OF THE FUND HAS YET TO BE DISTRIBUTED. THE DEPARTMENT OF THE INTERIOR INDICATES THAT THE DESCENDANCY SHARE NOW AMOUNTS TO MORE THAN $14 MILLION.
H.R. 976 WOULD AMEND THE DISTRIBUTION PLAN OF THE 1972 ACT BY DIRECTING THAT $1,469,831.50 BE DISTRIBUTED TO THE LINEAL DESCENDANTS -- AN AMOUNT WHICH IS APPARENTLY DETERMINED BY MULTIPLYING THE PERCENTAGE OF THE INDIAN CLAIMS COMMISSION JUDGMENT APPORTIONED TO LINEAL DESCENDANTS UNDER THE 1972 ACT BY THE TOTAL AMOUNT OF THE JUDGMENT.
UNDER THE TERMS OF H.R. 976, THE BALANCE OF THE $14 MILLION WOULD BE DISTRIBUTED TO THE THREE FEDERALLY-RECOGNIZED SUCCESSOR TRIBES TO THE SISSETON AND WAHPETON MISSISSIPPI SIOUX TRIBE.
THE COMMITTEE IS ADVISED THAT THE DEPARTMENT OF THE INTERIOR HAS SERIOUS CONCERNS WITH REGARD TO THIS LEGISLATION, AND WE LOOK FORWARD TO RECEIVING THE ADMINISTRATION'S VIEWS AS WELL AS THE VIEWS OF THOSE WHO REPRESENT THE LINEAL DESCENDANTS -- MANY OF WHOM COULD NOT BE HERE TODAY, BUT WHO HAVE WRITTEN TO THE COMMITTEE TO EXPRESS THEIR OPPOSITION TO H.R. 976.
Return to Witness List
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SENTOR CONRAD'S STATEMENT
Opening Statement of Senator Conrad
Hearing on H.R. 976, the Mississippi Sioux Tribes
Judgment Fund Distribution Act of 1997
Mr. Chairman, thank you for holding this hearing to discuss the Mississippi Sioux Tribes Judgment Fund Distribution Act.
In 1967, the Indian Claims Commission rendered a judgment in favor of the Sisseton-Wahpeton Sioux Tribe, the Devils Lake Sioux Tribe (now the Spirit Lake Nation), and the Assiniboine and Sioux Tribe of Fort Peck, to satisfy land compensation claims. In 1968, Congress appropriated $5.9 million for this settlement.
In 1972, Congress passed legislation to provide for the distribution of this award to the three tribes. Twenty-five percent ($1.5 million) was set aside for lineal descendants who are not tribal members. Funds were distributed to the Devils Lake Sioux and the Sisseton-Wahpeton Sioux in 1974, and a partial distribution was made to the Assiniboine and Sioux Tribe in 1979. However, because the original judgment did not include shares for the lineal descendants, the issue has been tied up in litigation and the lineal descendants' share of the funds has remained undistributed since the passage of distribution legislation in 1972.
Mr. Chairman, this situation has gone on long enough. The funds from this judgment and the accrued interest should be distributed. No one benefits from these funds being tied up in court. The legislation we are considering today is a compromise between the three tribes and the lineal descendants of tribal members. Under this act, the principal of the judgment fund -- approximately $1.5 million -- will be released from litigation and awarded to the lineal descendants. The accrued interest -- approximately $12.5 million -- will be awarded to the three Sioux Tribes for economic and resource development, education, and social welfare programs. Mr. Chairman, as you know, funds for these purposes are urgently needed by tribal governments.
If these funds are ever to move out of the litigation process, we need to take action. We need to pass this legislation to allow this distribution process to move forward.
I understand that the Department of the Interior has expressed concerns about this legislation, and I am willing to work with the Department to resolve those concerns.
Finally, I'd like to thank Chairwoman Myra Pearson, Chairman Andrew Grey, Sr., and Chairman Raymond Ogle, Jr., for their cooperation in this process.
Mr. Chairman, I thank you for holding this hearing, and I look forward to passage of this legislation.
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SENTOR DORGAN'S STATEMENT
STATEMENT OF SENATOR BYRON DORGAN
HEARING OF THE SENATE INDIAN AFFAIRS COMMITTEE
ON H.R. 976, THE MISSISSIPPI SIOUX TRIBES JUDGMENT FUN
DISTRIBUTION ACT OF 1997
October 21, 1997
I want to first thank Chairman Campbell for agreeing to allow the Committee to move forward with a hearing on this legislation and to Vice Chairman Inouye for agreeing to chair this hearing.
I introduced the Senate version of the legislation before us today, along with my colleagues from North Dakota, South Dakota, and Montana, to resolve a long-standing problem involving a judgment fund distribution to Sioux tribes in the Dakotas and Montana. It seems to me that the current situation, which is destined to remain mired in legal disputes for years, is not in the best interest of any of the parties involved. It was my hope and intention in introducing this bill that we would at long last resolve this matter in way which is fair both to the Tribes involved and to the lineal descendants who are not enrolled members of these Tribes.
Let me first describe in short the events that have brought us to this point. In 1967, the Indian Claims Commission entered a judgment in favor of the Spirit Lake Sioux Tribe of North Dakota, the Sisseton and Wahpeton Sioux Tribe of North and South Dakota, and the Assiniboine and Sioux Tribes of the Fort Peck Reservation in Montana in compensation for 27 million acres of land that was taken from their predecessor aboriginal tribe during the 19th century.
In 1972, Congress enacted legislation which authorized the Secretary of the Interior to distribute 75 percent of the $5.9 million judgment award to the Tribes. The three Sioux tribes received their respective shares of the judgment award by the mid-1970s.
The remaining 25 percent was to be distributed to individuals who could trace their lineal ancestry to a member of the aboriginal Sisseton and Wahpeton Sioux Tribe. To date, the funds allocated to the lineal descendants have not been distributed for a number of reasons. This has resulted in a situation where the original principal of about $1.47 million designated for the lineal descendants has grown to more than $14 million.
Quite frankly, I question the wisdom of the 92nd Congress in awarding 25 percent of the original judgment to the lineal descendents for several reasons. The Congress made this decision at the urging of the Department of Interior at that time, because the Interior Department felt that historical events warranted a departure from precedent. The fact is that the 1967 Indian Claims Commission judgment awarded compensation only to the descendent Tribes, not to individual lineal descendents. The Indian Claims Commission decision was consistent with federal policy regarding the distribution of Indian judgment funds. In fact, a 1986 letter from the Department of Interior to the then Chairman of the Senate Select Committee on Indian Affairs stated:
"As a general rule, we believe that each distribution of Indian judgment funds should benefit the aggrieved historic tribe for which the award was made. If the historic tribe is no longer in existence, we believe that judgment funds should be programmed, to the greatest extent possible, to the present-day successor tribe(s) to the historic tribe."
Nevertheless, even if you subscribe to the belief that lineal descendents not enrolled in one of the successor tribes should have received an award, I also question why they were given a 25 percent share in the judgment. According to the Department of Interior's enrollment data, which was prepared under the 1972 Act, lineal descendants made up only about 2,000, or 14 percent, of the identified lineal descendants. It seems to me that it would have been much more fair and equitable for the lineal descendants to be awarded a percentage of the judgment in proportion to their percentage of those with an interest. Under the 1972 Act, even if the lineal descendants receive per capita payments only from the allocated principal, they would receive twice as much as the enrolled tribal members -- who can also trace their ancestry back to the aboriginal tribe -- did in the 1970s. Today, if the lineal descendants receive their per capita payment, plus accrued interest, they would be paid more than 18 times what the enrolled members received.
Quite understandably, since the passage of the 1972 Act, the three Sioux tribes have questioned the right of the lineal descendants to any of the judgment award, and in 1987, the tribes filed suit in Federal court challenging the constitutionality of the lineal descendency provisions.
In 1992, in an attempt to resolve this issue, Congress enacted legislation which authorized the Attorney General to settle the case on any terms agreed to by the parties involved. I supported this approach because I believe that it is long overdue that this matter be resolved. Unfortunately, however, the Department of Justice has steadfastly refused to proceed with any settlement negotiations and has taken the position that the 1992 law did not authorize the Department to settle the case on any terms other than those laid out in the original 1972 Act. While I view this interpretation as flying in the face of Congressional intent, the Department has been unwilling to change its position or actively seek a resolution of this matter outside of the courts.
In my view, the legislation before us today represents a reasonable solution to this protracted matter. In contrast to earlier legislation, which was reported out of this Committee in 1986, the Mississippi Sioux Tribes Judgment Fund Distribution Act would retain the undistributed principal for the lineal descendants, as was pledged by the 1972 Act. Even though I question whether the lineal descendants should have been awarded a share, I understand that for the last 25 years, lineal descendants have had an expectation that they would be receiving a monetary per capita payment. I therefore think that, in the interest of fairness, it is appropriate that lineal descendants finally receive the $1.47 million in principal.
However, under H.R. 976, the accrued interest would be distributed to the three Sioux tribes for use for economic development, resource development, or for other programs that collectively benefit tribal members, such as educational and social welfare programs. This is consistent with the policy of Congress to help tribes in achieving self-determination and economic self-sufficiency. The unemployment rate on the Fort Totten Reservation, the home of the Spirit Lake Sioux Tribe, is a substantial 25 percent. The death rate from diabetes among Indians on the Reservation is three times the rate for other races. This bill can help the Indian people of the Sioux tribes of North Dakota, South Dakota and Montana to move from poverty to economic independence.
I believe this legislation takes a fundamentally fair approach. It keeps the commitment that the Federal Government made to provide compensation to lineal descendants, while ensuring that most of the remaining undistributed funds go to the Mississippi Sioux Tribes. It was the Tribes after all that were wronged and should be compensated.
Nevertheless, if there are those who disagree with I disagreeessment that this legislation is fair to all concerned -- and I know that there are -- then I challenge them to work with me to reach consensus on a legislative solution. I direct this challenge in particular to the Departments of Interior and Justice, which have been very quick to shoot down virtually every legislative approach that has been attempted by Congress over the last decade but at the same time have been unwilling to actively work to resolve this matter outside of the courts.
I also direct this challenge to my Colleagues. The House of Representatives has already passed this legislation, and it is my hope that the Senate, too, can pass a bill that would bring a resolution to this matter. I am not wedded to the approach taken in H.R. 976, and in fact, I am aware of some other suggestions for how this matter might be resolved that I think are worthy of additional consideration.
But I am convinced of one thing: Twenty-five years is much too long for this issue to be lingering. We have a chance to end it, and I am hopeful that we will do so.
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WITNESS LIST
PANEL I
Mr. Michael Anderson, Deputy Assistant Secretary for Indian Affairs, U.S. Department of the Interior, Washington, D.C.
STATEMENT OF MICHAEL ANDERSON, DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, AT THE HEARING BEFORE THE SENATE COMMITTEE ON INDIAN AFFAIRS ON H.R. 976, A BILL TO PROVIDE FOR THE DISPOSITION OF CERTAIN FUNDS APPROPRIATED TO PAY JUDGMENT IN FAVOR OF THE MISSISSIPPI SIOUX INDIANS, AND FOR OTHER PURPOSES."
October 21, 1997
Good morning Mr. Chairman and members of the Committee. Thank you for the opportunity to present the views of the Department of the Interior on H.R. 976, a bill entitled "The Mississippi Sioux Tribes Judgment Fund Distribution Act of 1997."
H.R. 976 is a proposed amendment to Title II of Public Law 92-555 dated October 25, 1972. Title II provides that after the payment of attorney fees and litigation expenses, the funds awarded in Indian Claims Commission Docket 142 and one-half of the funds awarded in Docket 359, plus accrued interest, shall be apportioned on the basis of reservation residence and other residence shown on the 1909 McLaughlin annuity roll. (See attached table.)
We cannot support H.R. 976 for reasons stated herein.
In 1967, the Indian Claims Commission awarded $5,097,575 in Docket 142, and $776,464.50, the share of the Sisseton and Wahpeton Sioux Tribes of an award in Docket 359, to the Eastern or Mississippi Sioux. The awards to the Sisseton and Wahpeton Bands of Sioux represent additional payment for over 25 million acres of aboriginal land in Minnesota, Iowa, and South Dakota taken in 1831 and 1851. In 1972 Congress enacted legislation to distribute these funds to the Sisseton-Wahpeton Tribe of South Dakota, the Devils Lake Tribe (now the Spirit Lake Tribe) and the Assiniboine and Sioux Tribe of the Fort Peck Reservation, and all other Sisseton and Wahpeton Sioux Indians (lineal descendants). In 1971, the tribal groups favored using the 1909 McLaughlin roll as the basis for arriving at the percentages for dividing these funds. The distribution was made to the tribes.
The lineal descendants' share of this award amounts to $1,469,831.50. With accrued interest, currently the account is valued at $14 million. The Bureau of Indian Affairs has yet to distribute these funds due to the difficulties associated with preparation of the roll. The funds have been the subject of four law suits since 1987, three of which were initiated by the tribes. As a result, these funds remain undistributed.
The case of Loudner v. U.S. is still pending before the court. The decision in the Loudner case will require the Secretary of the Interior to reopen the enrollment application process for the lineal descendants before the funds can be distributed. The Loudner case counsels against enactment of H.R. 976. Section 8 of H.R. 976 requires fund distribution of the originally appropriated amount, $1,469,831.50, to the lineal descendants of the Mississippi Sioux Tribe within one year of passage of the bill. It is not likely that all lineal descendants, to whom a fiduciary duty is owed under Loudner, will be determined within one year.
Prior to the enactment of the 1972 distribution Act, considerable time and effort was spent in consulting with the tribes and the tribal members on various methods for distributing these funds. Equal time and effort was spent in developing the lineal descendants' roll. The 1,988 individuals who are listed as eligible to share in this award have also expended a great deal of effort in establishing their eligibility to share in this award. We further anticipate that additional steps will be necessary relative to the enrollment application process to conform with the decision of the court in the Loudner case.
It is essential that the interests of the 1,988 lineal descendants be given due consideration. For many years the descendants have anticipated receiving a share of the judgment funds from Dockets 142 and 359. Therefore, it is inequitable to now change the law to reduce their share of the award to a mere 10 percent of the anticipated share and re-distribute 90 percent to those who have already received their share. Having anticipated payments in accordance with the 1972 Act and given the substantial sums of money at stake, we would expect the lineal descendants to challenge H.R. 976, if enacted. Even if their challenges were ultimately rejected, the litigation could result in considerable expense to the government and additional delay in resolving the matter of compensation for the Mississippi Sioux.
We further believe that enactment of this legislation would set an undesirable precedent. It is not in the interest of the United States to amend the initial distribution scheme ratified by Congress after ample participation by the affected tribes has occurred. The preferred policy in this regard is for the United States to abide by the commitment made to the lineal descendants by the distribution process outlined in the original legislation.
This concludes my prepared statement. I will be happy to answer any questions the Committee may have.
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Public Law 92-555, October 25, 1972
Within the Act, Title II provides that after the payment of attorney fees and litigation expenses, the funds awarded in Indian Claims Dockets 142 and one-half of the funds awarded in Docket 359, plus accrued interest, shall be apportioned on the basis of reservation residence and other residence shown on the 1909 McLaughlin annuity roll as follows:
TABLE I
Tribe or Group Percentage
Devils Lake Sioux Tribe (a.k.a. Spirit Lake Sioux Tribe) 21.6892
Sisseton-Wahpeton Sioux Tribe 42.9730
Assiniboine and Sioux Tribe of the Fort Peck Reservation 10.3153
All other Sisseton and Wahpeton Sioux 25.0225
TABLE II
The enrollment that was prepared under the 1972 Act was as follows:
Tribe or Group Enrollees Percentage
Spirit Lake Sioux Tribe 2,187 15.7963
Sisseton-Wahpeton Sioux Tribe 6,006 43.3803
Assiniboine and Sioux Tribe of the Fort Peck Reservation 3,664 26.4644
All other Sisseton and Wahpeton Sioux (lineal descendants) 1,988* 14.3590
* Information from Bureau of Indian Affairs Enrollment
Return to Witness List
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PANEL II
The Honorable Andrew Grey, Chairman, Sisseton-Wahpeton Sioux Tribe, Agency Village, South Dakota
STATEMENT OF
ANDREW GREY, SR., CHAIRMAN
SISSETON-WAHPETON SIOUX TRIBE
MYRA PEARSON, CHAIRWOMAN
SPIRIT LAKE TRIBE
RAYMOND OGLE, JR., CHAIRMAN
FORT PECK SISSETON-WAHPETON SIOUX COUNCIL
ON H.R. 976
A BILL
TO PROVIDE FOR THE DISPOSITION OF CERTAIN FUNDS
APPROPRIATED TO PAY JUDGMENT IN FAVOR OF THE
MISSISSIPPI SIOUX INDIANS, AND FOR OTHER PURPOSES
DELIVERED BEFORE A HEARING OF THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
OCTOBER 21, 1997
Mr. Chairman and members of the Committee, I am Andrew Grey, Sr., Chairman of the Sisseton-Wahpeton Sioux Tribe of the Lake Traverse Indian Reservation, North Dakota and South Dakota. I am presenting this testimony on behalf of my Tribe and on behalf of Myra Pearson, Chairwoman of the Spirit Lake Tribe (formerly known as the Devils Lake Sioux Tribe) of the Ft. Totten Indian Reservation, North Dakota, and Raymond Ogle, Jr., Chairman of the Ft. Peck Sisseton-Wahpeton Sioux Council of the Ft. Peck Indian Reservation, Montana.
All three Tribes strongly support enactment of H.R. 976. Enactment of this legislation would correct a serious injustice and, in addition, is vital to the future development and progress of the three Sisseton-Wahpeton Sioux organized tribal entities and their nearly 20,000 enrolled members. The legislation, in effect, would amend P.L. 92-555, enacted in 1972, to provide a per capita distribution of $1,469,831.50, to Sisseton-Wahpeton Sioux lineal descendants, from funds appropriated in satisfaction of a 1967 judgment rendered by the Indian Claims Commission in favor of the Tribes. This amount results from multiplying the percentage of the judgment that P.L. 92-555 set aside for lineal descendants by the total judgment awarded.
The legislation would further provide that the interest that has accumulated on the $1,469,831.50 be distributed directly to the three Sisseton-Wahpeton Sioux tribal governments for economic and resource development, and education, social welfare and other tribal programs that would significantly improve the social and economic circumstances of all tribal members.
As the Committee knows, none of the appropriated funds affected by H.R. 976 have been distributed.
Review of the history of the Sisseton-Wahpeton Sioux claims and their disposition in the Indian Claims Commission underscores the merit of H.R. 976 and the injustice of the lineal descendancy distribution provisions of P.L. 92-555.
Nearly 50 years ago, the Sisseton-Wahpeton Sioux Tribe and the Devils Lake Sioux Tribe petitioned the Indian Claims Commission for a judgment against the United States for the loss of 2 million acres of land in 1830 and another 25 million acres of land in 1851. At the time of the loss, the tribe held recognized treaty title to the land. No individual member of the tribe held title to any of these lands. Acknowledging this fact, the Commission, in a 1962 order, determined that the petitioning tribes, alone, were entitled to litigate the Sisseton-Wahpeton Sioux claims.
The Indian Claims Commission action was prosecuted solely by the two petitioning tribes. Before entry of final judgment, these two tribes consented to the joinder of the Ft. Peck Sisseton-Wahpeton Sioux as a party-petitioner. Throughout the nearly 20 years of litigation, lineal descendants did not seek to nor did they participate in the prosecution of these claims.
On July 25, 1967, the Commission entered judgment in favor of the Tribes. The judgment concluded that it was the Sisseton and Wahpeton Sioux Tribe that had been wronged by the United States for it was the Tribe, as an entity, that had owned the land at issue in the litigation. Not surprisingly, therefore, the judgment did not recognize and made no award to lineal descendants. The judgment was agreed to by the United States in a stipulated settlement approved by the Commission. Prior to entry of the judgment, the Commission required the settlement agreement to be approved by the Tribes. The agreement was presented for approval to the members of the Tribes alone - not to lineal descendants. Bureau of Indian Affairs' representatives participated in this presentation and never once suggested that any persons not members of the Tribes would or could receive a portion of the judgment. The Tribes and their members approved the agreement on the understanding that 100% of the judgment would be distributed to them. The record is clear on this. See Sisseton and Wahpeton Bands or Tribes v. United States, 18 I.C.C. 477, 486-493 (1967).
Notwithstanding the settlement negotiated by the United States with the Tribes and the Commission judgment, the Congress in 1972, at the urging of the Department of the Interior, allocated just over 25% of the Tribes' award to lineal descendants, persons whose ancestors had severed their tribal relations with the Sisseton-Wahpeton Sioux well over 100 years ago and who themselves maintain no current relations with the Tribes. The Tribes did not support this allocation but, under duress, were compelled to accept it. We believe it to be unprecedented for the Congress, as it did in 1972, to award any part of a judgment against the United States to persons who had no participatory role in the litigation that brought about the judgment and whose interests, if any, were not addressed by or included in the judgment.
Receiving full recompense for the taking of tribal lands has great historical dimension and significance, as well as emotional resonance, for the Tribes and their members. Because the Tribes believed, in addition, that the loss of 25% of their judgment, representing compensation for 6.75 million acres of land, to persons who were not the beneficiaries of the Commission's judgment constituted an unconstitutional taking and denial of due process, as well as a failure to fully settle the Tribes' land claims, the Tribes supported enactment in the 99th Congress of legislation (S. 2118) that would have eliminated any lineal descendancy distribution. The legislation was also supported by the Department of the Interior and the Department of Justice. The Select Committee on Indian Affairs favorably reported the legislation at the end of the 99th Congress. Unfortunately, time did not permit further consideration of the measure.
Soon after the end of the 99th Congress, the Tribes were informed that the Bureau of Indian Affairs intended to proceed with the lineal descendancy distribution. In April 1987, the Tribes filed suit before the United States District Court for the District of Montana to block this distribution. In this suit, Sisseton-Wahpeton Sioux Tribe et al. v. United States, Civil No. CV-87-095-GF (D.Mont.), the Tribes challenged the constitutionality of those portions of P.L. 92-555 that provided for the distribution of approximately 25% of the 1967 judgment fund to Sisseton-Wahpeton Sioux lineal descendants.
In their complaint, as originally filed, the Tribes claimed that P.L. 92-555:
(1) by granting a portion of the funds, that had vested in the Tribes when the United States paid the Indian Claims Commission judgment in 1968, to persons having no right to or interest in the Indian Claims Commission judgment, deprived the Tribes of their property without due process of law in violation of the Fifth Amendment;
(2) by granting a disproportionate percentage of the judgment fund to lineal descendants and by granting any portion of the judgment fund to persons who do not have a Sisseton-Wahpeton Sioux lineal ancestor (the allegation being that the persons now slated to receive the money do not have such an ancestor) was arbitrary and discriminatory and, accordingly, violated the tribes rights to due process of law and to the equal protection of the law as guaranteed by the Fifth Amendment;
(3) by taking funds that had vested in the Tribes by judgment and contract, took private property for public use without just compensation in violation of the Just Compensation Clause of the Fifth Amendment; and
(4) breached the United States' trust responsibility to the Tribes to manage the Tribes' property in a manner that would protect the property and promote the interests of the tribes.
In a 1987 ruling granting the Tribes' motion for a preliminary injunction enjoining the United States from disbursing the judgment funds, the federal district court noted that the "Tribes' complaint raises serious questions which warrant litigation." In particular, the court concluded that if, as alleged by the Tribes, "the individual lineal descendants were not parties" to the settlement with the United States incorporated in the final decree of the Indian Claims Commission, "the Distribution Act of October 24, 1972, may well constitute a deprivation of the 'property' rights of the Sioux Tribes, in violation of the proscription of the fifth amendment."
In 1988, the court dismissed the claims, concluding that they should have been filed within six years of the enactment of the 1972 distribution statute. The Tribes appealed.
In 1990, the United States Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the claims as barred by the statute of limitations. In doing so, it, too, observed that the "Tribes' substantive claims appear to have some merit; they assert that at no time prior to or including the entry of the final judgment [of the Indian Claims Commission] did the United States represent that non-members would have a right to any portion of the judgment funds, and that in approving the settlement, none of the tribes understood that lineal descendants would be sharing in the distribution of the judgment fund." As noted, lineal descendants were not required to and did not participate in the negotiation or approval of the settlement.
The Ninth Circuit also ruled that if the Tribes amended their complaint to allege that no persons on the lineal descendancy distribution roll have a Sisseton-Wahpeton Sioux lineal ancestor or that only an exceptionally small number of such persons have a Sisseton-Wahpeton Sioux lineal ancestor, the complaint would state valid constitutional and legal claims not barred by any statute of limitations.
The Tribes amended their complaint to allege that an exceptionally small number of persons on the lineal descendancy roll have a Sisseton-Wahpeton Sioux lineal ancestor. The Tribes based this claim on the Secretary of the Interior's representation to the Congress in 1971 that to qualify as a lineal descendant, a person would have to trace lineal ancestry to a member of the Sisseton and Wahpeton Mississippi Sioux Tribe, the aboriginal predecessor entity to the three tribes represented here today. In enacting, P.L. 92-555, the Congress adopted this tracing requirement, the Senate Committee on Interior and Insular Affairs noting that lineal descendants "shall receive their proportionate share of the funds on proof of lineal descendancy with the aboriginal band." (S.Rep.No. 92-144, p. 3).
The aboriginal Sisseton and Wahpeton tribe ceased to exist in 1862. While the Secretary's lineal descendancy roll contains nearly 2,000 names, the undisputed evidence offered during the litigation showed that only 65 traced ancestry to a member of the Sisseton and Wahpeton Mississippi Sioux Tribe alive in 1862. If the nearly 2,000 persons on the Secretary's roll were to receive the distribution contemplated by P.L. 92-555, each would receive, in principal, more than double the principal amount, calculated on a per capita basis, allocated by that law for distribution to the Tribes and their members. If the distribution were limited to the 65 persons who properly traced their lineal ancestry, each of these persons would receive more than 60 times the amount allocated to the Tribes and tribal members.
During the district court's consideration of this phase of the litigation, the Congress, in 1992, amended P.L. 92-555 to waive the statute of limitations defense so that the Tribes could litigate their constitutional claims. This legislation was vetoed. Later in 1992, legislation was enacted authorizing the Attorney General to negotiate a settlement of this litigation with the Tribes. The Attorney General refused to do so.
In 1996, the Ninth Circuit ruled against the Tribes on their amended complaint. The court refused to consider the tracing requirement, clearly stated by the Senate and House Committees in their reports to the Congress, ruling that the language of P.L. 92-555 standing alone authorized the Secretary to forego this requirement.
Recently, the Tribes filed a new federal lawsuit claiming that the lineal descendancy distribution provisions of P.L. 92-555 violate the separation of powers doctrine because they reopen and revise a final judgment. This claim is based on Plaut v. Spendthrift Farm. Inc., 514 U.S. 211 (1995), where the Supreme Court specifically states that the separation of powers doctrine is violated where a federal law reopens and revises a judgment. If, as seems clear from Plaut, the Tribes are correct, the lineal descendancy distribution provisions of P.L. 92-555 are void enactments and were void on the day they were enacted because Congress acted beyond its constitutional powers in reopening and revising the 1967 Indian Claims Commission judgment. Unfortunately, this claim, too, has been dismissed on the ground that the tribes should have raised the claim in their first suit in 1987. The Tribes have appealed this dismissal.
In sum, although the Tribes have been denied the opportunity to litigate their constitutional claims, there is strong support for their position that the lineal descendancy distribution provisions of P.L. 92-555 are constitutionally defective and, indeed, are probably void enactments. These provisions are historically wrong and unfair as well. The Select Committee on Indian Affairs and the Department of the Interior acknowledged this to Congress in 1986 in supporting the elimination of the lineal descendancy distribution required by P.L. 92-555.
After some 150 years of seeking to settle their land claims with the United States, the claims of the Sisseton-Wahpeton Sioux, as presented to the Indian Claims Commission, have not been settled. While the Tribes continue to believe (as did the Department of the Interior in 1986) that lineal descendants should have no right to receive any portion of the 1967 judgment, they support enactment of H.R. 976. This measure fairly settles the Tribes' claims and fulfills the obligations undertaken and commitments and promises made by the United States to the Tribes during the 19th century and as recently as 1967. H.R. 976 should be enacted in the interests of justice and fundamental fairness.
In addition to righting an historical and legal wrong, enactment of H.R. 976 would have an immediate and positive tangible impact on the health, well-being and advancement of the Tribes and their members now and in the future. In these times of severe federal budget cuts, it is evident that an infusion of millions of dollars into tribal programs and projects would facilitate the ability of the Tribes to maintain essential services to tribal members and to develop long-term projects that would economically and socially benefit the entire tribal community for years to come. These monies would reduce Federal dependency by providing the Tribes and others who would be employed by them with income through the economic ventures that these monies will generate. The reallocation of the accumulated interest to the Tribes would clearly further the national policies of tribal self-determination and economic self-sufficiency.
If the funds are distributed per capita, as now contemplated, there is no overall gain for the Tribes as a whole, there is no long-term economic development, no job creation, no ongoing education, no ongoing social and health programs, no investment Leveraging and no capital formation. Moreover. there are no long-term benefits to the individual distributees. In short, a per capita distribution under P.L. 92-555 is contrary to Congress' tribal self-determination policies.
The Department of the Interior opposes enactment of H.R. 976. Among the reasons for the Department's position is the concern that H.R. 976 would effect a taking of property that P.L. 92-555 supposedly vested in the lineal descendants. In 1986, the Department of Justice definitively stated that Congress has the power to review and revise P.L. 92-555's distribution plan without effecting a Fifth Amendment taking. (I am appending a copy of the Department of Justice's opinion for the Committee's review as well as a copy of the Department of the Interior's statements in support of the 1986 legislation which was quite similar to H.R. 976 in general purpose). The Department of Justice was right.
The lineal descendants have never had a vested property right in the funds at issue. As the Department of Justice noted in 1986, these funds have not been paid to them. Relying on "analogous facts" in United States v. Jim, 409 U.S. 80, 82 (1972), the Department observed that P.L. 92-555 established a distribution scheme for tribal property which Congress has the power to subsequently alter. Of central importance, according to the Department, is the fact that "[f]unds appropriated under the Indian Claims Commission Act are tribal property." As Justice Brandeis wrote for a unanimous Court "Congress may make such changes in the management and disposition [of tribal property] as it deems necessary to promote the welfare" of the tribe. Morrison v. Work, 266 U.S. 481, 485 (1925); see also e.g., Sizemore v. Brady, 235 U.S. 441, 449 (1914).
The Department's position was legally correct in 1986 and it continues to be legally correct today. When appropriated in 1968, the funds at issue became tribal property and the judgment in favor of the Tribes was considered paid. United States v. Dann 470 U.S. 39, 44-45, 50 (1985). These funds were placed in an account in the United States Treasury in trust for the Tribes. Id. Thereupon, the Tribes had a constitutionally protected vested right to these funds subject only to the power of Congress, as trustee, to ensure that the money was "ultimately distributed in a manner consistent with the best interests of the Tribe." Id. at 49-50. These "funds were appropriated to pay an award redressing the breach of a treaty with a tribal entity... that suffered from the United States' breach, and both the Commission award and the appropriation by Congress were the means of compensating that tribal entity for the wrong done to it." Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 85 (1977). Accordingly, "individual Indians... [have] no vested rights" in these funds. Id.
That the lineal descendants have no vested rights in the Tribes' judgment fund is further underscored by examination of who these people are. They are non-tribal members whose lineal ancestors either resigned from or disaffiliated with the Sisseton-Wahpeton Sioux 135 years ago, in 1862. As Weeks makes clear, these lineal descendants have no entitlement to a share of the Tribes' judgment. Weeks cited with approval Minnesota Chippewa Tribe v. United States, 315 F.2d 906 (Ct.Cl. 1963). In that case, the Court of Claims stated that: "Tribal lands are communal property in which the individual members have no separate interest which can pass to their descendants who are no longer members of the group" and held that "the Indian Claims Commission Act requires that the awards be made, not to the individual descendants of tribal members at the time of the taking, but to the tribal entity or entities today." 315 F.2d at 913, 914 (emphasis added). And in Halbert v. United States, 283 U.S. 753, 762-763 (1931), the Supreme Court reiterated the general rule, stated in many prior decisions, that "the right of individual Indians to share in tribal Property whether lands or funds. depends on tribal membership and is terminated when the membership is ended " (Emphasis added).
The 1972 Distribution Act was, therefore, an aberration. It occurred, in part, because Department of the Interior representatives misrepresented to Congress that their were no successor tribal entities to the aboriginal Sisseton and Wahpeton Mississippi Sioux Tribe. Traditionally, Congress has not allowed lineal descendants whose ancestors renounced their tribal membership and separated from the tribe to share in a judgment fund distribution. When this has occurred, the circumstances have been unique, generally resulting from the non-existence of any modern-day tribal entity. When a modern-day tribal entity exists, Congress has virtually always assured that Indian Claims Commission judgment funds are distributed only to that tribal entity. The Department of the Interior acknowledged this in 1986 (see attachment) with respect to the judgment fund at issue in H.R. 976. The Department essentially admitted that the 1972 Distribution Act was a mistake and that the Sisseton-Wahpeton Sioux tribal entities should receive all of the funds awarded to them by the Indian Claims Commission.
In fact the lineal descendancy provisions of the 1972 Distribution Act were much more than a mistake. They were an act of confiscation. These provisions were a taking from the Tribes of constitutionally protected vested property rights, Shoshone Tribe v. United States, 299 U.S. 476, 496 (1937); McCullough v. Virginia, 172 U.S. 102,123-124 (1898), precisely because they were not in the benefit of the Tribes nor did they promote their welfare in any way. For this reason, these provisions exceeded Congress' broad trustee authority with respect to the management and disposition of tribal property.
Now, when the Congress has the opportunity to correct the mistake made in 1972, the Department asks this Committee to disregard its own policy, well-established in numerous statutes, and the law long ago established in numerous judicial decisions, and permit "lineal descendants" to receive a substantial portion of the judgment funds awarded to the tribes.
'Taking issue with its 1986 position, the Department, we have been informed, bases its current position on again representing to Congress that there are no successor entities to the aboriginal Sisseton and Wahpeton Mississippi Sioux Tribe. Accordingly, the Department, as it did in 1972, asks the Congress, in effect, to treat the descendants of that aboriginal Tribe, including both the members of the three modern-day Sisseton-Wahpeton Sioux tribal entities and the non-members, as one group of lineal descendants and to treat the judgment award of the Indian Claims Commission as essentially having created an estate that should be passed out to heirs. Not only does this distort what the Congress did in the 1972 Distribution Act - which recognizes each of the three Sisseton-Wahpeton Sioux tribal entities as entitled to share in the judgment as successor tribal entities to the aboriginal Sisseton and Wahpeton Mississippi Sioux Tribe, it disregards the fact that the Indian Claims Commission expressly found that these tribes are the successors in interest to the original Sisseton and Wahpeton Sioux bands. Sisseton and Wahpeton Bands or Tribes v. United States, 10 I.C.C. 137, 139 (1962); 18 I.C.C. 526-a (1967). Moreover, the position ignores the 1867 Treaty with these tribes (15 Stat. 505) which recognizes their successor status and contravenes the Indian Claims Commission Act by disregarding the fact that a Commission award redresses tribal claims to communally held tribal property, not an aggregation of individual claims.
The Department, we are informed, again (as it did in 1972) relies on the 1862 Minnesota Sioux Outbreak as justification for supporting the lineal descendancy distribution provided for in the 1972 Distribution Act. Because of this 1862 event, various Sisseton and Wahpeton Sioux scattered, never to affiliate again as part of a Sisseton and Wahpeton Sioux tribal entity. This choice, freely made, surely provides no reasonable basis for distributing tribal property to them or their descendants. Shortly after the Outbreak, the Sisseton and Wahpeton Bands reorganized as the three successor entities on whose behalf this testimony is provided today. The lineal descendants' ancestors could have - but chose not to -affiliated with one of these successor entities. As we have noted, the Supreme Court and other courts have consistently held that descendants have no right to share in tribal communal property based on descendancy from a lineal ancestor who terminated his or her membership in the tribe. When that ancestor terminated membership, he or she also relinquished any interest in tribal property which, in any event, was not a separable individual interest. Moreover, the Indian Claims Commission judgment corrects an injustice to the tribal entity; it is not intended to "make whole" any individual tribal member, as the Department, in effect, now suggests.
The Committee should take note that if the Department's position is accepted with respect to including lineal descendants in a judgment fund distribution because historical circumstances caused their lineal ancestors to disaffiliate with the tribe, numerous judgment fund distribution laws affecting other tribes would be subject to challenge and review. Historical circumstances similar to the 1862 Minnesota Sioux Outbreak resulted in the members of many tribes ending their tribal membership. Under the Department's view, generally rejected by Congress, persons lineally descended from members of these tribes who disaffiliated with their tribes in the last century would also be entitled to share in Indian Claims Commission judgments awarded to the tribe.
The Department also takes the position that Congress should not consider H.R. 976 because of two different pending lawsuits. The Department made the same argument before the House. The House correctly rejected the argument as not having merit.
One of the pending lawsuits is Sisseton-Wahpeton Sioux Tribe v. United States. As we have noted, this case challenges the 1972 Distribution Act as unconstitutional - a violation of the separation of powers doctrine. It is not unusual for Congress or this Committee to pass legislation while litigation is pending, especially to settle litigation. Since the tribes support H.R. 976, in the event that H.R. 976 is passed and becomes law, the tribes are committed to dismissing their lawsuit and to accept H.R. 976 as fully satisfying their claims. Under these circumstances, there is no policy impediment to acting on H.R. 976. Furthermore, as with the Tribes obligation before the Ninth Circuit, the present litigation is not likely to reach the merits. The Government has vigorously sought to have each of the Tribes' cases dismissed on procedural grounds. Prior to seeking congressional enactment of H.R. 976, the Tribes' were more than willing to litigate the merits of their claim that the lineal descendancy provisions of the 1972 Distribution Act are unconstitutional for a variety of reasons. In 1992, Congress passed a bill that would have waived procedural defenses to this claim. That bill was vetoed. While we are confident that the Tribes would prevail in litigation that reached the merits, it appears now that only Congress will have the opportunity, through H.R. 976, to consider the merits of the Tribes' position that the 1972 Act was mistaken, misguided and a miscarriage of justice.
The Department also opposes H.R. 976 because of the pendency of Loudner v. United States, On March 13, 1997, the Eighth Circuit in Loudner recognized that certain persons - all of whom apparently are members of the Crow Creek Sioux Tribe - claiming to be Sisseton and Wahpeton Sioux lineal descendants should have the opportunity to apply for inclusion in the lineal descendancy distribution provided for in the 1972 Distribution Act. The eligibility of these individuals remains to be determined. The position that this litigation should deter Congress from acting on H.R. 976 also has no legal or policy merit.
Loudner has no consequence for H.R. 976. H.R. 976 would revise the distribution plan in P.L. 92-555 to distribute the principal to the lineal descendants and the accumulated interest to the tribes. If this legislation is enacted, Loudner will either result in the existing pool of lineal descendants sharing the principal, should no other persons be found eligible to share, or in an enlarged pool should others be found eligible to share. In either case, H.R. 976 would still distribute the accumulated interest to the tribes. Therefore, any ongoing legal proceedings in Loudner are entirely irrelevant to Congress' determination of the merits of distributing the accumulated interest to the tribes. The question before the Committee is whether non-tribal persons, whose ancestors either resigned or otherwise disaffiliated themselves from the Sisseton and Wahpeton Sioux more than a century ago should be allowed to receive a substantial distribution of assets that even now still belong to the three tribes. The number of people in the pool of lineal descendants simply is not relevant to answering this question and nothing in Loudner imposes any restraint on the power of Congress to answer this question by amending the 1972 Distribution Act in the manner proposed in H.R. 976.
Finally, I wish to point out that the Administration's suggestion that Congress should do nothing while Loudner remains pending is nothing more than a smokescreen to undermine any possibility for Congress to consider the merits of H.R. 976 or similar legislation. We say this because in 1991, the Department of the Interior, in testimony before the Senate Select Committee on Indian Affairs on legislation concerning the Tribes' claim that P.L. 92-555's lineal descendancy distribution provisions are unconstitutional, stated that just as soon as the litigation ends, the Department would distribute the funds at issue. See Senate Hearing 102-558, pp. 8-9. Obviously, if the Congress delays consideration of H.R. 976 or a future similar bill until such time as these funds are distributed, the Congress will either be deprived of any opportunity to review the fairness of P.L. 92-555 or may need to consider additional appropriations. Delay will only serve to undermine if not eliminate the ability of the tribes to secure any consideration, much less a fair one, by the Congress of their request for a change in P.L. 92-555's distribution plan.
Our final word respects the lineal descendants and their position on H.R. 976. Say what one will, they seek a windfall - to which they have no legal or moral right or entitlement - at the Tribes' expense. Congress mistakenly allowed them the opportunity to receive a share of a judgment that does not belong to them. This mistake does not mature into a right solely because of lapse of time. However, the Tribes are realistic. They understand that these people have developed an expectation that they would receive a distribution of the Tribes' property and that this expectation, although not creating a constitutionally protected property interest, has made some members of Congress uncomfortable with completely eliminating a lineal descendancy distribution, despite their understanding that the 1972 Distribution Act should never have authorized such a distribution in the first place. It is for this reason, that the Tribes have agreed to support H.R. 976 to permit some distribution to be made to lineal descendants while recognizing that the Tribes, in satisfaction of their 1967 Indian Claims Commission award, have a legitimate right to receive the funds H.R. 976 would allocate to them.
For all of the reasons I have stated, the tribes again urge the Committee to approve H.R. 976.
Thank you.
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part 1