It appears to me that the settlement process is going slower than we anticipated and that it may not be able to get all the interested parties to agree. At Our meeting on November 29th you will recall that Leo Krulitz suggested he would have a bill in April or ay of this year. I am under the impression that should settlement discussions fail you may expect that the Department of Justice would actually suc landowners in the claim areas. In addition, the Administration's proposed Wine Claim bill will raise a question in the public's mind as to whether or not we intend to treat the small landowners the same in New York, South Carolina and Louisiana. As you know, the Administration proposes to submit a bill to Congress on the Maine claims which would extinguish Indian title to all land holdings up to 50,000 acres per owner and provide $25,000,000 in payment to the tribes. After careful thought, I have decided that I will not bring suit against the landowners in the New York, South Carolina, o: Louisiana clain areas. I have 2 number of questions about the legal and factual issues in these suits and question whether they can be won. Furthermore, the fact that the landowners are completely innocent of any wrongdoing weighs heavily against und saga. Finally, the administration's policy decision to relieve small landowners in Maine' from suit throuch a legislative settlement recommends the same relief to others similarly situated. This is not to say that the tribes involved do not have some equitable complaint, using that term in the broadest sense. Other tribes have been compensated over the years for the ancient takings which occurred as a result of the western movement and settlement of the nation. However, it is completely within the power of Congress to remedy the tribal claims by the process of ratifying the ancient tribal agreements with the states. Such ratification could be accompanied by payments to the tribes in appropriate amounts. In the alternative, the tribes could be given a cause of action against the United States in the Court of Claims. My decision applies only to private land owners. I am undecided as yet with regard to suits against the states of New York, South Carolina or Louisiana. There are several considerations. For example, o::" the one hand it is true that those states bear some responsibility for the title problems. On the other hand, suits against the states are in effect suits against public lands which involve such things as highways and parks. As a matter of principle, I believe the landowners should know of my decision not to sue them as soon as possible. The decision could be announced at a time upon which you' and I agree. My inclination is to announce it at the same time that the Administration sends up the Maine bill. I would also recommend that the Administration commit to introduce a bill to solve the private landowners' title probicas in the claim areas in New York, South Carolina and Louisiana. 79 INDIAN LAY KEľUKTEK 6 ILR M-19 SURVEY AND ANALYSIS Trust Responsibility: U.S. Department of Justice Editor's Note: The following letter from Attorney General Griffin Bell to Interior Secretary Cecil Andrus was released by the Department of the Interior on June 8, 1979. It is the culmination of a series of exchanges beginning with a request by Senators Henry Jackson and Wurren Magnuson that the Department of Justice review the federal governinent's trust relationship with Indian tribes. The original request as well as subsequent input are reported at 5 ILR O-65, M45, M-55 (1978). May 31, 1979 Honorable Cecil D. Andrus Secretary of Interior Washington, D.C. Dear Mr. Secretary: As you know, the Department of Justice has long represented the United States in litigation for the purpose of protecting Indian property rights secured by statutes or treaties. This has been and will continue to be an important function of this Department, and I would like to set forth my understanding of the legal principles governing its conduct. In fulfillment of the special relationship contemplated in the Constitution between the Federal Government and the Indian tribes, the Congress has enacted numerous laws and the Senate has ratifed numerous treaties for the benefit and protection of Indian tribes and individuals, their property and their way of life. Where these measures require implementation by the Executive Branch, the administrative responsibility typically resides with the Secretary of the Interior. § (10) 43 U.S.C... The Attorney General is in turn responsible for the conduct, on behalf of the United States, of litigation arising under these statutes and treaties. This obligation in Indian cases is but one aspect-albiet an important oneof the Attorney General's statutory responsibility for the conduct of litigation in which the United States or an agency or officer thereof is a party or is interested. 28 U.S.C. §§ 516, 519. The Secretary of the Interior and the Attorney General perform their duties here, as in all other areas, under the superintendence of the President. We are the President's agents in fulfilling his constitutional duty to take care that the laws be faithfully executed. Where a particular statute, treaty, or Executive order manifests a purpose to benefit all Indians or a tribe or individual Indians or to protect their property, it is the obligation of the responsi ble Executive Branch officials to give full effect to tha: purpose. In your role as Secretary of the Interior, you are charged with administering most of the laws and treaties applying to Indians and are often in a policy formulating role with regard thereto. And where litigation is concerned, it is the duty of the Attorney General to ensure that the interest of the United States in accomplishing the con The Executive and Judicial Branches have inferred in many laws extending federal protection to Indian property rights and intent that the Executive act as a fiduciary in administering and enforcing these measures. Where applicable law imposes such standards of care, faithful execution of the law of course requires the Executive to adhere to those standards. Thus, it in no way diminishes the central importance of our respective functions to acknowledge that they find their source in specific statutes, treaties, and Executive Orders or to recognize that they are to be performed with the same faithfulness to legislative and executive purpose as are the obligations devolving upon this branch of the federal establishment generally. A significant portion of the litigation with which we are concerned relates to property rights reserved to a tribe by treaty or in the creation of a reservation or property which Congress has directed be held in trust, managed, or restricted for the benefit of a tribe or individual Indian. When the Attorney General brings an action on behalf of the United States against private individuals or public bodies to protect these rights from encroachment, he vindicates not only the property interests of the tribe or individual Indian, as they may appear under law to the United States, but also the important governmental interest in ensuring that rights guaranteed to Indians under federal laws and treaties are fully effective. There is no disabling conflict between the performance of these duties and the obligations of the Federal Government to all the people of the Nation. The tunctional thesis upon which our form of government is premised-the Separation of Powers-pre-supposes that the people as a whole benefit when the Executive Branch enforces the laws enacted, and protects Indian property rights recognized in treaty commitments ratified, by a coordinate branch. The fact that an identifiable class realizes tangible benefits from litigation brought by the Federal Government does not distinguish Indian cases from many civil rights, labor and other cases. Just as we go to court to enforce the laws designed to protect minorities from discrimination or disenfranchisement by the majority, we must litigate when necessary to protect rights secured to Indians without reference to whether any present majority of the citizenry would profit from, or otherwise embrace, that action. It is important to emphasize, however, that the Altorney General is attorney for the United States in these cases, not a particular tribe or individuai Indians. Thus, in a case involving property held in trust for a tribe, the Attorney General is attorney for the United States as "trustee," not the "beneficiary." He is not obliged to adopt any position favored by a tribe in a particular case, but must instead make his own independent evaluation of the law and facts in determining whether a proposed claim or defense, or argument in support thereof, is sufficiently meritorious to warrant its presentation. This is the same function the Attorney General performs in all cases involving the United States; it is a function that arises EXHIBIT C INDIAN LAW RI PORTER from a duty both to the courts and to all those against hom the Government brings its considerable litigating sources. The litigating position adopted by the Attorney General on behalf of the United States may affect your Iministrative and policy-making functions. According with respect to all litigation in which the Attorney General represents the United States in protecting Indian operty rights secured by statutes or treaties, this partment would expect to receive-and would most carefully consider-the advice of your Department, possessing as it does the primary policy responsibility in dian matters. Where there are other statutory obligations imposed on the Executive in a particular case aside from those ; "fecting Indians, faithful execution of the laws require 1: Attorney General to resolve these competing or overlapping interests to arrive at a single position of the United States. In arriving at a single position, however, must also take into account the rule of construction пс 7/12/79 firmly established that Congress' actions toward Indis are to be interpreted in light of the special relationshi; and special responsibilities of the government to" ard the Indians. And, finally, the President's duty faithfully to execute existing law does not preclude him from recommending legislative changes in fulfillment of his constitutional duty to propose to the Congress measures he believes necessary and expedient. These measures may—indeed must be framed with the interest of the Nation as a whole in mind. In so doing, the President has the constitutional authority to call on either of us for our views on legislation to change existing law notwithstanding the duty to execute that law as it now stands. I look forward to close cooperation between our two Departments in these matters. Yours sincerely, Griffin B. Bell Attorney General |