Senator MCCARRAN. What department did you get him from? Mr. FINUCANE. From the Immigration and Naturalization Service. Senator MCCARRAN. Why can you not get him again?

Mr. FINUCANE. For two reasons. First, the Service does not have any one available now, and with the increased and expanding work of the Service, their appropriation does not provide for hiring such an employee.

Senator MCCARRAN. Is there any overtime in your Department? Mr. FINUCANE. No; we have no overtime because overtime, under the law, has to be paid for, and we have no funds for that.

Senator MCCARRAN. In the last 2 years you have been handling more cases than you did in the 2 years before that; is that not right? Mr. FINUCANE. Only since 1948 have we been operating under our present regulations, and, as a comparable matter, we can only really consider 1949 and 1950. Prior to that we had a larger jurisdiction, a greater number of cases, and more employees.

Senator MCCARRAN. What is the period of delay now with respect to each appeal, approximately?

Mr. FINUCANE. I cannot give you the exact average.

AVERAGE CASES HANDLED PER ATTORNEY

Senator MCCARRAN. How many cases does one attorney handle per month or per period, whatever period you want to name? Mr. FINUCANE. The average would be about 25 a month. Chairman McKELLAR. That would be for one attorney? Mr. FINUCANE. Yes, one attorney, and all types of cases.

Senator MCCARRAN. And it would depend, of course, on the type of case how long it would take?

Mr. FINUCANE. That is correct. Some cases will take 2 or 3 weeks. Senator MCCARRAN. Are not your regulations pretty well stereotyped now, as well as your rules and your decisions, so that a case falls into a category and is pretty much decided by that?

Mr. FINUCANE. There are always new problems and new angles that are coming up.

Senator MCCARRAN. There are always new problems?

Mr. FINUCANE. Yes, sir.

Senator MCCARRAN. As to immigration?

INTERNAL SECURITY ACT PRESENTS NEW PROBLEMS

Mr. FINUCANE. On immigration because, for example, we now have the Internal Security Act which has presented quite a number of new problems.

Senator MCCARRAN. I am afraid the Internal Security Act was construed to involve more new problems than it really involved. I think some of the constructions of it were unjustified and unwarranted. But that is neither here nor there so far as you are concerned. All right, have you anything further to say in justification of this item of increase that you are speaking of?

Mr. FINUCANE. All I would like to attempt to make clear is the increase in net effect will be one attorney plus bringing us back to the personnel we had prior to the time we had to reduce in order to meet a cut in the budget. There is also the additional fact that we are in recent weeks receiving an increased case load.

Senator MCCARRAN. Why?

Chairman MCKELLAR. You are asking for an increase of one attorney?

Mr. FINUCANE. As I say, we have asked for an increase of two attorneys and one clerk, and we have to make an allowance for the lapse of two employees.

Senator MCCARRAN. Why do you mention that?

Mr. FINUCANE. That is on page 26.

Senator MCCARRAN. Yes; I know; but that does not explain it. Mr. FINUCANE. It says: "Deduct lapses, two jobs."

Senator MCCARRAN. What do you mean by that?

Mr. FINUCANE. It means that the Budget Bureau has allowed. $130,295 for 25 jobs, and then they have taken away $8,331 as the pay for two jobs, leaving us 23 jobs at $121,964.

Senator MCCARRAN. They did the same thing last year?

Mr. FINUCANE. Yes. I say they allowed us 22, but we operated on 19, because we didn't have enough money to pay for 22 or to keep 22 on the payroll. This will not result in actually having 25 employees on the Board's staff. We can only operate on the basis that we have funds to employ 23.

Senator MCCARRAN. Do you want to tell the committee that you believe your work will fall behind if you are held to the same number of personnel that you have this year?

Mr. FINUCANE. I feel quite confident that it will.

INCREASE IN CASE LOAD PRESENT TENDENCY

Chairman MCKELLAR. Is the work behind now?

Mr. FINUCANE. It is not behind now; but on July 1 we had 149 pending cases, and today we have 250. That is not a tremendous increase, I realize, but it indicates a tendency toward a greater case load.

Senator ELLENDER. For what period of time is that?

Mr. FINUCANE. I gave the balance of the case loads as of July 1, the beginning of the fiscal year, and I said that as of last week we had 250 cases.

Senator MCCARRAN. All right. Have you anything further to say on this? We would like to have you justify it because, up to date, you have not convinced me, although you may have convinced the other members. I would like to be clearer on the situation, to be frank with you. I only mention that because you are here, and if you would like to make it more clear, we would like to have the explanation.

Mr. FINUCANE. The facts, as I have mentioned them, are, first, that when we disposed of the large case loads we had had detailed to us an attorney from the Immigration and Naturalization Service. We have no expectation of having similar help in the future. We have been told that the Service cannot give us any help. That is one factor. Senator MCCARRAN. How was it that they were able to give you one last year?

Mr. FINUCANE. I presume they had more money, but they had to recall the attorney loaned to us, although we still needed him, of course. As a matter of fact, it is all coming out of the Government appropriations. The second fact is that while there had been a tem

porary dropping off in the case load, that has stopped, and the tendency is now toward an increase.

Senator MCCARRAN. What makes you believe that? Tell us the fact.

Mr. FINUCANE. Because the number of incoming cases in the last few weeks has averaged over

Senator MCCARRAN. Of course, what you handle is entirely appeals; is that not true?

Mr. FINUCANE. That is right, appeals.

Senator MCCARRAN. Appeals from the subordinate board?
Mr. FINUCANE. That is right.

Senator MCCARRAN. And you see an increase in those appeals?
Mr. FINUCANE. That is right.

Senator MCCARRAN. Why would there be an increase? Can you give me some reason why there would be an increase in the appeals to the Board?

Mr. FINUCANE. The reason is that there has been an arrearage of cases to be processed by the Immigration and Naturalization Service. More cases are now being processed at that level, and normally there is a greater number of appeals.

Senator MCCARRAN. Well, now, does every case that is decided come to you on appeal?

Mr. FINUCANE. Oh, no. It is optional with the alien involved whether or not he wishes to appeal.

Senator MCCARRAN. Has it become quite a practice for private attorneys to encourage the appeals on the part of the aliens involved? Mr. FINUCANE. I would not say so. I do not have the figures. I do not know how many cases the Immigration and Naturalization Services has processed, but I know, as a matter of fact, of many cases that have not been appealed.

Senator MCCARRAN. What is the average fee paid to a private attorney who takes an appeal up to you?

Mr. FINUCANE. I don't know. All I can say is that I do know the fee varies widely. Some attorneys take cases for rather nominal fees, while others charge rather substantial fees.

Senator MCCARRAN. The fee depends on what the traffic will bear? Mr. FINUCANE. I think that has a lot to do with it.

Senator MCCARRAN. All right. Are there any questions?

Senator ELLENDER. Does your department do any work for any of the committees of Congress?

Mr. FINUCANE. The Board?

No.

Senator ELLENDER. You are not doing any work of that type?
Mr. FINUCANE. No, sir.

Senator MCCARRAN. If there are no further questions, we thank you very much.

Mr. FINUCANE. Thank you, Mr. Chairman and members of the committee.

GENERAL LEGAL ACTIVITIES

SALARIES AND EXPENSES

Senator MCCARRAN. We come now to "Salaries and expenses, general legal activities," the next appropriation item for consideration.

We will insert in the record page 53 of the justifications, which page reflects that you are requesting an appropriation of $9,072,000, which is an increase of $1,599,500 over your current year appropriation. We will take these matters up one by one.

LANDS DIVISION

The first breakdown that we will consider under this head is Lands Division. The current year appropriation is $2,813,600, and for next year you are requesting $3,052,160, or an increase of $238,560. You hope to increase your staff from 409 positions to 433 positions, an increase of 24 positions. Please give the committee your justification for this increase.

(Pages 53 of the justifications referred to is as follows:)

STATEMENT OF A. DEVITT VANECH, ASSISTANT ATTORNEY GENERAL, ACCOMPANIED BY C. G. TADLOCK, ADMINISTRATIVE OFFICER

INCREASED AMOUNT DUE TO INDIAN LITIGATION WORK

Mr. VANECH. Mr. Chairman and members of the committee, this increase of $238,560 is to cover the Indian litigation work. In 1946, the Congress set up the Indian Claims Commission. There are 110 cases pending before the Indian Claims Commission, with the liability against the United States of $9,897,954,734, which the Lands Division has to defend.

Senator MCCARRAN. Now, Mr. Vanech, I wish you would go into that matter at quite some length. Tell us how these cases began, what they involve, and what your decision has to do with reference to them. I think this is one of the most serious things before the Congress today. On the Appropriations Committee we have these judgments coming up, and we say, "Well, they are judgments against the Government, and they have to be paid. That is all there is to it." So we pass them. We had one here the other day that was for $33,000,000, was it not?

Mr. VANECH. Mr. Chairman, I shall be pleased to.

Senator MCCARRAN. Well, go ahead.

Mr. VANECH. Mr. Chairman and members of the committee, we are asking for 24 new positions, 11 professional positions totaling $70,300, and 13 clerical positions totaling $51,231.

This increase is to handle the Indian claims litigation. Heretofore I told the members of the committee that I would not request additional funds for more personnel until there were enough claims filed and also not until they began to press these claims. I said then that we would try to work it out with our present staff. We have assigned six attorneys to this work.

The statute is about to run. Next August the 5 years will be up. That is the time within which to file claims. Then, the Commission has a tenure of 5 years more to dispose of these claims.

Senator MCCARRAN. Senator McCarthy, your presence is noted. We are glad to see you.

Will you continue, Mr. Vanech? What are the provisions under Public Law 726, Seventy-ninth Congress?

COMMISSION FUNCTION

Mr. VANECH. The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska: (1) Claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the United States if the United States was subject to suit; (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; (4) claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant; and (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. No claim accruing after the date of the approval of this act shall be considered by the Commission.

All claims hereunder may be heard and determined by the Commission notwithstanding any statute of limitations or laches, but all other defenses shall be available to the United States.

TENURE OF COMMISSION

Chairman MCKELLAR. How long will that period last?
Mr. VANECH. Five years, Senator.

Senator MCCARRAN. Do you mean 5 years from now?

Mr. VANECH. Five years from August 1946. However, the Commission has 5 years more in which to hear or dispose of the cases that have been filed.