ing it to legal oversight aimed specifically at protecting conflict-ofinterest situations with the authority to hire such counsels as is necessary? Is that in conflict with any of your operations or your understanding of this legislation? Mr. FRIZZELL. May I inquire; is it part and parcel of the premise that you have laid out, specifically that the Department of Justice will continue to represent Indian natural resource cases when there is deemed to be no conflict of interest? Is that part and parcel of your concept? Mr. STEIGER. You couldn't inhibit the Department of Justice even with legislation. Yes, absolutely-in fact, as the Chairman stated, and I think you did and I know Secretary Kyl did, this authority, this counsel is only for the purpose of conflict-of-interest matters and does not minimize the responsibility of Justice to pursue those areas and resources where there is no conflict of interest. Mr. FRIZZELL. That is not my understanding of the bill at all. Mr. JOHNSON. Congressman, if I may address that issue, it is our understanding in the Department of Justice, that upon the creation of this authority we will transfer all of those cases, whether there is a cosmetic conflict or not, that would fall within the resource area. Mr. FRIZZELL. On page 5, line 6, "provided that" Mr. JOHNSON. And for a number of reasons, some of which are operational and some of which are legal, we would argue quite strenuously that there not be a bifurcation of responsibility. We talk quite blithely here about a conflict of interest, but I have searched in absolute vain for any case that has been referred to the Department of Justice by the Department of the Interior where they have asked us to initiate legal action, and where we have failed to initiate legal action. We would not initiate legal action if there were an obvious conflict of interest. So if you were to just use conflict as a standard to determine what the authority would do, as I perceive the application of those rules, they would have nothing to do. Mr. STEIGER. Well, of course, unfortunately these matters are all in the eyes of the beholder. If you go to the top of page 5, Justice has perceived on top of this act, "Nothing in this act shall absolve the Department of the Interior and the Department of Justice of their responsibilities to the Indians, including those which derive," and then it goes on to talk about resource matters. Now, I would be very much opposed to establishing a Trust Counsel whose sole purpose in life was all resource matters relating to Indians, because there you are saying that Justice and the Department haven't got the capacity to handle the nonconflict resource matters. That is not an issue. That has never been raised. Nobody has ever implied that the Federal Government has failed of its advocacy responsibility with regard to Indian rights where there is no conflict of iterest. The excuse for this legislation is that we need it because there is a potential conflict. Well, I don't want to relieve the Justice Department or the Department of the Interior of the responsibility to continue to utilize that fantastic in-house capacity they have developed over the last 200 and some or 169 years. It just seems to me-I confess to overlooking this language, and Mr. Chairman, at the proper time I personally am going to ask that the authority of this Counsel be limited to conflict of interest matters with regard to resources so as not to lose this authority that has been built up over the years, unless you gentlemen tell me where we have done a bad job in representing. Would you care to tell me about that? Mr. FRIZZELL. May I respond, Mr. Chairman? Mr. STEIGER. Yes. Mr. FRIZZELL. I see this inherent problem in your approach to solving this problem. Let's say the Indian Trust Council Authority is so limited only to deal with and refer those cases where they say there is a conflict of interest. Mr. STEIGER. Excuse me. Not where we say but where the Indian entity involved says, and that seems to me to be very protective, but go on. Mr. FRIZZELL. All right. The Indian individual or tribe goes to the Indian Trust Counsel Authority and they say the Department of Interior and the Department of Justice have a conflict of interest here. That Indian Trust Counsel Authority, in its wisdom says yes, and so they hire outside counsel. But in the next case they say no conflict of interest, and the case ends up over at Justice. I am saying you can't tell when a given case is filed, until all the parties are in and all the arguments are made, what interests are involved in advance of the trial of the case. I am saying and predicting that even in those cases, where it is determined there is no conflict of interest, one may still arise and the changes will still be made. Mr. STEIGER. At that time, then, the counsel will have to assume its authority. Mr. JOHNSON. Congressman, I would like to speak in support of Mr. Frizzell's observation. In looking at the problem from a management standpoint in a litigating agency, there is no way to determine beforehand which cases would not pose this potential Mr. STEIGER. It is not your responsibility, it is the aggrieved responsibility. Mr. JOHNSON. It is our responsibility to aggressively articulate a point of view in litigation where we are representing the party. There is no way to aggressively present that point of view if in fact we are lobbing the ball back and forth between the Authority and Department of Justice. There is no way to split it down the middle, and the inevitable result will be inadequate representation, whether we are representing the parties or the Counsel is. Mr. STEIGER. I have taken up too much of your time, Mr. Chair man. But one thing is very obvious, this million and a half figure had to be arrived at on the basis of some experience in litigation within the Department. If we are saying we are going to remove all the natural resource responsibility from Justice, then we are going to have to know some very hard figures which have to be available as to what that involved. What are we talking about over the years, and your response is to the chairman you only respond to those which might be in conflict, as I understand the conversation. Well, that was my understanding. I think that we are walking away from-either that or you are going to transfer all of these people who have this expertise, you are going to transfer them over to this Trust Counsel and they will carry all the prejudices with them as they had before that poses a conflict of interest. So I don't agree with your statement, and I can say that because I don't have the experience of administering any programs, but I don't agree that that will lead to a differentiation of efforts. I think it is very carefully stated in here that if an aggrieved feels there is a conflict of interest he has a place to appeal now, and that seems to me eminently desirable. I can't imagine counsel ever saying no; you don't have a conflict of interest if there is any reason to believe there is. If in the course of litigation a conflict of interest arises, clearly, then, the Counsel Authority could be invoked. I don't follow your reasoning, other than the fact that you just want to get rid of this stuff. I can't blame you for that, but I don't believe that is the function of this body. Mr. KYL. Two observations on how you determine the conflict of interest. A moment ago you said if we took someone who had been employed by the Bureau of Indian Affairs for 10 years he would be prejudiced in his views. Obviously this same prejudice exists now, and we sometimes don't like to admit there is a conflict of interest because we don't want to reflect on what we have done. It is the situation, not the people. But on the other hand, if you look back on your hearings of last year, Mr. Adrian Fisher, in response to a question by Mr. Stoddard, stated: I must confess that I am extremely embarrassed because I am wearing at least two hats. The Attorney General told me I am not to oppose the immediate position for this project to proceed because he has conferred with the Corps of Engineers and they don't want it stopped. On the other hand, Congress told the Indians they may have the U.S. Attorney appear to represent them. They have told me definitely that I am to oppose. Now, this kind of situation exists. It is a political fact of life. I need not tell the gentleman Mr. STEIGER. I agree. To me, that is the justification for this bill. But I don't see where that protection would be mitigated by letting those matters which are not in conflict stay where they are. That is the only basis. Mr. KYL. It is a point in which we can deliberate in private to see if we can arrive at some conclusion. I think the gentleman may have a valid point. Mr. MEEDS. The gentleman from Nevada. Mr. TOWELL. My colleagues have apprised and have many questions, and I am sure we will get many more answers. The thing that disturbs me, perhaps a more philosophical side of the whole Indian situation and not just the bill, to me this bill becomes another patchwork. We will try to solve this problem by creating another special, small department or agency or whatever you want to call it, and we will patch that problem over here and be back here next month patching another problem. That is the thing that disturbs me, that there seems to be no overall plan. Perhaps it is almost unanswerable. I would ask one question of Mr. Chambers, and my colleagues have mentioned the situation at Pyramid Lake. Mr. Chambers, you indicated that even without this legislation you were proceeding, and you felt that the Indians were being vindicated in this particular situation. So if the Department is proceeding without this type of legislation why do we need it? You said this was a major case, and indeed it is. Mr. CHAMBERS. Representative Towell, that has been a long and dreary battle to change the Department's position, our Department, also the Department of Justice's position in this case that has gone on for several years. In the report that I delivered earlier this morning to the clerk of the committee I discussed several cases where there has been a conflict of interest in the past. The report was written 3 or 4 years ago, and it delineates the long and difficult battle to change the position of the U.S. Government in the Pyramid Lake situation. So I think there are some cases where we do adequately represent the Indian interest and that even where there is a conflict of interest Indians do not always lose. My position within the Department is to be a battler for the Indian position in cases like Pyramid Lake and this is one where the Indian position has won out. Mr. TOWELL. Not yet. Mr. CHAMBERS. Well, within the Department it has. Of course, in court the court will ultimately have to determine the situation. Mr. TowELL. I just wanted to make it clear there were still ongoing proceedings, and I am sure all the fine attorneys will have their day in court. In effect you are saying by having this Board you are all of a sudden going to speed everything up. Those years of delay are going to be speeded up. I have never seen a group of attorneys, when put on a board, speed anything up. Mr. CHAMBERS. Congressman Towell, I guess my point is this, that the Pyramid Lake controversy has been a controversy for 30 years or more. Now, if 30 years ago there had been an Indian Trust Counsel Authority in existence, I think what is very likely what is going to happen this year would have happened 30 years ago. And it should have happened 30 years ago that the Indian Trust Counsel would sue in the name of the United States and it would sue, among other people, probably the Secretary of the Interior for subordinating Indians' interests to the reclamation project, and the issue would have been resolved in court long ago. I think more cases will be brought if you have this authority and the Indians interest will be represented in more cases than it is now. But, of course, certainly in the Pyramid Lake case I think the U.S. Government is going to proceed vigorously to represent the Indian interest, and that is another solution to the problem. Mr. TOWELL. We don't have to harp on that particular case. As my colleague from Arizona pointed out down there, the Navajos have a vast supply of attorneys, as in the case of the Pyramid Lake cases, they have had attorneys. I don't know about the previous years, but certainly the past several years. I am sure other Indian tribes and other Indian nations throughout the country have been represented. I don't quite understand why all of a sudden, 6, 9, or 109 attorneys are going to solve the problem. Mr. CHAMBERS. The Navajo tribe has more resources than most tribes. The Pyramid Lake tribe was only able to bring the case to the district court here in Washington because there was a nonprofit, privately funded, public-interest law firm working with Indians that could represent it. That law firm, for example, spent over $100,000 in legal time and in commissioning expert witnesses for which they are now suing the Government on the theory that the Government shouldn't have made them spend the money. But just to put a dollar figure on it, that case cost the fund over $100,000, and the Indians could never have had that kind of resources without private funding. Mr. TOWELL. We have been here some time, and I don't want to hold up my colleagues. Mr. MEEDS. We can come back this afternoon. Mr. TOWELL. I think perhaps we have raised some valid points this morning, and I would hope we could get a little more valid information on the number of Government attorneys already involved in Indian claims and suits, as the chairman has pointed out. To the best of my knowledge we are dealing with the Bureau of Indian Affairs; roughly 488.000 Indians fall under that jurisdiction. I have some good friends who are attorneys, but perhaps to paraphrase Winston Churchill, as to attorneys working for the Indians, "never have so many done so little for so few." Gentlemen. Mr. STEIGER. Finished. Mr. MEEDS. Obviously, my colleague is an attorney. What was it-maybe I will have to wax poetic. Samuel Clemens says, "Why is it the horse snickers when he draws the attorney by." I would like to ask Mr. Johnson how many of the cases presently pending would fit the discription of the bill on page 5, line 6, where the Department of Justice is relieved of the responsibility of working with the Indian tribes with regard to their rights or claims to natural resources? Mr. JOHNSON. I would anticipate 300 cases would be transferred to the trust authority. Mr. MEEDS. 300? Mr. JOHNSON. Yes. Mr. MEEDS. This would be handled by one counsel and six assistants, attorneys? Would you be able to do that with your attorneys? Mr. JOHNSON. Well, it is almost impossible to assign a numerical responsibility for these cases to any set number of attorneys, because the nine attorneys I referred to within our own division are handling numerous cases, many of them not relating to Indian natural resources claims at all. Mr. MEEDS. How many attorneys in your Department are working on the Pyramid Lake case? Mr. JOHNSON. That figure will vary from time to time, naturally. Mr. MEEDS. How many attorneys do you think you will have in the Pyramid Lake case by the time it is finished? Mr. KIECHEL. Maybe I would say eight attorneys, approximately. Mr. MEEDS. For one attorney working full time for 8 years; right? On one case? Mr. KIECHEL. It is a big case. Mr. MEEDS. There is no guarantee it will be the last big case, either, is there? |