Mr. MEEDS. Very well.

Without objection the statement of the Northwest Affiliated. Tribes will be made a part of the record immediately following your testimony here, Lucy.

I just have one question. You didn't have the opportunity to be here yesterday. But the Department of the Interior and the Justice Department testified yesterday, and they suggested that $1.5 million would be sufficient to fund this and provide adequate counsel for the authority which is in this legislation.

On behalf of the Northwest Affiliated Tribes, is it your opinion that that would be sufficient?

Mrs. COVINGTON. I don't think it would be sufficient if it is going to take more than one attorney to handle all the tribal problems created by not having an attorney.

Mr. MEEDS. Very well.

Thank you very much, Lucy. We appreciate your presence here. Mrs. COVINGTON. Thank you.

Mr. MEEDS. It is good to see you again.

Mrs. COVINGTON. Thank you very much.

I should have probably been a little more prepared. But I had a flight to catch.

Mr. MEEDS. Our next witness will be Mr. John Echohawk, who is attorney for the Native American Rights Fund.

Please come forward, sir.

Please go ahead, Mr. Echohawk. Do you have a prepared statement?

STATEMENT OF JOHN ECHOHAWK, ATTORNEY, NATIVE AMERICAN RIGHTS FUND

Mr. ECHOHAWK. Congressman Meeds, I was originally scheduled to testify this afternoon. I don't have copies of my testimony here yet. I was going to pick them up at noontime.

Mr. MEEDS. Very well. Would you like to go ahead and summarize, and we can enter your prepared statement when it is prepared?

Mr. ECHOHAWK. Sure, I would be glad to.

Mr. MEEDS. Without objection the statement will be made a part of the record.

Mr. ECHOHAWK. Congressman Meed, I was originally scheduled to testify with a panel of Indian attorneys here today, including not only myself but Mr. Tom Frederick, representing the American Indian Lawyers Association, and Mr. Sam Deloria, representing the American Indian Law Center. These two gentlemen, however, were not able to make it. So I will attempt to not only express my thought on the bill, but also some of theirs as I understand them.

It has been 3 years now since President Nixon announced his policy on Indian Affairs, which included the call for the establishment of an Indian Trust Counsel Authority. He clearly identified at that time the existence of the conflict of interest and the fact that it was intolerable, and that something had to be done about it, that Indians were losing their righs every day as a result of this conflict. And there rights every day as a result of this conflict. And there has been legislation in the Congress now for 3 years to establish the Trust Counsel. And, of course, nothing has happened in 3 years.

I have submitted statements on the bill before the Congress before. And, frankly, it was very difficult for me to decide whether I ought to come up here and testify on this bill. I think there has been a lot said on it I don't know what else can be said. We need this legislation. And, as I understand it, there are two main problems that are delaying action on this bill here in the House and in the Senate. There are apparently some people who don't believe that there is such a thing as conflict of interest. With all due respect to you, Congressman Meeds, I know that you are very aware of the problems, but I understand that there are other people in the Senate and in the House who fail to understand this conflict of interest and fail to acknowledge the existence of the conflict of interest. All that has to be done is to go back through all of the meetings and the hearings and letters that have been written over the last couple of years, the most notable hearings in my mind are the hearings two years ago before the Senate Subcommittee on Administrative Practices and Procedures, the series of hearings detailing instance after instance of conflict of interest, and the results which came about. And I think it is undeniable that the conflict is there even the President has acknowledged it. And I don't think that we can tolerate anyone denying that, we have got to get on with the business of getting this bill enacted.

And I also understand that a second factor in the delay in implementing this legislation is the concern in expressed over absolving the Justice Department of its responsibilities in the area of Indian natural resources. And the bills as written do absolve the Justice Department. And I understand-Iwasn't here yesterday, but I understand they are sticking to their position that they want that provision in there, they want to be absolved in this area. And I know, as expressed by the previous panel, that there is a lot of Indian opposition to that. And if that is a log jam, let's do something about it.

I would suggest that we just go ahead and pass it and leave it in there, because when we look at the situation we have today, it is almost as if we had no legal trustee at all anyway. So many of the cases involve conflicts of interest, and even when they do attempt representation today, they do more damage than they do good.

We are representing the Southern Utes in the Ute Mountains in Colorado now in water rights adjudication in Federal court in Colorado. Unfortunately, we are just picking up this representation at the level of the 10th circuit court of appeals, because the Indians have lost the first round in the Federal court, lost through the representation of the Justice Department, in whom they placed their trust. The Justice Department responded by resolving the conflict of interest in favor of the United States, and chose to concentrate their efforts in the Federal court on trying to uphold the court's jurisdiction to hear the Federal rights, completely forgetting to make the arguments on behalf of the Indians. The Federal Government, the judge says, their rights can be adjudicated in the State court, there is concurrent jurisdiction in the State and Federal courts.

The Indians' rights, however, are not subject to adjudication in the State court. They can't send the entire case to the State court because of this.

In our view, the Justice Department did a miserable job in trying to point this out to the court and saying, even though you might be able to send us, the Federal Government and our Federal Reserve rights, down

to the State courts, it is impossible to send the Indian rights now, there is no jurisdiction over the Indian rights. And they proceeded to confuse the court and paint everything as Federal and the court consequently ordered the proceeding, on the basis of abstention, to go to State court. And consequently, we are on appeal now to the 10th circuit court of appeals in Denver.

That is just one example of some of the representation that is going on today.

That is all we have as a trustee, and it is not very much. I can't see that we are losing a whole lot by absolving Justice in the area of natural resources.

Mr. MEEDS. Could I just interrupt you long enough to have you give me that last illustration in a little more detail?

Do I understand that in a case pending in which the Justice Department represented a tribe they failed to make the argument that this tribe's interest could not be adjudicated by a State court?

Mr. ECHOHAWK. They made the argument, but not in the most aggressive sense, not as a true Indian advocate ought to, not as a trustee ought to. They made the argument, but only in passing.

Mr. MEEDS. Please proceed.

Mr. ECHOHAWK. I think the concern about absolving the Justice Department in the area of protection of Indian Trust Counsel Authority, when it comes into creation, is going to be inadequately financed-we are going to have to depend upon the Congress for appropriations, and if the Indian Trust Counsel Authority does the job that it should do on creation, there is a good chance that they are going to incur the wrath of a lot of anti-Indian interest, and that could cause problems come appropriation time. I think this is our concern.

Of course, there has been much talk here today about what the level of funding ought ot be. Of course, everyone wants to see it adequately financed. And I think in this regard our experience is that the Native American Rights Fund may be of some help to the subcommittee.

As you know, the Native American Rights Fund is a privately funded Indian interest law fund, depending completely on grants and contributions for its existence, and not charging our Indian clients fees at all, most of them being unable to pay fees. And we take cases based upon the significance of the case and the importance to Indian people. We have been in existence now 3 years. We started out as a three-man firm, and we are now up to 15. With 15, we currently operate at a level of a budget of $700,000 a year for 15 attorneys.

I might add that that is really insufficient for the 15 that we have. Our salaries aren't as high as they should be. Oftentimes we run into problems with litigation expenses, travel expenses. We really have to stretch that budget.

Mr. MEEDS. How much do your salaries average, if you don't mind telling me?

Mr. ECHOHAWK. Our salaries average about $16,000 and that includes attorneys all the way from years of experience down to new graduates, the average experience being about 4 years, the average salary being about $16,000.

At the last count our quarterly docket, we had, I believe it was, 114 matters under consideration. And I haven't really made an accurate count, but I would estimate that approximately 40 of these cases are in litigation. And I might add that of those 40 there are only maybe

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five or six that are major kinds of cases, the kinds of cases which I would perceive the Indian Trust Counsel doing very much of. And we can see many of these cases that we are not involved in in any way proceeding around the country which the Indian Trust Counsel ought to be into.

I can see where adding another 12 major cases like that would just push our budget to the breaking point, and we could not operate. So what I am saying is, where we may be able to operate on $700,000 a year with 15 attorneys, that may not be a sufficient operating level for the Trust Counsel Authority.

You mentioned the figure of a million and a half annual budget proposed for the Trust Counsel Authority. Based on our experience, a million and a half, we could probably double our staff and it would be 30 attorneys. But, again, we are not involved in the kind of cases that the Trust Counsel ought to be in nearly the proportion. We have only got a few major cases, and the Trust Counsel is going to have several; where we may be able to use 30 lawyers with a million and a half, I would just guess that the Trust Counsel would only be able to have 20, and I don't believe that is enough. This is not only our group working in this area, but we have got all the legal services programs that serve Indians. I think eight in particular, that are located on Indian reservations. And they are involved in the same kind of litigation that we are, which in many instances is really performing the role that the trustees of the United States ought to be performing, we are suing the United States, and we are suing the States.

And then we would bring in the resources of the private bar, Mr. Simpson and Mr. Lazarus, who testified earlier.

There are a lot of lawyers representing a lot of Indians in this country now. And if the Trust Counsel is going to come in and provide the assistance that is needed, and the additional assistance in terms of invoking the name and the sovereignty of the United States in bringing these suits, which we were unable to as legal services attorneys or private attorneys, and also have at its command the resources of the Federal Government to bring these suits, these are just fantastic additional advantages in litigation, advantages that I know our firm would like to have, and I am sure the private bar would like to have.

But I just wanted to appear here today and make a plea to take some action on the bill, because it is sorely needed. We have been suffering for the 3 years that this legislation has been in Congress. And I would just call upon you to do whatever you can to make this legislation available.

[Full statement follows:]

STATEMENT OF JOHN E. ECHOHAWK

I appreciate this opportunity to testify concerning the pending legislation to establish an Indian Trust Counsel Authority.

It has been three years since the President announced his Indian policy calling for, among other things, the creation of an Indian Trust Counsel Authority. He candidly admitted the intolerable conflict of interest faced by the United States in representing both the interests of the United States and those of the Indians in its capacity as legal trustee for Indian property interests.

As a law student a few years ago, I studied the problems arising from this conflict of interest. Now, as a lawyer representing Indians, I experience these problems on a daily basis.

If there was ever a priority in Indian affairs, the establishment of a Indian

Trust Counsel Authority must rank near the top in importance, for without adequate protection of the Indian natural resource base, the tribes cannot survive economically or governmentally. After three years, with no action on this legislation, I can only cite the Congress for once again miserably failing the Indian people who must depend on it ultimately for protection.

I do not understand the lack of action by the Congress on this important legislation. I can only discern two possible concerns that have prevented action on this proposal.

First, I understand some to believe that there is no conflict of interest in the Justice Department on these matters. The conflict of interest, however, is indisputable. Not only has the President acknowledged it, but Indians all over the country have complained about it in innumerable instances-hearings, meetings, letters over the past few years. Must notable were the hearings two years ago by the Senate Subcommittee on Administrative Practices and Procedures on the conflicts of interest. Moreover, all one must do is look at some of the pending cases for examples of this conflict.

The Native American Rights Fund is a privately funded, Indian interest law firm representing Indians in cases of major significance throughout the country. We are representing Indians in several cases where the federal government has a conflict of interest and, in that regard, have had a first-hand view of the conflicts. For example, we have just received a favorable judgment for the Cocopah Tribe of Arizona against the Secretary of the Interior in a land dispute along the Colorado River involving the Tribe and the Bureau of Land Management. We are also involved in several water rights and fishing rights cases where the conflict of interest is apparent.

Most notable, perhaps, is the Pyramid Lake water rights dispute in Nevada. We represented the Pyramid Lake Paiute Tribe in a suit against the Secretary of the Interior and won, establishing that the Secretary was allowing over 100,000 acre feet of water to go to his reclamation project rather than Pyramid Lake. We were also awarded attorneys' fees and costs in that case because the federal government had breached its duty as trustee and made the Tribe's action necessary.

Although I believe we provide the most aggressive representation for Indians possible, we still can't do the job the Trust Counsel could do. The Trust Counsel would be clothed with the sovereignty of the United States and presumably would have the unlimited resources of the federal government to draw upon-two things that we do not have which can, of course, provide additional advantages in litigation.

A second problem which is apparently delaying action on this legislation is the provision which absolves the Justice Department of all responsibility in the area of Indian natural resources upon creation of the Indian Trust Counsel Authority. I do not think that this provision is necessary. The intent of the legislation is to eliminate the conflict of interest in the government's representation of Indians as trustee, and to the extent that no conflict is involved in particular cases, there is no reason to absolve Justice of its current responsibility. Coordination should not be a problem-the Trust Counsel would take the cases involving conflicts to the exclusion of Justice, but they would be absolved only to this extent. Justice could operate only on those cases not taken by the Trust Counsel. Fears of absolving Justice entirely in favor of the Trust Counsel are based upon the concern that the Trust Counsel may turn out to be inadequately staffed because of low appropriation levels, thus leaving us with no effective counsel at all to exercise the trustee duty, and in that event, we would want to turn once again to Justice. This prospect may not be too far from reality if the Trust -Counsel is effective and incurs the wrath of powerful anti-Indian interests.

I submit, however, that we must have this legislation even if Justice has to be absolved in this area. To continue under the present situation, given the miserable performance of the trustee, is almost like having no trustee at all anyway. As with everything else, then, we would have to depend upon the good faith of the Congress for adequate funding of the Trust Counsel. And Congress can make that showing of good faith now by giving us this much needed legislation this session and at an adequate level.

Mr. MEEDS. Thank you very much, Mr. Echohawk.

May I ask you at the outset what you envision the role of Trust Counsel to be? There are different concepts of it. May I state a couple of them and see if your view is the same as either one or maybe neither of these?