One is the concept that all cases coming into the Department involving Indian rights with natural resources would automatically go to the Trust Counsel, and all cases involving Indians which are presently in the Justice Department, or which would hereafter be forwarded to the Justice Department by Interior, would go. That is one view, and probably the view of the bill. Another view is that perhaps the Trust Counsel ought to really exercise an oversight jurisdiction, and that he ought to in some way be advised whenever there is a matter affecting Indians involving any of the Departments, and he should look at it and say, is there a conflict of interest or a potential conflict of interest here, and if so, he would then put that in the Trust Counsel Authority hands. But unless there was a conflict of interest or a potential conflict of interest, it would allow the Department of Interior or the Department of Justice to go ahead with it. Which of those two would you prefer, if either? Mr. ECHOHAWK. I think this is a good idea that was proposed earlier, that the Trust Counsel be notified by the various Federal agencies of any pending actions that may affect the natural resource rights of Indians. And at that point, the Trust Counsel ought to be empowered to take appropriate steps to represent the Indian interests on those matters. The way I understand the bill as written, absolving the Justice Department-and I suppose the Interior Department-would mean that the Trust Counsel would be forced to take action in every case; in other words, they couldn't tell Justice or Interior to go over. You might correct me-I'm not sure about absolving Interior of these responsibilities. Mr. MEEDS. The bill does not absolve Interior as it is presently constituted. Mr. ECHOHAWK. In that case, then, the Indian Trust Counsel Authority ought to be able to step in when it wanted, but otherwise direct Interior to proceed. And, again, the decision, based upon the ascertainment of a conflict of interest Mr. MEEDS. Do you have any idea how big an operation trust counsel should be under your views of what its function should be? We were told, for instance, yesterday that there are some 300 cases pending in the Justice Department which, under the terms of the bill as presently written, would automatically go to the Trust Counsel, and that there are some 200 of which are in Interior. Now, there is some question that there might be some overlap here, so that we may have only maybe 400 cases all together between the two of them. But, assuming that there were between 300 and 500 cases, which would automatically go to the Trust Counsel under the authority of this legislation, could you give us some estimate based on your experience with the Native American Rights Fund, which is probably the closest thing right now to Trust Counsel Authority that there is, could you give us some idea of how many attorneys you feelwhat kind of a law firm would be necessary to handle this number of cases? Mr. ECHOHAWK. That is a difficult question. But, again, just let me do some thinking out loud. As I mentioned, on the last count, in our docket we had 115 matters pending. And this is with 15 attorneys. Of course, talking about a figure here of 300 to 500, and many of those cases are probably much bigger than some of the matters we have. Mr. MEEDS. One of those cases, incidentally, is the Pyramid Lake case, which is very complex, as you are well aware of Mr. ECHOHAWK. But just using these ratios, we come out with a figure of 45 attorneys. And at the level we stand, it is really an insufficient level, and I would hope the Trust Counsel would be funded at a higher level. We are talking about three times the size of our present budget, and ours is $700,000 now. So we are talking about over $2 million. And, again, I think this is very low, just based upon our low operating costs, and also, I think the nature of some of these 300 cases are going to be much bigger on the average than the cases that we have now. So that is probably worth another million or two. It's hard to say. But at least 45 lawyers, based on our experience, and whatever that takes, $3 or $4 million. Mr. MEEDS. Would you agree with the tribal attorneys who testified earlier that there has to be some kind of precase notification? In other words, a notification by different departments of government that any time there is a matter which has a potential impact on Indian tribes, that there should be some kind of notification of the Trust Counsel at that time? Mr. ECHOHAWK. Yes, I think that is a very good idea. Mr. ECHOHAWK. Rather than waiting until it is in litigation, yes, sir. Mr. MEEDS. What type of conflict of interest cases are you presently handling for Indian tribes? Mr. ECHOHAWK. In addition to the earlier case I mentioned involving the water rights case in Colorado, just the other day we received a judgment in the Federal court in Arizona in a case in which were were representing the Cocopah Tribe of Arizona against the Secretary of the Interior involving a land dispute between the tribe and the Bureau of Land Management concerning some lands that accreted to the Colorado River over the years-and the question is whether that is reservation land or public domain land. And in that particular case the land was treated as reservation land up until 1955, at which time in the Solicitor's opinion it was declared that the land did not belong to the tribe but rather it belonged to the Federal Government, completely reversing past policy. And it is the Solicitor's opinion that we have challenged the litigation, and they have promised to review it for the last year-and they have indicated that they might reverse their decision, but they kept delaying it, and we moved the appropriate steps in court, and the court agreed with our position and gave us judgment on the other case. That is one case. You mentioned another earlier-the Pyramid Lake case. Mr. MEEDS. Could you give me some idea on a percentage basis of the time that is spent by attorneys representing tribes which time would be spent by trust counsel if this bill were to pass? In other words, how much of the trust counsel's work are you presently doing? Mr. ECHOHAWK. Going back again and counting, the Colorado Water case would definitely be a trust counsel case. The Cocopah case would be a trust counsel case. The Pyramid Lake, the United States against Washington Fishing Rights case in the Northwest, would also be a trust counsel case. It would involve their representing several tribes who have intervened. Some litigation in southern California involving the water rights of some of the mixed bands of Indians that we are heavily involved in down there. That is a trust counsel case. Mr. MEEDS. Would it be safe to say that 10 percent or 30 percent of your total time is spent on matters which could, if this bill were to become law, be handled by the trust counsel? Mr. ECHOHAWK. I would imagine it is more like and again this is just a guess, I could go back and find out exactly-I would guess that probably 25 percent of our time is spent on trust counsel cases. And, again, this is only talking about 5 or 6 cases out of the 100 and so that we have. And it takes a quarter of our time on these cases-they are very big cases. Mr. MEEDS. Could you submit for the record something which might be a little more accurate than just your guess here this morning, or maybe verifying your guess here this morning, something in writing for the record on that question? Mr. ECHOHAWK. I certainly could, Congressman Meeds. Mr. MEEDS. Without objection it will be made a part of the record at this point when we receive it. [The material referred to follows:] NATIVE AMERICAN RIGHTS FUND, Boulder, Colo., October 13, 1973. Hon. LLOYD MEEDS. DEAR CONGRESSMAN MEEDS: This letter is in response to the request which you made of me when I testified before the House Subcommittee on Indian Affairs on the Indian Trust Counsel Authority legislation on September 28, 1973. You suggested at those hearings that the Native American Rights Fund (NARF) is in many ways similar to the Trust Counsel envisioned by the legislation. Accordingly, you requested us to provide you with a cost analysis of our “trust counsel” matters and projections for an adequate level of funding for the Trust Counsel based on an estimated caseload of 300 to 500 matters. We have given careful attention to this project and believe that the enclosed cost analysis (Attachment A) accurately reflects our expenditures on the 34 cases (Attachment B) in our office which would properly be classified as "trust counsel" matters. As you can see, the enclosed analysis shows that our 34 cases. involved expenditures of $209,436 during the period from October 1, 1972 through September 30, 1973. During that same period, our attorney man hours totaled 8284. Based on an attorney year of 2000 hours, our "trust counsel" matters involved almost exactly four lawyer years during that period. This works out to approximately $50.000 per lawyer for all costs and expenses in doing "trust counsel" work at NARF levels. Based upon a Trust Counsel caseload estimated at over 300 cases, and multiplying our 34 case figures by a factor of 10, the figures indicate that the Trust Counsel would need about 37 lawyers at a cost of $1,848,000. Let me add a few cautionary remarks concerning these figures. First, the 37 attorney projection is valid only if our 34 "trust counsel" cases are typical of those in the more than 300 cases which the Trust Counsel will have. Our 34 cases include approximately one half-dozen very large cases which are among the most important Indian resources cases now pending. I won't conjecture as to whether the 300 Indian cases the Justice Department now has includes a proportionate number of large cases either in litigation or potentially in litigation. Second, the cost of NARF attorney time and the $1,385,100 projected salary/overhead figure is probably much lower than that at which the Trust Counsel could operate. Although we have some very experienced attorneys, our salary levels have, by staff consensus, remained at a rock bottom level. The average salary in our fifteen lawyer firm is $16,000, with average experience at four years. Our lower expenses for space and office expenses must also be recognized, as well as the fact that we have only a skeleton support staff. Third, the expenses that we incur in our cases, and the $462.900 amount projected for Trust Counsel expenses, are much lower than the level at which the Trust Counsel could operate. NARF is not lead counsel in all of these cases and does not absorb all of the out-of-pocket expenses in any of these cases. We often are able to convince the federal government to meet many of these costs. Furthermore, the Trust Counsel will be empowered to conduct resource inventories and studies which we can hardly afford now and seldom conduct without federal assistance. These factors would increase the expenses of the Trust Counsel in their work and our projections, of course, cannot reflect that. In conclusion, the 37 attorney projection may be high depending on the correlation and representativeness of our 34 cases to the over 300 matters which the Trust Counsel will inherit. The projected funding level of $1,848,000 is certainly low given our lower attorney time costs and case expenses. We remain willing to be of further assistance to you in regard to this important matter. Sincerely, JOHN E. ECHOHAWK, Director. NATIVE AMERICAN RIGHTS FUND, ATTORNEY TIME AND EXPENSE REPORT FOR CASES OR MATTERS RELATINC TO APPROPRIATION LEVELS FOR H.R. 6106, H.R. 6374, AND H.R. 6494, BILLS TO ESTABLISH AN INDIAN TRUST COUNCIL AUTHORITY 1 Blackfeet Tribe-water pollution at St. Mary's Lake: Investigation of pollution harming the tribe's resource, resulting in voluntary compliance. 2 Cocopah Tribe v. Morton: Lead counsel in successful litigation to have certain accreted lands along the Colorado River declared part of the Cocopah Reservation and not public domain land. 3 Crow Tribe Allotment Act conveyances: Investigation and preparation to enforce ownership restrictions on allotted land on Crow Reservation. Crow lease cancellations: Investigation and preparation to enforce restrictions on leases of competent Crow lands. 5 Review of Edwardson v. Morton: Review of Federal court decision and implications for trespass actions on North Slope of Alaska with private counsel. Ft. McDowell-Orme Dam matter: Investigation and preparation to negotiate the tribe's position in regard to planned facility on the reservation as part of the central Arizona project. 7 Fort Sill Apache Tribe v. United States: Amicus curiae brief by NARF in support of tribe's position for expansive interpretation of fair an honorable dealings section of Indian Claims Commission Act. 8 Great Lakes Intertribal Council v. Voight: Assistance to local counsel on pending treaty fishing rights case in Great Lakes area. Indian allotments-Oregon: Investigation of pattern by Bureau of Land Management of denying Indian applications for public domain allotments. 10 Kimball v. Callaghan: Lead counsel in pending suit to establish continuing existence of treaty hunting and fishing rights for terminated Klamaths pursuant to Menominee Tribe v. United States. 11 Lac Courte Orielles (Federal Power Commission project No. 108): Co-counsel in proceeding before the FPC to oppose renewal of a license for facilities partly located on the reservation. 12 Muckleshoot Tribe (Federal Power Commission project No. 2494): Co-counsel in petition to intervene in order to oppose license renewal in FPC proceedings based upon tribe's loss of water due to project. 13 National Water Commission (Indian water rights): Research and testimony on water policy recommendations adversely affecting Indian water rights. 14 Oneida Indian Nation v. County of Oneida: Amicus curiae by NARF in action before Supreme Court for determination of the threshold jurisdictional questions posed by nation's efforts to claim land which is not currently in their posession. 1 Oneida trespass matter: Investigation and preparation to pursue land claim on behalf of individual Indian currently out of possession. 16 Papago water rights: Investigation and consultation on underground water rights problems of tribe. 17 Ponca water rights: Investigation of water rights claims of Ponca Tribe of Nebraska. 19 Puyallup Tribe riverbed and land matter: Research and investigation of tribe's claim on loss of reservation lands and Ownership of riverbed. 19 Puyallup Tribe v. Department of Game: Amicus curiae before Supreme Court on behalf of several tribes and individuals on extent of treaty fishing rights. 20 Pyramid Lake Paiute Tribe of Indians v. Morton: Co-counsel in successful action establishing the illegality of a reclamation project's water allocation which was depriving the tribe of sufficient water for its lake. 21 Rincon and LaJolla Bands v. Escondido; Federal Power Commission project No. 176: Lead counsel in pending action for damages for illegal use of Band's water; lead counsel in FPC license renewal proceedings opposing project renewal and seeking a takeover of the project. 22 Umatilla Tribes-Catherine Creek Dam: Investigation of impairment of tribes' treaty fishing rights by proposed government dam. 23 Umatilla Tribes-3-Mile Dam: Investigation of impairment of tribes' treaty fishing rights due to government dam. 24 Umatilla Tribes v. Froelhke Lead counsel in suit to block additional facilities for existing dams on Columbia River because of effects on treaty fishing rights and fishing sites, resulting in settlement on new fishing sites. 25 United States v. Akin: Amicus curiae on behalf of National Tribal Chairman's Association (and now the two Ute Tribes in Colorado) in water rights adjudication on issue of State jurisdiction over Indian water rights. 26 United States v. California and Nevada: Amicus curiae for Pyramid Lake Paiute Tribe in unsuccessful government suit to invoke the Supreme Court's original jurisdiction to adjudicate the tribe's water rights; consultation on possible Federal suits is continuing. 27 United States v. Michigan: Assistance to local counsel representing several tribes intervening in a major treaty fishing rights case. 2 United States v. Oregon: Representing several individuals and the Umatilla Tribe in protecting treaty fishing rights in the periodic setting of fishing seasons. 29 United States v. Washington (No. 9213): Co-counsel representing several intervening tribes in pending action to determine nature and extent of treaty fishing rights. 30 United States v. Washington (No. 73-1793): Amicus curiae on behalf of Puyallup Tribe in litigation seeking to confirm the existence of the reservation and the tribe's jurisdiction. 31 United States v. Winnebago: Co-counsel in condemnation proceedings brought by the Government against the tribe for tribal lands guaranteed by treaty. 22 Walker River v. Southern Pacific: Lead counsel in suit for damages and for declaration that right-of-way currently in use is unauthorized and illegal. 83 Winnebago Tribe v. Iowa: Assistance to local counsel representing the tribe in quiet title proceedings. 34 Winnebago Tribe v. Nebraska: Assistance to local counsel representing the tribe in quiet title proceedings. $5 NARF salaries, for both attorneys and clerical help, are approximately 20 percent below the governmental average for corresponding grade levels. Space costs at NARF are only $1.02 per ft.2 per year. All other overhead expenses are undoubtedly lower than the Government's. NARF travel costs are lower due to the fund's central office location and minimum per diem rates. In none of the above cases has NARF borne the full cost of litigation or investigation. These expenses have been shared with local OEO agencies, the BIA, pro bono counsel, and tribal clients. 36 Man-hours or approximately 37 attorneys at 2,000 man-hours per year. 37 Salaries, benefits clerical assistance, space costs, office expenses, library costs. 38 Travel, consultants, litigation expenses (i.e., depositions, transcripts, court fees, etc.). 3. All costs-average cost per attorney, per year equals $49,946. Mr. MEEDS. One other thing. There were some questions in some of the private attorneys' minds this morning as to whether or not the bill presently allowed legislative advocacy. Since the Native American Rights Fund has a person, I think, almost on full time on the Menominee case, a very talented young man working on that case, who has been very heavily involved in legislative advocacy, it appears to me very important that legislative advocacy be included if it is not. Would you agree with me on that? |