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Split Brief Procedure

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The original documents are located in Box 5, folder "Split Brief Procedure" of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library. Copyright Notice The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United States of America his copyrights in all of his unpublished writings in National Archives collections. Works prepared by U.S. Government employees as part of their official duties are in the public domain. The copyrights to materials written by other individuals or organizations are presumed to remain with them. If you think any of the information displayed in the PDF is subject to a valid copyright claim, please contact the Gerald R. Ford Presidential Library. HW 9/22 THE WHITE HOUSE WASHINGTON no ites ageeement law Crampton Split brief agreed to FORD i LIBRARY Digitized from Box 5 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library NATIONAL answerb in speed at AICH CONGRESS Conacution 10/19 Sht Brief OF SUITE 700, 1430 K STREET, N.W., WASHINGTON, D.C. 20005 (202) 347-9520 AMERICAN procedure will continue. -INDIANS- August 30, 1976 EXECUTIVE COMMITTEE The Honorable Gerald R. Ford PRESIDENT President of the United States Mel Tonasket The White House Colville Washington, D.C. FIRST VICE-PRESIDENT Veronica Murdock Attention: Bradley H. Patterson, Jr. Mohave TREASURER Ray Goetting Caddo Dear Mr. President, RECORDING SECRETARY Ramona Bennett On behalf of the Indian tribal and individual Puyallup membership of the National Congress of American Indians, EXECUTIVE DIRECTOR we wish to express our deep concern over recent covert Charles Trimble negotiations involving the Agreement of February 28, 1972, Oglala Sioux regarding representation of Indian natural resource trust AREA VICE PRESIDENTS interests pending the creation of an Indian Trust Counsel Authority. ABERDEEN AREA Joe Chase Mandan We were astonished to learn of the Department ALASKA AREA of Justice request that the White House relieve it of the Gordon Jackson 1972 Agreement, under which the Department of Justice is Tlinget required to state separately the views of the Department ANADARKO AREA of Interior, when requested to do so by that Department, Juanita Ahtone in cases where the Justice Department intends to take a Kiowa position in conflict with the Interior Department's view BILLINGS AREA of the rights of Indians. Ray Spang Northern Cheyenne We simply cannot understand how serious consid- GALLUP AREA eration could be given to this request, particularly in Victor Sarracino light of the Administration's announced policy of continued Laguna support of the proposal for the establishment of an Indian MINNEAPOLIS AREA Trust Counsel. The basic idea of the Indian Trust Counsel Stanley Webster Oneida is to provide a means whereby the United States Government's MUSKOGEE AREA responsibility to Indians, in its role as trustee, can be Katharine Whitehorn discharged without regard to the Government's obligation to Osage advocate the general public interest. This necessarily pre- PHOENIX AREA supposes a procedure whereby the United States in its dif- Irene Cuch ferent functions--will take conflicting positions in court. Ute PORTLAND AREA Under the 1972 Agreement the Department of Roger Jim Interior has the right to have its views included in a Yakima split brief. We are not necessarily committed to the con- SACRAMENTO AREA tinuation of the split brief procedure, as such. It may be Rachel Nabahe preferable for the Department of Interior to have an option Shoshone/Paiute to present a separate brief when it wishes to communicate the SOUTHEAST AREA views of the United States, in its role as trustee, to a Jonathan Ed Taylor Cherokee court in which litigation is pending. NATIONAL CONGRESS OF SUITE 700, 1430 K STREET, N.W., WASHINGTON, D.C. 20005 (202) 347-9520 AMERICAN Correspondence / President Ford / 1972 Agreement -INDIANS- 8/30/76 page 2 EXECUTIVE COMMITTEE PRESIDENT We hope that the reports of the level of Mel Tonasket consideration of the Justice Department's request are Colville exaggerated and that changes in the direction suggested FIRST VICE-PRESIDENT by the Department are not anticipated. It is of utmost Veronica Murdock importance that the 1972 procedures, carefully developed Mohave to discharge (at a minimal level) the Government's trust TREASURER responsibility, will not be abandoned cavalierly. If Ray Goetting Caddo new procedures are being considered, we believe that the RECORDING SECRETARY Indian Tribes and Indian legal community should be accorded Ramona Bennett the opportunity to review and comment on the procedures and Puyallup amendments before drastic change is made. EXECUTIVE DIRECTOR Charles Trimble Finally, we hope to find agreement in the White Oglala Sioux House that the time has come to formalize and publicize the AREA VICE PRESIDENTS procedures set out in 1972, along with any amendments. We respectfully suggest that serious consideration be given to ABERDEEN AREA the promulgation of an Executive Order to this effect. The Joe Chase Mandan procedures formalized in this fashion may serve to remove ALASKA AREA future temptation for the Department of Justice to seek a Gordon Jackson change, in secret, in announced policies for the protection Tlinget of Indian rights. ANADARKO AREA Juanita Ahtone Kiowa BILLINGS AREA Ray Spang Charly Northern Cheyenne Charles E. Trimble GALLUP AREA Executive Director Victor Sarracino Laguna MINNEAPOLIS AREA CET/ssh Stanley Webster Oneida MUSKOGEE AREA CC: The Honorable Edward H. Levi, Attorney General Katharine Whitehorn The Honorable Thomas S. Kleppe, Secretary of the Interior Osage The Honorable Philip W. Buchen, Counsel to the President PHOENIX AREA The Honorable Peter R. Taft, Assistant Attorney General, Lands Irene Cuch The Honorable H. Gregory Austin, Solicitor, Interior Department Ute The Honorable James O. Eastland, Chairman, Judiciary Committee PORTLAND AREA The Honorable Henry M. Jackson, Chairman, Interior Committee Roger Jim The Honorable James Abourezk, Chairman, Indian Affairs, Senate Yakima The Honorable Peter W. Rodino, Jr., Chairman, House Judiciary SACRAMENTO AREA The Honorable James A. Haley, Chairman, House Interior Rachel Nabahe Shoshone/Paiute The Honorable Lloyd Meeds, Chairman, Indian Affairs, House SOUTHEAST AREA Members, National Indian Litigation Committee Jonathan Cherokee Ed Taylor wel The Honorable Wendell Chino, President, National Tribal Chairmen's Association OF K STREET, N.W., WASHINGTON, D.C. 20005 (202) 347 9520 INDIANS 10 50 AH'76 August 30, 1976 EXECUTIVE COMMITTEE DEPT.OF OF RCOM JUSTICE The Honorable Gerald R. Ford PRESIDENT President of the United States Met Tonasket The White House Coiville Washington, D.C. FIRST VICE-PRESIDENT Veronica Murdock Attention: Bradley H. Patterson, Jr. Mohave TREASURER Ray Goetting Caddo Dear Mr. President, RECORDING SECRETARY Ramona Bennett On behalf of the Indian tribal and individual Puyallup membership of the National Congress of American Indians, EXECUTIVE DIRECTOR we wish to express our deep concern over recent covert Charles Trimble negotiations involving the Agreement of February 28, 1972, Ogiala Sioux regarding representation of Indian natural resource trust AREA VICE PRESIDENTS interests pending the creation of an Indian Trust Counsel Authority. ABERDEEN AREA Jo. Chase Mandan We were astonished to learn of the Department ALASKA AREA of Justice request that the White House relieve it of the Gordon Jackson 1972 Agreement, under which the Department of Justice is Thinger required to state separately the views of the Department ANADARKO AREA of Interior, when requested to do so by that Department, Juan ta Ahtone in cases where the Justice Department intends to take a Kiowa position in conflict with the Interior Department's view BILLINGS AREA of the rights of Indians. Ray Spang Northern Cheyenne We simply cannot understand how serious consid- GALLUP AREA eration could be given to this request, particularly in Victor Sarracino light of the Administration's announced policy of continued Laguna support of the proposal for the establishment of an Indian MINNEAPOLIS AREA Trust Counsel. The basic idea of the Indian Trust Counsel Stanley Webster Oneida is to provide a means whereby the United States Government's MUSKOGEE AREA responsibility to Indians, in its role as trustee, can be Katharine Whitehorn discharged without regard to the Government's obligation to Osage advocate the general public interest. This necessarily pre- PHOENIX AREA supposes a procedure whereby the United States--in its dif- Irene Cuch ferent functions--will take conflicting positions in court. Ute PORTLAND AREA Under the 1972 Agreement the Department of Roger Jim Interior has the right to have its views included in a Yakima split brief. We are not necessarily committed to the con- SACRAMENTO AREA tinuation of the split brief procedure, as such. It may be Rachel Nabahe Shoshone/Paiute preferable for the Department of Interior to have an option SOUTHEAST AREA to present a separate brief when it wishes to communicate the Jonathan Ed Taylor views of the United States, in its role as trustee, to a Cherokee court in which litigation is pending. OF SUITE 700, 1430 K STREET, N.W., WASHINGTON, D.C. 20005 (202) 347 9520 Correspondence / President Ford / 1972 Agreement 8/30/76 page 2 EXECUTIVE COMMITTEE PRESIDENT We hope that the reports of the level of Mel Tonasket consideration of the Justice Department's request are Colville exaggerated and-that changes in the direction suggested FIRST VICE-PRESIDENT by the Department are not anticipated. It is of utmost Veronica Murdock importance that the 1972 procedures, carefully developed Mohave to discharge (at a minimal level) the Government's trust TREASURER responsibility, will not be abandoned cavalierly. If Ray Goetting Caddo new procedures are being considered, we believe that the RECORDING SECRETARY Indian Tribes and Indian legal community should be accorded Ramona Bennett the opportunity to review and comment on the procedures and Puyallup amendments before drastic change is made. EXECUTIVE DIRECTOR Charles Timble Finally, we hope to find agreement in the White Oglala Sioux House that the time has come to formalize and publicize the AREA VICE PRESIDENTS procedures set out in 1972, along with any amendments. We respectfully suggest that serious consideration be given to ABERDEEN AREA the promulgation of an Executive Order to this effect. The Joe Chase Mandan procedures formalized in this fashion may serve to remove ALASKA AREA future temptation for the Department of Justice to seek a Gordon Jackson change, in secret, in announced policies for the protection Hinget of Indian rights. ANADARKO AREA Juanita Ahtone Kiowa BILLINGS AREA Ray Spang Ocincerely Northern Cheyenne Charles E. Trimble GALLUP AREA Executive Director Victor Sarracino Laguna MINNEAPOLIS AREA CET/ssh Stanley Webster Oncida MUSKOGEE AREA CC: The Honorable Edward H. Levi, Attorney General Katharine Whitehorn The Honorable Thomas S. Kleppe, Secretary of the Interior Osage The Honorable Philip W. Buchen, Counsel to the President PHOENIX AREA The Honorable Peter R. Taft, Assistant Attorney General, Lands Irene Cuch The Honorable H. Gregory Austin, Solicitor, Interior Department Ute The Honorable James O. Eastland, Chairman, Judiciary Committee PORTLAND AREA The Honorable Henry M. Jackson, Chairman, Interior Committee Roger Jun The Honorable James Abourezk, Chairman, Indian Affairs, Senate Yakima The Honorable Peter W. Rodino, Jr., Chairman, House Judiciary SACRAMENTO AREA The Honorable James A. Haley, Chairman, House Interior Rachel Nabahe Shoshone/Paiute The Honorable Lloyd Meeds, Chairman, Indian Affairs, House SOUTHEAST AREA Members, National Indian Litigation Committee Jonathan Ed Taylor The Honorable Wendell Chino, President, National Tribal Cherokee Chairmen's Association TRIBAL CHAIRMEN'S Tast ASSOCIATION NATIONAL TRIBAL CHAIRMEN'S ASSOCIATION Suite 207 1701 Pennsylvania Avenue, N.W. Washington, D.C. 20006 202 - 343-9484 UNITY JUSTICE September 7, 1976 STRENGTH The Honorable Gerald R. Ford President of the United States The White House Washington, D.C. Attention: Bradley H. Patterson, Jr. Dear Mr. President: On behalf of the National Tribal Chairmen's Association, representative of the chairmen of one hundred and ninety federally recognized Indian tribes, I should like to express my concren regarding recent reports that the Department of Justice is seeking to be relieved of its February 28, 1972, agreement, the purpose of which is to provide interim relief, prior to the establishment of the Trust Counsel Authority, in the protection in litigation of Indian natural resource trust interests, when there exists within the Department of Justice a position which conflicts with the Indian rights to such trust interests. NTCA urges protection of trust resources through the elimination of conflicts of interests by posturing the trustee to advocate fully, vigorously and without reserva- tion the rights and interests of the tribes against threats from any source, by removing any constraints upon those federal officials charged with administering the trust, and by serving as an advocate for the tribes and as an adversary to those interests which conflict with and threaten tribal trust resources. Recently, tribal chairmen in panel/ workshop sessions at NTCA's Fourth Annual Convention identified the filing, under the 1972 agreement, of separate positions of the Interior Department in Justice Department briefs in litigation in which Indian trust resources are threatened or challenged, as a significant accomplishment in the recognition by the executive branch of its responsibil- ity to free itself from contraints and to serve as an advocate for the tribes. The recognition of the conflict of interest by President Nixon in his 1970 Message to Congress on Indian Affairs and the commitment to alleviation of that conflict is the avowed policy of the Administration today. Though certainly not the final solu- tion to the conflict of interest, NTCA views the filing of split briefs pending the establishment of the Trust Counsel Authority or something similar in concept as absolutely necessary. In a September 2, 1976, letter to the Secretary of the Department of the Inte- rior, NTCA stated that we would like to discuss the implementation of the trust respon- Honorable Gerald Ford September 6, 1976 Page two ibility to protect tribal natural resources and to seek ways that working together we can resolve some of the difficulties which hinder that implementation, for example, the conflict of interest. We have asked for a meeting with the Secretary to discuss possible - ways of working together. We have provided your office and the Secretary's office with copies of NTCA's panel/workshop papers which expand upon possible means, even prior to the establishment of the Trust Counsel Authority, to alleviate the conflict, one of which is, of course, the filing of split briefs. We enlist yourcontinued support for the 1972 agreement and your support for the other means explored in the panel/workshop papers. These papers constitute the broad-based recommendations of tribal chairmen across this country who attended the Fourth Annual Convention in February, 1976, and who worked together for the resolution of problems hindering implementation of the trust respons- ibility to protect Indian natural resources and many other problems. We do urge that prior to any steps being taken or prior to serious considera- tion of revocation of the 1972 agreement, Indian tribes be fully advised and given the opportunity to comment. Full disclosure is the first duty of a trustee in dealing with conflicts in the interests of beneficiaries in a fiduciary relationship. In addition, the spirit and principle of the Indian Self-Determination and Education Assistance Act of 1975 and the existing Administrative support of that spirit and principle, requires consultation with Indian tribes affected by the possible revocation of the split brief agreement. Sincerely Yours, /5/ William Youpee Executive Director WY/dd CC: The Honorable Edward H. Levi, Attorney General The Honorable Thomas S. Kleppe, Secretary of the Interior The Honorable Philip W. Buchen, Counsel to the President The Honorable H. Gregory Austin, Solicitor, Department of the Interior The Honorable Peter R. Taft, Assistant Attorney General, Lands Division Form DJ-96a DEPARTMENT OF JUSTICE (Rev. 6-22-66) ROUTING SLIP TO : NAME DIVISION BUILDING ROOM 1. Brad Patterson 2. 3. 4. SIGNATURE COMMENT PER CONVERSATION APPROVAL NECESSARY ACTION AS REQUESTED SEE ME NOTE AND RETURN NOTE AND FILE RECOMMENDATION CALL ME YOUR INFORMATION ANSWER OR ACKNOWL- EDGE ON OR BEFORE PREPARE REPLY FOR THE SIGNATURE OF REMARKS FORD LIBRART FROM: NAME BUILDING & ROOM EXT. DATE ASSISTANT ATTORNEY GENERAL Land and Natural Resources Div. Peter R. Taft 9/10 LN-123 2-1-73 OPTIONAL FORM NO. 10 JULY 1973 EDITION GSA FPMR (41 CFR) 101-11.6 UNITED STATES GOVERNMENT Memorandum TO : Scott P. Crampton, AAG DATE: September 10, 1976 Tax Division FROM Peter R. Taft, AAG Land and Natural Resources Division SUBJECT: Split Briefs Attached is a letter from the National Tribal Chairman's Association and another one from the National Congress of American Indians which give you some idea of the trouble stirred up by the Deputy's letter to Buchen seeking to abandon split briefs. Whereas the predicament may appear anomalous to you, it is an ordinary fact of life for our Division. The problem is that the United States appears in two separate capacities, one a governmental capacity, and the other as trustee for Indian tribes. These two capacities are often in conflict. However, the mere assertion of a major governmental interest or more persuasive legal argument on behalf of the governmental interest has never been an excuse to abandon the trust responsibility. Usually if the federal agency is sensitive to the Indian problem, it is possible to either avoid or minimize the taking of conflicting positions in court. However where the conflict is inevitable, some means must be found to satisfy the trustee's responsibility. Generally, we have been able to devise such procedures depending upon the particular facts of each case with- out totally jeopardizing the legal position of the United States in its sovereign capacity. I would suggest that when the problem arises in the future in the Tax field, that either Myles Flint, our Indian Resources Section Chief, or Ed Clark, our Appellate Section Chief, could give helpful advice. However, it is equally important in our experience that the involved federal agency, such as the IRS, accept the fact that they have a serious problem on their hands when major Indian interests are involved, and avoid attempting to steamroller their viewpoint. cc: Harold R. Tyler, Jr. Deputy Attorney General Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan 5010-110 ACTION ROUTING AND TRANSMITTAL SLIP 1 TO (Name, office symbol or location) INITIALS CIRCULATE Brad Patterson DATE COORDINATION 2 INITIALS FILE DATE INFORMATION 3 INITIALS NOTE AND RETURN DATE PER CON- VERSATION # 4 INITIALS SEE ME DATE SIGNATURE REMARKS For your review and retention. Do NOT use this form as a RECORD of approvals, concurrences, disapprovals, clearances, and similar actions. FROM (Name, office symbol or location) DATE Reid Chambers Bobbie 9/3/76 pHo343-9401 OPTIONAL FORM 41 GPO c43-16-81418-1 419-015 5041-101 AUGUST 1967 GSA FPMR ( 41CFR) 100-11.206 Honorable Harold R. Tyler, Jr. Deputy Attorney General Department of Justice Washington, D.C. 20530 Honorable H. Gregory Austin Solicitor Department of the Interior Washington, D.C. 20240 Gentlemen: On July 26, Judge Tyler wrote this office concerning the case of Amy Critzer V. United States, now pending before the Court of Claims. This case is the sequel to a criminal prosecution of Ms. Critzer for evasion of federal income taxes. After Ms. Critzer was convicted in District Court, she appealed her conviction to the Court of Appeals for the Fourth Circuit. At that time, the then-Solicitor of the Interior Department requested the Department of Justice to file separately Interior's views that the income received by Ms. Critzer was not taxable because it was derived from her assignment of Indian trust lands on the Eastern Cherokee Reservation in North Carolina. 2 The Solicitor's request was made pursuant to an agreement contained in a February 28. 1972, letter from the Attorney General to the Assistant to the President for Domestic Affairs. The February, 1972, letter agreed that in litigation handled by the several divisions of the Department of Justice where "Indian natural resource trust interests may be challenged or threatened" by a position taken by Justice, the Department of Justice would include in its brief the separate views of the Interior Department with respect to those trust interests. On March 25, 1974, Mr. Leonard Garment stated in a letter concerning the Critzer case to Assistant Attorney General Scott Crampton that this arrangement still holds and the case "directly affected Indian natural resource trust interests." The Department of Justice thereafter included Interior's views in its brief before the Court of Appeals, and that court reversed Ms. Critzer's con- viction. The present Court of Claims litigation concerns her right to a refund. 3 Judge Tyler's July 26 letter urged that the Department of Justice should no longer be bound by this agreement. On August 6, Solicitor Austin by letter to me stated the Interior Department's strong opposition to Judge Tyler's proposal. After a meeting with my staff, I understand that the Interior and Justice Departments have agreed to work out a compromise joint position to be taken in the Critzer case. On the broader question of the bifurcated brief procedure, I believe it should be continued in this special area where a position taken by the Department of Justice on behalf of the United States challenges or threatens the rights or reasonable claims of Indians to natural resources held in trust for them by the United States. The reasons for this procedure is that such Indian rights are private property rights; the United States holds them in trust and is not their outright owner. This trust responsibility places the United States in a conlict-of-interest. Given this conflict, I believe that its separate views as trustee ought to be presented to the courts where they differ from the interests of the United States as determined by the Department of Justice. 4 I would emphasize, however, that this special bifurcated brief procedure ought to be limited to cases involving Indian rights or reasonable claims to natural resources for which the United States has a trust responsibility. Tax cases, for example, may or may not (in particular instances) involve such rights, and this must be determined on a case by case basis. Where an Assistant Attorney General determines that a specific case does not involve such rights, and the Solicitor disagrees with that determination, I believe it appropriate for this office to review that dispute. Otherwise, I do not believe that this office should become involved in the substantive legal issues of these cases. Sincerely, Philip W. Buchen Council to the President FORD OPTIONAL FORM NO. 10 JULY 1973 EDITION "GSA FPMR (41 CFRI 101.11.6 UNITED STATES GOVERNMENT Memorandum TO Bobbie Greene Kilberg DATE: September 20, 1976 Associate Counsel Mary E. Wagner NEW FROM : Special Assistant to the Deputy Attorney General SUBJECT: Split Briefs Attached is a suggested paragraph for use in responding to correspondence you have received on the above issue. The Department of Justice welcomed the opportunity to review the split brief procedure with you. Since our meeting, the Department's Tax Division has met with appropriate repre- sentatives of the Department of Interior to work out the particular problems raised by the Critzer litigation, which prompted the Deputy Attorney General's request for review. At this time, we seek no further review of the split brief policy. Attachment cc: Bradley H. Patterson, Jr. NO FORD Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan 5010-110 DRAFT September 20, 1976 A meeting was held recently in our office to discuss the Department of Justice request for a review of the policy embodied in the 1972 Agreement. Subsequent to that meeting, representatives of the Departments of Justice and Interior met to see if they could reach a mutually acceptable pro- cedure by which Interior's Indian trust responsibilities can be presented in court. As a result of those meetings, the Department of Justice has informed me that at present it does not desire any further review of the 1972 Agreement, which remains in effect. THE WHITE HOUSE WASHINGTON October 27, 1976 MEMORANDUM FOR: BRAD PATTERSON Bobbe FROM: BOBBIE GREENE KILBERG I am returning the originals of the NCAI and NTCA letters to the President on the split brief issue. I would assume that no further response is needed to the NCAI letter since you attended their convention and addressed the issue there. As to NTCA, I would suggest that you call Bill Youpee and give him our position orally rather than in writing. Attachments TRIBAL CHAIRMEN'S NATIONAL ASSOCIATION NATIONAL TRIBAL CHAIRMEN'S ASSOCIATION Suite 207 1701 Pennsylvania Avenue, N.W. Washington, D.C. 20006 202 - 343-9484 UNITY JUSTICE September 7, 1976 STRENGTH The Honorable Gerald R. Ford President of the United States The White House Washington, D.C. Attention: Bradley H. Patterson, Jr. Dear Mr. President: On behalf of the National Tribal Chairmen's Association, representative of the chairmen of one hundred and ninety federally recognized Indian tribes, I should like to express my concren regarding recent reports that the Department of Justice is seeking to be relieved of its February 28, 1972, agreement, the purpose of which is to provide interim relief, prior to the establishment of the Trust Counsel Authority, in the protection in litigation of Indian natural resource trust interests, when there exists within the Department of Justice a position which conflicts with the Indian rights to such trust interests. NTCA urges protection of trust resources through the elimination of conflicts of interests by posturing the trustee to advocate fully, vigorously and without reserva- tion the rights and interests of the tribes against threats from any source, by removing any constraints upon those federal officials charged with administering the trust, and by serving as an advocate for the tribes and as an adversary to those interests which conflict with and threaten tribal trust resources. Recently, tribal chairmen in panel/ workshop sessions at NTCA's Fourth Annual Convention identified the filing, under the 1972 agreement, of separate positions of the Interior Department in Justice Department briefs in litigation in which Indian trust resources are threatened or challenged, as a significant accomplishment in the recognition by the executive branch of its responsibil- ity to free itself from contraints and to serve as an advocate for the tribes. The recognition of the conflict of interest by President Nixon in his 1970 Message to Congress on Indian Affairs and the commitment to alleviation of that conflict is the avowed policy of the Administration today. Though certainly not the final solu- tion to the conflict of interest, NTCA views the filing of split briefs pending the establishment of the Trust Counsel Authority or something similar in concept as absolutely necessary. In a September 2, 1976, letter to the Secretary of the Department of the Inte- rior, NTCA stated that we would like to discuss the implementation of the trust respon- Honorable Gerald Ford September 6, 1976 Page two ibility to protect tribal natural resources and to seek ways that working together we can resolve some of the difficulties which hinder that implementation, for example, the conflict of interest. We have asked for a meeting with the Secretary to discuss possible ways of working together. We have provided your office and the Secretary's office with copies of NTCA's panel/workshop papers which expand upon possible means, even prior to the establishment of the Trust Counsel Authority, to alleviate the conflict, one of which is, of course, the filing of split briefs. We enlist your continuedsupport for the 1972 agreement and your support for the other means explored in the panel/workshop papers. These papers constitute the broad-based recommendations of tribal chairmen accross this country who attended the Fourth Annual Convention in February, 1976, and who worked together for the resolution of problems hindering implementation of the trust respons- ibility to protect Indian natural resources and many other problems. We do urge that prior to any steps being taken or prior to serious considera- tion of revocation of the 1972 agreement, Indian tribes be fully advised and given the opportunity to comment. Full disclosure is the first duty of a trustee in dealing with conflicts in the interests of beneficiaries in a fiduciary relationship. In addition, the spirit and principle of the Indian Self-Determination and Education Assistance Act of 1975 and the existing Administrative support of that spirit and principle, requires consultation with Indian tribes affected by the possible revocation of the split brief agreement. Sincerely Yours, Nilliam William Youpee youper Executive Director WY/dd CC: The Honorable Edward H. Levi, Attorney General The Honorable Thomas S. Kleppe, Secretary of the Interior The Honorable Philip W. Buchen, Counsel to the President The Honorable H. Gregory Austin, Solicitor, Department of the Interior The Honorable Peter R. Taft, Assistant Attorney General, Lands Division LIBRAD

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    "ocrText": "The original documents are located in Box 5, folder \"Split Brief Procedure\" of the Bradley\nH. Patterson Files at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Gerald Ford donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nHW 9/22 THE\nWHITE HOUSE\nWASHINGTON\nno ites ageeement law\nCrampton\nSplit brief agreed to\nFORD i LIBRARY\nDigitized from Box 5 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library\nNATIONAL\nanswerb in speed at AICH\nCONGRESS\nConacution 10/19 Sht Brief\nOF\nSUITE 700, 1430 K STREET, N.W., WASHINGTON, D.C. 20005 (202) 347-9520\nAMERICAN\nprocedure will continue.\n-INDIANS-\nAugust 30, 1976\nEXECUTIVE COMMITTEE\nThe Honorable Gerald R. Ford\nPRESIDENT\nPresident of the United States\nMel Tonasket\nThe White House\nColville\nWashington, D.C.\nFIRST VICE-PRESIDENT\nVeronica Murdock\nAttention: Bradley H. Patterson, Jr.\nMohave\nTREASURER\nRay Goetting\nCaddo\nDear Mr. President,\nRECORDING SECRETARY\nRamona Bennett\nOn behalf of the Indian tribal and individual\nPuyallup\nmembership of the National Congress of American Indians,\nEXECUTIVE DIRECTOR\nwe wish to express our deep concern over recent covert\nCharles Trimble\nnegotiations involving the Agreement of February 28, 1972,\nOglala Sioux\nregarding representation of Indian natural resource trust\nAREA VICE PRESIDENTS\ninterests pending the creation of an Indian Trust Counsel\nAuthority.\nABERDEEN AREA\nJoe Chase\nMandan\nWe were astonished to learn of the Department\nALASKA AREA\nof Justice request that the White House relieve it of the\nGordon Jackson\n1972 Agreement, under which the Department of Justice is\nTlinget\nrequired to state separately the views of the Department\nANADARKO AREA\nof Interior, when requested to do so by that Department,\nJuanita Ahtone\nin cases where the Justice Department intends to take a\nKiowa\nposition in conflict with the Interior Department's view\nBILLINGS AREA\nof the rights of Indians.\nRay Spang\nNorthern Cheyenne\nWe simply cannot understand how serious consid-\nGALLUP AREA\neration could be given to this request, particularly in\nVictor Sarracino\nlight of the Administration's announced policy of continued\nLaguna\nsupport of the proposal for the establishment of an Indian\nMINNEAPOLIS AREA\nTrust Counsel. The basic idea of the Indian Trust Counsel\nStanley Webster\nOneida\nis to provide a means whereby the United States Government's\nMUSKOGEE AREA\nresponsibility to Indians, in its role as trustee, can be\nKatharine Whitehorn\ndischarged without regard to the Government's obligation to\nOsage\nadvocate the general public interest. This necessarily pre-\nPHOENIX AREA\nsupposes a procedure whereby the United States in its dif-\nIrene Cuch\nferent functions--will take conflicting positions in court.\nUte\nPORTLAND AREA\nUnder the 1972 Agreement the Department of\nRoger Jim\nInterior has the right to have its views included in a\nYakima\nsplit brief. We are not necessarily committed to the con-\nSACRAMENTO AREA\ntinuation of the split brief procedure, as such. It may be\nRachel Nabahe\npreferable for the Department of Interior to have an option\nShoshone/Paiute\nto present a separate brief when it wishes to communicate the\nSOUTHEAST AREA\nviews of the United States, in its role as trustee, to a\nJonathan Ed Taylor\nCherokee\ncourt in which litigation is pending.\nNATIONAL\nCONGRESS\nOF\nSUITE 700, 1430 K STREET, N.W., WASHINGTON, D.C. 20005 (202) 347-9520\nAMERICAN\nCorrespondence / President Ford / 1972 Agreement\n-INDIANS-\n8/30/76\npage 2\nEXECUTIVE COMMITTEE\nPRESIDENT\nWe hope that the reports of the level of\nMel Tonasket\nconsideration of the Justice Department's request are\nColville\nexaggerated and that changes in the direction suggested\nFIRST VICE-PRESIDENT\nby the Department are not anticipated. It is of utmost\nVeronica Murdock\nimportance that the 1972 procedures, carefully developed\nMohave\nto discharge (at a minimal level) the Government's trust\nTREASURER\nresponsibility, will not be abandoned cavalierly. If\nRay Goetting\nCaddo\nnew procedures are being considered, we believe that the\nRECORDING SECRETARY\nIndian Tribes and Indian legal community should be accorded\nRamona Bennett\nthe opportunity to review and comment on the procedures and\nPuyallup\namendments before drastic change is made.\nEXECUTIVE DIRECTOR\nCharles Trimble\nFinally, we hope to find agreement in the White\nOglala Sioux\nHouse that the time has come to formalize and publicize the\nAREA VICE PRESIDENTS\nprocedures set out in 1972, along with any amendments. We\nrespectfully suggest that serious consideration be given to\nABERDEEN AREA\nthe promulgation of an Executive Order to this effect. The\nJoe Chase\nMandan\nprocedures formalized in this fashion may serve to remove\nALASKA AREA\nfuture temptation for the Department of Justice to seek a\nGordon Jackson\nchange, in secret, in announced policies for the protection\nTlinget\nof Indian rights.\nANADARKO AREA\nJuanita Ahtone\nKiowa\nBILLINGS AREA\nRay Spang\nCharly\nNorthern Cheyenne\nCharles E. Trimble\nGALLUP AREA\nExecutive Director\nVictor Sarracino\nLaguna\nMINNEAPOLIS AREA\nCET/ssh\nStanley Webster\nOneida\nMUSKOGEE AREA\nCC: The Honorable Edward H. Levi, Attorney General\nKatharine Whitehorn\nThe Honorable Thomas S. Kleppe, Secretary of the Interior\nOsage\nThe Honorable Philip W. Buchen, Counsel to the President\nPHOENIX AREA\nThe Honorable Peter R. Taft, Assistant Attorney General, Lands\nIrene Cuch\nThe Honorable H. Gregory Austin, Solicitor, Interior Department\nUte\nThe Honorable James O. Eastland, Chairman, Judiciary Committee\nPORTLAND AREA\nThe Honorable Henry M. Jackson, Chairman, Interior Committee\nRoger Jim\nThe Honorable James Abourezk, Chairman, Indian Affairs, Senate\nYakima\nThe Honorable Peter W. Rodino, Jr., Chairman, House Judiciary\nSACRAMENTO AREA\nThe Honorable James A. Haley, Chairman, House Interior\nRachel Nabahe\nShoshone/Paiute\nThe Honorable Lloyd Meeds, Chairman, Indian Affairs, House\nSOUTHEAST AREA\nMembers, National Indian Litigation Committee\nJonathan\nCherokee Ed Taylor wel\nThe Honorable Wendell Chino, President, National Tribal\nChairmen's Association\nOF\nK STREET, N.W., WASHINGTON, D.C. 20005 (202) 347 9520\nINDIANS\n10\n50\nAH'76\nAugust 30, 1976\nEXECUTIVE COMMITTEE\nDEPT.OF OF RCOM JUSTICE\nThe Honorable Gerald R. Ford\nPRESIDENT\nPresident of the United States\nMet Tonasket\nThe White House\nCoiville\nWashington, D.C.\nFIRST VICE-PRESIDENT\nVeronica Murdock\nAttention: Bradley H. Patterson, Jr.\nMohave\nTREASURER\nRay Goetting\nCaddo\nDear Mr. President,\nRECORDING SECRETARY\nRamona Bennett\nOn behalf of the Indian tribal and individual\nPuyallup\nmembership of the National Congress of American Indians,\nEXECUTIVE DIRECTOR\nwe wish to express our deep concern over recent covert\nCharles Trimble\nnegotiations involving the Agreement of February 28, 1972,\nOgiala Sioux\nregarding representation of Indian natural resource trust\nAREA VICE PRESIDENTS\ninterests pending the creation of an Indian Trust Counsel\nAuthority.\nABERDEEN AREA\nJo. Chase\nMandan\nWe were astonished to learn of the Department\nALASKA AREA\nof Justice request that the White House relieve it of the\nGordon Jackson\n1972 Agreement, under which the Department of Justice is\nThinger\nrequired to state separately the views of the Department\nANADARKO AREA\nof Interior, when requested to do so by that Department,\nJuan ta Ahtone\nin cases where the Justice Department intends to take a\nKiowa\nposition in conflict with the Interior Department's view\nBILLINGS AREA\nof the rights of Indians.\nRay Spang\nNorthern Cheyenne\nWe simply cannot understand how serious consid-\nGALLUP AREA\neration could be given to this request, particularly in\nVictor Sarracino\nlight of the Administration's announced policy of continued\nLaguna\nsupport of the proposal for the establishment of an Indian\nMINNEAPOLIS AREA\nTrust Counsel. The basic idea of the Indian Trust Counsel\nStanley Webster\nOneida\nis to provide a means whereby the United States Government's\nMUSKOGEE AREA\nresponsibility to Indians, in its role as trustee, can be\nKatharine Whitehorn\ndischarged without regard to the Government's obligation to\nOsage\nadvocate the general public interest. This necessarily pre-\nPHOENIX AREA\nsupposes a procedure whereby the United States--in its dif-\nIrene Cuch\nferent functions--will take conflicting positions in court.\nUte\nPORTLAND AREA\nUnder the 1972 Agreement the Department of\nRoger Jim\nInterior has the right to have its views included in a\nYakima\nsplit brief. We are not necessarily committed to the con-\nSACRAMENTO AREA\ntinuation of the split brief procedure, as such. It may be\nRachel Nabahe\nShoshone/Paiute\npreferable for the Department of Interior to have an option\nSOUTHEAST AREA\nto present a separate brief when it wishes to communicate the\nJonathan Ed Taylor\nviews of the United States, in its role as trustee, to a\nCherokee\ncourt in which litigation is pending.\nOF\nSUITE 700, 1430 K STREET, N.W., WASHINGTON, D.C. 20005 (202) 347 9520\nCorrespondence / President Ford / 1972 Agreement\n8/30/76\npage 2\nEXECUTIVE COMMITTEE\nPRESIDENT\nWe hope that the reports of the level of\nMel Tonasket\nconsideration of the Justice Department's request are\nColville\nexaggerated and-that changes in the direction suggested\nFIRST VICE-PRESIDENT\nby the Department are not anticipated. It is of utmost\nVeronica Murdock\nimportance that the 1972 procedures, carefully developed\nMohave\nto discharge (at a minimal level) the Government's trust\nTREASURER\nresponsibility, will not be abandoned cavalierly. If\nRay Goetting\nCaddo\nnew procedures are being considered, we believe that the\nRECORDING SECRETARY\nIndian Tribes and Indian legal community should be accorded\nRamona Bennett\nthe opportunity to review and comment on the procedures and\nPuyallup\namendments before drastic change is made.\nEXECUTIVE DIRECTOR\nCharles Timble\nFinally, we hope to find agreement in the White\nOglala Sioux\nHouse that the time has come to formalize and publicize the\nAREA VICE PRESIDENTS\nprocedures set out in 1972, along with any amendments. We\nrespectfully suggest that serious consideration be given to\nABERDEEN AREA\nthe promulgation of an Executive Order to this effect. The\nJoe Chase\nMandan\nprocedures formalized in this fashion may serve to remove\nALASKA AREA\nfuture temptation for the Department of Justice to seek a\nGordon Jackson\nchange, in secret, in announced policies for the protection\nHinget\nof Indian rights.\nANADARKO AREA\nJuanita Ahtone\nKiowa\nBILLINGS AREA\nRay Spang\nOcincerely\nNorthern Cheyenne\nCharles E. Trimble\nGALLUP AREA\nExecutive Director\nVictor Sarracino\nLaguna\nMINNEAPOLIS AREA\nCET/ssh\nStanley Webster\nOncida\nMUSKOGEE AREA\nCC: The Honorable Edward H. Levi, Attorney General\nKatharine Whitehorn\nThe Honorable Thomas S. Kleppe, Secretary of the Interior\nOsage\nThe Honorable Philip W. Buchen, Counsel to the President\nPHOENIX AREA\nThe Honorable Peter R. Taft, Assistant Attorney General, Lands\nIrene Cuch\nThe Honorable H. Gregory Austin, Solicitor, Interior Department\nUte\nThe Honorable James O. Eastland, Chairman, Judiciary Committee\nPORTLAND AREA\nThe Honorable Henry M. Jackson, Chairman, Interior Committee\nRoger Jun\nThe Honorable James Abourezk, Chairman, Indian Affairs, Senate\nYakima\nThe Honorable Peter W. Rodino, Jr., Chairman, House Judiciary\nSACRAMENTO AREA\nThe Honorable James A. Haley, Chairman, House Interior\nRachel Nabahe\nShoshone/Paiute\nThe Honorable Lloyd Meeds, Chairman, Indian Affairs, House\nSOUTHEAST AREA\nMembers, National Indian Litigation Committee\nJonathan Ed Taylor\nThe Honorable Wendell Chino, President, National Tribal\nCherokee\nChairmen's Association\nTRIBAL\nCHAIRMEN'S\nTast\nASSOCIATION\nNATIONAL TRIBAL CHAIRMEN'S\nASSOCIATION\nSuite 207 1701 Pennsylvania Avenue, N.W. Washington, D.C. 20006\n202 - 343-9484\nUNITY\nJUSTICE\nSeptember 7, 1976\nSTRENGTH\nThe Honorable Gerald R. Ford\nPresident of the United States\nThe White House\nWashington, D.C.\nAttention: Bradley H. Patterson, Jr.\nDear Mr. President:\nOn behalf of the National Tribal Chairmen's Association, representative of\nthe chairmen of one hundred and ninety federally recognized Indian tribes, I should\nlike to express my concren regarding recent reports that the Department of Justice is\nseeking to be relieved of its February 28, 1972, agreement, the purpose of which is to\nprovide interim relief, prior to the establishment of the Trust Counsel Authority, in\nthe protection in litigation of Indian natural resource trust interests, when there\nexists within the Department of Justice a position which conflicts with the Indian rights\nto such trust interests.\nNTCA urges protection of trust resources through the elimination of conflicts\nof interests by posturing the trustee to advocate fully, vigorously and without reserva-\ntion the rights and interests of the tribes against threats from any source, by removing\nany constraints upon those federal officials charged with administering the trust, and\nby serving as an advocate for the tribes and as an adversary to those interests which\nconflict with and threaten tribal trust resources. Recently, tribal chairmen in panel/\nworkshop sessions at NTCA's Fourth Annual Convention identified the filing, under the\n1972 agreement, of separate positions of the Interior Department in Justice Department\nbriefs in litigation in which Indian trust resources are threatened or challenged, as a\nsignificant accomplishment in the recognition by the executive branch of its responsibil-\nity to free itself from contraints and to serve as an advocate for the tribes.\nThe recognition of the conflict of interest by President Nixon in his 1970\nMessage to Congress on Indian Affairs and the commitment to alleviation of that conflict\nis the avowed policy of the Administration today. Though certainly not the final solu-\ntion to the conflict of interest, NTCA views the filing of split briefs pending the\nestablishment of the Trust Counsel Authority or something similar in concept as absolutely\nnecessary. In a September 2, 1976, letter to the Secretary of the Department of the Inte-\nrior, NTCA stated that we would like to discuss the implementation of the trust respon-\nHonorable Gerald Ford\nSeptember 6, 1976\nPage two\nibility to protect tribal natural resources and to seek ways that working together we\ncan resolve some of the difficulties which hinder that implementation, for example, the\nconflict of interest. We have asked for a meeting with the Secretary to discuss possible -\nways of working together. We have provided your office and the Secretary's office with\ncopies of NTCA's panel/workshop papers which expand upon possible means, even prior to\nthe establishment of the Trust Counsel Authority, to alleviate the conflict, one of which\nis, of course, the filing of split briefs. We enlist yourcontinued support for the 1972\nagreement and your support for the other means explored in the panel/workshop papers.\nThese papers constitute the broad-based recommendations of tribal chairmen across this\ncountry who attended the Fourth Annual Convention in February, 1976, and who worked\ntogether for the resolution of problems hindering implementation of the trust respons-\nibility to protect Indian natural resources and many other problems.\nWe do urge that prior to any steps being taken or prior to serious considera-\ntion of revocation of the 1972 agreement, Indian tribes be fully advised and given the\nopportunity to comment. Full disclosure is the first duty of a trustee in dealing with\nconflicts in the interests of beneficiaries in a fiduciary relationship. In addition,\nthe spirit and principle of the Indian Self-Determination and Education Assistance Act\nof 1975 and the existing Administrative support of that spirit and principle, requires\nconsultation with Indian tribes affected by the possible revocation of the split brief\nagreement.\nSincerely Yours,\n/5/\nWilliam Youpee\nExecutive Director\nWY/dd\nCC: The Honorable Edward H. Levi, Attorney General\nThe Honorable Thomas S. Kleppe, Secretary of the Interior\nThe Honorable Philip W. Buchen, Counsel to the President\nThe Honorable H. Gregory Austin, Solicitor, Department of the Interior\nThe Honorable Peter R. Taft, Assistant Attorney General, Lands Division\nForm DJ-96a\nDEPARTMENT OF JUSTICE\n(Rev. 6-22-66)\nROUTING SLIP\nTO :\nNAME\nDIVISION\nBUILDING\nROOM\n1.\nBrad Patterson\n2.\n3.\n4.\nSIGNATURE\nCOMMENT\nPER CONVERSATION\nAPPROVAL\nNECESSARY ACTION\nAS REQUESTED\nSEE ME\nNOTE AND RETURN\nNOTE AND FILE\nRECOMMENDATION\nCALL ME\nYOUR INFORMATION\nANSWER OR ACKNOWL-\nEDGE ON OR BEFORE\nPREPARE REPLY FOR\nTHE SIGNATURE OF\nREMARKS\nFORD LIBRART\nFROM:\nNAME\nBUILDING & ROOM\nEXT.\nDATE\nASSISTANT ATTORNEY GENERAL\nLand and Natural Resources\nDiv.\nPeter R. Taft\n9/10\nLN-123 2-1-73\nOPTIONAL FORM NO. 10\nJULY 1973 EDITION\nGSA FPMR (41 CFR) 101-11.6\nUNITED STATES GOVERNMENT\nMemorandum\nTO\n:\nScott P. Crampton, AAG\nDATE: September 10, 1976\nTax Division\nFROM\nPeter R. Taft, AAG\nLand and Natural Resources Division\nSUBJECT:\nSplit Briefs\nAttached is a letter from the National Tribal\nChairman's Association and another one from the National\nCongress of American Indians which give you some idea\nof the trouble stirred up by the Deputy's letter to\nBuchen seeking to abandon split briefs.\nWhereas the predicament may appear anomalous\nto you, it is an ordinary fact of life for our Division.\nThe problem is that the United States appears in two\nseparate capacities, one a governmental capacity, and\nthe other as trustee for Indian tribes. These two\ncapacities are often in conflict. However, the mere\nassertion of a major governmental interest or more\npersuasive legal argument on behalf of the governmental\ninterest has never been an excuse to abandon the trust\nresponsibility.\nUsually if the federal agency is sensitive to\nthe Indian problem, it is possible to either avoid or\nminimize the taking of conflicting positions in court.\nHowever where the conflict is inevitable, some means\nmust be found to satisfy the trustee's responsibility.\nGenerally, we have been able to devise such procedures\ndepending upon the particular facts of each case with-\nout totally jeopardizing the legal position of the\nUnited States in its sovereign capacity. I would\nsuggest that when the problem arises in the future in\nthe Tax field, that either Myles Flint, our Indian\nResources Section Chief, or Ed Clark, our Appellate\nSection Chief, could give helpful advice. However, it\nis equally important in our experience that the involved\nfederal agency, such as the IRS, accept the fact that\nthey have a serious problem on their hands when major\nIndian interests are involved, and avoid attempting to\nsteamroller their viewpoint.\ncc: Harold R. Tyler, Jr.\nDeputy Attorney General\nBuy U.S. Savings Bonds Regularly on the Payroll Savings Plan\n5010-110\nACTION\nROUTING AND TRANSMITTAL SLIP\n1\nTO (Name, office symbol or location)\nINITIALS\nCIRCULATE\nBrad Patterson\nDATE\nCOORDINATION\n2\nINITIALS\nFILE\nDATE\nINFORMATION\n3\nINITIALS\nNOTE AND\nRETURN\nDATE\nPER CON-\nVERSATION\n#\n4\nINITIALS\nSEE ME\nDATE\nSIGNATURE\nREMARKS\nFor your review and retention.\nDo NOT use this form as a RECORD of approvals, concurrences,\ndisapprovals, clearances, and similar actions.\nFROM (Name, office symbol or location)\nDATE\nReid Chambers Bobbie\n9/3/76\npHo343-9401\nOPTIONAL FORM 41\nGPO c43-16-81418-1 419-015\n5041-101\nAUGUST 1967\nGSA FPMR ( 41CFR) 100-11.206\nHonorable Harold R. Tyler, Jr.\nDeputy Attorney General\nDepartment of Justice\nWashington, D.C.\n20530\nHonorable H. Gregory Austin\nSolicitor\nDepartment of the Interior\nWashington, D.C. 20240\nGentlemen:\nOn July 26, Judge Tyler wrote this office concerning the\ncase of Amy Critzer V. United States, now pending before\nthe Court of Claims. This case is the sequel to a\ncriminal prosecution of Ms. Critzer for evasion of\nfederal income taxes. After Ms. Critzer was convicted\nin District Court, she appealed her conviction to the\nCourt of Appeals for the Fourth Circuit. At that time,\nthe then-Solicitor of the Interior Department requested\nthe Department of Justice to file separately Interior's\nviews that the income received by Ms. Critzer was not\ntaxable because it was derived from her assignment of\nIndian trust lands on the Eastern Cherokee Reservation in\nNorth Carolina.\n2\nThe Solicitor's request was made pursuant to an agreement\ncontained in a February 28. 1972, letter from the Attorney\nGeneral to the Assistant to the President for Domestic\nAffairs. The February, 1972, letter agreed that in\nlitigation handled by the several divisions of the\nDepartment of Justice where \"Indian natural resource\ntrust interests may be challenged or threatened\" by a\nposition taken by Justice, the Department of Justice would\ninclude in its brief the separate views of the Interior\nDepartment with respect to those trust interests.\nOn March 25, 1974, Mr. Leonard Garment stated in a letter\nconcerning the Critzer case to Assistant Attorney\nGeneral Scott Crampton that this arrangement still holds\nand the case \"directly affected Indian natural resource\ntrust interests.\" The Department of Justice thereafter\nincluded Interior's views in its brief before the Court\nof Appeals, and that court reversed Ms. Critzer's con-\nviction. The present Court of Claims litigation concerns\nher right to a refund.\n3\nJudge Tyler's July 26 letter urged that the Department of\nJustice should no longer be bound by this agreement. On\nAugust 6, Solicitor Austin by letter to me stated the\nInterior Department's strong opposition to Judge Tyler's\nproposal. After a meeting with my staff, I understand\nthat the Interior and Justice Departments have agreed to work\nout a compromise joint position to be taken in the Critzer\ncase. On the broader question of the bifurcated brief\nprocedure, I believe it should be continued in this\nspecial area where a position taken by the Department of\nJustice on behalf of the United States challenges or\nthreatens the rights or reasonable claims of Indians\nto natural resources held in trust for them by the United\nStates. The reasons for this procedure is that such\nIndian rights are private property rights; the United\nStates holds them in trust and is not their outright\nowner. This trust responsibility places the United\nStates in a conlict-of-interest. Given this conflict,\nI believe that its separate views as trustee ought\nto be presented to the courts where they differ from the\ninterests of the United States as determined by the\nDepartment of Justice.\n4\nI would emphasize, however, that this special bifurcated\nbrief procedure ought to be limited to cases involving Indian\nrights or reasonable claims to natural resources for\nwhich the United States has a trust responsibility. Tax\ncases, for example, may or may not (in particular instances)\ninvolve such rights, and this must be determined on a case\nby case basis. Where an Assistant Attorney General determines\nthat a specific case does not involve such rights, and the\nSolicitor disagrees with that determination, I believe\nit appropriate for this office to review that dispute.\nOtherwise, I do not believe that this office should\nbecome involved in the substantive legal issues of these\ncases.\nSincerely,\nPhilip W. Buchen\nCouncil to the President\nFORD\nOPTIONAL FORM NO. 10\nJULY 1973 EDITION\n\"GSA FPMR (41 CFRI 101.11.6\nUNITED STATES GOVERNMENT\nMemorandum\nTO\nBobbie Greene Kilberg\nDATE:\nSeptember 20, 1976\nAssociate Counsel\nMary E. Wagner\nNEW\nFROM :\nSpecial Assistant to the\nDeputy Attorney General\nSUBJECT:\nSplit Briefs\nAttached is a suggested paragraph for use in responding to\ncorrespondence you have received on the above issue. The\nDepartment of Justice welcomed the opportunity to review\nthe split brief procedure with you. Since our meeting, the\nDepartment's Tax Division has met with appropriate repre-\nsentatives of the Department of Interior to work out the\nparticular problems raised by the Critzer litigation, which\nprompted the Deputy Attorney General's request for review.\nAt this time, we seek no further review of the split brief\npolicy.\nAttachment\ncc: Bradley H. Patterson, Jr.\nNO FORD\nBuy U.S. Savings Bonds Regularly on the Payroll Savings Plan\n5010-110\nDRAFT\nSeptember 20, 1976\nA meeting was held recently in our office to discuss the\nDepartment of Justice request for a review of the policy\nembodied in the 1972 Agreement. Subsequent to that meeting,\nrepresentatives of the Departments of Justice and Interior\nmet to see if they could reach a mutually acceptable pro-\ncedure by which Interior's Indian trust responsibilities\ncan be presented in court. As a result of those meetings, the\nDepartment of Justice has informed me that at present it does\nnot desire any further review of the 1972 Agreement, which\nremains in effect.\nTHE WHITE HOUSE\nWASHINGTON\nOctober 27, 1976\nMEMORANDUM FOR:\nBRAD PATTERSON\nBobbe\nFROM:\nBOBBIE GREENE KILBERG\nI am returning the originals of the NCAI and NTCA\nletters to the President on the split brief issue.\nI would assume that no further response is needed\nto the NCAI letter since you attended their convention\nand addressed the issue there. As to NTCA, I would\nsuggest that you call Bill Youpee and give him our\nposition orally rather than in writing.\nAttachments\nTRIBAL\nCHAIRMEN'S\nNATIONAL\nASSOCIATION\nNATIONAL TRIBAL CHAIRMEN'S\nASSOCIATION\nSuite 207 1701 Pennsylvania Avenue, N.W. Washington, D.C. 20006\n202 - 343-9484\nUNITY\nJUSTICE\nSeptember 7, 1976\nSTRENGTH\nThe Honorable Gerald R. Ford\nPresident of the United States\nThe White House\nWashington, D.C.\nAttention: Bradley H. Patterson, Jr.\nDear Mr. President:\nOn behalf of the National Tribal Chairmen's Association, representative of\nthe chairmen of one hundred and ninety federally recognized Indian tribes, I should\nlike to express my concren regarding recent reports that the Department of Justice is\nseeking to be relieved of its February 28, 1972, agreement, the purpose of which is to\nprovide interim relief, prior to the establishment of the Trust Counsel Authority, in\nthe protection in litigation of Indian natural resource trust interests, when there\nexists within the Department of Justice a position which conflicts with the Indian rights\nto such trust interests.\nNTCA urges protection of trust resources through the elimination of conflicts\nof interests by posturing the trustee to advocate fully, vigorously and without reserva-\ntion the rights and interests of the tribes against threats from any source, by removing\nany constraints upon those federal officials charged with administering the trust, and\nby serving as an advocate for the tribes and as an adversary to those interests which\nconflict with and threaten tribal trust resources. Recently, tribal chairmen in panel/\nworkshop sessions at NTCA's Fourth Annual Convention identified the filing, under the\n1972 agreement, of separate positions of the Interior Department in Justice Department\nbriefs in litigation in which Indian trust resources are threatened or challenged, as a\nsignificant accomplishment in the recognition by the executive branch of its responsibil-\nity to free itself from contraints and to serve as an advocate for the tribes.\nThe recognition of the conflict of interest by President Nixon in his 1970\nMessage to Congress on Indian Affairs and the commitment to alleviation of that conflict\nis the avowed policy of the Administration today. Though certainly not the final solu-\ntion to the conflict of interest, NTCA views the filing of split briefs pending the\nestablishment of the Trust Counsel Authority or something similar in concept as absolutely\nnecessary. In a September 2, 1976, letter to the Secretary of the Department of the Inte-\nrior, NTCA stated that we would like to discuss the implementation of the trust respon-\nHonorable Gerald Ford\nSeptember 6, 1976\nPage two\nibility to protect tribal natural resources and to seek ways that working together we\ncan resolve some of the difficulties which hinder that implementation, for example, the\nconflict of interest. We have asked for a meeting with the Secretary to discuss possible\nways of working together. We have provided your office and the Secretary's office with\ncopies of NTCA's panel/workshop papers which expand upon possible means, even prior to\nthe establishment of the Trust Counsel Authority, to alleviate the conflict, one of which\nis, of course, the filing of split briefs. We enlist your continuedsupport for the 1972\nagreement and your support for the other means explored in the panel/workshop papers.\nThese papers constitute the broad-based recommendations of tribal chairmen accross this\ncountry who attended the Fourth Annual Convention in February, 1976, and who worked\ntogether for the resolution of problems hindering implementation of the trust respons-\nibility to protect Indian natural resources and many other problems.\nWe do urge that prior to any steps being taken or prior to serious considera-\ntion of revocation of the 1972 agreement, Indian tribes be fully advised and given the\nopportunity to comment. Full disclosure is the first duty of a trustee in dealing with\nconflicts in the interests of beneficiaries in a fiduciary relationship. In addition,\nthe spirit and principle of the Indian Self-Determination and Education Assistance Act\nof 1975 and the existing Administrative support of that spirit and principle, requires\nconsultation with Indian tribes affected by the possible revocation of the split brief\nagreement.\nSincerely Yours,\nNilliam William Youpee youper\nExecutive Director\nWY/dd\nCC: The Honorable Edward H. Levi, Attorney General\nThe Honorable Thomas S. Kleppe, Secretary of the Interior\nThe Honorable Philip W. Buchen, Counsel to the President\nThe Honorable H. Gregory Austin, Solicitor, Department of the Interior\nThe Honorable Peter R. Taft, Assistant Attorney General, Lands Division\nLIBRAD"
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