Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
1103435
label
Split Brief Procedure
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
1103435
sourceUrl
contentType
document
title
Split Brief Procedure
citationUrl
collections
Bradley H. Patterson Files (Ford Administration)
Bradley Patterson's Native American Programs Files
subjects
Indians of North America
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
1103435
coverageEndDate
logicalDate
1976-10-01
month
10
year
1976
coverageStartDate
logicalDate
1976-08-01
month
8
year
1976
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
9a993e91a6b8c1c2
ocrText
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States of America his copyrights in all of his unpublished writings in National Archives collections.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