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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Indian Policy
(1 of 3)
Box: 29
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
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Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
December 17, 1982
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS OSR
SUBJECT:
Enrolled Bill H.R. 6403 - Disposition
of Wyandot Indians Judgment Funds
Richard Darman has requested your comments by close of
business today on Enrolled Bill H.R. 6403, which authorizes
distribution of funds previously awarded and appropriated to
the Wyandot Indians. The Wyandots were awarded $561, 424.21
by the Indian Claims Commission in 1978, and $2,349,679.60
by the Court of Claims in 1979. Funds have been appro-
priated to cover these awards, and the instant bill autho-
rizes distribution of the funds among the different groups
of Wyandots. This legislation, originally introduced by the
Department of Interior, is necessary under the Indian
Judgment Funds Act of 1973 because the Secretary of Interior
did not submit a plan for distribution within 180 days of
the time Congress appropriated the funds. OMB and Interior
approve of the bill, the latter indicating that it reflects
the desires of the Wyandots. The Department of Justice
interposes no objection (informally).
I have reviewed the memorandum to the President from James
Frey, Assistant Director of OMB for Legislative Reference,
the legislative report, and the bill itself, and have no
objections. I recommend that you sign the attached
memorandum to Richard Darman.
Attachment
THE WHITE HOUSE
WASHINGTON
December 17, 1982
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 6403 - Disposition
of Wyandot Indians Judgment Funds
Counsel's Office finds no objection from a legal perspective
to the above-referenced enrolled bill.
FFF: JGR:aw 12/17/82
CC: FFFielding
WGRoberts
Subj.
Chron
THE WHITE HOUSE
WASHINGTON
December 17, 1982
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 6403 - Disposition
of Wyandot Indians Judgment Funds
Counsel's Office finds no objection from a legal perspective
to the above-referenced enrolled bill.
FFF:JGR:aw 12/17/82
CC: FFFielding
JGRoberts
Subj.
Chron
ID #. 098569
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o * OUTGOING
H INTERNAL
I - INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Bichard G. Darman
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Enrolled Bill H.R. 6403 Disponeteon
of Wajandat Indian Judgment Funde
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
WHolland
ORIGINATOR 82,12,16
/ /
WAT 18
Referral Note:
D
82,12,16
S 82,12,17
Referral Note:
/
/
/ /
-
Referral Note:
/
/
/ /
-
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R Direct Reply w/Copy
B Non-Special Referral
S Suspended
D
Draft Response
S For Signature
F - Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
Document No. 098569SS
WHITE HOUSE STAFFING MEMORANDUM
COB FRIDAY
DATE: Dec. 16, 1982 ACTION/CONCURRENCE/COMMENT DUE BY: December 17, 1982
SUBJECT: Enrolled Bill H.R. 6403--Disposition of Wyandot Indians Judgment Fund
ACTION FYI
ACTION FYI
VICE PRESIDENT
FULLER
MEESE
GERGEN
BAKER
HARPER
DEAVER
JENKINS
STOCKMAN
MURPHY
CLARK
ROLLINS
DARMAN
P
ISS
WILLIAMSON
DOLE
VON DAMM
DUBERSTEIN
BRADY/SPEAKES
FELDSTEIN
ROGERS
FIELDING
Remarks:
Please forward comments on this enrolled bill to my office by close of
business Friday.
Thank you.
Richard G. Darman
Assistant to the President
(x2702)
Response:
EXECUTIVE OFFICE OF THE PRESIDENT
SECURITY UNITED - OFFICE 1
OFFICE OF MANAGEMENT AND BUDGET
SEXTS
WASHINGTON, D.C. 20503
DEC 16 1982
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill H.R. 6403 - Disposition of Wyandot Indians
Judgment Funds
Sponsor - Rep. Udall (D) Arizona
Last Day for Action
December 24, 1982 - Friday
Purpose
Authorizes the distribution and use of funds already awarded and
appropriated to the Wyandot Tribe of Indians.
Agency Recommendations
Office of Management and Budget
Approval
Department of the Interior
Approval
Department of Justice
No objection(Informally)
Discussion
In 1978 and 1979, the Wyandot Tribe of Indians was awarded
judgments totaling $2,911,104 in satisfaction of claims against.
the United States. H.R. 6403 provides the statutorily required
authorization of the distribution and use of these funds by the
Wyandot Indians.
H.R. 6403 is virtually identical to a proposal that the
Department of the Interior transmitted to Congress this year,
and as the Department notes in its enrolled bill views letter,
H.R. 6403 reflects the desires of the Wyandot Indians.
H.R. 6403 passed both Houses of the Congress by voice vote.
(Signed) James M. Frey
Assistant Director for
Legislative Reference
Enclosures
6403
Ainety-sebenth Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the twenty-fifth day of January,
one thousand nine hundred and eighty-two
An Art
To provide for the use and distribution of funds to the Wyandot Tribe of Indians in
docket 139 before the Indian Claims Commission and docket 141 before the United
States Court of Claims, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That, notwithstand-
ing any other provision of law, the funds appropriated on October
31, 1978, and March 2, 1979, in accordance with section 1302 of the
Supplemental Appropriation Act (31 U.S.C. 724A), in satisfaction of
judgments granted to the Wyandot (hereinafter "Wyandotte") Tribe
in docket 139 by the Indian Claims Commission and in docket 141 by
the United States Court of Claims, less attorney fees and litigation
expenses, including all interest and investment income accrued,
shall be used and distributed as herein provided.
SEC. 2. The Secretary of the Interior (hereinafter "Secretary")
shall divide the funds between the Wyandotte Tribe of Oklahoma
and the absentee Wyandotte descendants as follows:
308/510ths to the Wyandotte Tribe of Oklahoma; and
202/510ths to the absentee Wyandotte descendants.
SEC. 3. The Wyandotte Tribe of Oklahoma's share shall be distrib-
uted as follows:
(a) A roll shall be prepared, in accordance with the procedures
enacted by the tribal government body and approved by the
Secretary, of all members of the Wyandotte Tribe of Oklahoma
who were born on or prior to and living on the date of this Act.
Subsequent to the preparation of this roll, the Secretary shall
make a per capita distribution of 80 per centum of the Wyan-
dotte Tribe of Oklahoma's share of the funds, in a sum as equal
as possible, to all persons listed on this roll. Any amount
remaining after the per capita payment shall be utilized as
provided in section 3(b)(2)(iii) of this Act.
(b) The remaining 20 per centum shall be utilized as follows:
(1) A sum of $100,000 shall be utilized to purchase land
for the tribe to be held in trust status by the Secretary.
(2) The balance shall be invested by the Secretary, pursu-
ant to the Act of June 24, 1938 (25 U.S.C. 162a). The interest
and investment income accrued shall be immediately avail-
able to the Wyandotte Tribe of Oklahoma upon the
approval of the Secretary of the tribe's plan of operation
and budget as set forth in Wyandotte Tribe of Oklahoma
Resolution Numbered 9479, adopted September 4, 1979, as
follows:
(i) 33½ per centum shall be utilized toward the
upkeep and maintenance of the Wyandotte Cultural
Center and other sites as may in the future be devel-
oped by the tribe.
(ii) 33½ per centum shall be utilized for the upkeep
and maintenance of the Wyandotte Tribal Cemetery at
Wyandotte, Oklahoma.
H.R. 6403-2
(iii) 33½ per centum shall be placed in the custody of
the secretary/treasurer of the tribe and, with the
approval of the Business Committee of the Wyandotte
Tribe of Oklahoma, utilized for the administration of
the tribe: Provided, That none of these funds be
expended for salaries.
SEC. 4. A roll shall be prepared by the Secretary of persons: not
members of the Wyandotte Tribe of Oklahoma, on, or lineally
descended from persons on, the "Census of Absentee or Citizen
Wyandotte Indians" compiled by Joel T. Olive, dated November 18,
1896, as corrected in circular of October 28, 1904, by W. A. Richards,
Commissioner of the General Land Office; and born on or prior to
and living on the date of this Act. The Secretary's determination
concerning eligibility for inclusion on this roll shall be final. Subse-
quent to the preparation of this roll, the Secretary shall make a per
capita distribution, of the absentee Wyandotte's shares, in a sum as
equal as possible, to all persons listed on this roll.
SEC. 5. The per capita shares of living competent adults shall be
paid directly to them. Per capita shares of deceased individual
beneficiaries shall be determined as distributed pursuant to regula-
tions prescribed by the Secretary. Per capita shares of legal incom-
petents and per capita shares of individuals under age eighteen
shall be paid in accordance with such procedures, including the
establishment of trusts, as the Secretary determines to be necessary
to protect the interests of such individuals.
SEC. 6. None of the funds distributed under this Act shall be
subject to Federal or State income taxes or be considered income or
resources in determining eligibility for or the amount of assistance
under the Social Security Act.
SEC. 7. The Secretary of the Interior is authorized to prescribe
rules and regulations to carry out the provisions of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
December 21, 1982
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
JOR
SUBJECT:
Enrolled Bill H.R. 2329 - Waiver of Statutes
of Limitations for Cherokee, Choctaw, and
Chickasaw Nations of Oklahoma
Richard Darman has requested comments by close of business
today on Enrolled Bill H.R. 2329, which would waive the
statutes of limitations applicable to two claims the
Cherokee, Choctaw, and Chickasaw Indians wish to raise
against the United States. The first claim involves damage
to the Arkansas River riverbed -- owned by the tribes --
caused by the government during construction of the Arkansas
River Navigation System. The government clearly took
minerals of value from the riverbed, but under the doctrine
of navigational servitude is not liable for damages to the
owner. See United States V. Rands, 389 U.S. 121, 122-123
(1967); Choctaw Nation V. State of Oklahoma, 397 U.S. 620,
635 (1970). Although there were negotiations on compensa-
tion between the tribes and Interior, Interior ultimately
decided against compensation, and by that time the statute
of limitations on the tribes' "takings claim" had expired.
The second claim is also a takings claim, arising out of a
1906 Act which extinguished an existing reversionary
interest of the tribes in abandoned railroad stations. The
Secretary of Interior was authorized by the 1906 Act to seek
money awards for the tribes, but did not do SO. Suit by the
tribes on these claims was authorized in separate acts in
1924 and 1946, but the three tribes covered by the present
bill did not pursue their claims before expiration of the
applicable limitations periods.
The Department of Justice and OMB recommend disapproval of
the bill, on the grounds that ad hoc waivers of applicable
statutes of limitations undermine the policy of finality
underlying such statutes, are discriminatory in favoring
selected claimants, and invite other time-barred claimants
to seek similar waivers. There is no compelling justifi-
cation for waiver in these cases: the tribes have not
lacked adequate legal counsel and could have had their day
in court. Furthermore, with respect to the riverbed claim,
-2-
the tribes have no case on the merits, and permitting suit
would simply result in a meaningless waste of litigation
resources. Interior recommends approval, noting that the
government originally erred in contending that the tribes
did not own the riverbed, and that the tribes were wrong-
fully deprived of property in the railroad station cases.
Assistant Attorney General Robert McConnell has also written
you separately, asking for your support in obtaining disap-
proval of the bill and enclosing a copy of the Justice
Department enrolled bill letter to Stockman and proposed
memorandum of disapproval.
I recommend that you concur in the views of Justice and OMB
that the President disapprove this bill. There is no
legally cognizable claim with respect to the riverbed.
While there is a claim with respect to the railroad sta-
tions, it is in the nature of statutes of limitations to bar
meritorious claims. Permitting exceptions because of the
existence of meritorious claims ignores the policy of
finality underlying limitations periods. I have attached a
proposed memorandum to Darman.
Attachment
THE WHITE HOUSE
WASHINGTON
December 21, 1982
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 2329 - Waiver of
Statutes of Limitations for Cherokee,
Choctaw, and Chickasaw Nations of Oklahoma
I have reviewed the above-referenced enrolled bill, which
would waive the statutes of limitations with respect to
claims by the indicated Indian tribes against the United
States.
I agree with the Department of Justice view that this bill
would undermine the policy of finality in the applicable
statutes of limitations, for no compelling reason, and
invite other time-barred claimants to seek similar relief.
Furthermore, there is no merit to the underlying claim
concerning damage to the Arkansas River riverbed, so the
bill would simply authorize wasteful litigation with re-
spect to that claim. As to the other claim, despite special
legislation in the past, the claims were not pursued.
Thus, from a legal point of view I would concur in the DOJ/
OMB recommendation. However, from a political point the
vote would indicate very strong support for this bill.
Thus, the views of our legislative people should be sought
before recommending a pocket veto.
FFF:dgh 12/21/82
CC: FFFielding
JGRoberts
Subj
Chron
ID # 098564
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 . OUTGOING
H . INTERNAL
I . INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Richard G. Darman
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Enrolled Bill H.R. 2329- Cherokee,
Chocktaw and Chickarow Nations
of Oklahoma
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUHolland
ORIGINATOR 82,12,20
/
/
Referral Note:
WAT18
D 82,12,20
582,121
Referral Note:
/
/
/
/
1
Referral Note:
/ /
/
/
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C - Completed
C Comment/Recommendation
R Direct Reply w/Copy
B Non-Special Referral
S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code
If
"A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
Document No. 098564SS
WHITE HOUSE STAFFING MEMORANDUM
DATE: 12/20/82
c.o.b. TOMORROW
ACTION/CONCURRENCE/COMMENT DUE BY:
TUESDAY, 12/21
SUBJECT: ENROLLED BILL H.R. 2329 - CHEROKEE, CHOCKTAW, AND CHICKASAW NATIONS
OF OKLAHOMA
ACTION FYI
ACTION FYI
VICE PRESIDENT
FULLER
MEESE
GERGEN
BAKER
HARPER
DEAVER
JENKINS
STOCKMAN
MURPHY
CLARK
ROLLINS
DARMAN
P
ISS
WILLIAMSON
DOLE
VON DAMM
DUBERSTEIN
BRADY/SPEAKES
FELDSTEIN
ROGERS
FIELDING
Remarks:
May we have your comments no later than Tuesday, 12/21. Thank you.
Richard G. Darman
Assistant to the President
(x2702)
Response:
OFFICE # TR PRESIDENT SEAL FOR UNITED
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
DEC 20 1982
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill H.R. 2329 - Cherokee, Choctaw, and
Chickasaw Nations of Oklahoma
Sponsor - Rep. Synar (D) Oklahoma
Last Day for Action
December 24, 1982 - Friday
Purpose
Waives statutes of limitation and confers jurisdiction on certain
courts of the United States to consider specified claims of the
Cherokee, Choctaw, and Chickasaw Indian Nations of Oklahoma.
Agency Recommendations
Office of Management and Budget
Disapproval
Department of Justice
Disapproval (Memorandum
of Disapproval
attached)
Department of the Army
Defers to Justice
Department of the Interior
Approval
Discussion
H.R. 2329 would waive the statutes of limitation applicable to
two claims that the Cherokee, Choctaw, and Chickasaw Nations of
Oklahoma wish to raise against the United States. The enrolled
bill would confer jurisdiction to hear and render judgments
regarding these claims upon the U.S. Court of Claims or the U.S.
District Court for the Eastern District of Oklahoma.
For reasons set forth below, we concur in Justice's view that
such a statutes of limitation waiver is not justified, is funda-
mentally unfair and discriminatory, and could be viewed as a
precedent and thus generate numerous other attempts for relief
from statutes of limitation. Accordingly, we join Justice in
urging that you disapprove H.R. 2329.
2
Background
In the early 1800's, the United States granted the Cherokee,
Choctaw, and Chickasaw title for lands that are now a part of
Oklahoma, including an area through which the Arkansas River
flows. These grants were a part of Indian treaties that opened
up the southwestern United States to non-Indian settlements.
Both of the claims addressed by H.R. 2329 are derived from
alleged damages associated with these tribal land grants.
However, the tribes cannot pursue their claims because several
statutes of limitation bar the filing of such claims.
Arkansas Riverbed Claim
The tribes have consistently asserted title to the Arkansas
riverbed that traverses their lands. When construction on the
Arkansas River Navigation System (ARNS) commenced in 1946, the
Federal Government removed sand, gravel, and other minerals from
the riverbed. H.R. 2329 would allow the tribes to seek damages
against the United States, including the value of sand, gravel,
coal, and other resources taken and the value of damsites and
powerheads of dams constructed within the Indians' lands that are
a part of ARNS.
The issue of riverbed ownership was settled in 1970, when the
United States Supreme Court ruled that the Cherokee, Choctaw, and
Chickasaw owned the riverbed. In ruling in favor of Indian
riverbed ownership, the Supreme Court did, however, affirm the
doctrine of "navigational servitude" regarding the construction
of ARNS. In practical terms this meant that even though the
Indians owned the riverbed, they were not entitled to damages
resulting from this Federal navigation project. Perhaps for that
reason the three tribes did not file claims in court, but they
tried unsuccessfully for several years to have a bill enacted
establishing their right to payment for use of the riverbed.
Eventually, Congress required a 3-year study by the Secretary of
the Interior to determine the value of minerals taken from the
Indians' portion of the riverbed during the construction of ARNS.
This study identified potential values including electric
powerhead of up to $177 million in 1976 dollars. Interior
discussed alternative payment arrangements with the tribes
between 1976 and 1978. However, the Department ultimately
decided not to conclude a payment agreement because under the
doctrine of navigational servitude the United States was not
constitutionally or legally obligated to pay any compensation to
the tribes for use of the riverbed associated with construction
of ARNS. By that time, suit by the tribes was barred by the
statutes of limitation.
3
Railroad Station Ground Claims
The tribal land grants of the early 1800's included authorization
for future railroad rights-of-way as stipulated by Congress.
When such rights-of-way were authorized, the Congress also
specified lands outside the rights-of-way to be used by the
railroads as station grounds, subject to reversion to the tribes
if ever abandoned by the railroads. However, many of these
station grounds were never developed, and in a 1906 Act, the
Congress provided that title to abandoned station grounds would
vest either in the municipality within which the land was located
or in the individual who owned the subdivision of which the
abandoned tract was a part.
This action effectively extinguished the tribes' reversionary
interests in the abandoned station grounds and appears to have
created a "legislative taking." Accordingly, the 1906 Act also
authorized the Secretary of the Interior to file suit on behalf
of five tribes, including the Cherokee, Choctaw, and Chickasaw
Nations, to recover money awards or the relevant ground stations.
Such suits were never brought by the Secretary for reasons that
are not known today.
On two other occasions Congress enacted jurisdictional authority
for bringing suit on these station grounds claims. In 1924, the
five tribes were authorized to file suits in the U. S. Court of
Claims. All of the tribes except the Cherokee Nation pursued
their claims, but none was successful. However, under the Indian
Claims Commission Act of 1946, the Creek and Seminole Nations
managed on appeal to the U.S. Court of Claims to win their claims
for station grounds. The Cherokee, Choctaw, and Chickasaw
Nations did not file claims under the 1946 Act and thus were
barred from such action after 1951. There is no meaningful
estimate on the potential value of these claims, for as Interior
notes in its enrolled bill letter the
"
parcels of land are no
longer readily identifiable " and surveys would be required
before any value could be estimated.
Administration Position
The Administration opposed enactment of H.R. 2329 as previous
Administrations had opposed related bills throughout the 1970's.
The basis for this opposition has been a belief that exceptions
to the statutes of limitation should not be made on a piecemeal
basis. No exceptional circumstances existed that prevented the
Cherokee, Choctaw, and Chickasaw Nations from bringing their
claims. The affected Indian tribes have not lacked adequate
legal counsel and could have brought their claims within the
period allowed.
4
Furthermore, in the Arkansas riverbed case, the Department of
Justice strongly believes that there is no legal basis for
compensation by the United States and that litigating a
well-settled matter would be a waste of tribal and government
resources. In fact, in its 1970 decision awarding ownership of
the Arkansas riverbed, the Supreme Court essentially affirmed
that the Indians' title was subject to the United States
preexisting right to exercise its navigational servitude under
the commerce clause of the Constitution. In effect, the courts
have ruled that the United States is not obligated to pay damages
for the destruction of riverbed property resulting from projects
to aid navigation.
Congressional Views
Congressional proponents of this legislation believe it is
justified for the following reasons:
-- regarding the riverbed claims, (1) the Federal Government
gave the appearance of seeking a negotiated settlement until
the statutes of limitation barred such claim and then
asserted that compensation was not required and (2) the
issue of compensation under the doctrine of "navigational
servitude" requires further adjudication by the courts;
-- regarding the station ground claims, (1) Interior failed to
meet its responsibilities as trustee and (2) only after the
Creek and Seminole successfully pursued such claims did the
other tribes think they could prevail on their claims; and
-- regarding both claims, no legal precedents would be created
given the unique nature of these cases.
Agency Views
In its enrolled bill letter, Interior acknowledges that the
United States is neither constitutionally nor equitably obligated
to pay any compensation regarding the riverbed claims, but
recommends approval because:
-- a final judicial determination of liability would be
appropriate in light of the Department's earlier error
regarding riverbed ownership at the time of the ARNS
authorization;
-- in the case of the railroad station ground claims, there is
the possibility of wrongful deprivation of property
and, therefore, the tribes should not be denied an
opportunity to present their claims; and
5
-- H.R. 2329 would = simply confer jurisdiction II without
any assurance of awards resulting.
Consistent with the Executive's long-standing opposition to
H.R. 2329 and related legislation, Justice recommends that it be
disapproved because:
-- there are no compelling circumstances that would warrant
waiving the statutes of limitation and to do so would
unfairly discriminate against those who do not have the
benefit of special legislation to pursue their claims;
-- the bill would encourage the passage of related waivers;
-- litigation on the riverbed claims would serve no purpose
given the doctrine of navigational servitude;
-- although indeterminate, the ultimate cost of the litigation
could be large; and
-- the Indians, under other statutes, have had their day in
court.
Conclusion
We believe the arguments presented by Justice to be compelling,
and accordingly, join that Department in recommending that you
not approve H.R. 2329. Unless the enrolled bill is disapproved,
we fear that numerous other previously barred claims will
surface, and in each case be characterized by their proponents as
"unique" and worthy of being included in a growing class of
exceptions to the statutes of limitation. The principle
underlying the statutes of limitation must not be further eroded.
Justice has prepared, for your consideration, a draft Memorandum
of Disapproval with which we concur.
The House initially failed to suspend the rules and pass
H.R. 2329 by a vote of 174 to 215. However, the House
subsequently passed the bill on a vote of 293-26. The Senate
passed H.R. 2329 on a voice vote.
Ravid A. Stortumen
Director
Enclosures
H.R.2329
Ainety-sebenth Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the twenty-fifth day of January,
one thousand nine hundred and eighty-two
An Art
Conferring jurisdiction on certain courts of the United States to hear and render
judgment in connection with certain claims of the Cherokee Nation of Oklahoma.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That (a) notwith-
standing sections 2401 and 2501 of title 28, United States Code, and
section 12 of the Act of August 13, 1946, as amended (the Indian
Claims Commission Act, 60 Stat. 1049, 1052; 25 U.S.C. 70k), jurisdic-
tion is hereby conferred upon the United States Court of Claims, or
upon the United States District Court for the Eastern District of
Oklahoma, to hear, determine, and render judgment, under the
jurisdictional provisions of section 2 of the Indian Claims Commis-
sion Act of August 13, 1946, as amended (60 Stat. 1049, 1050; 25
U.S.C. 70a), on any claim which the Cherokee Nation of Oklahoma
may have against the United States for any and all damages to
Cherokee tribal assets related to and arising from construction of
the Arkansas River Navigation System, including, but not limited
to, the value of sand, gravel, coal, and other resources taken, the
value of damsites and powerheads of dams constructed on that part
of the Arkansas riverbed within Cherokee domain in Oklahoma,
without the authority or consent of said Cherokee Nation; and also
on any claim which the Cherokee Nation of Oklahoma may have
against the United States resulting from any action under section 14
of the Act of April 26, 1906 (34 Stat. 137, 142), wherein the United
States gave away to third parties lands for what are known as
station grounds of railroads, said lands being segregated from Chero-
kee Nation tribal lands without compensation to said Cherokee
Nation of Oklahoma therefor; all of said lands or interests therein
being held by said Cherokee Nation by virtue of treaties and by
patent issued by the United States granting said lands to said
Cherokee Nation in fee simple, or otherwise.
(b) Notwithstanding sections 2401 and 2501 of title 28, United
States Code, and section 12 of the Act approved August 13, 1946 (25
U.S.C. 70k), the Court of Claims or the United States District Court
for the Eastern District of Oklahoma shall have jurisdiction to the
H.R. 2329-2
same extent as under subsection (a) of this Act to hear, determine,
and render judgment on any claim of the Choctaw Nation and on
any claim of the Chickasaw Nation against the United States for
any damages to any tribal assets, lands, or interests of such Nations
arising from the actions of the United States described in such
subsection.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
Roberts
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Subject: Enrolled fill H.R. 2329, a bill conferring
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United States Department of Justice
/
ASSISTANT ATTORNEY GENERAL
LEGISLATIVE AFFAIRS
WASHINGTON, D.C. 20530
1 6 DEC 1982
Honorable Fred F. Fielding
Counsel to the President
The White House
Washington, D.C. 20500
Dear Fred:
Awaiting the President's review is Enrolled bill H.R. 2329,
a bill "conferring jurisdiction on certain courts of the United
States to hear and render judgment in connection with certain
claims of the Cherokee Nation of Oklahoma."
Aside from undermining the policy of the applicable statutes
of limitation, this unjustified legislation may have significant
budgetary impact. Additionally, because of its discriminatory
nature, that is, there are others in similar situations who do
not have the benefit of this special legislation and are time-
barred from bringing any action, it may lead to similar bills
being introduced and passed by the Congress. Throughout Congres-
sional consideration, this Department has been the "lead" and only
voice for the Administration. The Administration is clearly on
record opposing this bill and similar legislation. Our OMB
cleared opposition has been expressed repeatedly.
The Department strongly opposes Executive approval of H.R.
2329. Enclosed is a copy of our enrolled bill report which has
been submitted to Director Stockman. We urge your support for
appropriate Presidential disapproval of this legislation.
Sincerely,
80
ROBERT A. McCONNELL
Assistant Attorney General
Attachment
DEC 16
of
United States Department of Justice
ASSISTANT ATTORNEY GENERAL
LEGISLATIVE AFFAIRS
WASHINGTON, D.C. 20530
December 16, 1982
Honorable David A. Stockman
Director
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Stockman:
In compliance with your request, I have examined a facsimile
of enrolled bill H.R. 2329, a bill "conferring jurisdiction on
certain courts of the United States to hear and render judgment in
connection with certain claims of the Cherokee Nation of Oklahoma.
The Department of Justice strongly recommends against Executive
approval of this legislation.
This legislation would permit the Cherokee Nation of Oklahoma
to institute suit in either the United States Court of Claims or
the United States District Court for the Eastern District of
Oklahoma for claims against the United States: (1) for damages
to tribal assets arising out of construction of the Arkansas River
Navigational System, and (2) resulting from any action under section
14 of the Act of April 26, 1906 (34 Stat. 142). The legislation
also grants jurisdiction to these courts for related claims of the
Choctaw Nation and Chickasaw Nation. Jurisdiction is granted to
these courts by waiving the relevant statutes of limitations set
forth at 25 U.S.C., $ 2401 and § 2501, as well as that contained in
§ 12 of the Indian Claims Commission Act, 25 U.S.C. § 70k.
Throughout congressional consideration of this legislation this
Department has been solely responsible for stating the Administra-
tion's position. The Department has testified against this legis-
lation (December 9, 1982, before House Judiciary Committee's Sub-
committee on Administrative Law and Governmental Relations) and
has written to both the House of Representatives (February 1982)
and the Senate (November 18, 1982). In each instance, we have
stated the clear opposition of the Administration to this legisla-
tion. All other Departments either remained silent or deferred to
the Department of Justice throughout congressional consideration.
The Administration's opposition has been established clearly.
- 2 -
As you are aware, the clear statutory policy embodied in the
Indian Claims Commission Act was to put an end to claims that
arose prior to August 13, 1946, to establish a firm and clearly
identified termination date for such claims. Absent compelling
circumstances, the Department of Justice has consistently opposed
the waiver of the statute of limitations in these and other matters.
Implicit in such statutes is the principle that the opportunity to
seek a remedy must terminate at some point since the failure to
file suit within the prescribed period of time results not only in
unfairness to the opposing party, in this case the government, but
also makes rendering of a fair decision difficult, if not impossible.
That certain Tribes have overlooked possible claims is not a sound
justification for erosion of the statutory policy. Moreover, piece-
meal exceptions such as H.R. 2329, are fundamentally unfair to
those, who possess a claim barred by the statute of limitations,
but do not have the benefit of special legislation to pursue their
claims. In this sense, H.R. 2329 is is not only discriminatory
but would encourage passage of similar waivers.
It should be emphasized that permitting litigation over one
of the claims of H.R. 2329, that of damages to tribal assets arising
out of the construction of the Arkansas River Navigational System,
conflicts with the right of the United States to exercise its naviga-
tional servitude which is exercised pursuant to the Commerce Clause
of the Constitution. As fully set forth in our report to the Com-
mittee on the Judiciary, a copy of which is attached, we believe
that notwithstanding the ownership rights of the tribe in the bed
of the river, the United States is not obligated to compensate for
destruction of property resulting from a project in aid of naviga-
tion. Enactment of H.R. 2329 would require litigation over a matter
for which the law requires no compensation by the United States.
Expenditure of resources by the United States to litigate this matter
would therefore serve no purpose.
While this legislation makes no direct appropriation of funds,
its ultimate cost may be large. Aside from the litigation resources
that this Department will be forced to allocate, payment of sub-
stantial claims concerning the railroad properties as they relate to
actions under section 14 of the Act of April 26, 1906 (34 Stat.
142), is likely. Additionally, while we believe the exercise of the
government's navigational servitude in the Arkansas River requires
no compensation, it may be possible for a court to construe this
legislation as Congress' intention to grant compensation. Under
these circumstances, the ultimate liability of the United States may
be significant. The Department of the Interior is in a better posi-
tion to provide an estimate of the federal government's potential
liability under this legislation.
The Department of Justice recommends against Executive approval
of H.R. 2329. It is undisputed that the parties who would benefit
from enactment could have had their day in court. They have not
lacked adequate legal counsel and could have brought their claims
- 3 -
within the time allowed. Moreover, enactment would be unfair to
those Tribes which possess other claims now barred by the statute of
limitations but do not have the benefit of special legislation.
Furthermore, enactment of this bill would encourage passage of other
bills whose purpose is to waive statutes of limitations, thus pro-
moting additional dangerous and unjustified piecemeal erosion of the
sound statutory policy to put an end to these lawsuits. Finally,
with respect to the Arkansas River claims, we do not believe there
is any legal obligation for compensation arising from the exercise
of the United States of its navigational servitude. Enclosed is a
suggested Memorandum of Disapproval.
Sincerely,
ROBERT A. McCONNELL
Assistant Attorney General
MEMORANDUM OF DISAPPROVAL
To The House of Representatives
I am withholding my approval of H.R. 2329, a bill "conferring
jurisdiction on certain courts of the United States to hear and
render judgment in connection with certain claims of the Cherokee
Nation of Oklahoma."
H.R. 2329 would waive the statute of limitations found in 25
U.S.C. § 2401 and $2501 as well as that contained in section 12 of
the Indian Claims Commission Act, 25 U.S.C. $70k with respect to
certain claims of the Cherokee Nation, the Chickasaw Nation and the
Choctaw Nation.
The policy embodied in the Indian Claims Commission Act was to
provide for finality and certainty with respect to claims that arose
prior to August 13, 1946. The applicable statutes of limitations,
therefore, should be waived only in compelling circumstances. Impli-
cit in such statutes is the principle that the opportunity to seek
a remedy must terminate at some point since the failure to file suit
within the prescribed period of time not only subjects the opposing
party, in this case the government, to uncertainty and unnecessary
litigation, but also makes rendering a fair decision, many years
after the fact, difficult, if not impossible. That certain Tribes
have overlooked possible claims is not a sound justification
for erosion of the statutory policy. Moreover, piecemeal excep-
tions such as H.R. 2329 are fundamentally unfair to those who
possess⁴ a claim barred by the statute of limitations, but do not
have the benefit of special legislation to pursue their claims.
This discriminatory feature of H.R. 2329 will likely lead numerous
other groups to seek relief from the clear provisions of statutes
of limitations.
By waiving the applicable statute of limitations, H.R. 2329
undermines sound policy of present law. Additionally, it is dis-
criminatory in that it permits litigation of one group's claims
which are indistinguishable from those of other similarly situated
groups. I cannot support this effort to confer special relief to
the detriment of others and the Treasury. Accordingly, I must with-
hold approval of H.R. 2329.
U.S. Department 01 Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
NOV 18 1982
Honorable Strom Thurmond
Chairman, Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This letter presents the views of the Department of Justice on
H.R. 2329 and S. 1914, two bills "conferring jurisdiction on certain
courts of the United States to hear and render judgment in connec-
tion with certain claims of the Cherokee Nation of Oklahoma."
The Department of Justice opposes enactment of this legislation.
H.R. 2329 and S. 1914 would waive the statute of limitations
found in 25 U.S.C. $2401 and $2501 as well as that contained in
§12 of the Indian Claims Commission Act, 25 U.S.C. $70k, with re-
spect to certain claims of the Cherokee Nation.
With the enactment of the Indian Claims Commission Act of 1946,
Congress established an unambiguous statutory policy that all tribal
claims which arose prior to August 13, 1946, were to be filed with-
in five years and that no claim not so presented " * * * may there-
after be submitted to any court or administrative agency for consid-
eration, nor will such claim thereafter be entertained by Congress. "
25 U.S.C. $70k. It has been the consistent position of this and
previous Administrations that exceptions should not be made on a
piecemeal basis. It should be emphasized that litigation by
Cherokee Indians in the Court of Claims under jurisdictional
legislation pertaining specifically to these Cherokee Indians, 1/
and the general jurisdiction of the Indian Claims Commission
Act, has been conducted in numerous cases for more than 70 years.
Both these Acts state clearly that the policy of Congress is to
foreclose further litigation of claims which could have been
brought within their purview. 2/ Moreover, enactment of H.R. 2329
and S. 1914 would require litigation over a matter in which we
strongly believe the law requires no compensation by the United
States.
1/ Act of April 25, 1932, 47 Stat. 137.
2/ A list of jurisdictional acts and the decisions entered there-
under, relative to the claims of these Cherokee Indians is attached.
(See Attachment 1). It appears the Cherokee were awarded a total
of $16,152,452.04 in the cases involved.
One of the claims upon which H.R. 2329 is based would waive
the statute of limitations with respect to claims for the loss of
land to railroads and municipalities during the early 1900s. As
stated earlier, we do not believe there is any justification for
extending such a special privilege; nothing prevented the tribe
from filing claims earlier when they were entitled to do so.
Another claim present in both H.R. 2329 and S. 1914, would
waive the statute of limitations relating to the construction of
the Arkansas River navigation system. The bed of a navigable
river is subject to the authority of the United States to exercise
its navigational servitude. Accordingly, it is the Department's
position that notwithstanding the ownership rights of the tribe
in the bed of the river, the United States is not obligated to
compensate for destruction of property resulting from a project
in the aid of navigation.
The navigational servitude has been defined in United States
V. Rands, 389 U.S. 121 (1967). The Supreme Court's decision in
that case makes it clear that the Fifth Amendment does not require
the United States to compensate property owners when the servitude
is exercised:
The Commerce Clause confers a unique position
upon the Government in connection with naviga-
ble waters. "The power to regulate commerce
comprehends the control for that purpose, and
to the extent necessary, of all the navigable
waters of the United States. For this
purpose they are the public property of the
nation, and subject to all the requisite leg-
islation by Congress.' Gilman V. Philadelphia,
3 Wall. 713, 724-725 (1866). This power to
regulate navigation confers upon the United
States a "dominant servitude, FPC V. Niagara
Mohawk Power Corp., 347 U.S. 239, 249 (1954),
which extends to the entire stream and the
stream bed below ordinary highwater mark. The
proper exercise of this power is not an inva-
sion of any private property rights in the
stream or the lands underlying it, for the dam-
age sustained does not result from taking pro-
perty from riparian owners within the meaning
of the Fifth Amendment but from the lawful ex-
ercise of a power to which the interests of ri-
parian owners have always been subject. United
States V. Chicago, M., St. P. & P.R. Co., 312
U.S. 592, 596-597 (1941); Gibson V. United
States, 166 U.S. 269, 275-276 (1987). Thus,
without being constitutionally obligated to pay
compensation, the United States may change the
course of a navigable stream, South Carolina V.
Georgia, 93 U.S. 4 (1876), or otherwise impair
or destroy a riparian owner's access to navigable
- 2 -
waters, Gibson V. United States, 166 U.S. 269
(1897) Scranton V. Wheeler, 179 U.S. 141
(1900) United States V. Commodore Park, Inc.,
324 U.S. 386 (1945), even though the market
value of the riparian owner's land is substan-
tially diminished. 389 U.S. at 122-123 [empha-
sis supplied].
In United States V. Chandler-Dunbar Co., 229 U.S. 53 (1913),
the plaintiff claimed it was entitled to just compensation for the
"water power capacity" allegedly taken when the United States con-
structed dams and dykes to control the current of St. Mary's River
in Michigan. In rejecting plaintiff's position that the Fifth
Amendment protected its interest in water power capacity, the Court
stated:
This title of the owner of fast land upon
the shore of a navigable river to the bed
of the river, is at best a qualified one.
*
* * It is subordinate to the public
right of navigation, and however helpful
in protecting the owner against the acts
of third parties, is of no avail against
the exercise of the great and absolute
power of Congress over the improvement of
navigable rivers. That power of use and
control comes from the power to regulate
commerce between the States and with for-
eign nations. It includes navigation and
subjects every navigable river to the con-
trol of Congress. * * * If, in the judg-
ment of Congress, the use of the bottom
of the river is proper for the purpose of
placing therein structures in aid of navi-
gation, it is not thereby taking private
property for a public use, for the owner's
title was in its very nature subject to
that use in the interest of public navi-
gation. If its judgment be that structures
placed in the river and upon such submerged
land, are an obstruction or hindrance to
the proper use of the river for purposes of
navigation, it may require their removal and
forbid the use of the bed of the river by
the owner in any way which in its judgment
is injurious to the dominant right of navi-
gation. 229 U.S. at 62.
In Coastal Petroleum Co. V. United States, 524 F.2d 1206 (Ct.
Cl. 1975), a case involving claims analogous to the type that pre-
sumably would be asserted by the Cherokee Nation if either H.R.
2329 or S. 1914 is enacted, the Court of Claims held that the ef-
fect of the navigational servitude is not reduced by the fact that
the government may have received some "commercial benefit" from
- 3 -
the use of the owner's property. In that case, plaintiff claimed
compensation for the government's use (as part of a flood control
project) of limestone removed from the bottom of a navigable lake.
The Court of Claims upheld the government's position that no com-
pensation was required since the limestone was used in connection
with the proper exercise of the government's navigational servitude.
A different result obtains, however, where Congress, through
legislation, specifically provides for compensation of the owners
of "submerged lands in navigable waters." Coastal Petroleum, supra
at 1210. Congress has, from time to time, adopted this approach
with respect to Indian tribes. For example, in the Act of June 4,
1920, ch. 224, $10, 41 Stat. 751, 754, Congress provided that land
on the Crow Indian Reservation in Montana that was valuable for water
power development should be reserved from sale and "held for the ben-
efit of the Crow Tribe of Indians." United States V. 5,677.94 Acres
of Land, 16 F. Supp. 108, 116 (D. Mont. 1958). Also, the Court of
Claims in Confederated Salish and Kootenai Tribes V. United States,
181 Ct. C1. 739 (1967), found that Congress intended to compensate
the Indian Tribes for power values of riparian land when it enacted
Section 10(e) of the Federal Water Power Act, ch. 285, 41 Stat.
1063, 1069 (1920), and required payment of a reasonable annual
charge for the use of that land. In that case, Congress, with re-
spect to the specific tribes, had enacted legislation requiring
rentals for use of their reservation by licensees of the Federal
Power Commission. In the absence of legislation, however, we know
of no instance where an Indian tribe was treated any differently
by the courts with regard to the issue of compensation for riparian
rights than other property owners.
This conclusion is fully supported by the Supreme Court's
decision in Choctaw Nation V. State of Oklahoma, 397 U.S. 620
(1970), involving a dispute over title to land underlying the navi-
gable portion of parts of the Arkansas River. In that case, which
is directly related to the subject matter covered in H.R. 2329 and
and S. 1914, the Court held that the land belonged to the Choctaw,
Chickasaw and Cherokee Nations but indicated that their title was
subject to the preexisting right of the United States to exercise
its navigational servitude:
Indeed, the United States seems to have
had no present interest in retaining
title to the river bed at all; it had
all it was concerned with in its navi-
gational easement via the constitutional
power over commerce. 397 U.S. at 635.
In terms of the Arkansas River bed, there is no legitimate
claim against the United States for the exercise of its navigational
servitude. H.R. 2329 and S. 1914 would simply permit the tribe to
file a lawsuit. It does not waive the right of the United States
to exercise its authority under the Commerce Clause of the Consti-
- 4 -
tution, nor does it provide that there should be any compensation
paid. It would waste the resources of the tribe and the federal gov-
ernment to litigate a matter that is well settled.
In summary, H.R. 2329 and S. 1914 abrogate a long held policy
of the Congress not to waive the statute of limitations. It is a
policy which has been subject to few exceptions. The Cherokee
Indians could have had their day in court. They have not lacked
adequate legal counsel and could have brought their claims within
the period allowed. Additionally, litigating the issue of compen-
sation for the government's exercise of its navigational servitude
would be a waste of resources. We therefore oppose enactment of
H.R. 2329 and S. 1914.
The Office of Management and Budget has advised this Department
that these is no objection to the submission of this report from the
standpoint of the Administration's program.
Sincerely,
SIGNED
ROBERT A. McCONNELL
Assistant Attorney General
Office of Legislative Affairs
in
- 5 -
Claims Against the United States
Brought by Cherokee Indians
Completed Litigation
Act of February 25, 1889, 25 Stat. 694.
Western Cherokee Indians V. United States, 27 Ct.
Cl.1 (1891) aff'd 148 U.S. 427 (1893).
Act of March 19, 1924, 47 Stat. 137, as amended.
Cherokee Nation V. United States, 92 Ct. Cl. 262
(1941).
Act of April 25, 1932, 47 Stat. 137.
Eastern or Emigrant Cherokee V. United States, 82
Ct. Cl. 180 (1935), cert. denied, 299 U.S. 551;
Eastern or Emigrant Cherokees and Western Old Settler
Cherokee V. United States, 88 Ct. C1. 452 (1939).
Indians Claims Commission Act, 25 U.S.C. S 70k, et seq.
Western Cherokee Indians V. United States, 1 Ind. C1.
Comm. 1 (1948), rev'd, 114 Ct. Cl. 716 (1949), 2 Ind.
Cl. Comm. 7 (1952), aff'd, 124 Ct. Cl. 127 (1953);
Western Cherokee Indians V. United States, 1 Ind. Cl.
Comm. 20 (1938), aff'd, 116 Ct. Cl. 665 (1950), cert.
denied, 340 U.S. 903 (1950); Western Cherokee Indians
V. United States, 1 Ind. Cl. Comm. 165 (1949) ; Cherokee
Nation V. United States, 2 Ind. Cl. Comm. 37 (1952); ;
Eastern or Emigrant Cherokee, 1 Ind. Cl. Comm. 408;
Cherokee Nation, 9 Ind. C1. Comm., 435 (1961).
DOJ-1961-12
THE WHITE HOUSE
WASHINGTON
December 22, 1982
NOTE FOR JOHN ROBERTS
Sorry for the short notice,
but we need clearance on this
draft veto message by 9:00
a.m. tomorrow morning. Dick
Darman wants the President
to sign it at that time.
If you have any questions,
please call x2702. Thank
you.
Jan McMinn
x2702
MEMORANDUM OF DISAPPROVAL
I am withholding my approval of H.R. 2329, a bill
"conferring jurisdiction on certain courts of the
United States to hear and render judgment in connection
with certain claims of the Cherokee Nation of Oklahoma." "
H.R. 2329 would waive the statute of limitations found
in 25 U.S.C. $2401 and $2501 as well as that contained in
section 12 of the Indian Claims Commission Act, 25 U.S.C.
§70k with respect to certain claims of the Cherokee Nation,
the Chickasaw Nation and the Choctaw Nation.
The policy embodied in the Indian Claims Commission
Act was to provide for finality and certainty with respect
to claims that arose prior to August 13, 1946. The applicable
statutes of limitations, therefore, should be waived only in
compelling circumstances. Implicit in such statutes is the
principle that the opportunity to seek a remedy must terminate
at some point since the failure to file suit within the
prescribed period of time not only subjects the opposing
party, in this case the government, to uncertainty and
unnecessary litigation, but also makes rendering a fair
decision, many years after the fact, difficult, if not
impossible. That certain Tribes have overlooked possible claims
is not a sound justification for erosion of the statutory
policy. Moreover, piecemeal exceptions such as H.R. 2329 are
fundamentally unfair to those who possess a claim barred by
the statute of limitations, but do not have the benefit of
special legislation to pursue their claims. This dis-
criminatory feature of H.R. 2329 will likely lead numerous
other groups to seek relief from the clear provisions of
statutes of limitations.
By waiving the applicable statute of limitations,
H.R. 2329 undermines sound policy of present law. Additionally,
it is discriminatory in that it permits litigation of one
2
group's claims which are indistinguishable from those of other
similarly situated groups. I cannot support this effort to
confer special relief to the detriment of others and the
Treasury. Accordingly, I must withhold approval of H.R. 2329.
THE WHITE HOUSE,
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
December 23, 1982
The President has signed the following legislation:
H.R. 2329 which waives statutes of limitation and confers jurisdiction
on certain courts of the United States to consider specified claims
of the Cherokee, Choctaw, and Chickasaw Indian Nations of Oklahoma;
H.R. 4364 which transfers 570 acres of land held by the Department of
the Interior, Bureau of Land Management, in Pima County, Arizona, to
the Pascua Yaqui Tribe.
S. 2611 which authorizes an increase in the readjustment allowance
paid to Peace Corps volunteer leaders; and
S. 3073 which authorizes the United States Information Agency (USIA)
film "Dumas Malone: A Journey with Mr. Jefferson" to be distributed
within the United States.
###