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e)

The term "credible claim" in section 5(b)(1) is not defined
in the bill. Has the Interior Department established a
definition of this term?

i) If so, does it plan to make public its definition
before inviting tribes to submit their cases?

2.

In its prepared remarks, the Interior Department stated:
The-Trade-and-Intercourse-Aet-elaims-in-the-Eastern-states

are-in-many-respects-unique-and-involve-a-singular-balanee

of-equities="

"...the Eastern land claims themselves are different from
one another and should be individually evaluated." The
Department then recommends that the bill be expanded to all
states that request inclusion in it. In view of the great
disparity between the historical backgrounds of these cases,
why does the Department make this recommendation?

3.

Section 5(f) of S.2084 permits the Secretary of the Interior

to allow "other interested parties, including States, to provide
information relevant to the Secretary's determination."

a) Since the bill, as currently drafted, forgives the states
and other interested parties of any liability, why should
they be allowed to participate in the Secretary's determination?
The bill does not require that the Indian tribes be informed
of the participation of the other parties and the states.

b)

Does the Interior Department intend to advise the tribes

of the participation of such entities?

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c)

d)

If so, at what stage in the proceedings?

Will the Interior Department share the materials submitted by these entities with the tribes?

4.

The Administration, in its prepared remarks, recommended that
the Secretary and the states enter into agreements that would
provide that the states assume 50 per cent of the liability
determined in any particular case. In oral testimony, before
the Select Committee on Indian Affairs on July 14th, the Solicitor
of the Department of the Interior, William H. Coldiron, testified
that, in light of the different circumstances that characterize
each of these cases, the 50 per cent figure should be negotiable.
Is Solicitor Coldiron's statement now the position of the Adminis-

tration?

a)

Can the federal government's portion of a settlement be
raised to more than 50 per cent?

b)

Can a state's portion of a settlement be raised to more
than 50 per cent?

c)

What factors would guide the United States in negotiating
this figure?

5.

If the states are to share in the compensation, should they
expressly be included as mandatory parties to the Secretary's
administrative determination of liability?

a)

Should they participate in the Court of Claims proceedings? i) In what capacity?

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Page -4

6.

If the bill is not amended to provide for state participation

in the judgment award, will the Administration oppose S. 2084?

7.

The term "legal strength and validity" as used in section 5 (c) (2) are nowhere defined in S.2084. Has the Interior Department

developed a definition of this term?

8.

How does the Secretary intend to ensure that he has accounted
for all the claims and defenses that would have been raised in
the course of the litigation of the case before him as is required
by section 5(c) (2)? In answering this question, please address
the fact that, given the novelty of the issues involved in these
claims, many of the arguments for and against the claims would
be developed in the course of litigation on them.

a) If the Secretary fails to take account of particular claim or
defense in reaching his decision, could that result in any
further liability to the United States under S. 2084 or any
other act of Congress?

9.

Under section 5 (c) (2) the Secretary of the Interior is authorized to employ "such other factors as he may deem appropriate" in determining what should constitute a "fair and equitable award"

under the Act.

a) Has the Interior Department developed any further criteria
under this provision?

b) Are any under consideration?

c) Will the criteria be published before Indian tribes are

invited to submit their claims under the Act or will the
tribes otherwise be apprised of such criteria?

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Page -5

10. Section 5 of S.2084 does not require that the Secretary put his

reasoning with respect to a given claim in writing.

a) Does the Interior Department plan to do so?

b)

Does the Interior Department plan to make the decision, if

it is in writing, available to all the parties?

c) At what point will the decision be made available to the

parties?

11.

The Administration in its prepared remarks recommended that the land
acquired by the tribes pursuant to a successful judgment be given
some protections against easy alienability.

a) Does the Administration have any suggestions for the form
that such a restriction might take?

b)

Does the Administration have any information on the status of
tribal lands that have not been subject to some protection agains1
easy alienability? Have any of these lands been lost to the
tribes?

c) Is the Administration's support of S.2084 conditioned on the
provision of such a restraint on alienation?

12.

Does the Interior Department believe that section 5(e) limits
its existing power with respect to those Indian tribes affected
by S.2084 to take land in trust for them pursuant to Section 5
of the Indian Reorganization Act of 1934? If so, please explain.

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13.

In an analysis of the Nonintercourse Act claims, the American
Land Title Association (ALTA) concluded that the ratification
of the land transfers in question, as of the date of the
transfer, would ipso facto eliminate tribal claims for
consequential damages based on claims for trespass, lost rent,
lost hunting and fishing rights, and so forth over the interven-
ing years. ALTA set forth its position on this point as follows:
"By approving a prior transfer of recognized title
lands as of the date of the transfer, Congress would
be validating the transfer as of the date of the
transfer. Accordingly, the tribe would have no
interest in the lands involved after the date of the
transfer and hence could have no claims for trepass
against third parties who entered the land after that
date."

a)

b)

c)

d)

This analysis would, of course, be equally applicable
whether the tribe's claim to the land was based on
aboriginal or recognized title."

Does the Interior Department accept this analysis?
If so, please cite pertinent case law supporting this
position with explanations.

If the retroactive ratification would work a genuine
approval of the transfer as of the date of the transfer
would it also eliminate the allegation that the transfer
itself was improper by providing the necessary approval?
If not, why not?

Should S. 2084 be amended to provide a formula for the
compensation of consequential damage claims in the event
that a court determines that Congress does not have the
authority to extinguish such damages through retroactive
approval of land transfers?