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a true democracy, we must work to make all three branches of government equal and distinctly separate.'
I am hopeful that Committee Members will also recognize the need for this legislation and I look forward to hearing from today's witnesses.
Mr. UNDERWOOD. And I also ask that all of the other statements that have been submitted will be entered into the record.
Mr. HAYWORTH. Absolutely.
[The prepared statement of Speaker Hastert follows:]
Statement of The Honorable J. Dennis Hastert, Speaker,
Thank you Mr. Chairman for the opportunity to provide testimony to the Committee on H.R. 791. As you are well aware, my colleague from Illinois, Congressman Tim Johnson, introduced this legislation and I am an original cosponsor. I appreciate the Committee's recognition of the importance of this issue and thank you for holding today's hearing.
Several years ago, representatives of the Miami Tribe of Oklahoma and the Ottawa Tribe of Oklahoma filed claims to tribal land in Illinois. Of this land, the Ottawa Tribe claims 1280 acres of land adjacent to Shabbona Lake State Park in DeKalb County, which I represent. The Prairie Band of the Potawatomi Indian Tribe has also made a competing claim to the land in DeKalb County.
The claims of the Ottawa and Potawatomi Tribes are based on an 1829 Treaty between the United States and United Tribes of the Chippewa, Ottawa and Potawatomi that granted the DeKalb acreage for the "use" of a chief named Shabeh-nay and "his band." Shab-eh-nay left the land in the 1830's and moved to Kansas with his band. When Shab-eh-nay attempted to sell the land in the 1840's, Federal agencies determined that the land had been reverted to Federal ownership when he moved west. The Ottawa Tribe, claiming to be a successor-in-interest to Shab-ehnay's band, now assert that the 1829 Treaty granted a permanent or "recognized" tribal land title that could only be taken away by an act of Congress. The Potawatomi Tribe is a rival claimant because although Shab-eh-nay himself was an Ottawa, his wife and "band" appear to have been Potawatomi.
In addition to the claims made by the Ottawa and Potawatomi Tribes, the Miami Tribe of Oklahoma filed a Federal lawsuit against private landowners in fifteen Illinois counties covering most of east-central Illinois. The property in question includes private homes, farms, businesses, as well as the University of Illinois and part of Eastern Illinois University. The reach and impact of this claim cannot be understated: it literally threatens the lives and livelihoods of tens of thousands of people in my State.
As this Committee well knows, in order to reach and a fair and final resolution of outstanding Native American land claims, Congress established the Indian Claims Commission, which heard cases from 1946 until 1978. During this time, while the Miami Tribe did raise other claims and grievances before the Commission with respect to treaty conduct by the United States, they did not assert this claim even though the Commission considered the 1805 Treaty and land now in question with respect to compensation for two other Tribes.
The Miami Tribe claim is based on an assertion that the United States government never properly obtained land title from the Tribe as required by the 1805 Treaty between the Tribe and the Federal Government. This Treaty was negotiated between the U.S. government and several Native American Tribes, including the Miami. As such, the Miami Tribe claim involves a relationship between the Miami Tribe and the United States going back nearly two centuries. Mr. Chairman I think it is critical to understand that these actions occurred before there even was a State of Illinois.
Make no mistake about it; there is no allegation of wrongdoing by the State of Illinois or its citizens with respect to the 1805 Treaty. If the Miami believe its claim has merit, its argument should be with the Federal Government and not the citizens of Illinois. Because of sovereign immunity, however, Indian Tribes are prohibited from bringing direct claims against the Federal Government.
As a result, H.R. 791 provides what we the sponsors believe is a fair and common solution and one which protects the truly innocent property owners in the State of Illinois. H.R. 791 extinguishes the title claims of the Miami and Ottawa Tribes of Oklahoma and the Potawatomi Tribe of Kansas with respect to the lands in Illinois and remands these claims to the U.S. Court of Federal Claims to hear and deter
mine the outcome. This legislation also allows the U.S._government to provide a remedy, if appropriate, in the form of money damages. This legislation makes no claim as to the merits of the case of any of these Tribes-those can and should be made by experts. It does, however, ensure that the citizens of Illinois can be secure in their homes, farms and businesses.
This is an important point: while the recent case filed by the Miami Tribe is no longer pending, they could still file another lawsuit against these private landowners at any time. Mr. Chairman, H.R. 791 is commonsense legislation which protects property owners in Illinois who have acted in good faith and done nothing wrong, and ensures that they will not lose their homes, farms, and businesses. In addition, I believe it provides the Tribes fair recourse to the Federal Courts for adjudication. Without judging the merits of their claims, this legislation allows them to pursue their claim against the United States—after all, if the Tribes have an argument, it is with the United States, not the State of Illinois.
Once again, I greatly appreciate the chance to offer my thoughts on this important legislation. It is my opinion that this legislation is especially important for the sake of protecting private landowners who have a legitimate right to their land, while providing fair and reasonable treatment for the Miami, Ottawa, and Pottawatomi Indian Tribes. I look forward to continue working with my colleagues and the Committee on this important issue.
[The prepared statement of Mr. Pallone follows:]
Statement of The Honorable Frank Pallone, Jr., a Representative in Congress from the State of New Jersey
Thank you, Mr. Chairman, for holding this hearing on a land right issue in the state of Illinois, which has frustrated Federal, tribal, state and local governments, as well as residents, for many years. Though I have thoroughly studied most, if not all, of the issues and perspectives related to H.R. 791, I look forward to hearing more about this legislation from my colleagues and the representatives that will testify.
It is my sincere belief that this hearing will assist in identifying and furthering solutions that meet the needs of all parties involved. I also hope that this hearing will be beneficial to the Miami, Ottawa and Potawatomi Tribes in their efforts to have their treaty rights honored or seek just compensation for lands taken without their consent.
As you may know, treaty rights are referred to as the supreme law of the land and as such require the Federal Government to execute related contract obligations with the utmost diligence and good faith. The United States has long recognized the sovereign status of tribes, based on Article I, Section 8, Clause 3 of the Constitution. Hundreds of treaties, the Supreme Court, the president and the Congress have repeatedly affirmed that Indian Nations retain their inherent powers of self-govern
The treaties and laws have created a fundamental contract between Indian Nations and the United States: Indian Nations ceded millions of acres of land that made the United States what it is today, and in return received the guarantee of self-government on their own lands. The provision of services to members of Federally recognized tribes grew out of the special government-to-government relationship between the Federal Government and Indian tribes. The United States government has a Federal trust responsibility to Indian tribes that, among other things, requires us to improve the quality of life in Indian communities.
Sometimes, as in the Treaty of Grouseland (1805), where ratification occurred prior to the existence of the state of Illinois, the tribe did not relinquish title to certain sections of their property. Such is the case along the Wabash River, where the Miami tribe did not give up their title to what encompasses parts of more than fifteen counties with an estimated value of $30 billion.
In cases such as this, where tribes have not ceded their land nor relinquished title in some other fashion, I believe more in-depth discussions and negotiations need to occur in consultation with the tribes and other related parties. I contend that through consultation and negotiation, rather than costly court proceedings and quick legislative fixes, mutually beneficial solutions to such land issues can be realized.
In light of this, I would like to take this opportunity to commend the Miami tribe for withdrawing their lawsuit against landowners in Illinois. Your actions are a clear indication of your willingness to participate in building a forum whereby alternative solutions may be sought.
In this same spirit, I ask Mr. Johnson and other supporters of H.R. 791 to stop this legislation from moving forward, and instead enter into a more meaningful resolution process with the parties related to this land issue. After all, H.R. 791 was not developed in consultation with the three tribes that this legislation will effect, and thereby ignores some of the primary stakeholders in this land issue.
This legislation will establish barriers and institute a tug-of-war between the effected parties and bog down our system of government, especially on the judicial side. As I stated earlier, the United States government has a Federal trust responsibility to Indian tribes that, among other things, requires us to improve the quality of life in Indian communities. This bill does not improve the quality of life in Îndian communities; rather it erodes additional aspects of their sovereignty.
H.R. 791 as proposed would extinguish all Indian land claims under three 19th century treaties and terminate any aboriginal rights, including hunting, fishing, and related rights in Illinois.
Therefore, I urge Congress to withstand pressure from groups that call for backtracking to old Indian policies, such as termination and reduction of tribal sovereign rights. We must acknowledge and learn from our mistakes, and not repeat them because Indian country is relying upon our commitments. Therefore, I do not support H.R. 791, and I urge my colleagues to oppose this legislation as well.
Mr. UNDERWOOD. OK; thank you very much.
Basically, H.R. 521, because, obviously, what we have before us is testimony that seems to contrast two different elements to this, and I want to make sure that our colleagues on the Committee understand what is at stake in this particular piece of legislation. On the one hand, it has been argued and will be argued by the opponents that this is somehow or other a slap in the face of local selfgovernment, that the Congress had given the Guam Legislature and the Government of Guam the full authority to create an appellate court, the Supreme Court of Guam, and that any attempt to clarify what that Supreme Court is, what is the third branch of government that will comport with what is the general practice in American government is somehow an intrusion on that authority. The fact that the Acting Chief Justice has pointed out that the local legislature had made a statement that the local legislature could abolish the appellate court on its very own indicates that something is fundamentally flawed in the way that it has approached this.
I dare say that if anyone in the U.S. House or anyone in Congress said that you know, the Supreme Court of the United States can rest easy, because even though we have the authority to abolish them, we are not, would clearly understand that that is not the republican form of government that is associated with the United States of America. And yet, that is clearly what is at stake here. So it is the merits of that issue alone that I hope the Committee draws its attention to. I hope that in understanding what is at stake here that it is not the although people will say that there is some political dimension to this, indeed, we are all in elected office there is always some political dimension to every issue.
But in this case, I think the overriding concern should clearly be the merits. The nature of the testimonies that have been submitted, in which case, the practicing attorneys-in fact, almost virtually the entire legal community of Guam, absent the Superior Court judges is in favor of this legislation clearly indicates that this is a serious matter in Guam.
I would like to ask-and before I go into a couple of questions, I want to acknowledge the presence of my predecessor, the distinguished gentleman from Guam-he is still from Guam-Ben Blaz.
Mr. UNDERWOOD. So I wanted to acknowledge his presence.
And also, I wanted to thank all of the witnesses today, especially Judge Lamorena and Justice Carbullido, both of whom I have known virtually all of my adult life, and I remember very clearly Judge Lamorena being very avidly on the same side in defeating that constitution. And we worked very hard on that together.
Mr. UNDERWOOD. So I wanted to point that out for the record as well.
Judge LAMORENA. And I wish that we were on the same side as well.
Mr. UNDERWOOD. That is right. But we are not.
Mr. UNDERWOOD. But we are not.
Mr. UNDERWOOD. And so, here is the interesting part: it is trying to be framed as an issue of local control when clearly it is not.
You know, one of the basic tenets of American government is that there be three coequal branches of government; that there be a system of government where you have three branches that have separation of powers. Now, we are grateful that Congressman Won Pat introduced a small line that allowed for the creation of an appellate court, and you have pointed out, Judge Lamorena, that there has been no-that things are going well under the current system, and in fact, many of the people who oppose 521 say that absent a breakdown in the effective and efficient operation of the courts or rule of law, there is no need to act.
I do not know why we have to wait for a breakdown in the rule of law to act on this when it is clearly, on the merits of the case, we need to act, and that you assert as well, Judge Lamorena, that local laws, that unless the court were institutionally dysfunctional or that local laws so deficient and so disruptive to good order as the supporters of H.R. 521 claim, which is absolutely not true; I do not think anyone makes that claim that there is any deficiency in good order in Guam-what my question is is that in your testimony, you made reference to the fact that the Superior Court of Guam should have some administrative authority under local law because you want some system of checks and balances between the Superior Court and the Supreme Court.
Is it not more of an overriding concern to have some system of checks and balances between the entire judicial branch and the other branches of government?
Judge LAMORENA. I think there is no disagreement as far as checks and balances within the three branches of government. I think it is absolutely necessary that we do have that. And in Guam, we do have that. We do have the three branches of government. We have the Guam Legislature; we have the executive; and we have the Guam Supreme Court; and we have the three branches of government, judicial, legislative and executive.
What we have here is the basic issue is that the people of Guam, through their elected representatives, should have the opportunity to select what is best for them, and they have selected a system
that they feel is best for the people of Guam. And until such time as the people of Guam either defeats these people or changes its mind, I think that the laws passed by the Guam Legislature to their elected representatives should be the law of the land.
Mr. UNDERWOOD. And could you explain to the Committee how the law that granted the Superior Court this administrative authority-in what context was this law passed?
Judge LAMORENA. Well, the law was passed through a majority of the votes in the Legislature.
Mr. UNDERWOOD. And was it not attached as a rider to an entirely different bill without the benefit of a public hearing?
Judge LAMORENA. It was attached as a rider, like most legislation.
Mr. UNDERWOOD. Yes.
Judge LAMORENA. And I feel that if the Guam Legislature wanted to act in that way, they have that prerogative.
Mr. UNDERWOOD. Of course, and fortunately, the Ninth Circuit has now nullified bill, not on the merits—
Judge LAMORENA. Not on the merits of this issue.
Mr. UNDERWOOD. Not on the merits of this particular issue, but fortunately, it was tied to another issue. But my point is that do you not think that a change of this nature would at least deserve a public hearing?
Judge LAMORENA. Pardon? I think it does.
Mr. UNDERWOOD. And we are giving it a public hearing here. Judge LAMORENA. You know, I am not a member of the Legislature, so I do not even want to place myself in the shoes of the Guam Legislature. But, you know, every bill deserves a public hearing. Every bill deserves views of all of the people of Guam. But the ultimate determination of what laws should be passed rests still with the legislative body, and the legislative body has spoken. Whether or not we may differ on the methodology, the results are still the same, and I feel that the Guam Legislature or Congress has the prerogative to pass any law it so wishes. That is their power under the Constitution.
Mr. UNDERWOOD. Whose power under the Constitution?
Judge LAMORENA. The legislative branch of government, the power to pass laws.
Mr. UNDERWOOD. Yes, they have the power to pass laws.
Mr. UNDERWOOD. But in this particular instance, would you not concede that the Congress could not pass a law to nullify the very existence of the Supreme Court of the United States?
Judge LAMORENA. You know, I am not going to go into that debate.
Mr. UNDERWOOD. OK.
Judge LAMORENA. Because I am not a Member of Congress.
Judge LAMORENA. Congressmen have the prerogative to do or say what they wish to say, OK? That is their responsibility as being a representative of their constituency, and that is what the constituency elects them to do is to speak their mind and to vote on an issue that hopefully represents the people that they choose to represent.