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 ment. 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. [Laughter.] 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. [Laughter.] 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. [Laughter.] Mr. UNDERWOOD. That is right. But we are not. [Laughter.] 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. Mr. HAYWORTH. The Chair has tried to show great indulgence in deference to the principal sponsor of the legislation. I think we have had a great exchange. But the bells have rung. We have 10 minutes remaining with three votes confronting us on the Floor. I would like to gauge the sentiment of members. I know that the gentleman from Arizona on the majority side has a couple of questions. Are there other questions that you would like to bring up? Well, then, fine. If that is the case, then, what we will do is recess and pick up the questions at the conclusion of the three votes. It will be some time here, but we know it is important to add these things to the record and make sure everyone has a chance to ask questions in this open hearing. So the Chair will deem the Committee now in recess. We will return following the votes. [Recess.] The CHAIRMAN. [presiding] The Committee will come to order. I am given to understand that Mr. Underwood has just finished his line of questions, and I guess Mr. Flake would be the gentleman who would now be recognized. Mr. Flake? Mr. FLAKE. Thank you, Mr. Chairman. I appreciate the opportunity; I appreciate the testimony. I have a bit of an interest in here. I have a constituent who spent a good deal of time on Guam and is familiar with the situation and has encouraged my involvement, and I enjoy this. I spent a year in southern Africa, in the country of Namibia, as they developed their constitution and were struggling with some of the same issues that you are dealing with there. So I was interested in Judge Carbullido or Justice Carbullido, what you mentioned about the suggestion you have for the bill. Do you want to elaborate on that, in that you would allow the Legislature in Guam to have an impact on the ultimate decision on this? Do you want to explain or elaborate for me? Justice CARBULLIDO. Yes, Mr. Congressman, thank you. There are really two objections to the bill in all of the opposition testimonies that I have gleaned: No. 1, that this is a local issue, and it takes away authority from the Legislature to address the local issue. I think it is important that I explain briefly the context of H.R. 521 and why that seems to be the case. H.R. 521, when it was originally introduced in its predecessor form by Congressman Underwood several terms ago was a reaction to the rider that was made reference that stripped the Supreme Court of its authority. The way it was done and how it was done created an uproar in terms of our legal community, and it was a reaction, and maybe it was an overreaction in retrospect. Since then, there has been some sense of calmness in terms of the Ninth Circuit has deleted that. That is no longer with us today, and we have some semblance of an organized structure within our court system. And so, to take away the distraction that this is really a local issue, I have proposed an amendment where the Guam Legislature will continue to have authority in terms of the internal structure of the Guam judiciary, but it does not take away the fun |