[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
H.R. 521 and H.R. 791
=======================================================================
LEGISLATIVE HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
May 8, 2002
__________
Serial No. 107-115
__________
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon Hilda L. Solis, California
Michael K. Simpson, Idaho Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado Betty McCollum, Minnesota
J.D. Hayworth, Arizona
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Tim Stewart, Chief of Staff
Lisa Pittman, Chief Counsel/Deputy Chief of Staff
Steven T. Petersen, Deputy Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C Of N T E N T S
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Page
Hearing held on May 8, 2002...................................... 1
Statement of Members:
Carson, Hon. Brad, a Representative in Congress from the
State of Oklahoma, Prepared statement on H.R. 791.......... 24
Christensen, Hon. Donna M., a Delegate in Congress from the
Virgin Islands, Memorandum dated July 24, 2000, from Derril
B. Jordan, Associate Solicitor, Division of Indian Affairs,
U.S. Department of the Interior, submitted for the record
on H.R. 791................................................ 9
Hansen, Hon. James V., a Representative in Congress from the
State of Utah.............................................. 1
Prepared statement on H.R. 521 and H.R. 791.............. 2
Hastert, Hon. Dennis, Speaker of the House, and a
Representative in Congress from the State of Illinois,
Statement submitted for the record on H.R. 791............. 79
Hayworth, Hon. J.D., a Representative in Congress from the
State of Arizona........................................... 2
Johnson, Hon. Timothy V., a Representative in Congress from
the State of Illinois...................................... 3
Prepared statement on H.R. 791........................... 3
Kildee, Hon. Dale E., a Representative in Congress from the
State of Michigan, Prepared statement on H.R. 791.......... 7
Pallone, Hon. Frank Jr., a Representative in Congress from
the State of New Jersey, Prepared statement on H.R. 791.... 80
Phelps, Hon. David D., a Representative in Congress from the
State of Illinois.......................................... 6
Prepared statement on H.R. 791........................... 7
Shimkus, Hon. John, a Representative in Congress from the
State of Illinois.......................................... 4
Prepared statement on H.R. 791........................... 5
Underwood, Hon. Robert A., a Delegate in Congress from Guam.. 77
Prepared statement on H.R. 521.......................... 78
Statement of Witnesses:
Angelo, Larry, Second Chief, Ottawa Tribe of Oklahoma........ 40
Prepared statement on H.R. 791........................... 41
Response to questions submitted for the record........... 43
Carbullido, Hon. F. Philip, Acting Chief Justice, The Supreme
Court of Guam.............................................. 58
Prepared statement on H.R. 521........................... 60
Response to questions submitted for the record........... 63
Johnson, Jacqueline L., Executive Director, The National
Congress of American Indians............................... 45
Prepared statement on H.R. 791........................... 47
Kearney, Christopher, Deputy Assistant Secretary for Policy
and International Affairs, Office of Policy Management and
Budget, U.S. Department of the Interior.................... 57
Prepared statement on H.R. 521........................... 58
Lamorena, Hon. Alberto C. III, Presiding Judge, Superior
Court of Guam.............................................. 65
Prepared statement on H.R. 521........................... 67
Response to questions submitted for the record........... 74
Mitchell, Gary, Vice Chairman, Prairie Band Potawatomi Nation 24
Prepared statement on H.R. 791........................... 26
Letter and affidavits submitted for the record on H.R.
791.................................................... 29
Additional materials supplied:
Ada, Hon. Joseph F., Senator, 26th Guam Legislature, Letter
submitted for the record on H.R. 521....................... 92
.............................................................
Ada, Hon. Thomas C., Senator, 26th Guam Legislature,Statement
submitted for the record on H.R. 521....................... 95
Aguon, Hon. Frank Blas, Jr., Senator, 26th Guam Legislature,
Letter submitted for the record on H.R. 521................ 96
Arriola, Joaquin C., President, Guam Bar Association, Letter
submitted for the record on H.R. 521....................... 97
Bernhardt, David L., Director, Office of Congressional and
Legislative Affairs and Counselor to the Secretary, U.S.
Department of the Interior, Letter submitted for the record
on H.R. 521................................................ 99
Blair, William J., et al., Law Offices of Klemm, Blair,
Sterling & Johnson, Letter submitted for the record on H.R.
521........................................................ 100
Bordallo, Hon. Madeleine Z., Lieutenant Governor of Guam,
Statement submitted for the record on H.R. 521............. 103
Brooks, Terrence M., et al., Brooks Lynch & Tydingco LLP,
Letter submitted for the record on H.R. 521................ 104
Camacho, Hon. Felix P., Senator, 26th Guam Legislature,
Letter submitted for the record on H.R. 521................ 107
Charfauros, Hon. Mark C., Senator, 26th Guam Legislature,
Letter submitted for the record on H.R. 521................ 109
Cruz, Hon. Benjamin J.F., Honorable Chief Justice of Guam
(Retired), Letter submitted for the record on H.R. 521..... 112
Cunliffe, F. Randall, and Jeffrey A. Cook, Cunliffe & Cook,
Letter submitted for the record on H.R. 521................ 114
Forbes, Hon. Mark, Majority Leader, 26th Guam Legislature,
Statement submitted for the record on H.R. 521............. 115
Forman, Seth, Keogh & Forman, Letter submitted for the record
on H.R. 521................................................ 120
Gray, Gerald E., Law Offices of Gerald E. Gray, Letter
submitted for the record on H.R. 521....................... 122
Guerrero, Hon. Lou Leon, Senator, 26th Guam Legislature,
Letter submitted for the record on H.R. 521................ 123
Gutierrez, Hon. Carl T.C., Governor of Guam, Statement
submitted for the record on H.R. 521....................... 123
Hale, Elizabeth, Affidavit submitted for the record on H.R.
791........................................................ 38
Lannen, Thomas J., Dooley Lannen Roberts & Fowler LLP,
Memorandum submitted for the record on H.R. 521............ 125
Leonard, Floyd E., Chief, Miami Tribe of Oklahoma, Statement
submitted for the record on H.R. 791....................... 127
Lujan, Hon. Pilar C., Former Senator, Guam Legislature,
Statement submitted for the record on H.R. 521............. 130
Maher, John B., McKeown, Vernier, Price & Maher, Letter
submitted for the record on H.R. 521....................... 132
Manibusan, Judge Joaquin V.E. Jr., on behalf of the majority
of Superior Court of Guam Judges, Statement submitted for
the record on H.R. 521..................................... 133
McCaleb, Neal A., Assistant Secretary for Indian Affairs,
U.S. Department of the Interior, Letter submitted for the
record on H.R. 791......................................... 137
McDonald, Joseph B., Legal Counsel, Citibank N.A. Guam,
Letter submitted for the record on H.R. 521................ 138
Pangelinan, Vicente C., Minority Leader, 26th Guam
Legislature, Statement submitted for the record on H.R. 521 140
Roberts, Thomas L., Dooley Lannen Roberts & Fowler LLP,
Letter submitted for the record on H.R. 521................ 142
Ryan, Hon. James E., Attorney General, State of Illinois,
Letter submitted for the record on H.R. 791................ 144
San Agustin, Hon. Joe T., Former Speaker of the Guam
Legislature, Statement submitted for the record on H.R. 521 145
Santos, Marcelene C., President, University of Guam, Letter
submitted for the record on H.R. 521....................... 147
Siguenza, Peter C., Jr., et al., Chief Justice, Supreme Court
of Guam, Letter and supporting documents submitted for the
record..................................................... 150
Troutman, Charles H., Compiler of Laws, Office of the
Attorney General, Department of Law, Territory of Guam,
Letter submitted for the record on H.R. 521................ 160
Unpingco, Hon. Antonio R., Speaker,, 26th Guam Legislature,
Letter submitted for the record on H.R. 521................ 166
Wagner, Annice M., President, Conference of Chief Justices,
Letter and Resolution submitted for the record on H.R. 521. 170
Warnsing, Mark R., Deputy Counsel to the Governor, State of
Illinois, Letters submitted for the record on H.R. 791..... 167
Won Pat, Hon. Judith T., Senator, 26th Guam Legislature,
Statement submitted for the record on H.R. 521............. 172
LEGISLATIVE HEARING ON H.R. 791, TO PROVIDE FOR THE EQUITABLE
SETTLEMENT OF CERTAIN INDIAN LAND DISPUTES REGARDING LAND IN ILLINOIS;
AND H.R. 521, TO AMEND THE ORGANIC ACT OF GUAM FOR THE PURPOSE OF
AMENDING THE LOCAL JUDICIAL STRUCTURE OF GUAM.
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Wednesday, May 8, 2002
U.S. House of Representatives
Committee on Resources
Washington, DC
----------
The Committee met, pursuant to call, at 10:04 a.m., in room
1334, Longworth House Office Building, Hon. James Hansen
(Chairman of the Committee) presiding.
STATEMENT OF HON. JAMES HANSEN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF UTAH
The Chairman. The Committee will come to order. Today's
hearing is on two bills that address very different issues. The
first is H.R. 791, which was introduced by Congressman Tim
Johnson in response to the Miami Tribe's lawsuit against
private landowners in Illinois. H.R. 791 seeks to extinguish
all land claims in Illinois asserted by the Miami and Ottawa
Tribes of Oklahoma and the Potawatomi Tribe of Kansas and
provides the tribes with recourse to pursue their claims
against the United States in the U.S. Court of Federal Claims.
The Chairman. The second bill is H.R. 521, introduced by
Congressman Underwood. This legislation attempts to amend the
Organic Act of Guam to modify the internal structure of the
Guam local court system. H.R. 521 has generated a great deal of
controversy in Guam over whether U.S. Congress or the local
Guam Government is in the best position to address the internal
structure of the local courts.
The Chairman. We appreciate the efforts of the witnesses in
being here today and look forward to hearing from them this
morning. I would like to express special thanks to Justice
Carbullido and Judge Lamorena for literally traveling halfway
around the world to be at this hearing.
Before we begin with our first panel, I would like to
mention that the administration, in lieu of presenting
testimony today on H.R. 791 has submitted a letter for the
record.
I ask unanimous consent that following the testimony, the
gentlemen from Illinois, Mr. Johnson and Mr. Shimkus, be
allowed to sit on the dais and participate in the hearing.
Is there objection?
Hearing none, so ordered.
I have a number of things to do today, and I have asked my
good friend from Arizona, Mr. Hayworth, if he would take the
gavel and conduct this meeting. He is also our expert on some
of these areas and a very qualified individual. So with that
said, Mr. Hayworth, thank you so much for being here, and thank
all the witnesses. I will turn the gavel over to you, sir.
[The prepared statement of Mr. Hansen follows:]
Statement of The Honorable James V. Hansen, a Representative in
Congress from the State of Utah
Today's hearing is on two bills that address very different issues.
The first is H.R. 791, which was introduced by Congressman Tim Johnson
in response to the Miami Tribe's lawsuit against private landowners in
Illinois. H.R. 791 seeks to extinguish all land claims in Illinois
asserted by the Miami and Ottawa Tribes of Oklahoma and the Potawatomi
Tribe of Kansas and provides the tribes with recourse to pursue their
claims against the United States in the U.S. Court of Federal Claims.
The Second bill is H.R. 521, introduced by Congressman Underwood.
This legislation attempts to amend the Organic Act of Guam to modify
the internal structure of the Guam local court system. H.R. 521 has
generated a great deal of controversy in Guam over whether U.S.
Congress or the local Guam Government is in the best position to
address the internal structure of the local courts.
We appreciate the efforts of the witnesses in being here today and
look forward to hearing from them this morning. I would like to express
special thanks to Justice Carbullido [Car-bo-lee-doe] and Judge
Lamorena [La-mo-ren-a] for literally traveling half-way around the
world to be at this hearing. Before we begin with our first panel I
would like to mention that the Administration, in lieu of presenting
testimony today on H.R. 791, has submitted a letter for the record.
______
STATEMENT OF HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Mr. Hayworth. [presiding] Mr. Chairman, we thank you. We
will move forward to panel one, which currently includes two of
our members. We also would make note that our other colleague
from Illinois, Mr. Phelps, may join us, and we would certainly
welcome his statements as well for the record.
But the Chair would first call on our colleague from
Illinois, the author of H.R. 791, the Honorable Timothy V.
Johnson.
Congressman Johnson, the Chair and the Committee are very
happy to hear your testimony and welcome you to the Resources
Committee, sir. And we would point out for the record that your
statements would be put in the record in their entirety, and we
thank you for your testimony today. That will be true for every
witness who joins us.
Thank you, sir, and welcome.
STATEMENT OF THE HON. TIMOTHY V. JOHNSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Johnson. Thank you, Mr. Chairman, for holding this
important hearing regarding Indian land claims in Illinois. I
also want to thank the Members of the House Resources Committee
for their time and attention today.
In the summer of 2000, 15 landowners in east-central
Illinois received notice that the Miami Indian Tribe of
Oklahoma was suing them. These 15 individuals from 15 separate
counties were told that they were being sued because the Miami
was claiming that some 2.6 million acres in east-central
Illinois rightfully belonged to them under a treaty, the Treaty
of Grouseland, signed in 1805.
Illinois was granted statehood in 1818, a full 13 years
after the Treaty of Grouseland was signed by the U.S.
Government and the Miami Tribe. For this reason, I introduced
H.R. 791. Basically, the legislation will waive sovereign
immunity and says that if, in fact, there is a valid claim--and
we do not make judgment on that--the claim is to be filed
against the Federal Government and not against innocent
landowners, 15 of whom have been specifically named; one of
whom is over 100 years old and a good friend of mine in the
Champaign County area, and a number of others over whom a cloud
hangs on their title anytime land is transferred in this 2.6
million acre area.
As I indicated, the Potawatomi and Ottawa Tribe have also
made similar claims in Speaker Hastert's district, and that
provision is included in this bill. There is a significant
problem not only with the sword of Damocles, so to speak,
hanging over the head of a number of landowners--all the
landowners--in a wide, multicounty area, including part of the
area that is in the current 19th District but obviously with
the transference of land within that area.
Whether or not there is a valid claim--and there is no
question there have certainly been examples throughout history
of wrongs committed on Native Americans--my constituents are
innocent. This treaty was executed before Illinois was a state.
They have done nothing wrong, and the whole essence of this
bill is to say we want to provide justice for everyone, and we
want to assure once and for all that people in 2.6 million
acres do not have to live with the potential of losing their
land.
I believe that this is a just bill, a just approach, a
shotgun approach--a rifle approach as opposed to a shotgun
approach that is sometimes taken. There is counterpart
legislation in the Senate. I have reason to believe that this
ought to enjoy and has enjoyed widespread support, and I
certainly appreciate, Mr. Chairman, yours and the other members
of the Committee's consideration here, consideration of what I
think is a very common sense bill. I appreciate it.
[The prepared statement of Mr. Johnson follows:]
Statement of The Honorable Timothy V. Johnson, a Representative in
Congress from the State of Illinois
Thank you Chairman Hansen, for holding this important hearing
regarding Indian land claims in Illinois. I also want to thank the
Members of the House Resources Committee for their time and attention
today.
In the summer of 2000, fifteen landowners in east-central Illinois
received notice the Miami Indian Tribe of Oklahoma was suing them.
These 15 individuals from 15 separate counties were told they were
being sued because the Miami was claiming that some 2.6 million acres
rightfully belonged to them under a treaty, the Treaty of Grouseland
signed in 1805.
Illinois was granted statehood in 1818, a full 13 years after the
Treaty of Grouseland was signed by the United States Government and the
Miami Tribe. For this reason, I introduced H.R. 791. Basically, the
legislation will waive sovereign immunity and allow the tribe to file
its claim in the U.S. Federal Court to seek settlement. I'm not in
front of this Committee today to say whether the Miami tribe is right
or wrong in its pursuit of this claim. I am here today, however, to say
that the property owners of east-central Illinois should not be part of
this claim. The Miami's fight should not be with the hard-working,
honest citizens of Illinois, nor should it be with the state of
Illinois, but rather with the Federal Government.
I am not opposed to the Miami Indian Tribe as a society within our
great nation. I fact, I am encouraged by their stature and their
ability to diversify our country and influence our future. And, I will
concede that at one point in our nation's history, the Miami may have
been rightful owners of the land they are now trying to reclaim.
However, I do not feel they are justified in victimizing hard working
landowners who live within the area I represent. Those families have
owned and paid taxes on their land, in some cases for many generations.
The Miami Indian Tribe alleges that the U. S. Government never properly
obtained land title from them as required by the 1805 Treaty. Therein
lies the dispute.
No one would argue that Native Americans were not wronged in our
country's past. We would also welcome all attempts to improve the
standard of living to which our Native Americans are subject. However,
the landowners of east central Illinois should not pay this price.
Just over a year ago, Speaker of the House, Dennis Hastert and I,
visited the home of one of the landowners being sued. His name is Rex
Walden of Urbana, Illinois. Mr. Walden is a 98-year-old retired farmer.
He told the Speaker and I about his life spent on the farm. All he
wants now is to leave the farm to his children. Mr. Walden worked the
farm and paid taxes all his life. To be sued and face the possibility
that he could lose that land because of a 200 year-old treaty is
unjust, at best.
The problem goes beyond Rex Walden and the 14 other landowners. A
cloud has been cast over the titles of all property in the 2.6 million
acre region. Imagine if you were thinking of locating a business in
east central Illinois. Why locate in the region in question when you
could locate that business, those jobs, and that tax revenue outside
that region?
In closing, I want to thank you again, Chairman Hansen and the
Members of the House Resources Committee for holding this hearing. This
issue, while regional in scope, is of the utmost importance to the
citizens of my congressional district in east central Illinois.
______
Mr. Hayworth. Congressman Johnson, we thank you for your
testimony.
Now, we turn to your colleague from the 20th District of
Illinois, the Honorable John Shimkus. Good morning, Congressman
Shimkus, and thank you for joining us.
STATEMENT OF THE HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Shimkus. Good morning. Thank you, Mr. Chairman and
members of the Resources Committee. It is a pleasure to be here
today on H.R. 791, a bill that would protect private landowners
in Illinois from American Indian claims to their land.
The bill was introduced by my friend and colleague, Mr. Tim
Johnson, and I want to thank you for the opportunity to debate
and discuss this.
First, I would like to commend Congressman Johnson for
introducing this important piece of legislation. During my
campaign for office, I ran on just a few central promises. One
of my promises to voters was that I would protect private
property rights. My voting record in Congress so far would
strongly back up that claim. That is why I cosponsored this
legislation, even though at the time, it did not impact any
part of my Congressional district. However, under a new
Congressional map, 3 of the 15 counties impacted by this claim
could be in my new Congressional district.
The legislation is straightforward and fair to both sides.
First, it 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. Second, it provides
the tribes recourse to the Federal courts. The Miami claim is
based upon an assertion that the U.S. Government never properly
obtained land title for the tribe, as required by an 1805
treaty between the tribe and the Federal Government. This
legislation would allow them to pursue their claim against the
United States, with whom their argument is, really, since
Illinois was not a state until after 1805; in fact, 13 years
later, 1818.
The State of Illinois has carefully reviewed this claim and
thoroughly studied the issue raised by the tribe and the
relevant historical documents. Based upon this review, the
state concluded that the claim lacks any merit. These claims
have been made for the sole purpose of establishing a casino
and not for any true reparations for the tribe. State law in
Illinois limits casino gambling to the 10 existing licenses.
Furthermore, I firmly believe that the current landowners
cannot and should not be held accountable for any claims by the
Miami or any other Native American tribes. They are innocent
people in this claim.
Mr. Chairman, thank you again for allowing me to testify on
this important piece of legislation, and I am willing to answer
any questions the Committee might have, and I yield back my
time.
[The prepared statement of Mr. Shimkus follows:]
Statement of The Honorable John Shimkus, a Representative in Congress
from the State of Illinois
Mr. Chairman, members of the Resources Committee, it is a pleasure
to testify today on H.R. 791, a bill that would protect private
landowners in Illinois from American Indian claims to their land. The
bill was introduced by my fellow Illinois Congressman, Tim Johnson.
Thank you for the opportunity to share my thoughts with you and your
Subcommittee.
First, I would like to commend Congressman Johnson for introducing
this important piece of legislation.
During my campaign for office, I ran on just a few central
promises. One of my promises to the voters was that I would protect
private property rights. My voting record in Congress so far would
strongly back up that claim. That is why I cosponsored this
legislation, even though, at the time, it did not impact any part of my
Congressional District. However, under a new Congressional map, 3 of
the 15 counties impact by this claim will be in my new District.
The legislation is straightforward and fair to both sides. First it
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. Second, it provides the tribes recourse to the
Federal Courts. The Miami claim is based upon an assertion that the
United State government never properly obtained land title from the
Tribe as required by an 1805 treaty between the Tribe and the Federal
Government. This legislation would allow them to pursue their claim
against the Unites States, with whom their argument is really with
since Illinois was not a state in 1805.
The State of Illinois has carefully reviewed this claim and
thoroughly studied the issues raised by the Tribe and the relevant
historical documents. Based upon this review, the State concluded that
the claim lacks any merit.
These claims have been made for the sole purpose of establishing a
casino and not for any true reparations for their tribe. State law in
Illinois limits casino gambling to the 10 existing licenses.
Furthermore, I firmly believe that current landowners cannot and should
not be held accountable for any claims by the Miami or any other native
American tribes. They are innocent people in this claim.
Mr. Chairman, thank you again for allowing me to testify on this
important piece of legislation. I am willing to answer any questions
the Committee might have.
______
Mr. Hayworth. Thank you, Congressman Shimkus. And the Chair
would note that you have been joined at the witness table by
our friend, Congressman Phelps.
We welcome you, sir, and look forward to hearing your
comments on this legislation as well.
STATEMENT OF THE HON. DAVID PHELPS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Phelps. May I proceed now, sir?
Mr. Hayworth. Yes, indeed, you may proceed, and we thank
you for joining us.
Mr. Phelps. Thank you, Mr. Chairman, for the opportunity,
even though I just heard a few minutes ago that this hearing
was taking place on this subject. I wanted to jump to the
chance and let the record show my support. I have several
counties presently--I represent the 19th District--that are
involved in this situation, and hopefully, it is going to be
resolved, because it is an issue that encompasses a rather
large part of my district in central Illinois.
This issue has been of great concern for quite awhile now,
and I am pleased that we are working here today to get it
resolved once and for all.
The Miami Tribe is currently seeking to claim 2.6 million
acres of property, including Illinois' Wabash watershed, which
includes all or part of 15 counties. Fifteen landowners have
been named in the lawsuit, one in each county affected by the
lawsuit. The tribe claims this land was not included in the
1805 Treaty of Grouseland. They gave up most of their land to
the Federal Government for $600 when they signed that treaty.
The tribe now estimates that the value of the land to be
around $30 billion. I am in support of Congressman Johnson's
legislation, H.R. 791, and I commend him for his leadership on
this issue, which will place this issue's accountability where
it belongs, with the Federal Government. This is not a question
of who is right and who is wrong, the Miami Tribe or the
landowners. This is a question of who is going to take
responsibility.
It is no secret that Native Americans have not been treated
fairly in the past. However, it is not fair to place blame on
the hardworking landowners of today when the whole issue has
been brought about by a mistake that the Federal Government
made over 150 years ago. These landowners have gone through
much hardship to get where they are today, and they should not
have their life's work taken right out from underneath them.
Again, I recognize the problems that this issue has brought
about to many people, including several of my constituents, and
I hope that this hearing will bring us one step closer to
ending this issue.
So thanks again, Mr. Chairman, for the opportunity to speak
on behalf of the landowners in the 19th District in Illinois. I
appreciate it.
[The prepared statement of Mr. Phelps follows:]
Statement of The Honorable David D. Phelps, a Representative in
Congress from the State of Illinois
Thank you Chairman, for the opportunity to speak today on this
issue that encompasses a rather large part of my district in central
Illinois. This issue has been of great concern for a while now, and I
am pleased that we are working here today to get it resolved once and
for all.
The Miami Tribe is currently seeking to claim 2.6 million acres of
property included in Illinois' Wabash Watershed, which includes all or
part of 15 counties. Fifteen landowners have been named in the lawsuit
one from each county affected by the lawsuit. The Tribe claims this
land was not included in the 1805 Treaty of Grouseland. They gave up
most of its land to the Federal Government for $600 when it signed that
treat. The tribe now estimates that value of the land to be around $30
billion.
I am in support of Congressman's Johnson's legislation, H.R. 791,
which will place this issue's accountability where it belongs, with the
Federal Government. This is not a question of who's right and who's
wrong, the Miami tribes or the landowners. This is a question of who is
going to take responsibility.
It is no secret that many Native Americans have not been treated
fairly in the past, however it is not fair to place blame on the
hardworking landowners of today when the whole issue has been brought
about by a mistake that the Federal Government made over 150 years ago.
These landowners have gone through much hardship to get where they are
today and they should not have their life's work taken right out from
underneath them.
Again, I recognize the problems that this issue has brought about
to many people, including several of my constituents, and I hope that
this hearing will bring us one step closer in ending this issue. Thank
you again, for giving me the opportunity to speak on behalf of the
landowners of the 19th district of Illinois.
______
Mr. Hayworth. And, Congressman, we thank you for your
testimony.
The Chair would invite any questions from either side of
the aisle, if there are any questions from our colleagues.
Ms. Christensen. I do not have a question, Mr. Chairman. I
just ask unanimous consent that two documents be placed in the
record. One is a statement by Congressman Dale Kildee, and the
other is a Department of the Interior memo released in July of
2000.
Mr. Hayworth. Without objection, we are happy to enter that
into the record, and the Chair would also note that our trio
from Illinois is cordially invited to join us on the dais to
hear subsequent testimony about this legislation, if you care
to and can accommodate your schedules. Please, by all means,
gentlemen, join us here on the dais.
[The prepared statement of Mr. Kildee follows:]
Statement of The Honorable Dale E. Kildee, a Representative in Congress
from the State of Michigan
Mr. Chairman, I oppose H.R. 791, a bill that extinguishes any claim
to land, including the claim of aboriginal title, or interest in land
within the State of Illinois by the Miami Tribe of Oklahoma, the Ottawa
Tribe of Oklahoma, and the Potawatomi Tribe of Kansas or their members
or predecessors or successors in interest that could be derived from
treaties.
This bill also:
1. Lgives exclusive jurisdiction of claims to the U.S. Court of
Federal Claims;
2. Llimits liability to the United States thereby preventing
potential claims arising out of other Federal statutes;
3. Lgives Indian tribes one year from date of enactment to file
claims; and
4. Lprovides only monetary compensation for claims against the
United States.
The Department of Interior has acknowledged the validity of one the
tribe's claims. Last year, the Interior Department wrote a letter to
Speaker Dennis Hastert and Illinois Governor George Ryan stating that
the Prairie Band of Potawatomi has a credible claim to certain land in
Illinois. The letter also states the U.S. continues to bear a trust
responsibility for that land.
I believe that Congress would be in breach of its trust
responsibility to these three tribes by passing this bill. This bill
does not provide the same structure afforded to other tribes that are
negotiating a fair settlement between all interested parties. Instead,
the bill establishes restrictions for these tribes that are not
currently set for all other tribes negotiating settlements for claims
against the U.S.
Furthermore, this bill would reverse longstanding Federal policy,
several Federal laws, and Federal court decisions allowing tribes to
pursue claims.
That concludes my remarks. I look forward to hearing the testimony
today. Thank you.
______
[The memorandum dated July 24, 2000, from Derril B. Jordan,
Associate Solicitor, Division of Indian Affairs, U.S.
Department of the Interior, submitted for the record on H.R.
791 follows:]
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Mr. Carson. Mr. Chairman, can I ask unanimous consent also
to submit an opening statement for the record, please?
Mr. Hayworth. Without objection, the Chair would welcome
opening statements from all those inclined to offer them this
morning, and we make note of that and thank the gentleman from
Oklahoma.
[The prepared statement of Mr. Carson follows:]
Statement of The Honorable Brad Carson, a Representative in Congress
from the State of Oklahoma
Thank you Chairman Hansen and Ranking Member Rahall for providing
this Committee with the opportunity to examine the serious implications
of this legislation. I would also like to thank the witnesses for being
here today to present their testimony.
H.R. 791 would extinguish treaty claims to land within the State of
Illinois by the Miami and Ottawa Tribes of Oklahoma, two Tribes within
my district, and the Prairie Band of Potawatomi Nation. Furthermore,
the bill would limit the Tribes to monetary damages filed against the
Federal Government in the United States Court of Federal Claims.
I have some serious concerns about this bill. While I can
appreciate the land claim as a regional issue that the Members from
Illinois would like resolved for their constituents, I do not support
the Federal Government unilaterally abrogating terms of a treaty
entered into in good faith by an Indian Nation. I hope that the parties
involved can work to find a better alternative.
In following this issue, I have noted a common statement made by
property owners and other affected parties. They state that, although
historically Native Americans in this country have been treated very
poorly, today's property owners are not to be punished for the sins of
the past. With this thought in mind, I would like to conclude my
statement with one question--by unilaterally and irrevocably
terminating the terms of a Treaty, agreed to in good faith by an Indian
Tribe and the Federal Government, are we not in fact repeating the sins
of the past?
______
Mr. Hayworth. With that in mind, we welcome our friends
from Illinois to the dais if that accommodates their schedules.
And even as we welcome them to the dais, we welcome panel
two concerning H.R. 791, and our panelists include Gary
Mitchell, the Vice Chairman of the Prairie Band of the
Potawatomi Tribe of Kansas; Larry Angelo, the Second Chief of
the Ottawa Tribe of Oklahoma; and Jacqueline L. Johnson,
Executive Director of the National Congress of American
Indians.
Again, we welcome you to our hearing this morning. We look
forward to your testimony, and again, the Chair would note that
your entire statements would be included in our record, and we
would appreciate a summation in a 5-minute time period of the
gist of your statements, and then, of course we invite you to
remain for questions.
So with that in mind, we are ready to begin the testimony
from our second panel, and we would begin with Vice Chairman
Mitchell of the Prairie Band Potawatomi Tribe of Kansas.
Mr. Vice Chairman, we welcome you, and we would appreciate
hearing your testimony now, sir.
STATEMENT OF GARY MITCHELL, VICE CHAIRMAN, PRAIRIE BAND
POTAWATOMI TRIBE OF KANSAS
Mr. Mitchell. OK; good morning, Mr. Chairman and members of
the Committee. My name is Gary Mitchell. I am the Vice Chairman
of the Prairie Band Potawatomi Tribe in Kansas. Our reservation
is located 20 miles north of Topeka and 80 miles due west of
Kansas City. And in some circles, I am regarded as a tribal
historian. I have a B.A. in political science and a master's
degree in history, and I wrote a history of our tribe, and we
have that on the Internet if anyone wants to read it.
And I am thankful and honored that you asked me to come
here and talk in front of this Committee. We would just like to
outline--we already had this testimony submitted already, and I
would just like to outline some of the things that went on with
our tribe here and our association with Shab-eh-nay, the Shab-
eh-nay land up there.
We had a treaty in 1829, the Prairie-Du-Chien treaty, and
our tribe, we gave up quite a bit of land there in the Illinois
area. And we were relocated to Missouri, the Black Country.
Then, we went to the Council Bluffs area then to Kansas in
1846. So we had 5 million acres at those two sites. And the
Shab-eh-nay land, he was married into our tribe, and that is
how the association came about with our tribe. And he had--he
believed in our people, and he followed us down when we went to
the Council Bluffs area. And he did not want to leave us,
because we wanted to stay together.
Then, eventually, he had time to--when he went down there,
they made all of these claims that he abandoned his land. And
he did not abandon any of the land. They just made an opinion.
There was another tribal member--his name was Shab-eh-nera, and
they thought that when he died in 1852, that was him that was
the man of record. The Shab-eh-nay were still there.
And our focus is not so much like some of the testimony you
heard here before. We are not here to say no, we are just going
to take this land away from them. What we want to do is to do a
fair and equitable manner here. You know, we want to buy the
land back at whatever today's prices are. We are not trying to
take anything away from anybody. That has not been our focus at
all.
Like I said, in that area, Shab-eh-nay, the people thought
a lot of him because he helped them there. And they gave him 20
acres of land just south of there, and he eventually died
there, and that is where he is buried today. So we have
documentation of all of the Boy Scout markers; the school kids,
what they did with his--they wanted to remember him. And we
have, as this lady over here said, we are submitting the BIA's
opinion on that where it says that we have some say in this
yet. So we submitted that part of the record, and we have
another one that I would like to submit sometime. It is
testimony from one of our tribal members. Her name is Elizabeth
Hale, and she was 92 at the time she signed this affidavit. And
she was the granddaughter of Shab-eh-nay, and she outlines in
this affidavit how our governing body was there for the last
150 years, and we have been trying all this time to get this
land back. It has not been something that we have done just
here in the last few years. This has been an ongoing effort,
and that was what our people believed in.
It was our land, and we wanted to keep it. And we are going
to try to be as fair as possible in all of our dealings with
everybody here. We are not going to go into a court case and
say we want this back and take it away from people. Like it was
stated earlier, that is not our primary focus here.
And just some of the--I want to, like they said in that
movie, the Godfather, I do not want to insult your intelligence
here, so I do not want to read word-for-word what I submitted
here. So if you want to ask, you know, any questions, I could
do the best I can to answer them.
[The prepared statement of Mr. Mitchell follows:]
Statement of Gary Mitchell, Vice Chairman, The Prairie Band of
Potawatomi Nation
Good morning, Mr. Chairman and Members of this Committee. My name
is Gary Mitchell. I am the Vice Chairman of the Prairie Band of
Potawatomi Nation, a Federally recognized tribe presently located on
our reservation 20 miles north of Topeka and 80 miles northwest of
Kansas City. I am also the Tribe's historian. The Tribe maintains a
government-to-government relationship with the United States. Thank you
for inviting me to testify before you today on H.R. 791, a bill ``to
provide for the equitable settlement of certain Indian land disputes
regarding land in Illinois.''
The Prairie Band does not want a dispute with its Illinois
neighbors and wishes a truly fair settlement of its land claim in
Illinois. The Shab-eh-nay land and Shab-eh-nay himself have been a part
of the Tribe's interest, history and culture for more than 150 years
and earlier efforts have been made to pursue the Potawatomi Nation's
claim. We do not believe that H.R. 791 would provide such a settlement,
as I will explain to you.
Perhaps I should say right up front that the Prairie Band's claim
is to 1280 acres of land set aside by treaty, that the reservation
still exists, that the Prairie Band is the legal successor in interest
to the rights under that treaty and that the Nation does not want to
displace any land owners from their homes. As an Indian Nation, we know
all too well how that feels and its devastating effect.
May I first tell you about the history of the Potawatomi Nation in
relation to the treaty and land referred to in H.R. 791. On July 29,
1829, the Treaty of Prairie du Chien between the United States and The
United Nations of Chippewa, Ottawa and Potawatomi, reserved two
sections of land in Northern Illinois, the future Dekalb County, as a
reservation for the Potawatomi Chief Shab-eh-nay and his Band. Although
the Illinois-Wisconsin Potawatomi ceded 5 million acres west of the
Mississippi in the 1833 Treaty of Chicago and most were removed west,
they did not cede the Shab-eh-nay Band's reservation. Nonetheless, in
late 1836, the Shab-eh-nay Band was driven from their land and
eventually relocated to Council Bluffs, Iowa, where they merged
politically and culturally with most of the Illinois-Wisconsin
Potawatomi removed west after the 1833 Treaty. This coalition,
including the Shab-eh-nay Band proper, relocated to a new reservation
in Kansas after the Treaty of 1846, which officially renamed the United
Bands the ``Potawatomi of the Prairie,'' already known as the Prairie
Band Potawatomi.Based on falsified deeds submitted by Ansel and Orin
Gates, the Gates brothers whose sordid and criminal reputation was well
known in Illinois, commonly known as the ``Bogus'' Gates, part ``of the
west Paw Paw banditti, linked with horse thieving and counterfeiting,''
the Commissioner of Indian Affairs determined that Shab-eh-nay's Band
had abandoned the Illinois reservation. Then the Commissioner
mistakenly concluded that Shab-eh-nay was another Indian, Shobonnier,
who died in 1852 and had received his land as an individual grant under
the Treaty of 1832.
Based on these misassumptions, on November 5, 1849, the Shab-eh-nay
Band's reservation was sold by the United States General Land Office.
Shab-eh-nay died in 1859 and the Illinois lands were reserved by the
Treaty of 1829 for his band, not for him or his family as individuals.
Tribal treaty title is recognized and held in trust by the United
States. The lands were not public lands within the General Land
Office's jurisdiction. They could neither be abandoned nor sold absent
express congressional authorization. The patents issued on the lands in
1850 are void, and the land remains in trust.
When the Shab-eh-nay Band merged with the Prairie Band Potawatomi
at Council Bluffs, it conveyed to the Prairie Band any treaty rights
the Shab-eh-nay Band held at the time. Thus, the Prairie Band is the
rightful beneficiary of the lands originally reserved for Chief Shab-
eh-nay and his Band under the 1829 Treaty of Prairie du Chien.
After the disgraceful theft of the Illinois reservation lands,
Shab-eh-nay struggled in vain to regain their possession. The Prairie
Band has continued that struggle to this date. The historical record is
replete with documentation of this 150-year tragedy. We would be glad
to present to you that documentation. The Nation's interest in this
land did not arise within the last thirteen years.
The historical record is also replete with evidence of the
affection and respect of the non-Indian people in the now Dekalb County
area for Shab-eh-nay as a great leader and friend. In that regard, I
would like to tell you a few things. By 1857, Shab-eh-nay, disposed of
the Band's reservation in northeastern Illinois, moved around the
surrounding area continuing to pursue recourse from the Federal
Government. Local settlers in the area of Morris, Illinois (about 20
miles southeast of the reservation) took up a collection to purchase a
tract of land for Shab-eh-nay to provide him with a permanent home.
Shab-eh-nay selected a 20-acre parcel on a bluff overlooking the
Illinois River. This land was set aside for the chief and his heirs
forever and removed from the tax rolls. P.A. Armstrong, The Black Hawk
War 591-593, Springfield, Illinois (1887)(no publisher listed). The
deed granting ``20 acres off S.E. T420: 33.6, [from] John Batcheller
and Wife,'' dated June 27, 1857, reads as follows:
``This grant to be held in trust for the use and benefit of
Cabana, Indian Chief of the Pottawattamie tribe, and his heirs
forever, the use, rents and profits thereof to be enjoyed by
said Shabana and his heirs exclusively.''
Recorded 9-23-1857, Book R., Page 215, Grundy County Courthouse,
Morris, Illinois. That same year, a group of women in Ottawa, Illinois
organized a fund-raiser ball to erect a small cabin on the land. Shab-
eh-nay attended the ball. Armstrong 592.
In 1958, local Boy Scout Troop 25, Theodore St. Ev. Lutheran
Church, Joliet, Illinois, erected a marker on the site of Shab-eh-nay's
cabin with a granite memorial; ``On this site Chief Shab-eh-nay
occupied a cabin given to him by white friends in 1857, resided here
until his death, July 27, 1859.'' Records of the Shabbona Trail
Committee, Troup 25, Boy Scouts of America, 1015 Bury Ave., Joliet, IL
60435.
Shab-eh-nay died on July 17, 1859, from an illness following a
hunting excursion. He was buried in Lot 59, Block 7, in the Evergreen
Cemetery in Morris, Illinois, about twenty miles south east of Shab-eh-
nay's cabin. Sextant's Records, Evergreen Cemetery, Morris, Illinois.
Evergreen Cemetery in Morris, Illinois. The exact site is Lot 59, Block
7.
A project was begun in 1861 to raise the funds needed for a
monument to Shabbona, but the Civil War left the project incomplete.
Letter from Frances Rose Howe to Charles Goold (September 1, 1860), on
file with Chicago Historical Society.
On August 19, 1897, the 29th reunion of the Old Settlers of La
Salle County discussed placing a monument for Shab-eh-nay. It was
unanimously agreed that a committee should be formed to devise ways and
means for the erection of a suitable monument. Letter of P.A. Armstrong
to Miss McIlcvane (17 October 1903), on file with Chicago Historical
Society.
The monument decided upon was a large boulder inscribed simply,
``Shabbona 1775--1859.'' It was placed on his grave at Evergreen
Cemetery in 1903. Letter from P.A. Armstrong to Miss McIlvane (17
October 1903), on file with Chicago Historical Society.
In 1922, construction began on Shabbona Elementary School near
Shabbona Grove. The students of the classes of 1922--1923 dedicated a
handsome monument, containing his sculptured image, to Shab-eh-nay.
www.homestead.com/shabbonaelementary/history
Now, I would like to turn to the legal aspects of the Prairie
Band's efforts to obtain conformation of its Shab-eh-nay claim by the
Department of the Interior. For two and one-half years, the Potawatomi
Tribe submitted extensive supporting materials from esteemed legal and
academic professionals to support the Tribe's claim. In July 2000, the
Office of the Solicitor, Division of Indian Affairs, issued two
internal legal opinions concluding that based on their review of the
Potawatomi Tribe's submitted materials, the Tribe has a credible claim
that the lands reserved for the Shab-eh-nay Band by the 1829 Treaty of
Prairie du Chien constitute a treaty reservation and that the Prairie
Band Potawatomi Nation is the sole successor in interest to the rights
of the Shab-eh-nay Band under that treaty. Relying on those opinions,
the Tribe's research and additional research by the Division of Indian
Affairs, on January 18, 2001, the Solicitor, John Leshy, sent a letter
opinion to the Illinois governor and the congressional representative
in whose district the Shab-eh-nay reservation is located. The Solicitor
concluded that the Prairie Band is the lawful successor in interest to
Chief Shab-eh-nay and his Band, that the reservation still exists and
that the United States owes a trust responsibility to the Prairie Band
Potawatomi for these lands. I have the January 18th Solicitor's opinion
with me ask that it be made a part of the record of this earing. I
would like to quote just one paragraph from page two of that opinion to
you:
Our research has also led us to the conclusion that the Prairie
Band is the lawful successor in interest to Chief Shab-eh-nay
and his Band. The Prairie Band did bring a claim against the
United States under the Indian Claims Commission Act of 1946
and was paid for the loss of certain lands in northern
Illinois. However, the reservation of land for Chief Shab-eh-
nay and his Band was specifically excluded from the lands for
which the Commission awarded payment. 11 Ind. Cl. Comm. 693,
710 (1962). As a result, we believe the U.S. continues to bear
a trust responsibility to the Prairie Band for these lands.
The Tribe has arranged to maintain an option on a portion of
privately owned property defined as reservation land by the Department
of the Interior. The Tribe wants to clear title of the landowners, have
first right of refusal to purchase land within the reservation
boundaries from willing sellers and reach an agreement with the state
and the county regarding ownership, access to and management of the
wildlife refuge and park within the reservation boundaries. The Tribe
wants to work with the state, the county and individual landowners.
Please note that during the entire time of our preparation of the
legal, historical and anthropological elements of the Tribe's claim and
also during the entire time of its consideration by the Department of
the Interior, and since the issuance of the legal opinions by the
Office of the Solicitor, there has been no animosity or legal threat by
the Tribe. Neither, we note, has there been any such animosity or legal
threat to the Tribe by the state, county or individual landowners.
Land title records show that approximately 52% of the two sections
of reservation land is now an Illinois state park, 7% is a Dekalb
County Forest Preserve, 10 %is a 128 acre farm owned by the Ward
family, 5% is owned by the Indian Oaks Country Club, 10% is owned by
nine separate landowners and the remaining 2% comprises homes on small
tracts owned by 21 separate landowners. It is the Tribe's hope that it
can reach an agreement with all parties which can be affirmed by
Federal legislation. To do so has been the announced policy of the
Prairie Band of Potawatomi Nation since 1997. The Nation has advised
the Illinois governor's representatives and the Speaker of the House of
Representatives in whose district the reservation lands is located of
its policy.
H.R. 791 would extinguish the rightful claim of the Prairie Band
Potawatomi Nation to its treaty rights under the Treaty of Prairie du
Chine. It would rob the Tribe of a significant part of its heritage. I
am sure you must ask why money damages are insufficient for the
Potawatomi Nation. I ask you simply, ``Could money replace your
ancestry, your religion, your home?''
We hope that the two opinions, two legal memoranda, from the
Division of Indian Affairs of the Office of the Solicitor have been
transmitted by the Department of the Interior to you and that they will
be made a part of the record of this hearing. If this has not yet
transpired, we request that this Committee obtain those opinions,
consider them and make them a part of the record.
Thank you for giving me the opportunity to present the strongly
held beliefs and legal position of the Potawatomi Nation to you today.
I ask that my written testimony be made a part of the record.
______
[A letter and affidavits submitted for the record by Mr.
Mitchell follow:]
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Mr. Hayworth. Well, Mr. Vice Chairman, we very much
appreciate both your written testimony, your oral testimony
here today and your generous offer to answer our questions. We
are sure that there will be questions that will be forthcoming.
I just would make a note that Ms. Hale's affidavit, per
your request, will be included in our record today without
objection, and we appreciate the opportunity to have that as
part of your testimony and point of view as well.
[The affidavit of Ms. Hale follows:]
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Mr. Hayworth. So we thank you very much for your testimony,
Mr. Vice Chairman, and we will have questions.
Now, we turn to Larry Angelo, second chief of the Ottawa
Tribe of Oklahoma. Chief Angelo, welcome, and we appreciate
your testimony now.
STATEMENT OF LARRY ANGELO, SECOND CHIEF, OTTAWA TRIBE OF
OKLAHOMA
Mr. Angelo. Good morning, Mr. Chairman, members of the
Committee. I am Larry Angelo, Second Chief of the Ottawa Tribe
of Oklahoma, and I thank the Committee and Chairman for
inviting me to testify on behalf of the Ottawa Tribe of
Oklahoma on H.R. Bill 791, a bill to extinguish our recognized
treaty title and authorize condemnation of property rights of
the Prairie Band of Potawatomi and the Ottawa Tribe of Oklahoma
to the Shab-eh-nay reservation in DeKalb County, Illinois.
This legislation is intended to take our tribal property
rights, confirmed by treaty, to the two sections of land as
described in Article 3 of the Prairie-Du-Chien Treaty of 1829.
The Ottawa Tribe agrees that a legislative solution is needed;
however, that that solution is to honor the Prairie-Du-Chien
Treaty of 1829 and pay for the lands recognized by treaty
title.
As Congress is aware, Fifth Amendment taking is worth
hundreds of millions of dollars. The background of this bill or
our role in this is the bill before you in H.R. 791 would
extinguish treaty title to our land in Illinois, which includes
a reservation of two sections of land, 1,280 acres, that was
set aside for Ottawa Chief Shab-eh-nay and his Ottawa Band in
the Treaty of Prairie-Du-Chien, dated July 29, 1829.
The Ottawa Tribe of Oklahoma did receive a letter from the
Office of the Solicitor on January 18, 2001. In that opinion
letter, Solicitor John Leshy determined that the Prairie Band
of Potawatomi is one successor in interest to the Shab-eh-nay's
band. The Ottawa Tribe responded stating our research was
ongoing, and a report would be forthcoming. My tribe has
completed its historic review and can document that our Ottawa
Tribe, in fact, has an interest in the land as a successor-in-
interest.
About H.R. 791: this bill is inconsistent, because it
extinguishes title to existing property rights based on
treaties. These are not just aboriginal claims. Enactment of
the legislation relieves the concern of non-Indian landowners
in Illinois and transfers the debt for taking private tribal
property to the U.S. Government. Although it also purports to
extinguish the title of any Indian tribe or individual to
claims filed in Illinois within 1 year of enactment of the
bill, it does not extinguish Congress' obligation to the Ottawa
Tribe.
The bill does not provide for the payment of compensation
for taking of tribal or individual Indian lands. In this
instance, if this bill is enacted into law, the United States
will be responsible for paying for the present value of the
land plus other damages to our treaty-reserved rights.
In conclusion, the Ottawa Tribe of Oklahoma agrees that the
claim will require a legislative solution. However, this
particular bill in its present form is not beneficial or
helpful to any tribe in the State of Illinois, nor is it in the
best interest of the United States.
Attempts were made to resolve this land claim issue with
the State of Illinois from 1997 to 1999. All these attempts
have failed. The message received from the Illinois
representatives was we got rid of the damn Indians over 100
years ago, and we are not going to have them back. This
continues to be a historical theme of racism toward American
Indians.
Therefore, the Ottawa Tribe of Oklahoma strongly opposes
H.R. 791 unless the issues referenced above are addressed, and
the land is returned to us, or the bill is modified to
authorize just compensation for past and future damages.
I thank you, and I am ready for questions whenever you
want.
[The prepared statement of Mr. Angelo follows:]
Statement of Larry Angelo, Second Chief, Ottawa Tribe of Oklahoma
Good morning, Mr. Chairman and members of the Committee. I am Larry
Angelo, Second Chief of the Ottawa Tribe of Oklahoma. I thank you Mr.
Chairman, and members of the Committee for permitting me to testify on
behalf of the Ottawa Tribe of Oklahoma on H.R. 791, a bill to
extinguish our recognized Treaty title and authorize condemnation of
the property rights of the Prairie Bank of Pottawatomi and the Ottawa
Tribe of Oklahoma to the Shab-eh-nay reservation in Dekalb County,
Illinois. This legislation is intended to take our tribal property
rights confirmed by treaty, to the two sections of land as described in
section III of the Prairie-Du-Chien Treaty of 1829. The Ottawa Tribe
agrees that a legislative solution is needed: that solution is to honor
the Prairie-Du-Chien Treaty of 1829 and pay for lands recognized by
Treaty Title. As Congress is aware, this Fifth Amendment ``taking'' is
worth hundreds of millions of dollars.
Background
The bill before you, H.R. 791 would extinguish Treaty Title to our
land in Illinois, which includes a reservation of two sections of land
(1,280 acres) that was set aside for the Ottawa Chief Shab-eh-nay and
his Ottawa Band in the Treaty of Prairie-du-Chien, dated July 29, 1829.
The Ottawa Tribe of Oklahoma received a letter from the Office of
the Solicitor on January 18, 2001. In that opinion letter, Solicitor
John Leshy determined that the Prairie Band of Pottawatomie is one
successor in interest to Shab-eh-nay's Band. The Ottawa Tribe responded
stating ``our research was on-going and a report would be
forthcoming.'' My Tribe has completed its historic review and can
document that our Ottawa Tribe, in fact, has an interest in the land as
a successor in interest.
H.R. 791
The bill is inconsistent because it extinguishes title to existing
property rights based on treaties. These are not just aboriginal
claims. Enactment of the legislation relieves the concern of non-Indian
land owners in Illinois and transfers the debt for taking private
Tribal property to the United States government. Although, it also
purports to extinguish the title of any Indian Tribe or individual
Indians to claims filed in Illinois within one year of enactment of the
bill, it does not extinguish Congress obligations to the Ottawa Tribe.
The bill does not provide for the payment of compensation for
``taking'' of Tribal or individual Indian lands. In this instances, if
this bill is enacted into law, the United States will be responsible
for paying for the present value of the land, plus other damages to our
Treaty reserved rights.
Conclusion
The Ottawa Tribe of Oklahoma agrees the claim will require a
legislative solution, however this particular bill in its present form
is not beneficial or helpful to any Tribe in the State of Illinois. Nor
is it in the best interests of the United States. Attempts were made to
resolve the land claim issue with the State of Illinois from 1997 to
1999. All the attempts have failed. The message received from the
Illinois representative was, ``We got rid of the Damn Indians over one
hundred years ago and we are not going to have them back''. Therefore,
the Ottawa Tribe of Oklahoma strongly opposes the passage of H.R. 791,
unless the issues referenced above are addressed and the land is
returned to us or the bill is modified to authorize just compensation
for past and future damages.
______
[Mr. Angelo's response to questions submitted for the
record follows:]
[GRAPHIC] [TIFF OMITTED] 79494.021
[GRAPHIC] [TIFF OMITTED] 79494.022
[GRAPHIC] [TIFF OMITTED] 79494.023
Mr. Hayworth. Thank you, Chief Angelo. I appreciate your
testimony.
And finally in panel two, we hear from the Executive
Director of the National Congress of American Indians,
Jacqueline L. Johnson.
Ms. Johnson, welcome. We look forward to hearing your
testimony.
STATEMENT OF JACQUELINE L. JOHNSON, EXECUTIVE DIRECTOR,
NATIONAL CONGRESS OF AMERICAN INDIANS
Ms. Johnson. Good morning, Mr. Chairman and members of the
Committee. As stated, my name is Jacqueline Johnson. I am the
Executive Director of the National Congress of American
Indians, and I thank you for inviting us to testify for you
today on H.R. 791, a bill regarding certain Indian land
disputes in Illinois.
The National Congress of American Indians, NCAI, was
established in 1944 and is the largest and the oldest, most
representative national American Indian-Alaskan Native tribal
government organization. We appreciate the opportunity to be
able to participate on behalf of our member Indian nations in
this legislative process of the U.S. Congress to provide this
Committee with our views.
NCAI is opposed to H.R. 791 and requests this honorable
Committee, after giving this bill full and fair consideration,
not to report H.R. 791 to the full House of Representatives. In
support of this request, we ask that NCAI Resolution MSH-01021,
opposing H.R. 791, which is attached with my testimony, which
was passed at the 2001 mid-year session of the National
Congress of American Indians, be made part of the record of
this hearing.
We oppose H.R. 791 because it would extinguish any and all
claims to land within the State of Illinois by three tribes
whose claims arise from treaties entered into with the United
States. These tribes are the Potawatomi Tribes of Kansas; the
Miami Tribe of Oklahoma; and the Ottawa Tribe of Oklahoma, who
entered into the 1829 Treaty of Prairie-Du-Chien, the Treaty of
Grouseland and the 1816 Treaty with the United States, Tribes
of the Ottawas, Chippewas and Potawatomis.
The Indian tribes party to these treaties believe that the
United States made solemn commitments, legally binding both to
the tribes and to the United States. They believe that they
would be able to live forever upon these lands reserved as
their homelands from the vast areas that they once occupied.
The faith of these tribes proved to be unfounded. The
tribes never ceded these lands but were forcefully driven from
them, and these lands were sold to others in the United States.
I will not here address the particular facts of these three
tribes named in H.R. 791. In particular, the history of each
tribe and treaty named in this bill differ in each case and
underscores the inequity of sweeping all of the claims together
and dealing with them exactly in the same manner with this
legislation.
I want to emphasize that there is an appropriate role for
Congress' involvement in and oversight of Indian land claims,
including land claims in Illinois. But that is not at this
early stage. The Federal courts and the legal process is there
for a reason: because Indian land claims are extremely fact-
specific and based on treaties and historical circumstances,
Congress is not in a good position to declare what is fair
until there has been a full development of the record and an
effort to settle by the parties.
The better process is one that first allows the validity of
the land claim to be legally tested, and we should note that
the land claims are very difficult to prosecute. It also
becomes clear that a claim is a valid claim, and when the tribe
should have a chance to work with the state and the local
government and the land owners through settlement discussions
to come to a resolution. Everyone gets a hearing; all the
issues are placed on the table, and the parties can forge
relationships, resolve issues and hopefully come to a
resolution that everyone can live with.
Alternative dispute resolution is a very good option,
because parties have the ability to create solutions to fit
unique circumstances and because parties have a much better
chance of coexisting over a long period of time with a
negotiated resolution than with one that is dictated by the
court or by Congress. This is a process that has been working
for the last 25 years and has been effective in coming to
resolution on quite a number of very significant Indian land
claims. There has never been an Indian land claim that went all
the way to a final judgment where a Federal court has thrown
non-Indians off their land.
There are incentives for parties to work together and to
come to a resolution. We should encourage Congress and the
administration to stay the course and to continue to strive for
equitable settlements of Indian land claims. Congress must
ratify any settlement involving land claims, so Congress always
retains the ultimate control over the land claim process as
outlined above.
After the parties have had a chance to develop a record and
come to a resolution, that is when Congressional action is
appropriate. In Illinois, that has not had the chance to occur.
H.R. 791 would short-circuit the legal process and the
settlement process and perpetuate even more injustices against
these three tribes. Even if H.R. 791 were to become law, the
tribes would be back here next year and for the next thousand
years attempting to resolve their claims.
Congress cannot simply resolve Indian land claims in this
one-sided fashion. It is my hope that there will be agreement
among the parties in Illinois that the tribes will receive fair
resolution of their claims, and there will be no harm to the
people who have done no wrong. I sincerely believe this would
happen if the parties would set down together and work to
resolve their issues. I know that at least one of the tribes
has withdrawn its lawsuit, and the others are working to
resolve their issues in the fairest way possible.
However, I also think that the controversy that has been
raised in Illinois should be placed in its proper context.
Indian people were thrown out of their homes, and their treaty
lands were taken from them. Now, we are going through some
minor amount of legal discussion in Illinois regarding these
lands and fair resolution of the tribal claims, and in
balancing the equities, Congress should not choose to undermine
the legal rights of tribes.
Thank you for this opportunity to be able to appear before
you today, and I appreciate the work of the Chairman and the
members of this Committee, and we would be willing to assist if
there is anything that we can possibly do. Thank you.
[The prepared statement of Ms. Johnson follows:]
Statement of Jacqueline Johnson. Executive Director, National Congress
of American Indians
Good morning Mr. Chairman and Members of the Committee. My name is
Jacqueline Johnson. I am the Executive Director of the National
Congress of American Indians. Thank you for inviting us to testify
before you on H.R. 791, a bill regarding certain Indian land disputes
in Illinois. The National Congress of American Indians (NCAI) was
established in 1944 and is the oldest, largest, and most representative
national American Indian and Alaska Native tribal government
organization. We appreciate the opportunity to participate on behalf of
our Member Indian Nations in the legislative process of the United
States Congress to provide this Committee with our views.
NCAI opposes H.R. 791 and requests that this honorable Committee,
after giving the bill full and fair consideration, not report H.R. 791
to the full House of Representatives. In support of this request, we
ask that NCAI Resolution MSH-01-021 opposing H.R. 791, which passed at
the 2001 Mid-Year Session of the National Congress of American Indians,
be made a part of the record of this hearing.
We oppose H.R. 791 because it would extinguish any and all claims
to land within the State of Illinois by three tribes whose claims arise
from treaties entered into with the United States. The tribes are the
Potawatomi Tribe of Kansas, the Miami Tribe of Oklahoma and the Ottawa
Tribe of Oklahoma who entered into the 1829 Treaty of Prairie du Chien,
the Treaty of Grouseland and the 1816 Treaty with the United Tribes of
the Ottawas, Chipawas and Pottowotomees. The Indian tribes party to
these treaties believed that the United States made solemn commitments,
legally binding upon both the tribes and the United States. They
believed that they would be able to live forever upon the lands
reserved as their homelands from the vast areas they once occupied.
The faith of these tribes proved to be unfounded. The tribes never
ceded these lands, but were forcefully driven from them, and the lands
were sold to others by the United States. I will not address the
particular facts of each of the three tribes named in H.R. 791. The
particular history of each tribe and treaty named in this bill differ
in each case. These circumstances underscore the inequity of sweeping
all of the claims together and dealing with them in exactly the same
manner in one piece of legislation.
I want to emphasize that there is an appropriate role for Congress
in involvement in and oversight of Indian land claims, including land
claims in Illinois, but that it is not at this early stage in the
process. The Federal courts and the legal process are there for a
reason. Because Indian land claims are extremely fact-specific and
based on treaties and historical circumstances, Congress is not in a
good position to determine what is fair until there has been a full
development of the record and an effort to settle by the parties. The
best process is one that first allows the validity of the land claim to
be legally tested (and we should note that land claims are very
difficult to prosecute). If it becomes clear that a claim is a valid
claim, then the tribe should have a chance to work with the state and
local governments and the landowners through settlement discussions to
come to a resolution. Everyone gets a hearing, all the issues are put
upon the table, and the parties can forge relationships, resolve
issues, and hopefully come to a resolution that everyone can live with.
Alternative dispute resolution is a very good option because the
parties have the ability to create solutions to fit unique
circumstances, and because the parties have a much better chance of co-
existing over a long period of time with a negotiated resolution than
with one that is dictated by a court or by Congress. This process has
been working for the past twenty-five years and it has been effective
in bringing to resolution a number of very significant Indian land
claims. There has never been an Indian land claim that went all the way
to a final judgment where a Federal court has thrown non-Indians off
their land. There are incentives for the parties to work together and
come to a resolution. We would encourage Congress and the
Administration to stay the course and continue to strive for equitable
settlements of Indian land claims.
Congress must ratify any settlement involving Indian land. Thusly,
Congress always retains ultimate control over the land claims process
outlined above. The appropriate time for Congressional actions is after
the parties have had a chance to develop the record and come to a
resolution. In Illinois, that has not had a chance to occur. H.R. 791
would short-circuit both the legal and the settlement processes and
would perpetrate even more injustices against these three tribes. Even
if H.R. 791 were to become law, the tribes would be back here next year
and for the next one thousand years attempting to resolve their claims.
Congress cannot simply resolve Indian land claims in this one-sided
fashion.
It is my hope that there will be agreement among the parties in
Illinois, that the tribes will receive fair resolutions of their
claims, and that there will be no harm to people who have done no
wrong. I sincerely believe this will happen if the parties sit down
together and work to resolve the issues. I know that least one tribe
has withdrawn its lawsuit, and that the others are working to resolve
issues in the fairest way possible. However, I also think that the
controversy that has been raised in Illinois should be placed in its
proper context. Indian people were thrown out of their homes and their
treaty lands were taken from them. Now we are going through some minor
amount of legal discussion in Illinois regarding those lands and the
fair resolution of the tribal claims. In balancing the equities,
Congress should not choose to undermine the legal rights of the tribes.
H.R. 791 would refer the named claims to the United States Court of
Federal Claims with money damages as the only remedy. If, indeed, any
of the treaty tribes or their successors in interest believes that
money is the appropriate and preferred remedy, they are certainly
entitled to support H.R. 791. NCAI has been advised that the factual
situations of each claim differ and we strongly urge you to hear what
the tribes testifying before you today have to say and to give their
circumstances your respect.
Thank you for the opportunity of appearing before you today. We
greatly appreciate the work of the Chairman and the Committee on Indian
issues, and would request that our written testimony and the
aforementioned resolution be made a part of the record.
______
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[GRAPHIC] [TIFF OMITTED] 79494.002
Mr. Hayworth. And, Ms. Johnson, we thank you for your
testimony and the willingness of all three of you now to answer
questions from the Chair.
Just one thing at the outset, Chief Angelo. You offered a
statement that I think was disturbing to every member of the
Committee, and I just want some amplification on it. And I may
be paraphrasing a bit. You said in the minds of some in
Illinois, and I do not know if this is a direct quote or not;
maybe you are talking about overriding sentiment, we got rid of
the Indians 100 years ago. We do not want that back.
Mr. Angelo. Yes.
Mr. Hayworth. Or that situation back, something along those
lines.
Chief Angelo, was that said to you specifically by any
governmental official in the State of Illinois, by any Federal
officeholder?
Mr. Angelo. Yes.
Mr. Hayworth. Could you name the person who made that
statement and in what forum that came?
Mr. Angelo. His name was Mark Warnstein. He was a special
counsel or counsel to the Governor. It occurred in my last
meeting, our last meeting, in the company of others, and that
the situation--let me give you some background on how it
occurred--he was questioning whether or not Shab-eh-nay was
truly--and his band were truly Ottawa, and of course, this has
been a question in the minds of the Illinois people, and I gave
him a string of documents bringing out where Shab-eh-nay is
listed as an Ottawa and even during the 1829 treaty, in the
minutes of that treaty, where he actually received the land, he
is documented as an Ottawa chief.
And he got upset during that exchange, and I assume he was
embarrassed, and he fired out this line to me, and my attorney
or ex-attorney was present as well as another witness, and also
a BIA agent from Miami Agency was present. And I was offended
by this, deeply offended, and I terminated our--basically our
meeting at that point. But it was definitely offensive to us.
Mr. Hayworth. Well, Chief Angelo, I just wanted to say that
in the opinion of the Chair, I think every member of this
Committee regardless of political label or partisan division
that, you know, we all share your concern about that statement.
But I just wanted that amplified if, in fact, that was made to
you. And I think you will certainly find, sir, that on this
Committee, regardless of some disagreements about public
policy, that is not the sentiment shared--the Chair feels
confident in saying that--for anyone here, and I thank you for
amplifying exactly how and under what circumstances such a
comment was made.
Mr. Angelo. Well, I appreciate your concern and am grateful
that you are making this stance.
Mr. Hayworth. And I will call on the gentleman from
Illinois later. The Chair would reserve the right as Chairman
to first handle questions, and then, we will go alternating
with the majority and the minority sides.
Let me turn now to Vice Chairman Mitchell. And in listening
to the testimony this morning from both you, Mr. Vice Chairman,
and Second Chief Angelo, the Potawatomi and Ottawa Tribes' land
claim rests on the theory that the 1829 treaty created a
recognized title and a permanent reserve that could only be
extinguished by Congress and that Congress has failed to
validly extinguished that reserve.
Now it is this Committee's understanding that in 1852,
Congress appropriated $1,600 for payment to Indians claiming
descent from Shab-eh-nay and that Congress intended that this
payment would extinguish the 1829 treaty reserve. How is this
not a valid extinguishment of the 1829 reserve to which you are
claiming title?
Mr. Mitchell. Well, we spent two and one half years
gathering all of this research material together, and we relied
on the academic professionals and all of this to develop
material, and all of the--even the Leshy opinion said that we
were the sole successor to the property there. And as far as
the details of any settlement, the other land that we lost in
the Illinois area, we were compensated for that, but it was
never anything done with that portion of the Shab-eh-nay land.
So I would have to go back and look at our research to
fully answer that question.
Mr. Hayworth. OK; and Mr. Vice Chairman, you will have the
option--in fact, in writing, to respond with a more formal and
more complete assessment. The Chair and the Committee would
certainly welcome that.
Chief Angelo, you mentioned in your testimony the opinion
letter from John Leshy that he rendered on his final day as
solicitor. Aside from that opinion, has the tribe received any
formal determinations regarding the validity of its claim?
Mr. Angelo. We have not submitted to the solicitor yet. We
are within 45 to 60 days from submitting our final report. We
are in a rough draft form currently, and new and material
evidence has surfaced that, without a doubt, puts us in as a
successorship. I might add that one of the issues that we had
which we wanted to confirm was a band list, and I think the
Potawatomis would agree that--and even the solicitor's office
would agree that it was very difficult to find that.
We have found a band list that outlines who was on his--who
was in his tribe or in his village, and our report will display
that as well as how they came into our tribe in Kansas at the
time.
I would also like to answer your previous question. What
was that asked to Vice Chief Mitchell?
Mr. Hayworth. Well, to return to that, the Potawatomi and
Ottawa Tribes' land claim rests on the theory that the 1829
treaty created a recognized title and a permanent reserve that
could only be extinguished by Congress and that Congress has
failed to validly extinguish that reserve.
Now, we understand--the Committee's understanding is that
in 1852, Congress appropriated $1,600 for payment to Indians
claiming descent from Shab-eh-nay and that Congress intended
that this payment would extinguish the 1829 treaty reserve.
So the question becomes, Chief, how is this not a valid
extinguishment of the 1829 reserve to which you are claiming
title?
Mr. Angelo. Well I think in our instance, you mentioned
descendants of Shab-eh-nay. Remember, this treaty in 1829 says
Shab-eh-nay and his band, and you are forgetting about the
band. They are not descendants of Shab-eh-nay. So it is not
strictly to descendants of Shab-eh-nay; it also includes his
band, and that has been our issue, and that we have uncovered
the band list.
They are not necessarily descendants of Shab-eh-nay. There
were eight to nine heads of family listed on an 1833 annuity
role that were part of his village. And clearly, the 1829
treaty says Shab-eh-nay and his band, not his descendants. So
to me, the 1852 documentation or legislation did not clearly
clear the band. Do you have any information where it did that?
Mr. Hayworth. Chief, just wanted to get your perspective on
it for the record.
Mr. Angelo. OK.
Mr. Hayworth. And I thank you for that.
Mr. Angelo. Thank you.
Mr. Hayworth. The Chair would now turn to the minority
side, and I see my good friend, the Co-Chair of the Native
American Caucus, the gentleman from Michigan.
Mr. Kildee. Thank you, Mr. Chairman and Co-Chair of the
Native American Caucus, one of the founders.
I think this Congress should be extremely reluctant to do
anything that sets aside the treaties. Our Constitution says
that this Constitution and all treaties entered into are the
supreme law of the land, and that is very, very, important.
John Marshall's decision equated Indian treaties with treaties
with France or any other country. There are three types of
sovereignties that the Constitution recognizes: the sovereign
states, sovereign nations overseas, and sovereign Indian
tribes.
And these treaties have the same validity as the
Constitution, as this Constitution. And all treaties entered
into are the supreme law of the land, so Congress should be
most reluctant to do anything that would infringe upon the
strength and the sovereignty of those treaties.
I yield back the balance of my time, Mr. Chairman.
Mr. Hayworth. I thank the gentleman from Michigan and turn
to my friend from Illinois, the sponsor of the legislation, for
any questions or comments he might have for the panel.
Mr. Johnson. I will be very brief, and I appreciate, Mr.
Chairman, and the Committee your indulgence in allowing me to
sit on the panel. This is my honor.
I will point out first of all they certainly had very
credible presentations; that Mr. Mitchell, Mr. Angelo represent
tribes that are not involved in the claim for which I am
advocating. That is a different claim, different year,
different issues. And so, with all due respect, any responses
that may have been made to you in that regard, while I
certainly do not in any way validate any claims or statements
that may in any way be racist, I would simply say that our
claim is something that stands of its own footing and also
simply point out to you, ladies and gentlemen, as members of
the Committee, that our attempt in this bill is as narrow an
attempt as one could possibly effect to obtain justice for
everyone.
We are not in any way claiming that this is an invalid
treaty, although I believe that in our case, the Miami Indians
actually have dismissed their case without prejudice. This is
simply an attempt to bring closure to the situation in fairness
to the landowners. We are simply saying that if, in fact, there
is a valid claim, at least in the case of the Miami Indians,
and the same thing is true with you, that that claim is vis-a-
vis the Federal Government and not against innocent landowners
in 2.6 million acres, and we framed this legislation as
narrowly as possible, despite the parallel legislation that was
pending a year ago in the Senate, which was broad-based
legislation, which would do what the distinguished ranking
member said, and that is simply to obliterate all claims of
Native Americans.
We do not want to do that. We want to effect justice for
everybody, but justice also includes people who were not around
in 1805, just like Illinois was not a state in 1805, and still
be able to strike a balance on your behalf.
So I do respect and appreciate your testimony as well as
the indulgence of the members of the Committee and hope that
you agree that our approach is one that is moderate and fair.
Mr. Hayworth. I thank the gentleman from Illinois.
Gentleman from Hawaii, any questions, comments?
Mr. Abercrombie. No.
Mr. Hayworth. My friend from New Mexico? Friend from Texas?
New Jersey, Mr. Pallone?
Mr. Pallone. Thank you, Mr. Chairman.
I just wanted to take issue with what my colleague from
Illinois said. I think this is a major change in policy here
with this bill. I mean, the way I understand it, basically, you
would be extinguishing the land claims, and, you know, that is
a pretty meaningful, significant thing that would happen here.
And it also, I think, sets a bad precedent for other land
claims that might be out there not only in Illinois but in
other states that would just sort of, you know, willy nilly
extinguishing land claims without an opportunity for, you know,
for the tribes and others to have some sort of negotiations.
Just listening to what the panel said, I think that it was
quite clear that the panel members were saying, you know, look:
we have these claims out there. We want to be able to sit down
and have some sort of consultation and some sort of opportunity
to negotiate this issue. One of the suits was dropped, I think,
because the feeling was that, you know, rather than take this
to court, it made more sense to try to sit down and work this
out.
And this is what is done throughout the country with land
claims. We just had the situation in New York State, where
there were a number of land claims, and they sat down with the
Governor and the state representatives, and they worked out
their differences and came to a settlement that, from what I
understand, the legislature, the Governor and everyone--I mean,
I am sure that everyone is not always happy with anything, but
it seemed to me that most of the people who were involved were
very happy with that result.
And I think the same thing can happen here. I think it is
very premature for us to try to move legislation that would
extinguish the claims when the precedent in Indian Country is
the opposite, which is to sit down and consult. From what I
understand, there has been no consultation or very little
consultation if any with the tribes on this issue, and I just
wanted to ask Jacqueline Johnson: my understanding from what
you said in your testimony is that you have actually talked
about an alternative solution that would have some structure in
terms of arbitration or some kind of consultation.
Did you want to maybe elaborate that on a little more? It
sounded eminently reasonable to me, and I just wanted you to,
you know, give a little more detail if there is some detail.
Ms. Johnson. Well, basically, what we are trying to say is
following pretty much on what you just said is that there needs
to be an opportunity for the tribes to build the record. You
actually heard comments and questions given to both of these
tribal members, representatives here today, and help build
records. And on both sides, there are records on both sides
that people need to sit down and to discuss those, to
negotiate.
We saw the cases with the Oneidas of Wisconsin, the
Stockridge Muncies, the other tribes who have been going
through these various land claims processes and negotiating
them out with the states and trying not to harm innocent
landowners as well as innocent tribal members who had their
lands taken away from them to work those things through.
Sometimes, you know, the lawsuits continue, and the court
helps resolve those, but in most cases, they are done through a
negotiated process, and I would just recommend that that
negotiated process continue.
Mr. Pallone. And to me, that makes sense. One thing here
today, and I think my colleague Mr. Kildee made the point, what
we are saying with this legislation is that we do not want to
do that. We just want to extinguish the claims, and I think it
is an affront to Indian sovereignty, and it is an affront to
our obligations under the Constitution that, you know, treaties
have to be upheld, and we should not just get in there and
overrule everything with this legislation.
I think it is a huge mistake, and I would hope that we
would not move the bill.
Thank you, Mr. Chairman.
Mr. Hayworth. I thank the gentleman from New Jersey.
The Chair just feels constrained to follow up on this whole
notion that Ms. Johnson raises in her testimony and my
colleague from New Jersey brought up now. In terms of land
claims and a sufficient record being developed, in part what we
are doing here today with the hearing on the legislation--Ms.
Johnson, when do you consider the record fully developed, and
how long do you believe Congress should allow the process to go
on before there is Congressional involvement vis-a-vis
legislation?
Ms. Johnson. I do not know that you can put a timeframe on
that, and like I said in my testimony, every case is
individual. And every case has different circumstances. Even
the three tribes that are mentioned here today, they all have
totally different circumstances. And so, you know, the record
develops as you come through negotiations. I know that the
Department of the Interior--I believe that they are also
wishing that we would allow the process to continue.
You, Mr. Chairman, as much as anybody else in this room,
know the frustrations we have dealt with with dealing with the
Department of the Interior on a number of other issues. And at
some point, you know, when we feel like we have no other
recourse, we always turn to you and to the Members of Congress
to assist us through that. I just think it is a little
premature at this point in this particular case. And I am very
concerned about the precedent it may set for other states where
these issues have not been fully discussed or developed.
Mr. Hayworth. Thank you, ma'am, for your amplification on
that particular issue.
The gentleman from Oklahoma?
Mr. Carson. Thank you, Mr. Chairman.
Let me say I have a great personal interest in this matter,
as Mr. Angelo and the Ottawa Tribe are my constituents in
northeast Oklahoma, and my father was superintendent of the
Potawatomi Tribe reservation as well as the Kickapoo and Iowa
and Sackenfox reservations in the 1970's, so I know that area
well.
I do think it is important when we try to adjudicate these
very complicated land disputes with a history that goes back
now well over a century that involves archival evidence that is
sometimes very difficult to retrieve and to assimilate, that we
take these matters very deliberately and work as slowly as
possible.
Now, I understand the concerns of Mr. Johnson, Mr. Shimkus
and Mr. Phelps in saying that for the current landowners that
we do not want to hold them responsible for what they have
called the sins of the past. We need to be very careful that
we, ourselves, do not commit the sins of the past in
extinguishing land title for tribes that exists validly, as Mr.
Kildee points out, recognized in the Constitution and as a
tremendous asset to these tribes, tribes that, many times, find
themselves bereft of those kinds of efforts.
And so, let me thank the panelists for being here. Let me
state my opposition to this bill as it currently is and urge
everyone on the Committee who is concerned about these issues
to go very slowly in trying to deal with these matters and let
the tribes develop the kind of archival record it takes to
properly ascertain who has title to these lands.
Mr. Hayworth. I thank the gentleman from Oklahoma.
Any questions from the majority side or comments at this
point?
If not, happy to turn back to the minority and entertain
any other comments or questions for this panel.
Hearing none, we thank the witnesses for their testimony
and subsequent amplification of the testimony, and we look
forward again to any written testimony they may want to offer
in the days ahead to offer further quantification of their
viewpoint.
Thank you to panel two.H.R. 521
Mr. Hayworth. Now, the Committee will entertain panel
three, and this panel will deal with H.R. 521, the legislation
sponsored by our friend from Guam, Mr. Underwood. And we
welcome to the witness table Chris Kearney, the Deputy
Assistant Secretary for Policy and International Affairs, from
the Office of Policy Management and Budget in the Department of
the Interior; the Honorable F. Philip Carbullido, the Acting
Chief Justice of the Guam Supreme Court, obviously from the
Supreme Court of Guam; and the Honorable Alberto C. Lamorena
III, Presiding Judge of the Superior Court of Guam.
Welcome all to the table, and we thank our witnesses from
earlier, and as we have a little rearranging and people meeting
their schedules, we will allow for the traffic of both
witnesses and those in the public area to subside, and we will
allow you to get a glass of water to deal with dehydration.
Those of us from Arizona have more than a casual interest in
water. So if you would like to get a drink of water, we are
happy to have that.
And first, we will hear from Deputy Assistant Director
Kearney. Welcome, sir, and we look forward to your testimony.
STATEMENT OF CHRIS KEARNEY, DEPUTY ASSISTANT SECRETARY, POLICY
AND INTERNATIONAL AFFAIRS, OFFICE OF POLICY MANAGEMENT AND
BUDGET, U.S. DEPARTMENT OF THE INTERIOR
Mr. Kearney. Thank you, Mr. Chairman, and good morning,
members of the Committee.
It is a pleasure for me to be here to appear before you
today to discuss the administration's views on H.R. 521, a bill
to amend the Organic Act of Guam to clarify Guam's local
judicial structure. H.R. 521 would establish the local court
system of Guam as a third coequal and unified branch of
government alongside the legislative and executive branches of
the Government of Guam.
Enacted by Congress, the Organic Act of Guam is the
equivalent of a constitution in one of the 50 states.
Amendments over time have continually added to self-government
in the territory. The Organic Act established a Legislature and
was later amended to change the executive from an appointed
Governor to an elected Governor and in 1984 to authorize the
Legislature to establish a local appeals court.
In 1994, under the authority granted in the Organic Act,
the Legislature of Guam established a Supreme Court. But 2
years later, the Legislature removed from the Supreme Court its
administrative authority over the Supreme Court of Guam, and
since then, Guam has had a bifurcated local court system at a
time when virtually all states have unified court systems.
It is argued that only--I am sorry. H.R. 521 would amend
the judicial provisions of the Organic Act of Guam to
specifically name the Supreme Court as Guam's appellate court
and outline the powers of the Supreme Court, including full
administrative authority for the Supreme Court over the local
court system. It is argued that only an act of Congress can
bring unity and dignity to Guam's local courts. Proponents of
H.R. 521 suggest that if the Legislature retains control, the
court system is subject to influence by the Legislature. Only
by placing local court authority in Guam's ``Constitution,''
that is, the Organic Act of Guam, can the judiciary of Guam be
a coequal and independent branch of the government.
Opponents suggest that the system is working fine and that
an administrative function divided between the Supreme Court
and the Superior Court is healthy for the judicial system.
The structure of Guam's local judiciary is largely a self-
government issue for Guam. As such, opinion from Guam should be
given the greatest consideration as long as issues of
overriding Federal interest are not involved. In 1997, the
executive branch examined H.R. 2370, an earlier version of the
bill under consideration today. A number of suggestions were
made at the time for improving the bill and harmonizing it with
the Federal court system. H.R. 521 includes the suggested
modifications in language. The administration, therefore, has
no objection to the enactment of H.R. 521 in its present form.
That concludes my statement. I would be happy to answer any
questions.
[The prepared statement of Mr. Kearney follows:]
Statement of Christopher Kearney, Deputy Assistant Secretary for Policy
and International Affairs, U.S. Department of the Interior
Mr. Chairman and members of the Committee, it is a pleasure for me
to appear before you today to discuss the Administration's views on
H.R. 521--a bill to amend the Organic Act of Guam to clarify Guam's
local judicial structure. H.R. 521 would establish the local court
system of Guam as a third co-equal, and unified branch of government,
alongside the legislative and executive branches of the Government of
Guam.
Enacted by the Congress, the Organic Act of Guam is similar to a
constitution in any of the fifty states. Amendments over time have
continually added to self-government in the territory. The Organic Act
established a legislature. It was later amended to change the executive
from an appointed Governor to an elected Governor, and in 1984, to
authorize the Legislature to establish a local appeals court. In 1994,
under the authority granted in the Organic Act, the Legislature of Guam
established the Supreme Court of Guam. But, two years later, the
Legislature removed from the Supreme Court its administrative authority
over the Superior Court of Guam. Since then Guam has a bifurcated local
court system at a time when virtually all states have unified court
systems.
H.R. 521 would amend the judicial provisions of the Organic Act of
Guam to specifically name the Supreme Court of Guam as Guam's appellate
court, and outline the powers of the Supreme Court, including full
administrative authority for the Supreme court over the local court
system.
It is argued that only an act of Congress can bring unity and
dignity to Guam's local courts. Proponents of H.R. 521 suggest that if
the Legislature retains control, the court system is subject to
influence by the Legislature. Only by placing local court authority in
Guam's ``constitution''--the Organic Act of Guam--can the judiciary of
Guam be a co-equal and independent branch of the Government of Guam.
Opponents suggest that the system is working fine, and that an
administrative function divided between the Supreme Court and Superior
Court is healthy for judicial system.
The structure of Guam's local judiciary is largely a self-
government issue for Guam. As such, opinion from Guam should be given
the greatest consideration, as long as issues of overriding Federal
interest are not involved. In 1997, the Executive branch examined H.R.
2370, an earlier version of the bill under consideration today. A
number of suggestions were made for improving the bill and harmonizing
it with the Federal court system. H.R. 521 includes the suggested
modifications in language. The Administration, therefore, has no
objection to the enactment of H.R. 521 in its present form.
______
Mr. Hayworth. Thank you very much, sir.
And now, we turn to Chief Justice Carbullido. Mr. Acting
Chief Justice, welcome. We appreciate your testimony.
STATEMENT OF THE HON. F. PHILIP CARBULLIDO, ACTING CHIEF
JUSTICE OF THE GUAM SUPREME COURT
Justice Carbullido. Thank you, Mr. Chairman and members of
the Committee. For the record, my name is Philip Carbullido,
and I am the acting chief justice of the Guam Supreme Court. It
is an honor to speak before this distinguished Committee on a
bill that will have a profound impact on the advancement of the
Territory of Guam.
H.R. 521 was conceived because of the infirmities of the
current language of the Organic Act. The point I want to make
today is that the existing framework in which our local
government is structured is deficient. The Organic Act of Guam
functions as Guam's constitution. While the Organic Act
establishes the executive and legislative branches of the
Government of Guam, the act does not establish a judicial
branch. Instead, in 1984, the U.S. Congress passed the Omnibus
Territories Act, amending the Organic Act and giving the Guam
Legislature the authority to create the courts of Guam,
including an appellate court.
Under this language, the Guam Supreme Court's existence and
the scope of the court's powers has been subject to and remains
subject to frequent legislative manipulation. Because of the
current language of the Organic Act, the existence and
organization of Guam's judicial branch is plagued by lingering
uncertainty. Nowhere else in this nation does this occur.
The present situation is such that it has fostered a
peculiar and unprecedented system wherein our island's judicial
branch is marked not by independence but rather by political
influence. It is this condition that has necessitated the
introduction of H.R. 521. The measure would firmly establish
within the Organic Act Guam's judicial branch as a coequal
independent branch alongside the executive and legislative
branches.
Senator Mark Forbes, the Republican majority leader of the
26th Guam Legislature and Chairman of the Committee on Rules
stated in his written testimony on H.R. 521 that the original
language in H.R. 521 that establishes the Supreme Court of Guam
within the Organic Act is logical. To avoid permanently placing
Guam's judiciary clearly among the three branches of the
Government of Guam is an error.
I am aware that the bill as currently drafted has been
criticized as a Congressional attempt to legislate on a
uniquely local issue. These criticisms likely arise from the
portions of H.R. 521 which comprehensively delineate the
jurisdiction of the Supreme Court and inferior courts as well
as the powers of the Chief Justice. We have reviewed the
criticisms and recognize the concerns voiced by opponents of
H.R. 521. We now propose changes to the bill which address
these concerns.
The proposed changes to H.R. 521 both preserve the intent
of the original bill H.R. 521 in creating an independent
judiciary in the Territory of Guam with the Supreme Court of
Guam as the administrative head while reserving powers for the
local Legislature to modify administrative rules promulgated by
the court. I have included a more detailed discussion of the
new sections of the proposed bill in my written testimony
submitted to this Committee.
I must also mention at this point that some individuals
have expressed concern that the recent Ninth Circuit court
opinion in the case of Pangelinan v. Gutierrez has negated the
need for H.R. 521. This is clearly a misconception, and I
clarify the issue in my written testimony. The creation of the
judicial branch in the Organic Act is a measure that has been
vigorously endorsed by Guam's legal community and the public at
large and on a national level by the Conference of Chief
Justices.
This avid support of a constitutionally established
independent judiciary is not without precedent and is well-
founded in American jurisprudence. The founders of this nation
created a tripartite structure of government which has been
unanimously adopted by the states of the union. The efficacy of
this system of government, both at the Federal and state level,
rests in checks and balances. The judicial branch of our
territory can neither effectively operate as a necessary check
on the other two branches nor properly fulfill its obligation
to interpret the law without a constitutional--or, in this
case, an organic--existence.
Under the current law, Guam's judicial branch has been
created by local legislation and can just as easily be
eviscerated by local legislation. This alarming reality is
evidenced by the comment of the current Chairman of the
Judiciary Committee of the Guam Legislature, who said, and I
quote, some members of the legal community may be apprehensive
over the fact that the Legislature has the authority to
determine the court's future. It has been vested with the
authority to create as well as abolish the Guam Supreme Court.
I assure everyone concerned that there will be no repeal of the
law creating the Guam Supreme Court.
That a local legislature has, in the same breadth,
acknowledged the power of one branch of government to
completely abolish another branch and pledged that this would
not happen is far from assuring. The fact that a member of the
Guam Legislature can make this statement is, to say the least,
chilling. The substance of this statement patently offends the
fundamental principles of a tripartite form of government. The
ability of a local senator to make this statement is testament
to the inadequate governmental structure currently set forth in
the Organic Act.
In the same vein as the founders, we advocate an amendment
to what is essentially our constitution to finally and
permanently provide for an independent and coequal judicial
branch.
Thank you, Mr. Chairman and members of the Committee. It
has been a privilege to appear before you. We herein submit
with my testimony the proposed amendments to H.R. 521 for your
consideration.
Thank you.
[The prepared statement of Justice Carbullido follows:]
Statement of The Honorable F. Philip Carbullido, Acting Chief Justice,
Supreme Court of Guam
Thank you Mr. Chairman. For the record, my name is Philip
Carbullido, and I am the Acting Chief Justice of the Guam Supreme
Court. It is an honor to speak before this distinguished Committee on a
Bill that will have a profound impact on the advancement of the
Territory of Guam.
H.R. 521 was conceived because of the infirmities of the current
language of the Organic Act. The point I want to make today is that the
existing framework in which our local government is structured is
deficient.
The Organic Act of Guam functions as Guam's constitution. While the
Organic Act establishes the executive and legislative branches of the
Government of Guam, the Act does not establish a judicial branch.
Instead, in 1984, the United States Congress passed the Omnibus
Territories Act, amending the Organic Act and giving the Guam
legislature the authority to create the courts of Guam, including an
appellate court. Under this language, the Guam Supreme Court's
existence and the scope of the court's powers has been subject to, and
remains subject to, frequent legislative manipulation. Because of the
current language of the Organic Act, the existence and organization of
Guam's judicial branch is plagued by lingering uncertainty. Nowhere
else in this nation does this occur. The present situation is such that
it has fostered a peculiar and unprecedented system wherein our
island's judicial branch is marked not by independence, but rather, by
political influence.
It is this condition that has necessitated the introduction of H.R.
521. The measure would firmly establish, within the Organic Act, Guam's
judicial branch as a co-equal, independent branch alongside the
executive and legislative branches.
I am aware that the Bill as currently drafted has been criticized
as a Congressional attempt to legislate on a uniquely local issue.
These criticisms likely arise from the portions of H.R. 521 which
comprehensively delineate the jurisdiction of the Supreme Court and
inferior courts, as well as the powers of the Chief Justice. We have
reviewed the criticisms and recognize the concerns voiced by opponents
of H.R. 521. We now propose changes to the Bill, which address these
concerns. The proposed changes to H.R. 521 both preserve the intent of
original Bill 521 in creating an independent judiciary in the territory
of Guam, with the Supreme Court of Guam as the administrative head,
while reserving powers for the local legislature to 2 modify
administrative rules promulgated by the Court. I have included a more
detailed discussion of the new sections of the proposed Bill in my
written testimony submitted to this Committee.
In addition, Congressman Underwood, a Democrat, has been criticized
as being political in introducing this Bill. Mr. David J. Sablan, the
Chairman of the Republican Party of Guam in a letter to Senator Hansen
stated, ``Certain critics have labeled the Bill as ``political.'' We do
not think so. We simply believe it to be right. There is nothing
political about wanting an independent judiciary.... The support for
H.R. 521 transcends party lines. We believe in an independent judiciary
and therefore support the passage of H.R. 521. This Bill's intent is
correct and right.''
I must also mention, at this point, that some individuals have
expressed concern that the recent Ninth Circuit opinion in the case of
Pangelinan v. Gutierrez has negated the need for H.R. 521. This is
clearly a misconception; and I clarify the issue in my written
testimony.
The creation of the judicial branch in the Organic Act is a measure
that has been vigorously endorsed by Guam's legal community and the
public-at-large, and on a national level, by the Conference of Chief
Justices. (A copy of CCJ Resolution 17 is attached.) This avid support
of a ``constitutionally'' established independent judiciary is not
without precedent and is well-founded in American jurisprudence.
The founders of this nation crafted a tri-partite structure of
government, which has been unanimously adopted by the states of the
union. The efficacy of this system of government, both on the Federal
and state level, rests in checks and balances. The judicial branch of
our Territory can neither effectively operate as a necessary check on
the other two branches, nor properly fulfill its obligation to
interpret the law, without a ``constitutional,'' or in this case, an
``Organic'' existence.
Under the current law, Guam's judicial branch has been created by
local legislation, and can just as easily be eviscerated by local
legislation. This alarming reality is evidenced by the comment of the
current Chairman of the Judiciary Committee of the Guam Legislature,
who said, and I quote, ``some members of the legal community ... may be
apprehensive over the fact that the Legislature has the authority to
determine the court's future--it has been vested with the authority to
create as well as abolish the Guam Supreme Court ... I assure everyone
concerned that there will be no repeal of the law creating the Guam
Supreme Court.''
That a local legislator has, in the same breath, acknowledged the
power of one branch of Government to completely abolish another branch,
and pledged that this would not happen, is far from assuring. The act
that a member of the Guam legislature can make this statement is, to
say the least, chilling. The substance of the statement patently
offends the fundamental principles of a tri-partite form of government.
The ability of a local senator to make this statement is testament to
the inadequate governmental structure currently set forth in the
Organic Act.
In the same vein as the founders, we advocate an amendment to what
is, essentially, our Constitution, to finally and permanently provide
for an independent and co-equal judicial branch.
Thank you Mr. Chairman. It has been a privilege to speak before
you. We herein submit with my testimony the proposed amendments to H.R.
521 for your consideration.
ATTACHMENT 1- PROPOSED AMENDED H.R. 521
to amend the organic act of guam for the purposes of clarifying the
local judicial structure of guam.
in the house of representatives
february 7, 2001
Mr. UNDERWOOD introduced the following bill; which was referred to
the Committee on Resources
a bill
To confirm the right of the People of Guam to establish an independent
judiciary
WHEREAS, in 1950 Congress provided a civil government and confirmed the
right of the People of Guam to an independent legislature in
the Organic Act of Guam;
WHEREAS, in 1968 Congress confirmed the right of the People of Guam to
an independent executive branch in the Guam Elective Governor
Act; and
WHEREAS, Congress desires to confirm the right of the People of Guam to
an independent judiciary--
NOW THEREFORE BE IT ENACTED by the Senate and House of Representatives
of the United States of America in Congress assembled.
SECTION 1. TITLE.
This Act may be cited as the Guam Independent Judiciary Enabling
Act.
SECTION 2. JUDICIAL STRUCTURE OF GUAM.
(a) JUDICIAL AUTHORITY; COURTS- Section 22 (a) of the Organic Act
of Guam (48 U.S.C. 1424(a)) is amended to read as follows:
'(a) (1) The judicial authority of Guam shall be vested in a court
established by Congress designated as the 'District Court of Guam, and
a local judicial branch of Guam which shall constitute a unified
judicial system and include an appellate court designated as the
'Supreme Court of Guam' which shall be the highest local court of Guam
with final appellate jurisdiction, a trial court designated as the
'Superior Court of Guam', and such other lower local courts as may have
been or shall hereafter be established by the laws of Guam.
'(2) The Supreme Court of Guam may, by rules of such court, create
divisions of the Superior Court of Guam and other local courts of Guam.
'(3) The courts of record for Guam shall be the District Court of
Guam, the Supreme Court of Guam, the Superior Court of Guam (except the
Traffic and Small Claims divisions of the Superior Court of Guam) and
any other local courts or divisions of local courts that the Supreme
Court of Guam shall designate.'
'(4) The Supreme Court shall make and promulgate rules governing
the administration of all local courts. It shall make and promulgate
rules governing practice and procedure in civil and criminal cases in
all local courts. These rules may be changed by the Legislature by two-
thirds vote of the members.
'(5) The Legislature shall provide for the compensation of all
justices and judges. The salaries of justices and judges shall not be
diminished during their terms of office, unless by general law applying
to all salaried officers of Guam.
(c) TECHNICAL AMENDMENTS- (1) Section 22B of the Organic Act of
Guam (48 U.S.C. 1424-2) is amended----
(A) by inserting 'which is known as the Supreme Court of Guam,'
after ' appellate court authorized by section 22A(a) of this Act,'; and
(B) by striking 'Natural Resources' and inserting 'Resources'.
(2) Section 22C(a) of the Organic Act of Guam (48 U.S.C. 1424-3(a))
is amended by inserting 'which is known as the Supreme Court of Guam,'
after 'appellate court authorized by section 22A(a) of this Act,'.
(3) Section 22C(d) of the Organic Act of Guam (48 U.S.C. 1424-3(d))
is amended----
(A) by inserting ', which is known as the Supreme Court of Guam,'
after ' appellate court provided for in section 22A(a) of this Act';
and
(B) by striking 'taken to the appellate court' and inserting 'taken
to such appellate court'.
SECTION 3. RESERVATION OF RIGHTS TO THE PEOPLE OF GUAM.
The provisions of this Act may be altered or modified by the People
of Guam by a duly adopted Constitution and by amendments thereto duly
adopted from time to time.
______
[Responses to questions submitted for the record by Mr.
Carbullido follow:]
supreme court of guam
suite 300 guam judicial center, 120 west o'brien drive, hagatna,
guam 96910-5174
telephone: (671) 475-3162 facsimile: (671) 475-3140
email:[email protected]; website:www.justice.gov.gu/supreme
chamber of the honorable f. philip carbullido
acting chief justice
direct line (671) 475-3413
direct email: [email protected]
May 22, 2002
Hon. James V. Hansen, Chairman
Committee on Resources
United States House of Representatives
Washington, D.C. 20515
Re: H.R. 521
Dear Chairman Hansen:
This letter is in response to your letter dated May 14, 2002
wherein you propounded four additional questions in reference to H.R.
521.
Question No. 1:
In your testimony you elude to the fact that it is necessary to
create an independent judiciary. Are you asserting that the disputes
going on locally in Guam between and within the three branches of the
local government, regarding the administration of courts, is preventing
the Supreme court from ruling in legal cases according to its
determination of what the law is in those or other cases?
Answer:
The dispute between and within the three branches of the local
government, regarding the administration of the courts, has not
compromised the Guam Supreme Court's opinion-writing and law-declaring
duties. We have reviewed every case that has come before us objectively
and in accordance with established legal principles.
However, the current system, wherein the legislature retains the
power to dictate the authority of the Guam Supreme Court, has, in at
least once instance, prevented the Supreme Court from reaching the
merits of a case. On June 12, 1997, the Guam Legislature, by
resolution, filed a request, (Supreme Court Case Number CRQ97-001),
asking that the Court render a declaratory judgment on whether a
measure ratified by the voters which reduced the number of senators
from twenty-one to fifteen violated the Organic Act. The request was
filed in the Supreme Court of Guam pursuant to a local statute, Title 7
Guam Code Annotated Sec. 4104, which gave the Guam Supreme Court
jurisdiction over questions, submitted by either the Governor or
Legislature, asking for an interpretation of any law which affects the
powers, duties and operations of the executive or legislative branches.
Pursuant to internal procedures, on July 15, 1997, the Chief Justice
certified the issues as being appropriate for consideration under
section 4104.
On September 12, 1997, the Legislature filed a motion to withdraw
the request. The court scheduled a hearing on the motion to withdraw.
On September 15, 1997, four days before the hearing on the motion, the
Legislature, without public hearing, inserted a rider to a bill
unrelated to the judicial branch, which repealed and re-enacted 7 GCA
Sec. 4104, to add a provision which removed the Supreme Court's
jurisdiction in an action filed under section 4104 if the requesting
party withdraws the request before an opinion is issued. On September
17, 1997, the Governor signed the Bill into law. Pursuant to the
amended section 4104, on November 5, 1997, the Supreme Court dismissed
the Legislature's request for declaratory judgment.
Therefore, while the Supreme Court has made all decisions in the
cases before us in a fair and impartial manner, and in accordance with
the law, the above-described case illustrates that the Guam Legislature
has used its authority over the structure and power of the judicial
branch to shape the law in a manner that has influence over the outcome
of a case filed in the Supreme Court.
Question No. 2:
Constitutional courts are defined by constitutions. Statutory
courts are defined by statutes. The courts of Guam are either going to
under a local statute or a Federal statute. How then does it promote
judicial independence for the courts of Guam to be created by a
Congress where the U.S. citizens of Guam do not have voting
representation? Would it not be better for the local court system to be
established by the local legislature where citizens do have voting
representation?
Answer:
Guam's constitution is a Federal statute. Guam has not adopted its
own constitution although it has had the authority to do so for the
past twenty-five years. Guam's constitution, the Organic Act, was
flawed from the start because it did not contain the foundation for a
tri-partite system of local government. The only court specifically
created by the Organic Act is the district court of Guam, which does
not have jurisdiction over issues of local law. Under the Organic Act,
the Legislature has plenary authority to establish local courts. Thus,
the situation here is that one branch of government has unfettered
control over another. This is the antithesis of judicial independence.
H.R. 521 corrects the Organic Act flaw by properly creating a tri-
partite system of local government, where each branch is independent
and co-equal.
In the absence of a constitution, all branches of the government of
Guam are statutorily created. The executive and legislative branches
are established by Federal statute, the Organic Act, and the local
judiciary is established by local statute. To even the playing field
and to create three independent branches of government, the local court
system must be created by Federal statute. This is similar to the
Federal model where one supreme instrument, the United States
Constitution, creates all three branches.
The alternative, to await the enactment of a local constitution, is
unacceptable given the uncertainty that exists between the branches of
government and inherent political disputes. It is necessary that three
independent branches be constitutionally created now. H.R. 521 properly
creates a tri-partite system of local government in our present
constitution, the Organic Act.
We must emphasize that judicial independence is gained from the
inability of the other branches to manipulate the internal workings of
the judicial branch. This is not to suggest that the judiciary should
be completely immune from appropriate legislation. However, it should
be at least as difficult for the Guam Legislature to manipulate the
judiciary as it is for the Rhode Island Legislature to manipulate the
Rhode Island judicial branch, or for the United States Congress to
amend laws affecting the authority of the United States Supreme Court.
As the case shown in the answer to question number one illustrates,
presently all it takes is eight votes by the Legislature and attachment
of a rider to an important bill to effectuate a change in the authority
and the jurisdiction of the Guam Supreme Court.
We further point out that although Guam does not have a voting
representative in Congress, our interests are represented by Delegate
Robert Underwood. Delegate Underwood is a locally elected official. We
are confident in his ability to adequately protect the interests of the
people of Guam.
Question No. 3:
Are you in favor of enacting a constitution for Guam?
Answer:
While a constitution would be ideal, it may not be appropriate for
the judiciary to take a specific position on this issue. It cannot be
overlooked, however, that Guam has had twenty-five years to enact such
an instrument, but has yet to do so. Whatever the founding instrument
may be, whether a Federal statute, a commonwealth act, or a
constitution, it should create a tri-partite system of government,
wherein each branch is co-equal and independent to assure a complete
system of checks and balances. Given the current political reality on
Guam, the enactment of a constitution will not occur soon and the
establishment of a tri-partite system should not be delayed as a
result.
Question No. 4:
In the Federal system, the U.S. Congress statutorily establishes
the Federal courts (district courts, appellate courts, patent courts,
tax courts, etc...). If we take the model proposed in H.R. 521 (Section
1(a)) to the Federal level, Chief Justice Rehnquist, rather than
Congress would have the power to unilaterally determine the structure
and division on the court system. Why should we adopt a model for Guam
that we would never adopt at the Federal level?
Answer:
Article III Section 1 of the United States Constitution provides
that the judicial power of the United States is vested in one Supreme
Court and in such inferior courts as the Congress may establish. The
goal of H.R. 521 is to parallel the local system to the Federal model,
wherein the judicial power of Guam should be vested in the Supreme
Court of Guam.
The current language of H.R. 521 which deviates from the Federal
constitutional model mirrors Title 7 Guam Code Annotated Sec. 2101,
which provides ``[t]he Supreme Court of Guam may, by rules of court,
create such divisions of the Supreme and Superior Courts as may be
desirable....'' This section reflects the Legislature's intent to defer
to the Supreme Court of Guam the authority to determine the structure
and divisions of the local court system. The current language of H.R.
521, which vests in the Supreme Court of Guam the power to create
divisions of the Superior Court of Guam, reflects the power the
Legislature has already conferred to the Supreme Court.
The Legislature's grant of authority to the Supreme Court of Guam
in this regard is not without precedent. The State of Vermont has
similarly vested in its Supreme Court the power to create by judicial
rules geographical and functional divisions within its court system.
Vt. Const. chpt. 2, Sec. 31. We note, though, that the Vermont
Legislature shares this function.
To the extent that the language of H.R. 521 can also be read as
granting the Supreme Court of Guam the power to create other local
courts, it may have been a reaction to the Legislature's stripping of
the court's authority. Admittedly, no other jurisdiction at the Federal
or state level vests within its Supreme Court the power to create
inferior courts. Thus, the amendment to H.R. 521 that I proposed
addresses this matter, deleting this section and simply providing that
the Guam Supreme Court is the highest local court of our territory with
the Chief Justice at its head under a unified judiciary. This is
similar to the court structures of the other fifty states. We only wish
to be similarly treated.
If the Committee has any further questions, please do not hesitate
to contact me.
Sincerely,
F. PHILIP CARBULLIDO
Chief Justice, Acting
______
Mr. Hayworth. Thank you, Mr. Acting Chief Justice. We
appreciate your testimony and what you provided in writing. It
goes without saying, but I will repeat: everyone's testimony
will be made part of the complete record.
Now, we turn to Presiding Judge Lamorena. Sir, welcome. We
look forward to your testimony.
STATEMENT OF THE HON. ALBERTO C. LAMORENA III, PRESIDING JUDGE,
SUPERIOR COURT OF GUAM
Judge Lamorena. Thank you very much, Mr. Chairman, members
of the Committee. I would like to thank the Committee for
inviting me to testify on H.R. 521.
The Organic Act of Guam is predicated on the principle that
the United States citizens of Guam should be self-governing in
the administration of their local civil affairs to the greatest
extent possible, consistent with the current political status
of Guam as an unincorporated territory.
Congress has shown restraint and declined to intervene in
local affairs, even when requested by parties to the local
debate and deliberative process unhappy with the results or
outcome of the internal mechanisms of self-government under the
Organic Act. The Organic Act provisions codified at 48 USC
1424, et al., carefully prescribes the relationship between the
Federal and local courts. In doing so, Congress clearly and
unambiguously and explicitly identified what matters of
judicial administration involve Federal interest and what
matters of judicial administration were to be locally
determined and regulated. Thus, Section 1424-1 states clearly
that the organization and operation of the local courts shall
be as prescribed by the laws of Guam.
Section 1424-2 addresses in exceedingly precise and exact
terms the manner in which Federal interests would be preserved
and protected during the transitional relations between the
local and Federal courts necessitated by the establishment of
the appellate court in Guam. In doing so, Section 1424-2
carefully preserves local authority under the local courts,
respecting what can be referred to as a bright line between
Federal and local law concerning operation and administration
of Federal and local courts respectively.
Under any reasonable and rational standard, this represents
a successful statutory policy to ensure that the exercise by
Guam of its authority to establish the Guam Supreme Court will
be managed properly to continue good, orderly relations between
the local and Federal courts. Instead of a reasonable standard,
H.R. 521 implicitly declares the Congressional policy embodied
in the Organic Act, including Section 1424-2, a failure.
H.R. 521 is an attempt to enlarge and expand the scope and
extent of Federal interest and the exercise of Federal powers
to encompass and include matters already determined by Congress
to be local. H.R. 521 proceeds from the false premise that the
Guam Supreme Court should operate in a political vacuum. Under
this bill, on the issue of defining its powers and role in the
lives of the community it was created to serve, the Supreme
Court will only answer to Congress, in which the United States
citizens of Guam have no voting representation.
Even though the Guam Supreme Court is a local court created
under local law, H.R. 521 proposes to isolate and insulate the
Guam Supreme Court from the political and legal processes of
the Organic Act, the very instrumentality through which the
will of the citizenry and the consent of the government are
redeemed as to all local institutions and civil affairs. If the
manner in which local law governs and regulates the
administration and operation of the local courts is so
defective, so deficient and so disruptive to good order as the
supporters of H.R. 521 claim, then how is it that the Ninth
Circuit has found that the Supreme Court is functioning in a
manner which fully vindicates Federal interest as defined by
Congress in Section 1424-2?
In Section 1424-1, Congress vested in the United States
citizens of Guam and their elected representatives the subject
relations between and among the local courts. That is good
policy today, just as it was when this Committee declined to
approve H.R. 2370 after the hearing conducted on October 29,
1997. My previous testimony emphasizes the irony of
Congressional authorization of a local appellate court became
the pretext for Congress to take back the authority over local
court organization it granted to Guam under the Organic Act.
What have we gained if we are empowered to establish a local
appellate court only to be disempowered as to the operation and
administration of the entire local court system itself?
We believe the Superior Court is best able to determine
what is necessary and proper in order to carry out the court's
responsibility. The Superior Court should be responsible for
hiring, promoting, assigning and managing its own personnel as
well as preparing its own budget requests. That is why the
great majority of judges of the Superior Court of Guam and the
Guam Legislature support the judicial council model. It creates
a check and balance between the trial court, with a caseload
400 times larger than the appeals court, and precludes control
of the trial courts by a Supreme Court that does not understand
or have to live with resource management challenges of the
trial court.
The U.S. Supreme Court has recognized that the power to
establish internal structure of local courts is at the heart of
self-government. In the case of Calder v. Bull, it was noticed
that establishing courts of justice, the appointment of judges
and the making of regulations for the administration of justice
within each state according to its laws on all subjects not
entrusted to the Federal Government appears to me to be
peculiarly and exclusive the province and duty of the state
legislature.
For these reasons, we oppose H.R. 521 as an attempt to
Federalize the local courts of Guam, which would be a step
backwards from self-government and self-determination. Again,
thank you for the Committee and Mr. Chairman for allowing me
the opportunity to testify before you today.
[The prepared statement of Judge Lamorena follows:]
Statement of Alberto C. Lamorena, III, Presiding Judge, Superior Court
of Guam, on H.R. 521
The Organic Act of Guam constitutes a fifty-two year old Federal
statutory policy promulgated and sustained by every Congress for the
last five decades. It is predicated on the principle that the U.S.
citizens of Guam should be self-governing in the administration of
their local civil affairs to the greatest extent possible, consistent
with the current political status of Guam as an unincorporated
territory.
Under the Organic Act, Congress has implemented a policy of
democratic institution building, enabling Guam to develop the customs
and capacity for internal self-government. The principal purpose of the
Organic Act has been to promote local responsibility for local affairs,
and to prepare the people of Guam for the time when Guam adopts a local
constitution and addresses the question of its future political status.
Within the framework of the Organic Act, Congress has tended to
legislate on local matters otherwise governed by the Organic Act only
to the extent necessary to bring Guam within national law and policy,
or under extraordinary circumstances. Congress wisely has exercised
sparingly its power to legislate solutions to local problems.
As a general rule Congress has shown prudential restraint and
declined to intervene, even when requested by parties to the local
political debate and deliberative process unhappy with the results or
outcome of the internal mechanisms of self-government under the Organic
Act. Although the U.S. citizens of Guam do not live in a state of the
union and under the protection of the 10th Amendment to the Federal
constitution, the Organic Act and the manner in which Congress has
implemented it are consistent with the principle of reservation of
local power and responsibility over local issues.
This is particularly true with respect to the provisions of the
Organic Act which govern the role of the Federal and local judiciary in
Guam. Subchapter IV of the Organic Act, comprising the provisions
codified at 48 U.S.C. 1424, et seq., is a carefully prescribed scheme
of judicial empowerment which respects the principles of separation of
powers and checks and balances that are the pillars of American
constitutional democracy.
In addition to establishing and defining the jurisdiction of the
Federal court in Guam, these provisions governing the judiciary
prescribe the relationship between the Federal and local courts. In
doing so, Congress clearly, unambiguously and explicitly identified
what matters of judicial administration involved Federal interest, and
what matters of judicial administration were to be locally determined
and regulated.
Thus, Section 1424-1 states clearly that the organization and
operation of the local courts shall be as prescribed by the laws of
Guam. Nevertheless, Section 1424-2 also recognizes the unique
circumstances surrounding the authorization by Congress for
establishment under local law of an appellate court. In this provision
Congress addressed in exceedingly precise and exact terms the manner in
which Federal interests would be preserved and protected during the
transition in relations between the local and Federal courts
necessitated by the establishment of the appellate court in Guam.
Section 1424-2 is an artfully drawn statutory scheme that fully,
adequately and effectively regulates relations between the newly
established Supreme Court of Guam and the Federal courts. As such, it
is dispositive with respect to Federal interest arising from the
establishment of the local appellate court. There is no failure to
anticipate additional Federal policy matters, no errors or omissions in
the legislative language. Rather, Section 1424-2 carefully preserves
local authority over local courts, respecting what can be referred to
as a bright line between Federal and local law concerning operation and
administration of Federal and local courts, respectively.
The best proof of this is the report that the Judicial Council of
the Ninth Circuit submitted to Congress in 2001 as required by Section
1424-2. That report states that the decisions of the Guam Supreme Court
are of comparable quality to decisions of the highest courts of the
states in the Ninth Circuit, and ``'do not compel additional appellate
review beyond that provided for decisions of the state supreme
courts.'' This finding by the Judicial Council pursuant to its mandate
under Section 1424-2 sets the stage for review of decisions of the Guam
Supreme Court by the U.S. Supreme Court.
This means the transition in relations between the local and
Federal courts is going very well, that Federal interests at stake in
the transitional process, as defined by Congress, are being preserved
and protected. Under any reasonable and rational standard, this
represents a successful statutory policy to ensure that the exercise by
Guam of its authority to establish the Guam Supreme Court would be
managed properly to continue good order in relations between the local
and Federal courts.
Instead of a reasonable standard, H.R. 521 implicitly declares the
Congressional policy embodied in Section 1424-2 a failure. It is an
assault on the carefully prescribed scheme determined by Congress for
the very purposes of protecting Federal interests without intruding
upon local authority over local courts. H.R. 521 is an attempt to
enlarge and expand the scope and extent of Federal interests and the
exercise of Federal powers to encompass and include matters already
determined by Congress to be local.
H.R. 521 proceeds form the false premise that the Supreme Court of
Guam should operate in a political vacuum. Under this bill, on the
issue of defining its own powers and role in the lives of the community
it was created to serve, the Supreme Court will answer only to a
Congress in which the U.S. citizens of Guam have no voting
representation.
Even though the Guam Supreme Court is a local court created under
local law, H.R. 521 proposes to isolate and insulate the Guam Supreme
Court from the political and legal processes of the Organic Act, the
very instrumentality through which the will of the citizenry and the
consent of the governed are redeemed as to all local institutions and
civil affairs.
Again, the best proof that this in not warranted, that it is an
invasion of already limited local self-government, is the report of the
Judicial Council of the Ninth Circuit. For if the manner in which local
law governs and regulates the administration and operation of the local
courts is so defective, so deficient and so disruptive to good order as
the supporters of H.R. 521 claim, then how is that the Ninth Circuit
has found that the Supreme Court is functioning in a manner which fully
vindicates Federal interests as defined by Congress in Section 1424-2?
If the independence of the Guam Supreme Court were being usurped,
if the new court were institutionally dysfunctional, then perhaps
Federal interests beyond those identified in Section 1424-2 might need
to be addressed by further legislation. Similarly, if local political
debate, legislative proceedings, as well as executive measures, were
producing a crisis in the administration of justice in Guam for which
there were no local remedy, then perhaps there would be a more
compelling reason for this Committee to be considering this bill.
But the local political process under the Organic Act is the
mechanism Congress created to address the subject matter of H.R. 521.
The fact that it may take time for that democratic process to play
itself out is not a reason for Congress to return Guam to an earlier
stage in the evolution of self-government by imposing a Federal
solution. Indeed, resolving this issue locally, debating its merits, is
part of the process through which Guam is preparing itself for eventual
constitutional self-government and political status resolution.
H.R. 521 is an assault therefore, on democratic self-government and
progress toward political status resolution through self-determination.
The fact that local legislation addressing these local issues has been
swept up in litigation having nothing to do with the subject matter of
H.R. 521 is irrelevant. So the real question before us is whether there
is a legitimate and compelling Federal interest that is being put at
risk because Guam law, not Federal law, governs the operation and
administration of the local courts?
The record before this Committee and Congress on this matter was
complete after the hearing held in 1997 on H.R. 2370. The primary
difference between circumstances at that time and the present is that
the Ninth Circuit has confirmed that the Guam Supreme Court is ahead of
the schedule many observers may have predicted in becoming the fully
functional local high court of Guam that we all have envisioned for so
many years.
The fact that the Ninth Circuit Judicial Council or other national
or state organizations may have opinions about local court
administration is well and good. However, under Section 1424-2,
Congress did not empower the Ninth Circuit Judicial Council or any
other organization to exercise an official responsibility in this
matter. Rather, Congress defined the central role of the Ninth Circuit
Judicial Council to reporting its findings on certain matters
concerning relations between the local and Federal courts.
In contrast, under Section 1424-1, Congress vested in the U.S.
citizens of Guam and their elected representatives the subject of
relations between and among the local courts. That is good policy
today, just as it was when this Committee declined to approve H.R. 2370
after the hearing conducted on October 29, 1997.
In my testimony at that time I pointed out that throughout U.S.
history Congress has left the formation of the internal organizational
structure of local court systems to the local political process in the
states and the territories. These are issues that properly are
determined under state and territorial constitutions or statutes.
My previous testimony also emphasized the irony if Congressional
authorization of a local appellate court became the pretext for
Congress to take back the authority over local court organization it
granted to Guam under the Organic Act. What have we gained if we are
empowered to establish a local appellate court, only to be disempowered
as to the operation and administration of the entire local court system
itself?
The U.S. Supreme Court has recognized that the power to establish
internal structure of local courts is at the heart of local self-
government. In the case of Calder v. Bull (1798), it was noted that
``Establishing of courts of justice, the appointment of judges, and the
making of regulations for the administration of justice, within each
state, according to its laws, on all subjects not entrusted to the
Federal Government, appears to me to be the peculiar and exclusive
province and duty, of the state legislature''.
The fact that Guam is a territory and not a state is not a reason,
or an excuse, to Federalize the administration of local courts. The
mere fact that there is a robust debate in the local political process
over how the local courts should be organized at this juncture in
Guam's history is not an intrusion on judicial functions. Differences
of philosophy among members of the Judicial Council of Guam do not
threaten the independence of the judiciary.
The claim we have heard about the present local law being a threat
to the independence of the judiciary is not a responsible way to frame
this discussion. The law-making process through which the local
community organizes its courts is political, but that does not invade
the adjudicative function. The Guam Legislature has a duty to organize
the local courts as it deems best, and doing so is no more an
interference with the courts than the process for confirming judges.
Indeed, H.R. 521 is the real threat to the independence of the
local judiciary. For in creating the Supreme Court the Guam Legislature
reaffirmed the existence of the Judicial Council, a policy-making body
since 1950. As in many other court jurisdictions in the United States,
the administration of the court system is delegated to the Judicial
Council. On Guam, the Council is made up of Representatives from the
Supreme Court, the Superior Court, the Attorney General, and the
Chairperson of the Legislature's Committee on Judiciary.
Similarly, in California, a judicial council made up of members of
different courts, the state legislature, and the community oversees the
administration of courts, setting policies for a court system that
handles one of the largest caseloads in the nation. Somehow the
independence of that judiciary has not been usurped.
Likewise, in Utah and in the District of Columbia (also under
Congressional control without 10th Amendment protection) a judicial
council model is in place. I am told that in D.C. the trial and appeals
courts are managed separately by the council.
On Guam the justices and judges are appointed by the Governor and
confirmed by the legislature. We believe that the Superior Court is
best able to determine what is necessary and proper in order to carry
out the court's responsibilities. The Superior Court should be
responsible for hiring, promoting, assigning and managing its own
personnel, as well as preparing its own budget requests.
That is why the judges of the Superior Court and the Guam
Legislature support the judicial council model. It creates a check and
balance between the trial court with a caseload 400 times larger than
the appeals court, and precludes control of the trial courts by a
Supreme Court that does not understand or have to live with resource
management challenges of the trial court.
In closing, I would like to return to the first point I made, which
is that the Organic Act did not give control of the local judiciary to
the local government by accident, or unintentionally. U.S. Senate
report 2109 from the Committee on Interior and Insular Affairs
described the charter for local self-government as follows: ``This bill
is reported in the belief that the time has come for the Congress to
pass an organic act permitting the people of Guam to govern themselves.
It establishes democratic local government for the island and
guarantees human freedom under the authority of Congress,...a bill of
rights is provided, a representative local government in the American
tradition, an independent judiciary administering a system of law based
on local needs and traditions, all within the American framework of
fundamental fairness and equality.''
Attached to this testimony is the response of the Superior Court of
Guam regarding the report of the Ninth Circuit Judicial Council on the
Supreme Court of Guam pursuant to 48 U.S.C. 1424-2. This document was
transmitted to the Chairman of this Committee on November 30, 2001.
Thank you for the opportunity to submit this written testimony in
opposition to H.R. 521.
______
superior court of guam
comments and analysis regarding the report of the pacific islands
committee
judical council of the ninth circuit
prepared pursuant to title 48, section 1424-2, united states code
On April 13, 2001, the Presiding Judge of the Superior Court of
Guam was notified by the Chairman of the Pacific Islands Committee of
the Judicial Council of the Ninth Circuit that its Report on the
Supreme Court of Guam has been approved by the Council and transmitted
to Congress in accordance with Title 48, section 1424-2 of the United
States Code.
It is historic that the Council states at page 24 in Part IX that
opinions of the Supreme Court of Guam are of sufficient quality that,
``...they do not compel additional appellate review beyond that
provided for decisions of state supreme courts.'' This recognizes that
decisions by the territorial supreme court are ``comparable'' to
decisions by the highest courts of other states in the Ninth Circuit,
and sets the stage for direct review by the Supreme Court of the United
States from final decisions of the Supreme Court of Guam.
It also is significant that Paragraph 8 in Part IX of the report
calls upon the U.S. Congress to consider early termination of
certiorari review by the Court of Appeals for the Ninth Circuit. This
would accelerate state-like treatment for decisions by the local
supreme court, as a judicial body operating under the laws of Guam.
The findings and conclusions referred to above, based on the
quality of judicial decisions by the local supreme court, are matters
clearly within the cognizance of the Council given its task of
reporting to Congress as charged under Title 48, section 1424-2 of the
United States Code. The Committee also comments on issues relating to
judicial administration of local courts other than the Supreme Court.
Within the framework of applicable Federal law, these matters involving
administration of other local courts clearly remain within the
cognizance of the legislative, executive and judicial branches of the
local territorial government.
Unfortunately, the Council's comments on local court administration
go beyond assessment of the quality of decisions rendered by the
Supreme Court. Instead, the Council has entered into the matter of
local court administration even though it is an issue of local self-
government under the Organic Act, and notwithstanding the deference of
Congress to the local political process on this very matter.
For example, Part V of the Committee's report contains a discussion
of the relationship between the Supreme Court of Guam and the other two
branches of the local government, followed by the discussion in Part VI
regarding relations with the Superior Court of Guam. Understandably
given the actual purpose and scope of the report, these parts of the
Committee's discussion describe some but not all of the legal and
political nuances of the difficult history of efforts to establish a
local supreme court in Guam.
While the discussion of local court administration policy in the
report is insightful, regrettably both the nuances and insights in
earlier parts of the report are lost in the summarization contained in
Paragraph 7 of Part IX. Without duplicating here views previously
presented in the already extensive record regarding local judicial
administration now before the local and Federal courts, as well as the
political branches of the both the local and Federal Governments, there
are a few observations that should be made regarding Paragraph 7, which
appears at page 26 of the Committee's report as follows:
``7. An inordinate amount of time and effort is being expended
on many fronts in attempting to resolve the issue of judicial
administration of the Guam courts. Certainly, the perception,
and perhaps the reality, is that judicial administration in
Guam has become politicized. This situation has not helped the
institution of the Supreme Court grow as it should. The
judiciary should consider examining alternative models with
shared responsibility which can begin on a very limited basis
and grow over a period of time as the judges and justices
desire.''
A cursory reading of the Paragraph 7 might lead anyone not well
informed about the evolution of local and Federal law concerning the
administration of courts in Guam to conclusions that contradict those
actual findings of the Council that are directly relevant to its
mandate under Title 48, section 1424-2. Specifically, Paragraph 7 could
lead many readers to believe the Committee found that local politics
relating to court administration are encumbering the development, in
the words of the Council's mandate from Congress, ``...of institutional
traditions to justify direct review by the Supreme Court of the United
States'' from decisions by the Supreme Court of Guam.
To avoid this misreading of Paragraph 7, it is important to
recognize that the Council has found the Supreme Court of Guam to be
functioning well enough for its rulings to receive state-like treatment
even earlier than Congress has provided in the Federal statute defining
the Council's role and the scope of the report. While it may be true as
stated in the vague terms of Paragraph 7 that the debate over its
relations with other local courts may not have ``helped'' the Supreme
Court of Guam to develop its institutional traditions, that is not what
the Council was asked by Congress to address.
Rather, consistent with its actual mandate from Congress the
Council's report concludes that decisions of the Supreme Court of Guam
are sufficiently ``comparable to opinions of the supreme courts of the
states in Ninth Circuit'' that Congress should consider authorizing
direct review of the territorial court's decisions by the U.S. Supreme
Court.'' The clear result is that the debate over local court
administration policy has not prevented the Supreme Court of Guam from
developing the institutional traditions Congress necessary to its
qualification for state-like treatment in the Federal judiciary
appellate process.
In this context, it would have been more accurate if Paragraph 7
had noted that the Supreme Court is functioning as intended by Congress
notwithstanding the debates which have taken place in the local
legislative process regarding administration of courts in Guam. The
fact that there is a debate over local policy on court administration,
as a matter that Congress has vested in the political branches of the
local government, does not mean that the orderly administration of
justice has been ``politicized'' in a manner or to an extent that it
has interfered with the ability of the Supreme Court of Guam to develop
and define its role in the local legal and political process.
While it may be true that officials in all three branches of the
local government have staked out differing positions on judicial
administration issues, and, as we invariably find when comparable
issues arise at the Federal level, the political parties tend to
support the official policy positions staked out by officials who
represent their party interests in the political arena. That is the
essential nature of self-government and rule of law in an ordered but
also pluralistic political system.
There is no way the Supreme Court of Guam can or should operate in
a political vacuum free of a legitimate policy debate over its
operations in the political branches of the local government. As long
as the independence of the judiciary in performing its judicial duties
and role in the governmental system is not undermined, policy regarding
court administration is a legitimate subject of legislative
deliberations.
The fact that a political process has ensued and resulted in the
current policy under local law with respect to administration of other
local courts, at the same time the Supreme Court of Guam has been
organizing and developing its jurisprudence, is entirely logical and
fitting. This is especially true considering that the Superior Court of
Guam has been functioning effectively for decades while the Federal
political and judicial branches wrangled over the parameters for
establishing the local Supreme Court in the first place.
That long and twisted history of the local high court's
establishment was far more ``politicized'' in Congress, as well as the
local legislature, than the more recent debate over its relationship
with the local Superior Court of Guam. The political debate in at the
Federal level has been the principle challenge faced in instituting the
local Supreme Court, and in its development of institution traditions
required for state-like treatment.
As to how ``politicized'' the local system for court administration
has become, the Committee's report as approved by the Council notes
that the Republican controlled legislature and the Superior Court bench
have been supportive of the development of the institutional traditions
of the Supreme Court of Guam in accordance with applicable Federal and
local laws establishing the court. In addition, at Part VIII, page 22,
the Council's report notes that in the Council's meetings with Superior
Court judges, ``There was unanimous rejection of the idea of
eliminating the Supreme Court.''
In Part V at page 17, the report states that, ``In meeting with the
Senate Judiciary Committee'the Subcommittee observed no indication that
legislation might be introduced to eliminate the Supreme Court. Indeed,
there appears to be general agreement that on issues of law, the
Supreme Court is supreme.'' Thus, as to matters of substance and
primacy of the local supreme court on matters of law, the local system
of self-government is not politicized in a way that is impeding the
court's progress.
Those unhappy with current local law and policy regarding judicial
administration assert that budget execution and information system
management. This is not a compelling reason for local political
brinkmanship over court administration, much less Congressional
intervention.
Unless the Legislature of Guam alters current law, the proposals to
end decades of continuity in court operations in Guam in favor a of new
order probably would better be the subject of deliberations and debate
in the context of Guam's quest for a greater degree of self-government.
For example, at such time as a constitutional convention is convened to
replace the Organic Act structure for self-government with a
commonwealth structure under a locally adopted constitution, the
framers of a new charter for local self-government presumably would
want to address the question of whether the existing court system
should be preserved, modified or reorganized.
Thus, in the absence of local legislature action, the course most
consistent with current Federal policy is to leave the present court
system as it is, until a local constitution is adopted. This is
especially true since Congress authorized state-like self-government
under a locally adopted constitution under the terms of P.L. 95-584 two
decades ago. It is through formulation of a local constitution that the
reconciliation of competing institutional legacies in the structure of
local self-government, including elimination of anomalies in structure
of all three branches of the local government under the Organic Act,
can be accomplished in a democratic and deliberative process.
That is why on June 17, 1998, the Chairman of the House Resources
Committee, one of the two committees of jurisdiction over this matter
to which the Council must submit its report under Title 48, section
1424-2 of the United States Code, made the following statement in
opposition to H.R. 2370, Delegate Underwood's proposed legislation to
preclude local self-determination in Guam of policies for
administration of Guam's local courts:
``...currently there is no compelling Federal reason for
Congress to regulate the administrative operations of Guam's
courts in order to promote Federal interests. Indeed, the
greater Federal interest at this time is to promote local self-
determination and self-government over Guam's internal affairs.
Guam already has the tools of self- determination which augment
the Organic Act and empower the residents of the territory to
reform the local judiciary though adoption of a local
constitution. Under Public Law 95-584, a constitution could
establish the Commonwealth of Guam and enable the United States
citizens of Guam and an internally self-governing body politic
to exercise self-determination in local affairs...'' Letter
from Don Young, Chairman, Committee on Resources, U.S. House of
Representatives, to Mark Charfauros, 24th Guam Legislature.
The argument against employing the P.L. 95-548 procedure for reform
of the local government structure, used over the years by those who
misconceived the process of self-determination for Guam under U.S. and
international law, was that adoption of a local constitution would be
used as an excuse by Congress to defer further self-determination on
the ultimate status of Guam.
In this regard, it should be noted that October 13, 1998, the U.S.
House of Representatives adopted House Resolution 494, expressly
stating that, ``Congress has continued to enact measures to address the
various aspirations of the people of Guam, while considering
legislative approaches to advance self-government without precluding
Guam's further right to self-determination.'' In explaining the
resolution to the House before it was adopted, Resources Committee
Chairman Don Young made the following statement on the floor of the
House that is now part of the legislative history of resolution 494:
``Today, while the people of Guam continue their quest for
increased self-government within the United States community,
they can be assured that the adoption of a constitution as
authorized by Congress will not prejudice or preclude their
right of self-determination and the fundamental right to seek a
change in their political status in the future.''
The significance of the preceding discussion of Guam's local court
structure is plain. The question of local court administration has been
``politicized'' by those who do not accept the outcome of the local
process of self-government and want Congress to intervene to
unilaterally alter the court system under the Organic Act, and thereby
preempt determination of the future court system under a locally
adopted constitution.
This would ignore that fact that Congress has authorized adoption
of a local constitution that would resolve all organic issues that the
existing governing system under the Organic Act has not addressed.
Whether adoption of a local constitution would confirm or reform the
current system of judicial administration would then be determined
democratically.
If Congress is going to do anything more than it has already done
by declining to intervene in this matter under the Organic Act, and by
authorizing a local constitution, it should perhaps continue to sustain
a policy of continuity in local court structure until a locally adopted
constitution becomes the vehicle for a more permanent determination of
this issue.
Thus, the Committee's report, as now adopted by the Council, is
directly on point in concluding, as noted above, that there is no issue
of politicization of the process for development by the Supreme Court
of Guam of institutional traditions to justify state-like treatment of
the court's rulings. That was, after all, the subject on which the
Council was directed by Congress to report, and as the report states
regarding the politicized debate among local political factions in Part
V, at page 18, ``'the division is over administrative control.''
The Committee's report as adopted by the Council then goes on to
discuss the three options for resolving the question of court
administration:
LAllow the judicial administration system established
through the local political process to continue;
LAmend the Organic Act to transfer effective control over
administration of all courts to the Supreme Court of Guam;
LEstablish a consultative process through which the
justices and judges of the Supreme Court of Guam and the Superior Court
agree on arrangements to share administrative functions in order to
create a blended system of judicial administration, integrating
operations where possible and preserving separate administration where
necessary.
While neither illogical nor without precedent as a model for court
administration, the ``third path'' of partial integration faces one
very serious and possibly fatal obstacle. For it contradicts the one
element of Paragraph 7 with which all concerned with this entire matter
must agree:
``An inordinate amount of time and effort is being expended on
many fronts in attempting to resolve the issue of judicial
administration of the Guam courts.''
By every standard of measurement, the cost of the effort to end
continuity and impose a new order through highly politicized
initiatives has been too high. The ability to work toward local
consensus has been undermined by the attempt of those unwilling to
accept the outcome of local self-government to orchestrate the
imposition of a result through high profile political tactics not
normally associated with the issue of judicial administration.
To avoid a situation in which the performance of Guam's courts may
be impaired by expenditure of time and effort addressing proposals for
change of the current system of court administration, perhaps the best
course for now is to operate as effectively as possible under the
existing system. That may have to do until a consultative process can
be established free of controversial proposals and high-pressure
tactics.
______
[A letter and responses to questions submitted for the
record by Mr. Lamorena follow:]
Honorable Congressman James V. Hansen
Chairman
Committee on Resources
Office of native and Insular Affairs
U.S. House of Representatives
Washington, D.C. 20515
Dear Chairman Hansen,
I wish to thank you for the opportunity to testify before the
Committee on Resources on Wednesday May 8, 2002 with regards to H.R.
521. Your efforts to allow the various views on Guam of an issue
effecting Guam's people speaks well of you as Chairman and the
Committee on Resources as a whole. I wish to thank you and all the
members and I was certainly honored to participate and present my
testimony.
I am writing in response to your letter of May 14, 2002 requesting
a response to four additional questions the Committee had. I have
attached my responses. I hope they prove of some assistance to the
members as they deliberate on H.R.521.
Once again, on behalf of myself and the Superior Court of Guam, my
sincerest dunkalo si Yu'os maase and thank you.
ALBERTO C. LAMORENA III
______
Response to questions submitted for the record by Presiding Judge
Alberto C. Lamorena III
Committee Question on H.R. 521: ``Do the three branches of the
Government of Guam have the legal authority and governmental
power to resolve the problems that have arisen over
administration of the local courts?
Presiding Judge Alberto C. Lamorena III response:
Yes. It is important to recognize that the Organic Act was approved
by a Congress in which the U.S. citizens of Guam do not have voting
representation, and signed into law by a President chosen in a national
election without participation by the U.S. citizens of Guam. As such,
at both the Federal and local level, the Organic Act itself neither
results from or by its nature implements the principle of government by
consent.
1950 was the year Congress authorized adoption of a local
constitution in Puerto Rico. In the case of Guam, Congress did not
authorize a local constitution until 1976. Thus, the Guam Organic Act
of 1950 represents a statutory policy to implement a more limited form
of local self-government for Guam than for Puerto Rico, as an interim
step until adoption of a local constitution was deemed appropriate and
authorized by Congress.
However, the Organic Act does create a system of limited local
self-government that allows government by consent as to local law. In
order to make this step forward in the development of local government
possible, Congress had to establish the political branches of
government required to legislate and create a body of local statutory
law with the consent of the governed. This is the most Congress could
do to promote local self-government in the absence of a local
constitution.
Recognizing that the citizens of Guam were not empowered by the
Organic Act to establish by consent of the governed a ``republican form
of government'' with ``separate and co-equal branches,'' Congress
determined to limit its exercise of plenary power to the two political
branches of government, and allows establishment of the local courts by
consent of the government under local law.
In this manner Congress committed the statutory establishment and
regulation of the local judiciary to the people of Guam. Congress
revisited this subject in order to authorize the establishment and
regulation of the Guam Supreme Court under 48 U.S.C. 1424-1.
At no point since 1950 has Congress provided that these matters are
committed to the process of local self-government only unless and until
there is a serious political debate over an issue of local statutory
policy between opposing factions in the local legislature. To the
contrary, it has been the 50-year policy of Congress to allow local
issues to be determined locally unless and until Federal interests
compelled Congress to alter the Organic Act or local law.
Thus, the two political branches of the local government have the
legal authority to establish and regulate the courts, and at this time
the local courts have the legal authority to exercise the jurisdiction
vested in them by local law. Since there is no constitutional form of
local government creating separate and co-equal branches of government
with consent of the governed, it is sophistry to argue that the Organic
Act can be altered to establish the equivalent of a local
constitutional system by edict of Congress.
Committee Question on H.R. 521: Can this problem be resolved without
Congress Intervening?
Presiding Judge Alberto C. Lamorena III response:
Yes. The issues discussed at the hearing can and should be resolved
at the local level without Congressional intervention.
The are two kinds of courts: constitutional and statutory. The
existence and functions of a constitutional court cannot be regulated
by the political branches of the government except as provided under
the constitution itself. A statutory court is a creature of statute and
subject to statutory regulation.
In his testimony before the Committee, the Chief Justice of the
Guam Supreme Court suggested that it was an intolerable infringement on
judicial independence for the local legislature to have the power to
establish, regulate or terminate the functions of the court. Yet, as a
statutory court the Supreme Court of Guam necessarily and by definition
must be subject to the powers of both Congress and/or the local
legislature.
The only Federal judges whose courts cannot be abolished by the
Congress are the nine members of the U.S. Supreme Court. All other
Federal judges, including those to whom decisions of the Guam Supreme
Court can be appealed, carry out their duties independently while
subject to the very legislative power that Guam's Supreme Court Chief
Justice finds intolerable. That is the nature of a statutory judicial
system as opposed to a constitutional court.
Thus, the question that should have been addressed at the hearing
on H.R, 521 is this: Of the two legislative bodies with the power to
regulate the Supreme Court of Guam, which should determine the policy
for administration of the local courts and the relations between the
Superior Court of Guam and the Supreme Court?
Should it be the Congress in which the citizens of Guam are not
represented? Or, should it be the local legislature in which they
citizens have voting representation?
Obviously, as long as Guam remains a territory, Congress retains
plenary authority over the form of government in the territory.
However, the question at hand is whether Congress or the local
legislature should prescribe statutory policy for operation of
statutory courts.
The Chief Justice of the Guam Supreme Court made it clear in his
testimony before the Committee that he would rather entrust statutory
policy-making over Guam's local courts to the Congress than to the
people of the community which the court serves. This is nothing less
than an invitation to Congress to take back control of a subject of
statutory policy that Congress had transferred to the local level.
The Supreme Court Chief Justice's testimony does not call for an
end of statutory control by a legislative body of the Supreme Court.
H.R. 521 does not end the power of a legislative body to abolish the
Supreme Court. Rather, the position of the Chief Justice and the bill
itself is simply that Congress should be the legislative body with that
power, instead of the local legislature.
In other words, the sponsor of the bill, Mr. Underwood, and the
Chief Justice, trust a Congress in which the people of Guam are not
truly or meaningfully represented more than they do the local
legislature in which the people in Guam have voting representation. If
that is their position, fine.
Why don't they just come out and say so, instead of distracting
attention from the real issues by talking about separation of powers
and co-equal branches of government, which can only be created with the
consent of the governed under a local constitution?
Thus, all the rhetoric in the hearing about republican form of
government and separate and co-equal branches of government was
misplaced and misleading. H.R. 521 will not create a republican form of
government with three co-equal branches. It will take the one branch of
the local government over which the people have control and the power
of consent and make it more like the two other branches of the
government that were created by Congress without the consent of the
governed. That is a step backward not forward for self-government.
If there real intention were to create a local Supreme Court that
was not subject to regulation by the local legislature, the way to do
that is to establish local constitutional self-government under a
structure consented to by the people, and which includes co-equal
branches of government with limited powers.
Committee Questions 3 & 4 on H.R. 521: ``What is the basic difference
between a Supreme Court having sole control over the
administration of both courts versus a Judicial Council having
the same powers?''
``In the Federal system, the U.S. Congress statutorily establishes the
Federal courts (district courts, appellate courts, patent
courts, tax courts etc''). If we take the model proposed in
H.R.521 (Section 1 (a)) to the Federal level, Chief Justice
Rehnquist, rather than Congress would have the power to
unilaterally determine the structure and division in the court
system. Why should we adopt a model for Guam that we would
never adopt at the Federal level?''
Presiding Judge Alberto C. Lamorena III response:
H.R. 521 gives the Guam Supreme Court powers that the U.S. Supreme
Court does not have in the Federal judicial system. That includes the
power to create lower courts by rule of the Chief Justice, and to
define by fiat the divisions and functions of the lower courts.
The creation of courts is a legislative function, and the
establishment of court policies for administration of the judiciary and
relations between local courts, to the extent not prescribed by
statute, is a matter that can best be managed under the Judicial
Council model. The local legislature, not Congress, should provide the
statutory policy governing these matters.
Unless Congress is willing to cede its statutory power over
creation of Federal courts, it should not take that power away from the
Guam Legislature.
______
Mr. Hayworth. And we thank you, Judge Lamorena.
Let me begin the questions. Let us go to Secretary Kearney
first from the Department of the Interior.
Mr. Deputy Assistant Secretary, which does the
administration believe is the better way for Guam to improve
the structure of local self-government? Is it for Congress to
continually attempt to perfect the Guam Organic Act or for the
people of Guam to enact a local constitution?
Mr. Kearney. Well there has been at least one effort some
years ago by local effort to address the constitutional matter,
and that was--while I am not familiar with all of the
particular details was attempted to be addressed and was
addressed unsuccessfully. So there is some question about the
extent to which that could be a successful way to achieve it.
Congress has plenary oversight responsibility in this area, so
it is certainly reasonable and prudent for the Congress to
review this matter.
I do not have a position one way or the other on which way
is the best to proceed.
Justice Carbullido. Mr. Chairman, may I add to that
response?
Mr. Hayworth. Certainly, sir.
Justice Carbullido. Thank you, Mr. Chairman.
Obviously, if we could put this in our constitution, that
is the route to go. However, it has been 25 years since the
Guam Government has been given the authority to write its
constitution, and the very elected leaders who are suggesting
that maybe this is something that should be included in the
constitution have taken the position that we should not write a
constitution until such time as the Federal-territorial
relationship has been defined. It has been 25 years since they
have been working on that, and we do not think that it would be
wise to wait another 25 years before we can determine this
should be put in the constitution.
And so, the Organic Act of Guam is Guam's constitution
today, and this is exactly what is being asked, that we change
Guam's constitution and put the judiciary on equal footing with
the executive and legislative branch. That is all that is being
asked today.
Mr. Hayworth. Judge Lamorena, would you like to weigh in on
this?
Judge Lamorena. The people of Guam have had the opportunity
to create its own constitution, and I support that effort in
creating its own constitution. I believe that the people of
Guam in creating their own constitution do not abrogate their
possibility with changing their political status with the
United States. I do not think they are totally mutually
exclusive. The constitution is essential, because the
constitution is a document in which the governed set up
parameters on how they are to be governed.
The Organic Act, yes, is considered the constitution of
Guam, but it is still a Federal statute, and it can be changed
by representatives who do not live on Guam. That is why I feel
that any changes within the law should be given the opportunity
for the people of Guam make those changes. And the Congress did
that when Congressman Won Pat passed--the late Congressman Won
Pat--passed legislation giving the people of Guam the authority
to create the Guam appellate court system.
And with that, the Congress had great ability and
confidence in the people of Guam to create their own self-
governing body. And I would like Congress to keep going in that
direction. In fact, recently, Congress passed a law authorizing
the people of Guam to empower them to pass legislation to
determine how their attorney general should be elected. The
people of Guam, through their Legislature, have made the
attorney general's position now an elected position. But they
did not tell the people of Guam, like they are now doing with
this legislation, this is what you should do. This is what you
are ordered to do. They told the people of Guam we are giving
you the enabling legislation to do what you think is right for
you. And that is all we asked, and I think the members of the
Legislature asked that, and the people have Guam have that to
respect their decisions as people living in Guam.
Mr. Hayworth. Thank you, Judge.
The Chair would ask the indulgence of the other members,
and I understand our friend who is the principal sponsor, the
gentleman from Guam, has a statement and, if he so desires,
after that statement, to ask a couple of questions.
STATEMENT OF HON. ROBERT UNDERWOOD, A DELEGATE IN CONGRESS FROM
THE TERRITORY OF GUAM
Mr. Underwood. Well, thank you very much, Mr. Chairman, and
I had an opening statement, and I will not belabor it. I will
just ask that it be introduced into the record.
The Chairman. Without objection.
[The prepared statement of Mr. Underwood follows:]
Statement of The Honorable Robert A. Underwood, a Delegate in Congress
from Guam
Mr. Chairman, thank you for holding today's hearing on H.R. 521,
legislation important to the people and Territory of Guam. I would also
like to thank the Ranking Member, Congressman Nick Rahall, for his
continued support of the territories, and welcome two of our witnesses
who have traveled a long way from Guam to testify. A warm Hafa Adai to
the Honorable Philip Carbullido, Acting Chief Justice of the Supreme
Court Guam and the Honorable Alberto Lamorena III, Presiding Judge of
the Superior Court of Guam.
H.R. 521 seeks to amend the Organic Act of Guam for the purposes of
clarifying Guam's judicial structure, both judicially and
administratively. Currently, the Organic Act of Guam delineates the
inherent powers of the legislative and executive branches of the
Government of Guam. My bill would establish the local court system,
including the Supreme Court of Guam, as a co-equal branch of the
Government of Guam and place the judiciary on equal footing with Guam's
legislative and executive branches of government.
I am certain that today's witnesses, as well as the abundance of
written testimony that have been submitted for the hearing record, will
provide the Committee with ample views on the merits of this
legislation. The issue is not new. It is not partisan. It is not a
matter of the Federal Government interfering with or taking over a
local issue. It is a matter of whether Guam's judicial system should be
subordinate to another branch of government, in this case the Guam
Legislature, and whether Guam's judicial system should be treated any
differently than the majority of judicial systems that exist across our
nation, as an independent judicial branch. It has been brought to my
attention that there needs to be clarification that the U.S. District
of Court in Guam will not be affected by this legislation and I agree
that we should do that.
I am proud that in the latest review of the Supreme Court of Guam
by the Pacific Islands Committee of the Judicial Council of the 9th
Circuit, whose review was authorized by Congress, the Committee has
acknowledged that Guam's Supreme Court has done a good job by
developing sufficient institutional traditions and rendering quality
opinions that is generally well done and comparable to opinions fo the
supreme courts of the states in the Ninth Circuit. Most notable,
however, is that while the Committee has acknowledged that the Supreme
Court has become a mark of pride in Guam, it has concluded that an
inordinate amount of time and effort is being expended on many fronts
in attempting to resolve the issue of judicial administration of the
Guam courts. The Committee stated that ``the perception, and perhaps
the reality, is that judicial administration in Guam has become
politicized. This situation has not helped the institution of the
Supreme Court grow as it should.'' I believe that my legislation
directly addresses this legitimate concern.
Mr. Chairman, our forefathers, the architects of the U.S.
Constitution, had the foresight to establish an institutional mechanism
that would protect this great nation from potential emergence of an
autocratic regime. This mechanism, embodied in the Constitution is the
construction of a democratic form of government of three separate but
equal branches, each holding exclusive authority over the process of
any given policy. This doctrine of separation of powers is the
fundamental principle of this great nation and has since laid the
foundation for the democratic system of government we now enjoy. The
underlying feature of this system is that of checks and balances within
the three branches that would ensure the integrity of each branch. The
passage of this legislation would solidify the structure of Guam's
judiciary and ensure its status as a separate and coordinate branch of
government. It would define the Supreme Court's authority as the
supreme court of origin and allay the danger in allowing one branch of
government to determine the existence of another. This legislation is
the work of many years of input from the people of Guam. It has been a
long and laborious process and it is time a legitimate and separate
branch of government, our judiciary, be afforded the people of Guam.
I am pleased that the Administration has no objection to the
enactment of H.R. 521, and I commend the Interior Department for
continuing to realize the importance of this legislation. I am also
pleased by the support for the bill by the Conference of Chief
Justices, Guam's Governor Carl T. C. Gutierrez, Guam's Lt. Governor
Madeleine Z. Bordallo, Acting Chief Justice Philip Carbullido, the Guam
Bar Association and individual attorneys on Guam, various members of
the Guam Legislature, and other interested individuals. Guam's Pacific
Daily News also supports H.R. 521 and has called on Guam's island
government, business and community leaders to come together to support
the measure. The PDN says ``If we claim to be 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, U.S. House of
Representatives
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 Shab-eh-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-
eh-nay'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
determine 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-government.
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
Indian 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 back- tracking 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 self-government, 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. 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.
Judge Lamorena. Yes.
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.
Mr. Underwood. But would you concede--
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 fundamental issue that the three
branches of government should be properly recognized in our
Organic Act, our constitution.
The second objection that is common to those who oppose the
bill is that this should really be left to the people of Guam.
It needs to be recognized in our Organic Act, our constitution.
The virtue of this bill is that we are trying to recognize the
three branches on equal footing; there really should be no
issue.
Mr. Flake. Mr. Lamorena, if the changes are made as
suggested by the Justice, would you still object? And if so,
why?
Judge Lamorena. Yes, I will still object. I have not seen
his proposal, so I am totally not familiar with it. But absent
that, I will still object, because it runs against the
fundamental concept of self-government. I think if the people
of Guam wish to pass a law that affects them directly and that
sets up a structure by which they are to be governed, I think
the people of Guam should be the ones to determine that
structure.
Like I quoted earlier, the U.S. Supreme Court said the
judiciary is the heart of internal self-government and should
be delegated to the state legislatures or to the people that
live there. And what I am concerned about is Congress and this
Committee have always had a policy to have the people of Guam
determine what they want to be. Like I said earlier, the
attorney general bill was amended, but it did not say the
attorney general shall be elected by the people of Guam.
Congress did not state that. Congress said the people of Guam
may pass a law to elect an attorney general.
So what Congress has always done in the past has always
given the option for the people of Guam to self-govern
themselves. And I feel that when the late Congressman Won Pat
introduced this bill, he was very sensitive to that. He, being
a former Guam legislator at the time and former Guam speaker,
was very sensitive to have the people of Guam determine what
their judiciary should be.
Mr. Flake. Well, this fix, does it not address that
concern? Because it says if Guam goes ahead and drafts its
constitution that that will be the law rather than the Organic
Act or rather than any fix that we make here. And just a
follow-up question: is there a move at this point, what process
are we in at this point on Guam in drafting a constitution?
Judge Lamorena. On the first question, I hate to set
conditions on what this will trigger in if the people of Guam
do this. I think it is kind of a carrot thing, you know,
dangling, saying, well, if the people of Guam will pass this
law, this legislation, and the people of Guam do a certain
thing and follow the carrot, then, it will go that way.
I think the whole principle of self-government is to allow
the people to determine what they want to do. We all live on
Guam, and we all have to live by the laws of Guam, and if the
people of Guam decide that those laws should be changed or a
constitution should be imposed, then so be it. But I think the
people of Guam should determine that and not Congress. I think
Congress should follow its policy of allowing the people of
Guam the options to pursue its own course.
Mr. Flake. I would agree with that. I would just simply
state that we are waiting--everyone is waiting for Guam to
draft that constitution. We have said please, go ahead, but as
long as Guam does not, then, the Organic Act is what rules
here. And so, I think it is incumbent on us to have something
that makes better sense than what we have right now.
Just let me state for the record: I know there are concerns
that the Supreme Court determining the structure of the
inferior courts may impose or some say, you know, just assign
dog bite cases to the rest of the structure and take everything
else to itself. I worry less about that than I do having the
Legislature have the ability to nullify and to simply get rid
of the Supreme Court if they would like.
But I thank you, and thanks for your indulgence on this.
Thank you, Mr. Chairman.
The Chairman. I thank the gentleman.
The gentleman from Hawaii, Mr. Abercrombie?
Mr. Abercrombie. Judge, but you would admit--sorry, Judge
Lamorena--
[Laughter.]
Mr. Abercrombie. We are operating under the Organic Act,
right?
Judge Lamorena. Yes, that is the Federal statute governing
Guam.
Mr. Abercrombie. That is right.
I mean, you cannot have it both ways, Judge. You know, this
is a little ridiculous. You want independence for Guam, or you
want to become a state? What do you want to do? I do not like
to be lectured here about what my duties here are with respect
to local jurisdiction in Guam or any other place. I do not like
this whole colonial situation in the first place.
You know perfectly well you could have passed a
constitution for 25 years; you have not done it. I do not think
it is seemly for you to come in here as a jurist and lecture us
in this way.
Now, the Organic Act, as long as you have the Organic Act,
this Congress is going to do it. Now, we are not going to have
a situation, as benign as you may want to characterize the
situation, where legislatures, if they are in Zimbabwe right
now, can overturn the judiciary. I mean, the singular
democratic issue, it seems to me, is the equality of the
branches of government in our democracy. But here, you have a
situation which makes a mockery of it if the legislature can
come in and overturn the judiciary anytime it sees some
political advantage to do it.
Now, unless you can come up with something compelling with
respect to whether or not we can pass this legislation, I think
you have got a terrific burden to carry.
Judge Lamorena. Do you want a response?
I feel that the concept--OK--of self-government is
fundamental to all peoples, and I think Congress in the past
has always given deference to the people of Guam in cases of
changes in the Organic Act, the ability to pass laws that would
meet the needs of their people.
Mr. Abercrombie. You do not think equality of the judiciary
is fundamental to the well-being of the people of Guam?
Judge Lamorena. Well, if Congress had that position when
Congressman Won Pat was there, they had that opportunity, but
they did give the opportunity to the people of Guam to create
the judiciary, and I feel that was confidence in the people of
Guam through their Guam Legislature to create a structure in
the judicial branch of government that would maintain the
confidence of the people of Guam.
Mr. Abercrombie. If something takes place, then, in Guam
that the politicians do not like, that a decision is made in
the courts, you want to say that you can change the structure
of the courts in the Legislature?
Judge Lamorena. Well, if you look at the issue of the
structure of the courts, Congress can also add circuits to the
Federal courts. I think as far as the structure of the court
system itself, Congress has that prerogative, and I think the
Guam Legislature should have that prerogative as well.
Mr. Abercrombie. But this is a contradiction. I will just
let it go. You want it both ways. If Congress--do we have the
jurisdiction or do we not to pass this legislation?
Judge Lamorena. Congress, as any lawmaking body, can pass
any legislation it wishes.
Mr. Abercrombie. Because you are under Federal
jurisdiction, and you do not have a constitution that says
otherwise now; is that not correct?
Judge Lamorena. Right now, the Organic Act is the Federal
statute--
Mr. Abercrombie. Right now, and it has been for more than
25 years.
Judge Lamorena. Well, I do not purport to speak for all of
the people of Guam whether or not we should have a
constitution. That is still an ongoing debate.
Mr. Abercrombie. Well, in the absence of--when you say you
do not purport to speak for them, but the facts speak for
themselves. There is no constitution.
Judge Lamorena. Well, in the absence of a constitution,
then, the enabling legislation passed by Congress earlier under
the late Congressman Won Pat, I think, is still good policy.
Mr. Abercrombie. And speaking of enabling legislation, we
will enable the people of Guam to have an equal judiciary if we
pass this bill. Would that not be the case?
Judge Lamorena. Well, I always feel that the people of Guam
should be the ones to determine--
Mr. Abercrombie. You mean your position is that the people
of Guam can determine whether or not they are actually going to
have an equal judiciary, and if they determined they did not
want an equal judiciary that I should acquiesce to that as a
Member of Congress?
Judge Lamorena. But they have spoken already.
Mr. Abercrombie. But I have sworn to uphold the
Constitution of the United States, which emphasizes, I think,
as a beacon to the whole world that we have the rule of law and
not the rule of political fashion of the moment and that we
uphold the idea that there are three equal branches of
government. And for you to argue to me that you get to make a
local decision as to whether or not, at any given point, people
can decide whether to subject the judiciary to even more
political--as Mr. Underwood said, there's politics in
everything, but to subject it to legislative fashion, it seems
to me an extraordinary statement.
How does that comport with the entire history of the
struggle for equality of people before the law and the idea of
equal branches of government as a cornerstone of our democracy.
Judge Lamorena. I think it complements it. One, it does
allow the people of Guam to self-govern themselves. We may
disagree what the people of Guam may be doing--
Mr. Abercrombie. Judge, excuse me.
Judge Lamorena. --but any legislative body passes laws that
reasonable people can disagree about.
Mr. Abercrombie. We are not talking about reasonable people
disagreeing. It is not as if we are talking about what kind of
coffee you prefer. You mean to tell me that if the people of
Guam decide that if you are a Chamorro-American as opposed to
Scottish-American like myself that you could be discriminated
against, for example, because that is local decisionmaking? You
do not contend that, do you? Of course, you do not.
So what you are saying here locally, if people decide
locally they do not want to have equal justice that that is OK.
Judge Lamorena. I am not saying that.
Mr. Abercrombie. But that is the implication of your
position, I believe.
I am sorry, Judge. You are not making a persuasive case
here.
Thank you, Mr. Chairman.
Judge Lamorena. Thank you.
The Chairman. The gentlelady from the Virgin Islands.
Ms. Christensen. Thank you.
The Chairman. As you can see, we have got a vote on. We
want to wrap this thing up.
Ms. Christensen. Right, and I just want to make a brief
statement and probably yield some time to my colleague, Mr.
Underwood.
I think all of us support the need for Guam and my
territory to draft their own constitution, but I just disagree
with the position of my colleague on my right, Mr. Abercrombie,
because I think the people of Guam have demonstrated that they
fully support the separation of the judiciary from the other
branches of government. And I just think the issue is one of
until such time as we draft our constitution, turning over more
authority and governance to the people of the territories, and
that is what I see the recommended amendments as being, and I
fully support that, and I have done that in several instances
in the case of the people of the Virgin Islands.
I wanted to take the opportunity to welcome the witnesses
from Guam and especially our former colleague, as Congressman
Underwood has welcomed him, Congressman Ben Blaz. And I find
the issue very interesting. It is one that the Virgin Islands
has not yet done completely, anyway, and we still rely on our
Federal District Court as our territorial appellate court. So
we are even further behind Guam on some of the issues. However,
there have been calls by our local bar association as well for
the creation of a local appellate court. As a result of the
experience of Guam in creating this independent judiciary, it
would be key for us as a guide.
And I want to take this opportunity to commend our
colleague, Mr. Underwood, for this legislation, for the
separation of the branches of government is a cornerstone of
our democracy, and I trust that the whole Committee will
support his bill and in doing so protect the rights of the
people of Guam.
If my colleague would like some of my time, I would yield
the rest of my time to Mr. Underwood.
Mr. Underwood. Thank you for yielding me the time. And
basically, I just wanted to go over a couple of points that had
been mentioned earlier, and I wanted to make sure for the
record that it is clearly understood. Reference is made to the
authority granted to the people of Guam to draft their own
constitution. In doing so, Congress specified that there would
be a republican form of government with three co-equal
branches. So this is not--even if Guam were to draft its own
constitution, I daresay that its constitution would end up
looking like--would have the kind of judiciary that we are
envisioning here, which is three co-equal branches of
government.
Second, you have mentioned, Judge Lamorena, I think on
several occasions that there was a grant of authority granted
by Congress to create this appellate court, and at the same
time, you have made comparisons to the creation of the attorney
general. I know you have credited Congressman Won Pat
repeatedly for the earlier version.
Judge Lamorena. For the attorney general, I will credit you
for that one.
[Laughter.]
Mr. Underwood. Thank you, thank you very much. I am glad
you acknowledge that that was my legislation.
[Laughter.]
Mr. Underwood. But more importantly, in vetting that
legislation, even though we allowed that to happen, to allow
that according to whether the Legislature wanted to have an
elected attorney general or not, we did structure it in a way
to avoid the kinds of problems that we are simply having in
this issue, which is to kind of clearly delineate what it would
look like and had this kind of--maybe the Virgin Islands is
smarter in this, because they are waiting to see what kind of
experiences we have had on this.
But just so that I allow Mr. Kearney a chance to make a
quick comment, Mr. Kearney, in your testimony, you stated that
Guam has a bifurcated local court system at a time when
virtually all of the states have unified court systems and by
implication saying that, well, Guam is a little bit different
than the rest. Can you elaborate on that a little bit?
Mr. Kearney. Well, mostly, it focuses on what we have been
discussing here, that there is a potential role for the
Legislature with respect to the judicial system in Guam
currently that is not reflected in the other 50 states. And so,
to the extent to which changes in this legislation would be
consistent with those 50 states, it would address that
inconsistency.
Mr. Underwood. OK; so this legislation addresses that
inconsistency, and the administration has no objection to the
legislation.
Mr. Kearney. That is correct.
Mr. Underwood. OK; and I would submit, Mr. Chairman, that
some of the amendments that the Justice has proposed here deal,
I think, with the issue of some of the underlying issues here
regarding the actual structure and some of the politicization
of this process and attempts to divorce that in an effort to
make sure that what we are honing in clearly here is the
separate and co-equal nature of the three branches of Guam. So
I hope we will get a chance to look at those in a markup 1 day.
Thank you, Mr. Chairman.
The Chairman. I thank the gentleman.
Mr. Flake. Mr. Chairman? Just 10 seconds?
The Chairman. The gentleman from Arizona.
Mr. Flake. I just wanted to state for the record that I,
too, thank Mr. Underwood for bringing this bill forward, and I
hope that the Committee has a chance to mark it up.
The Chairman. We would be happy to.
And also, I would like to submit some questions to the
panel. I would appreciate your response, because we are not
going to have time to go into those. I do want to thank all of
the people who testified. We appreciate your attendance here at
this time, and we will move ahead with this legislation, and
Ben, it is always good to see you, my friend. Ben Blaz was one
of the true gentlemen of Congress and one we will always
remember.
So with that, we stand adjourned.
[Whereupon, at 12:32 p.m., the Committee adjourned.]
[The following information was submitted for the record:]
LAda, Hon. Joseph F., Senator, 26th Guam
Legislature, Letter submitted for the record on H.R. 521
LAda, Hon. Thomas C., Senator, 26th Guam
Legislature, Statement submitted for the record on H.R. 521
LAguon, Hon. Frank Blas, Jr., Senator, 26th Guam
Legislature, Letter submitted for the record on H.R. 521
LArriola, Joaquin C., President, Guam Bar
Association, Letter submitted for the record on H.R. 521
LBernhardt, David L., Director, Office of
Congressional and Legislative Affairs and Counselor to the
Secretary, U.S. Department of the Interior, Letter submitted
for the record on H.R. 521
LBlair, William J., et al., Law Offices of Klemm,
Blair, Sterling & Johnson, Letter submitted for the record on
H.R. 521
LBordallo, Hon. Madeleine Z., Lieutenant Governor
of Guam, Statement submitted for the record on H.R. 521
LBrooks, Terrence M., et al., Brooks Lynch &
Tydingco LLP, Letter submitted for the record on H.R. 521
LCamacho, Hon. Felix P., Senator, 26th Guam
Legislature, Letter submitted for the record on H.R. 521
LCharfauros, Hon. Mark C., Senator, 26th Guam
Legislature, Letter submitted for the record on H.R. 521
LCruz, Hon. Benjamin J.F., Honorable Chief Justice
of Guam (Retired), Letter submitted for the record on H.R. 521
LCunliffe, F. Randall, and Jeffrey A. Cook,
Cunliffe & Cook, Letter submitted for the record on H.R. 521
LForbes, Hon. Mark, Majority Leader, 26th Guam
Legislature, Statement submitted for the record on H.R. 521
LForman, Seth, Keogh & Forman, Letter submitted
for the record on H.R. 521
LGray, Gerald E., Law Offices of Gerald E. Gray,
Letter submitted for the record on H.R. 521
LGuerrero, Hon. Lou Leon, Senator, 26th Guam
Legislature, Letter submitted for the record on H.R. 521
LGutierrez, Hon. Carl T.C., Governor of Guam,
Statement submitted for the record on H.R. 521
LHale, Elizabeth, Affidavit submitted for the
record on H.R. 791
LLannen, Thomas J., Dooley Lannen Roberts & Fowler
LLP, Memorandum submitted for the record on H.R. 521
LLeonard, Floyd E., Chief, Miami Tribe of
Oklahoma, Statement submitted for the record on H.R. 791
LLujan, Hon. Pilar C., Former Senator, Guam
Legislature, Statement submitted for the record on H.R. 521
LMaher, John B., McKeown, Vernier, Price & Maher,
Letter submitted for the record on H.R. 521
LManibusan, Judge Joaquin V.E. Jr., on behalf of
the majority of Superior Court of Guam Judges, Statement
submitted for the record on H.R. 521
LMcCaleb, Neal A., Assistant Secretary for Indian
Affairs, U.S. Department of the Interior, Letter submitted for
the record on H.R. 791
LMcDonald, Joseph B., Legal Counsel, Citibank N.A.
Guam, Letter submitted for the record on H.R. 521
LPangelinan, Vicente C., Minority Leader, 26th
Guam Legislature, Statement submitted for the record on H.R.
521
LRoberts, Thomas L., Dooley Lannen Roberts &
Fowler LLP, Letter submitted for the record on H.R. 521
LRyan, Hon. James E., Attorney General, State of
Illinois, Letter submitted for the record on H.R. 791
LSan Agustin, Hon. Joe T., Former Speaker of the
Guam Legislature, Statement submitted for the record on H.R.
521
LSantos, Marcelene C., President, University of
Guam, Letter submitted for the record on H.R. 521
LSiguenza, Peter C., Jr., et al., Chief Justice,
Supreme Court of Guam, Letter and supporting documents
submitted for the record
LTroutman, Charles H., Compiler of Laws, Office of
the Attorney General, Department of Law, Territory of Guam,
Letter submitted for the record on H.R. 521
LUnpingco, Hon. Antonio R., Speaker,, 26th Guam
Legislature, Letter submitted for the record on H.R. 521
LWagner, Annice M., President, Conference of Chief
Justices, Letter and Resolution submitted for the record on
H.R. 521
LWarnsing, Mark R., Deputy Counsel to the
Governor, State of Illinois, Letters submitted for the record
on H.R. 791
LWon Pat, Hon. Judith T., Senator, 26th Guam
Legislature, Statement submitted for the record on H.R. 521
[A letter from The Hon. Joseph F. Ada, Senator, 26th Guam
Legislature, submitted for the record on H.R. 521 follows:]
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[A statement from The Hon. Thomas C. Ada, Senator, 26th
Guam Legislature, submitted for the record on H.R. 521
follows:]
Statement of The Honorable Thomas C. Ada, Senator, 26th Guam
Legislature
Mr. Chairman and members of the House Resources Committee, thank
you for this opportunity to offer testimony in support of H.R. 521, to
clarify, once and for all, that a truly classic, republican form of
government, with three, separate but equal branches of government, will
indeed exist for the people of Guam.
First introduced in the 105th Congress as part of a bill that
addressed other judicial matters pertaining to Guam, the judicial
structure issue became mired in a lawsuit in Guam. At the start of this
year, the Ninth Circuit Court of Appeals ruled on that case, and in
doing so, affirmed the authority of the Supreme Court of Guam, saying,
``The Organic Act, as we have recognized, 'serves the function of a
constitution for Guam' and the congressional promise of independent
institutions of government would be an empty one if we did not
recognize the importance of the Guam Supreme Court's role in shaping
the interpretation and application of the Organic Act.''
The Organic Act of Guam of 1950 created the legislative and
executive branches of a civilian government for Guam, which had been
under military rule since 1899. The Organic Act clearly delineated the
powers and authority of the legislative and executive branches of the
newly established Government of Guam, but the judicial branch was left
to evolve and develop in fits and starts over the years, with
jurisdiction and authority residing initially and completely with the
Federal courts. Over the years, the Organic Act has been amended to
fulfill the ``congressional promise of independent institutions of
government,'' In 1968, the Act was amended to provide for an elected
governor; in 1972 for a non-voting delegate to the U.S. House of
Representatives; in 1986 to provide for an elected school board; and
most recently, in 1998, to provide for an elected attorney general. The
original version of the elected attorney general bill, now Public Law
105-291, included the judicial structure clarification.
In comparison to its counterparts, the growth and development of
the judicial branch of the Government of Guam has been a slow and
laborious process and continues to this day. Guam's judicial structure
must be clarified and clearly established, and its powers delineated
under the Organic Act. Through its inclusion in the Organic Act, the
foundation of the Supreme Court will be accorded the same protection
from the political machinations that so besiege its counterparts. As a
creation of local law, the Supreme Court of Guam remains vulnerable to
the whims of the legislative branch. Until and unless it is firmly
embedded in the Organic Act, the Supreme Court of Guam is not, cannot,
will not be a separate and co-equal branch of the Government of Guam.
And that condition, no matter how eloquently defended, is in direct
contradiction of the ``congressional promise of independent
institutions of government'' and the ideals of self-government.
The doctrine of the separation of powers, with its underlying
system of checks and balances, is the fundamental principle of our
democratic form of government and cannot be subject to reinterpretation
or politically motivated redefinition. Passage and enactment of H.R.
521 would not only comport with the wisdom and foresight of the
architects of the U.S. Constitution, it would restore the faith of the
people of Guam in the sovereignty and autonomy of their judicial
branch.
The people of Guam deserve no less than a free, impartial and
independent court system, with, as its name implies, the Supreme Court
indeed reigning supreme. I ask the members of this Committee to recall
the opening line of Section. 4, Article Four of the U.S. Constitution:
``The United States shall guarantee to every State in this Union a
Republican Form of Government...''
Mr. Chairman, in H.R. 521, although we are not a State, we in the
Territory of Guam respectfully seek that guarantee.
Thank you.
______
[A letter submitted for the record by The Hon. Frank Blas Aguon,
Jr., Senator, 26th Guam Legislature, on H.R. 521 follows:]
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[A letter submitted for the record by Joaquin C. Arriola,
President, Guam Bar Association, on H.R. 521 follows:]
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[A letter submitted for the record by David L. Bernhardt, Director,
Office of Congressional and Legislative Affairs and Counselor to the
Secretary, U.S. Department of the Interior, on H.R. 521 follows:]
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[A letter submitted for the record by William J. Blair, et al., Law
Offices of Dlemin, Blair, Sterling & Johnson, on H.R. 521 follows:]
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[A statement submitted for the record by The Hon. Madeleine Z.
Bordallo, Lieutenant Governor of Guam, on H.R. 521 follows:]
Statement of The Honorable Madeleine Z. Bordallo, Lieutenant Governor
of Guam, on H.R. 521
Chairman Hansen and Members of the Committee on Resources:
I am submitting this statement in support of H.R. 521 and I would
kindly request that my testimony be entered into the record.
H.R. 521 would amend the Organic Act of Guam for the purposes of
clarifying the local judicial structure of Guam. I believe that this
legislation is appropriate and necessary for the proper operation of
the Judicial branch of Guam.
Mr. Chairman, I was a Member of the 21'' Guam Legislature in 1993
when the Frank G. Lujan Memorial Act was passed establishing the
Supreme Court of Guam. I was proud to have had a role is shaping this
local legislation and it was a great honor when the Supreme Court was
installed during my first term as Lieutenant Governor.
Governor Gutierrez and the Guam Legislature had done a fine job in
appointing and confirming outstanding jurists to serve on our Guam
Supreme Court, and our Supreme Court has matured over the years.
The question before Congress is whether the provisions of H.R. 521
are needed to clarify the role of the Supreme Court. I believe that
this bill is indeed necessary to ensure that the Judicial branch is
unified and insulated from political pressure.
The Judicial branch has been buffeted by political maneuvering as
control of the administrative and policy making process has been
contested between the Supreme Court and the Superior Court. This is not
what was envisioned by the authors of the local legislation. We
believed we were enacting legislation that was creating a Supreme
Court, with all that the term means, Supreme in every sense of the
word, and as has been the practice for all similar Judicial systems
throughout the United States.
H.R. 521 would clarify that the Supreme Court has distinct
responsibilities in making Judicial policy and in administering the
functions of the Superior Court and local court divisions. That we need
this legislation is a clear indication that the Judicial branch has
problems and that political interference has managed to seep into the
Court processes on Guam. In 1998, in his State of the Judiciary Report
to the people of Guam, Chief Justice Peter Siguenza stated that, ``this
branch was broken.'' In 1999, then Chief Justice Benjamin Cruz stated
in his report to the people that, ``things have gone from bad to
worse.'' A 9' Circuit decision earlier this year restored the supremacy
of the Guam Supreme Court and began a process of recovery.
H.R. 521 is needed to eliminate the interference of local politics
in our court system. I commend the Committee for taking up this bill
and I thank you for your kind consideration of my statement in support
of H.R. 521.
______
[A letter submitted for the record by Terrence M. Brooks, et al.,
Brooks Lynch & Tydingco LLP, on H.R. 521 follows:]
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[A letter submitted for the record by Hon. Felix P. Camacho,
Senator, 26th Guam Legislature, on H.R. 521 follows:]
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[A letter submitted for the record by The Hon. Mark C. Charfauros,
Senator, 26th Guam Legislature, on H.R. 521 follows:]
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[A letter submitted for the record by The Hon. Benjamin J.F. Cruz,
Honorable Chief Justice of Guam (Retired), on H.R. 521 follows:]
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[A letter submitted for the record by F. Randall Cunliffe, and
Jeffrey A. Cook, Cunliffe & Cook, on H.R. 521 follows:]
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[A statement submitted for the record by Hon. Mark Forbes, Majority
Leader, 26th Guam Legislature, on H.R. 521 follows:]
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[A letter submitted for the record by Seth Forman, Keogh & Forman,
on H.R. 521 follows:]
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[A letter submitted for the record by Gerald E. Gray, Law Offices
of Gerald E. Gray, on H.R. 521 follows:]
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[A letter submitted for the record by The Hon. Lou Leon Guerrero,
Senator, 26th Guam Legislature, on H.R. 521 follows:]
May 8, 2002
Honorable James V. Hansen
Chairperson
House Committee on Resources
1324 Longworth House Office Building
Washington, D.C. 20515-6201
Dear Mr. Chairman,
My name is Lou Leon Guerrero and I am a Senator with the 26th Guam
Legislature. I am writing this letter to support the passage of H.R.
521, which was introduced by Congressman Robert Underwood, Guam's
Representative. H.R. 521 seeks to clarify the local judicial structure
of Guam.
Local law created the Supreme Court of Guam. Since its
establishment as an appellate court, there has been much controversy
and discussion as to its responsibility and supervisory jurisdiction
over the Superior Court of Guam and all other courts in Guam. There
have been efforts made by both the Guam Legislature and Congress to
clarify Guam's third branch of government. However, the fact remains
that the Judiciary is not truly a co-equal, independent branch of
government and subject to changes by the Guam Legislature.
If the Supreme Court of Guam is to truly serve as the highest court
of the island, as what was originally intended, the amendments
introduced in H.R. 521 must receive prompt action by the House of
Representatives.
There is much support for the passage of this legislation within
the legal community, the private sector and the government. By passing
H.R. 521, I feel that this may be our only avenue to assure the
judicial branch free from political interference and provide them the
authority to act independently and be vested with those powers
traditionally held and exercised by the highest court of a
jurisdiction.
H.R. 521 is a vital piece of legislation for Guam and I humbly
request its expeditious passage.
Respectfully,
Lou Leon Guerrero, RN, MPH
Senator and Assistant Minority Leader of the 26th Guam Legislature
______
[A statement submitted for the record by The Hon. Carl T.C.
Gutierrez, Governor of Guam, on H.R. 521 follows:]
Statement of The Honorable Carl T. C. Gutierrez, Governor of Guam, on
H.R. 521
Mr. Chairman and Members of the Committee on Resources:
Thank you for inviting me to appear before the Committee on
Resources to present testimony on H.R. 521. Although I am not able to
attend this hearing, I would like to submit this testimony for the
Committee's consideration and I would appreciate your entering my
testimony into the record for this bill.
H.R. 521 is a bill to amend the Organic Act of Guam for the purpose
of clarifying the local judicial structure of Guam. This bill would
clarify the status of the Supreme Court of Guam and would give the
Supreme Court of Guam administrative oversight and control of the
Superior Court of Guam, divisions of the Superior Court and other local
courts.
I am in favor of H.R. 521 and I would urge the Committee on
Resources to report this bill to the House of Representatives with the
Committee's favorable recommendation.
H.R. 521 would establish the independence of the Judiciary as a co-
equal branch of the Government of Guam, and would insulate the Judicial
branch from political interference by the executive and legislative
branches. Without the clarifications of the Organic Act, we may find
ourselves in the unfortunate situation where political favors are
freely traded or where political pressure is applied to the Justices
and Judges of the Courts of Guam.
The Justices of the Guam Supreme Court have requested this
legislation because they know that the current operations of the
Supreme Court and the Superior Court are neither efficient nor
seamless. We have two policy-making bodies within the Judicial branch,
and we have an unhealthy relationship between the Courts. Without the
clarifications of H.R. 521, we have a void that the politicians in the
Legislature are all too eager to fill.
I am pleased that the Committee will hear firsthand from the
representatives of the Supreme Court and the Superior Court. In the
interest of Judicial independence, I will forego commenting on the
current state of affairs of that branch, but I will note that the
situation between the Courts cannot be described as ideal, even by the
opponents of H.R. 521.
The Judicial branch should operate with integrity and should be
above the political fray, not immersed in it. A Supreme Court that is
not the highest Court is an anomaly and an aberration. A situation has
evolved where the fight for Judicial supremacy has created uncertainty
and political intrusion into the affairs of the Judiciary. H.R. 521 is
a needed fix, and one that is overdue.
______
[A memorandum submitted for the record by Thomas J. Lannen, Dooley
Lannen Roberts & Fowler LLP, on H.R. 521 follows:]
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[A statement submitted for the record by Floyd E. Leonard, Chief,
Miami Tribe of Oklahoma, on H.R. 791 follows:]
Statement of Floyd E. Leonard, Chief of the Miami Tribe of Oklahoma
Chairman Hansen, Congressman Rahall and Members of the Committee, I
am Floyd E. Leonard, Chief of the Miami Tribe of Oklahoma. I wish to
thank you for this opportunity to present written testimony to this
Committee on Resources with respect to H.R. 791.
H.R. 791, if passed, would extinguish, terminate and take away the
aboriginal or treaty titles, and related rights and interests, of the
Miami Tribe of Oklahoma, the Ottawa Tribe of Oklahoma and the Prairie
Band Potawatomi Tribe of Kansas, without their respective consent, in
and to their respective land and land claims in the State of Illinois,
and would relegate those Tribes to multiple monetary claims and
lawsuits against the United States in the United States Court of
Federal Claims for their respectively taken land in Illinois. The Miami
Tribe of Oklahoma now accepts the proposition that it is prudent and
necessary for the U.S. Congress to assume a material role in balancing
equitably the interests of the State of Illinois, its citizens and
property owners, at least with respect to the Miami Tribe of Oklahoma,
and to legislate a good faith, fair and meaningful resolution of the
land claims of the Miami Tribe of Oklahoma in Illinois. For that
reason, the Miami Tribe of Oklahoma commends Congressman Johnson for
his leadership in starting dialogue in Congress, by introducing H.R.
791. The Miami Tribe of Oklahoma, however, opposes H.R. 791 for the
reasons that I will address briefly in this statement, but again
accepts the proposition that Federal legislation, in a form and
containing such terms that are different than the present form and
terms of H.R. 791 but that are also fair and reasonable, is the most
appropriate methodology for an expeditious resolution of the recognized
and treaty title claims of the Miami Tribe of Oklahoma to land, and
related rights and interests, in the State of Illinois.
Selected Historical Background--Miami Tribe of Oklahoma:
The Miami Tribe of Oklahoma, the Ottawa Tribe of Oklahoma and the
Prairie Band Potawatomi Tribe of Kansas, and their respective treaty or
aboriginal title claims to lands in Illinois, are the subject of H.R.
791. That is not the only thing these great and historic Tribes have in
common. In addition to their rather dubious distinction of being the
subject of H.R. 791, each such Tribe possesses a distinctive
characteristic that is not shared by most other Tribes in the United
States that have asserted or are presently asserting a bona fide land
claim under a treaty with the United States. Each such Tribe, that is
identified in and the subject of H.R. 791, is and has been since 1787,
a beneficiary of the Northwest Ordinance of 1787.
The Continental Congress enacted the Northwest Ordinance in 1787,
and the U.S. Congress adopted and ratified the Northwest Ordinance in
1789, during its first session after ratification by the original
States of the new U.S. Constitution. Congress ratified the Northwest
Ordinance as part of the exercise of its Commerce Clause, under Article
I, Section 8, Clause 3 of the U.S. Constitution. The Northwest
Territory, which was defined and created legislatively under the
Northwest Ordinance, includes present-day Illinois, Indiana, Michigan,
Ohio and Wisconsin. The Northwest Ordinance of 1787 is still valid U.S.
law, and is part of the organic and constitutional laws of the States
of Indiana and Illinois, and the other Northwest Territory States.
The Northwest Ordinance, as adopted by the Continental Congress and
as ratified by the first U.S. Congress, fostered at least three (3)
important national social policies with respect to the Northwest
Territory: (i) the westward Euro-American settlement of the Northwest
Territory; (ii) the abolition and prohibition of slavery in the
Northwest Territory; and, (iii) the self-imposed affirmative duty by
and on the part of Congress to use utmost good faith in its dealings
with the Indians of the Northwest, and to not take the lands of the
Indians in the Northwest Territory without the consent of those
Indians. The ``pro-Indian'' component of the Northwest Ordinance of
1787 states, in part, that: ``The utmost good faith shall always be
observed towards the Indians [in the Northwest Territory]; their lands
and property shall never be taken from them without their consent.''
Emphasis Added.
In 1795, and pursuant to the Treaty Clause, under Article II,
Section 2, Clause 2 of the U.S. Constitution, and fresh on the heels of
the espoused ``pro-Indian'' policy under the Northwest Ordinance, the
United States, my client and several other Indian Tribes consummated
the Treaty of Greenville. The Treaty of Greenville of 1795, along with
other treaties entered into by the United States and the Miami Tribe of
Oklahoma under the Treaty Clause of the U.S. Constitution, including
the Treaty of Grouseland of 1805 as referenced in H.R. 791, is the
``supreme Law of the Land'' under Article VI, Section 2 of the U.S.
Constitution. Pursuant to the Treaty of Greenville of 1795, the Treaty
of Grouseland of 1805 and other treaties between the United States and
the Miami Tribe of Oklahoma, the Miami Tribe of Oklahoma still holds,
and by corollary has never ceded, its recognized, acknowledged and
treaty title to (i) approximately 2.6 million acres of land in
Illinois, that is referenced specifically in H.R. 791, and (ii) other
substantial and vast acres of land in the original Northwest Territory.
Present Status of Illinois Land Claims:
In 1999, the Miami Tribe of Oklahoma filed a lawsuit, in the U.S.
District Court for the Southern District of Illinois, against several
property owners in Illinois who hold titles to lands in Illinois to
which the Miami Tribe of Oklahoma claims it owns superior treaty title
under the Treaty of Grouseland of 1805. The Miami Tribe of Oklahoma, in
2001, voluntarily dismissed that lawsuit for the sole reason that the
lawsuit was disruptive to those Illinois property owners, and would
have continued to be disruptive during the anticipated lengthy period
of pre-trial proceedings, trial and possible appeals relating to that
lawsuit. In February 2001, after the Miami Tribe of Oklahoma had filed
the lawsuit in Illinois in 1999, but before the Miami Tribe of Oklahoma
voluntarily dismissed that lawsuit in 2001, Congressman Johnson
introduced H.R. 791.
The U.S. Office of Solicitor has examined the recognized and treaty
title claims of the Miami Tribe of Oklahoma to Illinois land under the
Treaty of Grouseland of 1805, but, to our knowledge, has not issued a
formal opinion or assessment as to the validity or breadth of those
claims. The Miami Tribe of Oklahoma is aware generally that the U.S.
Office of Solicitor has examined the aboriginal and/or treaty claims of
the Ottawa Tribe of Oklahoma and the Prairie Band Potawatomi Tribe of
Kansas, but is unaware as to the status or definitiveness of those
examinations.
H.R. 791--General Points of Opposition:
The Miami Tribe of Oklahoma opposes H.R. 791, in its present form,
based on the following general observations and for the following
general reasons:
1. The Miami Tribe of Oklahoma has not consented to the
confiscation and taking of land in Illinois, that it holds or claims by
virtue of recognized title under the Treaty of Grouseland of 1805, or
otherwise. H.R. 791, in present form, takes those recognized title and
related land claims in Illinois of the Miami Tribe of Oklahoma
(including, without limitation, all claims for trespass damages, use
and occupancy, natural resources and hunting and fishing rights that
relate to or arise from such lands), without the consent of the Miami
Tribe of Oklahoma, in direct violation of the Northwest Ordinance of
1787, and of course in direct contravention of the policy and
obligation of ``utmost good faith'' that the Miami Tribe of Oklahoma is
afforded and entitled to receive from the United States and the State
of Illinois.
2. The Fifth Amendment to the U.S. Constitution attaches to the
land and recognized title claims of the Miami Tribe of Oklahoma in
Illinois, including all claims for trespass damages, use and occupancy,
natural resources and hunting and fishing rights that relate to or
arise from such lands. H.R. 791, in its present form, is unfair and
unreasonable, and for that reason and possibly other reasons H.R. 791
is or would constitute a violation of the Due Process Clause of the
Fifth Amendment to the U.S. Constitution.
3. In addition, the taking or confiscation of the land and
recognized title claims in Illinois of the Miami Tribe of Oklahoma
under the Treaty of Grouseland of 1805 (including, without limitation,
all claims for trespass damages, use and occupancy, natural resources
and hunting and fishing rights that relate to or arise from such
lands), as contemplated by H.R. 791, requires the payment of fair
compensation to the Miami Tribe of Oklahoma under the Just Compensation
Clause of the Fifth Amendment to the U.S. Constitution.
4. H.R. 791, in its present form, is or would be a naked and
unprecedented abrogation by the United States of its treaty obligations
that it owes to the Miami Tribe of Oklahoma, and violates or would
violate the Federal doctrine of trust responsibility. The Miami Tribe
of Oklahoma exchanged its vast aboriginal and recognized title claims
to land in the Northwest Territory, in reliance on the Northwest
Ordinance of 1787 (and other applicable U.S. laws) and its negotiated
rights, interests and claims that are set forth in the Treaty of
Greenville of 1795, the Treaty of Grouseland of 1805 and the many other
treaties between the United States and the Miami Tribe of Oklahoma.
Pursuant to the Treaty of Greenville of 1795, the Treaty of Grouseland
of 1805 and the many other treaties between the United States and the
Miami Tribe of Oklahoma, the Miami Tribe of Oklahoma owns, among other
claims, recognized title to land, and rights and interests that relate
thereto, in Illinois, as well other areas of the original Northwest
Territory. The United States has a duty, pursuant to this trust
responsibility, (i) to honor the trust relationship between the United
States and the Miami Tribe of Oklahoma, (ii) to fulfill its treaty
obligations to the Miami Tribe of Oklahoma, under the Treaty of
Greenville of 1795, the Treaty of Grouseland of 1805, and otherwise,
and, (iii) as a fiduciary of the resources of the Miami Tribe of
Oklahoma, to act in good faith and utter loyalty to the best interests
of the Miami Tribe of Oklahoma with respect to the recognized title
claims of the Miami Tribe of Oklahoma in Illinois and elsewhere in the
original Northwest Territory, and otherwise.
5. H.R. 791, in its present form, is internally inconsistent and
legally problematic since it purports to extinguish the recognized
title or claims to recognized title of the Miami Tribe of Oklahoma to
lands in Illinois under the Grouseland Treaty of 1805, upon
Congressional passage of the H.R. 791, but then relegates the Miami
Tribe of Oklahoma to file a lawsuit or multiple lawsuits against the
United States in the United States Court of Federal Claims for monetary
damages attributable to such extinguished claims under the Grouseland
Treaty of 1805.
6. The Miami Tribe of Oklahoma is presently investigating and has
not determined definitively, as of this juncture, whether the State of
Illinois, or any of its citizens or any other party violated the Trade
and Intercourse Act of 1790, as amended, or any other applicable
Federal laws, with respect to the recognized title or claims to
recognized title of the Miami Tribe of Oklahoma to lands in Illinois.
H.R. 791, in its present form, also purports to extinguish any claims
by the Miami Tribe of Oklahoma, with respect to the recognized title or
claims to recognized title of the Miami Tribe of Oklahoma to lands in
Illinois, that relate to or arise from possible violations by the Trade
and Intercourse Act of 1790, as amended, or any other applicable
Federal laws.
7. The investigation and examination by the Miami Tribe of Oklahoma
of its recognized title or claims to recognized title of the Miami
Tribe of Oklahoma to lands in Illinois or any other part of the
original Northwest Territory (including, without limitation, all claims
for trespass damages, use and occupancy, natural resources and hunting
and fishing rights that relate to or arise from such lands), or any
related violations or potential violations under the Trade and
Intercourse Act of 1790, as amended, or any other applicable Federal
laws, requires the expenditure of significant resources and the
compilation of extensive historical research and documentation pursuant
to accepted methodologies, which generally cannot be completed within a
twelve (12) month period. H.R. 791, in its present form, would purport
to take away and terminate any claims, that relate to or arise from its
recognized title or claims to recognized title to land in Illinois, or
otherwise, that the Miami Tribe of Oklahoma may not presently be aware
of or that may be subject to a present but incomplete examination, but
that it may uncover or discover or complete its investigation or
examination later than one (1) year after passage of H.R. 791.
8. The Miami Tribe of Oklahoma incorporates in this statement, by
reference, the statements by or on the part of the Ottawa Tribe of
Oklahoma and the Prairie Band Potawatomi Tribe of Kansas, the National
Congress of American Indians, and others in opposition to H.R. 791, as
presented before the U.S. House of Representatives, Committee on
Resources, on May 8, 2002, which are not inconsistent with this
testimony, and subject to any later clarification or other statement
that is or may be furnished to the Committee on Resources by the Miami
Tribe of Oklahoma.
Conclusion:
H.R. 791 purports to embody an ``equitable settlement'' of the
recognized treaty title claims of the Miami Tribe of Oklahoma in
Illinois under the Treaty of Grouseland of 1805. This characterization
is a misnomer and is illusory. H.R. 791, in its present form, is not a
``settlement'' at all. H.R. 791, in its present form and if passed, is
simply a bold and unprecedented abrogation by the United States of the
treaty rights of the Miami Tribe of Oklahoma under the Treaty of
Grouseland of 1805, and is an involuntary taking or confiscation of the
recognized title of the Miami Tribe of Oklahoma to its land in
Illinois. H.R. 791, in its present form and if passed, simply
guarantees multiple lawsuits against the United States in the U.S.
Court of Federal Claims, for monetary damages attributable to the
taking and confiscation by the United States of the recognized treaty
title claims of the Miami Tribe of Oklahoma in Illinois under the
Treaty of Grouseland of 1805.
H.R. 791, in its present form and if passed, is not only a failure
of ``utmost good faith,'' but it is bad faith, a violation of due
process and the trust doctrine, an involuntary taking, and a
belittlement of the ``supreme law of the land'' and rule of law
generally. In addition, H.R. 791, in its present form and if passed, is
a tragic reminder of the disdain that the United States, through its
policies and laws, has demonstrated historically to Indians and their
Tribes, including the Miami Tribe of Oklahoma, as well as their
respective lands and properties.
The Miami Tribe of Oklahoma acknowledges the perceived intent of
Congressman Johnson, with respect to H.R. 791--a settlement and
resolution of the recognized title claims of the Miami Tribe of
Oklahoma in Illinois, under the Grouseland Treaty of 1805, is in the
public's best interest, including the best interest of the United
States, the State of Illinois and its citizens, and the Miami Tribe of
Oklahoma and its peoples. When Congressman Johnson introduced H.R. 791,
the lawsuit of the Miami Tribe of Oklahoma in Illinois, against
Illinois property owners, was still pending. The Miami Tribe of
Oklahoma dismissed that lawsuit, in good faith, to chart a course of
resolution which is not threatening to or disruptive of the good
citizens and property owners of the State of Illinois, or elsewhere,
but which is also protective of the treaty rights guaranteed by the
United States to the Miami Tribe of Oklahoma.
The Miami Tribe of Oklahoma is desirous of resolving its recognized
title claims in Illinois, and, if appropriate, in the other areas of
the original Northwest Territory, in a manner that is consistent with
the intent and understanding of the Miami Tribe of Oklahoma and the
United States when they negotiated and consummated the Treaty of
Greenville of 1795, the Treaty of Grouseland of 1805 and any other
applicable treaties. H.R. 791 is not an answer or a settlement--it is
simply an invitation to multiple lawsuits and possible extraordinary
monetary damages and injuries to the culture and interests of the Miami
Tribe of Oklahoma. The Miami Tribe of Oklahoma is prepared now to take
all necessary, reasonable and appropriate steps and actions to protect
the rights of the Miami Tribe of Oklahoma under the Treaty of
Greenville of 1795, the Treaty of Grouseland of 1805 and all other
applicable treaties; and, without limiting the foregoing, the Miami
Tribe of Oklahoma is hopeful that such initiatives will include a
reasoned resolution of these claims of the Miami Tribe of Oklahoma. The
Miami Tribe of Oklahoma stands firm with all other Tribes in the
protection of tribal sovereignty and tribal treaty rights, and hereby
reaffirms with the Committee on Resources that the Miami Tribe will not
take any action in derogation of those principles.
I wish to thank the Committee on Resources for holding a public
legislative hearing on H.R. 791, and for inviting allowing the Miami
Tribe of Oklahoma to present written testimony to the Committee on
Resources with respect to H.R. 791.
______
[A statement submitted for the record by The Hon. Pilar C. Lujan,
Former Senator, Guam Legislature, on H.R. 521 follows:]
Statement of The Honorable Pilar C. Lujan, Former Senator of the Guam
Legislature
Mr. Chairman and Members of the Committee on Resources:
I am honored to submit this statement for the record on H.R. 521
and to comment on an issue that my late husband and I have dedicated
much of our public service to, the establishment of the Supreme Court
of Guam.
I am Pilar C. Lujan, a former six term Senator in the Guam
Legislature, and the widow of former Senator Frank G. Lujan who is
memorialized in the Guam law establishing the Supreme Court of Guam.
The Frank G. Lujan Memorial Act is the culmination of our combined
careers in the Guam Legislature and it had been my honor to have
authored this bill and managed its passage into law in the 21'' Guam
Legislature. I am also honored that one of the first Supreme Court
Justices appointed was my daughter Monessa, who served a brief term
prior to her untimely death due to illness.
I am enormously proud of my family's contributions to the Guam
Supreme Court. My commitment to the Guam Supreme Court runs deep, some
would say personal, and I am concerned today as much as I have ever
been in its survival and its ability to succeed as the head of an
independent branch of government.
I am a retired public servant, and although I am currently the
Chair of the Board of Directors of the Guam International Airport
Authority and the Vice Chair of the Democratic Party of Guam, my
comments on H.R. 521 are in my private capacity as a citizen and as one
who has had a lifelong commitment to the Judiciary on Guam.
The Frank G. Lujan Memorial Act, Guam Public Law 21-147, was the
culmination of great effort spanning two decades. As a Senator, my
husband authored the original legislation in the early 1970s
establishing by local law the first Supreme Court of Guam. This local
law was challenged successfully on the basis that the Guam Legislature
did not have the authority under the Organic Act of Guam to establish a
Supreme Court. The Guam Supreme Court was then dissolved while we
pursued an amendment in Congress to the Organic Act of Guam giving the
Guam Legislature the authority to create the Supreme Court.
My husband passed away before the effort was completed, and I ran
for a seat in the Guam Legislature to complete his mission. In every
Legislature that I served in from the 17th to the 21st I introduced a
bill to create the Supreme Court of Guam. I was fortunate to be the
Chair of the Guam Legislature's Committee on the Judiciary and Criminal
Justice in the 21'' Guam Legislature and to be in a position to usher
the Supreme Court bill through the legislative process.
We held hearings, received comments and suggestions, made changes
and crafted a bill based on a broad consensus that was widely supported
by both political parties. The establishment of a Supreme Court of Guam
moved us ever closer to our goal of full self government. By having a
Judicial branch complete with an appellate review process, we had
signaled the maturity of our legal system and the capabilities of the
attorneys who practice law on Guam, both in private practice and within
the government, to manage our legal affairs.
As the principal author and the driving force behind the Frank G.
Lujan Memorial Act, I must state for the record that we had always
contemplated and envisioned a Supreme Court that would exercise
authority over the Judicial branch, both in policy and in
administrative matters. This is a founding principle of an independent
Judiciary, responsive to the people and the legislature, but also
immune from political machinations.
Since leaving the Legislature, I have seen the erosion of the
authority of the Supreme Court of Guam by the efforts of the Guam
Legislature to strip the Court of its oversight responsibilities of the
local courts. We in the 21'' Guam legislature had foreseen these very
problems, and we had included provisions in the Guam law that would
ensure the Supreme Court's oversight of all Judicial matters on Guam.
The latest efforts of the Guam Legislature to change the rules
threatens the independence of both courts, and exposes the courts to
possible political tampering. It should be most troubling to supporters
of an independent and co-equal Judiciary that the legislature has the
option of changing the rules or abolishing the Supreme Court at will.
The fix that H.R. 521 proposes is correct and timely. It is time to
ensure an independent Judiciary by giving the Supreme Court of Guam a
``constitutional'' status by amending the Organic Act of Guam. We are
appealing to Congress to support us in bringing stability to the
Judiciary by clarifying the roles and responsibilities of the Supreme
Court and the Legislature.
The Judicial branch on Guam should be headed by the Guam Supreme
Court, including the administrative and policy making functions. All of
my colleagues who worked so hard to establish the Guam Supreme Court
did not intend anything less than having a Supreme Court that had
authority over the lower courts, and this is exactly what the enabling
legislation accomplished. That is how it is in the American system, and
that is how it should be on Guam. I urge this Committee and Congress to
pass H.R. 521.
______
[A letter submitted for the record by John B. Maher, McKeown,
Vernier, Price & Maher, on H.R. 521 follows:]
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[A statement submitted for the record by Judge Joaquin V.E.
Manibusan, Jr., on behalf of the majority of Superior Court of Guam
Judges, on H.R. 521 follows:]
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[A letter submitted for the record by Neal A. McCaleb, Assistant
Secretary for Indian Affairs, U.S. Department of the Interior, on H.R.
791 follows:]
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[A letter submitted for the record by Joseph B. McDonald, Legal
Counsel, Citibank N.A. Guam, on H.R. 521 follows:]
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[A letter submitted for the record by Vicente C. Pangelinan,
Minority Leader, 26th Guam Legislature, on H.R. 521 follows:]
Statement of Vicente C. Pangelinan, Minority Leader, 26th Guam
Legislature
Hafa adai Sinot gehilo'
Ginen i taotao tano'', un dangkolo na Si Yu'os Ma'ase put este na
opottunidat ni para bai hu prisenta i tistigu-hu pagu na oga'an, put
asunton I mas tatkilu na kotte gi ya Guahan.
Hafa adai Mr. Chairman,
From the people of the land, thank you for the opportunity to
present my testimony today, on the topic of the Supreme Court of Guam
as embodied in H.R. 521, a bill that would amend the Organic Act of
Guam to make the Supreme Court of Guam the chief administrative arm of
Guam's judicial branch.
The road to democracy for the people of Guam has been one mapped
and charted for us by this dignified body. It is a journey on a road
fraught with controversy and tenuous coalitions of political and at
times personal interest. But throughout Guam's short history of
political development and experimentations in democracy, we have met
the challenges and our belief in our democratic system of government-
rooted in the will of the people- has sustained our growth as a people
and progress as a government.
Today, I have come to Washington to appear before you Mr. Chairman
and quoting some lines from a modern day rock classic must say ``what a
long, strange trip its been.'' I first started this journey in the
halls of the Guam Legislature in Hagatna, almost ten years ago when the
first assault on an independent judiciary was launched; standing
steadfast in the defense of a unified judiciary headed by the Supreme
Court. Overrun by circumstances, events and legislative adventurism our
defense efforts necessitated us to take our fight to court rooms of our
local Superior Court and Supreme Court and on to that of the Ninth
Circuit Federal District Courts. Undaunted and certain that we were
fighting for a court system that will serve the best interest of the
people of Guam, rather than the people with the robes, we defended our
local Supreme Court victory in the Ninth Circuit Federal District
Courts, where we once again prevailed.
Regrettably, for the people of Guam, all the court victories will
not ensure an independent judiciary since the foundation that this
honorable body laid for us in creating our third branch of government
lacks the rock solid constitutional protection enjoyed by the executive
and legislative branches. That is what I am here to advocate for today.
The people of Guam, whose self-government continues to be limited
and confined by the lack of clarity on our political status, have
strived to enhance our self-government through whatever means possible
within the binding scope of the Congress that has plenary powers over
our affairs. Notwithstanding these impediments, we have succeeded in
gaining some ground. We have been able achieve, among others, an
elected Legislature in the early 50's, elected Governor and Delegate to
the Congress in the 70's, and most recently, the creation of our
territorial Supreme Court. All have been results of a tedious process
of persistent urging and lobbying by our dedicated leaders over a
prolonged period of time. H.R. 521 if passed, will be hailed as another
milestone in our limited self-government. It will result in a sound
foundation--a ``constitutional'' one if you will--for our third branch
of government, the courts.
When the Thirteen colonies declared independence from the Great
Britain, the leaders of the Revolution discerned the need to establish
an institutional mechanism in the newly-founded nation that would
permanently protect the people from the emergence of an autocratic
individual or a regime that they so despised and just extricated
themselves from. Our forefathers did this at the great risk of life and
liberty. Today we enjoy the protections of their toil and wisdom.
To that end, the architects of the U.S. Constitution carefully
constructed a democratic structure of government comprised of three
branches- the legislative, the executive and the judicial branches-
with each holding an exclusive authority in the life process of any
given policy. This doctrine of Separation of Powers, a basic benchmark
and fundamental precept of our nation, laid the foundation for a
perpetuation of a democratic system of government that we currently
enjoy and cherish.
Defining feature of this is the system of checks and balances that
would ensure the sanctity and the distinct integrity of the three
branches that were created. Under this system, each one of the three
branches has, and does practically exercise, its authority to ensure
the fair and orderly operations of the others. The legitimate practice
and preservation of this doctrine requires the understanding of and
conformance to the fine equilibrium that exists between the two notions
by the three branches. When that equilibrium is breached, the
foundation of our system of government is imperiled. The predicament
that we encounter today in our territory infringes upon breaking that
balance and corrupts the democracy of our forefathers--which we embrace
and desire for ourselves.
The judicial branch of Guam, like its two other counterparts that
have experienced a series of political evolution and growth, also has
undergone a major reformation process to attain its present maturity.
Its growth and maturation has however been subject to the whims of
politics and interests beyond justice.
The Supreme Court of Guam, after a laborious process that lasted 21
years, realized through a local mandate, is administering all functions
of the judicial branch, only recently restored by the aforementioned
court victories. The Supreme Court of Guam has embarked on a noble task
to enhance the efficiency and the effectiveness of our judicial system.
Through its inclusion in the Organic Act, the foundation of the Supreme
Court's place in our government will be accorded the same protection
from erosion emanating from the rage of politics that the Executive and
Legislative branch enjoy.
Any significant political change within our territory requires an
act of Congress. It is a tedious task that nonetheless must be abided
by at this juncture of our journey toward self-determination. H.R. 521
is another measure to effect piecemeal change to the Organic Act of
Guam, to enhance our self-government.
If I may beg the indulgence of the Committee, Mr. Chairman, I wish
to advance the following proposal in granting the people of Guam added
measure of self-government. I ask the Committee to consider amending
H.R. 521 that would allow the people of Guam through a the passage
referendum with two-thirds vote by the people to amend the sections of
the Organic Act relating to internal self government, much like the
states amend their constitutions. The sections that affect territorial-
Federal relations shall remain the purview of the Congress. This would
be consistent with the authority Congress has granted to Guam to draft
it own constitutions, but has been mired in the desire of the people
and rightly so, to resolve the question of our ultimate political
status. This devolution of the power that Congress grants to the states
to the people of Guam and reservation of power that Congress retains
for itself will be a small step for Congress to take in dealing with
Guam, but is a giant leap in self government for the people of Guam.
I ask Congress to act on this proposal and empower the people of
America's beacon of democracy in the Pacific with the life of a
government emblazoned with democratic ideals and practice.
Once again, Hafa adai Mr. Chairman and I thank you and the Congress
for is kind and studied consideration of my testimony.
______
[A letter submitted for the record by Thomas L. Roberts, Dooley
Lannen Roberts & Fowler LLP, on H.R. 521 follows:]
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[A letter submitted for the record by The Hon. James E. Ryan,
Attorney General, State of Illinois, on H.R. 791 follows:]
May 6, 2002
The Honorable James V. Hansen
Chairman
House Committee on Resources
U.S. House of Representatives
Washington, D.C. 20515
Dear Congressman Hansen:
On behalf of the People of the State of Illinois, the Attorney
General of the State of Illinois wishes to submit the following written
testimony expressing the State of Illinois' full support for H.R. 791,
a bill that concerns the resolution of Indian land claims in Illinois.
The Attorney General wishes to thank the U.S. House of Representatives'
Committee on Resources for the opportunity to present this written
testimony, and believes that the State of Illinois has experience with
the subject of this legislation that will benefit the Committee's
consideration of H.R. 791.
H.R. 791. The proposed legislation concerns two specific treaty-
based claims to lands in Illinois brought by Federal Indian tribes. One
claim is based on the August 21, 1805 ``Treaty of Grouseland.'' The
other claim is based on the July 29, 1829 ``Treaty with the United
Nations, etc.'' The former treaty relates to a claim to 2.6 million
acres in eastern Illinois, and the later treaty to much smaller claims
to land in DeKalb county. Section (b) of H.R. 791 extinguishes all
tribal claims based on both treaties, and Section (c) authorizes the
claimant tribes to sue in the Court of Claims based on the treaties
against the United States alone, for money damages.
Tribal Land Claims In Illinois. The legislation is necessary and
important to the State of Illinois because based on the foregoing
treaties, Indian tribes have asserted that they are the true owners and
title-holders of millions of acres of Illinois lands. As of the middle
of the 19th Century, the United States government believed it had
properly extinguished any tribal claims to Illinois land through a
series of treaties with the tribes and others who lived in our State.
After executing these treaties, the United States proceeded to open
lands in Illinois to private settlement. For the past 150 years, the
tribes never asserted that they retained land rights in Illinois.
Moreover, in the 1950s and 1960s, the United States created a Federal
administrative forum for Indian claims against the Federal Government
called the Indian Claims Commission, and the tribes never brought their
current claims before that tribunal. Recently, however, for the first
time in over 150 years, the tribes have claimed that the United States
breached certain early treaties, and that valid tribal claims to
Illinois lands persist. The lands claimed by these tribes are currently
owned primarily by private citizens, and have been in private ownership
since as early as the middle of the 19th Century. The current owners
trace their title back to 19th Century grants from the United States
government.
Tribal Land Claims Litigation. In June 2000, one tribe filed a
Federal law suit in the United States District Court for the Southern
District of Illinois claiming that it was the rightful owner of 2.6
million acres of Illinois. (Miami Tribe v. Walden et al., No. 00 CV
4142). The tribe named as defendants 15 randomly chosen private
citizens who owned land in each of the 15 Illinois counties covered by
the claim. On behalf of the People of the State of Illinois, the
Attorney General of Illinois moved to intervene in the litigation. This
motion was granted, and the State of Illinois filed a motion to dismiss
the tribe's suit. The State's motion asserted that the United States
was the only proper defendant, and that the suit against innocent
modern-day owners must be dismissed because it was barred by the
sovereign immunity of the United States and the State of Illinois. In
June of 2001, the tribe voluntarily withdrew its suit without defending
against the State's motion. However, the tribe continues to talk
publicly about its claim, that claim has not been extinguished by
Congress or the courts, and the claim continues to cloud title and
property values in a huge expanse of Illinois.
Damage And Disrpution Caused By Tribal Land Claims. Despite the
State's view that the tribal claims have no merit, the emergence of
21st century tribal claims that attack over 150 years of private
ownership has adversely impacted land transactions and property values
in our State. In particular, the Miami litigation caused great
consternation in a 15-county area of east-central Illinois. Families
who in some instances had held title to their farms for over 100 years
were suddenly threatened with dispossession. The named defendant in the
tribe's lawsuit was a 90-year old senior citizen. The tribe's suit
treated private landowners in the 2.6 million acre claim area as
trespassers. To protect these innocent people, the State of Illinois
was forced to pass legislation providing funding for the legal defense
of landowners who in some cases had no title insurance and limited
means to defend themselves. The State also retained certain private
Special Assistant Attorneys General to assist in defending the novel
historical and legal issues raised by the tribal claims.
The Need For A Federal Solution. The State of Illinois feels that
the tribal claims lack merit, and that the nearly 200 year-old treaties
cited by the tribes do not create any heretofore unknown tribal rights
to Illinois land. Against this background, H.R. 791 offers the claimant
tribes a generous resolution to their current claims. These claims
attack the validity of actions taken by the United States government
nearly 200 years ago. The legislation before this Committee, H.R. 791,
protects innocent modern day landowners by prohibiting the tribal
claimants from asserting claims to Illinois land based on these ancient
treaties. The legislation is also fair to the tribes, however, because
it authorizes them to sue the United States directly in the Court of
Claims, so that they may obtain a judicial hearing on the treaty
breaches they have alleged. The State of Illinois expects that the
result of such a hearing would be a finding that the tribal claims lack
merit. On behalf of the People of the State of Illinois, the Attorney
General wishes to thank the Committee for hearing this testimony.
Sincerely
James E. Ryan
Attorney General of Illinois
______
[A statement submitted for the record by The Hon. Joe T. San
Agustin, Former Speaker of the Guam Legislature, on H.R. 521 follows:]
Statement of The Honorable Joe T. San Agustin, Former Speaker of the
Guam Legislature, on H.R. 521
Chairman Hansen and Members of the Committee on Resources:
Thank you for affording me this opportunity to provide written
testimony on H.R. 521, to Amend the Organic Act of Guam for the
purposes of clarifying the local judicial structure of Guam.
I am the former Speaker of the 20th, 21st and 22nd Guam
Legislatures, and I had served ten (10) terms in the legislative branch
as a Senator. I am currently the Chairman of the Democratic Party of
Guam.
As the former Speaker of the 21st Guam Legislature, I presided over
the session of the Guam Legislature during which the bill was passed
establishing the Supreme Court of Guam (Guam Public Law 21-147). This
had been an effort many years in the making, and the Frank G. Lujan
Memorial Act was a bipartisan bill that enjoyed widespread support
within the legal community.
The Court Reorganization Act, titled the ``Frank G. Lujan Memorial
Act'', was an effort that had been undertaken with great care and
deliberation and with numerous consultations with the legal community
on Guam. From the first introduction of this bill in 1984 to its
passage in 1993, we ensured that all segments of the community were
consulted and that we were building a consensus. We knew that we were
undertaking a most important court reorganization, and we wanted to be
sure to get it right the first time.
The Frank G. Lujan Memorial Act passed unanimously in 1993 in the
21st Guam Legislature and was signed into law by a Republican Governor.
There was no controversy then concerning Judicial oversight by the
Supreme Court, and administrative and policy-making authority by the
Supreme Court over the lower courts. These are relatively new issues,
but we considered these settled issues in 1993 when the enabling
legislation was passed.
The lesson that we now have learned is that the stability of the
Supreme Court and the Judicial branch requires certainty that the
Supreme Court would be insulated from the politics of the moment to do
what is right for the Judicial branch and to avoid involvement in local
politics. This can only be accomplished by ensuring that the Supreme
Court of Guam is a ``constitutional'' court, by amending the Organic
Act of Guam as H.R. 521 does.
I would like to point out that the Frank G. Lujan Memorial Act was
a bipartisan effort, and that at that particular point in time, no one
could predict whether a Democratic or Republican Governor would have
the honor of appointing the first Supreme Court Justices after the
gubernatorial elections of 1994. In a sense, we were operating based on
our concept of how to best establish a strong and independent
Judiciary, and we were free from the calculations of political
advantage due to the timing of the gubernatorial election two years
later. We worked to ensure a Judicial branch that was a co-equal branch
of government, that had its own internal administrative structure, and
that was unified.
Since 1993, we have seen the turbulence caused by the legislature's
exercise of its power to revisit the Judicial structure, and we have
seen the negative consequences of an internal struggle over the
authority of the Supreme Court of Guam. This is unfortunate and a step
backward from where we wanted the Judiciary to be in 1993.
H.R. 521 clarifies the role of the Supreme Court of Guam as a
constitutional court, and establishes the administrative structure of
the Judicial branch as is the case throughout the United States. To do
otherwise is to accept that Guam can have a Judiciary very different
from that of the other states and territories with no rational basis
for the distinction.
Congress amends the Organic Act of Guam. If there were another
recourse, perhaps we would not need H.R. 521, but the only means now
available to the people of Guam to establish a Supreme Court of Guam as
a constitutional court is the Congressional process. H.R. 521 is needed
to ensure a Judicial branch as a co-equal and independent branch of the
Government of Guam. I strongly urge the Committee on Resources to
report out H.R. 521 and I urge Congress to pass this bill for Guam.
______
[A letter submitted for the record by Marcelene C. Santos,
President, University of Guam, on H.R. 521 follows:]
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[A letter and supporting documents submitted for the record by
Peter C. Siguenza, Jr., et al., Chief Justice, Supreme Court of Guam,
follow:]
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[A letter submitted for the record by Charles H. Troutman, Compiler
of Laws, Office of the Attorney General, Department of Law, Territory
of Guam, on H.R. 521 follows:]
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[A letter submitted for the record by The Hon. Antonio R. Unpingco,
Speaker, 26th Guam Legislature, on H.R. 521 follows:]
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[Letters submitted for the record by Mark R. Warnsing, Deputy
Counsel to the Goveror, State of Illinois, on H.R. 791 follow:]
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[A letter and resolution submitted for the record by Annice M.
Wagner, President, Conference of Chief Justices, on H.R. 521 follow:]
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[A statement submitted for the record by The Hon. Judith T. Won
Pat, Senator, 26th Guam Legislature, on H.R. 521 follows:]
Statement of The Honorable Judith T. Won Pat, Senator. 26th Guam
Legislature, on H.R. 521
Mr:: Chairman and Members of the Committee on Resources:
I would like to thank you for affording me the opportunity to
submit written. testimony on H.R. 521. My name is Judith T. Perez Won
Pat, an elected representative of the people of Guam, and Assistant
Minority Whip of the 26th Guam Legislature.
Let me first commend you for holding this hearing on H.R. 521 which
seeks to clarify Guam's judicial structure by amending the Organic.
Act. I am. in full support of the Guam Judicial Endowment Act by Guam's
Honorable Robert Underwood. At this time, the Judiciary of Guam is not
on equal footing with the other branches of the government.
The Honorable Antonio B. Won Pat was able to have the. Organic Act
of Guam amended with. the passage of the Omnibus Territories Act of
1984. This authorized the Guam Legislature to establish an appellate
court, but did not provide a structure for the new judicial system.
The Supreme Court of Guam was established in 1993 through the Frank
G: Lujan Memorial Court Reorganization Act, but the lack of
administrative direction in the Omnibus Act leaves the court vulnerable
to the political changes of the Guam Legislature.
Since the court is the creation. of the Guam Legislature; only
amending the Organic Act will: ensure permanence, parity and
independence of Guam's Judicial. system.
The provisions of H.R. 521 would, once -and for all, clearly define
the structure. of our Judicial branch within the framework of the
Organic Act and establish the Supreme Court of Guam. as the judicial
and administrative head of the Judiciary.
I believe that H.R. 521 is long overdue and direly needed to
safeguard the integrity and autonomy of the Judicial branch from
political interference from the executive and legislative branches.
I would urge the Committee to favorably report out this appropriate
legislation to the House of Representatives. We need to ensure that the
Judiciary can function as a separate but equal branch of government
without the threat of the other branches having the authority to modify
or strip the powers of the Supreme Court.
Once; again I thank you for your kind consideration on the
submission of my testimony.
-