[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

                               __________

           Printed for the use of the Committee on Resources



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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
                                 ------                                

                            C Of N T E N T S

                              ----------                              
                                                                   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.

                              ----------                              


                         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.
                                 ______
                                 
                                 [GRAPHIC] [TIFF OMITTED] 79494.001
                                 
                                 [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:]

[GRAPHIC] [TIFF OMITTED] 79494.049

    [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. 
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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.

                                   - 
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