[Congressional Record Volume 157, Number 35 (Wednesday, March 9, 2011)]
[Extensions of Remarks]
[Page E443]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    UPHOLDING THE FEDERAL GOVERNMENT'S TRUST OBLIGATIONS TO NATIVE 
                               AMERICANS

                                 ______
                                 

                           HON. PAUL A. GOSAR

                               of arizona

                    in the house of representatives

                        Wednesday, March 9, 2011

  Mr. GOSAR. Mr. Speaker, today I join Congressman Don Young and 
Congressman Doc Hastings in supporting H.R. 887. I explain separately 
my reasons for doing so, and specifically my concerns about a request 
for attorney's fees of $227 million. The resolution of the litigation 
in Cobell v Salazar involved claims that ultimately amounted to a 
breach of trust by the government to Native Americans. The plaintiffs 
have been denied the use of money they were otherwise entitled to, 
according to the settlement. The petition for fees reports that 
``government officials have abused individual Indian trust 
beneficiaries'' for decades.
  While the mismanagement of the Native trust monies is bad enough, a 
second injury cannot be inflicted on these same peoples by a fee 
request that is almost a quarter of a billion dollars. It shocks the 
conscience to see such a large request. Every dollar paid out in legal 
fees is a dollar the injured Native Americans will not have. That being 
said, I recognize, and appreciate, the work done by Plaintiffs' counsel 
on behalf of the claimants, and I recognize the value of that work and 
the years it took. In this case, the magnitude of the recovery cannot 
be used as a benchmark to determine attorney's fees. I would prefer to 
see an accounting of the actual attorney's fees incurred, by the hour, 
to see how that compares as a bench mark. But a contingency fee based 
on a resolution that is itself measured in the billions is simply 
avaricious.
  I therefore support this legislation, H.R. 887, that limits the fee 
award to $50 million. Congress has the ultimate power over Indian 
affairs. It also has the duty to protect Native American rights. The 
Constitution grants to Congress the express power to make regulations 
governing the territory belonging to the United States (Art. IV, Sec. 
3, Cl. 2). In addition, the Indian Commerce Clause conveys the express 
power to Congress over Native American affairs. This clause provides 
that ``Congress shall have the Power . . . to regulate Commerce with 
foreign Nations, and among the several States, and with the Indian 
Tribes.'' (Art. I, Sec. 8, Cl. 3). As a result of these powers, it is 
well established that Congress has plenary power over Indian affairs. 
It is up to us, members of Congress, to make sure we exercise these 
supervisory obligations.
  Finally, there is what is referred to as the federal government's 
``trust relationship'' between the federal government and the Native 
American tribes. This trust relationship obligates Congress and the 
federal government to protect the well-being of Native Americans, 
peoples who rendered their lands in return for this trust. As 
elaborated by Supreme Court Justice John Marshall, the tribes of our 
country are considered ``domestic dependant nations'' whose 
relationship to the United States was like ``that of a ward to his 
guardian.'' We, the guardians in Congress, must now intervene to 
protect those under our care, especially where a fee dispute now 
creates a conflict of interest between the class members and their 
legal counsel.
  That brings us to the Cobell settlement. In rectifying the breach of 
fiduciary duty documented in Cobell, we cannot allow another breach to 
proceed under our noses. Just as the government has a fiduciary duty to 
the Native Americans in the first instance in ensuring trust monies are 
not misappropriated, so too Congress has plenary power to ensure that 
the Native American class members are not gouged in a fee award. I have 
long advocated for sensible legal reform. Excessive attorney's fees in 
cases like this support this advocacy. Though the Cobell litigation was 
contentious and time consuming, no one can tell me, with a straight 
face, that a $50 million dollar fee award is not excellent compensation 
for one case. On behalf of the 21 federally recognized tribes in 
Arizona, over 250,000 strong, from the Dine in the north, to the 
Havasupai at the bottom of the Grand Canyon, down to the Pascua Yaqui 
Tribe in the south, and on behalf of those tribes in between and 
throughout the United States, I rise in support of H.R. 887.

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