Congressional Record, Volume 158 Issue 164 (Wednesday, December 19, 2012)

[Congressional Record Volume 158, Number 164 (Wednesday, December 19, 2012)]
[House]
[Pages H7280-H7282]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

REFERRING QUAPAW TRIBE OF OKLAHOMA TRUST CLAIMS TO COURT OF FEDERAL
CLAIMS

Mr. SMITH of Texas. Madam Speaker, I move to suspend the rules and
agree to the resolution (H. Res. 668) to refer H.R. 5862, a bill making
congressional reference to the United States Court of Federal Claims
pursuant to sections 1492 and 2509 of title 28, United States Code, the
Indian trust-related claims of the Quapaw Tribe of Oklahoma (O-Gah-Pah)
as well as its individual members, as amended.
The Clerk read the title of the resolution.
The text of the resolution is as follows:

H. Res. 668

Resolved,

SECTION 1. REFERRAL.

Pursuant to section 1492 of title 28, United States Code,
the bill (H.R. 5862), entitled ``A Bill relating to members
of the Quapaw Tribe of Oklahoma (O-Gah-Pah),'' now pending in
the House of Representatives, is referred to the chief judge
of the United States Court of Federal Claims for a
determination as to whether the Tribe and its members have
Indian trust-related legal or equitable claims against the
United States other than the legal claims that are pending in
the Court of Federal Claims on the date of enactment of this
resolution.

SEC. 2. PROCEEDING AND REPORT.

Upon receipt of the bill, the chief judge shall--
(1) proceed according to the provisions of sections 1492
and 2509 of title 28, United States Code, notwithstanding the
bar of any statute of limitations; and
(2) report back to the House of Representatives, at the
earliest practicable date, providing--
(A) findings of fact and conclusions of law that are
sufficient to inform the Congress of the nature, extent, and
character of the Indian-trust related claims of the Quapaw
Tribe of Oklahoma and its tribal members for compensation as
legal or equitable

[[Page H7281]]

claims against the United States other than the legal claims
that are pending in the Court of Federal Claims on the date
of enactment of this resolution; and
(B) the amount, if any, legally or equitably due from the
United States to the claimants.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Texas (Mr. Smith) and the gentlewoman from California (Ms. Zoe Lofgren)
each will control 20 minutes.
The Chair recognizes the gentleman from Texas.

General Leave

Mr. SMITH of Texas. Madam Speaker, I ask unanimous consent that all
Members may have 5 legislative days in which to revise and extend their
remarks and include extraneous material on the bill under
consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. SMITH of Texas. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, first of all, I want to thank the gentleman from
Oklahoma (Mr. Cole) for sponsoring House Resolution 668.
This bill allows a Native American Tribe that resides in Oklahoma,
the Quapaw, to appear before the United States Federal court of claims
to plead for damages against the Federal Government for mismanagement
of tribal funds. The court would issue a report, either favorable or
unfavorable, to the tribe. If favorable, the Natural Resources
Committee would be authorized to move separate legislation to effect
the court's decision.
In 2002, the tribe filed a lawsuit for an accounting in Federal
district court of the U.S. Government's mismanagement of tribal and
tribal member trust assets.
In November 2004, the tribe and the U.S. Government agreed that the
tribe and third-party contractors would conduct an accounting of the
U.S. Government's actions and inactions related to the trust assets.
This was to facilitate a mediated solution to this lawsuit's claims. In
exchange for this mediated route, the tribe would dismiss the lawsuit.
In June 2010, after 5 years of accounting and related analysis, the
Quapaw Analysis was completed and shared with the U.S. Government. This
set the stage for mediation. That analysis confirmed that the
government's mismanagement of the Quapaw's trust constituted a breach
of trust.
The tribe initiated multiple attempts to resolve their claims, which
the government rejected. By 2011, the tribe sought relief in court from
the government's failure to fulfill its trust obligations and to
mediate and settle the trust claims.
Last year, eight Quapaw Tribe members filed a class-action lawsuit on
behalf of themselves and other individuals for damages based on breach
of trust. The government filed motions to dismiss the case and also
refused to respond to a formal settlement demand proffered by the
tribe.
The government's foot-dragging necessitates our passage of House
Resolution 668 today. The bill doesn't guarantee a desired outcome; it
only allows the Quapaw a chance to go before the Federal court of
claims and make their best case. Even if the court rules in their
favor, the Natural Resources Committee must still move subsequent
legislation that incorporates the court's decision through both Houses
of Congress.
Also, a revision to the bill stipulates that an award of damages by
the court only applies to claims that are not already pending before
the Court of Federal Claims. This ensures that claimants will not be
doubly or excessively compensated.
Again, I want to thank the gentleman from Oklahoma (Mr. Cole) for his
persistence on this issue and for introducing this particular bill. I
urge my colleagues to support House Resolution 668.
I reserve the balance of my time.
Ms. ZOE LOFGREN of California. Madam Speaker, I yield myself such
time as I may consume.
I rise in support of House Resolution 668, a congressional reference
bill concerning the trust-related claims of the Quapaw Tribe of
Oklahoma.
Now, congressional reference bills are rare in Congress. The House
hasn't considered such a bill since 2002 in the 107th Congress, but the
fact that this procedure is a rare one doesn't mean that it isn't a
useful one.
Unlike most other legislation, reference bills require passage in
only one Chamber to take effect. If passed by either the House or
Senate, the bill would simply refer a claim against the U.S. Government
to the U.S. Court of Federal Claims for consideration.
The court, however, as the chairman has indicated, would not be
authorized to render a final ruling on the claim. Rather, it would only
be authorized to consider evidence and to submit a report to Congress
with its findings and recommendations. Congress could then decide,
based on the court's report, whether or not to enact a private claims
bill or appropriate funds to the claimant in the interest of justice.
In this case, H. Res. 668 would refer the bill, H.R. 5862, a bill
relating to members of the Quapaw Tribe of Oklahoma, to the Court of
Federal Claims. And as amended, the bill would authorize the court to
determine whether the tribe and its members have trust-related legal or
equitable claims against the U.S., other than legal claims that are
currently pending before the court.
We have consulted with the Department of Justice and the Department
of the Interior on this matter, and both agencies agree that the Quapaw
Tribe has legitimate claims against the United States concerning
certain tribal lands that were held in trust by the Federal Government.
The only real dispute is the value of the claim.
This makes this congressional reference bill an appropriate measure
to help bring this matter to a final resolution. By referring the case
to the Federal claims court, they can consider all the evidence, submit
a report on what the court believes to be the appropriate value of the
tribal claim, and then, based on that court's findings and conclusions,
Congress can play its appropriate role to consider whether or not it is
in the interest of justice to pass a private claims bill or otherwise
appropriate funds to satisfy the claim.
This procedure will help the Congress do the right thing, and that's
why we're sent here, to do the right thing.
So I ask my colleagues to support this important legislation. I
commend Congressman Cole for his diligent pursuit of this matter of
justice.
I reserve the balance of my time.
Mr. SMITH of Texas. Madam Speaker, I yield as much time as he may
consume to the gentleman from Oklahoma (Mr. Cole), who is the sponsor
of this legislation.
Mr. COLE. I thank the gentleman for yielding.
I had a long oration I was going to make, but I want to be quite
honest. My good friend Chairman Smith and my good friend Ranking Member
Lofgren have actually covered the case as well or better than I can.
They're both distinguished attorneys. They understand the intricacies
involved here, so there's no need for me to go through and literally
repeat point by point what they have already made.
I do want to make one central point, or two points.
First, I want to thank both of them. This is a matter of justice.
This is a bipartisan effort to try and make sure that an Indian nation
that has a legitimate claim against the United States of America has an
opportunity to go to court and make its case; no predetermination of
the outcome, no settlement without coming back through Congress again,
just simply an opportunity to make a case of an injustice that all
sides admit occurred, and establish what's fair compensation.

{time} 1240

I want to commend, again, both my colleagues, and particularly
Chairman Smith. This simply could not have happened without his
cooperation, his help, and the diligent work of his staff.
I urge passage of the legislation.

Introduction

Several hundred years ago, the Quapaw (``the Downstream People'')
were part of a larger group known as the Dhegiha Sioux, which split
into the modern tribes known as the Quapaw, Osage, Ponca, Kansa, and
Omaha. The Quapaw's ancestral lands are located at the confluence of
the Arkansas and Mississippi rivers in what is present day Arkansas.
When first encountered by the Europeans in the 1670's, there were some
20,000 Quapaws living in four villages in this area.
A series of treaties with the U.S. Government resulted in most of the
Quapaw land being ceded to the United States, and the

[[Page H7282]]

Tribe acquiesced to relocation to the far northeastern corner of
present day Oklahoma. In the process, the tribal land base was whittled
down to its current acreage.
After Quapaw lands in Oklahoma were found to contain rich deposits of
zinc and lead in 1905, the Government allowed mining activities to be
carried out largely unfettered, and not for the benefit of the Quapaws.
For years the value of the Quapaw mineral estate was exported from
their land with the Government failing to ensure that royalties,
bonuses and other payments were properly made and managed.

Why H. Res. 668 is Necessary

The Office of Historical Trust Accounting (OHTA) was established by
Secretary of the Interior Secretarial Order No. 3231 on July 10, 2001;
OHTA is charged with planning, organizing, directing and executing the
historical accounting of tribal trust accounts and non-monetary assets.
In 2002, the Tribe filed a lawsuit for an accounting and for asset
mismanagement in the Federal District Court in Oklahoma alleging the
U.S. Government owed them an accounting and had mismanaged their funds
and non-monetary assets.
During this time, there were over 104 tribal lawsuits pending and the
Department of the Interior--Office of Historic Trust Accounting's
ability to fund the accountings and determine whether assets were
mismanaged was severely limited. At the same time, the Department of
Justice had similar concerns about its ability to respond to the myriad
of tribal lawsuits
In July 2004, the U.S. Government and the Tribe negotiated and agreed
to settle the pending lawsuit, and enter into an agreement under which
the Department of the Interior would enter into a contract with Quapaw
Information Services as contractor, to ``identify, select, and
analyze documents, and prepare an analysis (the Quapaw Analysis), of
Interior's management'' of the Tribe's Tribal Trust Fund Account, along
with certain non-monetary land and natural resources assets held in
trust on behalf of the Tribe, and eight individual members of the
Tribe.

In 2010--after six years of work, Quapaw Information Systems gave its
report to the U.S. Government. In turn, the U.S. Government accepted
the accounting as being in conformity with the Federal standards, but
refused to do anything with the accounting.
The Tribe fulfilled its end of the bargain. The U.S. Government did
not.
By 2011, the Tribe was left with no choice but to seek relief in
court from the Government's failure--not only its failure to fulfill
its trust obligations, but its agreement to mediate and settle the
matter once the accounting was completed. Accordingly, eight Quapaw
tribal members filed a class-action lawsuit on behalf of themselves and
all other similarly situated tribal members. This case, Goodeagle v.
United States, seeks damages for the Government's breach of trust in
the U.S. Court of Federal Claims.
In May 2011, the Tribe submitted a formal settlement demand to the
Government, to which the Government has never responded.
Instead, the Government has filed repeated Motions to Dismiss the
Goodeagle case.
With the settlement demand ignored, and the Government's ongoing
refusal to resolve these claims through settlement, in September 2012,
the Tribe filed a complaint for damages in the U.S. Court of Federal
Claims.
In November 2012, the Government filed yet another motion to dismiss
the Tribe's case.

The Mechanics of H. Res. 668

To ensure that the Tribe and its members can pursue their trust-
related claims in the U.S. Court of Federal Claims, Rep. Tom Cole and
Rep. Dan Boren introduced H. Res. 668. Notably, this resolution does
not pre-determine the outcome of the U.S. Court of Federal Claims
review of the Tribe's lawsuit.
It simply allows the Tribe and its members to plead their case to a
neutral decision-maker in a judicial proceeding.
Some may assume that the sending of a congressional reference to the
U.S. Court of Federal Claims has already predetermined liability in
favor of a claimant. As observed by former House Member (Rep. Marion T.
Bennett (R-MO)), who became a Claims Court judge, ``nothing could be
further from the truth or the intent of Congress . . . Congress intends
only to afford an impartial and independent forum for determination of
the merits of a complex claim by judicial methods.'' Bennett, Private
Claims Acts and Congressional References, 9 JAG L. Rev. 9 (1967).
H. Res. 668, as amended, simply affords the Tribe and its members the
chance to present their case about the nature, extent, and character of
the Indian trust related claims of the Quapaw Tribe and its tribal
members for compensation as legal or equitable claims against the
United States other than the legal claims that are pending in the Court
of Federal Claims on the date of House approval of this to a neutral
decision-maker in a judicial proceeding.
Ms. ZOE LOFGREN of California. I have no further requests for time,
and I yield back the balance of my time.
Mr. SMITH of Texas. I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Texas (Mr. Smith) that the House suspend the rules and
agree to the resolution, H. Res. 668.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Ms. ZOE LOFGREN of California. Madam Speaker, I object to the vote on
the ground that a quorum is not present and make the point of order
that a quorum is not present.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
The point of no quorum is considered withdrawn.

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