[Congressional Record (Bound Edition), Volume 158 (2012), Part 13]
[House]
[Pages 17756-17758]
[From the U.S. 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 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.

[[Page 17757]]

  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 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.
  Mr. BOREN. Madam Speaker, the purpose of this statement is to clarify 
the scope of the resolution before us. It states that it encompasses 
Quapaw tribal and individual claims ``other than the legal claims that 
are pending in the Court of Federal Claims on the date of enactment of 
this resolution.''
  A question arises. If one or more of those currently pending legal 
claims are dismissed by the Court for lack of jurisdiction, would the 
dismissed claim be considered ``pending'' for purposes of this 
resolution?
  In my view, the answer is no. Our intention with the reference 
resolution is to request from the Chief Judge of the U.S. Court of 
Federal Claims a report containing findings of fact and

[[Page 17758]]

conclusions of law concerning the nature, extent, and character of the 
Indian-trust related claims of the Quapaw Tribe of Oklahoma and its 
tribal members for compensation. As the language of the resolution 
suggests, these claims may be legal or equitable in nature, and exclude 
only the claims that are already within the jurisdiction of the Court 
of Federal Claims (including the statute of limitations) and are 
already pending in the Court of Federal Claims on the date of 
enactment. If a claim is dismissed as being outside the statute of 
limitations or for jurisdictional reasons, in my view, it was not 
pending on the date of enactment.
  The intent behind the resolution is to have the Court review and 
render a final and complete resolution of all such claims--that 
resolution to occur either in the pending cases under the jurisdiction 
already granted the Court of Federal Claims by the Indian Tucker Act or 
else under the terms of H. Res. 668.
  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.

                          ____________________