[House Report 104-694]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-694
_______________________________________________________________________


 
                  PUEBLO OF ISLETA INDIAN LAND CLAIMS

                                _______
                                

 July 22, 1996.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


 Mr. Hyde, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                        [To accompany H.R. 740]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 740) to confer jurisdiction on the United States of 
Court of Federal Claims with respect to land claims of Pueblo 
of Isleta Indian Tribe, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                          PURPOSE AND SUMMARY

    H.R. 740, as reported by the Committee, would permit the 
Pueblo of Isleta to file a claim in the United States Court of 
Federal Claims for certain aboriginal lands acquired from the 
tribe by the United States. The Court's jurisdiction would 
apply only to claims accruing on or before August 13, 1946, as 
provided in the Indian Claims Commission Act (ICCA).

                               BACKGROUND

    The Pueblo of Isleta Indian Tribe asserts that a land claim 
was never filed by the tribe based on aboriginal use and 
occupancy under the ICCA because it received erroneous advice 
regarding the types of claims that could be filed. Tribal 
officials were told by the Bureau of Indian Affairs (BIA) that 
specific documents must be produced in order to mount a claim, 
and were not informed that a claim could be based on aboriginal 
use and occupancy.
    As a result, the tribe filed only a limited and 
unsuccessful claim in 1951 seeking compensation for some 17,000 
acres that were covered by specific land grant documents. The 
tribe states that no claims were filed based on aboriginal use 
due to the misdirected advice of the BIA and the tribal 
officials' lack of familiarity with the provisions of the ICCA.
    The Pueblo of Isleta Indian Tribe seeks the opportunity to 
present the merits of its land claims, which otherwise would be 
barred as untimely, in the United States Court of Federal 
Claims. The tribe cites numerous precedents for conferring 
jurisdiction under similar circumstances, such as with the case 
of the Zuni Indian Tribe in 1978.

                        COMMITTEE CONSIDERATION

    On May 23, 1996, the Subcommittee on Immigration and Claims 
met in open session and order reported the bill, H.R. 740, by a 
voice vote, a quorum being present. On June 11, 1996, the 
Committee met in open session and order reported favorably the 
bill H.R. 2937 without amendment by voice vote, a quorum being 
present.

                      COMMITTEE OVERSIGHT FINDINGS

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT FINDINGS

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               NEW BUDGET AUTHORITY AND TAX EXPENDITURES

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    In compliance with clause 2(l)(C)(3) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 740, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 26, 1996.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 740, a bill to confer jurisdiction on the United 
States Court of Federal Claims with respect to land claims of 
Pueblo of Isleta Indian Tribe, as ordered reported by the House 
Committee on the Judiciary on June 11, 1996. Based on an 
assessment of various possible outcomes, CBO estimates that 
H.R. 740 could be expected to result in additional direct 
spending of between $2 million and $3 million no earlier than 
fiscal year 1998. Because enactment of the bill could affect 
direct spending, pay-as-you-go procedures would apply.
    The bill contains no intergovernmental or private-sector 
mandates as defined in Public Law 104-4, and would impose no 
direct costs on state, local, or tribal governments.
    H.R. 740 would confer jurisdiction upon the United States 
Claims Court to render judgment on claims by the Pueblo of 
Isleta Indian Tribe against the United States for certain 
Indian lands acquired by the United States without adequate 
compensation. Current law bars the tribe from presenting its 
claim because the statute of limitations has expired.
    The costs of this bill would depend on a future decision by 
the Court of Claims. We expect that, if the Pueblo of Isleta 
Indian Tribe were to pursue its claim successfully, the amount 
of compensation would be at least $2 million. This amount 
represents the approximate value of all of the land in question 
at the time of the taking, adjusted for interest. Additional 
monies could be awarded to compensate for possible damages; 
however, CBO has no basis for predicting the amount of any such 
additional payment. On the other hand, the court might view the 
claim as lacking merit and order no compensation. Thus, 
payments could range from zero to several million dollars. We 
do not anticipate that any such judgment would be paid prior to 
fiscal year 1998. Any compensation would be paid out of the 
Claims, Judgments, and Relief Acts account and would be 
considered direct spending.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                         June E. O'Neill, Director.

                     INFLATIONARY IMPACT STATEMENT

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.R. 740 
will have no significant inflationary impact on prices and 
costs in the national economy.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Jurisdiction

    Notwithstanding any law which would interpose or support an 
untimeliness defense, section 1 confers jurisdiction to the 
U.S. Court of Federal Claims to hear, determine, and render 
judgment on certain claims of the Pueblo of Isleta Indian Tribe 
of New Mexico against the United States. Claims within the 
Court's jurisdiction would pertain to lands or interest therein 
which the State of New Mexico or any adjoining State held by 
aboriginal title or otherwise acquired, which the tribe was not 
adequately compensated for by the United States. The section 
allows the Court to award interest of 5% per year accruing from 
the date the land or interest therein were acquired from the 
tribe by the United States. The section also restricts 
jurisdiction of the Court to claims accruing on or before 
August 13, 1946, and limits the time in which to file such 
claims to three years after the date of enactment. The 
jurisdiction of the Court of Federal Claims is conferred 
notwithstanding any failure by the tribe to exhaust any 
available administrative remedy.

Section 2. Certain defenses not applicable

    This section states that any award made to another Indian 
tribe under a judgment of the Indian Claims Commission or any 
other authority with respect to lands which are the subject of 
a claim submitted by the Pueblo of Isleta Tribe under section 1 
shall not be a defense, estoppel, or set-off to that claim. 
Also, the section states that such awards to another Indian 
tribe are not to affect the entitlement, or amount of, any 
relief with respect to the Pueblo of Isleta Indian Tribe claim.

                              AGENCY VIEWS

    The comments of the Department of Justice and the 
Department of the Interior are as follows:

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                   Washington DC, January 26, 1996.
Hon. Lamar Smith,
Chairman, Subcommittee on Immigration and Claims, Committee on the 
        Judiciary, House of Representatives, Washington, DC.
    Dear Mr. Chairman: I am writing in response to your inquiry 
as to the Department of Justice's views on H.R. 740, which 
would confer jurisdiction on the Court of Federal Claims to 
hear the land claims of the Pueblo of Isleta. If, as a policy 
matter, Congress wishes to provide funds to the Pueblo of 
Isleta for the acquisition of lands, the Department would not 
object. However, H.R. 740 would waive a statute of limitations 
to allow the Pueblo of Isleta to litigate a claim that should 
have been brought before the Indian Claims Commission over 40 
year ago in conjunction with other aboriginal title and 
recognized title claims. The Department opposes such ad hoc 
waivers of a statute of limitations.
    The Department has a particular institutional interest that 
leads it to oppose legislative exceptions to statutory 
defenses, including those in H.R. 740. Statutes of limitations 
play a critical role in our ability, as the attorneys for the 
Federal government, to fulfill the Department's mission. There 
must be some definite, limited time period during which the 
Federal government must be prepared to defend itself.
    The Indian Claims Commission Act of 1946, 25 U.S.C. Sec. 70 
(ICCA) provides that all tribal claims that arose prior to 
August 13, 1946, were to be filed within 5 years and that no 
claim not so presented ``may thereafter be submitted to any 
court or administrative agency for consideration, nor will such 
claim thereafter be entertained by Congress.'' 25 U.S.C. 70k 
(1976). This limitation was central to the purpose of the ICCA, 
which was to ``dispose of Indian claims . . . with finality.'' 
United States v. Dann, 470 U.S. 39, 45 (1985) (quoting H.R. 
Rep. No. 1466, 79th Cong., 1st Sess. 10 (1945)). To waive the 
ICCA statute of limitations, as proposed in H.R. 740, would 
undermine the finality that the ICCA sought to achieve. 
Furthermore, once the Federal government ventures down this 
road, it will be difficult to devise a principled basis for 
denying a waiver for other untimely claims.
    We recognize that situations will present themselves in 
which unique circumstances or equities justify special waivers 
of statutes of limitation. We do not believe, however, that 
this is such a situation. On August 7, 1951, the Pueblo filed a 
petition pursuant to the ICCA, which set forth two causes of 
action for compensation for the loss of tracts of land involved 
in Spanish land grants. Both causes of action were resolved 
against the Pueblo on the merits. Pueblo of Isleta v. United 
States, 7 Ind. Cl. Comm. 619 (1959), aff'd, 152 Ct. Cl. 866 
(1959), cert. denied, 368 U.S. 822 (1961).
    The Pueblo now asserts that it has additional historic 
claims based on aboriginal use and occupancy that were not 
brought pursuant to the ICCA. According to the Pueblo, its 
decision not to bring these claims was based upon erroneous 
information, provided by a Bureau of Indian Affairs employee, 
which led them to believe that the ICCA process was not 
available for all of their claims based on aboriginal use and 
occupancy. However, the Pueblo was represented before the 
Claims Commission by two skilled attorneys--Dudley Cornell and 
M.J. Clayburgh. These same attorneys secured awards based on 
aboriginal use claims on behalf of the Zia, Jemez, and Santa 
Ana Pueblos. See Pueblo de Zia v. United States, 165 Cl. Ct. 
501, 504-06 (1964). Based on this information, it appears that 
the Pueblo or its attorneys opted not to pursue certain 
aboriginal use claims in 1951. We do not believe that the 
Pueblo's desire to reexamine this decision more than 40 years 
after the ICCA statute of limitations has run constitutes an 
extraordinary circumstance.
    H.R. 740 also departs from prevailing law by authorizing 
the Court of Federal Claims to award five percent interest on 
any claims on which the Pueblo prevails. Interest is generally 
not recoverable on claims against the United States for the 
extinguishment of aboriginal title. This rule has been adhered 
to throughout the adjudication of ICCA claims. See Tee-Hit-Ton 
Indians v. United States, 348 U.S. 272, 284-85 (1955); Osage 
Nation of Indians v. United States, 119 Ct. Cl. 592, 671-72, 
cert. denied, 342 U.S. 896 (1951). To allow the Pueblo to 
recover interest would be unfair to those tribes that brought 
timely aboriginal occupancy claims. In addition, a change in 
the law at this juncture would inevitably provide an incentive 
for other tribes to request the reopening of their claims. The 
Department therefore opposes the bill's authorization of 
interest.
    Please call on us if we may be of further assistance with 
respect to this legislation. The Office of Management and 
Budget has advised this Department that there is no objection 
to the submission of this report from the standpoint of the 
Administration's program.
            Sincerely,
                                               Andrew Fois,
                                        Assistant Attorney General.
                                ------                                

                   U.S. Department of the Interior,
                                  Bureau of Indian Affairs,
                                    Washington, DC, April 30, 1996.
Hon. Lamar Smith,
Chairman, Subcommittee on Immigration and Claims, Committee on the 
        Judiciary, House of Representatives, Washington, DC.
    Dear Mr. Chairman: Thank you for your letter of January 30, 
1996 regarding the Department's position on H.R. 740. Secretary 
Babbitt has asked me to respond.
    The Department of Justice has previously expressed its 
opposition to this legislation, stating that the legislation as 
written would result in an ad hoc waiver of a statute of 
limitations. The Department of the Interior agrees with this 
assessment.
    In your letter to Secretary Babbitt, you state that while 
the Department of Justice opposes the bill as written, it has 
dramatically changed its position on this legislation since 
1992. Your statement is directed to Justice's present position 
that as a policy matter, if Congress wishes to provide funds to 
the Pueblo of Isleta for the acquisition of lands, the 
Department of Justice would not object. The Department of 
Justice has assured us that this language in the January 26 
letter did not change the longstanding policy of opposing ad 
hoc legislation waivers of a statute of limitations. Rather, 
the Justice Department was informing the subcommittee that this 
policy would not be implicated by the appropriation of funds 
that were not predicated on historic land claims for which the 
statute of limitations had run.
    We share the Department of Justice's opposition to the 
reopening of the claims process in the absence of extraordinary 
circumstances. Allowing interest to be awarded for this 
specific case would also set an undesirable precedent. We 
anticipate that with passage of this legislation, many tribes 
would attempt to reopen land claims foreclosed by the Indian 
Land Claims Commission Act of 1946.
    If the Congress should choose to provide funds to the 
Pueblo of Isleta for the acquisition of lands for which the 
Pueblo might otherwise pursue a court claim we, like Justice, 
would not object, provided that the Congress authorize funding 
for land acquisition by the Pueblo of Isleta over and above the 
Bureau of Indian Affairs' FY 1996 and 1997 appropriation 
requests.
            Sincerely,
                                           Hilda A. Manuel,
                             Deputy Commissioner of Indian Affairs.

                                 
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