Senator BARTLETT. You would see nothing wrong with giving him more authority than he already has; is that right?

Mr. O'CONNELL. Exactly.

Mr. BUTLER. Senator Bartlett, if I may add to that, let me say this. This particular section would, in my judgment, place one additional step in between that we would not necessarily have to use our trust authority and authorization authority of the Snyder Act. Coming to the plan for approval of the committees of Congress or the disapproval, as the case may be, we would merely, upon a negotiated agreement with the respective tribes, come forward in our appropriation acts under the Snyder Act authority.

Senator BARTLETT. You stated to the chairman in his questioning that the decision was reached late last night to oppose this legislation and that that decision was conveyed to you and directed to you by the Department of the Interior.

Mr. BUTLER. Yes.

Senator BARTLETT. Were they in turn directed by OMB to oppose the bill?

Mr. BUTLER. I do not have personal knowledge of that, Senator, but I strongly suspect that that is what took place.

Senator BARTLETT. It seems to me, and this is not in the form of a question, that in the exercise of the trust responsibility by the Department of the Interior and BIA that it is not being properly, fully, and adequately represented when another department can direct its representations of tribal matters. So it is obvious that the testimony today is in contradiction to the real desires of the BIA and the Department of Interior.

I think this strikes at the very fabric of the structure of support and representation that the tribes should receive.

It certainly is very upsetting that the advocate, the trustee, for the Indians is not taking the role of advocacy, in this instance, but instead has rolled over and played dead to another department which has dictated to it what it should say.

I do not think our Government is supposed to work this way.

Chairman ABOUREZK. If the Senator will yield, I think that not only is the Bureau of Indian Affairs the trustee but the Bureau of Indian Affairs is one designated agency to act as trustee but in fact. the entire Government is a trustee to the tribes. That includes OMB. I think that has been lost over there.

How long do you think it would take to negotiate this type of agreement with the tribes? Do you have an opinion on that?

Mr. BUTLER. Mr. Chairman, if you allow me the first 6 months to get my cup of coffee. [Laughter.]

In discussing this with Solicitor Krulitz this morning, this is a very, very serious trust responsibility in my judgment and from our point of view I would like to suggest, if the chairman wishes to pin me to a target date, of perhaps giving us at least 1 year to work on this and perhaps also pose the question to the respective tribes.

I have not discussed this with them. I think to definitively define a timetable as trustee it is my role to consult with the tribal leaders as to a negotiated timetable.

Chairman ABOUREZK. So you think 1 year at the outside; is that correct?

Mr. BUTLER. Yes; I would appreciate that because I have not had the opportunity to consult with them on this timeframe. It is a very serious matter, in my judgment. It is one that I would not wish to rush into.

Chairman ABOUREZK. We will get the view of the tribes right away. We will most likely have to amend this.

Before you came, Senator Bartlett, Senator Bellmon and I discussed a time limit.

Senator BARTLETT. I understand the tribes think 6 months is the time. I am not sure about that.

May I ask a question along that line?

Chairman ABOUREZK. Certainly.

Senator BARTLETT. When would the Bureau be ready to begin negotiations?

Mr. BUTLER. We could begin negotiations right away. In fact, I have a tentatively scheduled meeting with the respective tribes on the Arkansas riverbed relative to this year's funding and it is scheduled for June 1.

Senator BARTLETT. You are tentatively scheduled for what?

Mr. BUTLER. A meeting with the respective tribes involved in the Arkansas riverbed.

Senator BARTLETT. For negotiations?

Mr. BUTLER. It basically comes about, Senator, from a commitment I made to a group of them approximately a month ago when we were discussing the distribution of the current year's funding. There were some differences. We did a study on that. I committed myself to meet further with them to share our findings with them in order to get their views and we tentatively set that for June 1 in Tulsa, Okla. Senator BARTLETT. You think that could get into negotiations? Mr. BUTLER. Yes; it could very well be.

Senator BARTLETT. If it does not then when will you negotiate with the tribes?

Mr. BUTLER. As I say, this could start it. I feel, as our trust responsibility, that we should enter into this negotiation stage, very, very shortly.

Senator BARTLETT. Would you agree that you should be negotiating with the tribes by June 1?

Mr. BUTLER. Yes.

Senator BARTLETT. Would you agree to negotiate with the tribes and begin that by June 1 at that meeting in Tulsa?

Mr. BUTLER. As I say, it is tentatively scheduled. I have not been able to communicate with all of the respective tribes.

Senator BARTLETT. Would you agree to begin negotiations

Mr. BUTLER. Excuse me. In June it would be for the convenience of all the tribes.

My basic philosophy in a matter of this kind, Senator, is that I wish to have all the tribes present when we are discussing such seri

ous matters.

Senator BARTLETT. So that I have this straight, would you agree with the three tribes-the Cherokee, Choctaw, and Chickasaw-to begin negotiations with them on this matter by June 1 of this year, if they are ready? And if they are not ready, would you negotiate at the earliest moment after that date?

Mr. BUTLER. At a mutually convenient time to us all; yes.

Chairman ABOUREZK. For the record, Senator Bellmon testified and from your testimony: Are the appraisals of all of this property completed?

Mr. BUTLER. Mr. Chairman, we have our technicians here. I am not prepared to confirm that, but it is my understanding that, by and large, they are all completed and pretty well agreed to by all parties. Chairman ABOUREZK. Who is your technician?

Mr. BUTLER. Jack Chaney.

Chairman ABOUREZK. Jack, would you come up?

What is your position?

Mr. CHANEY. Jack Chaney, I am Director of the Arkansas riverbed project in the Muskogee area office. Muskogee, Okla.

Chairman ABOUREZK. Have you been conducting the appraisals? Mr. CHANEY. We are contracting and we are all under contract by individual contractors

Chairman ABOUREZK. For appraisal?

Mr. CHANEY. Yes.

Chairman ABOUREZK. Have the appraisals come in?

Mr. CHANEY. Yes.

Chairman ABOUREZK. You have nothing more to do with regard to appraisals?

Mr. CHANEY. The only thing we have that has been expressed by the tribes is based upon whether or not they should do an industrial development appraisal along the river for a large traffic study.

The original land appraisals, mineral appraisals that were set up have already been completed. These are additional.

Chairman ABOUREZK. Does the large traffic study have to do with this legislation?

Mr. CHANEY. No.

Chairman ABOUREZK. So everything as far as the appraisals are concerned is completed.

Mr. CHANEY. Yes, sir.

Chairman ABOUREZK. So you are ready for negotiations.
Mr. CHANEY. Yes.

Chairman ABOUREZK. That is what I want to establish.

On the appraisal, Mr. Butler, is the Department satisfied that the appraisals were done fairly and at arm's length as Senator Bellmon has testified?

Mr. BUTLER. Yes, Mr. Chairman. We feel it was done by competent professional people.

Chairman ABOUREZK. Is it your opinion that the appraised values are fair and equitable to both sides?

Mr. BUTLER. I have not had enough personal experience with the respective tribes to confirm that at this time. I think that would be part of the negotiation process.

Jack Chaney, these have been accepted by the tribes?

Mr. CHANEY. Yes.

Mr. BUTLER. They have been accepted by the tribes.

Chairman ABOUREZK. So they are fair and equitable from the point of view of the Government, and according to Mr. Chaney he has already indicated that the tribes have accepted them; is that right?

93-643 77 - 3

Mr. BUTLER. Yes.

Chairman ABOUREZK. Would private individuals pay for the management of these rivers that were owned by them earlier?

Mr. BUTLER. I understand, Mr. Chairman, that under the navigational servitude theory the river level was brought up to a certain level and that there were some lands above the water line that were purchased. Is that correct, Mr. Chaney?

Mr. CHANEY. Yes; that is correct.

Mr. BUTLER. Mr. Chaney says that is correct.

It was purchased by the Corps of Engineers.

Chairman ABOUREZK. We have no more questions. We want to thank you for your testimony.

Mr. BUTLER. Thank you, Mr. Chairman.

Chairman ABOUREZK. We have the tribal panel witnesses next. Would they please come forward?

The tribal panel consists of Mr. Andy Wilcoxen, Ross Swimmer, David Gardner, and Overton James. Mr. Wilcoxen will you begin?

STATEMENT OF ANDY WILCOXEN, GENERAL COUNSEL, CHEROKEE

NATION

Mr. WILCOXEN. I am Andy Wilcoxen, general counsel of the Cherokee Nation in Oklahoma.

Seated immediately to my left, Mr. Chairman, is Ross Swimmer, the principal chief of the Cherokee Nation. Further to my left is David Gardner, principal chief of the Choctaw Nation, and then there is Overton James, governor of the Chickasaw Nation.

Mr. Chairman, I intended to review at some length the matters which have already been more than adequately taken care of by the statement of Senator Bellmon. Anything relative to the history of this matter, I think would be redundant at this time. I would like to say, Mr. Chairman, that the tribes agree that the appraisals were fairly done and represent fair estimates of the values that they encompass.

I would like to again emphasize that none of the guidelines for doing the work and none of the standards for procedures to be followed and none of the selective processes in securing the appraisers-in none of these things did the tribes have input.

Chairman ABOUREZK. So it was an arm's length appraisal; is that right?

Mr. WILCOXEN. There is no question about it.

Chairman ABOUREZK. In spite of that or because of it or whatever, are the tribes satisfied with the conduct of the appraisal or the outcome of it?

Mr. WILCOXEN. Yes; we are.

Chairman ABOUREZK. So you believe it was a fairly and justly done appraisal?

Mr. WILCOXEN. Yes; we have had ample opportunity to thoroughly consider the work that was done and we are in agreement that they are fair and an arm's length appraisal.

Chairman ABOUREZK. May I ask another question which is pertinent to this bill?

We talked about time limits for the return of an agreement. The Department itself says 1-year maximum would be sufficient. Senator Bell

mon and I discussed 6 months, although we just plucked that figure out of the air.

Because the appraisals are already finished, there is nothing left to do except to decide on a time to sit down and sign an agreement. How long do you think it ought to take?

Mr. WILCOXEN. Mr. Chairman, let me say that we have heretofore come to Washington with an agreement signed by the three leaders of the Indian tribes. We could do this very quickly, but we also understand, even as ordinary citizens, that it takes the Government a little longer to operate than it does other folks. We would suggest, sir, that we could very well accomplish all of these purposes within the 6-month period.

Chairman ABOUREZK. So you think the 6-month limitation after enacting legislation, which is the only way we could do it reasonably I think, would be a fair time limit?

Mr. WILCOXEN. Yes.

Mr. Chairman, may I say on behalf of these Indian nations that we believe the legislation is needed, despite the attitude of the Interior Department. Let me call your attention to the fact that it does certain specific things.

It directs the Secretary of the Interior to enter into an agreement with us. It suggests that he use as a guideline the appraisals that have already been secured. It is very specific in providing that appropriations will be authorized when the other purposes of this act have been carried out.

The bill, as has already been made very clear to the chairman and Senator Bartlett, was initially drafted at the request of the Interior Department and we believe the position they have taken here today under questioning of the chairman and the Senator has been very helpful to us.

I would like to support the position of the tribes with reference to this bill by making specific reference to a memorandum of the legislative counsel of the Interior Department dated August 12, 1976. The concluding paragraph reads as follows:

In accordance with past history I firmly believe that if the Supreme Court's pronouncement in Cherokee Nation v. Oklahoma had preceded congressional consideration of the construction of the Arkansas navigation system, the Secretary of the Interior's trust obligation to protect the property interests of Indian tribes would have compelled a request for legislation to compensate the Choctaw, Chickasaw, and Cherokee Nations for the destruction of their property in the Arkansas riverbed. The enactment of the bill will be the first step in making such restitution to the Indian nations.

Preceding that concluding paragraph, Mr. Chairman, is a recitation of two instances in which the policy of the United States expressed itself by making specific provision for compensation of Indian interests, once by the project on the Missouri River within the Cheyenne River Indian Reservation where Congress ratified an agreement to pay the tribe for the loss of its property interests in the Missouri River. Once again it happened on July 4, 1946, when Congress authorized the Corps of Engineers to acquire land within the Fort Berthold Indian Reservation necessary for the Garrison Dam Reservoir and made provision for compensation to the Three Affiliated Tribes who owned the bottom of the Missouri River.

So, I think to put it into correct perspective from our point of view, what we are saying to this committee is that we are doing, after the