Senator James Abourezk

Chairman

Select Committee on Indian Affairs

United States Senate

Washington, D.C.

Chairman Abourezk:

The enclosed information expands upon the testimony given before the Select Committee on Indian Affairs on May 25, 1977. Because neither I nor the Choctaw General Council presently have the resources available to file a legal brief regarding the Principal Chief's lack of authority to seek, to enter into, or to conclude negotiations on behalf of the Choctaw Nation without legislative authorization by the Choctaw General Council, we have stated the major issues and summarized the most important factors which have led us to the present position.

When the Choctaw Nation received the land which includes the Arkansas River bed in exchange for its holdings east of the Mississippi River, it was a sovereign entity with a tripartite division of authority modeled after the institutional structure of the United States. A Choctaw Nation Constitution existed which evidenced the fundamental premises of Choctaw political activity and which established the parameters of legitimate activity by tribal authorities. Unless the actions of the Principal Chief were done in conformity with the Constitution, any agreements made were void and not binding upon the Choctaw Nation as an entity.

In

The Choctaw Constitution (see Appendix A) remains effective as the governing expression of tribal authority. Since the Choctaw tribal government must operate in conformity with its Constitution, the Principal Chief is barred from seeking a settlement agreement unless he is authorized by constitutionally mandated sources. testimony before the Committee we established that the controlling sections of the Constitution forbade such actions. We stated "Article VII section 11 of the Choctaw Constitution confirms the Council's inherent legislative power while Article V sections 7 and 8 require the Chief to act pursuant to legislative authorization only. He has no authority to enter such agreements without legislative directive and Article II section 2 prohibits executive usurpation of legislative powers." These constitutional provisions of the Choctaw Nation must be honored if the relations between the United States and the Choctaw Nation are to rest upon principled action rather than mere political or economic expediency.

Despite persistent bureaucratic attempts to undercut the Choctaw Nation's General Council, the Council's authorization remains an indispensable precedent for legitimate executive action. Under

an almost identical factual and statutory background, the federal court in Harjo v Kleppe 420 F Supp 1110 (see Appendix B) held that the Creek National Council was a required partner in tribal affairs and the Principal Chief of the Creek Nation was not the sole embodiment of Creek tribal government. The court ordered that specific steps be taken to restore the tribal government to operation under its constitutional design. In its 1976 Annual Report, the Solicitor's Office in the Department of the Interior recognizes

the Choctaw and Chickasaw as being similarly situated (see Appendix C). The past bureaucratic practice of dealing only with the Principal Chief is no longer legally acceptable. Consequently, it would be most inappropriate for the United States Congress to enact Senate Bill 660.

There is evidence that the citizens of the Choctaw Nation support the revitalization of Choctaw constitutional processes. For example, there is a perception that one person should not be in a position to unilaterally determine the fate of a whole people. This concern is particularly appropriate in the present controversy since the judicious management, sale or lease of the Arkansas Riverbed resources may well be the pivotal event in determining the Tribe's long range capacities for satisfying the needs of its populace. The Bureau of Indian Affairs has sought to perpetuate the myth that the Principal Chief is the only party with which it must deal. This view is erroneous in light of Hario v Kleppe, past congressional action (see Appendix D, section 28), present congressional policy of encouraging Indian self-determination, and the wishes of the Choctaw General Council.

Furthermore, two relevant petitions are presently being circulated in the Choctaw Nation. The first petition seeks the election of officers under the Choctaw Nation's Constitution and Interior's recognition of the Constitution as the controlling document for Choctaw governmental organization. (see Appendix E). The second demands that no action be taken on the Arkansas Riverbed legislation until the General Council is properly informed about the studies and has an opportunity to decide what actions, if any, the Tribe should take (see Appendix F). Although the present controversy should be properly decided on constitutional terms alone, these petitions indicate that there is local support for the constitutional issues.

Since the primary issue involved is the constitutional authority of the Choctaw Principal Chief to act in the present circumstances, shortcomings of the Arkansas River studies will not be dealt with at the present time: The major problem is that the studies are

exceedingly conservative in asserting tribal ownership of marginal lands along the river. One review indicates that the Tribes may possibly own as much as 5,000-6,000 more acres than the studies indicate. If true, the Tribes are in an extremely disadvantageous negotiating position and the figures mentioned may be grossly inadequate. In any case, the General Council should be the body which determines the relative merits of relinquishing claims to the additional acreages rather than have them conceded without sufficient consideration.

Preliminary review indicates that the oil and gas estimates may be unrealistically low. Confirmation of the evaluation for oil and gas resources is needed before any final settlement agreement is possible. Of particular concern is the possibility that significant resources may exist which have not yet been proven and, therefore, have not been included in the valuation figures. The above problems are merely indicative of the concerns we have about the studies. Since the Choctaw General Council has had no role in formulating the study proposals or in approving/rejecting the findings, there is no reliable manner by which shortcomings may be identified or tribal interests safeguarded. A sale or long term lease agreement by the Principal Chief under such circumstances may well constitute irresponsible action which is not in the best interests of the Choctaw Nation.

We appreciate the opportunity to express our views to the Committee and urge that the Committee delay action until the conditions outlined in our testimony are met. Thank you for your consideration.

Sincerely yours,

Qunny Sam

Jimmy Sam

APPENDIX A

CONSTITUTION AND LAWS OF THE CHOCTAW NATION

CONSTITUTION

We, the representatives of the people inhabitating the Choctaw nation, contained within the following limits, to wit: Beginning at a point on the Arkansas river, one hundred paces east of old Fort Smith, where the western boundary line of the State of Arkansas crosses the said river, and running thence due south to Red river; thence up Red river to the point where the meridian of one hundred degrees west longitude crosses the same; thence north along said meridian to the main Canadian river; thence down said river to its junction with the Arkansas river; thence down said river to the place of beginning, except the territory bounded as follows, to wit: Beginning on the north bank of Red river, at the mouth of Island Bayou, where it empties into Red river, about twenty-six miles on a straight line below the mouth of False Washita; thence running a northwesterly course along the main channel of said bayou, to the junction of the three prongs of said bayou, nearest the dividing ridge between Washita and Low Blue rivers, as laid down on Capt. R. L. Hunter's map; thence northerly along the eastern prong of Island Bayou to its source; thence due north to the Canadian river; thence west along the main Canadian to the ninety eighth degree of west longitude; thence south to Red river, and thence down Red river to the place of beginning; Provided, however, if the line running due north from the eastern source of Island Bayou, to the main Canadian shall not include Allen's or Wa-pa-nacka Academy within the Chickasaw district; then an offset shall be made from said line, so as to leave said academy two miles within the Chickasaw district, north, west and south from the lines of boundary, said boundaries being the limits of the Chickasaw district-assembled in convention at the town of Doaksville, on Wednesday, the eleventh day of January, one thousand eight hundred and sixty, in pursuance of an act of the general council, approved October 24, 1859, in order to secure to the citizens thereof the right of life, liberty and property, do ordain and establish the following constitution and form of government, and do mutually agree with each other to form ourselves into a free and independent nation, not inconsistent with the constitution, treaties and laws of the United States, by the name of the Choctaw Nation.

DISTRICT BOUNDARIES

For the convenience and good government of the people of the Choctaw nation, we do make, ordain and establish four districts in this nation, to be known by the following names and boundaries, viz: Mosholatubbee district, Pushamataha district, Apuckshunnubbee district and Hotubbee district.

The boundary line of Mosholatubbee district shall begin near old Fort Smith, where the Arkansas boundary line crosses the Arkansas river; thence up said river to the Canadian fork; thence up said Canadian to where the Chickasaw district boundary strikes the same, as defined by the treaty of 1855; thence along the said boundary to where it strikes the dividing ridge between the Canadian and Red rivers; thence easterly along said dividing ridge to the western boundary of the state of Arkansas; thence along said Arkansas line to the beginning.

The boundary of Apuckshunnubbee district shall begin on Red river, where the Arkansas state line strikes the same; thence running up said river to the mouth of Kiamichi; thence up said river to the mouth of Jack's fork; thence up said Jack's fork to the old military road; thence along said road to the boundary line of Mosholatubbee district, on the top of the dividing ridge, between the Arkansas and Red rivers; thence easterly along said boundary to the western boundary line of the state of Arkansas; thence along the said state line to the beginning.

The boundary of Pushamataha district shall begin on Red river at the mouth of Kiamichi; thence running up said Red river to the mouth of Island Bayou, to where the eastern boundary line of the Chickasaw district strikes said river, as defined by the treaty of 1855; thence along said boundary line to the dividing ridge between the Canadian and Red rivers; thence easterly along said ridge to the line of Mosholatubbee district, on the top of the dividing ridge, to where the district line of Apuckshunnubbee district intersects Mosholatubbee district; thence southerly along said line to the beginning.

The boundaries of Hotubbee district shall be embraced within the limits of the ninety-eighth and one hundredth degree of west longitude, and between Red river and Canadian river, known as the "Lease Land."

Declaration of rights

ARTICLE I

That the general, great and essential principles of liberty and free government may be recognized and established, we declare:

SECTION 1. That all free men, when they form a social compact, are equal in rights, and that no man or set of men are entitled to exclusive, separate public emolument or privileges from the community, but in consideration of public services.

SEC. 2. That all political power is inherent in the people, and all free governments are founded on their authority and established for their benefit, and therefore they have at all times an inalienable and indefeasible right to alter, reform or abolish their form of government in such manner as they may think proper or expedient.

SEC. 3. There shall be no establishment of religion by law. No preference shall ever be given by law to any religious sects, society, denomination or mode of worship, and no religious test shall ever be allowed as a qualification to any public trust under this government.

SEC. 4. No human authority ought in any case whatever to control or interfere with the rights of conscience in matters of religion.

SEC. 5. No person shall for the same offence be twice put in jeopardy of life or limb, nor shall any person's property be taken or applied to public use without the consent of the general council, and without just compensation being first made therefor.

SEC. 6. No person shall ever be appointed or elected to any office in this nation for life or during good behavior, but the tenure of all offices shall be for some limited period of time, if the person appointed or elected thereto so long behave well.

SEC. 7. The right of trial by jury shall remain inviolate.

SEC. 8. Every citizen has a right to bear arms in defence of himself and his country.

SEC. 9. That the printing-press shall be free to every person, and no law shall ever be made to restrain the rights thereof. The free communication of opinion is one of the inviolate rights of man, and every citizen may freely speak, write and print on any subject, being responsible for abuse of that liberty.

SEC. 10. That the people shall be secure in their persons, houses, papers and possessions from unreasonable seizures and searches, and that no warrant to search any place or to seize any person or thing shall issue, without describing the place to be searched and the person or thing to be seized as nearly as may be now without probable cause supported by oath or affirmation. But in all cases where suspicion rests on any person or persons of conveying or secreting whiskey or other intoxicating liquors, the same be liable to search or seizure as may hereafter provided by law.

SEC. 11. That no free man shall be taken, or imprisoned, or disseized of his freehood liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, and property, but by the judgment of his peers or the law of the land.

SEC. 12. No person shall ever be imprisoned for debt.

SEC. 13. That excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.

SEC. 14. That all courts shall be open and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.

SEC. 15. That the citizens have a right in a peaceable manner, to assemble together for their common good, to instruct their representatives, and apply to those invested with the powers of the government for redress of grievances, or other proper purposes, by petition, address or remonstrance.

SEC. 16. That no power of suspending laws shall be exercised except by the general council or its authority.

SEC. 17. That in all criminal prosecutions, the accused hath a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have a compulsory process for