for this recreational development, should not be provided at project expense, but should be paid from funds appropriated for rehabilitation.

With regard to subsections (c) and (d) relating to relocation and resettlement, the Corps of Engineers has agreed with the Seneca Nation to design and construct with project funds, approximately 5.5 miles of access roads upon assurance by New York State to maintain these roads.

I would like to add to that that since the preparation of our report we have received a letter from the State of New York dated July 10 advising that the State will maintain these roads, so with that in mind we have no other conditions attached and we have detailed maps which we can show the committee should you be interested. We are ready to go.

These

With regard to section 4(f) authorizing the acquisition of lieu lands either within or adjacent to the Allegany Reservations as further described in section 13 of the bill, the Secretary of the Interior is authorized to acquire an unspecified number of acres, which lands will have the status of lands within the reservation. two sections provide for the acquisition of lands for several distinct uses, (1) land required for the relocation of houses (resettlement area), cemeteries, and community facilities, and (2) for recreational and industrial development.

Under the mutually agreed procedure for implementing the President's directive, it was agreed that the Seneca Council would inform the district engineer as to the extent and exact location of lieu lands desird by the Nation. The Corps of Engineers would then ask the Bureau of Indian Affairs whether those lands are suitable for tribal purposes and uses contiguous to the remaining lands. The Seneca Council has not at this time informed the district engineer that they desire in lieu lands. These provisions authorizing the Secretary of the Interior to acquire in lieu lands with other than project funds is not objectionable to his Department. However, if such lands are considered as replacement for lands taken, it would appear appropriate to deduct the cost of such lands from payments provided under subsections 2 (a) and (b) of this bill.

Section 5 providing that the Secretary of the Army shall relocate cemeteries, graves, tribal monuments, and shrines is not objectionable to this Department. Agreement has been tentatively reached with the Seneca Nation for the Corps of Engineers to relocate approximately 3,000 graves to two selected sites; the nation is to form a cemetery corporation; and the Secretary of the Army is to provide a fund in the amount of $43,200 to this corporation for perpetual care and maintenance to those reinterred. An appropriate amendment to reflect this procedure is attached to the report of the Secretary of the Army. We also have maps and charts showing this. Section 6 providing for the reservation of minerals, oil and gas, sand and gravel is considered objectionable, as the Government is acquiring only easement interests in the reservation land. suggested amendment to reflect this fact has been submitted with our report.

A

Mr. HALEY. When you flood these mineral, oil and gas, sand and gravel with this reservoir, to all intents and purposes they are lost

to the use of the Indian and economy. You cannot get gravel 50 feet under water.

Mr. HART. Sir, of course you are correct depending on the location, area, and the amount of water. However, as has been shown on some of the maps, a large portion of this land will be only occasionally inundated, and as such there will be no difficulty in exploiting, exploring, or developing these minerals.

The question of whether or not they could be developed or used below the waterline is conjectural. As we have said before, however, in any of these lands we are taking below the 1,340 we are paying fee.

However, this amendment we have made is strictly one of drafting and it is to correct the fact we are not endeavoring to acquire the interest. They are reserved. You take an interest but do not spell it out in the easement and the rest is reserved.

For what it is worth, they have, and the other is a question of evaluation. This is purely technical from the standpoint of title. Section 7 pertains to the members of the Seneca Nation remaining on and using, without charge, the lands within the taking area until required to vacate by the Secretary of the Army with approval of the Secretary of the Interior. This section in general is not objectionable. However, it should be understood that vacation of certain areas must be in conformance with construction schedules. Since closure of the dam is scheduled for October 1964, occupancy of improvements cannot be permitted after that date. Accordingly, October 1, 1964, should be inserted in this section as the maximum date of occupancy.

Section 8 provides a right for the Seneca Nation and the individual Indians, without charge, to cut and remove all timber and salvage improvements from their respective lands up to 60 days before the date for vacating the taking area in accordance with the provisions of section 7. This Department considers these rights to be a duplication in part to the payments provided in subsections 2 (a) and (b) and therefore objectionable. Additionally, the above comments as to section 7 are equally applicable here as to dates of removal. It should be clearly understood that these rights are subordinate to the construction requirements.

Section 9 provides that the Seneca Nation shall have the right to use, occupy, and control the taking area of the Allegheny River project, not inconsistent with the interests acquired by the United States, including the right to regulate access to the shoreline of the reservoir. This provision is unnecessary if the primary purpose is merely to provide for use of the land areas; as the United States is acquiring only easements, all other rights not inconsistent therewith remain with the owners as a matter of law. If the purpose is to effect uniform control in the Seneca Nation as a matter of management by elimination of any rights of the individual allottee, such would be of no concern to this Department.

The "taking area" within the Allegany Reservation will encompass both the water areas of the reservoir and the intermittent flooded land areas. To permit the nation to exercise any control over the waters of this reservoir would be (1) in direct conflict with existing statutes relating to navigation and water resource projects; (2) an

undue restriction on the proper operation of this project by the Corps of Engineers as required by law; and (3) it would lead to conflicts and confusion of the public in its use of these waters.

The provision affording the Seneca Nation the right to regulate access to the shoreline of the reservoir should be deleted. The acquisition of only easements over reservation lands precludes the Government from providing any public access areas to the reservoir; control of these lands remain therefore with the owners as a matter of law. However, it is desired to point out that under section 4 of the Flood Control Act approved December 22, 1944, and amendatory acts, Congress has expressed the intent that "the water areas of all such projects shall be open to public use generally, without charge, for boating, swimming, bathing, fishing, and other recreational purposes.”

For these reasons, the Department of the Army recommends the section 9 be deleted in its entirety. However, if it is desired to retain this section, then it is recommended that it be amended to clearly confine the exercise of control by the Seneca Nation to the land areas. An appropriate amendment for this purpose has been submitted with the report of the Secretary of the Army.

Sections 11 and 12 provide procedures for a determination of the respective rights of the Seneca Nation and the individual Indians as to those instances wherein the individual Indian rejects the tender of payment under subsections 2 (a) and (b) (direct damages), by referral of the matter to the Federal district court. In this connection, as mentioned before, the department of the Army proposes to acquire the real property interests in the Allegany Indian Reservation by institution of condemnation proceedings in the U.S. District Court for the Western District of New York. All parties will therefore be afforded an opportunity to present evidence as to value, their entitlement to compensation, and obtain an adjudication thereon. Since the provisions of these sections may in some respects differ from established judicial procedures, it is recommended that the committee obtain the views of the Department of Justice which has the primary responsibility for conducting the Government's condemnation proceedings.

In view of the foregoing, it is the recommendation of the Department of the Army that the committee defer final action on these bills, H.R. 1794 and H.R. 3343, for such time as will permit (1) the completion, review, and analysis of the various reports in support of those items in the bills containing unspecified amounts, and (2) the ascertainment of the direct damages or a method to provide for the same. This concludes my statement, Mr. Chairman, and we shall be happy to answer any questions you may have in this matter.

Mr. HALEY. Of course, you heard the bells which indicate that it is time for the committee to rise. The committee will resume its deliberations tomorrow at 9:45.

Mr. Hart and Mr. Berge, can all of you be present at that time? I am sure members of the committee have many, many more questions they would like to ask you.

So far as your last statement is concerned, on page 15, that we defer action on this bill until some future time, am afraid, Mr. Hart, we have dilly-dallied a little too long on this, and I think it is pretty much the consensus of opinion of this committee we had better get

along with the job we have at hand, and the corps and other people involved had better begin to get their ducks in the pond, so to speak, and move forward.

Mr. EDMONDSON. How much time did you have in mind with that suggestion that we defer action-a month?

Mr. HART. I would think, sir, it ties in with these reports which are still under study with the Bureau of Indian Affairs and the Seneca Nation.

The Brill report will be completed sometime in August. If they have finished all their studies as to indirect damages, and we hope they have, they can furnish it and that can be done in a month.

Insofar as direct damages are concerned, we are being delayed in connection with the descriptions and alinements by the State of New York for these highways. That has been our biggest holdup.

However, as we suggested, if we go ahead and acquire these interests by filing of multiple condemnation suits, which we are doing right now, and we have 5 of them all ready, covering 115 tracts which we hope to submit to the Justice Department within the next few weeks, aside from direct damages we should be ready.

On the direct damages, if the committee will consider that as a matter for the future, negotiation or court disposition, you can proceed with the bill on oil damages and special damages.

This is just a suggestion.

Mr. EDMONDSON. You are not talking about a delay of more than a month and a half or 2 months, then, when you suggest deferral of action, are you?

Mr. HART. Certainly, except on direct damages. The situation is such that we can come up with the Government estimate. Whether we come to an agreement with the nation is another thing. We are quite a bit apart on certain features, primarily oil and gas, and sand and gravel. We are millions apart on that respect. Whether we can ever come together I don't know, sir.

Mr. HALEY. Thank you very much, Mr. Hart.

We shall see you gentlemen at 9:45 tomorrow.

(Hearing adjourned at 11:50 a.m. to Tuesday, July 16, 1963, at 9:45 a.m.)

KINZUA DAM

TUESDAY, JULY 16, 1963

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON INDIAN AFFAIRS

OF THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Washington, D.C. The subcommittee met, pursuant to recess, at 9:45 a.m., in room 1324, Longworth Building, Hon. James A. Haley (chairman of the subcommittee) presiding.

Mr. HALEY. The subcommittee will be in order. Will the witnesses who were before the committee yesterday when we adjourned come forward and take the witness stand?

STATEMENT OF WOODROW L. BERGE, ACTING DIRECTOR OF REAL ESTATE, OFFICE, CHIEF OF ENGINEERS; COL. BERT de MELKER, DISTRICT ENGINEER, U.S. ARMY ENGINEER DISTRICT, PITTSBURGH, PA.; LONEY W. HART, CHIEF, LEGISLATIVE SERVICE (REAL ESTATE), OFFICE, CHIEF OF ENGINEERS; MARK GURNEE, CHIEF, OPERATIONS DIVISION, OFFICE, CHIEF OF ENGINEERS; C. C. CASEY, CHIEF, PLANNING AND PURCHASE (REAL ESTATE), OFFICE, CHIEF OF ENGINEERS; J. A. NEILL, CHIEF, ENGINEERING DIVISION, U.S. ARMY ENGINEER DISTRICT, PITTSBURGH, PA.; HALSEY W. HARMON, PROJECT ENGINEER, U.S. ARMY ENGINEER DISTRICT, PITTSBURGH, PA.; LAWRENCE A. LAYTON, DISTRICT COUNSEL, U.S. ARMY ENGINEER DISTRICT, PITTSBURGH, PA.; AND PAUL E. LOCKE, LIAISON REPRESENTATIVE, U.S. ARMY ENGINEER DISTRICT, PITTSBURGH, PA.-(Resumed)

Mr. HALEY. Mr. Hart, I believe when the committee rose yesterday you had completed your statement, had you not?

Mr. HART. Yes, sir; we had.

Mr. HALEY. We will proceed with the questioning. I direct this question to you, Mr. Berge, and to Colonel de Melker and Mr. Hart. Was your office, each of you, was your office furnished with a copy of the letter that the President of the United States had directed to the Seneca Nation?

Mr. BERGE. Yes, Mr. Chairman, we were.

Mr. HALEY. That letter indicates to me at least a sense of more or less emergency, does it not, sir?

Mr. BERGE. Yes, sir.

Mr. HALEY. That letter was dated August 9, 1961. Mr. Hart, did you receive a copy of this letter?

Mr. HART. Yes, sir; we have it in our files.