KINZUA DAM TUESDAY, DECEMBER 10, 1963 HOUSE OF REPRESENTATIVES, OF THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, Washington, D.C. The subcommittee met, pursuant to adjournment, 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. When the committee rose yesterday, we had under consideration H.R. 1794. If the three or four witnesses will come back before the committee and take your seats, I would like to ask a few questions. Looking over this committee print, there are some items we are together on and some we are not, but we are not too far apart, as I gather the remarks as made yesterday and the testimony. So let us see if we can proceed. First, Mr. Lazarus, Mr. Holmes, and Mr. Hart, in this bill anywhere, with the exception of where we have designated it in the committee print, is the language clear and acceptable to everybody here? STATEMENT OF LONEY W. HART, CHIEF, LEGISLATIVE SERVICES (RE), OFFICE OF CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY; GRAHAM HOLMES, ASSISTANT COMMISSIONER FOR LEGISLATION, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR; AND ARTHUR LAZARUS, ATTORNEY FOR THE SENECA NATION-Resumed Mr. LAZARUS. Yes, Mr. Chairman. Mr. HALEY. Mr. Holmes? Mr HOLMES. Yes. Mr. HALEY. Mr. Hart? Mr. HART. Except for section 1. If you meant as to language, sir, section 1 was still left open for a decision as to which of the alternatives would be chosen. Both parties have said they have no real objection either way. Mr. HALEY. That is where we have language on the Senecas and Engineers on pages 2 and 3? Mr. HART. Yes, sir. The only distinction, sir, is merely under the Senecas language the bill in itself would become a legislative taking; whereas, under the Corps of Engineers' language it would not be a legislative taking. The taking would have been acknowledged as having been accomplished through the courts by reason of the fact that we have and are still filing condemnation cases in there. This is a matter of choice for the committee to make. Neither party objects either way. Mr. HALEY. On pages 4 and 5 you also have a little difference between you. Mr. HART. Yes, sir; I was excluding that because this is one of the primary purposes of our discussion here yesterday and today. Section 2(b) is the only actual section in real dispute. There, if I may say so, you have the Seneca version and you have the Corps of Engineers version and then there was introduced into the record at the previous hearings in October-October 31 or November 1-a second alternative of the Corps of Engineers. You, in effect, have one version by the Senecas and two by the corps. Mr. LAZARUS. If I understood the testimony of the corps witnesses correctly, they also could live with the text of the Seneca version if the dollar figure were changed. Mr. HALEY. Yes, that is my understanding. That is where the three items of the sand and gravel, oil and gas, and other minerals are provided. The Senecas say $500,000 and the Corps of Army Engineers Mr. HART. We have testified that $50,000 would be a figure we would like to see in there, sir. Mr. HALEY. You also take the position that you are paying for this actually twice? Mr. HART. This is true only in respect to certain sand and gravel tracts wherein we had agreed to payments under section 2(a) for the surface in which we said we felt that we would have to have an adjustment to reduce the surface right. This would be true only to the extent that whatever figure the committee might insert in section 2(b), in place of the $500,000, if that should exceed our $50,000 figure, we would feel that we were paying-that is, to the extent of sand and gravel-we would be paying twice to whatever amount that is up to the amount of $64,000 in round figures, which was the agreed surface value for the second highest and best use, as Mr. Lazarus explained yesterday. Mr. HALEY. Now we have a difference between the corps and the nation on page 6, line 16. The corps figures $824,273; is that right? Mr. HART. That is correct, sir. Mr. HALEY. Mr. Lazarus and the Senecas, $1,242,250. Did we have, Mr. Hart, a breakdown of your $824,273, how you arrived at that? Mr. HART. Yes, sir; that was submitted as an insert for the record and also yesterday I gave the breakdown again. It is made up of three items. First was the moving costs in the amount of $127,050. The second was the payment for the loss of the wildlife products, which was $691,625. The third item was the loss of access to the riverbed, which was $5,598; those three items. Mr. HALEY. Mr. Holmes, the total sum under section 4 on page 10, that is $16,931,000 as I total it; is that right? Mr. HOLMES. Yes, sir. Mr. HALEY. How many Indians, Mr. Holmes, are involved? Mr. HALEY. Have you figured out how much this would amount to per Indian? Mr. HOLMES. No, sir; I have not, but it is about $4,000. Mr. HALEY. About $4,000 per Indian? Mr. HOLMES. Yes, sir; $4,000 would be $16,800,000. It is pretty close to $4,000 per capita. Mr. HALEY. On an average, Mr. Holmes, just roughly what are the expenditures of the Bureau of Indian Affairs per Indian each year over the United States? Do you have any idea what that is? Mr. HOLMES. No, sir, I do not. Mr. MORRIS. Mr. Chairman, may I ask a question? Mr. HALEY. Yes. Mr. MORRIS. Do you recall the Bureau of Indian Affairs budget for this fiscal year? Mr. HOLMES. No, I do not know exactly what it is. Mr. MORRIS. Do you recall approximately how many Indians we are supposed to have in the United States? Mr. HOLMES. I understand that there are about 500,000 persons of Indian descent, but about 380,000 of them are considered eligible for services of the Bureau of Indian Affairs. I do not recall exactly what the Bureau's budget was for this year. Mr. MORRIS. According to this chart, in 1963 the Bureau of Indian Affairs budget was a little less than $200 million, but that did not include Indian health activities and construction of Indian facilities. Total expenditures amount to approximately $270 million, according to this chart handed me by the committee staff. Mr. HALEY. That is my recollection. Of course, here is what we are faced with. We are faced with a situation of 4,200 people who, if nothing is done, are going to cost the taxpayers from here on out about $800 or a little more per year, per Indian. Mr. HOLMES. I might suggest we are out of business at Seneca; we were before this dam construction started. Mr. HALEY. You were out of business? Mr. HOLMES. Yes, sir; we had no office there. Mr. HALEY. I understand that, but I am now saying that because of the construction of the Kinzua Dam we are back in the Indian business in New York State, and based on the percentage of Indians we have on reservations and taking into consideration the budget, we are spending a little better than $800 a year for Indian service, per Indian. At $4,000, which is approximately what this bill comes to here, that would only be 5 years roughly, and we still would not have solved the problem unless we did some of these things that the Indians say will put them back on their feet and put them in business as an economic unit. That is the point I am trying to get into the record. Mr. HOLMES. That is correct. Mr. HALEY. If we do not do these things, in 5 years' time we will have expended this much money and have done nothing Mr. Lazarus, are these the figures you gave us? Mr. LAZARUS. Yes, sir. I had three items yesterday which I promised to give to the committee. (See p. 459.) The first is a figure to be inserted in section 3(a), page 7, líne 13, where the committee 20-289 0-64- -31 print reads, "not exceeding $1,000,000," the figure to be substituted for $1 million is $611,675. This figure is arrived at by taking the figure from section 2(a), $666,285, and subtracting from the larger figure those lands which are owned exclusively by the Seneca Nation, the value of those lands, on which no individual could file a claim. As a result of that subtraction, we arrive at the figure of $611,675. As the committee recognizes, this is just a technique for distribution, it is not any additional appropriation. Mr. HALEY. In other words, this $611,675 is in the figure of $666,285? Mr. LAZARUS. That is correct. Mr. HALEY. It is not an additional amount of money but just a distribution of that amount that is already in it? Mr. LAZARUS. That is correct. For the files of the committee, I also have brought in a Xerox copy of the attorney's contract between the Seneca Nation and my law firm, together with copies of some of the approval documents by the Secretary of the Interior. Mr. ASPINALL. Mr. Chairman, I ask that that be made a part of the record. Mr. HALEY. You have heard the request of the gentleman from Colorado that the contract be made a part of the record at this point in the proceeding. Without objection, it is so ordered. (The documents referred to follow :) DEPARTMENT OF THE INTERIOR, OFFICE OF THE SOLICITOR, Washington, D.C., December 20, 1960. STRASSER, SPIEGELBERG, FRIED, FRANK & KAMPELMAN, GENTLEMEN: Your letter of December 13 addressed to the Secretary transmitted a copy of a resolution adopted by the council of the Seneca Nation of Indians on December 10 accepting the conditional approval of December 5 of the attorney contract between your law firm and the Seneca Nation and accepted the conditional approval on behalf of your firm. By messenger on December 14 you delivered to this office a certified copy of the resolution. One copy of the conditionally approved contract is enclosed for your records. One copy is also enclosed for the records of the Seneca Nation. Sincerely yours, EDMUND T. FRITZ, Acting Solicitor. BUREAU OF INDIAN AFFAIRS, ATTORNEYS' CONTRACT Symbol 14-20-0650-Contract No. 809 This agreement, made and entered into the 17th day of October 1959, by and between the Seneca Nation of Indians, hereinafter referred to as the nation, represented by George D. Heron, president, and Strasser, Spiegelberg, Fried & Frank, hereinafter referred to as the attorneys. Witnesseth: 1. The nation, by and through its president, under authority vested in him by resolution of the governing council of the Seneca Nation, a copy of which is attached to and made a part of this agreement, hereby contracts with, retains and employs the attorneys in the matters hereinafter mentioned. pursuant to the provisions of section 2103 of the Revised Statutes (sec. 81, title 25, U.S. Code), as amended. 2. It shall be the duty of the attorneys to advise, assist, and represent the nation as its general counsel in all legal matters, including, but not limited to, legal advice on Federal and State laws affecting Indians and any proposed changes therein, appropriate activities to preserve the rights and jurisdiction of the nation, assistance in the leasing and development of property belonging to the nation, recovery of sums due to the nation, and other legal matters of interest to the nation, but not including claims against the United States or the State of New York. In performing these services and the further services provided under paragraph 4 of this agreement, the attorneys shall advise the nation and represent it before all courts, departments, tribunals, agencies, committees of Congress, and the New York Legislature, and other officers, Federal or State, having any duty to perform in connection with the matters so described. 3. As consideration for the services rendered pursuant to paragraph 2 of this agreement, the attorneys shall receive annually the sum of $5,000, payable in equal quarter-annual installments: Provided, however, That the payment of compensation shall be made only upon the submission of proper vouchers approved by the Commissioner of Indian Affairs, or his duly authorized representative; and Provided further, That such payments shall be subject to the availability of funds in the local treasury of the nation or held by the United States for the use and benefit of the nation; and Provided finally, That the fee herein stipulated shall be subject to renegotiation, with the approval of the Commissioner of Indian Affairs, as of each anniversary date of the contract, if either party has served notice not less than 15 days prior to such anniversary date of a desire to renegotiate. 4. It shall be the further duty of the attorneys to advise, assist, and represent the nation on all legal matters relating to its efforts to prevent the taking of Seneca lands in connection with the proposed Allegheny River (Kinzua Dam) project, including, but not limited to, the advocacy of alternative flood control plans and, if so directed by the nation, the exhaustion of remaining legislative, administrative and judicial remedies and appeals. In the event the nation's efforts to preserve its lands are not successful, the attorneys shall advise, assist, and represent the nation on all legal matters arising out of or relating to the taking or other use of Seneca lands for said project, including, but not limited to, assistance in the negotiation, preparation, and execution of any settlement agreement, prosecution of any claim for the loss of said lands, and representation before appropriate agencies, tribunals, and legislative bodies with regard to the size and distribution of any award, judgment or settlement fund: Provided, however, That nothing in this agreement shall be construed as authorizing the attorneys to enter into any settlement without the consent of the nation. In view of the provisions of paragraph 5 relating to compensation, the attorneys also agree without additional charge to represent individual members of the nation, if these individuals so request, on all legal matters arising out of the taking or other use of their interests, if any, in Seneca lands to the extent such individual interests are not in conflict with the interests of the nation. 5. As consideration for the services rendered pursuant to paragraph 4 of this agreement, the attorneys shall be entitled to a fee of $10,000 if construction of the presently proposed Allegheny River (Kinzua Dam) project is blocked or if alternative flood control plans are adopted which will exclude a substantial portion of the Seneca land now covered by the project. In the event the nation's efforts to prevent the taking of Seneca lands in connection with the proposed Allegheny River project are not successful, in whole or in part, the attorneys also shall be entitled: (a) in the event of a satisfactory settlement without litigation, to a fee of not less than 22 percent nor more than 5 percent of all money and other property paid or delivered for any lands or interests in lands taken or used in connection with the Allegheny River project (including the value of individually owned interests therein, but not the value of individually owned improvements thereon), said fee to be fixed by the Commissioner of Indian Affairs; or (b) in the event judicial proceedings prove necessary or desirable, to a fee of not less than 5 percent nor more than 10 percent of the total recovery for any lands or interests in lands taken in connection with the Allegheny River project (including the value of individually owned interests therein, but not the value of individually owned improvements thereon), said fee to be fixed by the court, or if the court fails or refuses to act, by the Commissioner of Indian Affairs. 6. The attorneys shall be reimbursed for all necessary and proper expenses incurred in connection with the performance of their duties hereunder after the effective date of this agreement, including, but not limited to, traveling |