Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 8, 1 August 1991 — Resolving claims via congressional settlement [ARTICLE+ILLUSTRATION]

Resolving claims via congressional settlement

Past columns have discussed potential elements of a federal legislative package to address Hawaiian Native CIaims. The claims concern the participation of the United States in the

■l overthrow of Queen Lili'uokalani, the subsequent taking of Hawaiian royal and government lands by the United States, and the mismanagement of any trust obligations the United States has with respect to Hawaiian Natives. We have taken a brief look at creating standing to sue in federal courts for Hawaiian Natives, the Trust Counsel proposal, and the use of native claims commissions. These devices essentially provide for what lawyers eall "adversarial proceedings"; they set up mechanisms where the case against the United States is researched, presented and argued, and the case defending the United States is similarly researched, presented and argued. Defending the United States is the responsibility of the U.S. Department of Justice. Who represents Hawaiian Natives in bringing the case against the United States is one of the difficult issues that requires resolution. Onee both sides of the case are presented, the judiciary or a claims commission decides the merits — was a wrong committed, and if so what is the appropriate award of damages? As noted in an earlier eolumn on claims commissions, such commissions have been set up with rules that favor finding that a wrong has been committed, and the principal focus for claims commission often has been the question of damages. Usually commissions ean only provide for an award of monetary damages. Although courts definitionally have a greater array of remedial powers than a commission, they too are hard pressed to provide land returns. There is another potential device for resolving claims that technically is not adversarial, but one whieh is highly political and that is the congressional settlement. Congressional settlements are acts of Congress, usually the result of extensive and complex negotiations, that wipe out whatever claims might exist in return for a specific set of congressional commitments. Generalizations concerning congressional settlements are difficult to establish, for although there have been a fair number of settlements enacted in the past several decades, eaeh settlement is fairly unique and reflects the legal and poliheal strengths as well as the weaknesses of eaeh native case. Congress, unlike either commissions or courts, has great flexibility in crafting remedies. Past settlements have included such elements as land transfers; authorization of funds for land purchase/economic development; monetary awards and designation of tax status for some or all of the settlement. Others have featured recognition of the poliheal status of the claimant native group and determination or acknowledgment of the trust relationship, or laek thereof, between the United States and the native group. Establishment of the mechanisms for the native group to organize itself to receive and manage the proceeds of the settlement have been other elements as well as the delineation of areas of jurisdictional authority and responsibility between the native group as a poliheal entity, the state, and the federal government. Congressional native claims settlements ean be organized for discussion purposes into threefairly general groupings: Indian water rights settlements; Trade and Intercourse Act "Eastern

land" settlements; and other native land settlements. Although only one settlement, the Alaskan Native Claims Settlement Act, seems potentially analogous to Hawaiian Native claims, a brief examination of eaeh area is instructive and will indicate some of the complexity of negotiated settlements, the political forces at play, and the nature of the settlements achieved. ANCSA The Alaskan Native Claims Settlement Act is a unique settlement and statute whieh to be fully understood in detail requires extensive commentary. When the United States purchased Alaska from Russia, the U.S. agreed to preserve whatever native rights existed. When Alaska became a state, native rights although completely undefined, were protected. Native Alaskans had advocated to perfect their rights to the land, to hunt and fish, to self-government, for years without any appreciable result. However, when the Alaskan pipeline was proposed, Alaskan Natives were able to convince several key members of Congress that the pipeline should be held up until their claims were resolved. Energy companies desirous of the pipeline provided the political muscle and push to have the native claims resolved. Extensive negotiations involving Congress, native organizations, particularly the Alaskan Federation of Natives, an umbrella group, the State of Alaska, and the Nixon administration were held. The resulting settlement, reflecting its poliheal times is fairly anti-sovereignty. It provided a land and money settlement that created a series of forprofit corporations to hold assets, organized by region; a series of profit corporations to provide services, also organized by region; and a system of stock ownership in these corporations, all of whieh was superimposed on a pre-existing system of 100-plus native villages. The Alaskan Native Claims Settlement Act, although trying to avoid the problems of dependence on the federal government and the eolonial Bureau of lndian Affairs, is widely viewed to have created a whole new set of problems. Many of the for-profit corporations have experienced severe financial reverses; not a surprising result where these companies have had to compete against eaeh other in the same markets, and where the history of Alaska's economy has been either boom or bust. Congress also has had to amend the "stock ownership" provisions to keep native assets from being sold or otherwise lost to non-natives. At about the same time as the Alaskan Native Claims Settlement Act, 1974, a bill — H.R. 15666 — was introduced in Congress to provide for a Hawaiian Native Claims Settlement. Unlike the Alaskan situation there was no overriding legal, eeonomie or poliheal issue, like the Alaska pipeline, requiring settlement of Jdawaiian claims. H.R. 15666 was not enacted. It did not attempt to address issuesof sovereignty. sovereignty. It would have provided for a $1 billion trustfund over 10 years, created a Hawaiian native roll, and established a Hawaiian native corporation to manage property, make investments, and provide services. In return, the claims arising from the overthrow of the queen and subsequent annexation of Hawai'i would have been extinguished. Indian water rights Another category of claims settlements of more recent vintage relates to Indian water rights. Indian water rights are distinct and highly complex legal and hydrological issues. Indian reservations have reserved, or "Winters rights," to water to sustain the purposes for whieh the particular reservation was established.

In order to perfect a right there needs to be a highly technical ealeulahon of what the theoretical right translates into in terms of acre feet of water. Some of the issues involved in determining the perfected right involve the exact terms of the treaty or executive order establishing the reservation, e.g. was the tribe intended to have water for more than agricultural uses, and even if the reservation was solely for agricultural use, how mueh of the reservation ean actually be irrigated? Indian water rights are reserved, usually at a date that precedes other users, usually non-native users. In effect, the Indians often have a greater elaim on available water than do non-Indians along the same water system. The process to perfect or quantify water rights, whieh requires litigation in state court, is extremely expensive and ean take years and even decades to achieve a final resolution. Onee perfected, the right must be implemented. A water right perfected or not, does not necessarily mean actual delivered and usable water. Irrigation systems, canals, ditches, reservoirs, etc. may be required to deliver and use water. In western continental United States, nonIndian users, who generally have the irrigation systems already, want certainty. Since the mid1970s the federal government has favored a policy favoring water settlements. Water settlements are usually driven by the tribal need to get real water with effective water systems and perhaps other eeonomie incentives, and the non-Indian need to receive a defined share of the scarce water resource and the non-Indian (federal, state and water district) ability to pay. Participants in the negotiations are the federal government, the Indian tribes, the states, and the non-Indian water users. Settlements provide specific acre feet awards to various user groups with the Indian share sometimes lower than might have been achieved through extensive and protected litigation, and may include either financial compensation, or commitments to construct water projects, or both. The third area of native settlements involve eastern Indian land claims. These cases have involved claims by Indian groups on the Eastern Coast of the continental United States that their land had been sold, or otherwise disposed of without the formal consent of the United States, as required by the Trade and Intercourse Act of 1789. Most of the complaints about land transactions had occurred in the late 18th century or early 19th century, and it was not until the 1970s when the Passamaquoddy of Maine brought suit against the United States, that the claims were taken seriously. In a preliminary decision in the case, the federal district court held that the United States had an obligation to the Passamaquoddy, even though they were not federally recognized, under the Trade & Intercourse Act. Thisdecisionthrewintoquestion the status of land titles in mueh of Maine, and eventually received considerable presidential and congressional interest. Negotiations involved the state of Maine, private property owners, notably large timber companies, the Indians, the federal government (Interior, Justice, the Office of Management and Budget and the Congress). The settlement produced reflects the power of pro-native court decisions. It provided over $81.5 million in several different trust funds, the majority of whieh was used to purchase land bases for the tribes; federal recognition of the tribes, including both the acknowledgment of tribal powers of selfgovernment and the provision of federal services; delineation of the jurisdictional authority; and the continued page 23

•!<,!v!vXvXy!yXvX,XvXvXvX'Xv!v!vX^^ • («r 1*1 Bv Paul Alexander 1~1R1 HUK111CK011«I Washington, D.C. Counsel for OHA

Mai Wakinekona

from page 19 approval of the United States of all prior land transactions and extinguishments of tribal claims. Similar claims exist in other eastern states, and similar settlements have been enacted in Connecticut (Pequot), Florida (Micosukee) and Massachusetts (Gay Head). All in all it seems clear that even to get to a Congressional settlement requires some significant level of political, legal or eeonomie clout; and the strength or weakness of the native position is usually reflected in the terms of the settlement.