Taos Pueblo Indian Water Rights Settlement Act
Floor Speech
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Mr. McCLINTOCK. I thank the gentleman for yielding.
As has been pointed out, this and the two bills that follow ratify out-of-court settlements that arise from decades-old litigation filed by various Indian tribes against the United States Government. They apportion water rights, among the three of them, to over 110,000 acre feet of water, and they draw more than half a billion dollars from the taxpayers of the United States, mainly for the development of those water resources.
From the outset, I believe that the controlling issue in approving any of these claims is simply this: Is it cheaper to settle out of court or to go to trial? To answer that question, we must turn to the Attorney General.
The Attorney General is presumably involved in these negotiations. He commands the legal expertise to judge the soundness or weakness of the government's case, and he is the official of our government directly responsible for representing the people of the United States in this litigation. Yet, when these bills were brought to us last fall, the Attorney General's office was completely silent on that question. In fact, the administration expressed many reservations about the technical aspects of these bills, which leads me to believe that these are not settlements negotiated by the Attorney General with the tribes and then presented to Congress, but rather they're settlements written by Congress itself, which Congress is neither designed nor is competent to do.
Most importantly, we were absolutely unable to get a straight answer to the most important question at issue, and that is: Do these settlements exceed the likely liability of the government if these claims went to trial? If we were a corporate board of directors making a decision on an out-of-court settlement and we agreed to that settlement without consulting with our legal counsel, we'd be guilty of breaching our fiduciary responsibility to our stockholders. How can we do any less as the Congress of the United States?
I'm new around here, but I spent 22 years in the California Legislature, many of them on the relevant committees that heard settlement bills. The central testimony in all of these settlements was from the attorney general's office as the State's legal counsel. They'd appear before us and they'd testify that in their professional legal judgment the settlements were justified under current law and that the State's liability and legal costs would likely exceed the settlement if the matter went to trial.
I'm told that's the way it used to work around here. The Attorney General would negotiate the best possible settlement on behalf of the United States and then submit that settlement to Congress. Congress would then approve or reject it. Now it seems to be working in precisely the opposite manner. Congress now does the negotiating and then presents the bill to the Attorney General. Mr. Speaker, that is not going to end well.
I wrote to the Attorney General's office in September and again in October asking for their legal assessment of the cases involved. This is hardly unprecedented. For example, in 1994, the Department of Justice testified before Congress on a similar water settlement in the Colville case. There, Peter Steenland, a Clinton Justice Department official, testified, ``The Federal Government is not that well postured for a victory on this claim which has been pending for over 40 years. Absent the settlement, we could well litigate it for another 10 years and the outcome could easily be a significant cost to the taxpayers and the public.'' Well, if the Clinton administration could give Congress a straight answer on an Indian water settlement bill, then I felt there was no reason why the current one shouldn't also be straight with the Congress.
There's a simple word for this. It's called ``transparency.'' We've been assured that's a guiding principle of this administration. We truly need some transparency in these cases if we're to do our job competently and to do justice to both sides in these claims, yet the administration remained completely untransparent on this issue. That's why I submitted a simple amendment to all three bills. The amendment would require that before the settlements take effect, the Department of Justice has to certify that settling out of court would be preferable to going to court.
I'd like to thank the members of the Rules Committee who granted the rule allowing these amendments to be presented today. But as the gentleman from Washington has said, a funny thing happened after the Rules Committee voted that rule out on Tuesday night. Two hours after the Rules Committee, 7:45 in the evening, our office received a letter from the administration responding to my requests made way back in September and October of last year, and in it the Departments of Justice and Interior finally are prepared to state, although somewhat ambiguously and circuitously, that ``settlement would be preferable to litigation of these claims.''
I certainly hope this is not going to be their pattern. We have many more Indian water settlements pending for substantial amounts of money, and the Congress should not have to wait for months to get a straight answer out of the administration for each settlement. The Congress should not be forced to choose a funding amount in the dark and without an informed legal opinion from our Attorney General at the outset. These matters should not have to wait until the eve of a congressional vote.
Mr. Speaker, since the administration has responded to the question raised by the amendments that I'm prepared to offer, I'm not going to introduce them to these bills today. But it is hard to square their assurances of this week with the Department of the Interior's letter to the subcommittee chairman of November 10 with respect to the White Mountain Apache settlement, that says: ``Given the benefits being obtained by the tribe under this settlement, the administration would consider the approximately $109 million of additional funding for a development fund authorized under this bill to be excessive if it were viewed as settlement consideration.''
I'd also point to concerns raised by the administration--again, this is unique to the White Mountain Apache settlement upcoming in the same letter--objecting to language ``which waives the sovereign immunity of the United States.'' They warn, ``This provision will engender additional litigation--and likely in competing State and Federal forums--rather than resolving the water rights disputes underlying adjudication.''
Obviously, this administration has a lot of work to do before future water settlements are considered. I believe Congress needs to demand that the administration be candid and forthcoming in all future water settlements and that Congress insist that before it begins deliberating on a settlement, that the Attorney General has conducted and completed the negotiations, has determined all of the details, has certified that the settlement is within the legal liability of the government, and only then submit that settlement for consideration and approval by the Congress.
We need to make this happen in committee, not the night before a bill is sent to the House floor. And I believe that a growing number of us will have a problem agreeing to the advancement of future water settlements without these reforms. Anything less is breaching the fiduciary responsibility that we hold to the people of the United States. And I want to dwell on that term for just a moment. Congress' fiduciary responsibility, that sounds laughable today, but to the Framers of our Constitution, the term ``Congress' fiduciary responsibility'' wasn't a punch line. It was a bedrock principle. It's high time we restored and respected that principle.
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