INDIAN AMENDMENT TO FREEDOM OF

INFORMATION ACT

ltJJ:*d JUCaSU-. CC^J^X^. >WJX. Cri^^^ZtLtu. er*>-

HEARING 4-ccr

BEFORE THE JJuQPY

SUBCOMMITTEE ON INDIAN

OF THE

COMMITTEE ON

INTERIOR AND INSULAR AFFAIRS

UNITED STATES SENATE

NINETY-FOURTH CONGRESS

SECOND SESSION

ON

S. 2652

A BILL TO AMEND SECTION 552 OF TITLE 5, UNITED STATES

CODE, TO PROVIDE AN EXEMPTION TO THE REQUIREMENTS

OF THAT SECTION RELATING TO THE AVAILABILITY OF

INFORMATION

MAY 17, 1976

Printed few the use of the

Committee on Interior and Insular Affairs

U.S. GOVERNMENT PRINTING OFFICE

7M» 0 WASHINGTON : 1976
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS

HENRY M. JACKSON, Washington, Chairman

FRANK CHURCH, Idaho PAUL J. FANNIN, Arizona

LEE METCALF , Montana CLIFFORD P. HAN8EN, Wyoming

J. BENNETT JOHN8TON, Louisiana MARK O. HATFIELD, Oregon

JAMES ABOUREZK, South Dakota JAMES A. McCLURE, Idaho

FLOYD K. HASKELL, Colorado DEWEY F. BARTLETT, Oklahoma

JOHN GLENN, Ohio

RICHARD STONE, Florida

DALE BUMPERS, Arkansas

GBENVILLE GABSIDE, Special Counsel and Staff Director

DANIEL A. DREYFUS, Deputy Staff Director lor Legislation

WILLIAM J. VAN NESS, Chief Counsel

D. MICHAEL HARVEY, Deputy Chief Counsel

OWEN J. MALONE, Senior Counsel

W. 0. (FRED) CRAFT, Jr., Minority Counsel

SUBCOMMITTEE ON INDIAN AFFAIES

JAMES ABOUREZK, South Dakota, Chairman

HENRY M. JACKSON, Washington DEWEY F. BARTLETT, Oklahoma

LEE METCALF, Montana JAMES A. McCLURE, Idaho

FLOYD K. HASKELL, Colorado PAUL J. FANNIN, Arizona

FORREST J. GERARD, Professional Staff Member

<n)
^

1&7 S

£ CONTENTS

OQ

Page

S. 2652 3

Department reports:

Interior 5

Management and Budget 10

STATEMENTS

Ab ourezk, Hon. James, a U.S. Senator from the State of South Dakota 1

Chino, Wendell, President, Mescalero Apache Tribe, and President,

National Tribal Chairmen's Association 35, 37

Domenici, Hon. Pete V., a U.S. Senator from the State of New Mexico 11

Frankel, Hon. Harley, Deputy Commissioner of Indian Affairs accompanied by Martin Seneca, Director of Trust Responsibilities, and

Ralph Reeser, Director of Congressional and Legislative Affairs, Bureau

of Indian Affairs, Department of the Interior 16, 25

Johnson, Roland, Governor, Laguna Pueblo

Lovato, Delfin J., Chairman, All Indian Pueblo Council 27, 29

Martinez, James, Governor, San Ildefonso Pueblo 32,33

McCloud, Zelma, Chairperson, Nisqually Tribe 45

Palmer, Shirley, Secretary, Business Council of the Colville Confederated

Tribes

Schifter, Richard, Counsel for the Laguna Pueblo 39

Taft, Hon. Peter R., Assistant Attorney General, Land and Natural

Resources Division, accompanied by Miles Flint, Chief, Indian Resources

and Land Section, Department of Justice 19

Tonasket, Mel, President, National Congress of American Indians 50

APPENDIXES

APPENDIX I

Letter to Hon. Thomas S. Kleppe, Secretary of the Interior from Senator

Abourezk and Additional Material Submitted for the Record by the

Bureau of Indian Affairs

APPENDIX II

Additional Material Submitted for the Record 147

(in)

INDIAN AMENDMENT TO FREEDOM OF INFORMATION

ACT

MONDAY, MAY 17, 1976

U.S. SENATE,

SUBCOMMITTEE ON INDIAN AFFAIRS,

OF THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Washington, D.C.

The subcommittee met pursuant to notice, at 10 a.m., in room 3110

Dirksen Office Building, Hon. James Abourezk, presiding.

Present: Senator Abourezk.

Also present: Forrest J. Gerard, professional staff member; and

Ella Mae Horse, research assistant.

OPENING STATEMENT OF HON. JAMES ABOUREZK, A U.S. SENATOR

FROM THE STATE OF SOUTH DAKOTA

Senator ABOUREZK. The Indian Affairs Subcommittee hearing will

come to order. This is an open public hearing to receive testimony from

the administration and the Indian community on S. 2652, a bill to

amend section 552 of title 5, United States Code, to provide an exemption to the requirements of that section relating to the availability of

information.

As originally envisioned, when enacted into law in 1966, the Freedom of Information Act was designed to make Government information available to citizens, unless it would impair the Nation's

security or frustrate legitimate investigative efforts.

The recent amendments to the Freedom of Information Act,

approved in November 1974, stipulated that all Government information was public unless covered by nine narrowly drawn exemptions•

in defense of which the Government would bear the burden of proof

in a court test.

The 1974 amendments also imposed stringent time limitations for

production of documents, and provided for possible disciplinary action

against offending administrators.

Clearly, this sweeping and progressive statute has had the salutary

effect of forcing countless public officials to release information and

data to its rightful owners•the general public.

Unfortunately, the Freedom of Information Act, according to tribal

leaders, has in several instances served to work against the best

interests of the Indian community. This has occurred when third

party interests demand release of information and data concerning

Indian natural resources pursuant to the Freedom of Information Act.

(1)
Such information is generally maintained by the Department of

the Interior, the agency chargecl with carrying out the Nation's trust

responsibility to Indian tribes.

The Department, therefore, is placed in the anomalous position by

the Freedom of Information Act of being forced to violate itsfiduciary

relationship with the tribes.

S. 2652 would resolve the dilemma of the Indians and their trustee

by exempting information concerning the natural resources and assets

of tribes from the Freedom of Information Act.

The purpose of this hearing is to establish a precise record of illustrative examples and cases in which the release of such information

has, in fact, had a detrimental impact on the Indian community.

At this point, I shall order that S. 2652 and the Department reports

be inserted in the record.

[The information follows:]
94TH CONGRESS

1ST SESSION S. 2652

IN THE SENATE OF THE UNITED STATES

NOVEMBER 11,1975

Mr. DOMENICI Introduced the following bill; which was read twice and referred

to the Committee on Interior and Insular Affairs

A BILL

To amend section 552 of title 5, United States Code, to provide

an exemption to the requirements of that section relating to

the availability of information.

1 Be it enacted by the Senate and House of Representa2 tives of the United Stales of America in Congress assembled,

3 That section 552(b) of title 5, United States Code, is

4 amended•

5 (1) by striking out at the end of paragraph (8)

G "or";

7 (2) by striking out at the end of paragraph (9)

8 the period and inserting in lieu thereof a semicolon and

9 "and"; and

II
4

2

1 (3) by adding immediately below paragraph (9)

2 the following new paragraph:

3 "(10) information held by a Federal agency as

4 trustee, regarding the natural resources or other assets of

5 Indian tribes or bands or groups or individual members

6 thereof.".

v-SK/A". "*«<?^L&L.
United States Department of the Interior

OFFICE OF THE SECRETARY

WASHINGTON, D.C. 20240

WAY H1976

Dear Mr. Chairman:

Your Committee has requested the vievs of this Department on S. 2652,

a bill "To amend section 552 of title 5. United States Code, to

provide an exemption to the requirements of that section relating

to the availability of information."

S. 2652 vould exempt from provisions of the Freedom of Information Act

(5 U.S.C. 552) "information held by a Federal agency as trustee,

regarding the natural resources or other assets of Indian tribes or

bands or gi-oups or individual members thereof." This exemption vould

become paragraph (10) of 5 U.S.C. 552(b), as an addition to the nine

categories of subject matter nov listed in that section to vhich the

disclosure requirements do not apply.

Instead of an amendment to the Freedom of Information Act, as

proposed in S. 2652, ve vill be submitting to the Committee

a substitute bill which vill provide separate statutory authority

for a special limited exemption to the Freedom of Information Act

similar to that proposed in S. 2652.

Ve believe that such an exemption is necessary to preserve the

fiduciary relationship of the United States to Indian people. The

Bureau of Indian Affairs of this Department is the agency charged

vith discharging the Nation's trust responsibility to its Indian

tribes, and this agency is finding it difficult to obey the

mandate of the Freedom of Information Act (vitbout this exemption)

and at the Bame time faithfully perform the obligations of its

trust to Indians. In essence, ve have been placed in the position

of being required by lav to violate the confidential relationship

vhich ve have vith Indian tribes and individuals. Indeed, such

violations could veil give rise to claims by tribes or individual

^UJT'QV,
6

Indians against the Federal Government. As to this possibility,

it should he noted that the United States Supreme Court has said

that the United States in its dealings vith Indian tribes -

"... has charged itself with moral obligations of the

highest responsibility and trust. Its conduct, as disclosed In the acts of those who represent it in dealings

with Indians, should therefore be Judged by the most exacting

fiduciary standards." Seminole Nation v. U.S, 316 U.S. 286,

297 (19*2).

As the agency charged with carrying out the nation's trust

responsibility to Indian tribes, the Bureau of Indian Affairs

must oversee, supervise, and administer the programs by which

the Indian tribes can develop their natural resources and their

reservation and tribal economies. As one means of carrying out

this function, the EIA is presently engaged in a series of

inventories of natural resources and minerals deposits on Indian

lands. The Bureau is often beset by requests for copies of these

inventories by interested parties, sometimes by the very companies

who will compete for the opportunity to develop these resources.

Presently, the Bureau is required to disclose the results of these

inventories under formal Freedom of Information Act requests.

Disclosure of reports such as these clearly places the tribes in a

disadvantageous position in negotiating with companies for the

development of these resources. In fact, many tribes in the past

have depended largely upon bonus payments paid by these companies

for the right to conduct exploration for these minerals. Vith much

of the work done for them, and with access to detailed information

concerning mineral deposits, these companies will not be willing

to compete with each other and to pay large bonuses for exploration

and prospecting permits. On the other hand, prudent management of

these resources requires that the Bureau and the tribes inform themselves of the location and extent of these resources. Many tribes,

however, are seriously discouraged by the fact that information

developed may be disclosed by the Bureau upon request of other

parties who have pecuniary interests adverse to those of the tribes.

Surely, the purposes of this law are not served when it redounds

to the benefit of already profitable commercial entities at the

expense of the Nation's impecunious Indian wards, whom the Government

has pledged to protect from such exploitation.

\W/h,\
Another area in which the Freedom of Information Act vorks to the

detriment of Indian tribes and seriously compromises the trust

relationship Is that of water rights. The right of Indian tribes

to water arising upon, bordering, or traversing their reservations

in sufficient quantity to irrigate all the "practicably irrigable"

acreage of their reservations is well established. Winters v.

United States, 207 U.S. 5^6 (1908); Arizona v. California, 373 U.S.

56U (1963). In order to protect these rights to precious water in

the arid West, the tribes and the BIA must engage in extensive and

expensive soil classification surveys, water availability studies,

agricultural economics analyses, and reservation development plans.

These efforts are required as preliminary measures to determine the

tribes' entitlements to vater. And, when these studies are complete,

lengthy and expensive litigation usually must follow to adjudicate

these rights.

At present, in several of the large river basins, industries are

busily securing option contracts for the use of vater from State

and Federal agencies, and they may now demand access to the detailed

plans of the Indian tribes within these river basins - even though

these documents may well be necessary for the tribes to develop their

litigation strategy and posture at a later time. In at least one

instance, the Bureau was required to release such a report, over the

vigorous objection of the tribe involved. In another case it refused

to release such a report and a lawsuit has been filed in the Federal

District Court for the District of New Mexico over this very issue.

Even though these requests are handled on an individual basis within

the Department, when the Solicitor's office determines that a request

cannot properly be fitted within one of the nine existing exemptions

the result is that the Bureau of Indian Affairs must pit itself against

the interests of the very group it exists to serve and protect.

The claims of the Indian tribes in these instances are compelling.

They claim that the Bureau of Indian Affairs exists to serve them

and to protect them in the enjoyment of their property. In the

above instance in which disclosure was required, the tribe felt

that the study was inaccurate in several respects and highly prejudicial to their claims to water rights, and that their trustee

acted against their interests in providing to future opposing

litigants a highly expensive bit of evidence which the tribe would

have to refute in court. Under the present law, however, the Bureau

felt it had no choice.
s

There are many otber areas in vhicb the Freedom of Information Act

could have seriously damaging effects upon the trust relationship

of the United States with its Indian tribes. The Bureau, for

instance, administers so?>e 100 million acres of Indian trust land,

r.tfeh of vhlch Is under lease for grazing or agricultural purposes.

In order to ensure a proper return to the Indian landowners of this

land, it must be appraised end offered for bid. If the non-Indian

ranehlne and agricultural interests vho profit from the use of

thiB land can defend access to land ownership records and appraisals,

they vill be at an cnonr.ous advantage in negotiating and bidding for

use of this land. In short, without an exemption such as ths one

proposed by E. 2652, the Indian tribes generally will be denied the

opportunity to engage in the type of arm's length transactions that

characterize free enterprise and honest commercial dealing.

It has been suggested that the various exemptions already existing

provide ample protection against the evils suggested herein. The

fourth exemption, 5 U.S.C. 552(b)(li), concerning financial information obtained from a person and privileged or confidential, does

provide some degree of protection when the information is clearly

financial and is clearly privileged. Information of any type may

well produce financial rewards in the right bauds, however. It is

for this reason that we strongly support legislation which

would exempt information, whether clearly financial or not, regarding the natural resources or other assets of Indian tribes and

Individuals.

It Bhould be noted, in the context of the fourth exemption, that

there are criminal penalties provided in 18 U.S.C. 1905 for an

employee of the United States making known information coming to

him in the course of his Federal employment which concerns "trade

secrets, processes, operations, style of work, or apparatus, or to

the identity, confidential statistical data, amount or source of

any income, profits, losses, or expenditures of any person, firm,

partnership, corporation, or association" or who "permits any income

return or copy thereof or any book containing any abstract or

particulars thereof to be seen or examined by any person except as

provided by law". In addition to a fine of not more than $1,000 or

Imprisonment of not more than one year, a violator of this section

"shall be removed from office or employment". Divulging information

relating to Indian assets may violate one or more of these provisions

and subject the Federal employee involved to the penalties provided.

Our substitute bill would make it perfectly clear that divulging

information relating to Indian resources and assets is not

authorized by law and that Federal employees would divulge such

Information only under the peril of being prosecuted and punished

under 18 U.S.C. 1905.

»,% >•<y .«^
It has also been suggested that protection is provided "by the fifth

exemption concerning interagency or intra-agency memoranda which

would not be available by law to a party other than an agency in

litigation vlth the agency. This may sometimes provide a degree

of protection, especially in the working draft stages of inventories, reports, and other policy or planning developments. This,

too, however, is but an unclear and inconclusive prospect, and it

invites continuous appeals and litigation.

It has further been suggested that the ninth exemption, vhich

exempts geophysical and geological information concerning veils,

should protect against mandatory disclosure of water resouce

studies. This is by no means clear, and there is disagreement

as to the scope of this exemption, as veil as the other two

exemptions mentioned above.

In short, vhile each of these exemptions offers some limited

possibility of protection, none of them addresses the problem

vhich the Bureau of Indian Affairs faces in this matter. We

strongly believe that Government officials should not be required

to resort to device and artifice in order to avoid the spirit

and purpose of one law in order to carry out their responsibilities

under another, especially when the conflict is so easily reconcilable as this one.

Failure to provide such an exemption would result in the

continued confusion in the mind of the public and in the eyes of

the law between the national governmental responsibility to the

American public and the Nation's fiduciary responsibility as

trustee of the private resources of Indian tribes.

The Office of Management and Budget has advised that there is no

objection to the presentation of this report from the standpoint

of the Administration's program.

Sincerely yours,

at Secretary or the Interior

Deputy .... -i

• - assistant Secretary or the Interior

Honorable Henry M. Jackson

Chairman, Committee on

Interior and Insular Affairs

United States Senate

Washington, D.C.
10

EXECUTIVE OFFICE OF THE PRESIDENT

OFFICE OF MANAGEMENT AND BUDGET

WASHINGTON. DC 20903

May 26, 1976

tint LJ i« c'i .J Id

Honorable Henry M. Jackson

Chairman, Committee on Interior

and Insular Affairs

United States Senate

3106 New Senate Office Building

Washington, D.C. 20510

Dear Mr. Chairman:

This is in reference to your request for the views

of the Office of Management and Budget on S. 2652,

a bill "To amend section 552 of title 5, United

States Code, to provide an exemption to the

requirements of that section relating to the

availability of information."

The Office of Management and Budget concurs in the

views expressed by the Department of the Interior

in its report and testimony given to the Committee

and accordingly, also recommends that in lieu of

S. 2652 legislation be enacted which would provide

separate statutory authority for a special limited

exemption to the Act similar to that proposed in

S. 2652. Draft legislation to accomplish this

purpose will be proposed by the Department of the

Interior in the near future.

Sincerely yours.

S)j, <Zwy

James M. Frey

Assistant Director for

Legislative Reference

75-358 V

w/k\ <fc•<r .4>^B^--
11

Senator ABOTJREZK. I would like to announce, also, that the sponsor

of this legislation, Senator Domenici of New Mexico, is unable to be

here today. He wanted to be in attendance, and he couldn't be, so he

will submit a formal statement for the record.

[The prepared statement of Senator Domenici follows:]

STATEMENT OF HON. PETE V. DOMENICI, A U.S. SENATOR FROM THE STATE OF

NEW MEXICO

Mr. Chairman and members of the subcommittee on Indian Affairs, I am

pleased to have this opportunity to present written comments on S. 2652, a bill

I introduced on November 11, 1975. I would first like to submit for the record

the introductory statement I made on that occasion, a copy of which is attached.

It will be a difficult task to develop a legislative remedy for the existing

problems without creating other problems resulting in little improvement over

the present situation. Difficulty of accomplishing acceptable results, however,

should never be sufficient reason to decline to try. So, I commend this Subcommittee and its Chairman for moving quickly to address the complex and

important issues involved in S. 2652.

At this point, a brief description of why I introduced S. 2652 appears to be

in order. During early 1975 several Indian leaders from New Mexico advised

me that the Freedom of Information Act as interpreted was unfair to Indian

people and that there was great potential for adverse effect on Indian Tribes

across the country. Following an examination of these claims by my staff, I

determined that there was genuine cause for concern since disclosure required

under the Freedom of Information Act applies to information acquired or held

by the government by virtue of the Trust Relationship just as it does to all

other nonexempt information.

In the course of considerable deliberation on this matter, I concluded that'

the problems involved deserved, indeed, demanded consideration and resolution

through the legislative process. S. 2652 was the product of that decision, a

vehicle for legislative action.

Since it is a vehicle for legislative action, I have no undue "pride of authorship" in either the exact words used in S. 2652 or the legislative approach it

embodies. In that regard, I encourage the consideration of other approaches'

such as that I understand the Department of the Interior and the Department

of Justice will submit shortly. Regardless of the approach taken, certain points

of conflict, some of which I shall address later, must be realized and dealt with

appropriately in the final product.

It is my understanding that the Freedom of Information Act is founded

primarily on the principle that the government exists to engage in only those

activities having a valid public purpose. It follows, then, that information

related to such activities is the public's information and as such should be publicly available on reasonable request. Whatever the other benefits, such as providing the means for measuring the performance or honesty of public officials,

the FOIA codified the notion that what is done for public purposes, the public

has a right to know and use for whatever legitimate reasons might be applicable.

The Act then recognized, by means of specific, limited and narrowly drawn

exceptions, that general disclosure of certain kinds of information would defeat

the very purpose, the public purpose, for which that particular information

was acquired.

One need look no further than the first statutory exemption to the FOIA for

an illustration of this fact. By that exemption, matters that are "specifically

required by Executive order to be kept secret in the interest of the national

defense or foreign policy" are not subject to disclosure under the FOIA. Ill

that instance, the Congress correctly determined that the public purpose related

to matters of national defense would be defeated or seriously damaged by

general disclosure under the FOIA.

The same reasoning applies, in my opinion, to information which the government acquires or holds in the pursuit of another valid public purpose•the

effective discharge of the unique Trust Relationship existing between the United

States and the Indian people. Matters relating to that Trust Relationship are

just as valid and just as special as matters relating to the national defense,

and as such, are entitled to the same consideration and treatment if the disclosure would defeat the public purpose to which the information relates. I feel
12

the Indian people have made a strong case that disclosure of certain information

obtained or held by the government in discharge of its obligations under the

Trust Relationship will defeat the objectives of the Trust Relationship.

The principles cited above also lead me to conclude that the expenditure of

public money in obtaining such information is not controlling on the question

of public disclosure under the FOIA. Clearly, it costs money to generate Information on matters related to the national defense, but few would seriously

contend that such matters ought to be made public simply because they were

acquired through public funding. The determining factor, again, is the nature of

the public purpose and how that purpose Is affected by requiring disclosure under'

the FOIA. Accordingly, while it will cause me to differ with many people whose

judgment and views I respect, I disagree with the theory that public disclosure

must necessarily follow public expenditure in the acquisition of information.

I do accept that proposition as a guiding principle and agree that exceptions to

it ought to be strictly limited to the "public purpose" theory outlined previously.

Having stated my understanding of the intent of the FOIA, colored to some

extent by my own views, I am compelled to caution the Subcommittee that

whatever legislative approach is followed ultimately to ensure that the Trust

Relationship is not violated by FOIA disclosures, it must not be overly broad.

In other words, I am not convinced that all information held by the government

as trustee should be beyond reach of procedures under the FOIA. That is why

I drew my amendment to the FIOA rather narrowly to encompass only that

information "regarding the natural resources and other assets" of Indian people.

I am sure there are other specific kinds of trust related information the Subcommittee may want to consider, but I urge as limited an exception as possible

centered on the Trust Relationship.

Under my notions of the proper interplay between the government's obligations

under the freedom of information concept and the Trust Relationship, disclosure

should be allowed unless it would be detrimental to Indian people. When disclosure would not be harmful to Indian interests, the provisions of the FOIA

should apply.

The theory I urge the Subcommittee to adopt and apply through appropriate

legislation would have two tests for exemption from disclosure. The first would

be "Is it information obtained or held by the government agency in discharge of

the Trust Relationship? If not, it should be subject to disclosure. If it is, the

second test is "Would disclosure be detrimental to the Indian interests in furtherance of which the information was acquired?" If not, it should be subject to

disclosure. If it would be detrimental, it should not be subject to FOIA

requirements.

It may be a difficult task to fashion a statutory framework to accommodate

this dual test, but I think it is important to do so. The American public is

entitled to information acquired at its expense unless good and valid reasons

dictate otherwise. When Indian information is involved, it ought to be public

unless disclosure would be harmful to legitimate Indian interests. For these

reasons, I am impressed that any statutory provision to exempt trust related

information should not only require a showing of potential harm from disclosure,

but also provide a means for challenging that assertion.

In their testimony on May 17th, Indian leaders and BIA officials made repeatedly references to information on water, water resources and water rights as the;

kind of information that ought to be exempted from the freedom of information

act. Under my notions regarding the proper tests for exemption, it would be

improper to automatically exempt such information just because it had been

acquired under the Trust Relationship.

A letter I have received from the State Engineer of the State of New Mexico,

Mr. Steve Reynolds, addresses this issue from the non-Indian point of view.

I have submitted Mr. Reynolds' letter for the record and I urge all members

and staff of the Subcommittee to consider it carefully.

Mr. Reynolds makes a valid point, in my opinion, that certain kinds of waterrelated information is most effective for ensuring maximum beneficial utilization

only when it is known to everyone concerned. Mr. Reynolds also points out

that water is a resource unlike oil and gas reserves or mineral deposits. It is

essentially a public resource regardless of where it exists. This is a point of

view I feel the subcommittee should consider along with those asserted by the

BIA and Indian leaders. For my own part, I urge the Subcommittee to limit

the nondisclosure of hydrologic information to those situations were the information is strictly Indian rather than general public and where disclosure

would be deterimentalto Indian interests.
13

Another serious complication must be faced squarely If we are to deal with

all the important issues. If an exemption to the FOIA is created, either by

direct exemption as in S. 2652 or by amendment of some other statute, to whom

should the exception apply? Should it apply to everyone seeking the kind of

information to be exempted or should it apply only to non-Indians or non-tribal

members? The Chairman raised that very appropriate question in the hearings

on May 17th, but I do not feel that the responses on that day provide sufficient

basis for resolution of this critical question.

Individual members of Indian Tribes will want to have access to tribal information for the same reasons all Americans want to have access to government

information as provided by the FOIA. Having accepted the argument that nonIndians ought not to be automatically entitled to certain tribal information

held by the government, I cannot in good conscience accept extension of that

argument to include individual members of a Tribe. After all, the Trust Relationship encompasses Indian people not just their governing bodies.

The Department of Interior and BIA officials who testified on May 17th indicated that the "processes of the tribal government" should be relied on to

allow individual members to reach tribal information. Likewise, leaders of

Tribal governments testifying that day agreed that the governing bodies ought

to have the authority to control availability of tribal information to tribal

members.

My remarks in this regard are offered to advise the Subcommittee that by

introducing S. 2652, I had no intention of limiting the availability of tribal information to individual tribal members. In my opinion this is a serious issue,

one that should not be taken lightly, but should be considered carefully and

thoroughly.

It may be that the contentions of the BIA and the tribal leaders are correct

in that the relationship between Indian people and their governing bodies is so

different from that between U.S. citizens and the U.S. government that the

principle of full disclosure of government action is inapplicable or inappropriate.

At any rate, it deserves further consideration which I hope the subcommittee will

be able to provide. It would be an unfortunate result indeed if in our efforts to

protect Indians from abuses by non-Indians under color of the FOIA, we inadvertently promoted Indian abuse of each other under color of the Trust

Relationship.

In closing, I must again recognize the extreme difficulty of the task the Subcommittee has in resolving this conflict between two of the fundamental policies

embraced by the American people. While the Trust Relationship Is a sacred

obligation to Native Americans, free and open disclosure is the very foundation,

indeed, the cornerstone of a free society.

[From the Congressional Record, Tuesday, November 11, 1975]

(By Mr. Domenici)

S. 2652, a bill to amend section 552 of title 5, United States Code, to provide

an exemption to the requirements of that section relating to the availability

of information. Referred to the Committee on Interior and Insular Affairs.

Mr. DOMENICI. Mr. President, the Bureau of Indian Affairs serves as trustee

for Indian lands, water rights, and other natural resources. Its responsibility

in this area is not unlike that of any other private trustee or fiduciary, except

insofar as the integrity of the U.S. Government is at stake in the Bureau's

activities, and, thus, an even greater sense of responsibility and fidelity is

required. As the Supreme Court has stated, the United States, in its dealings'

with Indian tribes,

"Has charged itself with moral obligations of the highest responsibility and

trust. Its conduct, as disclosed in the acts of those who represent it in dealings

with Indians, should, therefore, be judged by the most exacting fiduciary

standards." Seminole Nation v. U.S., 316, U.S. 286, 297 (1942).

It has recently come to my attention that an existing Federal law, while

motivated by an honorable and important concern with unwarranted and dangerous secrecy within Federal agencies, is now threatening to egregiously impair

the fiduciary relationship between the United States and our Indian people. I

refer to the Freedom of Information Act and our recent amendments thereto.

75-358 O - 76 - 2
14

The amendment I introduce today is not intended to, and does not, categorically

exempt the Bureau of Indian Affairs from coverage under the Freedom of Information Act. It does, however, reflect and respect the peculiar trust relationship between Indian people and the Federal Government. That such a narrowly

drawn exemption is warranted should come as no surprise upon a moment's

reflection. As long ago as 1831, the great Chief Justice John Marshall declared:

"The condition of the Indians in relation to the United States is perhaps unlike

that of any other two people in existence. . . . (T)he relation of Indians to

the United States is marked by peculiar and cardinal distinctions which exist

nowhere else." Cherokee Nation v. Georgia, 5 Pet. 1 (1831).

The Freedom of Information Act, as currently worded, places the Bureau of

Indian Affairs officials charged with carrying out the Nation's trust responsi-,

bilities to Indian tribes in the uncomfortable and untenable position of determining whether or not a Federal law of general application, enacted without

mention of this peculiar and historical relationship, was intended to abrogate

the Nation's solemn pledge to these people. Let me provide a specific example

of this conflict, or this dilemma.

The Bureau of Indian Affairs has been engaging in inventories of the natural

resources and mineral deposits on Indian lands. This information is essential for

prudent management, of these resources, for without this information neither the

BIA nor the tribes can intelligently assess the proposals made to them by mining

companies and energy developers for permits and leases. I am advised that under

existing law, it is possible for entities dealing with Indians to petition the BIA

for information the Bureau has on energy and mineral deposits, as well as copies

of leases and agreements entered into in the past.

Currently, the BIA can withhold geological and geophysical data "concerning

wells," but this narrow exemption does not cover past transactions, other inventory

data where no wells have been drilled or planned, or past commercial transactions. If the Senate believes, as I do, that disclosure of such information to

the very entities that will profit from it at the expense of the tribe whose resources

are at stake is a breach of the fiduciary responsibility we have assumed toward

Indian tribes, then the amendment I propose will occasion no great suspicion or

concern.

If the Members of the Senate further believe, as I do, that our Indian tribes

are entitled to the economic return on their resources that market competition

and arm's length transactions will bring, then the amendment I propose should

cause no consternation.

The Bureau's and, ultimately, this Government's duty as trustee demands no

less. The late Justice Cardozo, when he was sitting on the Second Circuit Court

of Appeals fashioned the standard for fiduciaries that is "stricter than the morals

of the market place" which has endured for years. Certainly, Mr. President,

where the integrity and fairness of our Government is at stake, we should accept

no less a standard for our dealings with Indian tribes.

Finally, Mr. President, we should not allow the results of two important national policies•the trust obligation we owe our Indian people and the openness

of government we owe all our people•to combine to the unintended detriment

of Indian people. I realize that the bill I introduce today may not be as effective

as it could be to accomplish the protection of Indian rights under the trust relationship, that it may not address all the problems. I will, of course, work with the

appropriate committee and other interested Senators to make this amendment

as effective as possible for the purposes I have mentioned. I invite all those who

share my concerns to make it known to the Government Operations Committee,

to offer their suggestions for improvement and to push for rapid enactment. Likewise, I encourage those with opposite views to make them known, so that our

final enactment will have had the benefit of all viewpoints.

I ask unanimous consent that the bill be printed in the RECORD.

There being no objection, the bill was ordered to be printed in the RECOBD, as

follows:

S. 2652

Be it enacted by the Senate and House of Representatives of the United States

of America in Congress assembled, That section 552(b) of title 5, United States

Code, is amended•

(1) by striking out at the end of paragraph (8) "or" ;

(2) by striking out at the end of paragraph (9) the period and inserting in

lieu thereof a semicolon and "and"; and
15

(3) by adding immediately below paragraph (9) the following new paragraph :

"(10) information held by a Federal agency as trustee, regarding the natural

resources or other assets of Indian tribes or bands or groups or individual

members thereof."

STATE OF NEW MEXICO,

STATE ENGINEER OFFICE,

Santa Fe, N. ilex., May 24, 7976.

Hon. PETE V. DOMENICI,

U.S. Senate, New Senate Office Building,

Washington, D.C.

DEAR SENATOR: On November 14, 1975 the State of New Mexico filed suit

(State of New Mexico ex rel Reynolds v. Kleppe) in the U.S. District Court in

Albuquerque to obtain disclosure of reports on certain U.S. Geological Survey

hydrologic studies of water resources of particular interest to several Indian

tribes in New Mexico, specifically the Jicarilla Apaches, the Mescaleros Apaches,

the Pojoaque Pueblo, the Tesuque Pueblo, the San Ildefonso Pueblo and the

Nambe Pueblo. The suit was filed on the basis of information and belief that

the results of the studies would be valuable in the development and use of water

resources within the State of New Mexico and that the reports are of the nature

that the Department of the Interior is required by the Freedom of Information

Act to make available upon request. I am advised that this pending litigation

possibly would be mooted if S. 2652 (a bill to amend Section 552 of title 5,

United States Code, to provide an exemption to the requirements of that section

relating to the availability of information) is enacted as introduced.

I think there can be no question that water resources, both surface and underground, move across the boundaries of Indian lands, flowing from Indian lands

to non-Indian lands and from non-Indian lands to Indian lands. It follows that the

development and use of water for non-Indian activities must be expected to

affect the water supply for Indians and the development and use of water for

Indian activities must effect the development and use of water for non-Indian

activities. In my view it follows that the widest possible dissemination of hydrologic information, particularly such information gathered by federal agencies at

the taxpayers' expense, is in the best interest of both Indians and non-Indians.

For this reason I respectfully suggest that S. 2652 be amended to make clear

that it is not the intent of Congress to exempt such hydrologic information from

the provisions of the Freedom of Information Act.

Your remarks upon introduction of S. 2652 (Congressional Record-Senate at

S. 19623, November 11, 1975) reflect recogition that problems may be encountered

in properly coordinating the policy of openness of government and fulfillment

of the trust obligation owed our Indian people. I feel unqualified to address any

such problems other than the one discussed above.

I would very much appreciate your having this letter made a part of the

record of the hearings on S. 2652 before the Indian Affairs Subcommittee of the

Committee on Interior and Insular Affairs if you find it appropriate to do so.

With warm personal regards.

Sincerely,

S. E. REYNOLDS,

State Engineer.

Senator ABOTJREZK. The first panel of witnesses this morning will

represent the administration. Hon. Peter R. Taft, Assistant Attorney

General, Land and Natural Resources Division, accompanied by Miles

Flint, Section Chief for Indian Resources, Department of Justice;

Hon. Harley Frankel, Deputy Commissioner of Indian Affairs, accompanied by Martin Seneca, Director, Office of Trust Responsibilities,

and Ralph Reeser, Director, Office of Congressional and Legislative

Affairs, Bureau of Indian Affairs, Department of the Interior. You

may come forward.

Mr. Frankel, you may introduce the participants on the panel.

Mr. FRANKEL. You know Mr. Reeser. You know Mr. Seneca. John

Trezise of the Solicitor's Department who has been working on the

Freedom of Information Act.
16

Mr. TAFT. And Miles Flint, who is section chief for Indian Resources and Land in Justice.

Senator ABOUREZK. If you are ready.

STATEMENT OF HON. HARLEY FRANXEL, DEPUTY COMMISSIONER

OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY MARTIN SENECA, DIRECTOR, OFFICE OF TRUST

RESPONSIBILITIES, AND RALPH REESER, DIRECTOR, OFFICE OF

CONGRESSIONAL AND LEGISLATIVE AFFAIRS, BUREAU OF

INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Mr. FRANKEL. Mr. Chairman, the committee has my prepared statement. If it will please you, I will just summarize it.

S. 2652 would exempt from provisions of the Freedom of Information Act information held by a Federal agency as trustee, regarding the natural resources or other assets of Indian tribes or bands or

groups or individual members thereof. This exemption would become

paragraph (10) of 5 U.S.C. 522(b), as an addition to the nine categories of subject matter now listed in that section to which the disclosure requirements do not apply.

As indicated in our report on S. 2652, instead of an amendment to

the Freedom of Information Act, we recommend enactment of separate statutory authority providing a special limited exception to the

Freedom of Information Act similar to that proposed in the bill. We

expect to submit a revised bill to the committee very soon.

Mr. Chairman, the purpose of the Freedom of Information Act

as we understand it is to improve the manner in which the Federal

Government provides to services to people by providing for a more

open and, hopefully, a more enlightened decisionmaking process.

However, because of an unanticipated conflict resulting from the

unique trust responsibilities the Federal Government has for Indian

people, just the opposite is likely to occur in the natural resources area

in Indian affairs.

In effect, the Freedom of Information Act as currently drafted could

serve to severely impair the manner in which the Federal Government

would be providing services to Indian people, and unless modified

this act would prove to be detrimental to the welfare of Indian people.

Ironically, such an eventuality would be precisely the opposite of what

was intended by the Congress, and we heartily applaud this effort to

remedy that situation.

The basic conflict occurs because the Bureau's trust responsibility

necessitates that we maintain detailed records of the natural resource

assets of our constituency, the Indian tribes. However, it should be

noted that no other organization shares the same kind of natural

resource information with the Federal Government, thereby putting

the tribes at a severe disadvantage because of the Freedom of Information Act.

The essential problem is that private firms and other private interests who negotiate with Indian tribes in the natural resource area

often from adversarial, or at least competitive perspective, .have,access

to the tribe's confidential natural resource information while maintaining the confidentiality of their own situation. This dichotomy isdfe&&j
17

disadvantageous to the tribe, is patently unfair on the surface, and

achieves precisely the opposite of what is intended by both the Freedom of Information Act and the trustee relationship between the

Federal Government and Indian people.

We believe that an exemption is necessary to preserve the fiduciary

relationship of the United States to Indian people. The Bureau of

Indian Affairs is the agency charged with discharging the Nation's

trust responsibility to its Indian tribes, and this agency may not be

able to obey the mandate of the Freedom of Information Act without

this exemption and at the same time faithfully perform the obligations

of its trust to Indians.

In essence, we have been placed in the position of being required

by law to violate the confidential relationship which we have with

Indian tribes and individuals. Indeed, such violations may give rise

to claims by tribes or individual Indians against the Federal Government. As to this possibility, it should be noted that the U.S. Supreme

Court has said that the United States in its dealings with Indian

tribes:

* * • has charged itself with moral obligations of the responsibility and trust.

Its conduct, as disclosed in the acts of those who represent it in dealings with

Indians, should therefore be judged by the most exacting fiduciary standards.

For example, an area in which the Freedom of Information Act

works to the detriment of Indian tribes and seriously compromise the

trust relationship is that of water rights; the right of Indian tribes

to water arising or bordering upon or traversing their reservations in

sufficient quantity to irrigate all the practicably irrigable acreage of

their reservations was well established by the U.S. Supreme Court

in Winters v. The United States.

In order to protect these rights to precious water in the arid West,

the tribes and the BIA must engage in extensive and expensive soil

classification surveys, water availability studies, agricultural and economical analyses, and reservation development plans. These efforts

are required as preliminary measures to determine the tribes' entitlements to water. And, when these studies are complete, lengthy, and

expensive, litigation usually must follow to adjudicate these rights.

At present, in several of the large river basins, industries are busily

securing option contracts for the use of water from State and Federal

agencies, and they may now demand access to the detailed plans of

the Indian tribes within these river basins even though these documents

may well be necessary for the tribes to develop their litigation strategy

and posture at a later time.

In at least one instance, the Bureau was required to release such a

report over the vigorous objection of the tribe involved. In another

case, the Department refused to release such a report, and a lawsuit

has been filed in the Federal District Court for the District of New

Mexico over this very issue.

Even though these requests are handled on an individual basis

within the Department, when the solicitor's office determines that a

request cannot properly be fitted within one of the nine existing exemptions, the result is that the Bureau of Indian Affairs must pit itself

against the interests of the very group that it is to protect.
18

The claims of the Indian tribes in these instances are compelling.

They claim that the Bureau of Indian Affairs exists to serve them

and to protect them in the enjoyment of their property. In the above

instance in which disclosure was required, the tribe felt that the study

was inaccurate in several respects and highly prejudicial to their

claims to water rights, and that their trustee acted against their interests in providing to future opposing litigants a highly expensive bit

of evidence which the tribe would have to refute in court. Under the

present law, however, the Bureau felt it had no choice.

It has been suggested that the various exemptions already existing

provide ample protection against the evils suggested herein. The fourth

exemption, 5 U.S.C. 552(b)(4), concerning financial information

obtained from a person and privileged or confidential, does provide

some degree of protection when the information is clearly financial

and is clearly privileged.

Information of any type may well produce financial rewards in the

right hands, however. It is for this reason that we strongly support

legislation which would exempt information, whether clearly financial

or not, regarding the natural resources or other assets of Indian tribes

and individuals.

It should be noted, in the context of the fourth exemption, that there

are criminal penalties provided in 18 U.S.C. 1905 for an employee of

the United States making known information coming to him in the

course of his Federal employment which concerns "trade secrets, processes, operations, style of work, apparatus, or to the identity, confidential statistical data, amount or source of income, profits, losses, or

expenditures of any person, firm, partnership, corporation, or association" or who "permits any income return or copy thereof or any book

containing any abstract or particulars thereof to be seen or examined

by any person except as provided by law." In addition to a fine of

not more than $1,000 or imprisonment of not more than 1 year, a

violator of this section "shall be removed from office or employment."

Divulging information relating to Indian assets may violate one

or more of these provisions and subject the Federal employee involved

to the penalties provided. Our substitute bill would make it perfectly

clear that divulging information relating to Indian resources and

assets is not authorized by law and that the Federal employee who

divulges such information only under the peril of being prosecuted

and punished under 18 U.S.C. 1905.

Mr. Chairman, in conclusion, as in the case of the fourth exemption

both the fifth and ninth exemptions provide a limited degree of protection. However, none of these provide the complete protection that

Indian people need, are entitled to, and have a right to expect from

their trustee. Thus, we strongly support legislative action along the

lines contained in S. 2652.

We will submit a revised bill providing separate statutory authority

for a special exemption to the Freedom of Information Act similar

to that proposed in the bill in the very near future.

This concludes my prepared statement, and I would be pleased to

respond to any questions that you might have.

Senator ABOUREZK. Does the Justice Department have a statement ?
19

STATEMENT OF HON. PETER R. TAFT, ASSISTANT ATTORNEY GENERAL, LAND AND NATURAL RESOURCES DIVISION, DEPARTMENT

OF JUSTICE; ACCOMPANIED BY MILES FLINT, SECTION CHIEF,

INDIAN RESOURCES AND LAND, DEPARTMENT OF JUSTICE

Mr. TAFT. Senator, my name is Peter Taft, Assistant Attorney

General in charge of Land and Natural Resources of the Department

of Justice. Ours is simply in support of what Interior has said.

As you know, we have deferred to them since they are the ones that

primarily define the rights of Indian concerns. I point out that we

are charged with protecting the natural resources of Indian tribes

when they come to court and act as trustee and counsel for the trustee.

We have set up a special Indian resources section in Land to carry

out this function. I would point out that in litigation often we are

concerned with the quantification and plans for development of assets

of the Indian tribes and as a result we are very concerned that they

be protected as best they can.

We join with Interior on the position that they have taken here.

We point out on top of that that I think it is right to distinguish

between the capacities in which the United States acts. When we act

as trustee we do not act in the same normal capacity that we do when

all our other acts are under the Freedom of Information Act. And I

think as trustee that there is a rightto protect the relationship between

the trustee and the beneficiary, which is the tribe.

It has traditionally been a confidential one, and it is one that I do

not think should be changed simply because it is the United States

as opposed to any other kind of trustee.

We therefore urge that Congress does in fact pass an act which

would protect the resources and assets of Indian tribes, and which

will protect us in acting as trustee.

I point out that our general policy under the Freedom of Information Act has been to turn over the information unless we feel there

is a particular need on a particular document to protect it.

Now on Indian policy that is not the same approach. The approach

there is they have a right to protect every bit of information which

may affect the resources of the tribe. As a result if we continue under

the Freedom of Information Act we will tend to foster litigation and

a tremendous amount of unnecessary expense in order to protect the

information relating to the tribes.

As a result, I believe that a special exemption which would reverse

the burden in this instance is proper, and an act as suggested by Interior would be really the only way to properly protect both the tribes

and the United States in acting as a trustee.

Senator ABOTTREZK. Is that your statement?

Mr. TAFT. That's right.

Senator ABOTTREZK. My first question is: Why do you propose a

separate bill instead of an amendment? Is there a particular reason

for that?

Mr. FRANKEL. AS you can tell from our statement, Mr. Chairman,

there is no difference in philosophy in terms of what we are trying

to achieve and we support what the committee is trying to achieve.
20

The proposal of a separate bill I think is a technical one. Our feeling

is it is more likely to wind its way through the legislative process,

and more likely to be finally accepted. And I think the decision was

made along those lines rather than a philosophical and conceptual one.

Senator ABOTTREZK. You haven't checked with the Parliamentarian

about which committee would have jurisdiction over a separate bill ?

Mr. FRANKEL. No, we haven't. Mr. Chairman, our feeling is it would

be a separate piece of legislation relating to the U.S.Tndian trust

responsibility and since the Interior has jurisdiction over S. 2652,

it certainly would have jurisdiction over our proposed substitute

legislation.

Senator ABOTTREZK. It would be drafted that way?

Mr. FRANKEL. It would be drafted that way.

Senator ABOTTREZK. What protection would there be for individuals

and private members who might want access to tribal financial records ?

In the event the tribal administration is charged with mismanagement,

how would the proposed legislation assist an individual under such

circumstances?

Mr. SENECA. Mr. Chairman, in terms of protection this piece of

legislation would afford to Indian tribes, it is our feeling that the

legislation would also be protective of that tribal government from

individuals reaching that information just as a matter of course. We

would rely upon the processes of the tribal government to allow an

individual member, then, to reach tribal information. Now it seems

to me that there are processes that are available if an individual did

not receive satisfaction going through the tribal court systems, that

the Federal courts could probably be used, then, to reach that

information.

It is a matter of concern from the standpoint of the individuals

wanting information concerning tribal records and they are a member of that particular tribe. That kind of a situation on the face of

it indicates perhaps they ought to be able to get that just by merely

asking. However, it seems that if we are initiating a piece of legislation that is to maintain the integrity of that tribal information,

that it would also have to be protection from that individual reaching

that information just by the mere asking.

Senator ABOTTREZK. I understand it would be a pretty delicate

matter. There could be individual tribal members who might be, for

one reason or another, asked by an oil company to find out what the

resource assets were of the tribe. And that is the first thing that comes

to my mind, and we want to protect against that sort of thing.

But say there is a legitimate concern by a tribal member of embezzlement by the tribal government, and he wants to obtain information

or evidence from the tribal government to spur an investigation by

the Justice Department. How would he do that under the proposed

legislation and at the same time maintain protection to the information

concerning resources ? You would have to get into the financial aspect,

and if I read your statement correctly, there is an exemption already

from financial disclosure. Is that right?

Mr. SENECA. Of some sorts. The statement indicated, Mr. Chairman,

in the Bureau of Indian Affairs we keep what are known as "individual

Indian money accounts." And as I understand it, those individual

r/hT. f.«#' °gm
21

accounts are presently exempted from being reached by information

requests.

However, it is a different question when we are talking about the

corporate entity of the tribe and their funds that we hold in trust.

And so when we talk about the financial records being exempted from

the Freedom of Information Act we are saying that it is clear to us

that they are exempted with regard to individual Indian rights. However, with regard to the corporate entity of the tribe there is still

some question.

Senator ABOUREZK. SO would it be accurate to say that a tribal

member could not go to the Government under the Freedom of Information Act and get the Government to disclose what the tribe's assets

are but they could under certain court procedures go to the tribe and

get disclosure there?

Mr. SENECA. That is right.

Senator ABOUREZK. Now you gave some examples of the inventories

and so on that have been turned over under the Freedom of Information Act that relate to Indian resources. Would you provide more

specific examples, if you have them with you?

Mr. SENECA. Mr. Chairman, in the Department of the Interior we

have a procedure which we follow under the Freedom of Information

Act when a request comes in. If it is our decision to deny that request,

then we must run that by the Solicitor's Office for their counsel. And

if it does not fit within one of the exemptions of the Freedom of Information Act, then we are directed that as a matter of law from the

interpretation the Solicitor's Office gives to the Freedom of Information Act that we must turn the information over.

The water inventories that we have been involved in were conducted

on the Lower Colorado River. In addition, information on the Omaha

Tribe's land litigation was turned over under the Freedom of Information Act. Those are two examples that come immediately to mind,

but we also have done a number of mineral inventories.

Mineral inventories are essentially to assess what is under the land

and assist the tribe in making some decisions with regard to development of that resource. It is conceivable that such information, if requested under the Freedom of Information Act, would also have to

be turned over. So I can give you two specific examples beyond what

is contained in our report.

Senator ABOUREZK. It would be helpful to the subcommittee when

we move forward on this legislation to have specific examples. For

example, names of tribes and the exact information requested. And,

also, if you know, or if you can estimate, how much income the Indian

people have lost through these kinds of actions.

Mr. FRANKEL. We can certainly supply the former, and we will

see whether or not we can come up with estimates on the latter.

Senator ABOUREZK. NOW in your statement you refer to release of

a water basin study, presumably to a third party interest. Can you

elaborate on this one at this time, or is that something you will have

to research? I would like to know the name of the third party and

the tribe involved if you have it.

Mr. FRANKEL. We will provide that for the record.
22

Senator ABOUREZK. And would you also provide a similar elaboration for the lawsuit which was filed in the U.S. district court in the

district of New Mexico?

Mr. FRANKEL. Yes, sir.

Senator ABOUREZK. And if you have a brief, we would like to have

that as well.

Mr. FRANKEL. OK.

Senator ABOUREZK. Or, the briefs of both sides. [See app. I. p. 67,

letter of August 18, 1976, from Bureau of Indian Affairs.]

Now when you are confronted with a request under the act concerning Indian natural resources, do you confer with the Department

of Justice officials to determine if the request falls under any of the

nine exemptions, or is that done by your solicitor?

Mr. SENECA. Mr. Chairman, that is done through the Solicitor's

Office within the Department of the Interior. The only time that we

would actually be involved in conversation with the justice Department directly is if we would actually have an item that is in litigation.

And under our procedure within the Interior that when we have an

issue that is in fact in litigation, those requests come through, then

they are referred directly to the Justice Department.

Senator ABOUREZK. All right. Does the Solicitor issue a formal

opinion to justify the release of the information?

Mr. SENECA. NO, they do not.

Senator ABOUREZK. How are the Indians notified of such a release ?

Mr. SENECA. Most often, Mr. Chairman, they are notified either by

telephone call or by a memorandum from the Bureau of Indian Affairs

indicating that such information has been released pursuant to the

Freedom of Information Act.

Senator ABOUREZK. HOW long have you felt that the enactment of

the Freedom of Information Act has compromised your trust responsibility for Indian tribes?

Mr. SENECA. Well, it came to light about a year and a half ago.

And approximately a year now that we have had to deal extensively

with the Freedom of Information Act requests. Primarily dealing,

Mr. Chairman, with those controversial issues of water litigation or

land exchange, or those kinds of things.

The impact of Freedom of Information Act requests has essentially

created a lot of concern on the part of the American Indian tribes

concerned from the standpoint of whether or not they want to get

extensively involved with the Bureau of Indian Affairs in developing

information. So it has been approximately a year now where this has

caused considerable concern among the tribes and within the Bureau

of Indian Affairs.

Senator ABOUREZK. I am curious to know why the Department didn't

request an exemption earlier.

Mr. SENECA. AS far as the Bureau of Indian Affairs is concerned

we have been looking toward an exemption and have generated discussions and conversations on this issue from the very, very first. The

conversations have been within, the Department, within OMB, and

now with this committee.

&0h% v*•<? geas^
23

The Indian community and the Bureau of Indian Affairs have been

very vocal on the problems of the Freedom of Information Act.

Senator ABOTJREZK. NOW, when can the committee expect to receive

your draft bill?

Mr. FRANKEL. We hope to have a draft bill out of the Bureau in

a week. Our indications are we can probably get clearances within

another week, and as soon as OMB clears it thereafter, we will be up

to the committee. I would hope within 30 days.

Senator ABOTJREZK. I would like to know also, to what extent has

the Department of the Interior undertaken a systematic program to

apprise the tribes of the Freedom of Information Act and its potential impact on release of information concerning their natural

resources ?

Mr. SENECA. Mr. Chairman, about a year ago information on the

impact of the Freedom of Information Act vis-a-vis Indian natural

resources was disseminated to our area offices. They also received at

that time copies of the procedures with which we deal with the Freedom of Information Act and referred to then with the contact with

the Solicitor's Office here in Washington. We are in contact with the

Solicitor, and in the field our area directors are in contact with the

field solicitors in working out requests under the Freedom of Information Act.

As far as the actual dissemination of information, the tribes and

the impact of the Freedom of Information Act to the tribes directly,

that has been pretty much left up to the different areas in terms of the

program which they would carry out to disseminate such information.

Senator ABOTJREZK. TO your knowledge, has the act discouraged

tribes from free communication with you as a trustee?

Mr. SENECA. Mr. Chairman, on those sensitive issues concerning

natural resources and contemplation of litigation, yes.

Senator ABOTJREZK. NOW should the tribe have a right to consent to

the divulging of such information?

Mr. SENECA. AS a conceptual matter and as a philosophical proposition, the tribes are the real parties in interest in any one of these issues.

It is their natural resource which we hold in trust for them, and as a

philosophical matter, yes, they should have that right.

Mr. FRANKEL. Let me add something here, Mr. Chairman. As I

said in my opening statement, what we have here is an unfortunate

reversal of the real intent of the Freedom of Information Act. That

act was intended to improve the way the Government serves its recipients by having a more open decisionmaking process.

In effect, because of the Bureau's uniqueness, our trust relationship

with the Indian people, what we have done is decrease the Bureau's

effectiveness to serve as trustee for Indian people. And actually we

have worked to improve the manner in which we deliver services to

the Indian tribes. I think that is the way the framers of the Freedom

of Information Act intended the act to work, and it is only because

of our unique relationship with the Indian tribes that it has occurred

this way. ...;..

We feel very strongly that philosophically we can remedy it at

this 'point'.'
24

Mr. GERARD. Staff has a question they would like to pose to the

Department of the Interior. Assuming that the Department has contracted with a tribe under the Buy Indian Act, say, to undertake a

land classification study and, upon completion of the study a private

developer decided he wanted access to that information, and requested

it pursuant to the Freedom of Information Act; the question would

be who is legally entitled to maintain that information, the tribe or

the Department? And, would it be subject to release pursuant to the

Freedom of Information Act?

Mr. SENECA. AS to the contract with the tribe, at some point there

comes a conclusion of that contract, and there has to be a receivable.

And at the point that the contract is concluded and final reports are

written and submitted by the contractor, that is, the tribe and whoever

they sub out to. In fact, it does become at that point a Government

document and when it becomes a Government document, it can be

reached under the Freedom of Information Act.

As a general proposition, during the time that the contract is being

performed, the information has not been reachable under the Freedom

of Information Act primarily because it is not available and it is

usually in its preliminary form. The bottom line being at that point,

it is not a Government document.

Mr. GERARD. One final question. Assuming the tribe was attempting

to secure information from another governmental agency beyond Interior under the Freedom of Information Act, would the trustee provide

any assistance to that tribe in securing such information ?

Mr. SENECA. In carrying out our trust responsibility, if that information had something to do with that trust and it was important to

the tribe that it receive that in order to improve its decisionmaking

process, it seems only consistent with our trust responsibility that we

assist the tribe when necessary to receive all of the information. And

that would include assisting the tribe working with another governmental agency in securing that information.

Mr. GERARD. Are you familiar with the Nisqually Tribe's efforts

to obtain information from the Department of Defense ?

Mr. SENECA. Yes; we are.

Mr. GERARD. Has the trustee assisted them in that particular request ?

Mr. SENECA. Yes; we have.

Mr. GERARD. What is the status of it?

Mr. SENECA. The most recent action that has been going on, two

staff people from my immediate office along with individuals from the

Portland area office have met with the chairwoman of that reservation

and have devised a strategy, or action plan if you will, in moving that

issue forward.

I don't have the particulars of that with me at the present time,

but would supply that.

Mr. GERARD. We would appreciate it. Thank you, Mr. Chairman.

[The information was not received in time to be included in the record.]

record.]

Senator ABOUREZK. Thank you all for your appearance here this

morning.

[The prepared statement of Mr. Frankel follows:]
25

STATEMENT OF HON. HABLET M. FRANKEL, DEPUTY COMMISSIONER, BUREAU OF

INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Mr. Chairman and members of the subcommittee, S. 2652 would exempt from

provisions of the Freedom of Information Act "information held by a Federal

agency as trustee, regarding the natural resources or other assets of Indian

tribes or bands or groups or individual members thereof." This exemption

would become paragraph (10) of 5 U.S.C. 552(b), as an addition to the nine

categories of subject matter now listed in that section to which the disclosure

requirements do not apply.

As indicated in our report on S. 2652, instead of an amendment to the Freedom

of Information Act, we recommend enactment of separate statutory authority

providing a special limited exception to the FOI Act similar to that proposed

in the bill. We expect to submit a revised bill to the Committee very soon.

We believe that such an exemption is necessary to preserve the fiduciary

relationship of the United States to Indian people. The Bureau of Indian Affairs

is the agency charged with discharging the nation's trust responsibility to its

Indian tribes, and this agency may not be able to obey the mandate of the

Freedom of Information Act (without this exemption) and at the same time

faithfully perform the obligations of its trust to Indians. In essence, we have

been placed in the position of being required by law to violate the confidential

relationship which we have with Indian tribes and individuals. Indeed, such

violations may give rise to claims by tribes or individual Indians against the

Federal Government. As to this possibility, it should be noted that the United

States Supreme Court has said that the United States in its dealings with Indian

tribes•

"* * * has charged itself with moral obligations of the responsibility and

trust. Its conduct, as disclosed in the acts of those who represent it in dealings

with Indians, should therefore be judged by the most exacting fiduciary standards." Seminole Nation, v. U.S., 316 U.S. 286, 297 (1942).

As the agency charged with carrying out the nation's trust responsibility to

Indian tribes, the Bureau of Indian Affairs must oversee, supervise, and administer the programs by which the Indian tribes can develop their natural resources

and their reservation and tribal economies. As one means of carrying out this

function, the BIA is presently engaged in a series of inventories of natural

resources and minerals deposits on Indian lands. The Bureau is often beset by

requests for copies of these inventories by interested parties, sometimes by the

very companies who will compete for the opportunity to develop these resources.

Presently, the Bureau is required to disclose the results of these inventories

under formal FOIA requests.

Disclosure of reports such as these clearly places the tribes in a disadvantageous position in negotiating with companies for the development of these

resources. In fact, many tribes in the past have depended largely upon bonus

payments paid by these companies for the right to conduct exploration for these

minerals. With much of the work done for them, and with access to detailed

information concerning mineral deposits, these companies will not be willing to

compete with each other and to pay large bonuses for exploration and prospecting

permits. On the other hand, prudent management of these resources requires

that the Bureau and the tribes inform themselves of the location and extent of

these resources. Many tribes, however, are seriously discouraged by the fact that

information developed may be disclosed by the Bureau upon request of other

parties who have pecuniary interests adverse to those of the tribes. Surely, the

purposes of this law are not served when it redounds to the benefit of already

profitable commercial entities at the expense of the nation's impecunious Indian

wards, whom the government has pledged to protect from such exploitation.

Another area in which the Freedom of Information Act works to the detriment

of Indian tribes and seriously compromises the trust relationship is that of water

rights. The right of Indian tribes to water arising upon, bordering, or traversing

their reservations in sufficient quantity to irrigate all the "practicably irrigable"

acreage of their reservations is well established. Winters v. United States, 207

U.S. 546 (1908) ; Arizona v. California, 373 U.S. 564 (1963). In order to protect

these rights to precious water in the arid West, the tribes and the BIA must

engage in extensive and expensive soil classification surveys, water availability

studies, agricultural economics analyses, and reservation development plans.

These efforts are required as preliminary measures to determine the tribes'

entitlements to water. And, when these studies are complete, lengthy and expensive litigation usually must follow to adjudicate these rights.
26

At present, In several of the large river basins, Industries are busily securing

option contracts for the use of water from state and federal agencies, and they

may now demand access to the detailed plans of the Indian tribes within these

river basins even though these documents may well be necessary for the tribes to

develop their litigation strategy and posture at a later time. In at least one

Instance, the Bureau was required to release such a report, over the vigorous

objection of the tribe involved. In another case, the Department refused to

release such a report, and a lawsuit has been filed in the Federal District Court

for the District of New Mexico over this very issue. Even though these requests

are handled on an individual basis within the Department, when the Solicitor's

office determines that a request cannot properly be fitted within one of the nine

existing exemptions, the result is that the Bureau of Indian Affairs must pit

itself against the interests of the very group it exists to serve and protect.

The claims of the Indian tribes in these instances are compelling. They claim

that the Bureau of Indian Affairs exists to serve them and to protect them in the

enjoyment of their property. In the above instance in which disclosure was required, the tribe felt that the study was inaccurate in several respects and

highly prejudicial to their claims to water rights, and that their trustee acted

against their interests in providing to future opposing litigants a highly expensive bit of evidence which the tribe would have to refute in court. Under the

present law, however, the Bureau felt it had no choice.

There are many other areas in which the Freedom of Information Act could

have seriously damaging effects upon the trust relationship of the United States

with its Indian tribes. The Bureau, for instance, administers some 100 million

acres of Indian trust land, much of which is under lease for grazing or agricultural purposes. In order to Insure a proper return to the Indian landowners

of this land, It must be appraised and offered for bid. If the non-Indian ranching

and agricultural interests who profit from the use of this land can demand

access to land ownership records and appraisals, they will be at an enormous

advantage in negotiating and bidding for use of this land. In short, without an

exemption such as the one proposed by S. 2652, the Indian tribes generally will

be denied the opportunity to engage in the type of arm's length transactions

that characterize free enterprise and honest commercial dealing.

It has been suggested that the various exemptions already existing provide

ample protection against the evils suggested herein. The fourth exemption,

5 U.S.C. 552(b)(4), concerning financial information obtained from a person

and privileged or confidential, does provide some degree of protection when the

information Is clearly financial and is clearly privileged. Information of any

type may well produce financial rewards in the right hands, however. It is

for this reason that we strongly support legislation which would exempt information, whether clearly financial or not, regarding the natural resources or

other assets of Indian tribes and individuals.

It should be noted, in the context of the fourth exemption, that there are

criminal penalties provided in 18 U.S.C. 1905 for an employee of the United

States making known information coming to him in the course of his federal

employment which concerns "trade secrets, processes, operations, style of work,

or apparatus, or to the Identity, confidential statistical data, amount or source

of any income, profits, losses, or expenditures of any person, firm, partnership,

corporation, or association" or who "permits any income return or copy thereof

or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law". In addition to a fine of not more

than $1,000 or imprisonment of not more than one year, a violator of this

section "shall be removed from office or employment". Divulging information

relating to Indian assets may violate one or more of these provisions and subject

the federal employee involved to the penalties provided. Our substitute bill

would make It clear that divulging information relating to Indian resources

and assets is not authorized by law and that federal employees would divulge

such information only under the peril of being prosecuted and punished under

18 U.S.C. 1905.

It has also been suggested that protection is provided by the 5th exemption

concerning inter-agency or intra-agency memoranda which would not be available by law to a party other than an agency in litigation with the agency. This

may sometimes provide a degree of protection, especially in the working draft

stages of inventories, reports, and other policy or planning developments. This,

too, however, is but an unclear and inconclusive prospect, and it invites continuous appeals and litigation.

WIKT~ ^rvc»
27

It has further been suggested that the 9th exemption, which exempts geophysical and geological information concerning wells, should protect against

mandatory disclosure of water resource studies. This is by no means clear, and

there is disagreement as to the scope of this exemption, as well as the other

two exemptions mentioned above.

In short, while each of these exemptions offers some limited possibility of

protection, none of them addresses the problem which the Bureau of Indian

Affairs faces in this matter. We strongly believe that Government officials should

not have to attempt to resolve a potential conflict between the spirit and purpose

of one law and their responsibilities under another.

Failure to provide such an exemption would result in the continued confusion

in the mind of the public in the eyes of the law between the national governmental responsibility to the American public and the nation's fiduciary responsibility as trustee of the private resources of Indian tribes.

This concludes my prepared statement. I would be pleased to respond to any

questions that you might have.

Senator ABOTTKEZK. I would like the next panel of witnesses to come

forward. Mr. Delfin J. Lovato, chairman, All Indian Pueblo Council;

Mr. Roland Johnson, Governor of the Laguna Pueblo; Wendell Chino,

president, Mescalero Apache Tribal Council and president, National

Tribal Chairmen's Association, and Mr. James Martinez, Governor,

San Ildefonso Pueblo.

I would like to welcome all of you to the subcommittee hearings.

Del, are you going to chair the panel ?

STATEMENT OF DELFIN J. LOVATO, CHAIEMAN, ALL INDIAN

PUEBLO COUNCIL

Mr. LOVATO. I will start off, Mr. Chairman. Before I do, I would like

introduce members of the Pueblo delegation with me here.

I would like to introduce, to my left, Gov. Roland Johnson of

Laguna Pueblo, Gov. James Martinez, and also Gov. Henry Esquibel

of San Felipe, who is sitting in the audience there.

Mr. Chairman, the All Indian Pueblo Council has been looking into

the matter of the Freedom of Information Act for approximately 2y2

years. And at our request, Senator Pete Domenici introduced S. 2652.

Basically, Mr. Chairman, we are here in support of the legislation,

of course. I think our basic reasons stem from the standpoint of the

tribal sovereignty and the trust responsibility as they pertain to the

trust relationship between the Federal Government and the Indian

tribes. I think because of the trust relationship the Federal Government has a responsibility to protect and act in the best interests of the

Indian tribes in all matters having to do with the assets or the resources

of the Indian people.

I think the Freedom of Information Act in more recent months has

been used to the detriment of the Indian tribes in several instances. I

think from the standpoint of litigation the Justice Department having

the responsibility to act as the private attorney for the Indian people

is subject to releasing information, documents, studies relevant to the

Indian tribes' assets and resources. This information would not otherwise be available to the adversaries, be it the State agencies or private

individuals, under these normal rules of discovery and evidence.

I think as such the best interests of the Indian tribes has most often

not been protected. Second, from the standpoint of commercial and

industrial development many of the mineral studies that have been

done, many of the land use studies, many of the financial records, and
28

other resources that the Indian tribes are seeking to develop and have

done tremendous researcli in are again subject to the same exposure

or dissemination without the consent of the tribes through the use of

the Freedom of Information Act. And, of course, this works to the

disadvantage of the Indian tribes.

I think, basically, Mr. Chairman, we are asking that S. 2652, or legislation to that effect, be passed so that the trust relationship between

the Federal Government and the Indian tribes can be strengthened,

reinforced, and maintained.

I would like to also comment, Mr. Chairman, on two points which

were raised earlier. One has to do with the concern as to the information that a tribal member might request from the tribe itself.

I think you are aware, Mr. Chairman, that the Indian tribes across

the country are faced with many difficulties right now in regards to

civil rights actions that have been brought against them. Many of them

based on the same basic principle, where individual tribal members

are either wanting certain information or wanting certain actions

changed that have been taken by the tribal government and tribal

councils.

We strongly feel that this is not at issue in this particular legislation. We also strongly feel that these type of matters are internal

matters, and there are procedures within the respective tribal councils

to handle this type of situation.

In the Pueblo countries, at least this is the situation. I think with

that, Mr. Chairman, I would like to give the other members of the

panel an opportunity to present their views.

Senator ABOTJREZK. Del, before you go on to the other witnesses,

I would like to discuss the issue of individual tribal members' access

to records of the tribe itself.

What concerns me about withholding information from tribal members is that there have been some occasions of corruption by tribal

governments. Thank God, it has never happened out at the Pueblo.

I think your people have got probably as good a government setup

as anywhere in the country, or the world for that matter. But it is a

matter of concern to me, having witnessed some actual cases of corruption on the part of tribal chairmen and councils, and the laxity of

tribal councils in defending the interests of people they represent.

I don't want to be party to any action that would shut off the ability

of a tribal member to challenge what his government is doing. We

have had enough problems here in the Federal Government with

bureaucrats and Government officials stonewalling a request of

Senators, Congressmen, and private citizens, and we don't want that

to continue in tribal government if we have the ability to stop it.

And since Congress does have the ability, I don't want to become

a party to that. That is why I raise the question. I guess one of the

hazards of being in an elected office is that you are always subject to

scrutiny by the public. All of us should be. And we don't want to try

to prevent that scrutiny from happening.

Now, you probably don't disagree with that concept of it, either.

I would think you wouldn't.

Mr. LOVATO. To some extent, I do.

[The prepared statement of Mr. Lovato follows:]

&r/h.". %'^• e?
29

STATEMENT OF DELFIN J. LOVATO, CHAIRMAN, ALL INDIAN PDEBLO COUNCIL

My name is Delfin Lovato, I am chairman of the All Indian Pueblo Council.

With me is the Governor from Laguna Pueblo, Roland Johnson; the Governor

from San Felipe Pueblo, Henry Esquibel; and the Governor of San Ildefonso

Pueblo, James Martinez. Also accompanying me is the secretary/treasurer of

the All-Indian Pueblo Council, Frank Tenorio.

The All-Indian Pueblo Council strongly supports S. 2652 which was introduced on our behalf by Senator Pete Domenici of Xew Mexico. This legislation

would amend the Freedom of Information Act to protect the Indian people

from an intrusion into their own affairs and dangerously erode the trust relationship between the United States Government and the Indian people.

No doubt the Freedom of Information Act, 5 U.S.C. 552, was well-intended by

its proponents. No one could argue that removal of much of the secrecy in Government and the unreasonable restrictions placed by many agencies of the Government was beneficial to all American citizens. As is frequently the case, a

major decision was made, affecting all governmental agencies, and no consideration whatever was given to American Indians. The result has been most

dangerous, and the result must be reversed if the American Government is to

keep faith with the Indian people.

The most dramatic example of the abuse which has resulted from the Freedom

of Information Act is in litigation. Indian tribes throughout the United States,

and particularly, it seems, in New Mexico, are beleaguered in court battles.

States and others are challenging the rights of the Indian people to their land

and water and sovereignty. This has worsened considerably because our adversaries in litigation may utilize the Freedom of Information Act to acquire

information most damaging to the Indian cause, which information would not

be obtainable under the normal rules of court, either under the rules of evidence

or rules of discovery. The Indian litigant, on the other hand, does not have a

similar device to obtain such information from its adversary. A case in point

need not be hypothecated: it exists. In the case of State of New Mexico, ex rel,

8. E. Reynolds, State Engineer, v. Thomas S. Kleppe, Secretary of Interior,

et al.. Civil No. 75-684 M. in the United States district court for the district

of New Mexico, this precise point is at issue. As you doubtlessly know, in the

Aamodt case, the State engineer of New Mexico is challenging the long-standing

water right priority belonging to Indians. The State is seeking to obtain certain

water studies conducted on behalf of the certain Indian tribes, most of whom

are presently involved in litigation. This information clearly would not be

discoverable under the present judicial rules. While there is no present indication as to how this case will be decided ultimately, the plain fact is that in

the exceptions to the act, none fit the unique problems of the Indians. The only

answer is for the legislation you propose to be passed and to lay this difficulty

to rest forever. The All-Indian Pueblo Council, incidentally, is an amicus curiae

in this case, and we are urging that there is sufficient discretionary latitude in

the court to favor the Indian litigants, even though there are no specific words

in the statute that affects them. Even if the Indian people prevail in this case,

the problem will exist, absent remedial legislation.

In addition to problems arising from litigation, there are also the everyday

relationships between the Indian community and the United States. The Indian

community is belatedly emerging in today's world of business and commerce

and true self-determination is being realized. We must, however, have the continuing aid to the Bureau of Indian Affairs and other such agencies to provide

information to best assess the economic value of business opportunities, be

they mineral leases, land leases, commercial ventures, or whatever. As these

agencies gather information, under the present law, persons with whom we are

dealing can immediately gain access to this, and our bargaining position is

eroded. It is indeed paradoxical that by virtue of the guardian-ward and trustee

relationship which should represent a continuing "solicitude" by the Government on behalf of the Indian people, and protect Indian rights, has a reverse

effect in that the bargaining position of Indians is worsened instead of made

better. Countless examples could be given but the point is manifestly apparent.

The trust responsibility of the U.S. Government cannot continue to exist

unless S. 2652 is passed into law. I, as well as all of the Governors of the nineteen Pueblos of New Mexico, urge the passage of this legislation at the earliest

possible moment.

Senator ABGUKEZE. All right. Who is next?

75-358 O - 76 - 3
30

STATEMENT OF HON. ROLAND JOHNSON, GOVERNOR, LAQUNA

PUEBLO, ACCOMPANIED BY RICHARD SCHIFTER, COUNSEL

Mr. JOHNSON. Mr. Chairman, my name is Roland Johnson. I am the

fivernor of the Pueblo Laguna Indian community located in the

tate of New Mexico. I also have with me Mr. Richard Scbifter, who

is our local tribal attorney. And I would like Mr. Schifter. with your

permission, to have an opportunity to give some of his legal points

of view relative to the matter being discussed today.

Mr. Chairman, I am pleased to have this opportunity to testify

in support of S. 2652. Let me emphasize at the outset that S. 2652 is

a bill which is intended to change the existing law. It is a bill which

is intended to clarify the existing law. The law with which we are

dealing here is the Freedom of Information Act which was passed by

Congress about 10 years ago.

As you well know, the intention of the Congress in passing the

Freedom of Information Act was to open up for public inspection

the records of the Government which deal with the public's business.

The late Senator Dirksen once explained that the Freedom of Information Act would provide "the means by which the people of this

country can become informed and thus be able to scrutinize the activities and operation of the Government." In the House of Representatives it was pointed out that the new law had to be passed because

some "agency and department heads enjoyed a sort of personal ownership of news about their units."

Congressman Moss explained the purpose of the bill in this way:

"We must remove any barrier to information about•and understanding of•Government activities consistent with our security if the

American public is to be adequately equipped to fulfill the ever more

demanding role of responsible citizenship."

What is clear from all that I have quoted so far is that the purpose

of the Freedom of Information Act was to make sure that there would

be available to the average citizen the documents which deal with the

Government's activities in its capacity as a servant of the general

public.

Most of the work done by the Government is work done by it as a

servant of the general public. But there is one exception, and it is

clear that when the Congress passed the Freedom of Information Act

it did not give much thought to that exception. The Government of

the United States also acts as trustee for Indian tribes. When the

Government takes action in its trustee capacity it does not render a

service to the general public, it renders a service to the specific Indian

tribe for which it is trustee.

In discharging its obligations to Indian tribes, the Government

often assembles information concerning the assets of those Indian

tribes. That information would not be assembled if it were not for

the Government's role as trustee. Similar information held by a nonIndian landowner would be considered private and confidential.

We don't believe that the Congress intended to put Indian property

at a-disadvantage against non-Indian property. It is for that reason

that we believe that documents and other information collected by

the Government in its capacity as trustee was not intended to be made

available to the general public under the Freedom of Information Act.
31

The point which we are making is simply that, as the quotations

from Senator Dirksen and Congressman Moss indicate, the kind of

information which the Freedom of Information Act was supposed to

make public is general information about governmental affairs which

would make it possible for persons to do a better job of "responsible

citizenship."

But I am sure you will agree, Mr. Chairman, that no one is helped

to be a more responsible citizen if he gets material about someone else's

private affairs. Private landowners consider information about their

mineral and water resources their private business. As far as Indian

tribes are concerned, such information should be a matter between the

Government, as trustee, and the Indian tribe, as beneficiary of the

trust. No one else should be allowed to stick his nose into the matter.

The issue with which we are here dealing is not just an issue of

principle, of theory. It is also an issue of important, practical significance. As the Federal Trade Commission staff report entitled

"Mineral Leasing on Indian Lands," dated October 1975 pointed out,

Indian tribes often lack sound geological information about their

lands.

The report found that this lack of data put Indian tribes at a serious

competitive disadvantage in evaluating bids and making sound business judgments on mineral leases, and was, therefore, the single

greatest impediment to the negotiation of more profitable leasing

arrangements by Indian tribes.

There is one other crucial point which should be noted here. Some

Indian tribes may be in a position of hiring private consultants to

be paid out of tribal funds. The work product of these consultants

can be kept confidential. But the poorer tribes who would depend on

Government research, or Government-funded research would be the

ones whose reports would be released to the general public.

As you can see, the situation is bad enough as it is, with our often

not knowing enough about the value of our own resources. But at the

present time the other side at the bargaining table does not know

how much or how little we know. Please consider how much worse

off we would be if the potential lessees were fully aware of how limited

our knowledge is as to our own resources.

As I have said, when the Congress passed the Freedom of Information Act it probably did not even think of information concerning

the assets of Indian tribes. If Congress had given thought to this

issue, such information would surely have been expressly exempted

from the coverage of the act.

Given the basic trust relationship of the Government with Indian

tribes and the congressional intention in passing the Freedom of Information Act, we believe that exemption 4, which provides that the

Freedom of Information Act does not apply to "trade secrets and

commercial or financial information obtained from a person and

privileged or confidential" should be interpreted to exempt from the

Freedom of Information Act all documents stemming from the trust

relationship. We believe that this is a reasonable interpretation of the

law, but unfortunately the Department of the Interior has not agreed

with us.
32

It has, so far, not taken the position which we would like it to take;

namely, that all data collected by the Government as trustee is privileged. This is the reason why we asked Senator Domenici to introduce

S. 2652.

A concrete example of our problem is the case of State of New

Mexico v. Kleppe, a case which has been filed by the New Mexico

State engineer against the Secretary of the Interior, and which is now

pending in the U.S. District Court for the District of New Mexico.

The State asked for studies or reports collected and completed by

the Geological Survey since 1970 on various Indian lands in the State

of New Mexico.

The Department of the Interior furnished some of the information

and refused other information. But even where the information was

refused, it was not refused on the basis of exemption 4, which would

cover all material collected by the Government as trustee. It was

refused on the basis of exemption 5, which allows interagency or intraagency memorandums or letters which would not be available by law

to be withheld.

It is quite possible that the Department of the Interior will win the

case of New Mexico v. Kleppe. Even if it does, the Department might

continue to take the position that it will withhold only some but not

all the records it holds in the capacity of trustee.

Since the case of State of New Mexico v. Kleppe was filed, the State

has made demand, under the Freedom of Information Act, for the

release by thj Geological Survey of data on the water resources of

my Pueblo. No reason was given as to what this information was

needed for. It was simply a demand for the data.

We could, of course, bring suit against the Department of Interior,

arguing that it should construe exemption 4 in the same way that we

construe it, and thus turn down all such requests.

However, that will take time and will be expensive. The issue which

will be the subject of such a suit will be to get the courts to decide what

it is that Congress intended to do with regard to Indian records when

it passed the Freedom of Information Act in 1966 and 1967.

A much simpler and much less costly procedure, both for the Indian

tribes and for the Government, would be for the Congress to clarify

its intention. We assume, as I have already said, that the Congress

never intended to make essentially private information on Indian

tribal resources available to the general public. That is why we hope

that you will agree to pass S. 2652.

Senator ABOTJREZK. Thank you very much.

STATEMENT OF HON. JAMES MARTINEZ, GOVERNOR,

SAN ILDEF0NS0 PUEBLO

Mr. MARTINEZ. Mr. Chairman, my name is James Martinez, Governor for the San Ildefonso Pueblo, N. Mex. I would like to summarize

my statement. However, I would like the written portion introduced

for the record.

Senator ABOUREZK. It will be admitted.

Mr. MARTINEZ. Thank you for allowing me to testify in favor of

S. 2652 which would amend the Freedom of InformationActto exempt

(^C
33

from disclosure information in the hands of Federal agencies pertaining to natural resources of Indian lands.

This legislation is vitally needed if Indian tribes are to protect or

develop their natural resources. The land is our land, and in the interest of the United States to act as trustee for our benefit.

These are not public lands of the United States, held by the United

States for the benefit of the public in general but are our lands held

for our benefit. Therefore, for all purposes, these are our private lands

subject to a trust.

The United States acting as trustee spends Federal moneys to help

us protect and develop our lands and resources. Some of these moneys

are spent on reports which identify and quantify our valuable water

rights, timber, mineral, and other resources. Much of this information

is extremely valuable to us. It helps us to make the choice of developing

our resources and valuing what kind of development we should make.

If this information is made available to third parties without our

consent by reason of the Freedom of Information Act, the Federal

Government will have violated its trust to us.

Also, in many cases any negotiation involving our resources will

have an advantage of having advanced notice. Mr. Chairman, my

letter to Senator Domenici sets forth our position in more of an indepth detail. And at this time I would like to also introduce for the

record a copy of a letter to Mr. Domenici.

Senator ABOUREZK. That will be admitted. Thank you.

Mr. MARTINEZ. Thank you.

[The prepared statement of Mr. Martinez and accompanying letter

follows:]

STATEMENT OF HON. JAMES R. MARTINEZ, GOVERNOR, SAN ILDEFONSO PUEBLO

Thank you for allowing me to testify in favor of S. 2652 which would amend

the Freedom of Information Act to exempt from disclosure information in the

hands of Federal agencies pertaining to natural resources of Indian lands.

This legislation is vitally needed if Indian tribes are to protect or develop

their natural resources. The title to Indian land generally falls into two categories. These are:

1. Land where the U.S.A. holds title as trustee for the tribe.

2. Land owned by the tribe but which cannot be sold because sale is prohibited by Federal law.

In both instances, the land is our land and the interest of the United States

is to act as trustee for our benefit. San Ildefonso has land in both categories.

The Pueblo has title to the San Ildefonso grant. We also have land held by the

U.S.A. in trust. Both categories of land are subject to the Federal laws pertaining to Indian lands. These are not public lands of the United States held by

the United States for benefit of the public generally, but are our lands held for

our benefit. Therefore, for all purposes, these are our private lauds subject to

a trust.

The United States, acting as trustee, spends Federal monies to help us protect

and develop our lands and resources. Some of these monies are spent on reports

which identify, qualify, or value water rights, minerals, timber and other

resources. Much of this information is extremely valuable to us. It helps us to

make the choice of developing our resources and valuing what kind of development we should make. If this information is made available to third parties,

without our consent, by reason of the Freedom of Information Act, the Federal

Government will have violated its trust to us. Also, in many cases, the other

side to any negotiation involving our resources will have an advantage in having

advance knowledge of this information.

My letter to Senator Domenici sets forth our position in detail.
34

SANTA FE, N. MEX., May 12, 1976.

Hon. PETE V. DOMENICI,

V.8. Senator,

Dirknen Building,

Washington, D.C.

DEAB SENATOR DOMENICI : On behalf of the Pueblo of San Ildefonso, I wish

to express the support of the Pueblo for the enactment of S. 2652 into law. We

are pleased that you took the lead to introduce legislation which will, if enacted,

protect privileged information regarding Indian lands from being disclosed to

third parties without our consent.

At the present time, the Freedom of Information Act (5 U.S.C., Sec. 552)

contains no provision which specifically excludes information in the hands of

Federal agencies, relating to Indian lands, from being disclosed. S. 2652, if

enacted into law, would close this gap in the law.

The present disclosure provisions in Sec. 552(b) can cause serious problems

to Indian Tribes in defending the integrity of Indian natural resources or

being able to develop these resources in an orderly and profitable manner.

Let me give you an example of the problem: A tribe decides to lease a mineral

resource such as coal, oil or uranium. This leasing decision is based upon a

technical study of the availability of such resource on tribal lands, performed

by a consultant firm under contract with the Bureau of Indian Affairs to

perform the study. The lands involved in any such study are not public lands

of the United States, but lands held in trust by the United States for the Tribe

(or, in some instances, lands owned by the Tribes subject to restraints on

alienation imposed by Federal law). Monies derived from the development of

natural resources on, in or under these lands belong to the Tribe. In essence,

then, this study is made for the benefit of, and relates to private lands of the

Indians under the Trusteeship of the United States. Money for the study is

provided by the BIA in its trust capacity.

After the study is completed and the development decision is made, the negotiations for leasing commence and the prospective lessee or lessees make demand

of the BIA for release of the study to them. The findings in this study might be

of great value to the potential lessees in determining which areas to lease and

which areas not to lease and what lease terms are favorable to the lessee. Under

5 U.S.C., Sec. 552 as it now stands, the BIA official with a copy of the study

would have to release it to the potential lessees without any consent from the

Tribe for its release. Such a study, if funded by the Tribe from non-Federal

sources or, if funded by any private landowner for himself would clearly be

confidential information available to third parties only upon consent of the

landowner. Therefore, the Freedom of Information Act, as applied to this situation, violates the confidentiality of the Information.

It is the duty of the BIA, acting as trustee, to work with the Tribes in obtaining the most favorable lease terms in the circumstances. The release of confidential Information can seriously impair this responsibility and weaken the bargaining position of the Tribe.

Another situation facing the Tribes is the effect of the Act upon litigation in

which a Tribe may be involved. This is of particular importance in water rights

adjudications and other litigation involving natural resources. Here again, much

technical data, and the interpretation thereof, is necessary to properly prepare

the case for the Indians. Obtaining this data and its interpretation is expensive.

It must be Federally-funded. Before the results are ready for submittal to the

Court as evidence, the data and interpretation must be worked and reworked

over and over again; a number of preliminary drafts can be done from which the

final work product is produced. The work is done in conjunction with Tribal and

Federal attorneys and usually at their request and under their direction.

Under the rules of discovery as announced in the Federal Rules of Civil Procedure and the accepted rule that an attorneys work product is not subject to

discovery by the opposing side to litigation, the data and preliminary work referred to above is not subject to discovery. Yet, if the Freedom of Information

Act is to be invoked successfully in such situations, the opposition will be able

to obtain the same, even though not discoverable under the rules applicable to

civil sections.

In summary, Indian Tribes cannot properly protect their natural resources and

the Federal government, cannot perform its trust responsibility to the Tribes

unless Section 522(b) is amended by the enactment of S. 2652 into law.

! //h
35

Would you please have this letter made a part of the record at the Senate

Committee hearings on S. 2652, scheduled for May 17,1976.

Respectfully,

JAMES R. MARTINEZ, Governor.

STATEMENT OF WENDELL CHINO, PRESIDENT OF THE MESCALERO

APACHE TRIBE AND THE NATIONAL TRIBAL CHAIRMEN'S

ASSOCIATION

Mr. CHIXO. Mr. Chairman, as president of MTCA I would like to

submit a statement regarding the proposed legislation, and to be more

specific, I would like to read a statement as president of the Mescalero

Apache Tribe.

I want to thank this committee for the opportunity to testify on

Senate bill S. 2652 in behalf of the Mescalero Apache Tribe.

The Indian tribes have a unique relationship with the Government

of the United States. On the one hand, Indian tribes retain substantial

independence and sovereignty as semi-independent nations.

On the other hand, Indian land is held in trust by the United States

and the United States has a trust obligation to Indian tribes. In carrying out the Government's trust obligations toward these tribes, certain

governmental agencies of the United States with and for the tribes

collect certain information and technical data which may be relevant

to the development and preservation of Indian resources. This information is compiled on behalf of the tribe, and can truly be said to be.

information belonging to the tribe. It is held in trust by the U.S. Government. This private information of an Indian tribe is not for public

disclosure.

Since passage of the Freedom of Information Act, a serious question

has arisen. The question is whether the terms of the act, requiring

virtually complete disclosure of every nonexempt item of information

held by the Federal Government, requires disclosure of information

held in trust for Indian tribes ?

The act contains certain limited exemptions from the disclosure

requirement, but there is no exemption provided for information concerning Indian tribes and their resources. As a result, perennial enemies

of tribal interests, such as the States, have attempted to use the Freedom of Information Act to obtain information concerning tribal resources which they could not otherwise obtain.

As an example of what we are talking about, experts are often

retained by Indian tribes to compile data for water resources inventory on Indian reservations. Under the Federal rules of civil procedure, if there is no present action pending to which such information

is relevant, the State cannot obtain such information at all.

Once a lawsuit is filed a party has a right to retain experts of their

choice to compile information for use in the litigation. Only under

very rare circumstances can the opposing party obtain the facts and

information from the adverse expert except immediately prior to trial.

The reason for this is that one party pays the expert to conduct

costly studies and the other party should not be permitted to attempt

to capitalize on this investment at no cost to him. Under the Freedom

of Information Act, however, the State has made application for,

and actually received, documents from Government departments•
36

for example: USGS•prepared at the request of Indian tribes with

Indian funds•BIA. On some occasions, this information has been

received by the States prior to being made available to the tribe's own

attorneys.

A present pending case in which a State is attempting to obtain

information concerning tribal water resources is State of New Mexico

v. Thomas S. Kleppe, Secretary of the Interior. The State is seeking

to obtain copies of Geological Survey hydrographic data, studies or

reports collected or completed by the Geological Survey since 1970

on lands within the Pueblo of Nambe, Pojoaque, San Ildefonso, Tesuque and Taos, and the Jicarilla Apache, Mesealero Apache, and Navajo Reservations within the State of New Mexico.

If this request is granted, and it appears that it will, information

compiled for the individual case of virtually every Indian tribe in New

Mexico will become public information.

Nor is it only the States that we must fear. As Indian tribes move

more and more into the mainstream of American economic life, they

will deal more with private corporations.

In passing, may I state that corporations do not disclose their corporation information, for reasons of sound economic and competitive

purposes.

The Indian tribes cannot ask the corporations to reveal all relevant

information pertaining to an economic project, but the corporation can

procure information concerning the Indian tribe under the Freedom

of Information Act.

An example would be if the tribe attempts to negotiate the best price

possible for the sale of its timber resources; a private corporation

could obtain the appraisal done by the BIA experts on behalf of the

tribe. This would put the tribe at a serious competitive disadvantage.

In summary, as the Freedom of Information Act now reads, it poses

a grave threat to privacy of every Indian tribe in the country. In

effect, confidential information for the use of the tribe only, is easily

available to the general public. For this reason, every Indian tribe in

America would support Senator Domenici's bill, S. 2652, amending

the Freedom of Information Act to create an exemption for information held by the United States in connection with trust responsibilities toward Indian tribes. Only in this way can we protect our reservations and our people from abuse under the present law which is grossly unjust as it applies to Indian people.

We respectfully request that this committee support the proposed

amendment under S. 2652. Thank you very much.

Senator ABOTTREZK. Thank you. I wonder if any member of this

panel of witnesses might have concrete examples you would be able

to provide the committee of how disclosure under the Freedom of

Information Act has injured the interest of any of the tribes?

If you don't have that with you, perhaps you could submit the

information for the record. It would be helpful in moving this legislation through the committee and onto the floor of the Senate.

Mr. LOVATO. Mr. Chairman, there are a number of pueblos, as you

know, that are located on the outskirts of a city such as Albuquerque.

These tribes are looking into the possibility of commercial and industrial development. They are looking into development of their

A in,' NTo
37

land for other purposes, from housing to establishing their own business enterprises and developing their other resources.

There is a movement right now in the State of New Mexico, on

the part of the State, on the part of many a private interest group

who are looking at ways and means, or are trying to find out how the

tribes are intending to use their land base, for one.

There are other smaller communities who are at the present time

involved in complicated tax discussions with individual tribal members involving the development of their resources.

Obviously, these people are looking toward the Federal Government•in this case, the Bureau of Indian Affairs•to obtain much of

this information. The Council, the All-Indian Pueblo Council, is presently involved with working with many of the tribes in developing

taxing ordinances, developing other means by which we hope to protect this type of information from private individuals, and in many

cases, State agencies which are looking to gain a foothold in our reservations.

I think more specific examples can be made available in working

with the BIA.

Senator ABOUREZK. That is what we would like to have at this point.

I can understand the potential threat and the interest of tribes in the

disclosure of natural resource information, and it would also, as I said,

be very helpful to have past examples that we would be able to point

to.

I want to thank all of you for appearing here this morning. We

appreciate your testimony.

[The statement of the National Tribal Chairmen's Association submitted by Mr. Chino follows:]

STATEMENT OP WENDELL CHINO, PRESIDENT, NATIONAL TRIBAL CHAIRMEN'S

ASSOCIATION

Mr. Chairman and Members of the Subcommittee, I am Wendell Chino, President of the National Tribal Chairmen's Association and President of the Mescalero

Apache Tribe of New Mexico. I appear today to express our support for S. 2652•

an amendment to the Freedom of Information Act offered by Senator Pete

Domenici of New Mexico. This amendment would exempt from the public disclosure requirements of that Act "information held by a Federal agency as trustee

regarding the natural resources or other assets of Indian tribes, or bands, or

groups or individual members thereof."

This amendment must be passed and enacted.

We certainly have no quarrel with the basic thrust of the Freedom of Information Act. We realize the necessity of ensuring broader access by the general public

to government documents and records. But Congress has recognized that a rule of

blanket disclosure would be destructive of vital public and private interests. Thus,

the Act requires that government documents be made available upon request

unless they fall within one of nine exceptions, each designed to foster specific

interests regarded as superior to the need for disclosure.

This amendment would create a tenth exception absolutely necessary to the

continued protection of the confidentiality of Indian natural resource data, and,

in our view, to the good faith performance of the federal government's trust

responsibility to Indian tribes.

Time and again Congress, the federal courts, and the Executive branch have

recognized the existence of the unique trust relationship between the United

States and Indian tribes. For our part, we are committed to the fulfillment of the

principles embodied in that concept. There is a great potential in this relationship for the realization of Indian aspirations and the development of the wellbeing of Indian people, if there is cooperation between us, pursued in the spirit

of self-determination. But cooperation, self-determination, self-realization are not
38

possible without free and open communication, debate, exchange of information

concerning the tribes and their resources. The free availability to the public of

such communication under present interpretations of the Freedom of Information

Act imposes an increasingly intolerable burden on such communication.

Government policy clearly should recognize the desirability of and need for

facilitating open exchange of information between the federal trustee and its

beneficiaries. Frankly, we do not see how the trust responsibility can be performed in any other way.

Over a year ago, the National Tribal Chairmen's Association together with the

National Congress of American Indians held a joint National Conference on

Indian Water Rights. That conference passed unanimously a resolution calling

for the passage of the legislation before the subcommittee today. I believe the

Subcommittee has a transcript of that Conference and I recommend that the

transcript of the proceedings of April 4, 1975 (morning session) be made a part

of this record. No purpose would be served in reviewing the extensive discussion

we had that morning detailing the reasons the Indian Community needs this

amendment. But I do wish to make a few observations:

1. Over the years, the Bureau of Indian Affairs, the United States Geological

Survey and other agencies and Departments of the Federal Government have obtained much information and data concerning the natural resources•oil, gas,

water, timber, coal, and other valuable minerals•of Indian tribes, data of critical

economic importance to the tribes.

2. The information has been supplied to those agencies only in their capacity as

trustee for the property rights of the Indians, not for distribution to the public at

will.

3. Under the provisions of the Freedom of Information Act, however, as interpreted by the Federal Government, this information has, from time to time, been

handed over to persons who might or might not have Indian interests at heart

merely upon their asking for it. This information Includes important inventories

of the natural resources and mineral deposits on Indian lands. We do not believe

that the government, acting in the best interest of the Indian people, should release such information without the consent of the Indian tribes or persons affected. These resources belong to us.

Presently, the Bureau of Indian Affairs does withhold from public dissemination pursuant to a specific exemption in the Act, "geological and geophysical data,

including maps, concerning wells." But this protection does not cover past transactions, inventory data where no wells have been planned or drilled, or past commercial transactions between a tribe and a company.

Indian resource information must not be distributed to the general public.

The exemption we seek and which is embodied in S. 2652 not only is reasonable

but flows logically from at least three of the exemptions already existing as part

of the Act. The most obvious, of course, is the exemption of geophysical information concerning wells mentioned above. More importantly, however, we see absolutely no significant difference between the proposed exemption and the broad

protection given to "trade secrets and commercial or financial information obtained from a person and privileged or confidential." (Exemption 4) Private corporations who must submit business information in order to comply with or be

eligible for federal programs may be extended more protection than are Indian

tribes whose information is of precisely the same nature. This is beyond our understanding. Finally exemption number 5 of the Act, pertaining to inter-agency communication, supports our proposal. Just as Congress has recognized that government cannot function where its deliberations are routinely exposed to public view,

we state again that the same is no less true of the Federal-Indian trust relationship.

The amendment before the Subcommittee will do nothing more than extend to

Indian tribes concepts of protection already a part of the Act. At the same time.

It will aid Indian people immensely in their own development efforts and in their

need to protect their land and natural resources from exploitation for purely

private gain.

Thank you for asking me to present this statement today. It is a matter of

grave concern to all Indian people.

Senator ABOUREZK. Mr. Schifter.
39

STATEMENT OF RICHARD SCHIFTER, COUNSEL FOR THE LAGUNA

PUEBLO

Mr. SCHIFTER. Mr. Chairman, the remarks which I am about to make

would no longer be relevant once the Congress were to pass the bill or

legislation similar to it. I am somewhat concerned though about what

the record would look like between now and when the Congress does

act. And with regard to that, I want to emphasize that it is the position that the Pueblo Laguna has taken and the other Indian tribes

have taken that the law, as it now stands, does not permit the release

of confidential information of the type described here. And that the

Department of Justice and the Department of Interior are wrong in

construing the act that way.

What I would like to do is to get permission to file with the committee a memorandum to that effect, which would be filed with the

Interior Department.

Our position is that the legislation that is here proposed would be

helpful in clarifying this particular point so that further litigation of

that issue won't be necessary.

Senator ABOUREZK. Yes; that will be accepted. Do you have it with

you?

Mr. SCHIFTER. I have it back in the office. I will get it up here.

Senator ABOUREZK. YOU can mail it to us and we will get it in the

record.

Mr. SCHIFTER. Thank you.

Senator ABOUREZK. Thank you.

[Subsequent to the hearing, the following material was submitted

for the record:]

FRIED, FRANK, HARRIS, SHRIVER & KAMPELMAN,

Washington, D.C, May 18,1976.

Hon. JAMES ABOUREZK,

Chairman, Subcommittee on Indian Affairs,

Senate Committee on Interior and Insular Affairs, Washington, D.C.

DEAR SENATOR ABOUREZK : You will recall that when I testified before the

Subcommittee on S. 2652. I asked for permission, which you granted, to furnish

for the record a memorandum which I had filed with the Department of the

Interior on the subject of the applicability of the Freedom of Information Act to

Indian tribes.

A copy of the memorandum, together with my letter of transmittal to Secretary

Kleppe dated December 8, 1975, are enclosed herewith. I do hope that these documents can be made a part of the record.

Sincerely yours,

RICHARD SCHIFTER.

FRIED, FRANK, HARRIS, SHRIVER & KAMPELMAN,

Washington, D.C, December 8, 1975.

Hon. THOMAS S. KLEPPE,

Secretary of the Interior,

U.S. Department of the Interior, Washington, D.C.

DEAR SECRETARY KLEPPE : The Pueblo of Laguna has been informed that certain

information and data contained in geological and mineral resource surveys, now

in possession of the United States Government, might be released upon request,

in accordance with what are thought to be the requirements of the Freedom of

Information Act. The Pueblo of Laguna hereby respectfully requests that all personnel under the jurisdiction of the U.S. Department of the Interior, both in the

Bureau of Indian Affairs and the U.S. Geological Survey, be instructed not to

release.any such Information until the legal questions discussed in this letter have

been resolved and further requests that these questions be referred to the Solici-

• tor's Office for a ruling thereon.
40

The legal questions with which we are here concerned arise under the Freedom

of Information Act, 5 U.S.C. § 552. The issue which the Pueblo of Lagans hereby

submits for consideration by the Solicitor's Office is that a clear distinction must

be made, in interpreting the requirements of the Freedom of Information Act,

between data and documents in possession of the United States as a result of its

overall governmental responsibilities in serving all the people and data and documents of which the United States has possession as a result of its unique role as

trustee of Indian land. There is no doubt that the entire thrust of the Freedom of

Information Act was aimed at exposing to public view the data and documents

collected by the United States Government only in its general governmental role.

There is no indication that Congress intended, in enacting the Freedom of Information Act, to curtail the fiduciary obligations of the United States toward the

Indian beneficiaries of its trust.

Yet that is precisely the question with which we are here dealing. It is because

the United States is trustee of Indian lands that it has information on the resources of these lands that it would not have if the land were owned bv nonIndians. The release of this information to third parties puts the Pueblo at a competitive disadvantage. That, we submit, is not a result intended by the Freedom

of Information Act.

The position we are talking, it should be noted, is that given the long-standing

fiduciary obligation of the United States toward Indians, a specific modification

of that obligation in the Freedom of Information Act would have been necessary

to extend the scope of that Act to Indian tribes. Xo specific exemption was, therefore, needed. As the Congress undoubtedly did not focus on the implications of the

new law for Indian tribes, it should be construed as applying only to the area

which Congress did have in mind: the Government's general functions, where the

withholding of documents means that the public is not allowed to investigate the

public's business. What Congress did not have in mind was the publicizing of

private information, which the Government was ready to share with the interested private party.

Nevertheless, in view of the broad sweep of the statute, the question can appropriately be posed as to which words should be read so as to exclude Indian

documents from its scope. We point to paragraph (b)(4) of the law, which excludes "trade secrets and commercial or financial information obtained from a

person and privileged or confidential". We submit that information which is obtained by the United States by going on the Pueblo's land in a trustee capacity is

obtained "from a person" and is, necessarily, "privileged". As the information in

issue here is commercial information, it falls within the exception to the statute.

Submitted herewith is further support of the conclusions stated in this letter

is a memorandum of law, for consideration by the Solicitor's Office.

Sincerely yours,

RICHARD SCHIFTER.

INDIAN TRIBES UNDER THE FREEDOM OF INFORMATION ACT

I. THE ROLE OF THE FEDERAL GOVERNMENT IN THE FIELD OF INDIAN AFFAIRS

Of all the powers and responsibilities exercised by the Federal Government,

none are as unique and special as those that relate to the Government's ties to the

Indian tribes. While it can generally be said that all other services performed by

the Federal Government, even those which may be rendered toward specific

groups, such as veterans, farmers, or aged people, are designed ultimately to

serve the welfare of all citizens, that is not true with regard to service rendered

to Indians. Such service may be an end in itself, rendered by the Government in

its role of trustee.

That role of trusteeship, in turn, arose out of a position of unique power and

authority, assumed by the Federal Government in the early years of the Republic

and exercised ever since. In dealing with Indian tribes and Indian property, the

United States has exercised greater powers over what would otherwise be considered the private affairs of individuals or groups than it has with regard to

any other class of citizens. Cohen, in the Handbook of Federal Indian Law,

quoted with approval the following statement of an earlier authority in the field

of Indian law:

"In view of the express grants of the commerce power and the expenditurefor-the-general-welfare power, of the fact that the greater Indian tribes lived on

the national domain and not within any state . . . and of the custom of dealing
41

with Indian tribes by treaty, the United States Supreme Court has never found,

so far as I can learn, that any Congressional regulation of Indians has been

beyond the reach of national power. Indeed, the net result is the creation of a

new power, a power to regulate Indians." At 89.

What the courts have made clear is that associated with this "power to regulate Indians" is a relationship which, in the famous words of Chief Justice

Marshall, "resembles that of a ward to his guardian". Cherokee Nation v. Georgia,

30 U.S. (5 Pet.) 1, 17 (1831). And as Mr. Justice Murphy put it in Seminole

Nation v. United States, 316 U.S. 286 (1941) :

"This court has recognized the distinctive obligation of trust incumbent upon

the Government in its dealings with those dependent and sometimes exploited

people . . . under a humane and self-imposed policy which has found expression in many acts of Congress and numerous decisions of this court, it has

charged itself with moral obligations of the highest responsibility and trust. Its

conduct, as disclosed in the acts of those who represent it in dealings with the

Indians should therefore be judged by the most exacting fiduciary standards."

At 296-297.

In discharging its responsibilities toward Indian tribes, the United States Government has indeed been held to "most exacting fiduciary standards". As was

noted by the Court of Claims in Menominee Tribe of Indians v. United States,

101 Ct. Cl. 22, 40 (1944), "the Government owes to the Indians the duties of a

trustee, in the care and protection of their property". See also Menominee Tribe

of Indians v. United States, 101 Ct. Cl. 10, 19-20 (1944). And in Oncida Tribe of

Indians of Wisconsin v. United States, 165 Ct. Cl. 487 (1964), the court, while

holding that the Tribe could not recover on the claims it was making, said,

nevertheless:

"We think that in this suit under the Indian Claims Commission Act we must

hold that the United States had an obligation to the Oneidas greater than that

of a non-participating bystander, or of a sovereign toward its ordinary citizens,

or of a landowner toward its tenant. The relationship was special and from it

there stemmed a special responsibility." (Emphasis supplied.) At 493.

The legal principle laid down by the Court of Claims in the Menominee and

Oneida cases was restated by the United States Supreme Court in United States v.

Mason, 412 U.S. 391 (1973) :

"There is no doubt that the United States serves in a fiduciary capacity with

respect to . . . Indians and that, as such, it is duty board to exercise great care

in administering its trust." At 27.

There may even be occasions where the Government's responsibility to the

general public might conflict, with its trust responsibilities toward Indians and

where such a conflict occurs it might have to be resolved in favor of the Indians.

The Court of Claims so held in Navajo Tribe of Indians v. United States, 176 Ct.

Cl. 502 (1966) :

"Although the action of the Bureau [of Mines] personnel may have been in

the national interest, they were not consistent with the Government's duty to

the Navajos." At 509.

It is against this background, a background of more than a century and a half

of a trusteeship relationship between the United States Government and Indian

tribes, that Congress enacted the legislation which came to be known as the

Freedom of Information Act. To be sure, the legislative history of the various

Congressional enactments which now constitute the Freedom of Information Act

does not reveal any explicit references to the Government's role as trustee of

Indian property. Yet, the absence of any such reference most certainly suggests

that Congress had no intention to modify the existing trust relationship by

ynplication.

II. THE THRUST OF THE FREEDOM OF INFORMATION ACT

In its role of trustee of the assets and particularly the land of Indian tribes,

the United States Government comes into possession of information as to the

value and extent of these assets, which it, of course, shares with the specific beneficiaries of the trust. That this is not the kind of information which Congress

sought to expose to public view by enacting the Freedom of Information Act

becomes abundantly clear from an examination of the legislative history of the

various enactments which are now codified as 5 U.S.C. § 552.

When the Senate, in 1964, first passed the bill which two years later became

the new law, it was Senator Dirksen who explained its purpose in detail on the

floor of the Senate:
42

"This legislation which we have before us now is of the greatest importance

because fair and just administrative proceedings require, first of all, that the

people know not only what the statutory law is, but what the administrative rules

and regulations are, where to go, who to see, what is required and how they must

present their matter. They must be informed in advance about the decisions

which the administrative agencies and departments may use as precedent in

determining their matter and whether these decisions were unanimous or divided.

And, they should have the same right to the inspection of the information which

the government may use against them as they would have to inspect the information which some private party might use against them. In addition, section 3 of

the Administrative Procedure Act has a broader purpose. It provides the means

by which the people of this country can become informed and thus be able to

scrutinize the activities and operation of their Government." 110 Cong. Rec.

17088 (1964)

The theme which Senator Dirksen sounded and which appears throughout the

legislative history is that when it comes to the general release of Government

documents, the Congressional purpose is to make it possible for "the people of

this country [to] become informed and thus be able to scrutinize the activities

and operation of their Government."

Two years later, when the House took up the bill, the Committee report stressed

the fact that the new law's purpose was to overcome the notion of a good many

Federal officials that "agency and department heads enjoyed a sort of personal

ownership of news about their units". H.R. Rep. No. 1497, 89th Cong., 2d Sess.

(1986). While anxious to prevent Federal officials from withholding Governmental information from public view, the Congress recognized that it would be

unwise to establish an absolute rule :

"It is vital to our way of life to reach a workable balance between the right of

the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy. The

right of the individual to be able to find out how his Government is operating can

be just as important to him as his right to privacy and his right to confide in his

Government. This bill strikes a balance considering all these interests." Ibid.

The thrust of the law, as so clearly stated in the foregoing passage, was to make

it possible for the average citizen "to find out how his Government is operating".

What Congress wanted to end was the practice of Government officials clutching

to their breast informational material dealing with the public's business. There is

no suggestion here that Congress also wanted to allow private third parties an

opportunity to intrude into the trustee-beneficiary relationship between the Government and Indian tribes by forcing the former to make available information

concerning the latter and collected for the benefit of the latter.

Congressman Moss, floor manager of the bill, repeated the principle laid down

in the House Report in his opening statement on the floor of the House:

". . . [0]ur system of government is based on the participation of the governed, and as our population grows in numbers it is essential that it also grow

in knowledge and understanding. We must remove any barrier to information

about•and understanding of•Government activities consistent with our security if the American public is to be adequately equipped to fulfill the ever more

demanding role of responsible citizenship.

"S. 1160 is a bill which will accomplish that objective. . . ." 112 Cong. Rec.

13641 (1966).

The underlying purpose of the Act to place Governmental activities in a fishbowl, so that the public would understand these activities better and would be

better able to decide public questions has also been emphasized by the court. As

Chief Judge Bazelon noted in Soucie v. David, 448 F. 2d 1067 (D.C. Cir. 1971) :

"Congress passed the Freedom of Information Act in response to a persistent

problem of legislators and citizens, the problem of obtaining adequate information

to evaluate Federal programs and formulate wise policies. Congress recognized

that the public cannot make intelligent decisions without such information, and

that Governmental institutions become unresponsive to public needs if knowledge of their activities is denied to the people and their representatives." At 1080.

HI. EXCEPTION 4 OF THE FBKEDOM OF INFORMATION ACT

As has been shown, the underlying purpose of the Freedom of Information Act

was to expose the public's business to public view. There is no indication that

Congress intended also to expose to public view the private affairs of Indian
43

tribes simply because the United States acts as trustee for Indian property. Yet,

given the broad sweep of the statutory language, what words can be identified as

exempting the trusteeship records from the requirements of the law?

It is respectfully submitted that the critical words, under which Indian trusteeship records must be held exempt, are contained in paragraph (b) (4) of Section

552, which provides that the Freedom of Information Act does not apply to

"trade secrets and commercial or financial information obtained from a person

and privileged or confidential". The relevant legislative history makes clear the

nature of the material which Congress sought to exempt from public scrutiny

through paragraph (b)(4) :

"Trade secrets and commercial or financial information obtained from any

person and privileged or confidential: This exemption would assure the confidentiality of information obtained by the Government through questionnaires or

through material submitted and disclosures made in procedures such as the

mediation of labor-management controversies. It exempts such material if it

would not customarily he made public by the person from whom it teas obtained

by the Government. The exemption would include business sales statistics, inventories, negotiation positions or requirements in the case of labor-management

mediations. It would include information customarily subject to the doctorpatient, lawyer-client, or lender-borrower privileges such as technical or financial

data submitted by an applicant to a Government lending or loan guarantee

agency. It would also include information which is given to an agency in confidence, since a citizen must be able to confide in his Government. Moreover,

where the Government has obligated itself in good faith not to disclose documents

or information which it receives, it should be able to honor such obligations'"

(Emphasis supplied.) H.R. Rep. No. 89-1497, 89th Cong., 2d Sess. (1966).

Shortly after the enactment of the revised Section 552 of Title 5, the Department of Justice published a guide on the administration of that section by the

executive departments and agencies. That document, entitled "Attorney General's

Memorandum on the Public Information Section of the Administrative Procedure

Act", contains the following significant passage interpreting what was originally

paragraph (e)(4) (now paragraph (b)(4)) :

"In view of the statements in both committee reports that the exemption covers

material which would customarily not be released to the public by the person from

whom the Government obtained it, there may be instances when agencies will

find it appropriate to consult with the person who provided the information before

deciding whether the exemption applies.

"One change was made in exemption (4) by the Senate committee in the 89th

Congress: the phrase 'information obtained from the public' was amended by

substituting the words 'any person' for 'the public'. It seems clear that applicability of this exemption should not depend upon whether the agency obtains

the information from the public at large, from a particular person, or from

within the agency. The Treasury Department, for instance, must be able to withhold the secret formulae developed by its personnel for inks and paper used in

making currency.

"An important consideration should be noted as to formulae, designs, drawings,

research data, etc., which, although set forth on pieces of paper, are significant

not as records but as items of valuable property. These may have been developed

by or for the Government at great expense. There is no indication anywhere in

the consideration of this legislation that the Congress intended, by subsection

(c), to give away such property to every citizen or alien who is willing to pay

the price of making a copy. Where similar property in private hands would be

held in confidence, such property in the hands of the United States, should be

covered under exemption (e) (4)." At p. 34.

What should be noted in particular in the context of Indian records, is the

observation that the applicability of the exemption does not depend on whether

"the agency obtains the information from the public at large, from a particular

person, or from within the agency". Thus, information gathered by the Government in its capacity as trustee would qualify for the exemption as much as would

information which the beneficiary of the trust would turn over to the trustee.

The basic standard which has been laid down by the courts in determining the

applicability of Exemption 4 was well stated in Pacific Architects & Eng. Inc. v.

Renegotiation Bd., 505 F.2d 383 (D.C. Cir., 1974) :

"The established tests for determining whether documents are 'confidential'

business statistics within the meaning of Exemption 4 are that the statistics must

be the sort not customarily disclosed to the public and that disclosure of the

. i
44

statistics must not be likely to either impair the Government's ability to obtain

necessary information in the future or cause substantial harm to the competitive

position of the person from whom the information is obtained." (Emphasis

supplied.) At 384.

In applying the foregoing principle, the courts have enjoined an agency from

releasing details on a company's product marketing which, in the hands of competitors, would be harmful to the petitioning company, Continental Oil Company

v. FPC, 519 F.2d 31 (5th Cir. 1975), and have also enjoined the release of a

nursing home's financial data, where such release would harm its competitive

position, McCoy v. Weinberger, 386 F.Supp. 504 (W.D., Ky., 1974).

Reliance on these two cases is not Intended to suggest that the relationship

between the Federal Government and an Indian tribe is similar to that between

the Government and a regulated business enterprise. What these cases do suggest, however, is that if the Government should not release documents and information which come into its possession in its role as regulator because such documents or information may in the hands of a competitor be used to the detriment

of the regulated company, it owes an even greater duty of confidentiality where

it obtained the material in its role of trustee and its release could harm the beneficiary of the trust. The Congress made it clear that Exemption 4 applies to material which would "customarily [be] subject to the doctor-patient, lawyer-client,

or lender-borrower privileges". This recitation of relationships indicates an intention to cover the trustee-beneficiary privilege as well.

rv. CONCLUSION

In its capacity of trustee of Indian land, the United States Government assembles a great deal of information on such land, including data on its mineral resources. This is information which the Government would not gather with regard

to privately-owned land. Release of such information to the general public and

particularly to those with whom an Indian tribe might enter into business negotiations places the tribe at a serious competitive disadvantage.

What has been shown in this memorandum is that it was the intent of the

Congress, in enacting the Freedom of Information Act, to prevent Government officials from withholding entirely from public view material which they have collected in conducting the public's business, where such withholding has the result

that information of interest and concern to the general public is treated as the

private property of the Government bureaucracy. But this Congressional intention

to see public documents made available did not extend to documents collected by

the Government as trustee for Indian beneficiaries, which are shared with and

available to the Indians and are withheld not for reasons of Government secrecy

but to protect the economic interests of the Indians. Any other construction of the

statute would constitute a breach of the Government's fiduciary obligations.

Accordingly, it is submitted that information and documents gathered by the

Government in its role of trustee of the economic resources and economic transactions of Indian tribes should be held covered by Exemption 4 and should not

be released without the consent of the affected tribe.

Senator ABOTJTCEZK. The next panel of witnesses are Mel Tonasket,

president of the National Congress of American Indians: Zelma McCloud, chairwoman. Nisqually Tribal Council; and Shirley Palmer,

secretary, Colville Tribal Council.

If you are ready, Mel, go ahead.

Mr. TONASKET. I guess we are not completely ready. There is still

some documentation that we would like to put together to be inserted

in the record.

Senator ABOTTREZK. The record will be held open for 30 days for any

submission that anybody wantsto make.

Mr. TONASKET. Fine. What I would like to do, Senator, is to introduce the two other members of this delegation, have them make their

statements first and then I will kind of recap.

<ia /n, •

v

vr_ c? « ^a^lsa-
45

So first I would like to introduce to you Ms. Zelma McCloud who

is the chairperson of the Nisqually Tribe in the State of Washington.

STATEMENT OF ZELMA McCLOUD, CHAIRWOMAN, NISQUALLY

TRIBAL COUNCIL

Ms. MCCLOUD. Mr. Chairman, honorable members of the subcommittee, ladies and gentlemen, it is a pleasure for me to be with you

today.

My name is Zelma McCloud. I am chairperson of the Nisqually

Indian community located in western Washington State. I have held

this position for the past 5 years. I have come to Washington, D.C., at

the suggestion of the president of the National Congress of American

Indians because the Nisqually Tribe, like many tribes, has been victimized by Federal agencies through the Freedom of Information Act.

The subcommittee is considering amendments to this act because

the act has injured the interests of Indian people and does not fit the

needs of Indian tribes. For example, disclosure by Federal agencies

of the natural resource inventories of reservations has made some

tribes easy targets for exploitation by unscrupulous businessmen.

The Nisqually Tribe supports the concept of amending the act. I

want to suggest to the subcommittee that the mineral resources of an

Indian reservation are not the only resources which deserve protection

from exploitation by people outside the tribe. The privacy of their

ancestry and personal affairs must be protected also.

The major concern of the Nisqually Tribe today is the reckless

release of information about Indian people. These documents are not

the ordinary records of Federal agencies. Instead the information is

taken from Indian tribes because of the unique trust relationship existing between the United States and Indian tribes. There are no people

whose lives are more closely regulated, examined, and studied by the

Federal Government than Indian people.

The records which the Department of Interior and other agencies

are distributing about us are not Federal records, they are the records

of Indian tribal governments. They affect only Indian people. The

records are in Federal hands only because the United States has chosen

to place Indian people in the special position of Federal wards. It is

inconsistent that our records are released purely because of the trust

relationship between my tribe and the Federal Government.

I do not believe that the drafters of the Freedom of Information Act

were thinking about the unique position of Indian people vis-a-vis

the United States when they wrote the act. The drafters were careful

to protect individuals from "clearly unwarranted invasions of personal privacy" in agency opinions, staff manuals, law enforcement

investigative records, personnel, medical and similar files.

Yet the drafters forgot about the huge amounts of private information held by agencies in trust for Indian people and tribal governments. That omission must be corrected.

I want to show you a contrast in the willingness of an agency to

release records which are its own, and the willingness of an agency to

release records which belong to Indian tribes and are simply in the

custody of anugency.

75-358 O - 76 - 4
46

In November 1975 the Nisqually Tribe learned that the U.S. Army

at Fort Lewis intended to forcibly take the Nisqually Reservation and

evict tribal members from their ancestral lands. We learned, at about

the same time, that the U.S. Army intended to hold artillery firing

exercises which could effectively wipe out the chum salmon run in the

river on our reservation.

The Nisqually Indian Tribe attempted to get information about both

of these plans from the U.S. Army, by using the Freedom of Information Act. The Freedom of Information Act after all, was designed to

help citizens to learn about the workings of Government agencies which

affect them, and to the tribe, no activities of an agency could affect

them more than artillery fire which could wipe out their livelihood

and their homes.

The U.S. Army requested one extension after another to get around

the strict time limits in the act for agency responses to requests. When

we finally got responses, they were denials of all our requests for information.

The Army simply claimed that all of the materials were "intraagency memorandums or letters" and that therefore they did not have

to release them under the Freedom of Information Act. The Army

would not even agree to examine the records to delete any sensitive

national security information, if there is any, and release the rest to

us; they simply refused to give us anything.

Finally, after the tribe had obtained the personal intervention of

Senator Henry M. Jackson, the Army released a few of the documents

requested. In the letter from the Acting Secretary of the Army to Senator Jackson the Army clearly stated that the tribe's request had been

rejected, but then went on to say "but as a result of your interest, the

Army has reviewed the denied information and has decided to release

some of the requested documents."

The documents released constitute only a very small portion of the

material requested, so the tribe is still left wondering whether or not

the Fort Lewis military base will evict the tribe from its ancestral

homes. Can the Army, under cover of the Freedom of Information Act,

conspire and attempt to abrogate the treaty which was signed in good

faith between the Nisqually Indian Nation and the United States? We

still do not know.

I want you to contrast that chain of events to another one. I want you

to know how easy it is for anybody to get copies of information belonging to Indian people which are held by Federal agencies. When the

request is for our records, the Federal agency doesn't worry about disclosures which could embarrass them; the releases hurt only us.

As you know, a large quantity of highly personal and sensitive information is sent from tribal governments to the Bureau of Indian Affairs or is gathered by the Bureau from tribal members. In Portland,

Oreg., the Office of the Regional Solicitor, Department of Interior at

the Bureau of Indian Affairs Area Office, has recently adopted an informal policy of releasing large amounts of this personal information

to whoever might request. They do so under the Freedom of Information Act.

The latest incident occurred on about March 9,1976, when an attorney representing the State of Washington against the Nisqually Indian Tribe in a lawsuit telephoned the Bureau of Indian Affairs Area
47

Tribal Operations Officer to ask for complete records on enrollment

procedures and members of the Nisqually Tribe. One telephone call is

all it took! The Assistant Regional Solicitor for the Department of

Interior, without notifying the Nisqually Indian Tribe or its members,

or seeking the tribe's consent, or even tribal input, a.nd apparently

without even considering the invasion of personal privacy which he

was undertaking, sent to the attorney all of the information he requested. The caller requesting the information did not even send an

unconditional commitment to pay fees for the search and duplication

of these materials. As you might imagine, when the Nisqually Tribe

tries to get information from the Department of the Army all such

strict formalities must be observed.

Applications for membership in the Nisqually Indian Tribe require

very complete details about Indians' lives. They delve into addresses,

background, legitimacy, and family history back through three generations. The information released named every individual in the Nisqually Indian Tribe and every individual who has applied for

membership in the tribe within the last 3 years. The disclosure also

gave out vital statistics about each person and also revealed confidential tribal governmental actions on each person's application for

membership.

The Solicitor's Office in the Department of Interior maintains that

no permission need be sought from Indian tribal members before release of such information. The Bureau of Indian Affairs states that

its policy is to make Indian records available to the public to the

greatest extent possible. This must be stopped.

I think it is appalling that under the Freedom of Information Act

Federal agencies can be extremely generous in releasing information

about the personal lives and ancestry of Indian people, but are very

stubborn and as legalistic as possible when Indian tribes request information about actions which can literally destroy the tribe.

I would suggest to this committee that the purposes of the Freedom

of Information Act, of allowing individual citizens to find out what

the Government is doing to them, and at the same time protecting individuals from invasions of privacy by Government release of documents

about their personal histories, can be best served by adding an additional exception to information which is releasable under the Freedom

of Information Act.

Congress cannot allow this violation of the Federal trust responsibility by continuing to permit vicious attacks on tribal privacy. These

attacks contradict the congressional policies clearly stated in the 1975

Indian Self-Determination and Education Assistance Act. The present

Freedom of Information Act allows people with special interests to

avoid the procedures for obtaining information under the Federal

Rules of Civil Procedure and engage in a fishing expedition into the

personal lives of Indian people all over the United States.

The amendment which I propose solves this problem. It does not

go to the problems we have had with the Army because we hope that

can be resolved administratively. To 5 U.S.C., section 552(b), a new

subsection, No. (10), should be added, to read as follows:

All records relating to Indian tribes, bands, or persons, held by any agency,

whether prepared by or received from said Indian tribes, band, or persons, or

prepared by or received from said agencies.
48

Thank you.

Mr. TONASKET. The next witness from our delegation is Ms. Shirley

Palmer.

STATEMENT OF SHIRLEY PALMER, SECRETARY, COLVILLE

TRIBAL COUNCIL

Ms. PALMER. Thank you. Senator Abourezk, and members of the

subcommittee, I want to thank you for affording me the opportunity

to speak on behalf of the Colville Tribe.

I am Shirley Palmer, secretary of the business council of the Colville Confederated Tribes of the Colville Indian Reservation in the

State of Washington. I am here to express the support of the Colville

Tribes for the addition to the Freedom of Information Act of an

exemption for information being held by the U.S. Government regarding Indian tribes and their members.

The United States occupies the position of a trustee with respect to

Indian tribes and their members. In the course of carrying out this

trust responsibility, the Government comes into possession of considerable information of a personal or financial nature involving Indian people. No other people in this Nation has this unique trust

relationship with the U.S. Government.

As a result of this relationship, information that would otherwise

remain personal and confidential to the individual Indian or tribe

finds its way into the records of many Government agencies, in particular the Department of the Interior. Ordinarily, the position of the

United States, as trustee for the Indian people, would seem sufficient

to prevent the Federal Government from releasing to the public at

large the information which it has obtained or compiled for the benefit

of its Indian beneficiaries.

But the past few years have shown us that this Government has

been permitted to avoid its trust duties to carry out a principle of

public disclosure which should have no application to these unique

Indian matters. And these violations of trust have resulted in the

release of confidential information in a manner which has harmed the

rights of the individual, as well as the rights of tribal government.

A prime example of the kind of problem that we face in this area has

occurred on the Colville Indian Reservation. A lawyer made a request

to the Bureau of Indian Affairs in Portland to see a copy of our tribal

enrollment. We requested the Bureau of Indian Affairs not to make the

entire tribal roll available to this lawyer because we did not want him

to be able to flip through the pages and see information about the personal and financial matters concerning all of the members of the Colville Tribes. We have always made specific information about an individual or his family, which is contained in the tribal enrollment list,

available to that individual for inspection atthe Tribal Office.

The Bureau of Indian Affairs responded by stating:

"We conclude that the Freedom of Information Act requires disclosure of the census roll as requested by Mr. Coombs. Mr. Coombs is

an attorney in Spokane who is representing individual Indians."

The information which the Bureau of Indian Affairs felt obliged to

give to this lawyer consists of highly personal, confidential, and private

information regarding thousands of enrolled members of tjie tribes and
49

their families, including individual identification numbers and ages,

information regarding parents and legitimacy of birth, information

regarding adoption, racial origin, multiple marriages, common law

marriages, disenrollment from the tribe, degree of Indian blood, divorce and separation, financial information, residence in institutions

such as reform schools and mental institutions, medical information,

manner of death, suicide, desertion by spouse, imprisonment, name

changes, and other personal and private information. However, the

Bureau of Indian Affairs told us that they would have to release this

information under the Freedom of Information Act.

We then had to have our tribal attorneys go to Federal court and get

a temporary injunction to prevent the release of this information, and

we are now in the process of litigating this matter under the Freedom

of Information Act. It is clear to us that unless the Freedom of Information Act is amended to provide for an exemption for the kind of information being held by the U.S. Government as part of its trust duties

toward Indians, we will have to fight each and every case in which the

U.S. Government wants to give our information to someone else under

the Freedom of Information Act.

In addition to the personal and confidential information regarding

family and other such matters, the Bureau of Indian Affairs keeps as

part of its trust responsibility, a great deal of information about the

finances of Indians and Indian tribes. Information regarding timber

sales and dealings in other resources are kept by the Bureau carrying

out its trust function.

Correspondence regarding tribal and individual assets and other

business and financial information is sent to the Bureau by Indians,

presuming that it will remain confidential. We have been subjected

previously to requests by the State of Washington to the Bureau of

Indian Affairs for financial information about tribal businesses for

the purpose of assessment of State taxes during the course of litigation regarding those taxes. It is improper for the Government on one

hand to have assumed this trust relationship with Indian people and at

the same time legislate so as to create a law which clearly violates that

trust relationship.

The time is long over in which the U.S. Government can deal with

Indians in a loose and unresponsive manner. We will not sit idly by

while yet another Federal law seeks to strip us of our dignity and our

rights.

Amending the Freedom of Information Act so as to exempt the

kind of information referred to above would not violate the basic

purposes of that act, since the information held by Federal agencies

regarding Indian tribes and people is not the sort of information which

was intended to be made available to the public under the act.

The language contained in S. 2652 is, in our opinion, too narrow to

protect all of the documents and information held by the United States

in the discharge of its trust obligations to Indians. For instance, documents filed with the Bureau under the requirements of Federal law

relating to the Secretary of the Interior's supervisory role in tribal

government should be covered by the exemption, whether or not land

or specific assets are involved. We therefore urge that the key language

in the amendment should read as follows:
50

"(10) Information held by a Federal agency in performance of a

fiduciary obligation to any Indian tribe, band, group, or individual

member thereof."

We feel that this amendment is necessary to clarify the extent of

the application of the Freedom of Information Act and to protect the

personal, governmental, and financial rights of Indian tribes and their

members.

Thank you for the opportunity of appearing before the subcommittee in support of this amendment.

Senator ABOTTREZK. Thank you. Mel, do you have something you

would like to wrap up with ?

STATEMENT OF MEL TONASKET, PRESIDENT, NATIONAL CONGRESS

OF AMERICAN INDIANS

Mr. TONASKET. Yes. I would like to represent the National Congress

of American Indians and give you sort of an overview of some of the

problems nationally that the Freedom of Information Act has caused

and how it affectssome tribes on the reservation.

And I would like to respond to some of the things that I heard from

the administration this morning.

First of all, I would like to say I am personally glad to be here to

see some of you people again, but it is very frustrating that we have

to come back to Washington to fight time after time bills that have, in

some respect, bad effects upon our Indian nations throughout this

country. And it is very frustrating that when Congress passes legislation such as the Freedom of Information Act that it ignores the special

status of Indian nations and the treaties which are recognized as

supreme laws of the land in that these have drastic effects on rights

and futures of our tribes throughoutthe country.

Senator ABOUKEZK. Mel, you know the old biblical saying is "The

Lord giveth and the Lord taketh away."

Mr. TONASKET. Well, the Lord is going to get them. I would like

to say, also, that the Freedom of Information Act, in the eyes of some

of us, does not quite fit the purpose of the recently passed SelfDetermination Act where contracting is a major part of the act. We

remember what Mr. Seneca said just this morning•that the products

produced under some of these contracts are then given to the Bureau

of Indian Affairs as Federal documents and then in turn given out

to the public if they are requested. So there is a conflict right there

that I think should have been recognized not only by the Department

but by the Indians when they were testifying on that act.

I would like to say, in reviewing some of the statements made this

morning, that when Mr. Frankel said that the Bureau would have the

draft within 1 week and would hope that the Office of Management

and Budget would have it to this committtee within 30 days, I would

like to request that this committee really get a commitment from them

and make them live up to it.

I would like to refer back to when S. 2010 hearings were held on

March 5•the Justice Department and Interior promised their alternate bill within 30 days, and it has been well over 60 days and still

nothing has been produced from OMB. And I don't know how we can

be assured that this 30-day commitment can be honored by the Department of Interior and Bureau of Indian Affairs.
51

I would like to say that the tribes, when they met in April of 1975

here in Washington, D.C., at a conference on Indian water rights,

passed a resolution to amend the Freedom of Information Act, and

there was quite a discussion with Mr. Kent Frizzell at that meeting.

In looking at the minutes [see appendix II, pp. 157-165] Mr. Frizzell made statements that he supported an amendment to the Freedom

of Information Act. And also in that meeting he made specific references to three instances where his office•at that time the Solicitor's

Office•had interacted with the tribes concerning the FOI Act. One

instance was the Northern Cheyenne Tribe, when he went over to the

Department of Justice to argue on their side.

A second was the Aqua Caliente, where again he went over to the

Department of Justice to argue the viewpoint of the Tribe. And the

third instance was on Arizona v. California., concerning the Bureau of

Indian Affairs contract.

More recently we have the Walton water case where the Colville

Tribe is in a battle over evidence which was gathered by the Bureau

of Indian Affairs contract. Also, on the Colville Reservation where

the cigarette tax fight with the State of Washington has been ongoing

for 6 years. The State of Washington has been trying to use the FOI

Act to get copies of our tribal count so that they can prepare for

litigation.

I think throughout the country the tribes are very leery about working with the U.S. Government because of the Freedom of Information

Act. I will give you an example: The USGS has been sending out

letters to tribal councils offering to do surveys•mineral and resource

surveys•on Indian reservations. Our tribe specifically refused that

service because we were afraid that under the Freedom of Information Act the surveys would be made public. And that was at the

time when gas was being rationed during the energy crisis.

Other tribes I have talked to reacted the same way. We are afraid

that if we take advantage of some of these studies and surveys that are

offered to our tribes by the Federal Government, knowing their need

for our resources, energy resources in particular, they will find a way

to try to get those from us, whether by condemnation or whatever.

And it has had a sad effect on the development of our reservations

throughout this country. And with my opportunity to travel with

the American Indian Policy Review Commission I witnessed where

reservations, particularly the poorer reservations, need development

for their survival and they haven't always been able to take opportunities which I think they should have.

There has been expressed support by 110 member tribes of the

National Congress of American Indians by resolution placing the need

for legislation such as S. 2652 on the list of its legislative priorities

for this 94th Congress, and we will supply this committee with copies

of those resolutions and the minutes of the water meeting that was held

in April of 1975. And you will also be getting in the mail letters and

resolutions from tribes supporting S. 2652. [See appendix II.]

Senator ABOUREZK. Could we also get a copy of that USGS letter

and Colville's refusal letter as well ?

Mr. TONASKET. Yes. As soon as we get home, we will get it in the

mail for you.
52

I guess that pretty much is our statement this morning and if there

are any questions that you would like to ask of us, we would be more

than happy to reply.

Senator ABOUREZK. I don't have any questions. I think you have

been very specific in your testimony which is appreciated. It is information that we can use as we move this legislation through.

I want to thank all of you for your testimony and your appearance

here today.

Mr. TONASKET. We would like to thank you, Senator.

Senator ABOUREZK. The next and last witness will be Mr. Gerald

Wilkinson, Executive Director of the National Indian Youth Council.

Apparently Mr. Wilkinson is not here, so the hearing is adjourned.

We would like to thank all the witnesses for their appearances.

[Whereupon, at 11:45 a.m. the hearing was adjourned.]
53

APPENDIXES

APPENDIX I

Letter to Hon. Thomas S. Kleppe, Secretary of the Interior from Senator Abourezk and Additional Material Submitted for the Record

by the Bureau of Indian Affairs

HINWY V. IKXMM, HIA1H..••

'. KA1KELL. COLO. 3l«f» F. MNTICTT. OKL*.

55

"jilCmteb -2>i«<c* £>enale

L COUHHl ANO STAFF MMCCTOM

WASHINGTON. D.C. 20310

July 19, 1976

The Honorable Thomas S. Kleppe

Secretary of the Interior

Washington, D. C. 20240

My dear Mr. Secretary:

As you know, a great deal of debate and concern has

been expressed of recent date concerning confidential information

held by the United States in its capacity as trustee for Indian

tribes and members thereof and the extent to which, if any, the

United States is required by law to release that information to

individuals other than those to whom such information relates.

You will recall that the Subcommittee on Indian Affairs

recently conducted hearings on S. 2652, a bill to amend section 552

of title 5, United States Code, to provide an exemption to the

requirements of that section relating to the availability of information.

Mr. H. Gregory Austin, Solicitor for the Department,

communicated to me under the date of June 29, 1976, as a followup

to those hearings. As indicated in his letter to me, Mr. Austin

stated "The Supreme Court and other courts have, for nearly 150

years, recognized that the Federal Government, and especially the

Department of the Interior, as the agency principally responsible

for Indian affairs, has a trust obligation to Indian tribes...In

another recent case, the court spoke of the 'overriding duty of

our Federal Government to deal fairly with Indians wherever located'...

The Supreme Court has held the Federal Government 'has charged itself

with moral obligations of the highest responsibility and trust' and

its actions are 'judged by the most exacting fiduciary standards'...

It is fundamental that a trustee owes a duty of confidentiality toward

the beneficiary of the trust...."

I have carefully considered the question as to the need for

legislation to make clear the position that in any case in which

information held by the United States regarding any Indian tribe,

including information relating to the natural resources or assets of

such tribe, is requested by any source other than the tribe to which

such information relates, such agency, if the release of such infer-
56

-2-

mation would result in a breach of the trust of confidential

relationship between the United States and such tribe to which

such information relates, is and should be prohibited from

releasing such information so requested.

In connection therewith, I have carefully considered

a number of drafts of proposed legislation the purposes of which

were to make that point clear. I have delayed making a final

judgment with respect to such question in anticipation of receiving

a draft of suggested legislation which I have been informed, on

several occasions, would be forthcoming from the Department. I must

add, however, that I seriously question the need for legislation to

clarify a position which is already a well-established principle of

law. While I fully support the principle of the Freedom of Information

Act, to place a construction on that Act to the effect that Congress

intended to require the United States to release information which it

holds in its capacity as trustee and also in a confidential relationship, and thus breaching that trust and relationship, is unthinkable.

Further, I am concerned that even the introduction of legislation to clarify such matter, if clarification is needed, might tend

to be misconstrued as reflecting some doubt on the part of Congress

as to its intent in enacting the Freedom of Information Act. This

concern is even greater due to the limited amount of time available

to this Congress for the ultimate passage of legislative measures not

yet reported by the appropriate committees of the Congress. The

failure of Congress to enact such legislation, due to the lack of

time or the inability to convince Members, who hold views similar to

mine, namely, that such legislation is not needed, may also be misconstrued by the courts and others.

I strongly request the Department to follow and continue

to follow the policy reflected in the Solicitor's letter to me,

dated June 29, 1976, to the effect that the Department will take a

litigating position that the trust responsibility of the United States

toward Indian people requires the withholding of any such information

except with the consent of the affected Indian tribe.

If at any time you determine that such information cannot,

under law, be withheld, notwithstanding the trust obligations on

the part of the United States, I would appreciate being notified to

that effect in order that I may take appropriate action necessary to

assure that your Department or any other department of the United

States, will not be required to breach your fiduciary relationship

with the Indian tribes.

Thank you for your interest and consideration of this

matter.

Sincerely yours,

James Abourezk, Chairman

Subcommittee on Indian Affairs
57

UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF THE SOLICITOR

WASHINGTON. DC 20240

2 8 1976 JUN

Honorable James Abourezk

Chairman

Subcommittee on Indian Affairs

United States Senate

Washington, D.C. 20S10

Dear Chairman Abourezk:

This is in response to your request for our opinion concerning

the applicability of the Freedom of Information Act, 5 U.S.C.

S 552, and Privacy Act, 5 U.S.C. S 552a, on the availability

to the public of information related to tribal rolls in the

possession of the Bureau of Indian Affairs and enrollment

actions.

There are generally two types of enrollment information which

the Bureau of Indian Affairs possesses. One type concerns

persons enrolled as members in a particular tribe by that

tribe. The Bureau may receive this information as a matter

of courtesy from the tribe or as a matter of a longstanding

practice. The Bureau, however, has no statutory responsibility to maintain current membership lists of tribes and

it does not ordinarily update rolls in its possession. An

exception is where tribal assets are being distributed on

a per capita basis, where the Bureau does have the

responsibility for preparing a roll of distributees.

Furthermore, some tribes have adopted what are referred

to as "census rolls" as base rolls to determine membership

eligibility. Census rolls are rolls prepared by the

Bureau sometime in the past by taking a "census" of tribal

members on a particular reservation.

The other type of enrollment information the Bureau has in

its files is that pertaining to judgment fund distributions

as a result of awards by the Indian Claims Commission.

If the award is to a tribe or tribal group, under the

•Judgment Fund Distribution Act of 1973, 25 U.S.C. $ 1403,

et seg., the plan of distribution may have the tribe
58

-2-

updating its roll and submitting it to the Secretary for

payment of the funds. If the award is to a descendants

group, the Secretary would prepare the roll. In some

instances, he has been directed by statute to do so.

For example, 25 U.S.C. s 1113 directs the Secretary to

prepare a roll of the Miami Indians of Indiana. Information

for these rolls would be provided directly to the Bureau

through the submission of applications by persons seeking

to be enrolled on the judgment fund roll.

Both the Freedom of Information Act and Privacy Act are

applicable to both types of information. Since they are

"agency records" (whether they are obtained indirectly

through a tribe or from the affected individual) the

Freedom of Information Act applies. See 5 U.S.C.

SS 552(a)(3). The Privacy Act also applies because tribal

rolls have been identified by the Department as "a system

of records" containing information about individuals.

5 U.S.C. S 552a(a)(5). However, the Privacy Act provides

that such information cannot be disclosed unless the person

concerned gives their prior written consent, or, inter

alia, disclosure is required by the Freedom of Information

Act, or disclosure is to the National Archives. The

crucial question, then, is whether this type of

information is required to be disclosed upon request

under the Freedom of Information Act.

One exemption to the disclosure requirement in the

Freedom of Information Act which appears applicable

to the information contained on rolls is the sixth,

5 U.S.C. S 552(b)(6), which excepts application of the

disclosure requirements to:

"personnel and medical and similar

files the disclosure of which would

constitute a clearly unwarranted

invasion of personal privacy."
59

-3-

This is obviously a very stringent standard and one

difficult to apply because of the need for assessing

1) whether privacy is involved, 2) whether it will be

invaded by disclosure, and 3) whether that disclosure

will be clearly unwarranted. Courts have held that

mailing addresses of persons are exempt, Wine Hobby

USA, Inc. v. United States Internal Rev. Serv., 502

F.2d 133 (3d Cir. 1974), and have also found exempt:

"information regarding marital

status, legitimacy of children,

identity of fathers of children,

medical condition, welfare

payments, alcoholic consumption,

family fights, reputation and so

on . . . ."

in Rural Housing Alliance v. U.S. Dept. of Agriculture,

498 F.2d 73 (D.6. Cir. 1974). Both types of information

are included on tribal rolls. .

In appropriate circumstances, material submitted to the

Bureau may also be exempt from disclosure under the

fourth exemption, 5 U.S.C. S 552(b)(4), as "commercial

or financial information obtained from a person and

privileged or confidential." I am enclosing an opinion

by Solicitor Helich on September 24, 1971, M-36860.

That opinion concerned a request for disclosure under

5 U.S.C. S 552 of a lease agreement furnished to the

Department by the Seneca Tribe of Indians. In that

opinion, the Solicitor found that disclosure was barred

under 5 U.S.C. S 552(b)(4) because of "the unique

fiduciary" and "confidential relationship" between the

Department of the Interior and the Indians. In this

situation, the lease agreement contained financial and

commercial information which tribal rolls commonly do

not, so we do not believe the fourth exemption is

ordinarily applicable to the situation you posit.
60

-4-

In the Seneca lease opinion, the Solicitor indicated

that•where a statutory exemption to the Freedom of

Information Act is arguably applicable•the federal

trust responsibility to Indians is an additional reason

for denying the request for information. Citing Seminole

Nation v. United States, 316 U.S. 286, 296-97 (19TTT,

Solicitor Helich said:

In the discharge of this fiduciary

obligation it is essential that a

confidential relationship be

established and maintained. It

has been understood that documents

such as these are submitted to the

Department in confidence and we

would be remiss in discharging this

fiduciary obligation if these

documents were released unilaterally

without the concurrence of the tribe,

(pp. 2-3)

While case law does not exist on this precise question, this

Department will adopt as a litigation position the view

expressed by Solicitor Helich. That is, where information is arguably exempt under one of the nine statutory

exemptions, we are willing to assert that the trust

responsibility to Indians is a factor that also justifies

withholding the information. The Supreme Court and other

courts have, for nearly 150 years, recognized that the

Government, and especially the Department of the Interior

as the agency principally responsible for Indian Affairs,

has a trust obligation to Indian tribes. In 1831, Chief

Justice Marshall first interpreted the relationship

between the Indians and the United States as "resembl[ing]

that of a ward to his guardian." Cherokee Nation v.

Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). More recently,

in Morton v. Mancari, 417 U.S. 535 (1974), the Supreme
61

-5-

Court reaffirmed "the solemn commitment of the Government

toward the Indians" and recognized the necessity that

the United States "[fulfill) its trust" responsibility

to the Indians. 417 U.S. at SS2-SS3. In another recent

case, the Court spoke of the "overriding duty of our

Federal Government to deal fairly With Indians wherever

located." Morton y. Ruiz, 415 U.S. 199, 236 (1974). The

Supreme Court has held the Federal government "has charged

itself with moral obligations of the highest responsibility

and trust" and its actions are "judged by the most

exacting fiduciary standards." Seminole Nation v. United

States, supra, 296-97.

It is fundamental that a trustee owes a duty of confidentiality

toward the beneficiary of the trust. See, A. Scott, The Law

of Trusts, S 2.5 (3d ed. 1967); G. Bogert, Trusts and

Trustees, S 11, "(T)he duty of the trustee" concerning

"standards of honesty and good faith" is "extraordinary."

Id., S 17. To maintain a trust relationship a "special

Intimacy" and a "great degree of trust and confidence"

are required. Id., S 481.

I should emphasize that•while the Department of Interior

is prepared to take this litigating position•we are

required by established procedures within the executive

branch to seek the views of the Department of Justice

before denying any request for information under the

Freedom of Information Act. This Department cannot

therefore finally commit the United States to a litigating

position in any particular case.

The question of whether information on rolls is exempt is

now before the United States District Court for the

Eastern District of Washington. Colville Confederated

Tribes v. Kleppe, et al., Civ. No. C-76-91. The Court

has enjoined the Department from complying with a request

.for a copy of the 1937 census roll of the Colville

Reservation which the tribe adopted as its base membership

roll. We agree with the Tribe's contention that most of

75-358 O - 76 - 5
62

-6-

the information on the roll falls within the sixth

exemption. But census rolls, including the one involved,

have been transmitted to the National Archives as part

of the Department's records disposal policy. Thus, such

rolls may have come into the public domain. If the

Colvilles' roll is in the public domain, our taking the

position that the roll is exempt from disclosure may be

an untenable one to assert in this particular case.

While we are willing to assert this litigating position .

under present law, Secretary Kleppe has endorsed

legislation to add a special exemption for Indian-related

information. The Department's report on S. 2652, of Hay 14,

1976 and the testimony of the Deputy Commissioner of

Indian Affairs at the hearing on Hay 17 before the Indian

Affairs Subcommittee outline the particular problems

with which this Department is faced. The position we are

now advocating represents something of a departure from

that presented to the Subcommittee. In the report and

statement, disclosure of information in the instances

cited was said to be required; however, the Department

is now willing to take a contrary position in appropriate

cases as I have stated above. Since the present state

of the law is unclear, it is our view that specific

legislation of this nature should be enacted, and that it

is only by legislation that the uncertain legal situation

can best be clarified.

Sincerely yours

H. Gregory Austin

Solicitor

Enclosure
63

February 22, 1973

M-36C60

NON-AVAILABILITY UNDER PUBLIC INFORMATION ACT OF

CONFIDENTIAL AGREEMENT OF INDIAN TRIBE SUBMITTED

. TO DEPARTMENT FOR APPROVAL

Indians: Administrative Procedure Act: Public Information

The withholding, under 5 U.S.C. § 552(b)(4), of a copy of an

agreement between the Seneca Nation of Indians, the First

Seneca Corporation, the United Stales Pillow Corporation,

and certain individuals, and all drafts of the agreement, is

warranted when the agreement was submitted in confidence to

the Department for approval, the documents contain commercial

or financial information, 1he fiduciary relationship between

the Department and the Indian -tribe was a sound ground for

invoking the exemption under 5 U.S.C. § 552(b)(4), and the

party seeking the information failed to urge any reasons why

the exemption should not be invoked.
64

United States Department of the Interior

OFFICE OF THE SOLICITOR

WASHINGTON, D.C. 20240

September 24, 1971

IN REPUY REFER TO! F

M-36860

Hogan and Hartson

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

Attention: Sherwin J. Markman, Esq.

Joseph M. Hassett, Esq.

Gentlemen:

By letter to the Bureau of Indian Affairs dated

October 26, 1970, you requested a complete copy of a 1965

agreement between the Seneca Nation of Indians, the First

Seneca Corporation, the United States Pillow Corporation

and certain individuals, and all drafts of the agreement

which are contained in the Bureau's files. This request,

submitted pursuant to the Freedom of Information Act,

5 U.S.C. § 552, and Departmental regulations, 43 CFR 2.1

et seer. , was denied by the Bureau on February 11, 1971, for

the following reasons:

First, the documents were actually tribal business

records and not agency records subject to the provisions of

the Freedom of Information Act; second, the documents were

received in confidence from the Seneca Nation and were being

held by the Federal Government as trustee; third, a specific

statutory exemption for the documents was claimed pursuant

to the provisions of 5 U.S.C. § 552(b) (4).

On August 19, 1971, you appealed that decision to

the Solicitor and on September 8, 1971, Mr. Hassett and

counsel for the Seneca Nation, Mr. Lazarus, were afforded

an opportunity to present their respective views orally.

There has been some question whether the requested

documents are "agency records" within the meaning of the Act."

For the purposes of this appeal I shall assume, arguendo,

that they are "agency records."
65

At the outset we note that your original request

sought the "agency agreement." The Bureau of Indian Affairs

is not a party to the agreement, which in fact was prepared

by or on behalf of the tribe and title to which is vested in

the tribe. It should also be noted that the final agreement

is merely submitted to the Secretary for approval because it

involves the expenditure of funds made available to the

Seneca Nation pursuant to Public Law 88-533, 78 Stat. 738.

The agreement is not required to be filed with the Secretary,

although a copy is retained as evidence of Secretarial

approval.

Section 552(b)(4) of Title 5 U.S.C. provides:

"(b) This section does not apply to matters

that are * * * (4) trade secrets and commercial

or financial information obtained from a person

and privileged or confidential * * * ."

The basis of the Bureau's reliance on this

important exemption is, of course, the unique fiduciary

relationship between the Department of the Interior and

Indians. This fiduciary and confidential relationship has

been aptly described by the Supreme Court in Seminole Nation v.

United States. 316 U.S. 286, 296-297 (1942):

"In carrying out its treaty obligations with

the Indian tribes, the Government is something

more than a mere contracting party. Under a

humane and self-imposed policy which has found

expression in many acts of Congress and numerous

decisions of this Court, it has charged itself

with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in

the acts of thos who represent it in dealings

with Indians, should therefore be judged by the

most exacting fiduciary standards."

In the discharge of this fiduciary obligation it

is essential that a confidential relationship be established

and maintained. It has been long understood that documents

such as these are submitted to the Department in confidence
66

and we would be remiss in discharging this fiduciary

obligation if these documents were released unilaterally

without the concurrence of the tribe. As you are aware,

the tribe has not consented to the release and, in fact,

has urged that the Department reject your request. We are

led to the conclusion that the documents requested clearly

are encompassed within the scope of the exemption of

5 U..6.C § 552 (b) (4) .

Departmental regulations require that upon a

determination that the requested records fall within one or

more of the categories exempted under the Public Information

Act, there be a further determination that sound grounds

exist which require the invocation of the exemption, 43 CFR

2.2. While we feel that the fiduciary and confidential

relationship between the Department of the Interior and

Indians is a sufficient ground in and of itself requiring

invocation of the exemption, we also point out that when

Mr. Hassett was afforded an opportunity to state the interest

of your client in the documents he declined to do so, and

even disclaimed any knowledge of the litigation pending in

the state courts of New York between the First Seneca

Corporation and its construction contractor, in which, we

are advised, the contractor unsuccessfully sought to obtain

the documents.

Thus Mr. Hassett declined to urge any grounds on

behalf of your client why the exemption should not be

invoked. Accordingly, the decision of the Bureau of Indian

Affairs of February 11, 1971, is hereby affirmed.

Sincerely yours,

(Sgd.) Mitchell Melich

Solicitor
67

United States Department of the Interior

BUREAU OF INDIAN AFFAIRS

WASHINGTON, D. C. 20245

AUG 18 1976

Honorable Henry Jackson

United States Senate

Washington, D. C. 20510

Dear Senator Jackson: Aue J9 l&g

We regret the delay In ooaplllng the Information which you

requested with regard to S. 2652. With regard to Hew Mexico

T. Klenoe. Civ. 75-684, Dnlted States District Court for

the District of New Mexico, we have enclosed the following

documents:

1. Complaint with Attachments

2. Answer

3. Motion for Summary Judgment with •

supporting Affidavits

4. Correspondence with regard to Discovery

5. Court Order of July 6, 1976

these doouments should provide you with a complete reoord of

this suit. The attachments to the Complaint also reveal the

basin study request whloh was denied and gave rise to the

suit.

lou request an estimate of how muoh money Indian tribes have

lost because of requests for data under the F01A. We could

not even give at this point In time a reasonable estimate

of the extent of losses lnourred by a tribe or tribes

because the-^ramlfloatlona of such requests have not been

fully explore)] by this Bureau or by the tribes. At this

point, we are but assuming financial losses In the event

that this Information Is released.

We hope that the Information provided will shed some light

on this Issue, especially the affidavits.

<?•££•

KtSSfi Dlraetor, Office of

Trust Responsibilities

Save Energy and You Serve America!
68

>%:

SUMMONS IN A CIVIL ACTION

Imten §tatM itatrirt (Umirt

FOR THE

aiHTBICT 33 WW MEXICO •

CI¥,25ndJa4 B

STATE 0? .WKW MSXICO ex rell

Plaintiff

T.

T:iOMA3 3. KLEPPii. Saoretary of

the Interior, United States

Dcpartaent of the Interior,

Defendant

To the above named Defendant e'

You are hereby summoned and required to serve upon

Paul L. Sloom

Peter Thomas White

Special Aasiate.it Attorneys General

plaintiff's attorney , whose address

3tate Engineer Office

Bataan' Hexoraal 313K.

3anta F2, :iM 37503 ' &-VSC iSrSse. s&j(*W)& •ss-^f/tKSj

<3V

an answer to the complaint which is herewith served upon you, within *p5 days after service of this

summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be

taken against you for the relief demanded in the complaint.

'_. _J£3_3E__CA3AU3

CUrk of Court.

*&&£^5&L

Deputy Clerk.

Date: Kovenber 11, 137? [Seal of Court]

NOTE:•This summons is issued pursuant to Rule 4 of the Federal Rules of Civil Procedure.
69

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO ex rel.

S. E. REYNOLDS, State Engineer,

Plaintiff,

v.

THOMAS S. KLEPPE, Secretary of

the Interior, United States

Department of the Interior,

Defendant.

;IV,,5-684

Civil No.

EXZQ IN MY O.-F;.

*0V H1375

For its cause of action against the Defendant, Plaintiff

states:

1. S. E. Reynolds is the duly appointed and qualified

State Engineer of the State of New Mexico and is, in that

capacity, charged by law with the administration and supervision

of the public waters of New Mexico.

2. The Defendant, Thomas S. Kleppe, is the duly appointed

and qualified Secretary of the United States Department of the

Interior; and in that capacity directs and controls the United

States Geological Survey.

3. This cause of action is filed pursuant to the United

States Judicial Code, 28 U.S.C. S 1346(a)(2), and the Freedom

of Information Act, 5 U.S.C. S 552(a)(4)(B).

4. S. E. Reynolds, by his letter of May 2, 1975, requested

from William E. Hale, New Mexico District Chief of the Water

Resources Division, U.S. Geological Survey, copies of U.S.

Geological Survey hydrographic data, studies or reports collected

or completed by the Geological Survey since 1970 on lands within

the Pueblos of Nambe, Pojoaque, .San Ildefonso, Tesuque and

Taos, and the Jicarilla Apache, Mescalero Apache and tiavajo

Reservations, within the State of New Mexico. (A copy of said

letter is attached hereto as Plaintiff's Exhibit 'A').
70

5. In response to this request for agency records,

T. J. Lyons, Acting Assistant Director of the Central Region,

U.S. Geological Survey, by letter dated June 11, 1975, denied

the following agency records: (A copy of said letter is

attached hereto as Plaintiff's Exhibit 'B')-

a. J. L. Kunkler & A. G. Scott, Plan for

Study of Part of the Jicarilla Apache

Indian Reservation, Letter Report, United

States Department of the Interior,

Geological Survey (Albuquerque, New Mexico,

April, 1974).

b. A Proposal for studies of the Water Resources (*> I

of the Mescalero Apache Indian Reservation,

Preliminary Report, United States Department

of the Interior, Geological Survey (Albuquerque,

New Mexico, July, 1974).

c. Techniques and data requirements for estimating

the water availability on the Mescalero Apache

Indian Reservation, Preliminary Report, United

States Department of the Interior, Geological

Survey (Albuquerque, New Mexico, January, 197 5).

d. Certain studies or reports, without reference

to title, author or date, on the Pojoaque

drainage basin, encompassing, in part, the lands

of the Pueblos of Nambe, Pojoaque, Tesuque and

San Ildefonso.

6. By letter dated July 7, 1975, S. E. Reynolds, appealed

from the initial denial of agency records. (A copy of said

letter is attached hereto as Plaintiff's Exhibit 'C'l.

7. The letter from Roysto.n C. Hughes, Assistant Secretary,

Program Development and Budget, United States Department of the
71

Interior, dated August 22, 1975, set forth the agency's

decision to uphold the denial of the aforesaid agency records.

(A copy of said letter is attached hereto as Plaintiff's

Exhibit 'D').

8. The agency refused to produce the requested records

on the ground that they were exempt under the Freedom of

Information Act, 5 U.S.C. 5 552(b)(5).

9. The Plaintiff is informed and believes and therefore

alleges that the requested records contain basic data and

evaluation of basic data and that such records are factual,

not deliberative, in nature.

10. The Plaintiff is informed and believes and therefore

alleges that the requested records were not made in preparation

for litigation and do not contain legal conclusions, opinions

or theories.

WHEREFORE Plaintiff prays the Court to order the Defendant

to promptly make available to the Plaintiff the requested

records and to require the Defendant to pay the attorney's

fees and other litigation costs incurred by the Plaintiff.

r?:IL. re PAUL L. BLOOM

PETER THOMAS WHITE

Special Assistant Attorneys General

State Engineer Office

Bataan Memorial Building

Santa Fe, New Mexico 87503

ATTORNEYS FOR -THE PLAINTIFF STATE

OF NEW MEXICO EX REL. S. E. REYNOLDS,

STATE ENGINEER
72

AFFIDAVIT

STATE OF NEW MEXICO )

) SS

COUNTY OF SANTA FE )

S. E. REYNOLDS, being first duly sworn upon his oath,

deposes and states:

That he is the duly qualified and appointed State Engineer

of the State of New Mexico; that he ha3 read the foregoing

Complaint, is familiar with the contents thereof, and that

the matters contained therein are true and correct to the best

of his knowledge and belief.

Subscribed and Sworn to before ir.e tnis/*^- ,-Mday of

November, 1975.

Notary Public0

My Commission Expires: ^/^¥7(c
73

toy 2, 1D7

Hr. W13 ' aa 2. Eala

District Chiaf

W?.tsr Resources Division

U.S. Caolscical Survey

Post Office Sox 42S9

Albuc^ercus, Ken Jiscico 071C5

Dear Bill:

At p-.css 45 arc 47 of the "Draft BwriLtoacantal Statsoenfc of the

Approval fcy tha Secretary of tha Interior of a Lease Between Sonera

is rede to the 'JSG3 esti-Tate of ground water flow across a 12.5-rdia

section axtardirg front the southeast corr-ar of the Tesuque Pueblo

Grant to tha northeast of tha &3C3M Puablo Grant which Mia obtained

frcn! sn analog nnfal. It is requested that yea furnish ice a copy of

the Study together with criteria used to da^.?-nira tha analog KCfal.

It is also requested that you furnish capias of any USGS hvdro•

3ojic data, studias and/cr reports collected cr ccrplated since 1970

involute; the Trebles of iterae, Pojcacua, San lidarcnso, Tasucua, and

Tacs, the Jicarilla i-pacha Hes~rvaticn, tha Hescalaro &pache Faserva.-

tion and/cr the I-avajo reservation..

Sincerely,

S. D. Rsynol

State Dr.*-Ins

(EXHIBIT 'A')
M utrtr RUM z

74

United Spates Department of the Inferior

K"£r*?f§ GEOLOGICAL SURVEY /J/j .

^j;; V/ Denver Fodwftl Center *'*! 13 p>. -^

V^|?^5^ Denver, Colorado S01"i5 SR*ff ~,. ' ** '~v9

June U, 1975. -. -V7§EEf Cf&fr*.

FREEDOM Or INFORMATION ACT

r.i"-'ls- te'*P-d •»

Mr, S. Z. Reynolds

Jlow 2tes:ico State Engineer

Bataan Memorial Building '•

Santa Fa, New Ilexico 87503 \

Dear Mr. Reynolds:

Your letter of Kay 2, 1975 to Mr. Willian E. Hale, District Chief, Water

Resources Division, U.S. Geological Survey, Albuquerque, Hew Mexico

requested certain data and reports pertaining to water involving Indian

lands in H*W Meiuco. Specifically, you requested information that relates

to the Pueblos of the riarrbe, Pojoaque, San Ildafonso, Te3uqua, and Tao3,

and reservations of the Jicacilla Apache, Hesc&lero Apache, and Navajo

Indians. Sose of the material requested was furnished on May 20, May 29,

June 5, and June 9.

You were advised in Kr. Kale's letter of May 30 that your request of Hay 2

would new be treated as a Freedom of Information Act inquiry. With regard

to work and studies concerning the definition of water rights on the

Pueblos of Itache, Pojoaque, San Ildsfonso, and Tesuque, plus the Jicarilla

Apache and Ksscalaro Apache Indian ressrvations, we are withholding such

information on the grounds that it is exempt fron disclosure under

5 US Code, Sec. 552 (b)(5) of the Freedoo of Information Act and that

sound grounds exist for invoking said e::atcption by reason of the fact

that such natters are involved in pending or anticipated litigation and

would not be available to you under tha Rules of Civil Procedure governing

discovery (Rule 26 (b)(3), Federal Rules of Civil Procedure). l-Jy- decision

is based on the advice and recorzaencation of Lotario D. Ortega, Field

Solicitor, U.S. Department of the Interior, Albuquerque, Hew Mexico, after

consultation with Mr. George W, Whetstone, FOIA Officer, Water Resources

Division, U.S. Geological Survey, Reston, Virginia.

The following list of material is being denied:

For the Jicarilla Apache Indian Reservation, a proposal to identify surface

and ground water of an area tributary to the Chasm River.

For the Pojoaque drainage basin, although three reports have been sent to

you, th.rre are other studies concerned Kith litigation which are being

denied.

(EXHIBIT 'BM
75

For the "escalero Apache Indian Reservation, naterial other than the four

ite-s referred to in Mr. Hale's letter of June 5, Elinor data have been

collected end brief proposals rcade Jot s;udy of the water supply. These

t;era done with water rights in rcind and are denied.

Ycu ray r.p? .il this decision to the Assistant Secretary of the Interior

for Program Development and Budget under 43 C.F.R. 2.17 by writing to

the Freedon of Information Act Officer, Office of the Assistant Secretary,

Progran Development and Budget, U.S. Department of the Interior,

Washington, D.C. 20240. Your appeal must be received within 20 working

days of the date of this denial. Your appeal cust be acconpanied by

copies of the original request, subsequent correspondence between you

and Mr.- Kale, and this initial denial. The appeal should be labeled both

on the envalopa and on the face of the letter with "FREEDOM OF INF032-IATION

ACT APPEAL." Your letter should contain a statement of the reasons why

you believe this initial decision to be in error.

Sincerely yours,

Acting Assistant Di:

Central Region

Copy to:

Freedom of Information Act Officer, Washington, D.C.

Chief Hydrologist, Water Resources Divisiir., Reston, Va.

Regional Hydrologist, USD, Denver, Colo.

Field Solicitor, Albuquerque, K. i'ex.

District Chief, WED, Albuquerque, M. Max.

Chief, Progran Office, Office of the Director, Fieston, Va.
76

STATS OF NEW MEXICO

37AT5 ENGIN5S3 OFFIC2

Bataan Mectorial Building

WT* ?». :ii*M«JO^.: 4TMI

Fr«*Jora of Information Act Officer

Office cf the Assistant Secretary

Prograra Development and 3udget

U. S. Department of the Interior

Washington, D. C. 20240

Hs: ??3S00M 0? IHPOBHA7X03 APPEAL

Sear Sir:

This is an administrative appeal froa the partial denial of

certain studies and rsports cr.d=r the freason of Ir.roration

Act.. 5 D.3.C. 2 552, 43 C.T.R. 2 2.17. Copies of the initial

requests ar.d partial denial are enclo.-sed.

The letter dated June 11, 1575 specifically denies studies or

reports for the following arses:

1. Jicarilla Apache India.-. Reservation

2. Pojoa.Tue drainage basin

3. Hescalerc Apache Indian Preservation

These denials are four.dad upon Gaction 552(b) {5) of the ?raedoct

of Information Act, which e::3npt3 inter-ag.ency or intra-acar.cy

rr.enorer.du-T.s not available ac l&s,

~.z is the State Engineer's belief that the varuastad reports ar.d

studies contain purely factual, rather than delibarativa nateriai:

that they vere not prepared as preparation for litigation; &ad

that they do not contain ieg-i conclusions, opinions or theories.

Since they do not fall within either the privilege for confidential

intra-agancy advisory opinior.3 or cha attorney•client and aitornev

-..cri; product privilege, these r=ucrti or scudiss should he

dLsoio'.jod to this office.

^.MiSJa

(EXHIBIT 'C'J
77

United States Department of the Interior

OrFICE OF THE. SECRETARY

WASHINGTON, DC. 2O240

AU5 2 2 1975

'•"<-. S.r. Roynnldi

Sfcra Engin&er

State of New Mexico

Bataan Memorial Building

Ssnta Fe, Naw Mexico 87503

Dear Mr. Reynolds:

3y letter dated July 7, 1975, you appealed from an initial denial by

the U.S. Geological Survey of information requested by you. As 1

understand it, the following material was denied and is the material

which you desired:

1. A proposal by the United States Geological Survey

to identify surface and grou->; water of an area

tributary to the Chama River in the Jicarilla

Apache Indian Reservation.

2. A proposal by the United Stares Geological Survey

to identify water sources for the Mescalero Apache

Indian Reservation.

3. A digital model valuation st_iy for the drainage

basin of the Pojoaque Pueblo.

You were advised in a letter dated June II, 1975, from Mr. T.J. Lyons,

the Acting Assistant Director, Central Region, U.S. Geological Survey,

mat that information was being withheld en the grounds that it was

exempt from disclosure under exemption 5 of the Freedom of Information

Act,' 5 U.S.C. 552(b)(5). Your appeal, dated July 7, 1975, stated that

you believe the material requested is not exempt as stated by Mr. Lyons,

but rather is required to be disclosed recause the information contained

in the documents being withhold is fac~-al rather than opinions or

reco.n-andaJ' i ons.

I have been advised by the Solicitor's Office that these documents

were prepared in connection with li+lgation and that they fall within

the attorney work-product privilege. !" is clear that an attorney's

v.ork product which is privileged falls .-irnin exemption 5 of the Act,

(EXHIBIT 'D'

75-358 O - 76 - 6
78

S^rs v. Motion?! l-ror Relation:; So?", 44 L. td. 2d 29 (1975). In

aiSTFion I'D itie explication oi ex-jrphoi 5, there are good reasons for

nj? disclosing tne material in that disclosure nighr unduly hampar the

position of the United States in an ac/ersary proceeding.

As you are awars, it is the Cuparrnanr's policy to naka our records

= 3i;ot!a to t:-:- pt-Uc to r->a .j-ijLjj- :*:•-: possible, -

T

CFH 2.!2Ca!.

.'•. Iig,-|- or rrii, ! h.'.-a ij'.jc rj" • ii' ci'or's O-.ic-a to go o/er eacrs

document and make available to you porrions of T.IOT which contain

factual information. You should be hearing fron th&Ti in the near

fjture. •

Since this decision upholds a denial, you have the opportunity to

obtain judicial review. You nay file a complaint in United States

District Court for the district in which the records aro located,

the district in which you reside or have your principal place of

business or the United States District Court for the District of

Co I umb i a.

T'-e officials responsible for this excision are ^oystcn C. Hughas,

Assistant Secretary - Progre-i Da'.a! op"?.vr and Sjc'jat, and Ti.Trathy S.

Elliott, Assistant Solicitor, Gere.a! '_aa.3l Services.

Sincerely yours, ,

Royr/on C. H'jghes •''/

Ass/sraif Secretary (/

Pro--am Development and

3-;get
79

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO ex rel. )

S. E. REYNOLDS, State Engineer )

)

Plaintiff, )

)

vs. ) CIVIL IIO. 75-684 B

)

THOMAS S. KLEPPE, Secretary of ) ^ORIGINAL

the Interior, United States ) FILED IN MY. 0

ctrirM"

Department of the Interior )

) DEC 161!

Defendant. )

JESSE CASAUS

CLERK

For his Answer to plaintiff's Complaint, the defendant,

Thomas S. Kleppe, Secretary of the Interior, United States

Department of the Interior, states:

FIRST DEFENSE

1. The defendant admits that S. E. Reynolds

is the State Engineer for the State of New Mexico and lacks

information and knowledge sufficient to form a belief as to

the truth of the remaining allegations of paragraph, one of

the complaint and the same are, therefore, denied.

2. The allegations of paragraph two of the complaint

are denied, except that defendant admits that Thomas S. Kleppe

is Secretary of the United States Department of the Interior

and discharges the obligations and performs the duties of that

office.

3. Paragraph three of the complaint merely sets

forth plaintiff's characterization of this action and not

allegations of fact for which an answer is required. Insofar

as an answer may be required, the allegations of paragraph three

are denied.

4. The defendant admits the authenticity of

Exhibits "A", "B", "C" and "D" to t'.ie complaint and denies the

remaining allegations of paragraphs four, five, six, and seven

of the complaint.

5. With respect to the allegations of paragraph eight,

the defendant would respectfully refer the Court to the letters

referred to in the complaint for the complete and accurate terms
80

(

thereof; in otner respects the allegations of paragraph eight

are denied.

6. The allegations of paragraphs nine and ten are

denied.

7. All allegations of the complaint not expressly

admitted or denied herein are hereby denied.

SECOMD DEFENSE

Plaintiff's complaint fails to state a claim upon which

relief can be granted.

THIRD DEFENSE

The court is without jurisidction over the subject

matter of this action in that the records requested by plaintiffs

are exempt from mandatory disclosure pursuant to exemptions set

forth in 5 U.S.C. 5552(b).

FOURTH DEFENSE

The defendant Thomas S. Kleppe is not a proper party

to this action.

WHEREFORE, having fully answered, the defendant,

Thomas S. Kleppe, prays that the plaintiff's complaint be dismissed

with prejudice and that the costs of this action be assessed

against the plaintiff.

1 VICTORS*. ORTEGA)

United States attorney

Attorney for the defendant,

Thomas S. Kleppe, Secretary of

the Department of Interior

THIS WILL CERTIFY that a true copy

of the foregoing was mailed to opposing

counsel of record this / / ''-day of

December, 1975.

VICTOR R. ORTEGA

United States Attorney
81

IN THE DISTRICT COLKT OF THE UNITED STATLS I Li ili D

u>:nn) STATCS KSTT/CT COLTT

FOR THE DISTRICT OF HEW MEXICO AWaKBCE, NT.V /. KICO

STATE OF HEW MEXICO ex rel.

S. E. REYNOLDS, State Engineer,

Plaintiff,

THOMAS S. KLEPPE, Secretary of

the Interior, United States

Department of the Interior,

Defendant.

CIVIL NO. 75-684-M

MOTION FOR SUMMARY JUDGMENT

Comes now the Defendant by and through his attorneys

Victor R. Ortega, United States Attorney, and James B. Grant,.

Assistant United States Attorney, attorneys for the defendant

herein, and hereby moves the Court for an order pursuant to

Rule 56, F. R. Civ. P., granting summary judgment to defendant,

on the grounds that there is no genuine issue of fact in this

case and that defendant is entitled to summary judgment in

this case as a natter of law.

VICTOR R. ORTEGA

United States Attorney

,". < l^j-

^AhHs" B. GRANT"

Assistant U. S. Attorney

THIS \v:u. nPirnry THAT »

TUU:: cc'v <y ••::;: 1 I>-.:E."K>ING

PL.~A.""!.\-(; •••;» -.•.';.::" TO DPWrvaa c".:::-r.(. 1 r r:i:'.\siD

/•.• ,',./ .,../., >y1•
82

C0L

IN THE DISTRICT COURT OF Tlffi UTIITED STATES

FOR SHE DISTRICT OF NEW MEXICO

STATE OF MEW MEXICO ex rel.

S.E. REYNOLDS, State Engineer,

FILED U\'IT:D STATES cis-.rrccurrr

AICJGU'ERCJS, :«•/' t'SOSSl

APS ij 5376

Plaintiff,

vs. CJVIL NO. 75-684 M

THOMAS S. KLEPPE, Secretary of

the Interior, United States

Department of the Interior,

Defendant.

MEMORANDUM III SUPPORT OF

KOTIOH FOR SUMMARY JUDGMENT

BACKGROUND:

A. The State Engineer's Request

B. Preparation of the Documents Withheld

C. Present Status of the Water Rights

Adjudications

ARGUMENT:

I. The deleted portions of the reports concerning the two Apache reservations are

internal advisory memoranda which cannot

be disclosed without darrege to the Government's

deliberative process and are therefore protected

against disclosure under Exemption 5 of the

Freedom of Information Act.

Page

II

12

II. The other materials withheld from the State

Engineer's recuest were prepared for use as

possible evidence in the water rights adjudications, and should be sought through discovery

in those cases. 17

A. Exemption 5 of the Freedom of Information

Act incorporates the discovery rules of the

Federal Rules of Civil Procedure 18

B. The materials sought would not be available through discovery at this stage In

the proceedings for which they were

prepared

ATTACHMENTS:

Exhibit A--Affidavit of William E. Hale

Exhibit B--Affidavit of John E. Carver

Exhibit C -Affidavit of Donald H. Redd

Exhibit D--Affidavit of Charles It. Estes. Tr.

19
83

IN THE DISTRICT COUKT OF THE UNITED STATES

FOR THE DISTRICT OF HEW MEXICO

STATE OF NEW MEXICO ex rel.

S. E. REYNOLDS, State Engineer,

Plaintiff,

vs. CIVIL NO. 75-68'* M

THOMAS S. KLEPPE, Secretary of

the Interior, United States

Department of the Interior,

Defendant.

MEMORANDUM IN SUPPORT OF

MOTION FOR SUXKAKY JUDGMENT

This proceeding was filed by the State of New Mexico,

actirg through the State Engineer, on November 14, 1975. under

the provisions of the Freedom of Information Act, 5 U.S.C. §552.

The State Engineer seeks certain reports, memoranda and data

concerning the water resources of six Indian tribes of New

Mexico prepared by the United States Geological Survey and

withheld froa release by the Department of the Interior. The

materials sought are the following (see affidavit of Mr. William

Hale, pp. 3-U)i

a. J. I.. Kunkler 3k A. G. Scott, Plan for Study

of Part of the J.icarill? Apache Indian Reservation,

Letter Report, United Jtites Department of the

Interior, Geological Survey (Albuquerque, New

Mexico, April, 197-^).

b. A Proposal for studies of the Wntcr Resources

01' the ii'ioC^ Jc: ro An.acne Indian .'vor.oryation ,

Preliminary "Report, United States Department

of the Interior, Geological Survey (Albuquernue,

Hew Mexico, July, 197':).

c. Techniques nod data requirements for estimating

2t'2£ , W <•< "-' -'•' '-1 '

!''i1 11..." on t.:>\- :':t;:-.caiero hi cue

1:. ii 11 :,c: ei-v t"Jo":u i'roliii'.inary Report, United

StTtes iJoi"nt.:,.i'nt of the Interior, Geological

Survey (Albuquerque, New Mexico, January, ]475).

d. Mlr.cOl.incou:-. stroiiitfjov measurements made on

the Kcscalero Apaciie Reserve, tIon on or about

Miy -13, l!»7'!.
84

e. Digital-Model Evaluation of a Plan to Withdraw

GrouncTv.'ater in the rojoique River Basin, a

Preliminary Report, by (J. A. Hearnc and F. C.

Koopman, United States Geological Survey,

Albuquerque, New Mexico, August, 197^, together

with certain memoranda by Geological Survey

personnel concerning the digital model and

certain related test results.

The State Engineer's request for these materials was

formally denied by the Department of the Interior by letter

dated August 22, 1975 from Assistant Secretary Royston C. Hughes.

The United States takes the position that these materials are

exempt from release under the Freedom of Information Act

(hereafter F.O.I.A.) because they fall within Exemption 5 of

the Act (5 U.S.C. §552(b)(5)). This provision exempts from

disclosure "inter-agency or intra-agency memorandums or letters

which would not be available by lav; to a party other than an

agency in litigation with the agency". These materials were

all prepared in connection with water rights adjudications

pending either in this Court or in the Hew Mexico District

Court for Chaves County, cases to which the State of New Mexico

and the United States are parties.i/ To the extent that these

documents are subject to discovery, they may be obtained by the

State through discovery requests made pursuant to the Federal

or New Mexico Rules of Civil Procedure.

BACKGROUND

A. The State Engineer's Request. - The background

of this case, including both the preparation of the material

sought by the State Engineer and the response by the Department

1/ State of Ken Hexleg v. Ar-~on. et al., U.S.D.C. N. M.,

Civil i<"o^ 75^1 (Adjudication oi' Ch-una River, including

portion of Jicurilla Apache Reservation):

State ol' Now Mexico v." Lc-.M:;. nt <q., K.M.D.C. for Chaves

County, i;o. ::JSFi fconsoliditod with No. 22u00) (adjudication

of Rio Hondo, including portion of Ifescalero Apache Reservation);

Strfce of How Mexico v. A-ur.odt.. et al., U.S.D.C. N. M. , Civil No.'

bo3y (adjudication of Rio Tojoiqui*, including portions of

Pueblos of Ilanibo, Fojoaque, Tesuquc, and San llucfonso).

-2-
85

of the Interior to the State Engineer's F.O.I.A. request, is set

forth in the affidavits attached to this memorandum, particularly

the affidavit of Mr. William E. Hale, the New Mexico District Chief

of the United States Geological Survey. In early May, 1975, Mr.

Hale received a letter dated May 2, 1975 from Mr. S. E. Reynolds,

the State Engineer of Hew Mexico. The letter requested a copy

of an "analog r.odel" analysis made by the U.S.G.S. of ground

water flow in the Pojoaque Valley. As the letter noted, reference

to this analysis had been made in a publicly-released draft

environmental statement prepared by the Bureau of Indian Affairs

in connection with the approval by the Secretary of the Interior

of a lease of land at Tesuque Pueblo. The State Engineer's letter

also requested "copies of any U.S.G.S. hydrologic data, studies

and/or reports collected or completed since 1970 involving the

pueblos of I!air.be, Pojoaque, San Ildefonso, Tesuque and Taos,

the Jicarilla Apache Reservation, the Mescalero Apache Reservation

and/or the Ravajo Reservation".

In response to Mr. Reynold's request, a number of

reports and compilations of data were made available to the

State Engineer's Office in May and June, 1975. The particular

study which included a discussion of the analog model was furnished

although it had been prepared by the U.S.G.S. at the request of

the Bureau of Indian Affairs for use in the water rights

adjudication of the Pojoaque River (State of New Mexico v. Aamodt).

This study was released because it was felt that any privilege

which the Government might have claimed because of its connection

with the water rights litigation had probably been waived by

utilizing the study's results in a widely circulated environmental

impact Bt atClient. Two other reports which the survey had prepared

in connection with the Pojoaque adjudication were also released

o/

because they were so closely related to the analog model study. •

2/ Footnote on following page.

-3-
86

Certain other studies, not related to litigation, were also

released. (See Hale affidavit, pp. 2-3.)

The release of this information meant that only those

materials within the State Engineer's request listed on pages 1

and 2 had been withheld from release; ie, reports which reviewed

the water resources information available with respect to a

portion of the Jicarilla Apache Reservation and the Kescalero

Apache Reservation, certain miscellaneous streanflow measurements

made on the Rio Ruidoso within the Mescaloro Reservation on or

about May 13, 197**, and the digital-model study of ground water

conditions within the Pojoaque River basin, together with related

memoranda and test results. The letters from the Department of

the Interior denying the State's request for those items made

clear that the denial was based on the fact that the material

had been prepared for litigation. (See Exhibits "B" and "D"

to plaintiff's complaint.)

In his letter of August 22, 1975, the Assistant

Secretary asked the interested parties within the Government

to undertake a final review of the reports withheld and make

available any purely factual material which could be released

without compromising the Government's position in litigation.

Certain portions of the three reports concerning the Jicarilla

and Mescalero Apache Reservations (detailed, '.nfra; pp. 6-C.)

were forwarded to the State Engineer. None of the materials relating

to the Pojoaque basin model were released, however.

2/ To avoid possible confusion it should be noted that the

"digitR! -model" study of proposed ground water withdrawal

in the Po.iO'-.que bnoin, which is among the iterr.s withheld from

release to the State l.ngir.eer (item "d", par.e 2, supra) is

quite different from the "analog model" discussed in the

environmental Impact statement and m.->de available in response

to the State Engineer's request. The r>.n<0on model Is very

much ]er,s sonhistl cited and makes no attempt, as does the

digital r.iO'id , to simulate changes In basin renditions as

the result or ground water pulping. (see explanation in

hale nffid .'.'it, pp. (3-9-)
87

The State Engineer thereupon filed this proceeding,

seeking an order requiring the Secretary of the Interior to make

available the requested materials which had been withheld.

B. Preparation of the Documents Withheld. - The

affidavits attached to this memorandum make clear that all of

the material withheld was unquestionably prepared in connection

with the three water rights cases listed on page 2.

1. The report concerning the Jlcarilla Apache

Reservation was prepared at the request of the Bureau of Indian

Affairs with the advice of the attorneys for the Department of

Justice, for use in the case of State of New Mexico v. Aragon,

U.S.D.C. N.M., Civ. No. 79^1. This case is an adjudication of

water rights in the Chama River and its. tributaries in northern

New Mexico. The case was filed in 1934 in the New Mexico District

Court for Rio Arriba County and was removed to this Court in 1969.

At that time the United States was permitted to Intervene as

plaintiff in order to assert the water rights of the Jicarilla

Apache Tribe and the Fueblo of San Juan from the Chama River.

The Aragon case was one of a number of cases filed by

the State of New Mexico to adjudicate water rights of certain

streams in northern New Mexico as a prerequisite to administering

water to be imported Into the Rio Grande basin through the

San Juan-Chama diversion project. The Albuquerque Area Office

of the B.I.A. has had a primary role in preparing the technical

evidence required to establish the extent and priority of the

water rights of the Indian tribes involved in all of these

adjudications. As the affidavits of Messrs. Hale and Carver -

explain, the B.I.A. has regularly contracted with the Geological

Survey for technical assistance. The Bureau's efforts in

connection with these cases has of course been under the direction

of attorneys for the Department of the Interior and the

Department of Justice.

-5-
In the fall of 1973, the B.I.A. decided, after

consultation with the trial attorneys, to ask the U.S. Geological

Survey to prepare a study of the water resources of that portion

of the Jicarilla Apache Reservation within the Charaa drainage.

The Survey In response prepared a preliminary reconnaissance

report outlining the basic information already available on

v.-ater resources in that area and indicating further steps which

might be taken to learn more about its hydrogeology.

The affidavit of Mr. Hale of the Geological Survey

(pp. ^-5) explains the nature of this report, dated April, 197^.

Following introductory portions, the report contains a general

description of the geologic features of the area proposed for

study and summarizes the previous investigations made in the area.

These pages of the report (pages 8-22) have been made available

to the State Engineer, as they contain no evaluative material.

(One paragraph is omitted on page 17 which comments briefly

on reports prepared by private consultants for the tribe.)

The concluding sections of this report contain a

critical evaluation of the accuracy and comprehensiveness of

the existing information about the study area. The report

concludes with a sunur.ary plan for a more comprehensive water

resources study of this section of the Jicarilla Apache Reservation.

These concluding sections (pages 23-35) have not been released

to the State Engineer.

2. The two reports concerning the Mescalero Apache

Reservation are quite similar to the Jicarilla Apache report,

both in their origins and in their objectives. (Again, see

Hale affidavit pp. 5-6 and Carver affidavit pp. 3-6.) Both of

these reports •.••ere prepared by the U.S.G.S. at the request of

the Albuquerque Area Office of the B.I.A. for use in litigation,

viz. , State of V.e\: Mexico v. Lewis.

-6-
89

This case was originally an adjudication of rights

to the use of ground water In the Roswell Artesian Basin.

The case was filed in 1956 and was completed in the fall of

1973 when the United States and the State of New Mexico entered

into a stipulation as to the Government's rights to ground

water in the basin. On January 10, 197^, however the scope of the

case was enlarged to Include rights to the use of surface water

of the Rio Hondo and its tributaries, which form a major source

of supply for the Roswell Artesian Basin. The Rio Ruidoso,

which arises in large part on the Mescalero Apache Reservation,

is a major tributary of the Hondo.

After the Lev;!s adjudication was extended to the

Rio Hondo, the Department of Justice urged the B.l.A. to take

steps to prepare for the eventual adjudication of the water

rights of the Mescalero Apache Tribe. (See affidavit of Mr.

Donald Redd.) It was recognized that the Lewis case related

to only a portion of the Mescalero Reservation. However, it

was agreed that the water resources of the entire reservation

should be considered as a whole. •

The Geological Survey was accordingly contacted by

the B.l.A. and requested to undertake a reconnaissance survey

of the existing information concerning the water resources of

this reservation similar in scope to the report previously prepared

in connection with the Jicarilla Apache Reservation. An

initial report along these lines was completed by the U.S.G.S.

in July, 1974. A more comprehensive and detailed report was

prepared in January, 1975- Again, the nature of these reports

is summarized in the affidavit of Kr. Hale.

3_/ The two Mescalero reports are not divisible into portions

dealing with different watersheds on the reservation.
90

As was done with respect to the Jlcarilla Apache

report, the portions of these studies which merely summarize

the current information available or describe the physical

features of the reservation have been made available to the

State Engineer. On the other hand, the portions of the reports

which consist of evaluation by the U.S.C.S. of the quality or

completeness of the available Information or which suggest a

program for additional study have been withheld. •'"/

hj The disposition of the various portions of these two reports

is indicated in the following tables:

Pases

l-2a

3-5

6-8

9-16

17, 18

Fages

5, 6

7, 8

9(ist ir)

9(2nd •)),

10

11-14

15, 16

17

18-20

31,22

23-35

35-37

PIE. 1

Fig. 2

Report feted July. 197*1

Subject

Cover letter dated July, 15, 197*1 to

Mr. Uendell Chino, President,

Mescalero Apache Tribe.

Title page, table of contents.

Su.Tir.ary of background and purpose

of the request.

Summary of previous investigations.

Need for additional data, outline

of study prograir..

References, location ir.ap.

Report Doted January, 1975

Subject"*""

Title page and table of contents.

Background and purpose of the

study request.

Physical features and geology of

the reservation.

Summary of average surface flows.

Suppositions about ground water

conditions.

Su.To-r.ary of qualitative and

quantitative information about

surface water.

Techniques for additional study

of surface water.

Summary of existing ground water data.

Techniques for ground water study.

Summary of existing water quality data.

Techniques for water quality studies;

outline of program for collection of

additional data.

References.

Location map.

Map locating proposed stream

gauging stations.

Disposition

Released.

Released.

Withheld.

Released (except

for one evaluative

para, of p. 8).

Withheld

Released.

Disposition

Released.

Withheld.

Released (except

for one evaluative

para, of p. 7).

Released.

Withheld.

Released.

Withheld.

Released.

Withheld.

Released.

Withheld.

Released.

Released.

Withheld.

-8-
91

3. Also withheld from release are certain miscellaneous

streamflow measurements made along the Rio Ruidoso by Geological

Survey personnel. In the winter of 1973-1974, the Tribe had

constructed a pumping station and pipeline to direct water from

the Ruidoso across a divide as a supplemental watensupply for a

reservoir built by the Tribe as part of a resort complex.

In the early part of 197*, the State had unsuccessfully

sought to enjoin any diversion of water by the Tribe from the

Ruidoso. Because of this controversy, it was felt that measurements of the diverted flow should be taken. For this reason

the Geological Survey was asked to make streamflow measurements

above and below the pumping station. This was accomplished on

or about May 13, 197*. (See Hale affidavit, p. 6; Carver

affidavit, p. 5.) These records will form part of the basis

for the hydrologic evidence to be submitted on the Tribe's behalf

in the water rights adjudication.

h. The last set of materials withheld from the

State Engineer's request concerns a digital-model study of

the effects of potential ground water withdrawal in the Pojoaque

River basin. As the affidavits again establish, this work was

undertaken by the Albuquerque Office of the Geological Survey

at the request of the Bureau of Indian Affairs for use in a

water rights case, viz., State of New Mexico v. Aamodt, the

adjudication of the Rio Pojoaque. The United States in this

case is asserting water rights on its own behalf and on behalf

of four Indian pueblos located in part within the Pojoaque

watershed: Nambe, Pojoaque, San Ildefonso and Tesuque.

The Aamodt case was filed in the spring of 1966, but

the first portion of the trial was not held until April, 197*.

(The delay was due largely to the unsuccessful effort by two

Indian pueblos on the main streym of the Rio Grande to Intervene

in the proceeding.) In December of 1973, the B.I.A., attorneys

for the Department of Justice, and private attorneys retained
92

by the Indian pueblos (with financial assistance from the B.I.A.)

undertook a review of preparations previously made by the United

States in this case. One major suggestion that emerged from this

review was that a more comprehensive study be undertaken of ground

water availability within the Pojoaque River basin.

The B.I.A. had previously developed a tentative

engineering plan for use in the Aanodt cnse outlining the portions

of the four Indian pueblos felt by the B.I.A. to be "practicably

irrigable". (This is the formula suggested by the United States

Supreme Court in Arizona v. California, 373 U.S. 5*t6 (1963), as

the basis for determining the water rights of Indian tribes.)

The suggestion was made that the B.I.A. investigate the possibility

of greater reliance on the use of ground water in their engineering

plan. In order to analyze the effect of pumping ground water,

it was suggested that the U.S.G.S. be asked to utilize a digital

computer model to simulate ground water conditions in the Pojoaque

basin and indicate the changes pumping might be expected to

induce. (Kr. Carver's affidavit, pp. 6-8, sets forth in greater

detail the background ana purpose of this request.)

As Kr. Hale's affidavit indicates (p. 9), the values

utilized in the model to represent the hydrogeologic parameters

of the Pojoaque aquifer were based almost entirely on the empirical

data set forth in the four reports concerning this basin which

have been made available to the State Engineer. 5r in Juno of

1974, some limited field investigations (viz., infiltration tests

and neutron moisture logs) were made to develop additional data

for use in setting the model parameters. This d<sta did not prove

definitive enough for use in the model, however. (See Hale

affidavit, pp. 9-10-) A preliminary report on the computer model

5/ The reports are indicated in Mr. Hale's affidavit, p. 7.

-10-
93

investigation was prepared by the U.S.G.S. in August, 197^.

In addition to the U.S.G.S. August lo^ report and

results of the infiltration tests and moisture logs, the U.S.G.S.

has also withheld a nur.ber of memoranda concerning the Pojoaque

basin model written by Survey personnel. These documents

include r.er.oranda to the files by members of the Albuquerque

district office, memoranda to the Albuquerque district office

from employees of other Survey offices, and letters by Survey

personnel in Albuquerque to the 3.I.A. transmitting the results

of several intermediate computer runs. The memoranda viritten

by U.S.G.S. personnel consist entirely of summaries of discussions

concerning the model, evaluations of the techniques and assumptions

employed in the model, and suggestions for various refinements.

Hone of these letters or memoranda contain any factual material

beyond that already provided to the State Engineer.

C. Present Status of the Water Rights Adjudications. -

Trial is neither scheduled nor even reasonably imminent in any

of the three cases for which the U.S.G.S. prepared the reports,

memoranda and data sought by the State Engineer. Adjudication of

Indian water rights cases in the Chaaia River, including the

rights of a portion of the Jlcarilla Apache Reservation

(State of new Mexico v. Aragon), will not be undertaken until

resolution of certain common legal questions in the Pojoaque case.

That case (State of Key? Mexico v. Aamodt) is itself on interlocutory appeal to the United States Court of Appeals for the

Tenth Circuit from the decision of Judge Payne that the water

rights of the four Indian pueblos should be governed by the

state-law principle of prior appropriation rather than by the

"reserved rights" doctrine spelled out in Arlsonn v. Oa]ifornii.

373 U.S. 5';5 (1?53). A-^modt has been briefed and was argued

in November, 1975, but the Court of Appeals has not yet ruled.

Regardless of the Court of Appeals' decision, appeal to the

-11-

S-358 O - 76 - 7
94

United States Supreme Court is likely. All proceedings in the

district court have of course been stayed pending appellate

resolution of the central legal issues.

Date of trial in the adjudication of the water rights

of the Mescalero Apache Reservation is similarly uncertain

(State of Tew Mexico v. Lewis). The Supreme Court of Kew

Mexico recently ruled that the Kew Mexico courts did have

jurisdiction to determine the water rights pertaining to the

Mescalero Reservation, and remanded the case to the district

court. Ho./ever, preparations for trial have just begun and it

will undoubtedly be some months before a trial date is set.

In none of these cases has the State of Kew Mexico

(which acts in these matters through the State Engineer) sought

the materials requested, or any information about them, through

the normal discovery process. In the Aa'r.odt case, the State was

advised of the existence of the digits] jhodel and given names

of the witnesses who would be called to testify about it in a

"Motion for Pretrial Order" filed by the United States on

June 10, 197'l. Since that date the State has not sought any

information about these investigations through interrogatories

under Rule 33, requests to produce under Rule 34, or through

other forms of discovery under the Rules of Civil Procedure. In

neither of the other two cases lias any information been sought by

the State through discovery.

ARGUMENT

I

THE DELETED PORTIONS OF TIE REPORTS CONCERNING

THE TWO APACirE RESERVATIONS ARE IHTEItHAL ADVISORY

KKHORAKDA WHICH CAKNOT BE DISCLOSED WITHOUT

DAMAGE TO THE GOVKRNMECT'S DELIBERATIVE PROCESS

AND ARE TH:.REF0:;E PROTECTED AGAINST DISCLOSURE

UNDER EXEMPTION 5 of the i'SHEDDM OF INFORMATION ACT.

-12-
95

The Freedom of Information Act, 5 U.S.C. §552, was

enacted in 19>6 to ensure broader access by tho general public

to government documents find records. The Act requires that

such documents be made available upon request unless they fall

within one of nine specific exceptions. In the resolution of

the present case, the most important of these is Exemption 5,

dealing with lntra-government me: oranda. Subsection (b) of the

Act (5 U.S.C. 5 552 (b)), which sets forth the exceptions,

provides in pirt that "[the Act] does not apply to matters

that are:

(5) inter-agency or intra-agency memorandums or letters which would not be

available by lav; to a party other than

an agency in litigation with the agency."

There is no question that the materials sought by

the State Engineer in the present case fall within the category

of "inter-agency or intrs-agency memorandums or letters". The

Government would be happy to hive the Court examine all of these

materials in c--°ra in order to confirm this fact. Each of the

four basic reports sought in this case indicates in its text

that it was prepared in response to a request from another government agency, the Bureau of Indian Affairs. The affidavits of

Messrs. Hale and Carver establish that the streamflovi measurements made at Mescalero were likewise made at the B.I.A.'s

request. The memoranda prepared in connection with the Pojoaque

Basin digital-Todel study indicate on their face that they arc

internal government documents. The circumstances surrounding

the compilation of the related test results also indicate that

they were prepared for use within the Geological Survey in

determining the proper values to use in the model.

The documents withheld from the State Engineer's

request fall into two separate categories and require somewhat

distinct treatment. The three reports prepared in connection

-13-
96

with the Jicarilla and Mescalero Apache reservations (items "a"-"c"

on pp. 1-2, sunri) were requested by the Bureau of Indian Affairs

strictly for background information and for advice as to the

measures which ought to be taken to prepare one aspect of the

tribes' case in these water rights proceedings. These reports,

while prepared by expert consultants retained in corcieetion with

litigation, were never intended to be used in trial.

These reports are shielded from disclosure under

Exemption 5 of the F.O.I.A. which incorporates the principle

that internal government documents may be held confidential if

they are advisory in nature in order to avoid revealing an

agency's "deliberative process". The factual parts of these

reports have been released; only evaluative and advisory portions

have been withheld. Such materials must be protected from

disclosure if effective intra-governmental co-jr.unication is

to be maintained.

Exemption 5 was added to the F.I.O.A. to ensure that

written policy deliberations within the Government would

remain frank and uninhibited, so that all points of view are

expressed and taken into account in making decisions. As the

Senate Committee Report explains (S. Sep. No. Sl3, 89th Cong.,

2d sess., p. 9):

It was pointed out in the comments of r.any

of the agencies that it would be impossible

to have any frank discussion of legal or

policy matters in writing if all such

writings were to be subjected to oublic

scrutiny. It was argued, and with r.erit,

that efficiency of Government would be

greatly hampered if, with respect to legal

and policy matters, all Goverr-j-e.it agencies

were prematurely forced to "operate in a

fishbowl."

See also II. Rep. I,'o. 1*97, p. 10 (U.S. Code Cong. & Adv.ln. News

19SS, p. g')2?) for « similar statement. In the recent case of

WLRB v. Soars, Roobuck >•: Co., l\2\ U.S. 332 (1975), the Supreme

Court echoed thin congressional concern and made it clear that

-14-
97

documents "reflecting advisory opinions, recoirar.endations

and deliberations cor.prislne part of a process by which

Governmental decision.'; and policies are formulated" are within

the scope of the fifth exemption. 421 U.S. at 150 (quoting

Carl Zclss Stlftun.". v. V.T..P. Carl Zelss. Jena. 40 F.R.D. 318,

32'; (D.C. 19"?)). See also EPA v. Mink, 410 U.S. 73, 85-87 (1973).

These considerations are clearly applicable to the

three reports prepared by the U.S.G.S. to assess the available

water supply information concerning the Jicarllla and Mescalcro

Apache Reservations. The purpose of each of these reports

was to evaluate for another agency, the Bureau of Indian Affairs,

the quality of technical information available concerning the

water resources of the two reservations, and to render detailed

advice as to what steps might be undertaken to obtain more

complete data. It is surely difficult to characterize these

reports as anything but "advisory opinions" or "recommendations"

to be used by the B.I.A. and the Department of Justice in

deciding what steps should next be taken to prepare for litigation.

The fact that these matters arc in litigation makes

this an especially treacherous area in which to order disclosure.

We have noted that the B.I.A., in requesting these reports

of the Geological Survey, was acting at the recommendation of

attorney- responsible for preparing the Government's case on

behalf of the two Indian tribes. Materials specifically

requested to advise attorneys and the experts assisting them

(in this case engineers at the B.I.A.) as to steps which

might be taken to prepare one vital aspect of a matter in

litigation is clearly within the scope of the attorney's

deliberative process and thus within the work-product doctrine

which the SuDrcr.c Court in the Gears case found incorporated

6/ in Exception 5. ~

6/ "Congress had the attorney's work-product privilege specifically

in mind when it adopted Exception 5 . . . '121 U.S. "at 154.

-15-
The fact that these reports "contain basic data and

evaluation of basic dota", as alleged in paragraph 9 of the

State Engineer's complaint, Should not obscure the fact that

they are essentially advisory in nature. The State's contention

seems to be that no scientific report can be regarded as

"deliberative" and •.flthin the scope of Exemption 5, because it

Mill be based on factual complications. This analysis would

have ir.ade automatically available the scientific and technical

documents concerning the "Caruiikan" nuclear test sought by

plaintiffs in EPA v. M5r.k, supr?, and would have saved the

Supreme Court a difficult decision. Instead, as the Court

noted in that case, "Congress sensibly discarded a wooden

exemption that could 'have meant disclosure of manifestly

private' and confidential policy recommendations simply because

the document containing them also happened to contain factual

data" in favor of "the same flexible, common-sense approach

that has long governed private parties' discovery of such

documents involved in litigation Kith Government p-gencics . "

410 U.S., at 91.

In ".-.'ashin'-.ton Research Project, Tnc. v. Dept. of

H.E.W., 504 7. 2d S33. the Court of Appeals for the District

of Columbia Circuit held the evaluative portions of reports

prepared by expect consultants evaluating research proposals

for.the National Institutes of Health (definitely based on

factual analysis) to be privileged from disclosure under

Exemption 5 of the P.O.I.A. Even compilations of evidence

consisting entirely of factual material have been found within

the scope of this exemption where the compilations were made

by an agency staff member to summarize an administrative record

for agency decision and disclosure of the compilation would

reveal the internal decision-making process of the agency.

Kontrose Chemical Corp. v. Tr-~in.

JI91 F.2d 63 (C.A. D.C., 1974).

•16-
99

AB noted previously, the purely factual summaries

in the throe reports about the Apache reservations have been

made available to the State Engineer. The remaining portions

of these reports are strictly evaluative. These portions at

least should be shielded against disclosure in order both to

preserve the confidence of the governmental deliberative process

and to permit parties to nee!: confidential expert advice in planning

their approach to litigation.

II.

THE OTHER MATERIALS WITHHELD FROM THE STATE

ENGINEER'S REQUEST WERE PfCSASSD FOR USE AS

POSSIBLE EVIDENCE IB THE WATER RIGHTS

ADJUDICATIONS, AMD SHOULD BE SOUGHT THROUGH

DISCOVERY IN THOSE CASES.

Somewhat different considerations apply with respect

to the streamflow measurements made on the ttcscalero Reservation

(item "d" on p. 2, supra) and the Pojoaoue computer model and

its associated empirical tests (item "e"). A major pu-rpose

for making the streamflow measurements was to obtain information

which might be necessary for use at trial. Likewise the

Pojoaque model study was initiated both to provide necessary

information to the B.I.A. engineers in developing their plan

outlining the pueblos' "practicably irrigable" lands, and also

for direct use in trial. Discovery of information concerning

materials prepared by experts for use in litigation nay certainly

be obtained -- but only within the constraints imposed by the

Rules of Civil Procedure. Under those rules, discovery of this

information would be premature at this time since trial is

far from being scheduled in cither the lewis or the Aamodt. cases. 1/

'!/ The considerations sot forth above (under part. I of this

argument) with respect to purely advisory documents to apply,

however, to the miscellaneous memoranda in the Geological

Survey's file:; concerning the computer model. These memoranda

consist entirely of advice and recommendations (or summaries

of such reccn.mnndnti onr.) of Survey personnel to one another

concerning the development of the model. These documents

are clearly protected by the basic policy of Exemption 5.

.17-
100

Moreover questions of whether this material is now

properly discoverable should be resolved In the context of

the victor rights ca3es for which this information was prepared.

A. F.xe.-.ution r> of the Freedom of Information Act

lncorror-jtcs the discovery rules of the Federal Rules of Civil

Prccer.-.-re. - Exerption 5 is drafted in terir.s which expressly

make the availability of internal government documents turn on

whether they would be available "by law" to a party in litigation

with the United States or one of its agencies. The Supreme Court

in two cases last term unambiguously rules that Exemption 5 was

coextensive with the discovery principles of the Rules of Civil

Procedure. The Court stated that "Exemption 5 incorporates the

privileges which the Government enjoys under the relevant

statutory and case law in the pretrial discovery context. ..."

Renegotiation Board v. Grumin?n Aircraft Engineering Corp.,

hZ\ U.S. 158, l81» (1975) (citing the companion case, KI-R3 v.

Scrs, Roebuck ft Co., ^21 U.S. 132).

The House Committee Report which accompanied the

Freedom of Information Act in its final form makes the scope

of Exemption 5 turn on basic rules of civil discovery: "Thus,

any internal memoranda which would routinely be disclosed to a

private party through the discovery process in litigation with

the agency would be available to the general public." H. Rep.

Ho. 1

,:97, 89th Cong., 2d se3s; U.S. Code Cong. & Admin. News 19oo,

p. 2<«28. As summarized by Professor Moore (Moore's Federal

Practice 52o.-Sl [4.-3j)i

Subsection (b)(5) provides that inter-agency and

intra-- -.ency memoranda are public information

only Insofar as they would be available "by law"

in an action between the agency and a party not

an agency. ''By law" refers, of cc.:rse, to the

Ruler, o: Civil Procedure. [Citin; G-t'r.r-ral

Scr-icf- ;.q.;in. v. Pen.-on, '1.1-3 i". ~2d 573 (C.A.

Vt Ty'-j). I Vuur., t.ie avail ability or such

materials under the Kult-s Is unaffected by the

statute, except as memoranda mlgnt qualify under

subnuctjon (a)(2)(C) [governing "'administrative

stall' mar.ualr. and instructions ].

-18-
101

In addition to the Orumman and Sears cases, a number

of lower court decisions (including Benson cited by Professor

Moore) have confir.-.ied the principle that Exemption 5 incorporates

the discovery tests of the Rules of Civil Procedure: e.g.,

Brockw.-.y v. Dept. of the Air Force, 518 F. 2d 118U, 1189-1194

(C.A. 8, 1975); Sterling Draft v. F.T.C., k^O F. 2d 698, 704-705

(C.A. D.C., 1971). This Court has also held that ". . . the

tests to bo appliad under the [Freedom of Information] Act are

the same tests applied under the discovery rules." E.E.O.C.

v. Los Alamos Construction Co., 382 F. Supp. 1373, 1379

(U.S.D.C. N.H. 197^).

B. The materials sought would not be available

through discovery at this sta^n in the nroceeciir.rs for which

they wore prepared. - The discovery of the materials sought in

this case is properly governed by two subsections of Rule 26

of the Federal Rules of Civil Procedure: Subsection (b)(3),

which regulates discovery of materials prepared for litigation,

and subsection (b)(4), which concerns discovery of "facts known

and opinions held" by experts retained to assist in trial

preparation.

The portions of the Federal Rules cf Civil Procedure

governing discovery, including Rule 2o, were amended substantially

in 1970. One of the goals of the 1970 snendraenta was to make

it clear that information developed for litigation purposes

by experts was subject to discovery for purposes of crossexamination. (See Advisory Co:rjnittee note to Rule 2o, 28

U.S.C.A., p. l60.) The new rule was also intended, however,

to prevent either party from building its nffii-.• tivo case

from the other side's preparations. For this reason, Rule 25(b)

imposes important restrictions on the discovery of expert

information.

-19-
102

Rule 26 (b)(4) provides in general that discovery

of "facts knov.'n and opinions held by experts. . . acquired or

developed in anticipation of litigation or for trial" nay be

obtained without court order only through interrogatories

asking the party to identify the expert witnesses which he

expects to cell and indicating the "substance of the facts

and opinions to which the expert is expected to testify and a

surra-iry of the grounds for each opinion". Further discovery

is possible but only upon motion and court order. An important

corollary of this rule is that "[d]lscovsry [of expert information]

is limited to tri .1 witnesses, and may be obtained only at a

time when the parties know who their expert witnesses will be."

ft/

(Advisory Committee note, sunra, p. l6l.) ->

With trial in both the Lewis and A-'-modt cases

completely unscheduled it is clear that the State's atteir.pt

to obtain this expert information now is entirely premature.

Preparations by the Government for the Le-rls case are in midstream and it is certainly unclear Mho will be called as expert

witnesses concerning the ;-'iescalero Tribe's water resources.

With respect to the Aair.orit case, which is of course on interlocutory appeal to the Tenth Circuit, a good deal of work is

8 / Sec also, FricJcnthil, Discovery and Use of an Adverse

Party's Expert Information, 1^ Stanford Law Review, p. '(87,

cited with approval by the Advisory Committee Note, surra,

p. lol:

[t]he timing of discovery is extrer.ely important.

If we are to ensure, in the absence of a showing

of good cause for complete discovery, that discovery I:, to be limited to obtaining a foundation

for cross-examination, it is appropriate to permit

discovery only as to those experts who will in

fact testify. Therefore, discover;' should be

allowed a short time before trial, when it is

clear which exports a party will actually present

as witnesses.

Thin limitation on discovery to trial witnesses is followed

and discussed in 8t13cy v. iO'i :.i.rr i'rgi, trie., 57 F.R.D. 11

(1). 111. 1972) and j;i,->< r"t'foh VTonsoi jii.-';Lcd Conner Co. v.

Uunbonr.-.n's iiutunl E-TaTPJl.y Co.. oO i'.K.D. 20"5, L173

-20-
103

currently being done by the Albuquerque Office of the

Geological Survey both to refine the computer model and to

gather more information concerning the characteristics of the

aquifer. This information is Intended to define more accurately

the parameters of the model. Until this work is completed,

the United States will not know whom it will call as witnesses

to testify about this study nor will the witnesses know precisely

the facts to which they will testify. Once trial dates have

been set in these two cases, it will be entirely appropriate

for the State to sub-it interrogatories as contemplated by

Rule 25 asking the Government to specify the witnesses it will

call and the facts and opinions to which they will testify. At

this point, however, such discovery is forbidden by the rules. 2/

V.'hen documents and other materials prepared for

litigation are themselves sought, Rule 26(b)(3) *lso becomes

applicable. This provision specifies that

a party assy obtain discovery of documents

and tsnfjiVlc things otherwise discoverable. . .

and prepared in anticipation of litigation

or for trial by or for another party or by

or for thet other party's representative. . .

only upon s showing that the party seeking

discovery has eubstcnxiil need of the materials

in the preparation of his case and that he

is unable without undue hardship to obtain

the substantial equivalent of the materials

by other means.

0/ At the argument on motions held before the Court on

*~ April 7, 1976, counsel for the State pointed out that Judge

Payne had ruled thit no further hydrologic evidence would

be permitted in the Aar c.it case. This ruling was made shortly

before th? Court SrsritGQ an interlocutory appeal, however, and

the Government h-.z chosen to use the additional time inevitably

made available by the cppeal to gather more information about

the hydrology of '-he Fo.loaque Basin. It i:; hoped, of course,

that Judge layne will pejm.it this information to be presented

once •*.-*-.odt is returned for trial. In any event, there is no

doubt ti.'.T, this riteri-1 is being prepared for litigation

purpccr. If it '.:. ultimately excluded, then presumably it '

will not bo discoverable at -.11 -- nil the more reason to

require that discovery in A".:.'.odt follow the normal course.

-21.
104

The essence of this standard is that the discovering party

must show that he cannot obtain the materials sought through

his own eflorts. • (See Advisory Committee Hotc, sunra,

pp. 157-1^8.) As noted, no such showing has ever been attempted

by the state in my of the three water rights adjudications.

.Moreover, there is no reason to assume that such a showing

could be made, ."xperts en.ployed by the State Engineer are

certainly competent to make streair.flov: measurements on the

Ruidosc or analyses of ground water conditions in the Pojcaque

basin, Khile the United States acknowledges that the State

has a right under the Rules to information about the testimony

the Government's experts will offer at trial so that it can

prepare cross-examination and rebuttal; we do not believe that

the State can show a "substantial need" for these materials

in the preparation of its own affirmative case. For this

resson discovery of such information at this time would be

premature.

If nothing else, it is surely clear from these

considerations that the trial materials sought by the State

Engineer in the present case are not ir.tcr-agenc.y memoranda

which would "routinely be disclosed" (emphasis added) in

litigation with the Govermr.ent. The Supreme Court has expressly

adopted this language, taken from, the House Committee Report,

supra, as the standard to be applied in F.O.I.A. cases raising

Exemption 5- KIR3 v. Sears. Roebuck & Co., 1(21 U.S. at 1^9,

,<- 11/ n. lo . •

10/ A number of district courts have turned down requests to

produce expert reports prepared for litigation on just

these groun.is. See, c.-., Brct.'HIov* V, ••'^•icii Aircraft Corp..

57 F.R.D. 202 (II.D. MiLts., T)7,'); -Tlson v. flesh i c- k, 33

P.B.C. 510, 511 (E.D. ienn., 3«)70)*: '.'nTteri STaT^s v.

I'Vi.'il Acres, 'j-'i K.H.D. 359, 3'JO (::..:•. U-nn., I-','"3):

Soo'CoIosV v. Continental Inn. Co. . 63 F.R.D. li.3, il'*

Xii. mi;-; 197577^

11/ See also )>•••• vIn, Administrative T,aw Treatise, 1970 Supplement,

§3A.S1, pp. .'L7J7-15!', for more complete discussion to the

same effect.

-22-
105

Absent a finding by this Court that disclosure of these

documents in pre-tri.al discovery would be "routine", their

disclosure in this suit would be improper.

Finally, the United States urges that this Court

not atto:-.Dt to resolve in this case the question of whether

material prepared by the Government for use in other litigation

is presently discoverable by »n opposing party. The Supreme

Court has indicated that it does not look with favor on the

use of the P.0.1.A. as a "tool of discovery" in litigation,

when the Rules of Civil Procedure provide ample opportunity

for the adverse parties to obtain relevant information from

12/ the Government. •'

The State is free to utilize normal discovery

techniqv.es in each of the three pending water adjudications

to obtain documents it feels it must have for its trial

preparations. Should such discovery be attempted, and

resisted by the United States, the courts can then judge the

propriety of the State's request in the context of each

portlcul-r case. It v.'ould bo entirely inappropriate to order

production of these documents here and thus perr.it the State

to circumvent the orderly discovery procedures established

by both the Federal and the I.'ew Mexico Rules of Civil Procedure

12/ "Interference with the ar;ency proceeding opens the way

to the use of the FOIA as a tool of discovery, see

Searr RoBtmrk a Co. v. KTR3, ^33 F.2d 210. 211 (C.A. 5, 1970),

over aii.i b«y<).i.'i z::?.i provided by the regulations issued

by the Rene/ot iation I'o-'rd for its nroceodings. See 32

Chi 5Sl';80.1-l-';.c0.12 (1°72). Discovery for litigation

purpores is not an expressly indicated purpose of tb* Act."

(:.n.-.:'.:cti->i.:on Foard •/. ti'uwtercraft Co., Vl5 U.S. 1, at

B4 ami-)

-23-
106

COKCLUSIOil

For the reasons stated above, the Federal defendant

herein ur^es that sumary Judgment be Granted 'n his favor

pursuant to Rule 56, F.R. Civ. P.

Respectfully submitted,

VICTOjT R. ORTH571, ' >

United States .Attorney

Assistant U.S. Attorney

THIS WILL CERTIFY that a true

copy of the foregoing pleading

was railed to opposing counsel

of record this 13th day of

April-r>197ib} ..-

/

{ /•...•>ty>JO...

\s/;is':ant u\S; At to rn ey
107

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO ex rel.

S. E. REYNOLDS, State Engineer.

Plaintiff,

THOMAS S. KLEPPE, Secretary of

the Interior, United States

Department of the Interior,

Defendant.

CIVIL NO. 75-684 M

AFFIDAVIT

State of New Mexico )

) ss:

County of Bernalillo )

WILLIAM E. HALE, first being duly sworn, deposes and says:

I am the District Chief of the New Mexico District of the

United States Geological Survey, Water Resources Division. Our district

headquarters is located in Albuquerque, New Mexico. I have held my

present position since January 27, 1966.

On May 5, 19/5, I received a letter, dated May 2, 1975, from

Mr. S. E. Reynolds, the State Engineer of New Mexico. This letter made

reference to an "analog model" used by the Geological Survey to estimate

the ground water flov; "across a 12.5 mile section extending from the

southeast corner of the Tesuque Pueblo Grant to the northeast of the

Nambe Pueblo Grant." The letter requested "a copy of the study together

with criteria used to determine the analog model." The letter also

requested "copies of any USGS hydrologic data, studies and/or reports

collected or completed since 1970 involving the Pueblos of Nambe,

Pojoaque, San Ildcfonso, Tesuque, and Taos, the Jicarilla Apache Reservation, the Mescalero Apache Reservation and/or the Navajo Reservation."

BxkCtit fi
108

Upon receipt of this letter, I asked members of my staff to

begin to determine the materials which might be covered by Mr. Reynolds'

request. I contacted the Albuquerque Area Office of the Bureau of

Indian Affairs about this request because most of the data to which it

referred was prepared at their instance. X also contacted Mr. Lotario

Ortega, the Albuquerque Field Solicitor of the Department of the Interior

because I knew that at least some of this material was related to matters

in litigation.

By a memorandum dated May IS, 1975, Mr. Ortega furnished me

his advice about this request, advice on which I then acted. Mr. Ortega

advised the release of the analog model study requested in the first part

of Mr. Reynolds' letter. A discussion of this analog model, and a summary

of its results, was included in a study prepared by Mr. F. C. Koopman,

formerly of ray office, entitled "Estimated ground-water flow, volume of

water in storage, and potential yield of wells in the Pojoaque River

drainage basin, Santa Fe County, New Mexico." This study was requested

by the Bureau of Indian Affairs in September 1969 in connection with a

water rights adjudication in the Pojoaque River. This drainage basin

encompasses the lands of four of the Indian pueblos referred to in

Mr. Reynolds' letter: Nambe, Pojoaque, Tesuque, and San Ildefonso.

The analog model and its results were described in a draft environmental impact statement prepared in connection with a lease of lands

at Tesuque Pueblo. Because this statement had been widely circulated,

Mr. Ortega advised me that any privilege which the Government might claim

with respect to the analog model study had probably been waived. Accordingly, I forwarded a copy of the study to Mr. Reynolds by letter of

May 20, 1975.

With respect to Taos Pueblo and the Navajo Reservation, I advised Mr. Reynolds that no work had been done for litigation purposes and

that he was free to inspect and copy the limited investigations into

domestic water supplies on these two reservations which we had made for the

Public Health Service. With respect to all other studies, however, Mr. Ortega
109

advised me that, as they had been prepared for use in water rights litigation, they should not be released. 1 so informed Mr. Reynolds in my

letter of May 20, 1975. The letter of May 2, 1975, from Mr. Reynolds

was treated as an ordinary letter of Inquiry at that time.

> During the next several weeks, certain additional information

came to my attention which our office had prepared concerning the

Mescalero Apache Reservation and which did not relate to matters In

litigation. This information included an analysis of the. effects of road

construction on a spring near Mescalero and suggestions for locating and

developing stock wells. This material was made available to Mr. Reynolds.

During the last weeks of May and early June 1975, I was Informed

by the field solicitor that certain additional materials, which, had been

prepared at the request of the Bureau of Indian Affairs for use in water

rights litigation, might nevertheless be released to the State Engineer.

This material included data on the water supply in Dulce Canyon on the

Jicarilla Apache Reservation, together with a check on the capacity curve

of Dulce Reservoir. On this advice we also released two other reports

which had been prepared for the adjudication of the Pojoaque River:

"Estimated mean-monthly and annual runoff at selected sites in the Pojoaque

River drainage basin, Santa Fe County, New Mexico," by Louis J. Relland;

and "Estiamted availability of surface and ground water in the Pojoaque

River drainage basin, Santa Fe County, New Mexico," by Messrs. Reiland and

Koopman.

This meant that as of June 11, 1975, in a letter signed by

T. J. Lyons, Acting Assistant Director of the Central Region of the

U.S. Geological Survey in Denver, Colorado, the following reports prepared

by this office and considered within Mr. Reynolds' request were withheld

from release: (1) A proposal for a study of surface and ground water

resources on the portion of the Jicarilla Apache Reservation drained by

tributaries of the Charaa River; (2) Two similar proposals for studies of

the water resources of the Mescalero Apache Reservation, together with

miscellaneous stream flow measurements made on or about May 13, 1974;

(3) A report on a digital model evaluation of ground water availability

75-358 O - 76 - 8
110

within the Pojoaque River Basin, together with certain related test

results and intra and interagency memoranda concerning the model. In

the following paragraphs I will explain the nature of the materials

withheld and the background of their preparation, to the extent of ray

personal knowledge.

1. "Plan for a Study of Part of the Jicarilla-Apache Indian

Reservation" by J. L. Kunkler and A. G. Scott.

In October 1973, Mr. John Carver of the Albuquerque Area Office

of the Bureau of Indian Affairs requested that our office make a study

of the ground and surface water resources of the portion of the JicarillaApache Indian Reservation located within the watershed of the Charaa River

in northern New Mexico. In response to this request, our office, indicated that because of the lack of data and previous studies in this area,

it would first be wise to prepare a planning study to indicate the current

availability of data and the problems that would be involved in making

a full-scale water resources study. The report here in question was

designed to meet this limited objective and was completed In April 1974.

This report summarizes and evaluates the existing information on the water

resources of this area and proposes a plan of study to meet the BIA's

objectives. The report outlines the time-frame for such a study, manpower

needs, and the costs that would be involved.

Following introductory pages (including a table of contents,

location map, and background summary), this report contains a general

description of the topographic and geologic features of the area proposed

for study. The following section summarizes breifly previous investigations

which have been made in the area. Another section then summarizes the

available information derived from oil wells and test holes which have been

drilled in this area. The next section summarizes the existing information

concerning the chemical analysis of surface waters in the study area.

There then follows a critical evaluation of the accuracy and

comprehensiveness of the existing data. The report discusses the extent

to which basic questions about the water resources of this area can be
Ill

answered and indicates probable ground water yield of the various geologic formations underlying this area based on existing information.

The report concludes with a section summarizing a plan for a

more comprehensive water resources study for this part of the JicarillaApache Indian Reservation. The report indicates various alternative

approaches which might be taken in studying water availability, indicates the cost associated with each approach, the time and manpower needs

required by each and the value of taking these alternative steps.

2. (A) Proposal for Studies of the Water Resources of the

Mescalero-Apache Indian Reservation, Otero County,

New Mexico, July 1974.

This preliminary report was prepared at the request of the

Mescalero-Apache Tribe and the U.S. Bureau of Indian Affairs made on

June 20, 1974. The purpose of the request was to have the Geological

Survey outline the existing state of knowledge concerning the water resources of the reservation and suggest steps which should be taken to

improve this information.

This report includes a brief discussion of the scope of previous investigations of hydrologic and geologic conditions on the reservation and indicates the surface stream gauges that have been maintained on

or in the vicinity of the reservation.

The report then briefly outlines the areas in which additional

data are needed and suggests certain general steps vhich might be taken

to increase the available information. The report also includes an

indication of the manpower that would be necessary to complete the studies

that it suggests and indicates the total costs which might be involved.

2. (B) Techniques and Data Requirements for Estimating the

Water Availability on the Mescalero-Apache Indian

Reservation, Otero County, New Mexico, January 1975.

This report was, again, prepared at the request of representatives

of the BIA and the Mescalero-Apache Tribe made during meetings on

December 10 and 11, 1974. The report is essentially an expanded discussion

of many of the same topics covered in the earlier proposal relating to this

reservation.
112

This report includes a discussion of the basic topographic

and geologic features of the reservation. It then summarizes preliminary estimates of the availability on the reservation of both surface

and ground water and discusses the estimates of the chemical quality

and sediment load of these waters. Because of the need for additional

data in all these areas, these preliminary estimates were somewhat

speculative in nature.

With respect to surface water availability, ground water availability and the quality of water supplies, the report then discusses the

nature and comprehensiveness of the existing data that is available and

indicates analyses which could be undertaken based on that existing data.

It also indicates in some detail methods by which the additional data

could be gathered during a 5-year period of future study. The report then

sets forth a program for the collection of additional data concerning

both quantitative and qualitative aspects of the water resources of the

Mescalero-Apache Reservations. The program includes specific techniques

that might be utilized over specified time periods. The report also

indicates the benefits which could be obtained as a result of the study

program outline.

2. (C) Miscellaneous Stream Flow Measurements Made on the

Mescalero Apache Indian Reservation.

Some weeks prior to May 13, 1974, the Mescalero Tribe indicated

to our office that they planned to operate a pumping station on the

Rio Ruidoso within the reservation boundary and asked us to make measurements of the streamflow above and below the diversion. The purpose was to

determine the diversion rate of flow. The request was concurred in by the

Bureau of Indian Affairs, and the measurements were made on or about

May 13, 1974.

3. (A) Digital Model Evaluation of a Plan to Withdraw Ground

Water in the Pojoaque River Basin, by G. A, Hearne and

F. C. Koopman, August, 1974.

In the last part of February or early March, 1974, a meeting was

held in my office to discuss the work which we had done for the Bureau of

Indian Affairs during the preceding several years in connection with the
113

adjudication of water rights in the Nambe-Pojoaque-Tesuque watershed

in North-central New Mexico. Attending the meeting were two members

of my staff, James Cooper and Frank Koopman, two representatives of

the BIA, John Baker and Loyd Nickelson, and Mr. William Gookin, a

private consultant in hydrology who had been retained by the BIA. At

this meeting we reviewed the reports concerning the Pojoaque basin which

had previously been prepared in our office at the request of the Bureau

of Indian Affairs for use in this proceeding:

(a) "General Geology and Hydrology of the Pojoaque

Area, Santa Fe County, New Mexico" by

Frederick D. Trauger,

(b) "Estimated Mean-Monthly and Annual Runoff at

Selected Sites in the Pojoaque River Drainage

Basin, Santa Fe, New Mexico" by Louis J. Reiland,

(c) "Estimated Availability of Surface and Ground

Water in the Pojoaque River Drainage Basin,

Santa Fe County, New Mexico" by Louis J. Reiland

and Francis C. Koopman,

(d) "Estimated Ground-Water Flow, Volume of Water

in Storage, and Potential Yield of Wells in the

Pojoaque River Drainage Basin, Santa Fe County,

New Mexico" by F. C. Koopman.

These reports, in their final form, have been made available to the

State of New Mexico.

There was considerable discussion at this meeting of the possibility of our office making a more comprehensive study of the availability

of underground water in the Pojoaque River basin. At that time the

question was raised, primarily by Mr. Gookin, whether the Geological Survey

could undertake a computer-model analysis to predict the effects of

ground water withdrawals on the water table in this area. We discussed

the fact that similar computer models had been developed by the Geological

Survey, universities, etc., to analyze the effects of ground water use

in many other watersheds.

After this meeting I asked members of my staff to investigate

the possibility of adapting a ground water computer model to the Pojoaque

area. In early March, Mr. Glenn Hearne, a mathematician on our staff in

Albuquerque, outlined to me the possibilities of using a particular
114

mathematical model for the purposes 1 had indicated, utilizing a computer

located at Kirtland Air Force Base in Albuqueruqe. On or about March 22,

1974, Messrs. Koopman, Hearne, and I conferred with representatives

of the BIA (including, I believe, Messrs. Nickelson, Baker, and John

Carver) concerning the nature, potential value and cost of a computer

model of the Pojoaque basin.

On March 29, 1974, we were contacted by Mr. Baker of the BIA

and asked to begin work on such a model. The BIA was to provide funding

and immediately furnished this office with data in the nature of a ground

water devleopment plan. This plan indicated a number of wells, which were

located on a map, and set forth the rate at which each well would be

pumped. This information, which was revised several times, was imputed

to the model with the intent of developing an approximate indication of

the effects of such ground water withdrawal at the end of given periods

of time.

Between March and August 1974, when this report was completed,

we made a number of computer runs in connection with this model utilizing

various assumptions and seeking to refine our analysis. We had the

advice of employees of the Geological Survey from both our Regional Office

in Denver and the Survey's headquarters in Reston, Virginia. We had

numerous meetings concerning the results of our analysis and the nature

of the techniques and assumptions employed with representatives of the

BIA, their consultants, attorneys representing the four Indian Pueblos

involved in the water rights adjudication, and attorneys from the Department of the Interior and Department of Justice. As indicated, the costs

of this modeling effort have been borne by the Bureau of Indian Affairs.

The model employed is designed to take certain assumed rates

and locations of ground water withdrawal and combine this information

with certain assumptions about the physical properties of the aquifer

under study in order to make general predictions about the effects of such

withdrawals on the contours of the area water table and on the flow of

nearby streams. The model utilizes a rectangular grid of node points
115

which is superimposed on a map of the area to be modeled. In our case

the nodes were spaced one-half mile apart in the area of the Pojoaque

basin and somewhat farther apart outside the basin.

At each node we entered certain assumptions about the physical

properties of the ground water aquifer at that point. We entered

figures for (a) the saturated thickness of the aquifer at that point,

(b) its "transmissivity" (the ability of the aquifer to transmit water),

and (c) a "storage coefficient" (a ratio indicating the volume of water

the aquifer will release per unit volume of dewatered sediments). We also

entered assumptions as to conditions at the boundaries of the model.

Finally, we entered the projected rates of pumping (provided by the

Bureau of Indian Affairs) at each appropriate node. The computer was

then programmed to calculate the effect of this pumping over given periods

of time (in our case for 10, 50 and 100 years) on the water table at

each node.

The values chosen to represent the hydrogeologic parameters

of the Pojoaque aquifer in this model, as outlined above, were based

primarily on the information set forth in the four reports concerning this

basin (mentioned previously) which have already been provided to the State.

We did make various runs of the model with a range of assumptions as to

the physical parameters in order to test the sensitivity of the results

to various assumptions.

During the development of the model, a major concern of all parties

involved was that there was insufficient aquifer data available to set the

physical parameters accurately. For this reason, certain limited tests

were made in June of 1974 to develop further information. Infiltration

tests were made on the alluvial surface in places along the Pojoaque River

to obtain information on the infiltration capacity of the soil. Although

the information was not used, it was considered for use in estimating recharge to the ground-water system primarily as a result of flood flows.

Temperature profiles of the water in selected wells was made for the purpose
116

of using heat flow approach as an Indicator of hydraulic conductivity.

The data gathered were not definitive enough to use in setting the model

parameters, however. Finally, neutron moisture logs were obtained ia a

few wells for the purpose of estimating the specific yield of the sediments. The logs were made on ordinary wells not specifically designed

for this kind of data acquisition. The results were deemed too poor for

use in estimating specific yield and hence were not utilized in the model.

3. (B) Memoranda concerning the Pojoaque basin model

written by Geological Survey personnel to the

files, to other members of the Survey, and to

the Bureau of Indian Affairs.

In addition to the Pojoaque basin computer model study itself,

we have withheld a number of memoranda and letters in our files which

reflect the evolution of this study from the first request by the

Bureau of Indian Affairs. This material consists of three sorts of

items: memoranda to the files by staff members of Albuquerque District

Office of the Survey; memoranda from employees of other offices of the

Survey itself (i.e., our Regional Office in Denver and Headquarters in

Reston, Virginia) containing evaluations of our modeling efforts and

suggestions for various refinements; and letters by staff members here

in Albuquerque to the Albuquerque Area Office of the BIA transmitting

the results of several intermediate computer runs. They consist mostly

of evaluation and criticism of the techniques, approaches and assumptions

used in the model and summary of results cited in letters of transmittal

to the BIA.

^;Aw zsdtu

1976.

WILLIAM E. HALE

SUBSCRIBED AND SWORN to before me this / - day of Mztt-t

--_itota^ry Public JA

My coimiission expires:

My Gan*ir?«*!43 rx-'*f?s >V.\ T\ !*7?
117

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO ex rel,

S. E. REYNOLDS, State Engineer

Plaintiff,

THOMAS S. KLEPPE, Secretary of

the Interior, United States

Department of the Interior

Defendant.

CIVIL NO. 75-684 M

AFFIDAVIT

State of New Mexico )

) ss:

County of Bernalillo )

JOHN E. CARVER, being first duly sworn, deposes and says:

/ I am the Area Natural Resources Manager in charge of the Branch of

Land operations for the Albuquerque Area Office of the Bureau of Indian Affairs.

I received a B.S. degree in Agricultural Engineering from New Mexico State

University in 1951 and have had extensive experience in the natural resource

field including agricultural and irrigation engineering, soil and moisture

conservation and water resource evaluation and development. I have been employed by the Bureau of Indian Affairs since 1957 in various locations in

New Mexico and Colorado and have been Natural Resources Manager for the

Albuquerque Area since November 1972. In that capacity I have been responsible

for supervising the work of Bureau employees helping to prepare the defense of

Indian tribal water rights as they have become involved in litigation. The

responsibility of this office extends to all Indian reservations within

New Mexico, except the Navajo, and to the Southern Ute and Ute Mountain Ute

Reservations in southern Colorado.

In early May, 1975, I was informed by Mr. William Hale, Chief of

Albuquerque District Office of the U.S. Geological Survey, that the New Mexico

State Engineer, Mr..S. E. Reynolds, had asked hira to make available studies

- and reports prepared since 1970 with respect to the water resources of some

of the Indian reservations in the State. I am familiar with most of the
118

material within the scope of Mr. Reynolds' request and have usually been responsible for requesting such data and reports from the Survey.

I understand that four reports, together with certain memoranda

and test results, have ultimately been withheld from Mr. Reynolds on grounds

that they were prepared for use by the Government in litigation involving

Indian water rights. I an familiar with the background of these matters.

In the following pages I will discuss each of these subject areas in turn.

1. Plan for a study of Part of the Jlcarrilla

Apache Indian Reservation

I was transferred to the Albuquerque Area Office shortly after it

was established in the spring of 1966. (The area office for all New Mexico

and Colorado reservations had previously been located in Gallup, New Mexico.)

From that time until becoming Natural Resources Manager tn November 1972, I

was Area Conservation Engineer and Supervisory General Engineer for the

Albuquerque Area Office, Branch of Land Operations.

On assuming my duties in the Albuquerque office, I learned that

the State of New Mexico had recently filed suit to adjudicate water rights

along a number of the tributaries to the Rio Grande in northern New Mexico

as a prerequisite to administering water to be imported into the Rio Grande

Basin via the San Junn-Charaa Diversion Project, then under construction. We

were informed that the State intended to adjudicate the rights of Indian

tribes located along these streams along with the rfghts of all private

parties. The largest of the streams to be adjudicated was the Rio Chama,

which includes a part of the Jlcarilla Apache Reservation within its watershed .

We understood at that time that the Rio Chama was already being

adjudicated in state court (without the presence of the Indian tribes or the

United States as parties). In the Spring of 1969, however, we received copies

of pleadings and were informed that the.United States had intervened in the

Chama adjudication and that it had been removed to federal district court

(State of New Mexico v. Aragon, et al., Civil No. 7941, U.S.D.C. N.M.). At

approximately the same time, we understood that the United States had intervened in several of the other tributary suits where either it had interests

or the interests of Indian tribes were involved. We were informed that the

rights of the United States and Indian tribes in the Pojoaque drainage just
119

north of Santa Fe would be the first to be adjudicated and that the government and Indian rights in the other watersheds would be adjudicated subsequently. For that reason we obviously put frist priority on preparation for

the Pojoaque case (State of Sew Mexico v. Aamodt, Civil No. 6639).

> In the fall of 1973, however, we determined that It would be adi

visable to gather hydrologic information concerning that portion of the

Jicarilla Reservation located in the Chama watershed. We therefore forwarded

a request to the Albuquerque District Office of the Geological Survey, asking

them to review the existing information concerning the hydrogeology of this

area and to formulate a plan to gather more extensive information. This

work was completed in April, 1974, when the report here in question was forwarded to our office. As indicated, the report was entitled "Plan for a

Study of Part of the Jicarilla Apache Indian Reservation." We have not yet

taken further steps to carry oat the study program outlined in the Survey's

report.

Our decision to request this preliminary report from the Geological

Survey was entirely the result of our awareness of the need to begin preparations to assert the vater rights of the Jicarilla Apache Tribe in the Chama

adjudication. Even though studies of this nature are considered desirable

for all the Indian reservations under the jurisdiction of the Albuquerque

Area Office, budgetary limitations have meant that they can generally only

be funded for use in pending or expected litigation.

2. Proposals for Study of the Water

Resources of the Mescalero Apache Reservation

In December of 1973, I was contacted by Mr. Lotario Ortega, the

Field Solicitor in Albuquerque for the Department of the Interior, and informed that a petition had been filed in the state district court for Chaves

County, Hew Mexico, to adjudicate the waters of the Rio Hondo and its tributaries in southeastern New Mexico. I was told that this petition had been

filed in connection with the adjudication of the rights to use ground waters,

in the Roswell Artesian Basin, which had previously been completed, on the

grounds that the Rio Hondo was a major source of supply to the ground water

of that Basin. I later received a copy of an order of the district court

indicating that motion to file this petition had been granted on January 10,

1974.
120

A primary tributary of the Rio Hondo is the Rio Ruldoso, which

arises in part on the Hescalero Apache Reservation. I was told that the

United States had already been a party to the Roswell Basin adjudication and

that expanding that suit to cover the Rio Hondo and its tributaries night

mean that the United States would have to assert the water rights of the

Mescalero Reservation.

During the winter of 1973-74 the Mescalero Apache Tribe constructed

a pump station on the Rio Ruldoso within the Reservation to divert water

across a divide to the drainage of Cieneglta and Carrlzo Creeks, where it has

(together with natural runoff) *

since been used to fill a reservoir constructed by the Tribe as part of a recreation complex. After the order was entered extending the Roswell Basin

adjudication to the Rio Hondo and its tributaries the State of New Mexico

sought .a preliminary injunction against the United States to prevent the

Tribe from pumping water from the Ruldoso. (The State's motion was subsequently denied).

On January 29, 1974, a meeting-was held In our office In Albuquerque

to discuss this situation. Attending were Wendell Chino, the President of the

tribe; several members of the tribal council; Mr. George Fettinger, the tribe's

attorney; Mr. Donald Redd, an attorney with the Department of Justice assigned

to this case; Field Solicitor Ortega, myself and several members of my staff.

It was suggested at this meeting that, while the United States would probably

resist efforts to have the state court exercise jurisdiction over the tribe's

water rights, the time might come fairly soon when tribal rights to water in

the Hondo drainage (and possibly other parts of the reservation) would be

determined in some court proceeding. Mr. Redd urged that work be started as

soon as possible to assess the water resources of the reservation as veil as

the potential water requirements of the Tribe. It was assumed that such a

study would take several years to complete. Although it was recognized

that the Rio Ruldoso (the subject of the pending suit) drained only a portion

of the reservation, it was felt advisable, for purposes of developing a study,

to treat the reservation as a whole. However, priority would be placed on

developing Information concerning the Ruldoso.

As a preliminary to undertaking a full-scale study of the tribe's

water resources, it was determined that the U.S. Geological Survey should be

asked to review the curr. hydrologlc information available concerning the
121

reservation and make recommendations for further study. Mr. Hale of the

Survey's Albuquerque office was contacted during January, 1974 about this

matter. I explained at the time that we were seeking preliminary advice from

the Survey about the scope of a study which would later be used to help establish the tribe's water rights in court.

Later in the spring of 1974 the Tribe began to operate the pumping

station on the Ruidoso. Because of the controversy surrounding this pumping

(including the State's unsuccessful effort to have it enjoined), it was felt

advisable to obtain accurate measurements of the pumping'.s effect oa the

streamflow. The Geological Survey was asked to make streamflow measurements

both above and below the diversion site for this purpose. These measurements

were made on or about May 13, 1974.

On June 20, 1974 members of the Survey met with tribal officials

and myself to discuss a water resources study. At that meeting we made it

clear to Mr. Frank Koopman of the Survey that the preliminary study was required to protect the Tribe's water rights in court proceedings. The Survey

agreed to undertake this study, and a draft report was received on July 18,

1974. The report was entitled "A proposal for studies of the water resources

of the Mescalero Apache Reservation, Otero County, New Mexico," and dated

July, 1974.

After receipt of the Survey's first report, discussions continued

concerning preparation of a complete evaluation of the tribe's water resources

and requirements. On December 10 and 11, 1974, a meeting was held in the

Mescalero Tribal Office of Mescalero to review and consider proposals by

private consultants to carry out the complete study. Mr. Hale of the Survey

was in attendance along with tribal officials, members of my staff, and

Mr. Redd of the Department of Justice.

At this meeting it was determined that the Geological Survey would

refine and expand their report of July, .1974 and outline in greater detail

procedures that might be followed to evaluate the reservation's water resources. At this meeting it was again recognized that the tribe's water

rights in the Rio Ruidoso were already in litigation and that the rest of

the reservation would probably be adjudicated in time. While it was also

recognized that these studies would be useful to the tribe and Bureau of

Indian Affairs for management purposes, everyone involved with this study
122

recognized that the existence of pending litigation gave urgency to this

undertaking. The expanded report was received from Geological Survey in

January, 1975. .. •

3. Digital Model Evaluation of Potential Ground

Water Withdrawal in the Pojoaque River Basin.

As I have mentioned, I was informed that water rights adjudication

suits had been commenced by the State on certain Rio Grande tributaries in

the spring of 1966. The United States intervened in the adjudication of the

Nambe-Pojoaque-Tesuque water shed (State of New Mexico v. Aamodt) soon

after it was begun. There are four Indian pueblos whose rights are involved

in the Pojoaque case: Nambe, Pojoaque, San lldefonso, and Tesuque. Since

mid-1966, 1 have been actively engaged in helping to prepare technical materials needed to substantiate the water rights claims of the four pueblos.

In January of 1974, The Albuquerque Area Office approved a contract

with an organization formed by five of the northern Indian Pueblos which

would permit the organization to retain legal counsel and expert technical

help to review the preparations which the United States had made in this

water rights adjudication. Pursuant to that arrangement, the organization,

called the Northern Pueblos Tributary Water Rights Association, entered into

a contract with Mr. William S. Gookin of Phoenix, Arizona, a consulting

hydrologic engineer. During February of 1974, Mr. Gookin met several times

with myself and other members of my staff and reviewed the preparations we

had made to present evidence relevant to the four pueblos* water rights

claims. In particular we reviewed the engineering plan developed by my staff

outlining the lands on each of the pueblos which we found to be "practicably

irrigable" (the measurement of Indian tribal water rights adopted by the

Supreme Court in Arizona v. California).

From the outset Mr. Gookin was concerned that we acquire greater

knowledge of the extent to which ground water might be available for use by

the four pueblos and whether additional lands might be classed as practicably

irrigable if ground water were used for irrigation. He suggested that we

discuss with the Albuquerque District Office of the Geological Survey the

possibility of their undertaking a computer model study to assess the potential effects of pumping ground water in the Pojoaque area.
123

In March 19 74, Messrs. Loyd Nickelson and John Baker (also of the

B1A) joined Mr. Gookin and me in several meetings with Mr. William Hale and

other representatives of the Geological Survey to discuss the advisability

of such a modeling effort. After consultations with the attorneys representing tne pueblos and attorneys with the Department of the Interior and Department of Justice, we decided to request that the Survey undertake to develop

a model of this nature. By letter dated April 1, 1974, our office authorized

Mr. Hale to go forward with the modeling effort.

At that time we furnished to the Geological Survey a map (derived

from our irrigation plan) indicating the proposed location of a number of

wells to serve the irrigable lands of the four pueblos. We also submitted a

proposed schedule of pumping rates for these wells. We asked that the Survey

use this data, together with assumptions about the characteristics of the

aquifer based on existing data, and predict the changes in ground water

levels which might be expected as a result of this pumping over a period of

10, 50, and 100 years. This information was vital in preparation of our

irrigation plan for the pueblos; the feasibility of irrigating these lands

with ground water would depend in part on the pumping lifts involved. Since

those lifts would be affected over time by ground water withdrawal, it was

important to have an estimate of the effects sustained pumping might have

on the local water table.

The Bureau of Indian Affairs was to assume the cost of this effort,

and a purchase order to this effect was forwarded to Mr. Hale in early April.

I have attached to this affidavit a true copy of Voucher No. 4635-0071-43-74,

dated June 12, 1974 (a carbon copy of which was retained in our office), by

the authority of which funds were actually transferred from the account of

the Albuquerque Area Office of the Bureau of Indian Affairs to the Geological

Survey for the first phase of this model study. The voucher specifies that

payment is made "for data furnished in connection with Nambe-Pojoaque Water

Suit, Civil No. 6639." - -

After this work was requested, in March of 1974, until it was completed, in August of the same year, I attended numerous conferences with representatives of the Geological Survey and attorneys involved in this proceeding

concerning the techniques and assumptions used in the model and assessing the

results of a number of separate computer runs. It was plainly discussed at
124

each of these meetings that this work was being dona aa an aspect of the

preparation for the adjudication of the four pueblos' water rights.

One problem repeatedly discussed was the fact that the Geological

Survey did not feel that sufficient Information was available to use more

than a broad range of values to represent the physical properties of the

aquifer in the model. We recognized the need for additional data but believed at that time that all materials relating to the trial had to be available for submission to the Court on August IS, 1974. It was agreed that certain limited tests be conducted in an attempt to better define the parameters.

In response to this request the Survey conducted Infiltration testa at a

number of sites in the Fojoaque Basin and also ran temperature and neutron

moisture logs of several wells in the area. It is my understanding that the

results of these tests were not considered sufficiently definitive to use in

the model.

1976.

E. CAlfvER

tl ( AW*-< * * *

SUBSCRIBED AND SWORN to before me this 7 ~ day of 6f.-U?Jf?£

Notary Public

My commission expires:

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75-358 O - 76 - 9
126

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO ex rel.

S.E. REYNOLDS, State Engineer,

Plaintiff",

vs. CIVIL NO. 75-68'4 B

THOMAS S. KLEPPE, Secretary of

the Interior, United States

Department of the Interior,

Defendant.

AFFIDAVIT •

IN THE DISTRICT OF COLUMBIA:

DONALD W, REDD, being first duly sworn, deposes and

says:

S1aM .cly •», \Cf(7y I h*oe 4*«*v «. trial ,?*tor*?y >i\

KJV Justice, in uhat capacity i riiive oc^n responsible i'or

preparation of the United States' position in three water rights

adjudications in the State of Kew Mexico: State of New Mexico v.

Aragon, U.S.D.C. N.M., Civil Ho. 79^1 (adjudication of the Chaoa

River and its tributaries); State of New Mexico v. Lewis, New

Mexico District Court for Chaves County, Kos. 20294 and 22o00

(Roswell Artesian Basin, extended to Rio Hondo and its tributaries); and State of New Mexico v. Aamodt, U.S.D.C. N.M., . , ••

Civil No. 6639 (Rio Pojoaque). In each of these cases the

United States is representing the water rights of Indian tribes

whose reservations lie in whole or part within the drainages

being adjudicated. The Jicarilla Apache Reservation and San

Juan Pueblo are both partly within the drainage of the Rio

Charaa (State of N.M. v. Aragon), the Mescalero Apache Reservation

is on the Rio Ruidoso, a tributary of Rio Hondo and thus Included

in Lewis; and the Pueblos of Nambe, Pojoaque, San Ildefonso and

Tesuque are included in Aamodt.

In May, 1975, I was advised by Mr. Lotario Ortega,
127

the Albuquerque Field Solicitor for the Department of the , •

Interior, that Mr. S. E. Reynolds, the New Mexico State Engineer,

had requested that the Geological Survey make available to him •

all reports and studies prepared by the Survey since 1970 in

connection with most of the New Mexico Indian reservations.

It is my understanding that, while a number of reports were

made available to the State, a total of four reports, together

with certain memoranda^and field measurements, were not released.

Those reports relate to the water resources of the Jicatrilla

Apache Reservation, the Itescalero Apache Reservation, and the

four Indian pueblos located in the-Pojoaque drainage. I am

personally familiar with the circumstances in which the

Geological Survey was requested to make these studies and I

will discuss each of them in turn.

1. Plan for a-StU!& Of P*-r* of *A« Jicarilla

(SatEi fckoaaSUa

adjudication of the Chama River in the Hew Mexico District.Court

for Rio Arriba County. On March 5, 19°9j this adjudication

was removed to the United States District Court for the District

of New Mexico as Civil No. 79^1. At that time the United States

was permitted to intervene as a plaintiff and filed a complaint

in intervention asserting water rights for the Jicarilla Apache

Tribe and the Pueblo of San Juan from the Chama River.

By agreement with the State of New Mexico, no steps

have been taken to adjudicate the rights of the United States

or the Indian tribes along the Rio Chama pending resolution, in

the Pojoaque adjudication (State of New Mexico v. Aamodt), of

certain basic legal questions common to both cases. This

arrangement was discussed With Field Solicitor Ortega and with

Mr. John Carver and others of the Albuquerque Area Office of the

Bureau of Indian Affairs. In these discussions it has always

been clear that the water rights of the Jicarilla Tribe in the

Chama watershed would eventually be adjudicated.
128

Because the Pojoaque adjudication was to go to trial

first, the Bureau of Indian Affairs has focused its efforts on '

preparing that case. However, with my encouragement, the

Bureau in the fall of 1973 did ask that the Geological Surveybegin to prepare a hydrologic study of that portion of the

Jicarilla Reservation within the Chama drainage. It is my

understanding that the study now in question was prepared in

response to that request. . ,.

2. Proposals for.Study of the Water Resources

of the Mescalero Apache Reservation

... In. the fall of 1973 I represented the United States

in working out a stipulation with the State of New Mexico as

to the rights to ground water of the United States in the

Roswell Artesian Basin. Suit to adjudicate ground '.-rater rights

ir> this basin had been filed in 1955 (S":3.~e of :.'°'.J Mexico v.

lgu>'"5, eta).), arv<ien+v^ o-P 4U« &4'.fu\a\Ui\. Cwr\fltV«i "thai

However, in Dece.-r.ber of 1973, the Department of

Justice was served with a petition filed by the Pecos Valley

Artesian Conservancy District and the State of New Mexico to

extend the Roswell Basin adjudication to include rights to use

surf<ice water of the Rio Hondo and its tributaries. The Hondo

is itself tributary to the Pecos River and was alleged to be a

major source of supply for the Roswell Artesian Basin. On

January 10, 197^, the District Court for Chaves County entered

an order extending the scope of the Lewis case to encompass

the Hondo.

The Rio Ruidoso, which arises in large part on the

Mescalero Apache Reservation, is a major tributary of the Hondo.

Later in January, 197^, the Department of Justice was served

with a motion for a preliminary injunction to prevent officials

of the Government from allowing diversion of water from the

Ruidoso for use on'the Mescalero Apache Reservation. It was

atmarent that the United States would either have to assert
129

water rights for the Mescalero Apache Tribe or challenge thejurisdiction of the state court to adjudicate ihose rights.

Late in January, 197^ I attended a meeting in the

Albuquerque Area Office of the BIA to discuss the position of

the Mescalero Tribe in this proceeding. In attendance were

representatives of the Tribe, the BIA, the Albuquerque Office

of the U. S. Geological Survey and the Albuquerque Field

Solicitor. I indicates that the United States would .probably

move to dismiss the case as~it related, .to the Tribe on grounds

that the state court -did not ..have jurisdiction to determine

Indian tribal water rights. I.advised, however, that the

water rights of the Tribe were likely to be adjudicated in

either state or federal court within the next few years, and

I suggested that work be commenced to inventory the water

reS««.*E*S 5-"d water naeiy of ttvcllfcSttilertJ CeSerUfcttOA ?-

3

soon

a& pess'i tie. He Aisv&ii* "th* Ste*-tH*.* ffa.J^w.^ case telfctcd

only to the Rio Ruidoso, .;:iicn urai.ni o.-iiy p-rt o: t:i3 reservation, but there was general agreement that the reservation

should be treated as a whole in studying its water resources.

It was determined at that meeting to ask the

Geological Survey to make a preliminary study of the current

status of water resources information concerning the Mescalero

Reservation and to make suggestions as to the scope of further

investigations. Arrangements for such a study were left in the

hands of the BIA.

At a hearing in April, 197^ the United States did

move to dismiss the case as it related to the Mescalero Reservation. This motion was granted and the State of Hew Mexico

appealed to the New Mexico Supreme Court. We advised the

Bureau of Indian Affairs to continue wort: with the Geological

Survey on the reservation's water rescu.vcev for it remained

our belief that the Tribe's water rights would be adjudicated

at some future time. (On February 9, 1976, the district

court's order of dismissal was in fact reversed and the case

remanded for proceedings on the merits.)
130

In December, 1974 I attended another meeting- at the

BIA office in Albuquerque at which proposals by private

consultants to undertake full-scale studies of the Mescalero

Reservation's water resources were considered. We reviewed at

that time a report of the Geological Survey dated July, 1974

outlining a study program for the reservation. It was my

understanding that that report was prepared as a result of our

meetings earlier in the year.

At the December, J,974 meeting, Mr. Hale of the Survey

offered to expand the Survey's July report so that it would

serve, as a more complete foundation for studies by a private

consultant. This second report was prepared and dated

January, 1975.

Throughout these meetings it was fully understood

V:.-z the Geological Swrv"V i-z relr- rii:ne-;i2! to c.t.line st-xiy

nex^s for "the Aesc4>r& 0>wwtC»n so"tK»i &4cU.je& CouU fcc

j^'»o;7iw ;o help egtoitfiak the.TVibe'.s UMftaf V.^hts iiv

judicial proceedings.

3. Digital Model of Pojoaque River Basin and

Related Memoranda and Test Results

Since 1958 I have been responsible for overseeing the

Government's preparation for trial in the Pojoaque River

adjudication (State of Me.v Mexico v. Aamodt). Beginning in the

summer of 1973, a second Department of Justice attorney,

Charles N. Estes, has been responsible for much of the liaison

in the field with the Bureau of Indian Affairs, under my

general supervision.

In February, 1974 Mr. Estes and I discussed certain

recommendations made by Mr. William Gookin, a private hydrologist retained as a consultant by the BIA to review the

preparations for this case. Chief among Mr. Gookin's suggestions

'.«as that the Geological Survey be asked to prepare a computer

modal of ground water conditions in the Pojoa.que River Basin.

The model was to analyze the effect on the water table and on
131

streamflows of ground water pumping by the four Indian pueblos

whose rights are being adjudicated.' Mr. Estes and I agreed

that this would be a useful tool of analysis and we suggested

that the BIA make arrangements with the Geological Survey for

such a model to be prepared.

As I understand it, the memoranda and test results

which have been withheld from the State Engineer are related

to efforts to refine frhis computer analysis. To. the_best of

my knowledge, all of this material was.prepared for ultimate

use in proving the extent of the four pueblos' water rights.

DBHKnJ './. RSiiD

SUBSCRIBED AMD SaOSS to before ir.e this day

rll, 1?7G.

notary ruoixc

My commission expires:
132

III THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO ex rel.

S.E. REYNOLDS, State Engineer,

Plaintiff,

CIVIL HO. 75-681; B

THOMAS S. KLEPPE, Secretary of

the Interior, United States

Department of the Interior,

Defendant.

AFFIDAVIT

STATE OF NEW MEXICO )

i SS •

COUNTY OF BERNALILLO )

CHARLES H. ESTES, JR., being first duly sworn, deposes

and says:

I am currently an Assistant United States Attorney for

the District of New Mexico and I wa3 formerly a trial attorney

in the Land and Natural Resources Division of the Department of

Justice in Washington, D.C. since October of 1972. Since that

time I have been assigned to help direct the trial preparations

for the United Statss in the case of State of New Mexico /.

Aainodt, Civil Ko. 6639. U.S.D.C. N.M. That case is in adjudication of water rights within the Kambe-Pojoaque-Tesuque stream

system in north-central New Mexico. The United States, as

trustee, is representing the interests of four Indian pueblos

located within that watershed: Nambe, Pojoaque, Tesuque and

San Ildefonso.

In January of 197^, I attended several meetings at

the Area Orfice of the Bureau of Indian Affairs in Albuquerque

to review the technical preparations which the Bureau had made

to support the pueblos' position in this lawsuit. Mr. William

Gookin, an engineering consultant, retained by the B3A to help

in thi3 review, raised a question as to whether more emphasis

ought to be placed on the use of ground water in preparing an

irrigation development plan for the four pueblos. Mr. Gooklll

suggested that we investigate the possibility of having the
133

Geological Survey develop a computer model to assess the ground

water potential of the Pojoaque area.

In March of 197^, I attended several additional

meetings in Albuquerque at which members of the Geological

Survey were present. They outlined the approach that might be

followed in a computer study of this nature and suggested the

benerit3 and limitations of such a study. They indicated that

a computer at Kirtland Air Force Base, in Albuquerque, might

be utilized.

After discussing this matter with my superiors in

Washington, I contacted Mr. John Carver of the BIA and indicated

that we felt that the development of such a model by the

Geological Survey would be highly beneficial in presenting the

four pueblos' water rights claims in the pending litigation.

Between that time (Karch, 197*0 and the completion

of the report in August, 197^, I attended a number of meetings

in Albuquerque to discuss progress on the computer model. On

a number of occasions I reviewed with the BIA the pumping

schedule they had submitted to the Survey. On many of these

occasions we discussed the fact that there was a serious absence

of data concerning actual subsurface conditions in the Pojoaque

Basin. In order to try to remedy this deficiency, the Geological

Survey conducted certain limited field tests in the summer of

1974. These tests were thus directly related to development of

the computer model.

At all times in discussion of the model with representatives of the BIA and the Geological Survey, it was recognized

that the results of this effort would be utilized by the United

Str.tes In establishing the four pueblos' water rights in the

pending adjudication.

CHAKLK3 H. ESTES, JR.

SUUCCRIBED AND SWORN to before me this /J(*. day of

April, 1975.

-/0Av.'/f.7/Y'./?:,•. COit't

HoTJvtyv. I ufal'IcT
134

UNITED STATES DISTRICT COURT

DISTRICT OF New Mexico

ALBUQUERQUE. NEW MEXICO 87103

ro*r i "i-t BOX •• •

L. MECHEM April 30, 1976 JUDGE

Mr. Paul L. Bloom

Special Assistant Attorney General

State Engineer Office

Bataan Memorial Building

Santa Fe, New Mexico 87501

Mr. James B. Grant

Assistant U. S. Attorney

P. 0. Box 607

Albuquerque, New Mexico 87103

Mr. Phillip R. Ashby

Ashby, Rose & Sholer

618 Manzano, N.E.

Albuquerque, New Mexico 87110

Mr. Calvin Hyer

Ussery, Burciaga & Parrish

P. 0. Box 487

Albuquerque, New Mexico 87103

State of New Mexico ex rel.

S. E. Reynolds v. Thomas S.

Kleppe, Secretary of Interior

No. 75-684-M Civil

Gentlemen:

I would not begin to consider the defendant's motion

for siummary judgment based on affidavits when the

plaintiff has no factual basis on which to refute

nor counter such motion and accompanying affidavits

and does not have the opportunity to counter nor

refute.

The affidavits at this point are at most conclusive

or recitals of opinion without factual basis.

The defendant will have to produce matters of substance

to avoid disclosure.

Sincerely,

L. Mechem
135

Mayl4, 1976

Honorable E. L. Mechem

United States District Judge

United States District Court

Albuquerque, Hew Mexico 87103

Re: State of New Mexico ex rel

S. E. Reynolds v. Thomas S. Kleppe,

Secretary of the Interior

No. 75-654 M Civil

Dear Judge Mechem:

This is in response to your letter to counsel

of April 30, 1976 concerning this case and In response

to plaintiff's motion filed on April 27, 1976 for denial

or continuance of defendant's motion for summary judgment.

In hopes of expediting decision in thi3 case, vie enclose

with this letter copies of a number of documents which

support the affidavits filed herein. We believe that these

documents indicate without question that the materials

requested in the present suit were prepared in connection

with water adjudications 'pending in this court, and in the

New Mexico District Court for Chaves County. A list of

these documents follows:

I. Documents related to "plan for a study of

part of the Jicarllla Apache Indian Reservation", dated

April, 1974.

1. Memorandum dated October 27, 1973 to

the District Chief, U. S. Geological Survey, Albuquerque,

from Area Director, Bureau of Indian Affairs, concerning

ground and surface water report for the portion of Jicarllla

Reservation within the Chama watershed, together with attached

map.
136

Honorable E. L. Mechea

May 14, 1976 Page 2

2. Requisition dated November 19, 1973

for reconnaissance water study.

3. Order dated November 20, 1973 for same

study.

4. Cover of April, 1974 Report and pages

2-7: Contents, Introduction, Location Map, Purpose of Study.

II. Documents concerning two proposals for

studies of the water resources of the Mescalero Apache

Indian Reservation, dated July, 1974 and January, 1975-

1. Letter of Introduction dated May 13, 1974

from Wendell Chlno, President of the Mescalero Apache Tribe.

2. Letter dated July 15, 1974 from

Francl3 Koopman, U. S. Geological Survey, Albuquerque, to

Wendell Chlno forwarding July, 1974 report (copy of this

.letter previously provided to the State).

3. Cover of July, 1974 report together with

page 3 from same, setting forth purposes of study.

4. Cover of January, 1975 report together

with pages 5 and 6 concerning the request for the study

and it3 purposes.

5. Letter dated March 5, 1975 from Pat Soule,

U. S. Geological Survey, Albuquerque, to Wendell Chlno,

summarizing work done by the Survey for the Mescalero Apache

Tribe.

6. Memorandum of Understanding between the

Bureau of Indian Affairs and the U.S. Geological Survey

to provide a basis for reimbursement to the Survey by the

B.I.A. for work performed by the Survey for the Mescalero

Tribe, Including $2,000 for the preliminary water supply

report previously furnished.
137

Honorable E. L. Mechem

Hay lb, 1976 Page 3

III. Documents concerning the "Digital Model

Evaluation of a Plan to Withdraw Ground Water In the

Pojoaque River Basin" dated August, 1974.

1. Letter dated January 29» 1974 from

William C. Schaab to W. S. Gookin & Associates, retaining

said firm for review of hydrologic evidence prepared for

the Rio Pojoaqua water adjudication suit (State v. Aamodt).

(This is the only contractual document entered Into between

the Northern Pueblos Tributary Water Sights Association

and Mr. Gookln.)

2. Memorandum dated April 1, 1974 to

Mr. William Hale, U. S. Geological Survey from Area Director,

Bureau of Indian Affairs, forwarding requisition for "simplified

digital model" of ground water level3 within the Pojoaqua

Basin, together with requisitions dated April 2, 1974 and

study outline dated March 26, 1974.

3. Letter dated August 12, 197* to U. S.

Geological Survey, Albuquerque, Hew Mexico, from Area

Property & Supply Office, B.I.A., enclosing Memorandum of

Understanding between the B.I.A. and the U.S.G.S. for

ground water studies dated July 1, 1974, together with

requisition therefor, dated August 8, 1974.

4. Cover sheet of Digital Model Evaluation

dated August, 1974 together with page 2 of said report

"introduction", (with numbers masked out).

We also enclose the certificate for Mr. John Carver,

Area Natural Resources Manager, Albuquerque Area Office,

Bureau of Indian Affairs, as to the authenticity of the

copies provided.

With respect to additional discovery la this case,

the United States would ll&e to respectfully suggest that

initial discovery be limited to interrogatories to the

defendant pursuant to Rule 33, Federal Rules of Civil Procedure.

We believe that this procedure would be appropriate in the

75-358 O - 76 - 10
138

Honorable E. L. Mechem

May 14, 1976 Page 4

instant case because of the danger that during deposition

material which is protected from disclosure under the

exceptions to the Freedom of Information Act would inadvertently be revealed. We feel confident that, through

submission of detailed interrogatories, plaintiff will be

able to obtain complete answers to any questions it may

have concerning the origin, nature and purpose of the

documents that have been withheld. Should plaintiff file

interrogatories and then prove to be dissatisfied with the

answers provided, the Court could at that time consider

ordering further discovery of some other means.

Sincerely yours,

VICTOR R. ORTEGA

United States Attorney

JAMES B. GRAOT

Assistant U. S. Attorney

JBO:bgm

Enclosures

cc: Peter Thomas White w/enclosures

Special Assistant Attorney General

State Engineer's Office

Santa Fe, New Mexico 87503
139

UNITED STATES DISTRICT COURT

DISTRICT OF New MEXICO

ALBUQUERQUE. NEW MEXICO 87103

TOFT cicr aox »-•

-. MECHEM

JUDGE

June 8, 1976

Mr. Paul L. Bloom

Special Asst. Attorney General

State Engineer's Office

Bataan Memorial Building

Santa Fe, New Mexico 87501

Mr. James B. Grant

Asst. U. S. Attorney

P. 0. Box 607

Albuquerque, New Mexico 87103

Mr. Phillip R. Ashby

Attorney at Law

618 Manzano, NE

Albuquerque, New Mexico 87110

Mr. L. Lamar Parrish

Attorney at Law

P. 0. Box 487

Albuquerque, New Mexico 87103

Re: State v. Kleppe

No. 75-684-M Civil

Gentlemen:

We had better proceed with dispatch to discovery

in this matter.

While interrogatories would assist me in ruling on

certain questions and the answers to them I understand

why depositions would be helpful here and discovery can proceed

in either manner.

If material is being proposed for litigation, I want

that fact clearly enunciated for future consideration and

for availability to the tribunal trying the case.
140

To all counsel of record -2- June 8, 1976

If challenge is raised, an in camera inspection,

will be held but this should be hald to matters of

real necessity.

I need more briefing on b(9) concerning geological

and geophysical information and data, concerning

wells. Are there any wells involved here that are

contemplated by the Act? I would assume this is more

applicable to oil and gas than to water wells.

The fact that water is migratory and not fixed in

place and that it is public and subject to capture for

beneficial use only and not outright ownership seems

to me to give everyone in the state some right to know

what is taking place and that geological data is being

compiled for each prospective use and user. This is a

question and not an assertion.

Sincerely,

Mechem
141

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO ex rel.

S. E. REYNOLDS, State Engineer,

Plaintiff,

THOMAS S. KLEPPE, Secretary of

the Interior, United States

Department of the Interior,

Civil Noil1 1^-.684£M f)

:

;\.rp su.rcs oisr.icr CCUTT

Defendant.

ORDER

This matter having come before the Court upon the

defendant's, Thomas S. Kleppe, Secretary of the Interior,

Motion for Protective Order, the plaintiff's. State of

New Mexico ex rel. S. E. Reynolds, State Engineer, Motion

for Order Compelling Discovery, the Court having heard oral

argument on said motions, the defendant's Motion for Summary

Judgment, the plaintiff's Cross Motion for Denial or

Continuance of Motion for Summary Judgment and Cross Motion

to Strike Motion for Summary Judgment and Annexed Affidavits,

the defendant having submitted by letter to the Court the

Certification by John E. Carver and documents numbered 1-1

thru 4, II-l thru 6 and III-l thru 4, and the Court being

fully advised in the premises,

IT IS ORDERED:

1. That the defendant's Motion for Summary Judgment be

and it hereby is continued in order to permit discovery to be

had by the plaintiff.

2. That the plaintiff's Motion for Order Compelling

Discovery be and it hereby is granted;

3. That the February 11, 1976 oral deposition of

William E. Hale be reconvened on July 1, 1976, at 9:30 a.m.

at a place convenient to the parties.
142

4. That no later than the day set for Mr. Male's

deposition the defendant file with the Clerk of the United

States District Court in separately marked and sealed envelopes

the non-disclosed reports which will be subject to such in

camara inspection as the Court may deem appropriate.

r^. i

UNITED STATES DISTRICT JUDGE
143

UNITED STATES DISTRICT COURT

OlSTIttCT or NEW MEXICO

ALBUQUERQUE. NEW MEXICO 87103

ro»r o.'jca BOX *7

L. MECHEM

JUOGC August 2, 1976

Mr. Paul L. Bloom

Special Assistant Attorney General

State Engineer's Office

Bataan Memorial Building

Santa Fe, New Mexico 87501

~r Mr. James B. Grant

r Assistant U. S. Attorney

P. O. Box 607

Albuquerque, New Mexico 87103

Mr. Philip R. Ashby

Ashby, Rose and Sholer

618 Manzano, N.E.

Albuquerque, New Mexico 87110

Mr. L. Lamar Parrish

Ussery, Burciaga and Parrish

P. O. Box 487

Albuquerque, New Mexico 87103

Re: State of New Mexico ex rel

S. E. Reynolds v. Kleppe

No. 75-684-M Civil

Gentlemen:

I have reviewed in camera the material furnished by

defendant in this matter.

It appears that the review of material in the PojoaqueTesuque system should be presented to the judge handling

the adjudication litigation for production inasmuch as

5 52(b)(5) exempts inter-agehcy or intra-agency memorandums

or letters which would not be available by law to a party

other than an agency in litigation with an agency. An

agency in litigation seems to be an exception to the

exception and in my view should be treated for discovery

as in any other civil case.
144

Mr. Paul L. Bloom

Mr. James B. Grant

Mr. Philip R. Ashby

Mr. L. Lamar Parrish

August 2, 1976

Page 2

As to the Jicarilla and Mescalero matters, the burden

is on the United States to establish that the information is not discoverable. This has not been done to

date. Fifteen (15) days is given (August 18, 1976)

to provide this information. My review indicates

that these reports are not geared to pending litigation.

It appears that the respective Tribes are the ones

who have requested the review by USGS into the matters

in question. BIA appears as a conduit or referring

agency in the matter. I would like to know if this

has any bearing on the question where the information

is being prepared for and concerns a non-governmental

entity.

I don't believe any of you have yet discussed the

question of the geological information exception.

Sincerely,

Mechem
APPENDIX II

Additional Material Submitted for the Record
J
COLORADO RIVER INDIAN TRIBE,

Washington, D.C., May 7,1976.

Hon. HENRY M. JACKSON,

Senate Office Building,

Washington, D.C.

Colorado River Indian Tribe of the Colorado River Indian Reservation are in

full support of S. 2652, a bill to amend section 552 of title 5 United States Code,

to provide an exemption to the Freedom of Information Act which would allow

the United States to withhold information held by a Federal agency as trustees.

We feel that if this is not amended it would be a hindrance, individually and

collectively as a people and our reservation as a whole. We have already experienced such an impact against our reservation if a suit was ever initiated in

our behalf.

ANTHONY DRENNAN, Sr.,

Chairman, Tribal Council.

RESOLUTION 1975-617

Whereas, U.S. Geological Survey, the Chief of Okanogan Highlands Project, has

requested permission to conduct a geological and mineral resources study on the

Colville Indian Reservation ; and

Whereas, it is the split recommendation, of the Land and Forestry Committee,

of the Business Council, that, permission, to conduct a Geological and Mineral

Resource Study on the Colville Indian Reservation: Now, therefore, be it

Resolved, That we, the Colville Business Council, meeting in special session,

this 6th day of October, 1975, at the Colville Indian Agency, Xespelem, Washington, acting for and in behalf of the Colville Confederated Tribes, do hereby deny

the permission for U.S. Geological Survey to conduct a geological and mineral

resource study on the Colville Indian Reservation.

The foregoing was duly enacted by the Colville Business Council by a vote of

5 for; 8 against, under authority contained in Article V, Section 1(a) of the

Constitution of the Confederated Tribes of the Colville Reservation, ratified by

the Colville Indians on February 26, 1938, and approved by the Commissioner of

Indian Affairs on April 19,1938.

Attest:

AL ATJBERTIN,

Chairman, Colville Business Council.

DNA-PEOPLE'S LEGAL SERVICES, INC.,

Windoic Rock, Arts., May 21,1976.

Hon. HENRY M. JACKSON,

U.S. Senate,

Washington, D.C.

DEAR SENATOR JACKSON : I have just become aware of the introduction of

Senate Bill 2652, and wanted to write to you to express my strong feelings on

this proposed legislation. The bill would add a tenth exemption to the Federal

Freedom of Information Act, at 5 U.S.C. § 552, exempting from disclosure any

information regarding the natural resources of "Indian tribes or bands or groups

of individual members thereof." As an Indian, and as director of a legal services

program which serves individual Indians who would be seriously harmed by this

bill, I strongly object to this proposed legislation.

The federal government has broad powers over the Indian people, much broader

powers than any government has over any other group of Americans. It controls

the registry of our births, the probate of our estates at death, and very much in

between. It determines where we can build homes and to whom we can lease our

land, it supposedly educates our children, and supposedly cares for our sick,

poor and aged. Even though our tribal governments are trying to assume more of

this responsibility, the federal government, through the BIA, still exercises

tremendous power and influence over the tribal governments.

(147)
148

There are many Indians like myself who believe that the federal government

has not done a very good job at managing Indian affairs, that its motives often

seem less to advance the best interests of the Indian people than to accommodate

the interests of whites•individuals and large corj>orations•who wish to exploit

us. This is best illustrated in the area of Indian natural resources, where the BIA

has pressured tribes to agree to, and has then hurriedly added its own approval

to, deals which give tribal resources away for minimal royalties and rentals, and

provide little or no protection for long-term tribal interests.

I believe the government should be at least as accountable to the Indian people

for its actions which affect them as it is to other Americans, if not more so,

because of the extreme degree to which we Indians are governed. The Freedom

of Information Act was a great step forward in providing that accountability,

because it meant that no longer could government deal behind closed doors.

Senate Bill 2652, though, would shut the doors in the faces of Indians, in an

area that is now a critical concern to Indian people all over the country•the

disposition of their last source of wealth, their vast natural resources. This bill

looks like little more than an effort to reinstate the corrupt practice of old, just

at the time when our natural resources are being greedily eyed by the great

energy combines of American capitalism, and by such agencies as the Bureau of

Reclamation.

I know that some tribal officials will say they support this bill, but I do not

believe anyone could say that the great body of Indian jieople would ever support

it. Tribal officials all too often operate under the thumb of the BIA, and they are

the targets of, and are subject to, powerful persuasion by the government and

the corporations. There is no check on government activities in this vital area,

thus, unless the Indian people themselves can have access to what is going on

Our legal services program represents hundreds of persons whose lives have

been or will be radically and tragically affected by resource development projects,

yet these people and their lawyers are frequently unable to get any detailed

information on these projects. We have even had to assist members of the Navajo

Tribal Council in learning of the details of such agreements before they are

given to the Council for a vote. Now the Congress is asked to legalize this perversion of democratic government. I hope you will agree with me that the benefits

of the Freedom of Information Act to the workings of democracy should not

be denied to Indian people, alone, in this manner.

I believe this bill should be defeated entirely. It has no business being made

law. If it is to be passed in any form, however, I urge you to seek to have it

amended at least so that the exemption would bar members of the particular

tribe (or band, or group) involved from obtaining information from the government about this action with respect to that tribe's natural resources.

Once again, we Indians have been singled out for perverse, unfair, and oppressive treatment. Please speak out for us, and against this bill. We will be grateful.

Sincerely yours,

PETERSON ZAH, Director.

FRIED, FRANK, HARRIS, SHRIVER & KAMPELMAN,

Washington, B.C., June 25, 1976.

Hon. JAMES ABOTJREZK,

Dirkaen Senate Office Building,

Washington, D.C.

DEAR SENATOR ABOUREZK : The purpose of this letter is to state the support of

our tribal clients, the Miccosukee Tribe of Indians of Florida, the Metlakatla

Indian Community, the Salt River Pima Maricopa Indian Community, and the

Hualapai Tribe, for the proposal to protect confidential information held by the

Federal Government acting in a fiduciary capacity for Indian tribes from unauthorized disclosure.

As long as the so-called "guardian-ward" relationship between the United

States and the Indian tribes continues, the deliberations of most tribal governments will involve consultation with or observation by Federal officials. This

relationship should not automatically make public the information which Federal officials obtain from tribal councils and officials. Many times tribes may

legitimately wish to keep private information relating to tribal planning, information relating to litigation in which the tribe may be engaged, or other matters

relating to tribal resources and assets. Non-Indians should not have the legal

right to obtain such information without tribal consent just by asking the United

States for it.
149

The Solicitor of the Department of the Interior has stated to us that the

Freedom of Information Act has already made the performance of the Secretary's legal role as a trustee extremely difficult because the tribes now are

unwilling to share with Federal officials information which the Secretary must

have in order to perform his trust responsibility properly.

We are enclosing language which is adequate in our view to protect tribal

information held by the United States in a fiduciary capacity from unauthorized

disclosure. We understand that this language has been prepared by the Bureau

of Indian Affairs. On behalf of our clients we urge that the Congress take action

to approve this proposal in the near future.

I respectfully request that this letter be included in the record of the hearings

on this matter recently concluded by the Senate Subcommittee on Indian Affairs.

Sincerely,

S. BOBO DEAN.

A BILL To restrict disclosure of Information possessed by the Department of the Interior

or other Departments or agencies of the United States related to Indian tribes, and for

other purposes

Be it enacted by the Senate and House of Representatives of the United States

of America in Congress assembled, That (a) any other provision of law to the

contrary notwithstanding, no officer or employee of the Department of the Interior

or of any other Department or agency of the United States shall disclose (other

than to an officer or employee of the Department of the Interior or other Department or agency of the United States whose duties require that he have the

information concerned) any information in the possession of such officer, employee, Department, or agency related to the natural resources or other assets

of any Indian tribe, except that such information may be disclosed•

(1) if it has previously been lawfully made public,

(2) to the chief executive officer or an elected member of the governing

body of the tribe concerned,

(3) when authorized by the tribe concerned,

(4) to the Committee on Interior and Insular Affairs, or, to the extent

of matters within its jurisdiction, any other committee of either the United

States Senate or House of Representatives,

(5) which concerns funds provided under a Federal grant or contract if

such information is otherwise required by statute including but not limited

to section 5(c) of the Indian Self-Determination and Education Assistance

Act (88 Stat. 2205), to be provided to the requester, or

(6) as may be required by a Federal court of competent jurisdiction.

(b) No other statute now or hereafter enacted shall be construed as overriding the provisions of this Act unless such statute shall do so by express

reference to this Act.

(c) For purposes of this Act, the term "Indian tribe" means any Indian

tribe, band, nation, pueblo, colony, or other organized group or community which

is recognized as eligible for the special programs and services provided to.

Indians because of their status as Indians and for which the United States hag

a trust responsibility.

(d) (1) Any officer or employee of any department or agency of the United

States, who has possession of, or access to, records of such a department or

agency which contain information the disclosure of which is prohibited by

this Act, and who knowing that disclosure of such information is so prohibited,

willfully discloses the information in any manner to any person or entity not

entitled to obtain it, shall be guilty of a misdemeanor and fined not more than

$5,000, or subjected to imprisonment for not more than one year, or both.

(2) Any person who knowingly and willingly seeks and obtains in any manner

from any officer, employee, agency, or department of the United States anj

information to which said person is not entitled and the disclosure of which is

prohibited under this Act, shall be guilty of a misdemeanor and fined not more

than $5,000, or subjected to imprisonment for not more than one year, or both.

NATIONAL CONGRESS OF AMERICAN INDIANS

RESOLUTION NO. NCAI ECO 76-4•LEGISLATION

Whereas, there exists in the 94th Congress worthy legislative proposals to

meet many of the needs of Indian people; and

Whereas, the National Congress of American Indians realizes that the remaining schedule of the 94th Congress is constrained by the national party conventions and the elections; and
150

Whereas, the National Congress of American Indians feels that consideration

by Congress for enactment of proposed legislation needs to be narrowed down

to the highest priority of Indian needs: Now therefore, be it

Resolved, That the Executive Council of the National Congress of American

Indians, consisting of official delegates of each of the 100 member tribes, submits

to the Congress and to the Administration its legislative priorities, as follows:

1. Legislation to provide Indian tribes the option to reacqnire civil and criminal jurisdiction from the states, and for the improvement of law enforcement on

Indian reservations as embodied in S. 2010.

2. Passage of the Indian Health Care Improvement Act. with adequate appropriations to meet the needs in the area, as contained in S. 522.

3. Legislation to extend the life of the Indian Claims Commission.

4. Legislation to protect information held by a Federal agency as Trustee in

regard to the natural resources or other assets of Indian tribes and individual

tribal members, as contained in S. 2652.

5. Legislation amending the Comprehensive Employment and Training Act of

1973 to permit Indian tribes to qualify as prime sponsors under Title I of that

Act, as contained in S. 2399.

6. Legislation amending the Internal Revenue Code of 1954 to provide the

same tax exemptions and general tax treatment to recognized Indian tribes as

are applicable to other units of government, as contained in H.R. 8989.

7. Legislation to authorize Indian tribes to consolidate their land holdings

and to provide for inventories of Indian trust resources.

8. Repeal of the Act of May 10, 1926 (44 Stat. 498), relating to the condemnation of certain lands of the Pueblo Indians in the State of New Mexico, as

contained in S. 217.

9. Legislation to amend the Bankruptcy Act, Sec. 4-506, as follows:

(a) Exceptions from Discharge. A discharge extinguishes all debts of an

individual debtor, whether or not allowable, except: . . . (11) any liability to an

Indian tribe or tribal lending agency for a loan from such tribe or tribal lending

agency if the loan instruments so provide.

10. Legislation to establish within the Department of the Interior the position

of an Assistant Secretary of the Interior for Indian Affairs, as contained in

H.R. 11258.

11. Legislation regarding Siletz Restoration, as contained in S. 2801 and H.R.

11221.

12. Legislation to provide grants for the development, operation and improvement of Indian community colleges, as contained in H.R. 11220.

13. Legislation to protect and conserve fishery resources by declaring pending

international agreement, management and conservation authority and responsibility over such resources in a 200 nautical mile zone off the coasts of the U.S.,

and to establish a national fishery management program to prevent overfishing,

rebuild overfished stocks, insure conservation and realize full potential of fishery

resources, as contained in S. 961: Be it further

Resolved, That the National Congress of American Indians supports the passage of an amendment to Alaska's Limited Entry Act, which will recognize

the right of members of the Metlakatla Indian Community to continue their

historic practice of fishing in the waters of Southeast Alaska.

NATIONAL INDIAN YOUTH COUNCIL, INC.,

Albuquerque, N. Mex., May, 1976.

STATEMENT ON AMENDING THE FKEEDOM OF INFORMATION ACT

The National Indian Youth Council is in sympathy with the problems that have

prompted S. 2652. The problems it addresses are real and need to be dealt with.

Too often confidential information held by the federal government regarding

tribal resources and assets has been plundered by corporations and other federal

and state agencies whose interests are in conflict with those of the tribes. This

situation is well known and a genuine problem. However, we believe that this

bill will not adequately deal with these problems and will have side affects which

will be injurious to Indian People in the long run.

We would like to bring to your attention, at the request of the Committee,

another side of the problem which we believe deserves your consideration. There

is a serious problem of individual Indians getting information on financial

matters relating to land held in trust for them. The files of DNA are filled with

examples of people who, one morning find a bulldozer at work in their front
151

yard, and can't get adequate information on what they supposedly signed to

allow such a situation.

The proposed amendment to the Freedom of Information Act will create the

same situation with tribes and tribal governments. It appears that the assumption

is being made that federal agencies will in all cases make information which

they hold concerning a tribe available to that tribe upon the request of tribal

authorities. That may not be true at all. Federal agencies, particularly the BIA

and the Geological Survey, gather much information about tribes pnd reservations which is not available to the tribe unless the agency chooses to make it

available. Under the proposed tenth exemption to the Freedom of Information

Act, federal agencies would apparently be free to withhold such information.

Nothing in the tenth exemption even guarantees the access of tribal governments

to information concerning them. It may seem unlikely or far-fetched that the

BIA would deny tribal information to tribal governments, but we have seen it

happen.

There is also the problem of tribal councils not being able to get information

from the federal government regarding their tribes' natural resources which

is essential in making decisions on economic development if the tribal administration and the BIA don't want them to have it. A good example is the Navajo

Tribal Council. Negotiations between the Navajo Chairman and WESCO and

El Paso Natural Gas regarding coal gasification, have been going on in secret

for sometime. The council will ultimately have to approve the agreement which

already had been reached. They cannot obtain documentation upon which such

a decision can be effectively reached. When they approve or disapprove the

agreement they will do so based upon information which the Chairman and

the BIA choose to give them.

Even if they pass resolutions demanding certain information they cannot know

what information to ask for and cannot be assured that they are getting the

full picture.

The Navajo Chapter Houses where the gasification developments and stripmining are to take place are in a similar situation. These are the people directly

affected.

NIYC -is conducting a Power Elite Study of San Juan County, New Mexico

where the gasification plants will be built. We are attempting to learn how

leases are made and who controls the resources there. We asked the Navajo

Tribe and the federal government for copies of the Navajo leases in the county.

We were refused by them on the grounds that this information was confidential.

Later we learned that a corporation service company in Denver called Mineral

Service Company had all this information already. This information included

the complete history of every corporate lease on Indian land. They informed us

we could purchase this information on computer print-outs from them.

The point is that in many respects the corporations and the states and other

governmental entities know more about our natural resources than the Indian

People, and possibly more than the tribal governments.

As you are aware at present a grand jury in Phoenix, Arizona is sitting to

investigate corruption in the Navajo Tribal Administration. This investigation

not only involves the siphoning off of federal funds but bribes from corporations

doing business on the reservation. This is an Indian Watergate of fantastic

proportions, involving millions of dollars. The reason that this activity could

take place was that the tribal council, not out of lack of interest but out of lack

of access to information, did not act.

In Oklahoma, NIYC is conducting a lawsuit (Harjo v. Morton) on behalf of

a group of traditional Creek Indians. It involves" a question of the validity of

the present Creek tribal government set up by the BIA as opposed to the old

Creek Constitution which provided for a House of Warriors and a House of

Kings based on representation from tribal towns and having total financial

control of the tribe. These traditional Creeks are asserting that the old constitution has not been abolished and is still valid. The principal chief has been

exercising total power in handling Creek finances and natural resources for

many years. Creeks could not get any financial information from the principal

chief or the BIA; nor could they obtain information from the tribal government

or BIA on the validity of the old constitution.

NIYC supports the effort to amend the Freedom of Information Act to protect

confidential tribal information from disclosure to unauthorized persons and

corporations. We believe, however, that the bill is defective in its present form

because the new exemption to the Freedom of Information Act can and will be

used to deny essential information on tribal affairs to tribal members them-
152

selves, and even to tribal councilmen. Tribal officials and the BIA often have

a common interest in preventing tribal members from having access to tribal

Information. Unfortunately, the BIA still exercises a controlling influence over

many tribal governments and tribal officials. Under the proposed bill, access

to tribal information by tribal members will depend solely on the cooperation

and good will of incumbent tribal officials. The bill would give BIA and tribal

officials iron-fisted control over tribal information.

In many instances this information monopoly will be illegitimately used to

maintain the power of the BIA and incumbent tribal officials. We have seen this

happen in many instances in the past. We believe the BIA supports S. 2652

primarily for this very reason. Prior to the passage of the Freedom of Information Act, the BIA often told inquiring tribal members to get whatever information they wanted from tribal officials. Tribal officials would then advise the

inquirer to get it from the BIA.

This problem grew to extremely serious proportions with the Five Civilized

Tribes of Oklahoma. The Freedom of Information Act provided tribal members

with badly-needed access to busineas information affecting their tribe. The proposed bill will simply close the door on tribal members. We believe that it is

impossible for tribal governments, particularly democratic tribal governments,

to function legitimately and maintain the loyalty of tribal members in a climate

so conducive to self-serving abuse.

There is a way to overcome this problem and still deny confidential tribal

information to unauthorized parties. We suggest that S. 2652 be amended by

adding the following language to the proposed language: "provided, however,

that this exemption shall not be applicable to requests for information concerning a tribe of which the person making the request is a member."

Addition of this language will preserve the important right of tribal members

to have access to information concerning their own tribe. We believe the bill

in its present form may institutionalize an already corrupt system.

RESOLUTION

Whereas, the Nez Perce Tribal Executive Committee has been empowered to

act for and in behalf of the Nez Perce Tribe, pursuant to the Revised Constitution

and By-Laws, adopted by the General Council of the Nez Perce Tribe, on May 6,

1961 and approved by the Acting Commissioner of Indian Affairs on June 27,

1961; and

Whereas, the Nez Perce Tribe of Idaho has supported legislation which would

strengthen individual rights of all tribal members within the various tribes;

and

Whereas, the solicitor of the Department of the Interior has interpreted the

Freedom of Information Act to require the disclosure of confidential information

and documents received by the U.S. Government as a trustee to any member of

the general public who request this information including persons who may be

suing the tribe and are seeking the documents as an alternative to following

the normal legal procedures which are available for obtaining information

from the defendants in law suits: and

Whereas Congress is currently considering amendments to the Freedom of

Information Act Senate Bill 2652 which protects the documents of Indian tribes

in the possession of the United States from disclosure to the general public: and

Whereas, the U.S. Government as trustee of Indian tribes obtains much information which is of a confidential and privileged nature ; and

Whereas, the U.S. Government as trustee for an Indian tribe stands in a

unique position much the same as an attorney to his client or a minister to his

penitent; and

Whereas, the disclosure of this confidential and privileged information to the

general public by the U.S. Government is not only a breach of faith but a breach

of the Governments trust responsibility : Now, therefore, be It

Resolved, That the Nez Perce Tribal Executive Committee does hereby urge

the passage of the amendment to the Freedom of Information Act Senate Bill

2652 which would exempt from disclosure "information held by a Federal agency

as trustee regarding the natural resources of other assets of Indian tribes or bands

or groups or individual members thereof".

Be it further resolved, that the Nez Perce Tribal Executive Committee urges

that section 10 of Senate Bill 2652 be broadened to cover all documents filed with

the BIA under requirements of Federal law relating to the Secretary of Interior

supervisory role in tribal government whether or not land or other trust assets
153

are involved. To accomplish this objective we urge that section 10 of said bill

be amended to read as follows: "10 information held by a Federal agency in

performance of a fiduciary obligation to any Indian tribe, band, group or individual member thereof"

Now, therefore, be it further resolved, that this resolution, NP 76-299, be

forwarded to the Senate Subcommittee on Indian Affairs, Washington, D.C.

CERTIFICATION

The foregoing resolution was duly adopted by the Nez Perce Tribal Executive

Committee meeting in regular session May 11, 12, 1976, in the tribal conference

room, Lapwai, Idaho, all members being present and voting.

Attest:

ALTA A. GUZMAN,

Secretary.

WILFRED A. SCOTT,

Vice-Chairman.

ALBERT W. TRIMBLE,

Batesland, S. Dak., April 28,1976.

Re: S. 2652.

Mr. MEL TONASKET,

NCAI President,

FOI Hearing, Washington, D.C.

DEAR MR. TONASKET: This letter is in regards to S. 2652 which amends the

Freedom of Information Act to protect information regarding Indian natural

resources. Please be assured that I, as President of the Oglala Sioux Tribe, will

fully support the efforts of NCAI in getting S. 2652 enacted into law, since the

amendment would appear to protect disclosure by the United States of natural

resource information relative to the Oglala Sioux Tribe from the provisions of

the Freedom of Information Act.

Sincerely yours,

ALBERT W. TRIMBLE,

President, Oglala Sioux Tribe.

STATEMENT OF PHILLIP LUJAN AND ALAN PARKER OF THE AMERICAN INDIAN

LAW CENTER, UNIVERSITY OF NEW MEXICO, BY REQUEST AND ON BEHALF OF

THE NATIONAL CONGRESS OF AMERICAN INDIANS

S. 2652 proposes to amend Section 552 of Title 5, U.S.C, the "Freedom of

Information Act," by inserting a new section 10 specifying that information held

by federal agencies relating to the natural resources or other assets of Indian

Tribes, bands, groups or individuals is exempt from disclosure to the public.

We understand that other witnesses testifying on behalf of various Indian

Tribes intend to discuss by way of concrete examples the nature of the problems

created because federal agencies are not able to keep confidential information

relating to trust resources and assets under the present interpretation of this

law. Our discussion of the proposed amendment will accordingly be confined to;

two narrow points:

1. This amendment creating an exemption to the Freedom of Information

Act for trust resource information is not inconsistent with the overall purpose and intent of the Freedom of Information Act; and

2. The amendment need not be interpreted so as to restrict the rights of

access to such information on the part of individual tribal members or groups

other than the tribal government.

In a recent opinion, the U.S. Supreme Court interpreted the purpose of Section

552 as "to open public records to greater public access and ... to preserve confidentiality undeniably essential in certain areas of government operation."

(F.A.A. v. Robertson, 95 S.CT. 2140.) The court also has commented that, "This

section is fundamentally designed to inform the public about agency action

and not to benefit private litigants." {NLRB v. Sears Roebuck and Co., 95 S.Ct.

1504.) A federal circuit court recently expanded upon this interpretation by

pointing out "(the) purpose of this section is to provide necessary machinery

to assure the availability of government information necessary to an informed

75-358 O - 76 - 11
154

electorate by permitting access to official information shielded unnecessarily

from public view and attempting to create a judicially enforceable public right

to secure such information from possibly unwilling public officials." (Wine

Hobby, Inc. v. I.R.S., 502 f2d 133.)

We understand that tribal representatives in their statements will document

the pattern whereby state government agencies and other private interest groups

opposing the asserted Indian natural resource rights have been able to force the

federal government to divulge information concerning trust assets which is then

used against the Tribes in the course of litigation or other adversary proceedings.

Clearly, it has not been a case of federal bureaucracies arbitrarily withholding

information necessary for an informed electorate. Normally, one would assume

that since the United States acts as Trustee and/or legal representative for

the Indian Tribes the type of information referred to should be exempt from

public disclosure on the basis of an attorney-client or other privilege. However,

the record shows that this is not the case for the related reasons: (1) The

present statute (552) is so narrowly drawn that in order for information to be

exempt it must clearly fit into one of the categories spelled out in section b of

552; and, (2) the federal courts in interpreting this section have adopted the

principle of construction that "the exemptions of this section are exclusive and

are to be interpreted narrowly." (Montrosc Chemical Corp. of California v.

Train, 491 f2d 63) We concede that this principle of construction is clearly

consistent with the intent of the law, however, the fact remains that a successful demand for trust related information by other than the beneficiaries of the

trust (Indians) clearly compromises the trust role delegated to the federal

agencies. The proposed amendment (S. 2652) relieves the relevant federal agencies from this untenable position by, in effect, classifying information obtained

by federal agencies in their "trust" capacity as being confidential and not public

in nature such that the entire "public" has an enforceable right to access.

We are aware that criticism has been leveled at the proposed amendment,

charging that it is too broadly worded and that it would empower federal agencies to keep secret information relating to trust resources. Possibly this Subcommittee could consider narrowing the language of the proposed amendment by

spelling out a right of access on the part of Indian tribal government, individual

tribal members or other non-governmental Indian groups, who are all beneficiaries

of the trust. Certainly this might cure the potential problem of an agency withholding such information from the tribal government itself. Identification of a

right of access to such information on the part of individual tribal members or

non-tribal governmental groups would also anticipate the potential problems

resulting from internal corruption within a tribal government itself.

We see some difficulty in expressing such concerns in statutory language and.

in addition, it can be argued that the existing exemptions in section 552 are

all worded to simply cover broad categories of information. From this perspective, the proposed amendatory language of S. 2652 is consistent with the format

and approach of the present section. The very legitimate concerns alluded to

above could easily be addressed in the committee reports in order to make it

clear that the Congress did not intend to amend the law so as to open the door

for the kinds of potential abuse discussed above.

WILKINSON, CRAGUN & BARKER,

Washington, D.C., June 17, J976.

Re: Proposed S. 2652•Freedom of Information Act Exemption for Indian Trust

Property.

Hon. HENRY M. JACKSON,

Chairman, Committee on Interior & Insular Affairs, Longworth House Office

Building, Washington, D.C.

DEAR MR. CHAIRMAN : We welcome this opportunity to present on behalf of

the Arapahoe Tribe of the Wind River Reservation, Wyoming, the Confederated

Salish and Kootenai Tribes of the Flathead Reservation, Montana, the Hoopa

Valley Tribe of the Hoopa Valley Reservation, California, the Three Affiliated

Tribes of the Fort Berthold Reservation, North Dakota, and the National Congress of American Indians, comments pertinent to proposed legislation on the

applicability of the Freedom of Information Act to information held by the

United States Government as part of its continuing fiduciary duty, towards

Indian tribes and peoples. We respectfully request that these comments be made

part of the record of the hearing held on S. 2652 on May 17," 1976.
155

We wholeheartedly support the need for legislation in this area, and we

endorse the concept presented in S. 2652. We note that the approach taken in

S. 2652•amendment of the Freedom of Information Act to provide a specific

exemption for tribal trust information•is not the sole method by which the

United States can fulfill its fiduciary duty to Indians to avoid indiscriminate

release of "trust" information. An alternative, and we think better, approach

would be to amend 25 I'.S.C. to provide a blanket exemption for Indian "trust"

information and grant flexibility to Federal agencies to act consistent with their

trust responsibilities in dealing with such information. We have drafted such

a proposal which is attached to this letter for your consideration. If such an

amendment were made to 25 I'.S.C the Freedom of Information Act would not

apply to such information, pursuant to 5 I'.S.C. 8 552(b) (3), exempting material

specifically exempted from release by statute. See Administrator, Federal Aviation Administration v. Robertson, 422 U.S. 255 (1975).

It is a fundamental axiom of trust law that the trustee owes a- duty of complete loyalty to the beneficiaries of a trust, and must exclude all selfish interest

and all consideration of the welfare of third persons in administration of the

trust. Dissipation of trust assets through unauthorized release of trust information is a clear violation of the trustee's duties. See Bogert, The Law of Trusts

and Trustees, § 543 (1960).

It is our basic proposition that the Freedom of Information Act was never

intended to justify violation of the fiduciary duty owed by the Federal Government to Indians, and should not be construed to alter the trust responsibilities

of the United States toward its Indian wards. There was no discussion of Indian

trust information prior to passage of the Act itself or the 1974 amendments to

the Act. Statutes in derogation of the treaty responsibilities of the United States

toward Indians are to be strictly construed in favor of the Indians, Menominee

Tribe of Indians v. United States, 391 U.S. 404, 412-413 (1968) ; Squire v. Capoeman, 351 U.S. 1, 6-7 (1956), and the absence of legislative history discussing

diminution of Indian rights is generally construed as an indication of the

intent not to diminish those rights. Bryan v. Itasca County, Supreme Court,

75-5027, June 14, 1976 (Slip Opinion at 7). Generally, specific statutory language

applicable to Indians supersedes contrary language in a statute of general

applicability. Morton v. Mancari, 417 U.S. 535, 550 (1974).

However, it appears from the testimony of Mr. Harley Frankel before the

Subcommittee on May 17, 1976, and the prepared statement of Mr. Stanley

Doremus submitted with that testimony, that the Department of Interior

has taken the position that its trust responsibilities are superseded by the Freedom of Information Act. Thus, on page 1 of Mr. Doremus' prepared statement,

of the following language api>ears: "In essence, we have been placed in the

position of being required by law to violate the confidential relationship which

we have with Indian tribes and individuals."

The prepared statement then goes on to describe examples of Bureau of

Indian Affairs and Department of Interior violation of trust responsibility by

releasing information to outsiders, purportedly on the basis of the Freedom of,

Information Act.

What is more, in reviewing the motion for summary judgment filed in the case

of the State of New Mexico ex. rel. Reynolds v. Kleppe, filed by the United

States in support of its position on this bill, the nature and effect of the trust

responsibility is not mentioned at nil.

While not pretending to be able to predict, the outcome of judicial decisions in

this difficult area, there are powerful arguments which the United States could

advance, under the Freedom of Information Act in support of its refusal to

release tribal trust information to outsiders based primarily on the nature of

the trustee-beneficiary relationship.

The exemption for "trade secrets and commercial or financial information

obtained from a person and privileged or confidential" (5 U.S.C. § 552(b) (4))

would protect substantial amounts of tribal trust information. Contrary to the

assertions of the Department of Interior, this exemption is not limited to material which is "clearly financial and clearly privileged." (Prepared statement

of Mr. Doremus, p. 4) By its terms it is applicable to all commercial information

held by the United States as trustee•both privilege and confidentiality being

derived from that relationship. It is significant that the legislative history evidences a congressional intent to exempt all privileged information from release,

not just commercial or financial information. See H. Report No. 1497, 89th Cong.,
156

2nd Sess., May 9, 1966, at 10; S. Report No. 813, 89th Cong., 1st Sess., Oct. 4,

1965, at 9. If these arguments were to be accepted, most Indian trust information

would be protected under current law.

However, the outcome of projected judicial proceedings is uncertain, and the

Department of Interior admits to present subordination of its fiduciary duty to

the Freedom of Information Act. No matter where the fault lies, current release

of trust information adverse to the interests of Indians must be speedily brought

to an end. The importance of legislation in this area is underscored by a partial

listing of important information held by the Department of Interior as part of

its trust duty. Such materials include:

All tribal minutes.

All tribal resolutions.

All contracts between tribes and parties subject to BIA approval.

Leases on tribal trust lands.

Royalty statements from tribal trust land leases.

Cost statements on operation of leases where tribes share in profits.

Tribal ledgers and individual ledgers on II1I funds.

Tribal rolls.

Records of trust lands in heirship.

Copies of audit statements where tribes are audited.

Complaints of individual Indians against the Tribal Council or an Indian

agent.

Inventories of natural resources and mineral deposits on Indian lands.

Water rights studies conducted on Indian lands.

And this is clearly only a partial list of the materials accumulated by the

Bureau of Indian Affairs in its administration of the United States' fiduciary

responsibility toward Indian tribes and individuals.

Even assuming that current exemptions under the Freedom of Information

Act would be liberally applied to Indian trust information, the Act itself is an

inadequate means for dealing with the United States' fiduciary responsibility

toward Indians and Indian tribes. If the Freedom of Information Act as it now

stands is used as the basis for withholding such documents, the agency wishing

to withhold them following a request under it will be forced to justify withholding specific pieces of information under specific exemptions (often different

ones for different documents), will be forced to provide (at least upon judicial

review) a detailed index of the information and will be forced to justify to a

court in a judicial hearing de novo the grounds for such withholding. Due to the

peculiar nature of all information received by the United States in its trust

capacity, no justification other than the trust nature of the information and

the potential violation of the fiduciary duty should be required to justify withholding. This is the rationale of our attached proposed draft bill.

The basic premise of the Freedom of Information Act is that the people of

the United States are entitled to all information within their government except

that the release of which would interfere with national security, the workings

of the government, or protectable private rights. No such presumption in any

way applies to tribal trust information, as it is by its very nature private.

Tribal trust information should thus not be dealt with under the Freedom of

Information Act on an "exempt-non-exempt" basis. Instead, federal agencies

should be directed by law in no uncertain terms to look to the fiduciary responsibilities which they have to Indians in dealing with trust information. In other

words, information held by the United States in its trust capacity is held for

Indian tribes or individuals in trust, and the method of its disposition should

be dealt with strictly in fiduciary terms. The Bureau of Indian Affairs or other

appropriate agency holding tribal trust information should be required by statute

to subordinate the Freedom of Information Act to the fiduciary duty owed by

the United States to the tribes. As this duty is not now clear, Congress should

act to make it so.

Sincerely,

GLEN A. WILKINSON.

Attachment.
157

ATTACHMENT

PROPOSED DRAFT BILL AMENDING 25 I7.8.C.

A BILL To restrict disclosure of Information possessed by the Department of the Interior

or other Departments or agencies of the United States related to Indian Tribes, and for

other purposes

Be it enacted by the Senate and House of Representatives of the United States

assembled, That (a) As used in this section, the term Indian Tribe or Tribes

shall include any federally recognized Indian Tribe, band or identifiable group.

(b) Whenever information held by any Federal agency as trustee, regarding the

natural resources or other assets of Indian Tribes or individual members thereof,

or any other information held by the United States in its capacity as trustee for

such Indian Tribes, tribal members or individuals to whom such information

relates, the agency having custody of the records containing such information

shall not release it unless it shall have made an affirmative determination, in

writing, that such release is in the best interests of the Indian Tribe or individual to whom the information relates. No such information shall be released

under the Freedom of Information amendments to the Administrative Procedure

Act 5 U.S.C. § 552, without the consent of the Tribe or individual to whom the

information relates, (c) The district court for the'district in which the plaintiff

resides, or in which the information is located, shall have jurisdiction to enjoin

release of any information described in subsection (b) if it determines that said

information is held by the United States by virtue of a trust relationship between the United States and the Tribe or individual objecting to its release.

(From the Indian Water Rights Conference, Friday, Apr. 4, 1975]

PROCEEDINGS

The National Tribal Chairmen's Association and the National Congress of

American Indians National Conference on Indian Water Rights convened at 10

o'clock a.m. in the Auditorium, National Education Association Building, 1201

16th Street, Northwest, the Hon. Mel. Tonasket, President, NCAI, and Hon.

Wendell Chino, President. NTCA, presiding.

Mr. CHINO. We will begin our discussion with the reading of the resolution that

was tabled yesterday. The reason for tabling the resolution was that we wanted

Mr. Frizzell here.

If there are any questions, we wanted him to respond to the resolution. So we

will have Mel read the resolution and we will begin our discussion.

Mr. TONASKET. Good morning once more.

The resolution that was tabled reads:

"Whereas, the Bureau of Indian Affairs, the U.S. Geological Survey and other'

agencies and Departments of the Federal Government have obtained information

and data concerning the property and rights of Indian Tribes; and

"Whereas, the information has been supplied to those agencies only in their

capacity as trustee for the private property rights of the Indians; and

"Whereas, this information has been handed over to private individuals and

State agencies planning to sue, and even actually in the process of suing the

Tribes; and

"Whereas, Federal agencies claim they cannot protect the confidentiality of

such information because of the Freedom of Information Act: "Now, therefore,

be it

Resolved, The National Conference on Indian Water Rights, sponsored by the

National Tribal Chairmen's Association and the National Congress of American

Indians, in Washington, D.C., hereby resolve that a bill be promptly prepared

and introduced amending the Freedom of Information Act to provide that all

data and information gathered by, or in the possession of Federal agencies concerning Indian Tribes and their members relating to:

1. Property rights and interests;

2. Financial Data;

3. Geological and hydrological data ;

4. Any data submitted to the Federal Government in conflidenee;

5. Any data which is the subject of litigation pending or prospective.
158

We added:

6. Tribal financial records and information, be excluded from the coverage

of this Act, and be subject to release only by permission of the tribes or by

valid court order."

There was a question as to whether or not there needed to be a bill introduced or was this an administrative decision that could be made?

Is there a final decision and should we quit fighting for support that this information does not legally have to be given under the Freedom of Information Act?

Mr. CHINO. Mr. Frizzell, it is our understanding that you issued an opinion

that under the provisions of the Freedom of Information Act that certain information pertaining to the tribes could be released on, I suppose, demand by anyone.

There is some feeling among the tribes that this is a privilege at information

and the trustee should not release any information pertaining to the various

tribes without their consent.

Would you inform us as to whether our presumption here, our understanding

is correct?

Mr. FMZZELL. Good morning. Thank you for inviting me over to defend what

is obviously an unpopular position taken by the Solicitor's office.

I appreciate the opportunity to share with you why that position was taken

and why we felt it was necessary and what some of the possible solutions might

be that would help and aid.

First of all, let me briefly tell you my understanding of the Freedom of Information Act because that is the Act of Congress that comes into play with regard

to this problem that you have experienced as representatives of tribal

government.

The original Freedom of Information Act was passed by Congress back in 1967.

It was amended as recently as last year, 1974.

What it essentially says without coloring it, and making it difficult to understand in lawyer's language, is simply this: that all documents in possession of

any Federal Board, agency, commission, department of the government, is available to third parties, to the public, upon demand.

First of all, Congress saw fit to exempt themselves from the provisions of the

Act, of course.

Secondly, they said that there may be good reason in certain instances where

documents in the possession of the government shouldn't be turned over to members of the public. They specifically spelled out nine exemptions. I have two

members of my staff here that are the specialists for the whole Department of

Interior on Freedom of Information requests.

They can spell out what those nine specific exemptions are for you. They essentially make sense, those exemptions, of types of material that shouldn't be turned

over to the public.

However, the Act does say that if the information requested doesn't fall in

one of those nine categories that we have specifically set out. then it shall be

turned over to the public and in fact if an employee of the Federal Government

doesn't turn it over within 10 days and the decision is not to turn it over, the

requester has an appeal.

The government can only take 20 days in deciding that appeal.

If they still refuse to turn over the information and claim that it falls under

one of those nine exemptions, then the member of the public can take that official,

the government, to court and, if successful in reversing that decision, can get

attorney fees and other penalties.

So you have to watch your step on Freedom of Information Act requests because the intent of Congress generally was to make available to the public any

documents or information in the possession of the government

What has happened since that Act was passed in 1967 and amended last year?

The courts in all of the cases that I am familiar with in interpreting that Act

have restricted those nine exemptions rather than broaden them out. They have

said if your reason for withholding the information doesn't clearly fall under

one of these nine exemptions, then you are wrong, you have got to release it.

Nowhere in those nine exemptions, folks, does it appear and we have been

over to the Department of Justice•this just isn't our interpretation, we weren't

sure, and Reid Chambers, sitting at the far left here, argued on the other side

as your resolution does, that even though it is not listed in the freedom of

Information Act as one of the nine exemptions, it should be or it should be read

into it or interpreted under one of those.
159

We went over to the Department of Justice, who has the chief responsibility

for deciding these types of cases, where you decide to turn down a request for

information. They found difficulty in finding anywhere in those nine exemptions

any rationale for saying that merely because it is information that is of an

Indian origin or records of a tribe that you can claim an exemption.

It just isn't there, I am sorry to say. As a lawyer, I can't prostitute myself

and read it in if it isn't there.

One thing that I want to clarify here. Your resolution would indicate that

all tribal information would be available to third parties or to the public. That

is not quite accurate. It is only tribal information that by law or statute or

rule or regulation you have to furnish to the Secretary or the Department.

The member of the public isn't entitled to come in and ferret through your

files or request of the tribe any and all information. Only in those areas where,

like I say, regulations require that you submit a certain document to the Secretary of Interior or to the BIA or to the Department.

It is only when that information gets in the hands of a Federal agency or

department that it comes under the purview of the Freedom of Information Act.

Otherwise, your general tribal business is your own and wouldn't be available.

I have talked long enough. I am more interested in your questions. One more

thing I want to say. What is the answer to this problem?

The answer obviously is if it isn't in the law, if it can't be interpreted as such,

then you are going to have to go to Congress and make your case to them and

say, gentlemen, there ought to be a tenth exemption, and the tenth will not

be in these specific instances as it affects Indian tribal business.

I see you had a question.

Mr. Cox. One thing, it sounds good but you shouldn't have said, if the Indians

are going to work with their trustee and obtain advice from their trustee, they

can't keep their trustee as to mushroom in the dark and not feeding true, good

information.

So, therefore, as a practical matter, every bit of tribal information if the

trustee and the beneficiary are working together, becomes in the Federal files.

Mr. FRIZZELL. That could well be true.

Before we go on, Fred, the first gentleman on my left is Fred Karem, my

Special Assistant, and the second gentleman is Tim Elliott, Assistant Solicitor,

who handles Freedom of Information requests for the Department. Do either

one of you want to add anything that I have rushed over here?

Mr. KAREM. Just to add one or two points to elaborate on what Kent said.

There are many organizations and individuals who have to submit records to

the government. The fact that the document comes from an outside party under

the force of law isn't per se adequate basis for being exempt from application

of the law.

Picking up on one other aspect of what Kent said, even those documents and

records that you do have to turn over to the government are not automatically

all discoverable. Many of these documents even under the present state of the

law can be withheld if they fit within the scope of one of these exemptions as

interpreted by the courts.

Mr. FRIZZELL. Give them an idea of what the exemptions cover, generally ? You

don't have to tick off all nine, but give them an idea.

Mr. KAREM. The exemptions are referred to in the Act as being the sole basis

for not following the general rule of mandatory disclosure and the language

in the statute is what is reinforced by the legislative history as limiting the

effect of any opportunity to withhold documents.

The exemptions that would probably be most applicable to Indian documents

would be trade secrets and commercial or financial information obtained from

a third party and privileged or confidential; personnel and medical files and

similar files, the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy might also be applicable in certain cases.

But the nature of these exemptions are such that at the time that Congress

enacted them they made two that showed how careful and detailed they were in

outlining what would be exempt. For example, out of the nine exemptions, two of

them relate to geological and geophysical information and data, including maps

concerning wells, and another one would be contained in or related to examination, operating or condition reports prepared by or on behalf of or for the use

of an agency responsible for the regulation or supervision of financial institutions.
160

So that we are dealing with a situation where the Congress has been very

specific in its exemptions and the courts have followed likewise in their interpretation of them.

Mr. FRIZZELL. Sometimes it helps to put things in perspective if we will tell

you what the problem that brought this about was.

Let me share with you the opinion that. Wendell speaks of that we were faced

with. The actual request that came to the Department of Interior was for a copy

of the attorney contract of one Richard Kleindienst representing Agua Caliente

Indians of California.

They wanted to know how much he was being paid and what the terms of

that contract were. I used to work for Richard Kleindienst. He is a friend of

mine. I didn't relish turning this information over either from the viewpoint

of the tribe or the guy involved in the contract.

The truth of it is that the member of the news media that requested that

information had sat in on the tribal council meeting where they had discussed

the contract, had all of the information, had already published all of the information, knew exactly the hourly rate of compensation spelled out in that contract.

So really what we were talking about was the principle, because he already had

the information; the principle of having to turn over a tribal contract with its

attorney for dissemination of that information to the general public.

Mr. POTENCIO. I disagree. That is incorrect.

Mr. FEIZZELL. I want to be corrected if it is incorrect.

Mr. POTENCIO. The reporter involved, Mr. Will Thorn, was not involved in

any tribal council meetings whatsoever.

Mr. FRIZZELL. That was not the information•somebody told me that a member of the press in that immediate area had sat in on the tribal meeting and

published the information.

Mr. POTENCIO. I am Ray Potencio, the Chairman for the Aqua Caliente Indians.

The information that was leaked out was through one of our own tribal members.

The press did not engage nor was invited to attend any of our tribal council

meetings.

As a matter of fact, I think as conversation with Mr. Elliott, we envisioned

this as an invasion of privacy, invasion of tribal information, private tribal information, that we are not a public agency, we are a private agency and we opposed

it altogether. It is just unfortunte it had to work out this way.

Mr. FRIZZELL. SO at none of your tribal meetings was there a member of the

press? You didn't hold an executive session, I was told. There was already published reports that it was so much

Mr. POTENCIO. Yes, that is essentially correct, but there was no member of the

press invited to the council meeting.

Mr. FRIZZELL. But of course what made it come under the purview of the Freedom of Information Act wasn't the action you took or the resolution or the

contract because, as you know, each attorney contract must be approved by the

Secretary of Interior.

Once that contract was submitted to the Department of Interior, then it became

available under the Freedom of Information Act inasmuch as there was no

exemption to allow us to say no to the media that requested it.

Mr. SPARKS. My name is Joe Sparks. I represent the San Carlos Apache Tribe.

We have a suit.

My understanding of the Freedom of Information Act was that it was not the

documents merely that were required to be presented to the government or an

agency by ordinance adopted or statute or regulation, but rather the documents

in the possession of the agency. I think the words are "in possession."

Mr. FRIZZELL. That is true.

Mr. SPARKS. You said those that were required to be given. The trouble is the

Freedom of Information Act as construed in certain instances have hypothetically conflicts with the whole body of trust relation law that has evolved over

the last 400 years and was confirmed in the case of Manama v. United States

in 1944, that the traditional law applies to the United States in its relations with

the Indian tribes.

It is no doubt between thee and me that if you and I were representing a lady

in her relationship with her institutional trustee and we were advised by our

client that we wanted, that she wanted a certain result from the trustee, we

communicated with the trustee and asked the trustee to negotiate with a third

party in an instance, that that trustee couldn't by law disclose sensitive information to the third party-
161

So it conflicts with the body of trust law. I think that is the relationship that

we are talking about.

Mr. FRIZZELL. Don't you suppose Congress knew that when they passed the

Freedom of Information Act?

Mr. SPARKS. What I am saying is I am assuming that they did not intend to

overturn the entire history of the trust law and the trust relationship when they

are talking about the Freedom of Information Act?

I think the intent of Congress was to provide members of the public with

documents from governmental agencies which vitally concerned them and the

affairs between the trustee and an Indian tribe could not vitally concern a

member of the public who is not a member of that tribe.

Mr. FBIZZELL. Just because you and I represent a ward in a trust relationship,

it wouldn't mean that we were immune or exempt from acts of Congress, would

it?

Mr. SPARKS. Nor would it mean that we were free to ignore the body of law

that describes our relationship with the beneficiary.

Mr. FBIZZELL. Congress had the opportunity twice in the last eight years to

add an additional exemption and spell out that another area where information

should not be available to the members of the general public is in the area of

Indian Affairs. They chose not to do so.

Mr. SPARKS. I don't think there is any evidence that they specifically and

expressly chose not to limit the information disclosed on Indian Affairs. Is there

any history that shows that they did that?

Mr. FRIZZELL. To our knowledge, it is not spoken to one way or another.

Mr. SPARKS. I believe that is correct. It is not spoken to. Therefore, I can't see

legislative history which intends that it be disclosed and in the event that there

is financial penalties for the individual who does not or fails or refuses to disclose that information; on the other hand, there is financial liability to that

person who does so and thereby jeopardizes the beneficiary and jeopardizes the

property and interest of the beneficiary in so doing.

Mr. FRIZZELL. What you are saying is based on that theory of the interpretation of the law we should subject ourselves to litigation and test the law rather

than go the legislative route.

Mr. SPARKS. I don't say rather than, in addition to.

Mr. CHAMBERS. Maybe I can clarify that. This very question came up with

respect to the Northern Cheyenne petition which had been requested. They had

submitted a lengthy petition to the Department as trustee, disclosing a number

of financial aspects of the Cheyenne transaction and their legal arguments that

they were making for the invalidity of the leases.

Peabody Coal Company and some of the other coal companies requested the

petition. I tried to make the argument you are making now before the new

amendments to the Freedom of Information Act.

What happens in the government is this: If an agency is going to withhold

a request for information, we have to go over to the Justice Department and

they have a committee over there of experts on the Freedom of Information Act.

We have to consult with the committee. The solicitor was initially inclined to

withhold that information. We sent our Memorandum over to that committee.

They will not defend us in litigation if the matter is litigated unless we take

their advice.

Fred Karem and I went over there and made this argument. We really made

the argument on the third exemption which states something like there is an

exemption for material which is required not to be disclosed by statute.

We argued that the trust responsibility was really partly created by statutes

of Congress and therefore that this whole body of trust law clamped onto the

material.

The Justice Department thought that was a very unpersuasive argument and

rated our chances as very minimal in the context of the Northern Cheyenne situation. They did say if we had a different kind of situation where it wasn't an

administrative matter that was before the Secretary for decision they would

reconsider that argument and they might be willing to take it to court.

So I think the thing is still open.

Mr. SPARKS. IS the beneficiary notified when the documents that have been

placed in the hands of the trustee are going to be given to the third party?

Mr. CHAMBERS. They were certainly already with that context.

Mr. SAVILLIA. They are not in other cases. On behalf of the Indians, have conje

a long ways, spent a lot of money, we ought to get down to the nuts anfl bolts; of
162

this situation. You lawyers can argue this out tonight at the legal club or wherever you hang out.

Mr. Frizzell, this is not the only issue. The Palm Springs case is not the only

issue involved here. What is at issue is the Colorado tribes of the lower Colorado

River. The information, if your information is correct to us this morning, the

studies were stolen from the tribes, stolen from us by the Bureau of Indian

Affairs, delivered to you and you, in turn, delivered them to our enemies, the

irrigation districts, State of California, Arizona, Nevada, and others; 44, as I

understand, 44 of our enemies.

If Mr. Frizzell•Mr. Frizzell, you know, you came down here for a specific

purpose. One of them was, I think, that I have a chance to talk with you now.

If you believe in the letter of the law like you just said, the Constitution, other

laws not withstanding, says that the United States is our trustee.

I understand that we are not your clients, that the Department is your client;

but on the other hand, as the clients or the attorneys for the Interior Department,

I believe that you also have an obligation to become an advocate for the Department of Interior's responsibilities and one of those responsibilities is being

an advocate for the Indian people.

I for one do not appreciate the position taken in this important matter where

arbitrarily, I think, you take the position not in favor of the Indian people. The

lower Colorado River tribes have never been informed of your decision not to

turn over this material.

Our attorney was at that meeting and I understand in a matter of minutes you

said yes, I will deliver the material. But according to your own reading of the

law, you had several days at least, 10 days to decide whether to turn that material over, plenty of time to contact the tribes and say is this material all right

to turn over, or whatever. But anyway, this material that was turned over is

very important to the tribes and it was never approved by the tribes. It was still

in the hands of the tribes when it was delivered.

So under what I have just said, I do accuse the Bureau of Indian Affairs of

stealing that information from us and delivering it to our enemies, thereby

coming under the trade secret part of the exemption, I believe.

I think that Indians here are being deprived of their personal property, a study

made for the benefit of the Indians, for their actual survival, the study was

personal property and should never have been handed over. The information does

not become government property subject to the law, in your own words, until

they are turned over to the tribe or turned over to the government by the tribes.

The tribes never asked you to approve of this study, to approve of these documents, these maps, never once except at a local level. We have not approved them.

So, Mr. Frizzell, I am asking you from the Indian viewpoint here today, do you

intend to continue on this line or do you intend to become an advocate for the

Indian position?

Mr. FEIZZELL. Elmer, I appreciate you asking me that question. I gives me opportunity to say yes. I intend to continue to be an advocate for the Indian position as I was when the first opportunity came to me under the Freedom of

Information Act on request for information from an Indian tribe. You are right.

There have been three instances where the Freedom of Information Act has

interacted with Indian tribes.

The first one was Northern Cheyenne. We went over to the Department of

Justice. We became your advocate. We argued your viewpoint and we said we

think it ought to be exempt. Our attorney who represents us in court and you

said, no, you can't do that. The second instance that came along was Agua

Caliente. I had been over to argue the viewpoint with the Department of Justice.

There wasn't much use in going back when they gave me an answer.

The third instance was Arizona vs. California. First of all with regard to that

contract, it was not a study that was in the possession of the tribes only. The

BIA funded a $200,000 contract for a study. The contract was between them and

the environmental earth-something, and it was their study.

Secondly, it has not been delivered over to your enemies. We are treating it

like any other request under the Freedom of Information Act. Your enemies do

not have a copy of it yet. They were told they would have to make a request in

writing under the Freedom of Information Act.

We have treated it like any other. It came in. I have referred it to Morrie

Thompson in the BIA for their comments as to what their recommendation is.

When I get that recommendation, then part of our rules and regulations say we

must contact the party involved, which is you. You will be contacted. I am sure

I know in advance what your answer will be. I am sure j know what Morrie
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Thompson's answer will be. I am still faced with the Freedom of Information

Act, the Department is, when the decision has to be made whether to turn it over

or not What I am telling you here in all honesty and candor is I find none of the

nine exemptions that will allow me to say no to the requestor of that information.

Mr. BURNETT. Mr. Frizzell, for over 10 years as an individual member of the

Rosebud Sioux Tribe, I sought records belonging to the Rosebud Sioux Tribe on

all levels, the agency, the Arizona office, and here in Washington, and through

the Secretary of the Interior; and I was refused every time saying the Bureau

said that is a tribal matter and you must get approval from the tribe. That was

the answer from every level.

Now you are saying that you must turn documents over to whoever requests

them. I certainly couldn't get it, even though I was a member of the tribe. I

wonder why?

Mr. FRIZZELL. First of all, you say for the last 10 years. The Freedom of Information Act wasn't passed until 1967. So I can well imagine that from 1965, 1967,

they did say no to you and there was no law saying that you were entitled to it.

Since 1967, though, had you made the request under the Freedom of Information

Act and if you will do so tomorrow under prevailing law, you are entitled to

those items of tribal business that do not fall under one of the nine exemptions

unless you all, these two associations get Congress to amend the Act and make it

a 10th exemption in your instance.

Mr. SCHAAB. I am Bill Schaab. We have had a couple of problems arise in the

water adjudication suit relating to the Freedom of Information Act. I don't

think I want to ask for your opinion or any ruling on those particular questions;

but I would like to have your general comments and those of the experts that

you brought along on the Freedom of Information Act as it is applied in

litigations.

As you are aware, water adjudication suits involve a great mass of technical

information. There are studies which the BIA staff may do. There are studies

which the USGS may do. There are studies which independent consultants may

do. There are a variety of research. In our case, we have also historical research.

The research may be embodied in reports, computer printouts, memoranda,

drafts in preliminiary or revised stages. The materials are passed around among

attorneys, among people in the government, in independent offices because not

only the hydrological, but the historical and legal information tends to have an

interacting effect on the work that the various components of the suit are doing.

Everyone needs to have access to it, be informed of it, develop the thread of

argument, for instance.

This is all a part of an attorney's workout in developing a complex and at

least a very hard fought adversary proceeding. Confidentiality, as you may

imagine, is very important under these circumstances where particularly the

results of the studies may not be conclusive subject to reasonable construction

and possible debate, conjecture and difficulties with cross-examination at a later

stage.

I would like in that overall context to have some of your thinking as to the

effect of the Freedom of Information Act and how it relates to the ordinary

rules of procedure that have some safeguards against the reach of ordinary legal

discovery.

There are materials that are beyond the reach of discovery and preliminiary

stages, working papers and so forth. Once the study has been completed, then,

of course, the expert can be deposed and examined and a study produced on

interrogatories or other methods.

I am talking now mainly about the stage before the completion of the work

and whether or not this Act would require either the government agency involved

or the independent organization whose product is in the possession of the agency

for purposes of review to disclose it before the time when it would be disclosable

under the rules of procedure.

Mr. FRIZZELL. I think I know the answer to that because one of the nine exemptions addresses itself specifically to those types of information. But I have

talked too long. If these guys want to earn the money we pay them, would anybody like to comment?

Mr. ELLIOTT. I don't want to go into the long legal discussion between us as to

each kind of document that you have talked about.

There are a couple of exemptions which might apply in a given case. One is the

fifth exemption which speaks to interagency or intra-agency memoranda or letter

not available by law to the. party other than an agency in litigation with the

agency. What that says is those things which aren't discoverable must be released.
164

That has been subject to a lot of interpretation by the courts. It is very technical. I won't get into it. It resolves down to a difference between factual matters

and things which are opinions.

The other possibility, and I think that is probably less of one, is investigatory

records. It is a very long exemption. But basically, it talks to investigatory

records compiled for law enforcement purposes and it has some exemptions or

exceptions to the exemption which narrow that exemption down.

That was given broad, fairly broad interpretation as to what an investigatory

record was in the past. Apparently, the intent of Congress, they did change that

exemption•one of the two that got changed in 1974. The intent of Congress in

changing that was to narrow the application of that exemption. So there are

some.

But in each case, we have to look at each piece of information and each document. It is permissible, in fact encouraged by Congress to expunge from a document information which ought not be disclosed and disclose that which Congress

in the Act has required be disclosed, even though it may not make any sense to

the person who receives it and reads it where it has blanks throughout the piece

of paper.

Mr. SCHAAB. I guess I had two short supplemental comments. One is, do you

think there would be any possibility of amending the Act, put in a general exemption for situations arising in the course of litigation governed by the rules of

civil procedure?

The second one is, in order to preserve confidenitality in a litigated suit, it

sounds as if the work ought to be done by a private consulting agency instead

of a governmental agency.

Mr. FRIZZELL. You know, Bill, I don't mean to cut you off. You deserve an

answer. My staff and I are available to you and any other lawyer in this

audience after we finish this meeting, for as long as you need us. But I don't

think these people are going to appreciate, or should we take their time to argue

fine legal points?

My reason for being here this morning, and my staff, is to talk to the Indian

community, very frankly, and answer questions they have got. Fine legal points,

I am more than willing to spend time with you; but I don't think they are as

interested in that as some other things.

Mr. BURNETT. I have one other question; I think a very important one at this

stage. I want to know why you as legal counsel for the Secretary of the Interior

did not advise them to use Indian water rights as a constraint on the agreement

between the Secretary of the Army and the Secretary of the Interior on the

Missouri River waterways?

Mr. FRIZZELL. Wendell, are we finished with freedom of information? I am

willing to get into this.

Mr. CHINO. I want to ask, or at least express an opinion here; that is, that

I have known in certain situations where positions have been taken that the

general law does not apply to Indian people unless Congress specifically exempts

or refers to Indian people. I know for instance, like the Federal Housing Act,

the Federal agencies told us that this didn't apply to Indians because the Indians

weren't specifically mentioned in the Act. So we have to get that law amended

so that the law could at least be made applicable to the Indian people.

Now it seems like we are just talking the reverse here. I am like Elmer Savillia

here, I take the position that here is a general law. If the Federal agencies want

to exchange information and they want open to the Washington Post or the

Chicago Sun or whoever they want to, I think that is their business.

But I think that the information of the Indian tribes or the confidential information, I am just as sure as I am standing here, that Elmer is not interested in

the Mescalero, nor am I interested in his tribal information. I think this is our

business and this is the position that I think the tribal leaders take.

Mr. FRIZZELL. Just one short statement, if I may, to answer that. The only

problem I have with your argument, Wendell, is that in the•what was the

NEPA suit, Morton vs. Juarez•the NEPA Act, Congress did not spell out and

say it doesn't apply to Indians, but the court certainly held that it did, I am

sorry to say.

Mr. GERARD (Senate Interior Committee). I would like to pose a question

to several of the representatives from the Administration. Possibly, they cannot answer it at this time. But if the idea would be to advance legislation

that would exempt certain documents or information growing out of the trust

relationship between the trustee and the beneficiary, would it not' be better-for..
166

the former to sponsor that kind of legislation and send It forward to Congress,

rather than encouraging the Indian groups here to go to Congress, try and get

a Senator or a Congressman to introduce a bill.

We would then be faced with the problem of getting a favorable report out

of the Administration and maybe not all of the representatives here understand

the subtleties of legislation. But that report is going to have a very important

bearing on whether or not that legislation will have a chance of flying or not.

I gather from the discussion here that certainly you recognize the problem.

AVould the trustee be willing to send that kind of legislation forward or at least

recommend it?

Mr. FBIZZELL. Of course, this is the old game of the hot potato goes to you. It

is true the Administration could support such a bill, could initiate it, inaugurate

it; but it is also true that the Senate Interior Committee could do the same

thing.

I will tell you what. Personally, I will tell you here and now, I endorse this

approach of an exemption for Indians. I can't speak for the Office of Legislative

Counsel. I can't speak for the Assistant Secretary for Legislative Liaison. I can't

speak for OMB. I can't speak for this Secretary or the Secretary to be. I personally would endorse it.

Why don't we go this route? Why don't we both try to get a bill in about the

same time?

Mr. BURNETT. Mr. Chairman, I move we do just exactly that, have the Administration advance a bill and also ask the Senators to advance a bill.

Mr. CHINO. IS there a second to the motion?

From the floor. I second it.

Mr. CHINO. It has been moved and seconded that the Department and the

Water Conference would each initiate legislation to exempt the tribes on the

information on the Freedom of Information Act provisions.

Dr. MARKS. Forrest, we will arrange for you to meet with representatives from

Justice and from Interior in my office next week and we will work this particular

area jointly.

From the floor. I call for the question.

Mr. CHINO. Are you ready to vote on the motion, even though Dr. Marrs hit

.it in the head already ?

All in favor say "aye"; those opposed say "no."

The motion is carried.