CONGRESSIONAL RECORD-HOUSE

H.R. 5858-MEMORANDUM OF DISAPPROVAL

I am withholding my approval of

H.R. 5858, a bill for the relief of three

silver dealers who suffered business

losses as a result of their short market

positions resulting from a decision by

the Department of the Treasury to

terminate the sale of Governmentowned silver on May 18, 1967, without

honoring the dealers' telephonic re- quests made that day to purchase

almost seven million ounces of silver.

These claims were the subject of

very extensive proceedings before the

former United States Court of Claims,

which on May 18, 1967, held that no

legally binding contracts to purchase

the silver had been established by

these claimants, because the claimants

(1) were clearly on notice that the

Treasury's involvement in the silver

market was altogether inseparable

from monetary policy, (2) had reason

to expect that Treasury would abandon the marketplace just as soon as doing so would serve monetary policy,

and (3) knew that Government silver

sales would end soon in view of the

published report that Treasury's

supply of silver was being rapidly depleted. (Primary Metal & Mineral

Corp. v. United States, 556 F.2d 507

(Ct.Cl. 1977).)

In parallel proceedings before a trial

commissioner of the same court pursuant to a Congressional Reference proceeding under 28 U.S.C. Sections 1494

and 2509 (1970), the trial commissioner had earlier found that the same

dealers had valid breach of contract

claims, even though he, too, found

that they were well aware of the potential for a sudden termination of the

sales program. After the court had re- jected his analysis, he nevertheless

concluded that the claimants had "equitable" claims sufficient to justify

private relief legislation merely because (in his opinion) the Court of

Claims was wrong in disagreeing with

his legal theory. In its report to the

Congress, a review panel of three trial

commissioners, without explaining its

reasoning, stated that it agreed with

this unprecedented rationale for the

existence of an equitable claim against

the Government.

To permit the silver dealers covered

by H.R. 5858 to recover over $3.3 million without any findings that they re- ceived inequitable treatment from the

Government, in the face of the unappealed holding of the Court of Claims

that they had no legal claims against

the Treasury, would establish an undesirable precedent for payment of a

host of claims to claimants who may

have encountered hardships due to

business decisions made with full

awareness of the risks that a change

in a Government property disposal

program might entail. No doubt many

similarly situated individuals have had

their expectations frustrated in the

past by similar program changes. To

single out these three claimants for

special relief would be unjust to the

others, while payment to all for frustrated expectations would result in an

unacceptable interference with the

Government's ability to decisively and

expeditiously respond to developments

affecting vital national policies. For

these reasons I find the bill unacceptable.

RONALD REAGAN.

THE WHITE HOUSE, January 4, 1983.

S. 2623-MEMORANDUM OF DISAPPROVAL

I am withholding my approval of S.

2623, which would amend the Tribally

Controlled Community Colleges Assistance Act of 1978 and extend its authorities through 1987.

I am taking this action with reluctance, because my Administration is

deeply committed to providing educational opportunities for American Indians. Education is critical to economic

betterment for all elements of our society. It is an equally important aspect

of increasing self-determination for

American Indians. I support fully the

intent of S. 2623 to improve existing

Indian community college programs.

My Administration is dedicated to furthering this goal. The bill which is

before me, however, includes a number

of provisions that are unacceptable

and that do not contribute to enhancement of Indian education.

Foremost among the unacceptable

provisions of this bill is section 2,

which would declare the Federal government's support of tribal community colleges to be a part of its trust re- sponsibility toward Indian tribes. College level Indian education has never

been characterized in law or treaty as a trust responsibility of the Federal

government, and to do so now would

potentially create legal obligations and

entitlements that are not clearly intended or understood. Such a declaration is wholly unnecessary to the continuation of a successful program of

Federal assistance to tribally con- trolled community colleges.

Although the conference report on S. 2623 suggests that "Federal policy

(on Indian education) should be clear

and unequivocal", the enrolled bill is

highly ambiguous as to the nature and

extent of this new policy of trust re- sponsibility. S. 2623 imposes what the

conference report itself admits is a "very general" trust responsibility.

However, neither the bill nor the

report makes any attempt to define

the nature or extent of that responsibility, except to suggest-in nonbinding report language-some concepts

that are not intended. This vague non- statutory language could be interpreted by the courts in a variety of ways.

It could be read as establishing a trust

relationship that creates an absolute

responsibility to provide assistance to

tribal colleges and Indian students re- gardless of need, and it could establish a highly undesirable precedent for

making all Indian social service programs a part of the Federal government's "very general" trust responsibility.

Finally, section 2 would also provide

that grants could be used for the improvement and expansion of physical

facilities. When the program of assistance to tribally controlled community

colleges was originally conceived, the

Congress contemplated use of existing

community facilities. To begin a major new building program when there are

so many other competing tribal needs

would be duplicative, unwarranted,

and ill-advised under current economic

conditions. Funds provided through

the Bureau of Indian Affairs for the

tribally controlled community colleges

assistance program are for program

support only, and should remain so. Another unacceptable provision is in

section 14(b) of this bill, which would

subject regulations issued by the Secretary of the Interior under the program to an unconstitutional legislative

veto device presently found in section

431 of the General Education Provisions Act. The Attorney General has

advised me, and I agree, that two

Houses of Congress cannot bind the

Executive Branch by passing a concur- rent resolution that is not presented

to me for approval or veto. Such a provision unconstitutionally encroaches

on the principle of separation of

powers that is at the foundation of our

government.

In addition to these strong objections, I also have serious reservations

about a number of other provisions of

the bill, which could significantly increase Federal expenditures in a time

that demands fiscal restraint. Those

reservations have been explained in reports and testimony of the Department of the Interior on the bill.

The authorities in the Tribally Controlled Community Colleges Assist- ance Act are not scheduled to expire

until September 30, 1984, under cur- rent law. Accordingly, there will be no interruption of our current successful

program activities as a result of my

disapproval of S. 2623. It is my hope

that Congress will reconsider legislation extending the Act early in the

next session and enact a bill which

both advances the program's objectives and meets the Administration's

objections to S. 2623.

RONALD REAGAN.

THE WHITE HOUSE, January 3, 1983.

H.R. 7336-MEMORANDUM OF DISAPPROVAL

I am withholding my approval of

H.R. 7336, which would make certain

amendments intended to improve the

implementation of the Education Consolidation and Improvement Act of

1981.

I continue to support the objectives

of both Chapter 1 and Chapter 2 of

the Education Consolidation and Improvement Act. However, I cannot approve H.R. 7336 because the bill makes

33440 December 21, 1982