July 27, 1978

78-43 MEMORANDUM OPINION FOR THE

COMMISSIONER, INDIAN CLAIMS

COMMISSION

Act of August 13, 1946 (25 U.S.C. § 70b(c))—

Restriction on Activities of Former Members of the

Indian Claims Commission

This is in response to your request for our opinion whether a certain 

restriction on activities of the Indian Claims Commission contained in § 2 of the 

Act of August 13, 1946, 25 U.S.C. § 70b(c), will remain in effect after 

September 30, 1978, when the Commission goes out of existence. We 

conclude that the statutory restriction will remain in effect.

The restriction reads:

No Commissioner shall engage in any other business, vocation, or 

employment during his term of office nor shall he, during his term of 

office or for a period of two years thereafter, represent any Indian 

tribe, band, or group in any matter whatsoever, or have any financial 

interest in the outcome of any tribal claim. Any person violating the 

provisions of this subsection shall be fined not more than $10,000 or 

imprisoned not more than two years, or both.

The statute is not limited to prohibiting a former Commissioner from 

representing an Indian tribe, band, or group in a specific matter in which he 

participated personally and substantially or which was under his official 

responsibility as a Commissioner; that is independently required by 18 U.S.C. 

§ 207 and rules of professional ethics for attorneys. Nor is the statute limited to 

the representation of an Indian tribe, band, or group before the Indian Claims 

Commission. The rationale of a prohibition of this type is to prevent a former 

Commissioner from using any residual influence he may have with his former 

colleagues or with Commission staff members or using inside knowledge of the 

Commission’s procedures or tentative conclusions in pending cases for the 

benefit of a claimant.

The statute sweeps broadly, prohibiting a former Commissioner from 

representing an Indian tribe, band, or group “ in any matter whatsoever” for a

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2-year period after his term of office. The purpose is to remove any possible 

temptation for a Commissioner to take official action favoring a particular 

Indian group in the hope of obtaining private employment from them. By 

imposing an absolute bar, the statute also serves to assure the public that the 

integrity of the Commission has not been compromised in this manner. Most of 

these purposes are furthered by interpreting the 2-year bar in § 2 of the Act as 

remaining in effect even after the Commission goes out of existence.

Construing the prohibition to remain in effect after the Commission ceases to 

exist is also consistent with the language and structure of the Act establishing 

the Indian Claims Commission. Section 23 of the 1946 Act, 60 Stat. 1055, 

provided that the existence of the Commission would terminate within 10 years 

of its first meeting or at such earlier time after the expiration of the 5-year 

period of limitation in the Act.The date for dissolution of the Commission has 

been extended several times, most recently to September 30, 1978. (Pub. L. 

94-465, 90 Stat. 1990), but reference to § 23 of the original Act indicates that 

eventual dissolution was foreseeable from the outset. If Congress had intended 

the restriction in § 2 of the Act to be of no effect after dissolution, it could have 

so provided.

Section 3(a) of the 1946 Act, 25 U.S.C. § 70b(b), provides that the 

Commissioners shall hold office during good behavior “ until the dissolution of 

the Commission.” Thus, the “ term” of a Commissioner has always run until 

the dissolution of the Commission. In these circumstances, we believe that the 

prohibition against representation of any Indian tribe, band, or group during a 

Commissioner’s term of office and “ for a period of two years thereafter” must 

be read to remain in effect after dissolution of the Commission.

M a r y C . L a w t o n

Deputy Assistant Attorney General

Office of Legal Counsel

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