down what we have started. Now this has happened, and what is worse, everything is gone, and we would like to get all the support from the President to carry on what we have gotten, because we are doing it ourselves and we are making progress. Why should we put it down? We feel that we should be carrying on, because this years' money went two ways. We never got what we wanted, and now, when we had the chance to we wanted to continue with this. This is all that I have got to say, and we want this to be considered. Thank you. Senator CHILES. Thank you very much. Senator ERVIN. Thank you very much. Senator CHILES. Delighted to have you. Mr. PLUMMER. Mr. Chairman, I would just like to say that there is a very basic principle involved in this, as you heard Mrs. Lorenzo so submit testimony, in that for once a people who have been suppressed and compressed, and everything else, were able to begin to get education for themselves, relevant education for themselves. There was great hope for this new Indian education bill, in that for once control could be put into the hands of Indian people to direct their education, but just all of a sudden, at somebody's whim, the hopes were dashed and are now pretty much dead unless you as a Congress can whittle down some of those powers that the President has taken upon himself, so that people like our people here can begin to direct their own education. We are tired of being on welfare, and getting poor education, and receiving handouts. We would like to do our own thinking, and we are beginning to do this, but then it is just like putting the plate of food before someone and then suddenly whisking it away before someone even tastes it. I think this is drastic. I think this is just a big shame that the Government, which is ultimately responsible to the Indian people has to play around with human beings like this. I think that in the development of the Indian school that is happening all over the country, there is true human development. We are proud we are doing things for ourselves but if the President continues to do this sort of thing I don't know what becomes of us. You know our history. We have been stomped on and stampeded and everything else. We would like to come out of this rut. Senator CHILES. I think one of the great concerns of the cointroducers of the Indian bill and many Members of Congress is the fact that people are taught from the earliest time that they enter school, when the Congress passes a law, the law will be carried out and just what you are pointing out now we see is happening in all of these areas, and if the people can't have respect for law, what can they have respect for? We often speak that we are a country of laws rather than men and yet this doesn't seem to prove out on the issue of impoundment and I think one of the great concerns of the Congress and the situation you present very graphically sets forth what happens when the Congress does act and when the carrying out of that act is frustrated. We thank you for appearing before us today. Senator ERVIN. Thank you very much. (The following was subsequently received for the hearing record:) SUPPLEMENTARY TESTIMONY SUBMITTED BY BIRGIL KILLS STRAIGht, Gerald CLIFFORD, AND VINE DELORIA, JR., FOR THE COALITION OF INDIAN CONTROLLED SCHOOL BOARDS, DENVER, COLO. The present impasse created in the field of Indian education by the refusal of the Executive Branch to spend funds appropriated by the Congress for special programs in the education of Indian children is without precedent in the field of federal indian relations. We believe that the Executive Branch is specifically without power either formally or informally by usage to impound funds directed by Congress to be spent on Indian programs. We believe that the Executive Branch is in violation of the Constitution of the United States particularly with respect to its direction that Congress by the primary policy and administrative are of the United States Government in its relationships with the American Indian tribes. From the beginning of the Republic, the United States stepped into the shoes of its Mother Country, Great Britain, to assert its right, recognized by the European powers, to assert its title to lands within the continental boundaries of North America. As against the European nations of that day, the newly formed United States had rights to lands but as against the Indian tribes it had rights of purchase whenever such tribes chose to extinguish title to their lands. In recognition of this state of affairs the framers of the Constitution placed in the Congress the primary responsibility for dealing with the Indian tribes. In Article 11, section 8, the Constitution vests the power over Indian Affairs in the Congress by giving the Congress power to regulate commerce with foreign nations, among the several states, and "with the Indian tribes." In the treaty-making power also, which the Congress exercised from the beginning of the Republic until 1871, in the form of treaties, and from 1871 to 1906 in the form of agreements, Congress has powers over the field of Indian Affairs. Numerous pronouncements of the Supreme Court of the United States indicate that the constant interpretation of the Constitution with respect to Indian matters has always followed the construction that Congress has plenary powers over the affairs of American Indians. In Cramer v. United States (261 U.S. 219, 1923), while discussing the relationship of Indian tribes to states of the Union, the Court stated: Congress itself, in apparent recognition of possible individual Indian possession, has in several state enabling acts required the incoming State to disclaim all right and title to lands "owned or held by any Indian or Indian tribes". (p. 228) In 1887 the Congress passed the General Allotment Act to divide the reservations into farming allotments. In the years since that act the Executive often demanded that it have primary responsibility over Indian tribes and leading up to Cramer attempted to transfer such responsibility to the states. The Supreme Court, however, interpreted the acts of Congress consistent with one another thus reaffirming the basic Constitutional principle. In Perrin v. United States, 232 U.S. 478, 486 (1914) when speaking of the plenary powers of Congress over Indian Affairs the Supreme Court said: As the power is incident only to the presence of the Indians and their status as wards of the Government, it must be conceded that it does not go beyond what is reasonably essential to their protection, and that, to be effective, its exercise must not be purely arbitrary, but founded on some reasonable basis. * ** On the other hand, it must also be conceded that, in determining what is reasonably essential to the protection of the Indians, Congress is vested with a wide discretion, and its action, unless purely arbitrary must be accepted and given full effect by the courts. We would very seriously maintain that if Congress is prevented from acting arbitrarily toward Indian matters and Congress has vested in itself the powers to control and supervise Indian matters, then how much more restricted is the power of the Executive when dealing with Indian matters, and how much less the scope of arbitrary actions is allowed the Executive. Again, if Congress, having acted with its wide discretion, passes legislation which binds the courts of the land in their ability to change, adapt, interpret or negate it, should not the executive be also bound in its exercise of its power with respect to the field of Indian affairs. We will not debate the possible constitutionality of the President impounding funds of general laws for the moment. For we maintain that even if he can impound general appropriations once Congress has appropriated funds for Indian matters it becomes a constitutional question and hence a constitutional violation if he attempts to change the will of Congress with respect to Indian matters. For while the President is bound to carry out the general laws of the land in his executive capabilities and capacities, constitutionally he is not given powers in the field of Indian affairs but only such powers accrue to him which Congress itself delegates to him. In the Indian Education Act, the Congress has clearly spoken its will once again with respect to Indian matters. It then becomes the responsibility of the executive branch to carry out the mandate of Congress. The executive branch cannot, on its own initiative, make or change existing policies of Congress. We feel that the Congress must at this time reassert its role as the body charged by the Constitution with supervising and regulating the commerce with Indian tribes. Senator CHILES. This will conclude our hearings for today and so we will recess the committee now until 10 o'clock tomorrow morning. (Whereupon, at 4:05 p.m., the committee was recessed to meet the following morning at 10 a.m.) IMPOUNDMENT OF APPROPRIATED FUNDS BY THE PRESIDENT THURSDAY, FEBRUARY 1, 1973 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS, The subcommittee met, pursuant to recess, at 10:15 a.m., in room 3302, Dirksen Senate Office Building, Senator Lawton Chiles presiding. Present: Senators Chiles, Ervin, Metcalf, and Percy. Also present: Robert B. Smith, Jr., chief counsel and staff director, Committee on Government Operations; Rufus L. Edmisten, chief counsel and staff director, and Prof. Arthur S. Miller, staff consultant, Subcommittee on Separation of Powers; and George Patten, legislative assistant to Senator Chiles, chairman. Ad Hoc Subcommittee on Impoundment of Funds. Senator CHILES. We will reconvene our hearings and this morning our first witness will be Mr. Robert Koch. STATEMENT OF ROBERT M. KOCH, PRESIDENT, NATIONAL LIMESTONE INSTITUTE, INC., ACCOMPANIED BY MIKE STROTHER, VICE PRESIDENT, NATIONAL LIMESTONE INSTITUTE, INC. Mr. KоCH. Mr. Chairman and members of this committee, I feel highly honored to have been invited by you to appear and testify on S. 373 and the profound constitutional question to which it is addressed. Let me state for the record that my name is Robert M. Koch, president of the National Limestone Institute which is an organization of more than 600 limestone producers scattered all across this great Nation of ours. Let me further state that we have recently formed federation called the National Crushed Stone Institute with our sister organization, the National Crushed Stone Association. They have a membership of nearly 200; thus, I am testifying today as an NCSI representative in behalf of nearly 800 stone producers. But, I cannot refrain from mentioning that I, as one of the more than 210 million concerned Americans, personally appreciate this opportunity to talk about my government. And while I am only a layman and therefore am somewhat lost in the myriad of conflicting legal views, I would like to bring to your attention how our industry is being affected by the continued usurpation of power by the White House and its Office of Management and Budget. 90-538-73- -16 |