close students to ask yourselves when have you ever have led one group of justices accusing the fast judicial overreaching on the one hand not to mention, "of verbal wizardry that took us too far, too deep into the forbidden land of the

softest that's obviously not the leverage that we typically read in these opinions. so the affordable care act having survived one near-death experience now moves on to what may be the next one, the november elections. but even the very strong language that was of waste by the dissenting justices, and in some instances by the chief justice himself, we now know what a majority of the court thinks the government cannot compel us to do something we are not doing already unless it calls a tax in which case it can and in which case tam put it on the health affairs blog yesterday millions of americans were able to go to sleep last night secure in the knowledge that the federal government cannot meet you eat broccoli. [laughter] we move on now to discuss a little bit more in detail and in

depth with the decision said and what it means going forward not just for the field of constitutional law but for all the other concerns i mentioned. and we have a very distinguished panelists as i said that will address that today. they are each going to come to the podium and speak for about five minutes and then everybody will sit down and we will get into some q&a and a lively conversation. what we will hear from first from louis michael seidman, the constitutional law at georgetown in university and author on constitutional disobedience. he's also the author of constitutional law. you will hear next from david rivkin, jr. eight tauter mur and lead counsel for the states that challenge the constitutionality of the affordable care act. after that we will hear from sara rosenbaum from george washington university school of

public health and health services. she also directed the legislative drafting of president clinton's health reform proposal back in the 1990's. after she speaks we will hear from timothy westmoreland visiting professor of law at georgetown university and former director of the medicaid program and counsel to the u.s. house of representatives subcommittee on health and the environment. and then finally come to the organizers of today's conference we will hear from gregg bloche also of the hipaa craddock met and adviser to president obama's 2008 campaign and transition team comes with that i will turn things over to mike seidman. >> thank you, susan for coming. i want to start with a confession. my prediction about the outcome of the case was completely

wrong. if i get any sense at all i would go out of the prediction business. [laughter] i thought it was barely possible that the court would uphold the mandate. if you had wanted to bet that they would do so with the chief justice casting the deciding vote and the tax clause i would have given you 1000-1 odds than i was poor yesterday. i think the interesting question the morning after is how did this happen. lowe was john roberts thinking it? how could it be that in the two most important cases of the term, healthcare and immigration, john roberts cast the deciding vote on the liberal side in both cases. so i want to start by raising two possibilities so as to quickly dismiss them. perhaps justice roberts, chief justice roberts just looked up the legal materials, the words of the constitution and the court's prior precedent and concluded that this is what he

had to do. that position is just not plausible. david rivkin and i agree on almost nothing but i think we would agree that roberts could easily have decided that the mandate was enforced by a penalty rather than the tax, and frankly some of the arguments that he makes about the commerce clause and the spending bloche don't pass the straight face test. here's another possibility. john roberts has had a midlife conversion. perhaps he looks up one morning and decided thurgood marshall was right all along. if these are not the explanations, then what are? let's take a moment to think how the world looked to john roberts at 10 a.m. yesterday morning. recent polling data shows that while the supreme court remains more popular than the presidency

in the congress, confidence is declining fairly sharply and there is now a majority of americans who have confidence in it. almost three-quarters of all americans think that the justices use political considerations rather than the law to decide some cases. that impression is reinforced by the fact that the most important questions republican appointed justices are almost always on one side and democratically appointed justices on the other. the conservatives on the court handed the election to george bush in bush v. gore and may well have handed it to mitt romney and citizens united in the case upholding the voter i.d. laws. and we had a spectacle last week of justice scalia openly attacking president obama in a partisan rant delivered from the bench and the spectacle of a couple years ago of the president attacking the court as

the justice sat listening in the well of the house. then we have what is likely to lie ahead. the court invalidated all of affirmative action, and invalidated the 1965 voting rights act, the centerpiece of the civil rights revolution by probably 5-4 votes among the familiar democratic lines. faced with this collapse of the myth that the court is acting according to the rule of law rather than politics, they couldn't be happy to pursue for the first invalidation of a central piece of the president's domestic agenda since the new deal. so that's the background. what about the case itself? there were certainly reasons robert might have wanted to invalidate the act. the commerce clause argument against the mandate has become a central defining tenant in the conservative legal dogma and he wouldn't want to be associated with rejecting it. the spending clause argument

holds the possibility of restricting federal social legislation going forward. he wouldn't want to reject that either. but there were also reasons to uphold the mandate. the mandate is quite unpopular but other provisions in the bill are quite popular. strike down the mandate and you take the repeal of the table and leave the republicans in the unenviable position of defending the repeal of the popular provisions, pulled it and roberts can run on its own popularity. moreover many experts think the health care bill was likely to unravel without any help from the court so why not let obama stew in his own juices? so, how are these positions to be reconciled? as it turns out brilliantly to cast the vote, the deciding vote as publishing the commerce clause argument and the spending

clause argument but also manages to save the mandate while effectively accusing obama of breaking his campaign pledge not to raise taxes on the middle class's. a pretty good day of work was justice roberts opinion political? you that it was. but the best politicians are the ones who manage to act politically while appearing to act on principle. chief justice roberts is one of the best politicians of our time [laughter] >> pleasure to be with you this morning. it's not as good of the morning as i would like to be but it's not a bad morning over all. let me talk to you a little bit about what i see on the long-term implications of a decision coming and we can talk about what made the chief justice do what he did as a

prison site may be leader. i am basically quite happy with what i consider to be the long term jurisprudential process up o penn yan and the arguments pressed forward for the last two and a half years and wreaths and oral arguments and some of the op-eds have been almost perfectly by a the decision. professor seidman and i would disagree with who is right and who's wrong but to be fair, and i think that you agree the folks that have been defending the individual mandate on the commerce clause have to concede that the ship has sunk. as hard -- as far as the tax the key players in the legislation was made by the government in the district court level and pressed very little of either in the 11th circle and very little in the evelyn and supreme court

briefing. so, we have to acknowledge that that's what happened and that is a good thing. i will tell you that from a long-term -- by the way one of the things i want to emphasize for me this case isn't even about health care it's been about the vitality of the constitutional architecture, about the system to paraphrase not just to the chief justice but justice kennedy and his concurrence in lopez is the most distinctive unique feature of the constitutionalism. as you know the federal government exercises the powers, the state exercise the great brazilian general police power that diffusion ensures accountability prevent any single set hands from amassing all the power to protect individual liberties. even better the commerce calls are demands have been founded in the years of jurisprudence. they were a little tricky and i remember numerous debates people

not even in academe that the brief writing in the court context debating that we proceed with a traditional two-step necessary and then what is the significance of justice scalia's language. it's perfectly crisp and clear how buckles works and the fact that it is an adjunct what the framers of the sweeping cost of implement the enumerated powers that it's not an independent grant of authority that it does not allow you to skate th cesin constitutional limitations. obvious points tome but i doesn't make it any less exciting that the justices have embraced. it's a great day for the proper clause. on the spending clause in 1937

case and of course the dole case we know there is a notion out there that there are some restrictions on the spending power and again take the proposition the federal government has enumerated power either if you look at these individually all among them working together why shouldn't they be in the spending power, but i am gratified coming enormously gratified the court actually spelled it out. so the vertical separation of power is safe and in a long run is a very short thing, 5-4 decision. but on the spending clause four which i give roberts considerable credit what is unfortunate about the case i think is more tactical and again leaving aside the motivations i would say the more idealistic person just by being a practicing lawyer in this panel

on would ascribe it largely to the legitimacy of the court and not some refined political calculations about whether or not it's going to help romney were president obama. that is cynical for me. but leaving that aside what bothers me the most is the court threw out the statute. so if you want to put it in a very pithy way it protects the vertical separation of power which is the key part of the constitutional architecture while dividing the horizontal power because the court is not supposed to read right statute. that is the essence of being a legislature. and by understand the constitutional avoidance and you can talk about it but i don't think any series in the law would say it was constitutional. the court reroute first the individual mandate, and we can talk about in greater detail why it's not a valid exercise of taxing power aside from the fact that congress clearly said that it's not a tax and you don't

need to call it what it is you don't need to label with the legislation clearly says it's not a tax it's a bit jarring to transform it into a tax but the discussion about the direct taxes is historically wrong and the legal the incoherent that is and how it is supposed to work. but also the court rewrote the medicaid sanction because the court someone said you cannot have compulsion you can destroy them in a variety of ways where it is a sure way of destroying things every bit as conscription allow prince in new york or taking over general police power in the supremacy clause and the regulatory autonomy. that way you can do the greek way. that's great. they rode the section to give states a choice. it's not there. so at the tactical level, if

perhaps i think it's a very jarring but in the long run the basic contour of the subpoena were going to be very important and i would say justice ginsberg dissent is quite vitriolic it's fairly unusual to underscore why i'm right in drawing those long-term implications here. thank you very much. >> my task is to try to describe in five minutes or less what this decision means for health reform and the transformation of the health care system. i think the starting point obviously is the essential green

light the decision gives to the entire act, which of course is the enormous in scope and goes way beyond the issue of coverage itself deals with essentially system transformation on matters of health care quality, healthcare access, improvements in the public health, bringing greater transparency and compliance to the expenditure of health care funds. it would have been putting aside the legal significance it would have been an almost unthinkable step to have done what they wanted to do because already has been set in motion there have been articles of course in the past couple of weeks in the barrage of newspaper articles and other reports that the

decision having to do with what it would mean to stop the law in its tracks as a whole world would continue on, but what and continue on. there is no question that had the law been repealed in its entirety for the decision certain things that are already under way in the health care system might have proceeded just the way as in 1994 the managed care revolution preceded even when the efforts to reform coverage stopped. but the law set so many things in motion and makes some investments in the transformation that i think it is preservation absolutely any essential underpinning to progress in health care as well as of course the new era of what it means to be an american where health insurance coverage is concerned. most of the questions of course have come up about medicaid. it happens that the area that i know the best in insurance law is medicaid, so when the decision came down yesterday, people in my office turned to me

and said you are toast. and it became my job for roughly 12 hours to try to help people understand what the court had done in medicaid. i actually disagree with david rivkin on his characterization. if you open up the statute books today, not that anybody has had time to start real writing things but if you open the statute books today, you would see that the medicaid expansion group, that is all of the individuals whose coverage is subject to 100% federal financing under the new law is exactly the same expansion group that was yesterday. it sits in the same place in the medicaid statute. what has changed is not that group and not congress's power and certainly not the power to

spend money in this grand not even congress's power to enforce its expectations regarding coverage of that group in the case of states that participate in coverage. what has changed is the armamentarium of redis that are available to congress when it comes to assuring some aspects, not all aspects but some aspects of compliance. how did we get to this? it is one of the great deeds of all time. in fact i said to a friend last night those of us that think most about health insurance of the poor and underserved should really call the children and adults double benefit from the expansion just like those of you that no medicaid know that there are children that to this day are referred to as read it off

to the trustee six ribicauf children. we received how he arrived at what he did because as justice ginsberg noted seven justices who thought that some aspect of the medicaid expansion was unconstitutional. but what chief justice roberts told us it is it was only unconstitutional to pursue certain types of enforcement remedies as opposed to creating this group, citing expectations for this group assuring the coverage in accordance with those expectations, so how did he do this? he did it by imposing what i call the two state solution on the medicaid statute sort of superimposed an astounding, but

absolutely crucial life-saving distinction between what the medicaid statute requires or provides for and how those requirements get enforced so he essentially said look, the expansion is totally lawful and congress has the power to spend money. it is to threaten states by withholding money from an existing come from their existing medicaid program over their failure to implement what he calls a new program, and he of course was able to convince justice breyer and kagan to go along with this and clearly sotomayor, justice sotomayor and ginsberg were scratching their heads, but the net effect of two state solution of calling the new expansion group their own program meant that he could then

bifurcate the enforcement on medicaid and hope that because the enforcement provisions of medicaid and social security act provisions are subject to their own severed above clause it's possible to uphold the expansion while at the same time limiting enforcement of the provision. so what we are left with is something that i would say we can't really call a state option today. it's something. it's an element of the program that is the new affordable care act eligible. it's subject to different rules having to do with enforcement. we await guidance from the secretary regarding how she plans to implement the decision sort of superimposed on the statute by am convinced today that 60 million poor children and adults will have their benefits precisely because of what justice roberts did here. i think that just in closing on this issue of implementation,

january 1, 2014 comes around we will have a few states that have not either implemented either in whole or in substantial part assuming partial implementation is even a possibility here we don't know yet. what i think that the urgency of the problem is too great. the situation facing the health care industry is serious and needless to say the situation facing 16 million people was too large to ignore. >> i need to begin with a couple of disclaimers. the first one the most obvious is the views i represent are my own they shouldn't represent past or future and with lawyers and the second one is on like david i do not focus on constitutional law i focus on

the health care law so limit myself to those comments and then finally, as is usually the case when i follow sara rosenbaum my computer and concur. [laughter] my major points today are that i think that the roberts opinion there is no real harm to the affordable care act, but it is a fundamental mischaracterization for both as a program and a legal concept past and present. first no real harm the court struck down is an enforcement tool as described that no federal official has ever had a or ever would use cutting off all federal matching opinions to a state that is doing too little in its medicaid payment. no one would support this action. it punishes the wrong people. it's cutting off poor people's noses to spite legislative. it's always been a basic problem the federal government has largely ineffective remedies

against that underpay or underperformed the state underspins the federal government can respond to that it can take a disallowances and refuse a portion of matching payments to the state or even ask for a refund. i was in the unenviable position during the donations and taxes of signing a letter to a governor saying please remit $1 billion to the federal government. if the state spends money on the wrong finger the fed can do the same if a state were to spend money on the ineligible people or uncovered services, the fed can respond in the future but how do you take money back for spending too little? would you accomplish? no administration pastore present would cut off all federal funding. it's useful as a bargaining tools talking with the governors

may be but it's also possible for states simply to bear the fed to do something about. i also falling out on something sara said the tool will be needed to get the states to take part in a new expansion under the affordable care act. with federal funds for the first three years and then glide down over several years to 90% for all future years. that's the highest match ever in any federal state health insurance program. i think the easiest historic analysis here is the children's health insurance program it's clearly voluntary yet all states take part in it. it's higher than traditional medicaid but it's not nearly as high as what the aca will provide for medicaid. i would also point you to other optional categories of eligibility and medicaid and

other option benefits and services. one of the newest ones is eligibility for women who find they have breast or cervical cancer also paid a higher matching rate and i believe all 50 states are in compliance with. and then there's also from the other side not just the carrot that the stick perhaps the very counter intuitive nature possibility that the state could end up if it chose not to participate with its very poor citizens being altogether on insured -- on injured and no one else. the people under 100% of poverty are not eligible under the statute to take part in the exchanges of the affordable care act. oddly enough, the only people under 100% of poverty eligible were illegal aliens who had been here less than five years. a will be a very strange circumstance for a state legislature were governor to be looking at its population and say these are the only people that we choose not to cover.

in addition to that there are going to be pressures from providers of health care services in those states who were not expecting to see a whole lot of the uninsured and uncompensated care in the future. the least not among citizens. so i think the tool that we have lost is never won the would be used and one that probably isn't necessary. but i would go on to say that i think the roberts characterization of the past expansions and the present one in the affordable care act betrays misconception of the medicare program. his opinion suggests that the central feature of medicare is the eligibility category whereas i, and i think most observers republican and democratic that have worked on the program would say that the central feature of the medicaid program is people's low incomes. the existing program is not as opposed to how i think the

roberts characterization runs the existing program is not to all pregnant women regardless of income. it is not to all people with disabilities regardless of income. it is not to all children regardless of income. the common denominator among the many different eligibility categories and man existing program as low-income inconsequential the, adding the remaining poor people in america to the program i think it's exactly ..

>> thanks a lot and thanks for susan for moderating and to our wonderful events program for putting this event together. i have my own admission to make. as does mike. i thought the mandate would survive because i figured based on oral arguments that justice kennedy couldn't possibly vote against it.

at the oral argument kennedy said this about americans without health insurance, the regulatory target of the mandate. quote, they are in the market in the sense that they are creating a risk. the market must account for it unquote and a little bit later he added quote the young person who is uninsured, is uniquely proximately very close to affecting the rates of insurance and the cost of providing medical care in a way that is not true in other industries. that is my concern in this case. barrett is. he is going to be the fifth vote in this narrow opinion that upholds the mandate or at least finds a way to punch so the mandate is left intact. i thought it was game set match and i was going to bed on in trader making lots of money until i saw they had to pay $5 a month for the use of the site and i'm too absent-minded to

unregistered. might propose to bet a quarter on this and based on my rationale i think, i think that i should now -- [laughter] [inaudible] [laughter] if the uninsured work quote and the health care market unquote for kennedy using health care when this became reality, then the mandate regulated their market activity. it didn't force them to engage in commerce, but the temptations of a broccoli proved too great for justice kennedy. he somehow said his concern about the creation of risk aside. in the eyes of most -- progressives who backed the mandate and some single-payer

supporters who oppose the mandate going so far as to file an amicus brief, they opposed it as a giveaway to insurers but in the eyes of most regresses, who supported the mandate, justice kennedy just didn't get it. that is, he didn't get the argument given home by liberals in the courts and think-tank talking points. the argument that people who can afford insurance and don't buy it are free riders, even freeloaders who burden the rest of us by saying no to health insurance in and getting emergency care that is paid for by the rest of us and you all heard that argument made. it's an appealing argument and it's a really nice sounding message about personal responsibility, but as an economic proposition, it is deeply flawed. conservative opponents of the mandate identified the flaw and in their reece and oral arguments drove their message home with powerful effect. only justice roberts bit of take your pick, statecraft blanked

out of history judgment or is he trying to build street cred for radical judicial activism next year? whatever he was doing, which i guess people will argue about through the ages, save the affordable care act. the flaw in the free rider argument obscured by the rights broccoli talking point is inquiring the uninsured to write coverage acts like a text. it serves the same function as actual taxes and health care systems like canada's and many others should provide in some form universal public coverage. at it rings money into the risk pool to cover the sick. since the uninsured as a whole are healthier than most americans. the anti-mandate side brought this message to court which results were devastating with the argument of the mandate merely regulating barcott activity. and justice roberts words, in his opinion for the court quote, the longest quote, the

individual mandate regulation of the uninsured as a class is in fact particularly divorced from any link to existing commercial activity. the mandate primarily affects the healthy, often young adults who are less likely to need significant health care. it is precisely because these individuals as an actuarial class and her relatively low health care costs at the mandate counter effect of forcing insurance companies to cover others who oppose -- pose greater cost than their premiums are luxury but. at the individual mandate targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature. and of justice roberts words, but it's hard to argue with that opposition. this is what killed the creation of the risk argument for justice kennedy. and almost killed the affordable care act.

had this court and contents with this last 75 years of commerce clause jurisprudence, the free rider argument might have been enough. but for an activist court intent on going back three-quarters of a century of commerce clause jurisprudence, across subsidies from the healthy to the sick obscured by the free rider argument were fatal. the argument over whether being at risk for illness, but not buying coverage constitute action or inaction does not have a purely logical answer. this argument is a mere placeholder for that classic american complex between muscular economy on the one side and public provision on the other side and we will now have added over this issue in our politics. tweaked by the supreme court through the citizens united and the like, the most immediate consequences though of, the most immediate consequences of the court's decision is that an

election will decide the fate of the affordable care act. meanwhile, as sierra and can point out implementation will proceed but the pace will vary. key party dominated states will slow walk or states and their versions of a sitdown strike over the creation of exchanges and many other features including sarah sintim subject medicaid expansion and in the coming electoral season many will complain about the cost of extending coverage to 30 million. and i will conclude by observing this, that the costs objection is mere cover for philosophical objections to public decision for people's needs. the increased cost of covering 30 million is perhaps a little bit greater than our typical annual national increase in medical expenses and it's a one-shot increase, and it's much less significant in america's medical spending picture over several years or more than our rising medical costs.

so the real cost problem isn't the cost of covering the people who go to sleep at night anxious about what is going to happen if they discover a loved one has a tumor and how is that going to get paid for. the real cost problem is the long term trajectory of our health care spending, the long-term rise in all of our medical cost. our fiscal equivalents of global warming. the challenge that our politics has hardly begun to take up and that i hope will start getting attention soon once the coming kerfuffle of the affordable care act dies guys the way. thanks a lot. >> alright, well we have had a terrific range of perspectives provided here this morning and let's just briefly recap what they were. we heard from gregg that they bet wrong initially on the outcome of the law like about almost everybody else i suspect.

[inaudible] [laughter] but you are a law partner. >> well transfer. >> mike went on to express the question that most plagues him which is why did justice roberts, chief justice roberts do what he did? you heard mike's theory that this really was an absolutely brilliant political move. justice roberts seems to brilliant not just by half but certainly by three-quarters that he was able to cast the vote that saved the mandate while still framing the president as the person who lied about not raising taxes on the middle class because the mandate is a tax on the middle class so that was his reason for designating chief justice roberts is one of the best politicians of all time. we heard from david that the

decision obviously he is not happy with a 5-4 final vote but there was much in it to like for those who brought the suits in the first place. first of all, the commerce clause leeway that would have been granted had the court decided that the commerce clause did grant the leeway, that shift as he says has now sunk. that is over, that discussion is over and he went on to say that, from his perspective, what in effect the court said overall on his interpretation of the spending clause and of the necessary and proper clause, took the interpretation in the direction that he would have approved of. david said that this case has never been about health care, which is a proposition i would like to come back to later and ask the rest of you what you think about that because although obviously it was

decided on constitutional grounds i think the opinions pointed in health care and how spot -- health policy but we can revisit that. and in the end, as you heard david's ultimate concern, that the problem is that while the court very clearly spelled out some of the strictures that i just talked about, or at least made it clear that the commerce clause was not going to give birth to the individual mandate, that he did think that there was an overall problem with the congress having -- excuse me the court having rewritten the medicare statute in particular and also having gone through this verbal whatever, twisting and turning to decide that something was on the one hand a tax that not a tax. from sarah we heard overall her feeling that the court happily in her view represented a green

light for the entire aca, but moving to the medicaid portion of the decisions, on the one hand, as she pointed out, it looks as if the court did in fact give a clear green light to the medicaid expansion, but monkeyed around with the enforcement standards and the unfortunate remedies that the congress could err su if in fact courts elected or if cities and states elected not to go ahead with the medicaid expansion. and so by combination of first of all designating medicaid or the expansion population as a new program, as opposed to just a change in the existing program, as she put it, this created a kind of a two-state solution that will be -- has created something not quite like a state option now to expand medicaid, but certainly a state option --

it's not legally a state option. it gives the states now the choice of not expanding the program and therefore not being subject to the penalties of losing all of their medicaid funding. as she concluded you heard, that there probably will be a few states in january 2014 that will have decided not to expand medicaid but the vast majority will nonetheless go along. you heard from tim westmoreland similarly a feeling that the court went down a very troubling direction in the case of what it said about medicaid, and that essentially the roberts opinion mischaracterize the program, mischaracterized it from the standpoint of both characterizing the expansion as a new and different program and also fundamentally mischaracterizing it in the sense that the opinion seemed to read medicaid is being a question of eligibility

standards all put together as opposed to a defining overall standard of low income, so you're low income pregnant women, woman, you are a low income blind person, you are a low income elderly disabled individual but the standard is that you are low income. and then by creating this, or having this different understanding in effect as you heard from tim, it seems to suggest that the court, or at least justice roberts, fundamentally misunderstood in tim's words the past, the present in the future of the medicaid program. and then finally finally as you just heard, we heard from gregg. he also has made a prediction, and having believed it was going to be just kennedy who would come around and make it a majority to uphold the affordable care act, and then going on to conclude that essentially the court upheld the understanding that the penalty

was not in effect i guess gregg literally put it, it was not there to market with -- regulate market activity. and then gregg closing by making the observation that the real problem here is underlying the entire health care system is that long-term rate of growth in health spending and to the degree that the states will complain about costs inherent for example in medicaid expansion and even after, notwithstanding the fact that the federal government is going to pick up more or the bulk of the cost of the expansion, that the state can still be left with some of the tab, gregg indicating that cost complaint is really covered for not wanting to cover the population in the first place. with that we have come as they say, diversity of perspectives here to talk about. let's go back to the fundamental point that david made, that the

court case was never about health care all along. i would like to hear how all the rest of you feel about that. sarasarah, let's start with you. >> you know, at one level i completely agree, that there might have been certain resenting issues that would have brought to a head the same kind of profound constitutional questions that arose in this case. on the other hand i am not sure that anything other than health care would have led quite to such a blockbuster law. the complexity of markets, when are you in the market and when are you not in the market? you know, when do we not want to call something a tax when it really is a tax? health care has always had this unique ability to galvanize

lawmaking and to raise passion in ways that i think are quite unique and we certainly saw a version of that with the financial regulation law, but that lott was really much more about regulating industry. here, you can see how in health care, any solution to the vast problems we face in the united states requires pulling sort of a whole bunch of levers at the same time. state and federal relationships, individual's relationship to the government, industry's relationship with government and of course the individuals, and so while the case technically might be perceived as sort of health care, health care is a byproduct. on the other hand i'm not sure that any other major social issue facing the united states would have brought us to this point. >> it i will just say very briefly at one level every case is about the max circumstances.

we also know that every case is about holding that so i think precise as it was about health care. what i was trying to say to people like myself and people involved in the case, it was about constitutional principles and let me say this. sara is right. as a matter of politics and policy health care provided a uniquely suggestible target for these types of unconstitutional strictures being enacted. but on the other hand let's consider the fact that for two and a half years the government being represented by a superb lawyers from day one in this court, to solicitor general verrilli in the supreme court has not been able to answer a single simple question. wears a limiting principle if you can apply the commerce principle by itself or the necessary clause what can you do? is precisely fair the failure to answer this question not because it's silly or stupid. what made this so compelling is

being about the constitution and again, we are not supposed to lose sight of the social and policy equities but if we take the law seriously cannot be primarily about that. it has to be about the law. >> him? and then mike. >> i would say that i can answer the question because it's like trying to do dissect how many hurricanes there aren't a perfect storm. i would say that health care is probably the biggest of the hurricanes because it has been such a central debate since the new deal and an underachieved ambition for 80 years and also the way that it makes us as a nation stand that different from all the other industrial nations. it's something that we have always been exceptionally bad adat, so i think it just becomes the biggest storms in a perfect storm. >> i would say also, i can answer the question but because it's really too early to tell,

certainly david's hope and i think chief justice roberts hope is that this will be the opening wedge in a redefinition of our commerce clause jurisprudence and more generally in our willingness to accept the modern welfare state. and that might be right, but there are some reasons to doubt that it will be right. for one thing, despite his claim to the contrary, roberts, his entire discussion of the commerce clause differs. speak it is what? >> it's not necessary for the holding and another thing, i won't go into the details here but the tasks that he articulates both with regard to the commerce clause and with regards to the spending clause are just completely empty and could be utilized to achieve any result in any case. >> say more about that because

you made that comment in your opening remarks. what about a? >> for example with regard to the spending clause we have to distinguish whether this is an expansion of existing the existing program or a loophole. this is what the great law professors felix cohn called transcendental nonsense. there is no such thing as that, so somehow extending the program to pregnant women is an expansion of the program but extending it to people at 133% of the poverty line as an existing program. i mean you can just do anything you want with a test like that. also, it's worth noting that this was a 5-4 decision and whether in the end i think, whether or not david is right will depend on the next election, and who the next justices are and whether even if

obama wins the next election, he can possibly get anybody confirmed by the senate of the united states. >> adjust want to make one observation about the relationship between this case and health care. whereas health care played any role a unique role in terms of constitutional law, it is the unique complexity of the cross subsidization patterns and the institutional arrangements in health care. a complexity which the united states has persistently diluted the media for the most part. and made it possible for the various sites, and i think that there is equal opportunity offenders here across the political spectrum, the various sites to tell partial stories both in the courts and in the media. about how these subsidies work and for the purpose of me can there.. and i think dare i say, the

leading constitutional lawyers of our time had a real problem grappling with this. this was most dramatically apparent plan general verrilli's claimed he had problems getting out some of the arguments about cross-subsidies. but i think it was apparent also in the way that justice kennedy metabolized and gagged to be arguments about cross-subsidies. and the system was basically not able to swallow and process health care because it's so complicated. >> perhaps in anticipation of the observation the chief justice -- page 42 in his opinion to say as follows. the statute reads one naturally as a command to buy insurance as a texan i would uphold it as a

command of the constitution. >> only because the commerce clause does not operate such a command that it is necessary to reach the taxing power question. it's only because we have a duty to save a fairly possible section 5000 a. can be interpreted as a tax. wild deciding the commerce clause question i would find a basis to adopt such a sponsor under the standard accepted rules of parsing opinions. the view of the decisive vote which is roberts, the essence of the holding. that is not the interesting question. >> that is an interesting question to me. to me and esters in question is on the medicaid stuff because i think my colleagues are missing one fundamental point. it is not the nature in a mechanical sense to go from pregnant women to non-pregnant women. if you take state sovereignty seriously, it is a simple matter

ladies and gentlemen of dollars and cents. if you start with the probe ran like dedicated, that is affordable for the states in the long run taken them down the path of greece. it is one thing. if you enlarge the program however, you bring in new classes of beneficiaries are you enlarge the size of benefits. if you do it in a way that threatens to bankrupt the states given the fiscal realities, it is that part that is impermissible. one final point because i don't want to monopolize the time here, how does it do that? we heard from gregg about the 100% contribution. two reasons, first of all it is optimally not binding and second, even if that is true, for the first time this medicaid requires states to provide medical care, to ensure it is provided first is just paying for it. and i've been told, and i'm not a health care lawyer but after two years of doing that and

having talked to many state officials who administer these programs i was told that what is happening is, to ensure the efficient density of the divide are network that can be done for lawsuit, the states would have to spend lots and lots of their money because given the continued cut tax in reimbursement rates, the peasant -- physicians are going to flee from the business of providing medicaid services so the states are literally going to be authorized and i've seen projections in terms of seven, eight or nine years even with the so-called 100% reimbursement that would squeeze out state spending on everything. >> we need to turn to a couple of our medicaid experts here to respond to that. >> so let me start. tim and i give each other the high sign so i will start in he will jump in. so, a couple of issues now are in the table 1 is the impact of

the expansion and the second is the sort of multiplier effect potentially of what is known as the prompt access standard. the third is what significance do we draw overall from this decision? so just to backtrack, putting aside the strange and wondrous solution that the chief justice impose on medicaid in order to give the lead against the breathing room they wanted without in any way sacrificing the money, the expansion, the power of congress to enact an expansion, as i said if you open up the statue today, what you would see is that there is one program, that this is what we would have called and expansive tori category meeting eligibility category subsisting of people described in that part of the statute and of course that is what made the whole issue so stunning to justices ginsburg and sotomayor.

the question is well wait a minute, if you look at the statute it is one piece and as justice ginsburg pointed out it would have been crazy to repeal the whole medicaid statute in order to enact a new amendment in congress has amended the medicaid statute, i don't know, in a row of times over the past sum of 50 years including all-new eligibility groupings and they are all a matter of degree or certain dimensions of poverty. in the beginning we only recognized a few dimensions of poverty. we recognize more dimensions of harvard and impoverishment for health care purposes so it is one piece, and i view sort of the implications for the coercion doctrine, and i must admit i'm not a constitutional theorists around koreshan, but i look at it as a practical lawyer who deals with health care law and i said what you talking about? this thing has no legs beyond the sea region there is remedy that the chief justice so brilliantly concocted in order

to save these families from the children and the individuals who are losing their money. as far as the equal, the prompt access provision, i would note that the amendment, which is very celebrated amendment, it is too obscure for those of you who are not medicaid people to bore you with. there is a point in the statute that says, you must be given prompt access to medical assistance. as of 2000 there was a split in the circuit about how to understand that provision, whether it is just the coverage are actually the services and congress clarifies that all along, that is the services and not just the covers because precisely for this group of people, access to care is in micron nine, it's the thing we help with lawyers. ..

with this program the second is i don't understand how the expansion at 100% of federal spending at the outset starts at 100%. i don't see how that constitutes the burden when the expansion

did not. it suffered a thing i would say is the access provision that he just alluded to is first and part of life understood to be the defining quality. the statute was readying overturning of one court decision that misconstrued what the statute said. and then finally, if there is anything that is going to bankrupt the fed or us all it is not the medicaid expansion, it is gregg's original point that the health care cost is growing all sectors not in medicaid and it's certainly not going to grow because of the expansion. >> okay. with that we have gone through the transcendental perfective is yet again as we look deeply into this national watershed test of this decision. let's open up to questions and comments from all of you or

short speeches masquerading. [laughter] please go to the microphone and if you would introduce yourself by name and affiliation would be helpful. >> deborah from the american medical association. following up on the cost argument basically the way the act was structured, the reason they used medicaid as a way to expand coverage is because it was cheaper to put more people on medicaid them to pay for the subsidy. so now if the states decide not to expand your now going to have the federal government perhaps spending more on the subsidies and i think that was a possibility the was a scenario not crossed out. i don't think anyone expected this would be the outcome. >> i don't think the states

would have the authority to do that. >> the way the statute is written to, it is possible if you earn in, the poverty level or higher to get subsidies if you're not medicaid eligible so in the states that had no medicaid you wouldn't be medicaid eligible. but if you're below 100% of poverty there is no federal subsidy for you so we would have a very paradoxical situation of the poorest people in the state without any means of the health care subsidization. >> so it would be that narrow group -- >> who could get a subsidy. meanwhile all the poor people in the united states would find themselves simply out in the cold. >> we pointed out that is another transformative feature but let me say in 40 seconds or less has anybody heard about transformational quality and quantity? it's not a question how many

changes there were it is the question of what is the cumulative effect the state's honestly believe and i seen the numbers to support that this final step of expansion the policy merits and the wonderful social consequences it's printed bankrupt them. that's a fact. the government has no evidence to. >> there are countervailing studies. the institute shows enormous savings over ten years, so in all these issues they were sort of doing the cost estimates on both -- >> we all know or those of us with enough and gray hair know what a disconnect there was between the 1965 estimate of how much the medicare program is going to cost over the years versus the reality of how that program exploded. to me that's not tall reason why. to me it was one of the great

accomplishments of this country but states like all of us when we invest our money or take on obligations are risk averse and medicare programs are blowing up state budgets actually the portion that involves care for the elderly rather than for the poor which is really blowing the state budget. a democratic governor of tennessee cutting back, on off tenncare. i differ with david whether that excited me to the to -- anxiety should be given constitutional status i think that this policy anxiety that we ought to have but it's real. >> i'm sorry i just have to say a word about this argument because it seems so bizarre.

senate let's go back to the basics they don't have to have a medicare program and the states don't have to accept medicaid. so here's david's argument. congress comes along and offers the state a huge pot of money that is to say medicated and david is saying and the states are saying help, help we might accept this, save us from accepting this because if we accepted we will go bankrupt. if they are worried about going bankrupt for god sake don't accept the money. they don't have to accept medicaid. the reason they are attempting to is because they think they are not going to go bankrupt but the citizens are going to benefit from it. very odd for a conservative to say the states have to be safe from their own bad decision.

>> i would just like to ask we know that money flows and lots of ways around states are not health care and around medicaid and we know that a lot of these people who are not covered now under medicaid are also getting health care and they are ending up in hospitals and somebody is paying the bill coming and we know that indirectly one way that hospitals and states have financed that is by pushing medicaid dollars a round as well as raising premiums on the private insurance side so we know a lot of this is already getting paid for it's just getting paid for by quote, correct? >> yes. [laughter] so now we are going to have something that is much more logical. theoretically we will have coverage for people whose care will clearly be paid for by the medicare program but somehow that's worse than paying for it through all of these machinations that we are paying

for it now; correct? >> i don't think it's worse. but that's the argument that direct subsidies are worse than cross subsidies, and it seems odd to me. we have jerry radian entire insurance system so we can find the subsidies to take care of people allowed to live all of our moral demand. we have the emergency room care, all of these charitable laws so yes we have created a system we have moral demand and then we don't finance it directly we cross subsidize it together. >> can i say one thing? what michael delivered as an utter mess characterization. the argument is simple and has been from the beginning. we have is attrition the states are provided a choice. the states have been given over voluntarily the front end when medicaid began an opportunity to opt into the program based upon certain fiscal projections in the calculation.

now every state depends upon that. was precipitously withdrawn. it would be a public health crisis and a disaster. on the other hand if you don't give them the choice, they believe by some studies that medicaid would bankrupt them, too. that is the classical essence as i said in the first hearing of the arguments you give somebody an offer they cannot reject that's called coercion and i'm not interested frankly what is more economically efficient, what kind of subsidy is more efficient. let the federal government do medicate directly like they do medicare than we have a philosophical discussion than a constitutional sense you cannot give the states a choice between bill level collapse on the whole for system for pauperization.

it's that simple. >> we are going to try to move through these other questions so let's go over here to this site. >> hi, i am soniaschwartz and i ron and implementation for states called health reform. we have to focus on the states. i know it's only then a day since the decisions but if he were still at hhs or sara, imagine you were there were the first questions you are going to get about what's happened to the medicaid choice or what's happened to the medicaid option and how would you respond? >> i think the very first question that's in most of the extension doesn't occur until 2014 but there is a condition current that says states have to maintain their efforts until 2014. they can't back off of the current programs, the so-called maintenance of effort proficient

i've already heard a bunch of states asking does the roberts opinion mollify and i think the answer to that is clearly no. the opinion has several places in which it talks about his nullification of the penalty is exclusively -- >> done to the head is the phrase used. >> by the expansion population and the effort is quintessentially about the existing medicaid program so the first question most states in the governors might ask is do i still have to maintain effort and the answer i think is clearly yes. islamic another question i think will come out right away is to the extent that the decision gives states more flexibility and around the implementation of

this eligibility group, does the decision in some way change the characteristic of the eligible the group so for example because states have more flexibility, can estate cover fewer than all people within the new eligibility group can thus take cover what the law might call or regulation might call the regional classification of the grouping and if so what will the federal contribution will be? does it stay at 100% if you do fewer than everybody and the earlier question about the availability what point can the state stopped the coverage and instead have otherwise medic call to the committee eligible people on the subsidies. so i think fleshing out whether

the decision in some way changes the basic characteristics of the eligible the grouping in state flexibility is when to be right after the maintenance of effort which i have always tended to think of. i've just never really understood the brouhaha around the provision because most states don't like to cut people off the program any way. they do other things that they don't want to do that and so there's nothing about the decision that's why i started my remarks by saying nothing about the decision changes the text of the statute if you open its the same text today the was there today and the day before yesterday in terms of describing the eligibility curbing or the financial participation levels. but i think a question for the secretary in interpreting the affect on the statute is going to be well, do i give states

more leeway as a reasonable interpretation of their sound flexibility than might have existed before and i think it's going to be months before we know the full answer. islamic another question here, please. >> i am with march of dimes. i have a more technical question and then the quick one is will the states be allowed at any point in the duration moving forward to it at a later point of to into this medicaid expansion and receive the funds or is there going to be a sort of open enrollment period and the question in the reverse, if they opt in now will they be able at a later point to withdraw if they realize there is a fear of bankrupting for the civil? that's the practical question. the other question is i've read some spinning about the impact of this ruling on the congressional power with a

clause and david, you're referenced that it and i'm just wondering what other people's opinions are in terms of is this going to in some way hamper or limit the capacity of congress to use the commerce clause to implement social or economic policies. >> are we making this the seat broccoli or do they have the option not to eat broccoli when they want and if they want to, sara? >> i think that is a very good question. here is what the statute says beginning in january, 2014. this new group becomes a required group under the program so it's not a required to open the normal sense it is with limited enforcement power and federal financial participation for the group is available

according to the schedule to him laid out that in the first several years at 100% and drops down to 90% and thereafter. so, i would assume that the secretary in his thinking through how she will interpret this concept of flexibility will make it clear that the state has had flexibility at least to the year it comes in, the funds will be available and that fiscal year so if you don't come until 2020 with a 100% match so it's so hard to know there are so many unknowns about taking what was a relatively viewed provision in one way and now having to think about what is the full meaning of the court did to that provision by

essentially putting in flexibility where there hadn't been. but some of the questions come up with mandatory coverage groups anyway. it's not as if these are the questions that don't get asked. the timing, knollwood my guess is that we would find that there are so many issues hhs wrestled with in the context of a mandatory coverage group that it's not exactly starting from scratch i would expect we would see comprehensive guidance in the coming weeks about how the secretary is inclined to interpret the law. >> the court didn't do a very good job of rewriting the medicaid provision which is why we are having these questions. >> very briefly i think first there's more than sufficient ambiguity and the court opinion to allow the secretary to have plenty of room in this area in the interpretation of the guidance. but the second question i would ask that from the devil's

advocate point of view ways or else what? because according to the opinion the only thing the secateurs used as an enforcement tool as the new money if they don't apply for the new money what is the enforcement? >> there was also a commerce clause question. >> i think i would say what i said before that it's too early to tell. the way that the architect frames the question went out of their way to say that this law could be struck down without implicating anything else. this was unique because it was regulating somebody who was not in a commerce, and if that's what it continues to be it would be relatively unimportant and the possibility the this would be an opening wedge of the systematic efforts to unravel the modern welfare state and whether that happens or not

depends. >> how also, connected those dots. >> one way to read the opinion i don't think it is the only place but one way to read the opinion is as a very narrow interpretation and the necessary proper clause. if that clause were to be significantly narrowed and we have to wait to see, then many other pergamus might fall. now another thing is as i read the opinion in the center's, again, this is just quite bizarre i think their opinion can be read as saying if a government spending program gets too big then by definition a becomes coercive so that means that any large program is there for unconstitutional and one

could imagine if mitt romney gets elected and gets his people on the court, who knows what they will do. >> in my personal opinion no statute violates the commerce clause as aided in the four corners of this opinion. point number two, to be fair to the concern has been at least in my part that an effort to save the full terrain is that mandate that effect crossed subsidies in an effort to avoid the problem of not being able to raise taxes or not so it is to stave off future problems that this was waged not to dig down the assisting statute but the final point if you read the descent, they are only talking about the spending clause in the context of holding in states. nothing prevents the federal government in the structure

powers from bankrupting everybody. let them run directly. political accountability but constitutionally they can raise taxes for 99% and have everybody lead wonderful lives maybe we can last few years on that basis. europe shows us what happens when you continue to practice. but it's only if you try to get what they are saying here is the federal government cannot do it itself and not enough bureaucrats to do it they have to pull in the states. once you pull in the states it comes in. it's only that part that's relevant. >> let's go to the question here. >> i'm from the u.s. government accountability office, and i have a question about the medicaid peace of what we've been talking about specifically congress chose to make and medicaid category and then pick up over and beyond that so now

the question becomes the s. con. res. 70 have to look back at some of the provisions for a sample updated with the funding cuts to account for a different amount of uninsured in the states that don't accommodate the way that it was envisioned for the kind of universal coverage peace? >> on a policy basis does it call into question how the statements are calculated or what kind of assumptions were made about how many uninsured people? yes of course it calls for the question the policy there. does the congress have to go back and change that? i don't think so. and there is strong political reasons to think both sides in the conference might want to lead the sort of confusion in place. people but when the medicare expansion have been a strong motivation to try to get in

medicaid expansion and people that don't might have chaos. >> i completely agree. one of the incentives to move forward will be other revenues coming in to drop and so there is a great need to maintain if you think of again if medicaid can find health care for indigent people, the point that has been made all morning you either do it directly or indirectly this would be the indirect way if they are dropping you have a real good reason to adopt the expansion. >> michael cook, i'm just a dumb health care lawyer during this about 48 years first in the government and then private practice. but first a comment and then a question. the comment is i think this was entirely about health care, the

22,000 people that die every year without insurance. i think it was about that part of the 43 million folks on the individual market and get turned down, the fact that we're the most expensive health care system in the world, we are 25th in life expectancy and 37th in quality equity and i think the court took a look and tried to find a way especially justice roberts not to interfere with congress trying to address that problem however the deal it with one component. also by the way there was a great article in the post by donna who did find a distinction that health care is the only commodity that you must have and the you can't necessarily for a number of people they can't get it because of pre-existing conditions. having said that i have a question on the medicaid program because i've been struggling with this since i read the opinion yesterday.

we actually found a way to read the eps tv program that says congress couldn't finance states and had to take money back if there was a simple kid that wasn't served and we almost had to take money that from a state that was improving and we found a way to read into that. i'm wondering if we are not going to be able to find a way with political discussions and setting up ways for the states who don't want to participate to drive folks through the exchange in those states and find a mechanism to read the law a way to subsidize them. >> i think the question of what inducement the secretary can use

and assuming they have flexibility so we are not worried anymore about coercion the question becomes what inducements texas by the inherent nature of the structure of the law versus what other inducements the secretary still has in her armamentarium for encouraging states. we are talking about it from before the fact that the funding was going down becomes a significant issue of. other issues have to deal with the fact that if you are below a certain income level law simply doesn't provide for you to get subsidies through the exchange. so the big question is should a woman working as tetris for the minimum wage making 70% of the federal poverty level be told

she doesn't get insurance she doesn't work enough overtime hours points and while some time during the year of her income gup or somebody that has a seasonal job. the issue is switching among markets has been significant from the beginning by you literally will be able to make a picture for state legislators showing the same woman who depending on whether it is the christmas season and she gets 20 extra hours a week of precious work time is going to have insurance and then she is going to have zero and that is a difference between saying you're going to be on medicaid some time. >> even at the risk of turning. >> we are going to try to get through very short questions and very short answers. >> the department of health and human services my question is not a policy question it's a personal legal question. in reading the opinion, chief

justice roberts went to great lengths looking at policy judgments and much has been made trying to be an umpire i saw that and much of the opinion but it didn't come through this section into this designation of a new program seemed entirely activist and particularly interesting to me he said 133% of the federal poverty limit wasn't the least among us. that wasn't the original congressional intent which was to cover the least among us. to have others in this discrepancy and judicial activism verses restraint i haven't heard much. >> says the bottom 5% or just a bottom 1%. >> let me defend the chief justice by saying it's a simple proposition the original medicaid program began as a

cooperative given the state's tetris to opt in and have certain parameters and they would change repeatedly. the question is this a step too far. but they were trying to do here which i think all of you should love at least on this panel is he had to take the whole thing down and by the way if you do down medicaid the rest of the statute cannot work. he did it to save the statute and tried to leave right but you engage in legislative activities you by definition start making policy judgment to which is why it isn't inappropriate judgment but once you are on that path what choice do you have? >> i have to say - did is appalling and insensitive for the justice to say people below 130% of the poverty level are

not the least among us. this is an indication of how out of touch some members of the supreme court or with the way that many americans have to live their lives. on the question of activism, the truth of the matter is there is no justice on the supreme court now who's not a judicial activist. when the supreme court strikes down affirmative action programs in this decision no justice on the court has ever pointed to anything in the language or the original understanding of the constitution that says affirmative action is unconstitutional. we have is not activist beavers and judicial restraint we of conservative activists and the liberal activists and the sooner we get that straight the sooner we will come to some mature understanding of the constitutional law. >> i will try to make this as

short as possible. - search for the adkins, and a graduate of this school and my question is directed towards gregg turbeville. this is derivative of the discussion that we've had. one is availability of health care is something entirely different. and what particularly on physicians who see the requirements of the law is so onerous whether it's in reporting, whether it's in diminished income, whether it's the requirement to set up a whole new style of practice. the impact is going to be significantly on physicians who are in mid career and further on

because they're the largest percentage of the physicians in the country. how many of you do you think will leave the profession and do something else because of the impact >> the point is often made after the clinton health care reform effort it has succeeded. the economic forces are in those public side and private side but are on the discretion and their operating to nudge physicians to the larger group practice situations whether they be aco for the multi group practices

that mayo and by guisinger putative to the plan for medicare and active in the year 2014 medicare would just be private plans. they would spend less and follow evidence based practice protocols with less discretion so a lot of changes are coming. and it's less a matter of who does it then just the reality that they are coming along and i do think some of the medical statute reactions that ultimately will lot prevail. on the cost control they were making the point that the timing doesn't matter all that much who

wins politically. both sides whether you are talking about the ipad on the affordable care act or the ryan plan and its approach to medicare both sides are doing similar things. >> with that i would like to close by asking each of you a very quick question. we have four law professors and we will meet you in on honoraria professor for the day. give the name of a seminar that you would teach to the third year law students about this case. we will start with you. chaos theory or random walk. >> now what? >> accountability doing it right who wouldn't have had any of those problems of congress approached this issue in an

accountable fashion. >> politics and the wall. >> i would steal deborah stone's title and say struggle for the soul of health insurance. >> there you have it. those of you that want to come back and take those courses next year we will see if we can bring those to you. thanks so much. [applause]

>> at one time in 1967 this was called the bloodiest 47 acres in america. the indian tribe of california is suing the government for federal recognition but the two california counties oppose recognition for the tribe saying it could mean new casinos. a house subcommittee last week

held a hearing on how the federal government decides which indian tribes to recognize. we will hear from a representative of the california tribe and a commissioner opposed to recognizing the trial. also testifying indian chiefs from virginia, florida and alabama >> the committee will come to order and first let me welcome the new ranking member mr. lujan in the position that he has had. it makes me feel good about that side of the aisle and the people that have worked with me over the years. i'm going to miss mr. bourn but i'm confident this man will fill his shoes and if he does i will use the gavel. welcome. the subcommittee has already come to order. the subcommittee on the union and native affairs to hear testimony on the authorization standards and procedures on whether and how and when indian tribes should be recognized by the federal government. on the committee ruled for f so

they can hear from the witness more quickly. however i ask unanimous consent to include any other member's opening statement in the record submitted by the clerk. hearing no objection, so ordered. i ask unanimous consent the gentleman from virginia, from california mr. thompson and florida mr. miller be allowed to join us on the dying is and participate in the hearing. without objection so ordered. in today's hearing we will hear the perspective of several groups seeking recognition as the tribes under the federal law. we will also clear from the county supervisor in california with concerns over federal recognition process. the purpose is not to determine the fate of any particular recognition petition but to gather the facts that may inform the committee as to what a reasonable policy for the 21st century should be. tribal recognition as one of the most solemn issues the committee deals with that has impact on the federal budget, the government's trust responsibility and other

recognized tribes and on states and their political subdivision. right or wrong the executive branch and the department of interior has control over indian recognition from its constituents authority of congress. rather than establish a recognition policy authorized by statute, the department considers recognition cases and accountable system to aid i acknowledge the department regulations set in four of the criteria for a group to be recognized to make some sense. a few people question the motives of the small but dedicated staff of the professionals who are tasked with reviewing recognition petition and making the cut making recommendations for them. the basic problem of tribal recognition as the decisions ultimately made by political appointees and not elected officials like the representative senators accountable to the borders for the decision they make. in fact the department ignores its own revelations and decides recognition cases outside any transparent administrative for statutory process. this is sent to increase public

confidence and tribal recognition system. unfortunately the interior department today declined my written invitation to invite a witness. the only expedition given as every department official capable of testifying has schedule conflicts. i cannot accept this as a valid excuse. the department's failure to appear and answer questions is deeply disturbs me. will take the witness several of whom had to fly many miles to the year. i do intend to hold feet to the fire. we will hold a second hearing at a time to be determined when someone from the department can make available to testify and answer questions. i think it's extremely important, if i may add a little bit. my concern in some tribes are recognized in the process by some were denied and someone accepted. and that's why we are trying to make a standard rule because

doesn't rule of the converse it's not the secretary to make the decisions, the congress and a recognition of tribes to accept or not accept their standards as a tribe. i look forward to hearing the witnesses and recognize the ranking member mr. lujan for any statement he might make. >> thank you mr. chairman i would like to say how much i look forward to working with you as the ranking member on the committee thank you for your leadership. my recent appointment by the natural resources is a great honor and it's truly a privilege to serve native communities in the leadership role and to work worth strengthening the relationships. empowerment of tribal sovereignty over the resources is an important goal in my office and one of this administration and i will work diligently by all native communities. the at the ministry of acknowledgement process as we know today began in 1978 when the department of interior promulgated rules for tribal recognition. and the letter to then secretary

of interior on the acknowledgement of the tribe the president carter stressed the new federal law acknowledgement regulations reflect high standards by which tribal groups must be evaluated quarter. today there based on records and an apology and other methods for a cellular recognizing the need for the methodical and andy schleck felch and process in addition to and where appropriate paul orloff in lieu of the recognition the message still resonates today. the troubled option the will to account for its existence and the petition for recognition and standards for evaluating that account must be in place. fervor like alterman this al-awja is a government relationship to to a tribe in the united states and make such a child eligible to receive certain federal protection services and benefits by virtue of their unique status as indian tribes.

federal recognition is therefore extremely important and valuable to the social and economic conditions, but that is not to say the administrative process and standards should remain static or ignorant to the logistical realities. the current acknowledgement regulations have been updated once, and it's my understanding they are undergoing review for further changes. i mention this because while i believe the acknowledgement should require the tribes group to provide historical materials to support its petition for acknowledgement, i also believe that these requirements must. the group can't produce a particular set of historical document as a consequence of the war as is the case in the virginia indian tribes the tried should be able to produce equal value documents that are available to them that produce the same result. proof of the existence of the political entity eligible for status. in my view high standards can and should be taken into consideration. any and all claim on a case by

case basis. i'm a stalwart supporter of tribal recognition whether it be through legislation, judicial decree or of the minister of acknowledgement and we will learn from the witnesses today each path has a drawback but all three should be available to tribal groups working to establish or restore the government to government relationship with the united states. to do so this matter of respect for the tribal groups whose cultural identity was taken and nearly extinct and native language lost as a consequence of the establishment of the great nation. i look forward to hearing from the witnesses today and a yield back. >> thank the gentleman. now we will call the witnesses up before the tool. chief stephen atkins. chairman scott gabaldon of the mishwal wapoo tribe.

chairman ann tucker, muscogee nation chief. and supervisor don iain dillon district three. i think all of my witnesses. you're written testimony will appear in the record so i ask that you keep your statement to five minutes microphones are not automatic so please press the button when you are ready to begin. i also want you to explain how our time works when you begin to speak the clerk will start the time and the green light will. after four minutes a yellow light will appear and you will begin to conclude your statement. at five minutes the red light will come on. you may complete your sentence but at that time i will ask you to stop. one thing to keep in mind, all

of you at the table in very strict about procedures the dignity the house of representatives reserves not conduct says business mix with the house conducts its business in an orderly fashion and permit members to properly understand and participate the business of the house. therefore i want to remind our witnesses house rules require the not engaging personalities towards a member or a senator i wouldn't mind if you did this to a senator but house member this that is a no-no. this includes the behavior for personal motives referring to a member or another one of those people as a derogatory fashion or accusing a member or senator of falsehood. any witness who brings that decorum to this committee will be called to order and i will let chollet review. so keep that in mind. so the witness has been placed, and i will begin with stephen adkins, chief of the

chickahominy tried. if you are up. >> thank you, chairman and other distinguished members of the committee. when inviting me today to speak to this important subject which looms large across all of the indian country. i provide a voice for those seeking federal the acknowledgement of a sovereign nation regardless of the process they are pursuing. however in some specific areas i'm speaking on behalf of the eastern chickahominy, the upper tribe are the six named in h.r. 783. german young, the virginia and indian tribes represent the essence of democracy and freedom as we participate in the defense within the commonwealth of virginia and in the united kingdom commemorating the 400th anniversary of the settlement is america. we took pride in representing the commonwealth of virginia and united states of america to send them to those tribes who welcome the first settlement to virginia

to this place that is now called america. however when this subsided the festivities were over. we've remained on recognized as a sovereign nation by the am i is states of america. indians lived under the treaty of 1677 which was called the for peace but the crime until the formation of the united states signatories were subjects of the crown as recently as a first decade of the 21st century the treaty was applied to a court case involving virginia indians and while we are now recognized by the conwell of virginia federal recognition continues to elude us. please allow me to sign a painful example of why the current administrative process falls short in increasing the reality of virginia to its face. 1912 and man named walter became the head of the first bill in virginia. he was a relative white

separatist who supported and unforced the racial integrity act which became law in 1924. to give you an idea of the motives around this legislation companion bill was an innovation act for the sterilization of the feeble mind it inmates. all persons in the conwell of virginia are either white or colored. from 1924 the record of the commonwealth of virginia didn't allow the native american tribes to list indian or of their tribal affiliations on their birth records. this act served as the official for five decades remaining in effect until 1967. many of the so-called first families of virginia i find out a lot have been there for 10,000 years but many first plan to the

klan to be the descendants of pocahontas. this exemption allowed a land and families in virginia to be listed as a white despite the wonder of rule by all they were still clinging to the descendants of pocahontas. the bureau of statistics even went so far as to retroactively change the records of many of our ancestors so only white or color were listed. as a part of the reorganization act united states government officials contacted the commonwealth of virginia regarding its indian population. this to register advised there were no indian tribes in virginia despite the lack of responsibility by the government officials be conducted interviews and photographs places and things. they support the fact that the tribes have endured over time.

the commonwealth of virginia supply of funding on the high school in oklahoma. in addition to oklahoma, the indians to attend school and other states additionally the federal government provided funding for indians to appear in government schools. so on the one hand, we acknowledged the fact i would suspect by both the federal and state government. probably the most telling testimony in the system was in 1999 the assistant secretary of indian affairs many of the people assembled on the day wouldn't live long enough to get federal recognition through the administrative process. that proved we have many since then. the administrative process for people in the southeast has been very alone. several factors contribute to the low success rate.

lack of resources needed for information to become plight in the process during a march towards post 1795 histories proceeded low volume for tribal and the administrative process to recognize one size doesn't fit all. another reason more time in many cases it takes several years over 20 years to get ready as the minister this process and it takes a lot of money and cost and tribes cannot afford the cost. criteria appear to be geared towards those tribes and following the formation of the united states. i will skip over to my closing remarks regarding the indian tribes and the newly recognized by the federal government let me put it this way. tribes have been able to maintain identity over hundreds of years who faced abuse and insults who've witnessed the continued shrinking and sometimes complete loss of their tribal land seen them decimated to the point that native

american indians comprised less than 1.4% of the total united states population folks have lost more of the services per capita fighting for the country and armed forces of the united states of america than any other group in the union and to salute old glory he and display pride and love for their country. the answer to when to recognize the newly recognized tribes that the answer is now. that answer is today. and again, i want to thank you for allowing me to speak to you today. my testimony would be incomplete if i did not say the common thread that exists among the atlantic coast tribes in the gulf coast tribes. the three that i'm speaking of are the tied to the colonial government. some by those in of already there's been a concerted effort to eliminate these tribes through deeds and documentation.

the history of the virginia tribes predates 1607. first sustained -- >> you've run out of time. >> thank you. >> you did well. by the way, i have to remind you that we did pass and recognize you in this congress the last year and we are going to do it again. [applause] that door coal over there we college you've got to go over there and jerk them around a little bit. >> thank you for your time. when i heard that you are going to be on the committee i had good friends and alaska and my confidence soared. >> i appreciate that. the next witness is mr. space from the mishewal wapoo chyba if alexander valley. >> good afternoon, chairman young and members of the subcommittee. my name is scott gabaldon and

dalia may wapoo indian of alexander valley. i would like to think the committee for the opportunity to represent my people and on the outset let me be crystal clear our tribe was wrongfully terminated in the status for sort that is a fact that is only focused right now. our history of valley was inhabited solely by the indians until 1823 of 10,000 years of ancestry. we utilize the resources from the abundant land, rivers and streams. the man napa valley itself is derived from the language meaning land of plenty although the county the wapoo as part of its cultural heritage there are those that do not want us to be more than a memory. people like dan dillon and representative mike thompson and california first congressional district since 1998. the inconvenient truth of opposition to what is clearly in in just done to the people was that those that oppose us are

rich politicos of the county's of any workers lining up to oppose us in the minimum wage earners do not oppose us, nor any of the local tribes in the area, and there are six of them to read it is the wealthy that there the political agenda to stand to lose a tiny bit of the strong power in napa and sonoma county when the tribe is restored. the wapoo word for shame on you. today i say to you and to those the would rather profit fancy justice command to those that have believed and misstated the facts and to garner your support for deception. we are not a new tribe. we were here before the peabody's of the world. we are not new to the area. we were here before napa and sonoma county or even the state of california but california law

is told by an agency desperate to set aside political agenda in 1958 are nothing compared to the law is being told the court, the press and citizens of the counties, and now the subcommittee. why have we sued in federal court clerk's litigation was not our first attempt to get federal recognition to correct this mistake. the record shows we tried many avenues bringing the lawsuit including congressional support in 2000, 2003 and 2004. litigation is an unavoidable method of restoring the tribal status. we want the government to acknowledge its mistakes and terminating our people well as well as many other tribes affected by this injustice and restore the tribal status and benefits.

what they should rightfully have. the counties concerned with the casino, we are concerned with education. the counties are concerned about land use. we are concerned about housing for our elders. the counties are concerned about environmental impacts. we are concerned about our tribal elf care.

-- health care. it appears we're winning, and we are winning to everyone wants to attack us. including not only the counties and our local coalition but even you, mr. young, wrote a letter objecting our restoration. and conclusion i'm not here today to explain the loss of the land to but i'm merely here to explain our position. will fight of our rights restored, that includes litigation. although i do feel it would be in the best interest of the united states to admit its errors and settle with my try. therefore, i truly hope this committee takes what i say here close to heart and take action, setting policies, not only for my tribe, and the newly recognized tribes, but for the unlawfully terminated tribes. we have suffered enough injustice from this nation long enough. thank you. >> next witness will be -- i

don't how to pronounce that name. will you introduce the next witness? >> thank you very much, mr. chairman. ranking member lujan, congratulations. members of the subcommittee, i am pleased to join you today to introduce ann tucker, chairwoman of the tribal council of muscogee nation of florida. the florida tribe of eastern creek indian. she served her tribe for over 30 years. she has in depth knowledge of history, tradition, the genealogy and federal tribal issues that are unique in northwest florida, and you'll find her testament to be a taliban forgot that the opportunity to meet with a chairwoman on several occasions and have seen firsthand her tribe's great work and impact they have had of the local community. i know of no better person than to join you today to share with you the many hardships that her tribe has faced under the current federal recognition process. i want to thank you for holding

this important hearing, and appreciate the opportunity to join you today, mr. chairman, into the ranking member, to listen to chairwoman tucker, the people of muscogee nation of florida, and the continued efforts that hope will lead ultimately although i know that is not what this room is about, but the proper federal recognition for which they have long-awaited. and with that i introduce chairwoman ann tucker. >> ms. tucker, thank you. if you've been doing this for 30 years you must've started in elementary school. you are welcome to speak. spend chairman young, ranking member lujan, honorable committee members can i am chairwoman and dense ann tucker of the muscogee nation of florida, the florida tribe asian creek interest. i want to thank congressman miller for being here today and for his continued support of this tribes recognition. we are the people of the petitioner 32, to the office of federal acknowledgement.

in 1978, it was great to -- there were 40 tries with evidence already filed in the bia. we were one of those tribes. our people have lived on the same homelands in florida since 1861. we are creek indian people have lived together, work together, married one another, buried one another, and kept our traditions to the harshest of circumstances. in florida there is no commission to keep records on indian people. no treaties and no state reservations. we didn't have a federal indian tribe until 1957 with seminole tribe of florida was recognized by congressional action. the same year the elders of our tribe received notice they would share in land claim settlement from the treaty of fort jackson. we have struggled for 34 years in the current process. the bia does not grandfather invitation. our papers were returned in 1978 with new guidelines and a letter telling us to start over. we have started over many times

and we've seen many things. we are a poor tried that can no longer a just our petitioning document from the procedural changes caused by court cases, into your findings, or new in house directives on how criteria are evaluated. but we know about this process is that a lack of the selected standardized documentation for every decade, from 1900 to present, from rivers swamped in northwest what does not mean we did not continuously exist as an indian tribe. what it means is that the types of evidence required for external identification will not reflect who we are because in 1852, it became illegal under penalty of death to be an indian living freely in the state of florida. that's a law that stayed on our books until the 1964 civil rights act. we were racially terminated. we moved to act consideration status on december 5 last year. we are grateful for a grant from

the administration from native americans that enable staff the fiscal means to send 40 more bankrupts -- revised data and cds. after 34 years, we know we are to fiscally challenge to compete in what we watched this process become over the last 20 years. my testimony must address why our tribe has h.r. 2591 introduced for federal recognition. we did not addition congress to circumvent the administrative process. people that only support tribal recognition through this singular process are people that supported process through general accounting office determined to be broken 11 years ago. there have been many hearings, but today i find my people are in the same process with the same issues in the same offices. the only difference is this time the broken process will be used to determine this tribes sovereign future. even if we receive a positive finding from the ofa, that does not mean we will be federally

recognized. the last tribe with a positive finding was turned down by into your. after generations who have lived through andrew jackson's removal policies, racial eradication, litigation for react invitation, and a broken process that cannot be fixed, our question has changed. it has become one of he really makes this decision, based on what else? to date we have had no contact with the three people assigned to our petition. we are concerned that active consideration means nothing more than actively looking at 10 year influence of government paper rather than visiting on site whether tribal government to understand how we function and survive. we are concerned that an expedited process means criterion a for identification will be used to expeditiously eliminate us. by disregarding state statutes impact on the mandatory evidence that is required. in 1947 land claims give my great grandfather a vehicle to

span, challenge and change interior historical attitude that there were no creek indians left in northwest florida. we are still here and it was not easy. we have petitioned congress for relief because we have no choice but we can be content to be a limit in the ofa process based on gaps agreed by state statute, or we can come you. we can sit around until another process is created for us to start over in, or we can come to congress. we can be a tribal government whose hands are tied while our impoverished people live in substandard conditions, or we can ask you for immediate relief and honor that comes from a government to government relationship using the same legislative methods that many tribes these of the mississippi have depended on. when the mechanism used by the agent is broken, as the gao report states, then our only alternative is to place our case at your door. we are the oldest petitioner left, and if we fail in this

process it will be because we are exactly what we claim to be. and indian tribe community and tribal government that lives separate and distinct in the world perverted by jim crow laws. i respectfully request this committee approved h.r. 2591. we have participate in this long enough to know that our fate lies in your actions. thank you for allowing us to talk today. >> thank you, ms. tucker. framon weaver, chief of the mobile and of choctaw indians. -- mowa band of choctaw indians. >> thank you. my name is framon weaver and i am the elected tribal chief of the mowa band of choctaw indians. today i'd like to say a few words about what the process has done to us as a tribe. it is clear that our tribe, the mowa band of choctaw indians are

the literal poster child for the structural failures evident in the federal recognition process. as the only drive in the nation to have exhausted all three remedies made available for the granting of federal status, ofa, federal lawsuit, congressional bills, we are well aware of the inherent bias, political corruption and high finance campaigns waged against legitimate, historic nonfederal tribes. we are the second longest petition drive in the nation. only the lumbee in north carolina have petitioned longer. our initial attempt at federal recognition begin in the early 1900s with her mask immediate temp to be admitted to the miller role. with the numerous appeals through bar, transit scott huff congressional bills and a federal lawsuit thrown out on a statute of limitations are to become weekly understand that the current process is only open to those with millions of dollars. we have children throughout our loan journey, not to ally ourselves with numerous gaming

suitors. some may call this ignorant to the realities of the process. we choose to call it what it is, integrity. they need to align with the gaming backers compromises every aspect of the process and makes it completely illegitimate. the only avenue for defining the federal to federal relationship is be the united states congress. ofa has no place in this process and integrity of the leadership in this organization is not something that can be fixed. lawsuits like ofa process, they are economically prohibitive for petitioning tribes. congress must make determinations based on facts and factual. no political influence. no backdoor letters from federal tribes attempting to defend aiming zones from perceived competition. time for congress to act, to solve this problem. there exist numerous keys that

define legitimate tribal communities, but due to extreme time constraints for presenters, will discuss only a small number here. tribes of attended indian boarding schools can clergy document their attendance should be place on the federal register immediately. tribes who live a long stand, historical and and/or state recommends indian reservation should be placed on active consideration neatly. the language is irrefutable proof of tribal existence. unique regional history is highly important in determinations. racial bias towards tribal communities in the east and in south particular must be abolished completely. two examples are cited. and this is in written tests were. i won't go through that. evidence should be included and our transportation prior to gaming area, gaming era should

not have any gaming tried able to comment on their petition in any form. congress need to appoint an independent board of approximately 10 to 20 individuals with an evenly distributed mix a predominately federal and historic nonfederal tribal members with expertise in various academic and research areas. after review, after a brief overview of petitioning tribes, the one to meet one or more of the following criteria should be moved to the front of the line for consideration. all tribes who were formally denied -- formally denied recognition by can show an association with any of these nine criteria should be reevaluated. these nine criteria are attended indian boarding school, having a state recognize our commission or mission lands, language retention, dia or a lie a funded school and community during error.

1970 state recognition. prohibition from area, black and white schools. like most tribes we attended a third school system just for native americans. were not allowed to attend black or white schools. [inaudible] long-standing petitions for federal recognition which could at the beginning of new process in 1978, prior to this time period. or have received 10 or more letters of support from federal recognition from other federal tribes and nation indian organizations such as ncai, three letters towards venom 10 letter total may have been received from professionals in the fields of that apology, genealogy, f. knowledge and genealogy but i'd like to take this opportunity to thank the committee and for having this opportunity, mr. chairman, and

mr. ranking member, mr. ranking committee member. the mowa band of choctaw indians, we have suffered dearly under this process to its expensive. it's cost millions of dollars. about the only funds available to nonfederal to recognize a tribe, about $65,000 a year grant from ana, if you reach criteria to get it. it's competitive so may or may not get. thank you very much. >> thank you mr. foreman. the honorable diane dillon, supervisor, napa county district three. >> thank you very much, mr. chairman, and members of the subcommittee. i am one of five elected supervisors in the county of napa. we're both the legislative and executive authority in napa county. in our executive role we approve budgets. we supervise the conduct of county officers and employees, and most relevant to you today, and our legislative capacity we

make land-use decisions. this hearing is about whether, how and when tribes should be recognized. our issue is not about whether a tragedy recognize. out issue is about how tribes are recognized. i'm very grateful to be able to be here on behalf of both napa county and her neighbors, sonoma county. on this issue we believe is of course interest to the subcommittee. the focus is on the process, and the issue of congressional authority, and we submitted approximately nine pages of written testimony. in short, we believe that the lawsuits, lawsuits by congressionally terminated california indian tribes in which the plaintiff tribes asked the federal district court to restore their government to government relationship, and in which court case is the of the interior acquiesces to those

requests, represent a constitutionally impermissible usurpation of congressional authority. under the constitution, congress alone has the authority to reestablish a government to government relationship with tribes following their termination by congress. congress specifically exempted this tribal restoration power when the delegated other powers to the department of interior, but despite his very separation of powers, the department of entry facilitates restoration by inviting terminated tribes to sue the department, and then the department stipulates to a settlement restoring the tribe. in this way the department of interior and cheese through orchestrated and unopposed litigation what you have not given them permission to do administratively. it is de facto a violation of the separation of powers. we understand that there are tribal representatives here to

register complaints about how long it takes the bureau takes the bureau of indian affairs to decide whether or not to grant an applicant's request to be acknowledged or recognized as an indian tribe, and we understand those frustrations. but our situation is, doesn't have to do with that orderly, deliberate time insensitive expert assessment of tribal recognition by the bureau by the bureau of indian affairs. what we're talking about here is happens when an entity, claimed to be a successor in interest we tried terminated by congress, turns around and sues the united states to have that terminated status overturned. in that litigation, the federal district court replaces the indian expert bureau of indian affairs, and the tribal plaintiff's legal claims are substituted for the bureau of indian affairs established tribal recognition regulation. it may come as a surprise to

many of you that the tribal applicants who sue often find a friend in the federal defender, the department of interior and senior government officials. they are partners who are prepared to stipulate the restoration without advancing available legal defenses, or even testing the alleged successor in interest relationship of the terminated try. we believe that such stipulated settlements show the department of interior abandoning its role as a defendant, and acting in concert with plaintiff to a published through litigation what they cannot accomplish through administrative action. and that is a violation of constitutional dimensions. it violates the separation of powers. our views on this derive from our experience in litigation, in the northern district court of california involving the mishewal wappo tribe. the federal government has not

advanced any of the defenses that a normal defendant would advance. there are procedural defenses that have not been advanced. there's a claim for land involved in the lawsuit, which is not related to the recognition. the tribe was directed to go to court by assistant secretary larry echo hawk, when he said to them in a letter in 2009 he could not, the bia could not restore their tribal status. he was correct when he asserted they didn't have the authority to restore their tribal status. he was incorrect when he told him to go to court. that is not, he is trying to give them to do something that congress has not given the authority to do. so, you have many issues here today with which you are presented, but we would ask that you do not see the authority to

the bureau of indian affairs or cede authority to the courts, and authority that you have alone, which is to restore tribes that have been previously terminated by this congress. thank you very much. >> thank you for your testimony. one of the reasons i am having this hearing is that i do believe that we have been neglectful as congress, if you read the trust relationship with the congress, not with the executive branch. to do action or not to do action. and that's something that concerns me. my own case, there were some tribes declared tribes without any consultation, or any activity by anyone but the department. so i have great interest in this. i recognize the ranking member for questions first. >> mr. chairman, thank you very much. chairwoman tucker, you stated in your testament that administered acknowledgment process is broken, yet you're tried to

continue to pursue this path to recognition while also seeking legislative action that would establish tribal federal status. in this parallel track necessary, and it also listening to your testimony, have you been discouraged or admonished for seeking administrative relief as well? if you could touch on that. >> we have tried since we started to work administrative administratively, because you hate to admit that your government system is broken. we were notified by they bureau of indian affairs that the process had changed the we had been sitting -- how original tried to recognize, and when we were notified, it basically said, we developed a set of guidelines that we want you to start over. and the roles they came and were about as thick. we were really dissuaded about coming here. it just seemed like it was

administrative recognition. and now that is impossible. into the house and one when the report came out from the gao, my tribal government met and we determined at that time that we would begin the work to petition congress for the recognition. florida is a big state, and we have had a lot of support from our senator and especially from congressman miller who is from northwest florida. we try to stay in this process intelligence became apparent that we could not fiscally do this, nor is guidelines have now become mandatory criteria, and we can't need what a state didn't allow us to be. so that's why we are here. [inaudible] >> your microphone. >> chief adkins, in your written

just when you state that the administrator process failed to recognize that one size does not this should fit all in the delegate process. can you explain in what way she believe that it fails to do so? >> the administrator process asked for documentation that we just can't produce because of the destroyed court houses that had our vital statistics. because of a state that went through and sought to destroy all vital statistics that referred to us as indian people, even when the indian reorganization act was put employ, as they were called, the head of the bureau of vital statistics said there are no indians in virginia. despite that government officials came to virginia, they interviewed people, they photographed places and things, and they said these folks are

indians. even with that the bureaucracy that had been created in the state precluded us from being part of that. so as you look at those seven criteria that kind of the, ironclad, we don't get into it. and that's what i say one size doesn't fit all. that situation is essential like the one described by ann tucker. i think we're fighting that same kind that the federal government just does not want to move because of those situations that we find ourselves in. >> appreciate that. and you certainly are owed an apology, as ms. tucker is, when we talk about laws were people were arrested for simply saying they were native americans. what a travesty and a shame. we need to find a way to correct. >> my parents had come in washington, d.c. in 1935. they face jail time had he done it in virginia.

>> i appreciate you sharing that as well. is a travis tygart and it they be allowed to pursue administrative relief? >> yes. i believe that is what the law already states spent i appreciate that. and mr. gabaldon, is it your assertion that you feel that your tribe was never terminated? >> no. we believe we were terminated in 1959 but it was but a non-wappo indian spent i appreciate that very much. i thank you very much, mr. chairman, and yield back. >> mr. denham. >> thank you, mr. chairman. let me first start by saying it is very disappointed to see the secretary salazar and that bureau of indian affairs had not engaged this committee on this important issue. this is, i mean is a nose has been an act of congress under the constitution, but without the administration working with congress, it makes it tremendously difficult to create an even playing field, and

certainly to move forward on this matter. so i would continue to press the bia and secretary salazar to engage this committee so we can come to some resolution on some of these issues. first, i want to understand your issue of termination more specifically. you were terminated through an act of congress? >> we were terminated by the california rancher we act, 41 other tribes were in california. >> and it wasn't restored under the tillie hardwick decision? >> no, sir. we were, part of that case and we were dropped off that case in 1987 with no prejudices. >> why? why wasn't that? >> well, we believe that the tillie hardwick case was based on land allotments to people who had land allotments were part of that is because the non-wappo indian going to land that were supposed to have. we can at any land allotment to proceed with that case.

>> and so do you hope to seek recognition to eventually get land into trust? >> well, the benefits, yes, to seek land into trust and get the benefits of other federal recognize drives around the nation. >> have you asked for congressmen to introduce legislation so you can get that federal recognition? >> we have, and actually done multiple times, and over the years we have seen, i'll give you a brief background. 2000 our leadership was working hard, actually we were on the bill in 2000, and we were dropped off, again. the bill was passed and we were not on a. why, i don't know. but our leadership in 2000 was working hard on a bill similar to graton. there were challenges in the political realm. one, partly because lynn woolsey wouldn't take our bill because she felt she was doublecrossed

by graton. by dachshund we needed local support before we take a bill to congress. and we can say with all the local -- >> respects, don't bring members into this right now. you can give that testimony later on. because we will say he said/she said, and i said. step well, i have paper. >> you can submit that if you wish to do for the record. >> no worries. welcome let's just say we tried to go to congress. >> thank you. >> so why did you decide to seek litigation rather than going through congress? >> well, we didn't only try to see going through congress, we also tried the ofa process, but according to 25 cfr 80 3g, it makes a california rancheria act actor may try the nl's book to go to the petition process. we've also asked for administration restoration like

the island dam was. and so like i said, we also try to congress in 2000 with a builder coming, we went through the courts because we felt it was the last option. in our area there's a tribe, i believe it was no fault of theirs, they put a sour taste in congress for other tribes. we are the last tribe to be recognized. and this is a quote from the accip report which congress paid for, approved, and the quote is as this. the indian community, the federated indian of great rancheria and the mishewal wappo tribe meet current criteria for restoration and should be immediately restored. both will and graton have been restored. graton was restored in 2000 by an act of congress, and wilton

in 2009 using the same unavoidable process we're going through now. >> and you engage the administration on this? again, i wish that the secretary felt that it was important to be here today to address this issue, but my understanding is you did address is an attempt ago that right -- that route as we'll? >> yes. we have a letter from larry a caucus has, although we disagree than not having an administration power to restore is because it has been done in the past, he recommended congress or courts, and we've seen the results are trying to go through congress to be restored. and i was going to mention some names, we will do that. >> thank you. >> but there was no other option left for us. except the courts, which as i mentioned before is a neutral party, that will determine what the law says for added legal termination. >> thank you. and i'm about out of time but let me just ask you if you could briefly respond, if you were able to get federal recognition and the land into trust, what

would your plans before the and? >> our plans would be to build housing. we do economic development of many sorts. i don't really believe that the only way for economic develop it for a tribe is through a casino, although it is the most economical way and the fastest way to do. i believe my tribe has the knowledge and business background to improve the quality of the life of the tribal members, not only through a casino or whatever, but through many different economic develop and opportunities. >> thank you. >> thank you, mr. chairman. thank you very much. for 48 years now i've been involved in trying to bring justice to the sovereign tribes, indians, of this country. and they are sovereign. you know, i have two citizenships. i am a citizen of the state of michigan, and i'm a citizen of the united states.

you have three real sovereign citizenships. you are citizens of the united states. you have shown that, certainly during our wars. the numbers, many of you fought. you're a citizen of the state which you live. and you're a citizen of your sovereign tribe. three citizenships. those are real citizenships. those aren't just fancy get well cards. there in the constitution of the united states. congress shall have the power to regulate commerce with foreign nations, and among the several states and with the indian tribes. they put you on the same level as france or germany. you are sovereign, and they recognize that congress has the power to regulate commerce with these three types of

governments, sovereign governments. and also, the constitution says this constitution and laws of the united states shall be made in pursuit of their of, and all treaties made or shall be made under the authority of the united states shall be the supreme law of the land. the judge's in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. so in virginia could not use this power to set aside that federal power, recognizing your sovereignty. and its extranet important -- it's extremely important to you have to keep fighting for. john marshall upheld this in famous decision with andrew jackson, unfortunately didn't follow. john marshall says the indian nations had always been considered as distinct

independent, political communities, retaining their original natural rights, as you undisputed professors of the soil of time in memorial. retaining. it's not be granted sovereignty. it's not something we gave you. you had it before we ever landed here. it's a retain sovereignty. that word retains is extremely important. we are not asking for something you don't already have. and recognized by the constitution of the united states, and john marshall's decision. so you have a moral obligation, a legal obligation to fight for your sovereignty. it's been an awful, bitter fight, but it can be done. and the state legislature, people told me this could be done. i introduced a bill about 48 years ago when i was in the state legislature.

i read the treaty of detroit. the treaty, sovereign of the land remember, treaty. and it said that indians who were deprived of their land would be given in turn education in perpetuity. legislation following that. that is still the law of michigan. amy michigan indian can attend a public college in michigan, and the state pays for tuition because of that treaty. those treaties are real. i just want to commend you for what you are doing. this is retain sovereignty. you have an obligation to your people, to yourself, both morally and legally to fight for the. we come at the supreme court does something we don't like, like carcieri case, a terrible

mistake they made, we should undo that. we can do that. we ultimately have to uphold this constitution. and i commend mr. lujan, the ranking member, and my friend, mr. young from alaska, for having recognized the justice and the obligation we have to fight for that justice. and i'm going to leave congress this year, after serving 36 years here, but i'm going to continue to fight for indian just a. i just want to commend you for what you are doing. you really are in the right path, and a path that you must continue to pursue. and i thank you very much. >> thank you. mr. benishek. >> thank you, mr. chairman. i certainly appreciate mr. kildee's comments as well. i want to thank the members of the committee who can't afford to testify today.

i represent michigan's first district, it's my first term, and we have 15 federally recognized tribes in michigan. and it's been my pleasure to work with, both recognized tribes and with the strides seeking recognition. i introduced a bill. i'm really anxious to learn more about these issues. i'm disappointed that the department of interior chose not to participate today, but i think it's very important that we as a committee explore this issue. it seems difficult to me. i remain committed to helping each group but i'd like to do so in a transparent fashion. i don't like to be in a position of picking winners and losers between the tribes. i think that we need to have an open, transparent process and i'm not sure exactly what that is, being a freshman, but i think it's important to at least explore these issues.

so i'd like to ask a few questions, mr. gabaldon. given your experience as a tribal leader, what recommendations do you have for us that improve the process? >> i guess the only one who would be hurry up. because we are having elders died, and it's sad to see a lot of these elders that are dying, waiting their whole life to be part of something they once were part of. i guess that bureau of indian affairs needs to really consider what they are doing it, when they drag their feet, they think that by slowing down these tribes they will run out of money. this is i'm assuming, i assuming, i don't know, but it's happening around the country. tribes are not rich. we don't have endless amount of funds to pursue courts.

it's expensive. >> let me ask you another question. what part do you think the local community has been a decision like this? do you think that this is strictly a federal government issue, along with the tribe, or do you think the local community has any, like the county government or the state government, do you think that input into? >> no, and i've asked with surprise a county official is at this table now. they had nothing to do with her termination. i don't understand why they would have something to do with our restoration. >> well, let me ask ms. dillon a question than. thank you for your time coming in. what is your position? to me it does seem to be sort of a federal issue at the drive is recognized by the federal government, like mr. kildee said it and the state, you have some state issue there as well. but it seems to me that it does affect the local government.

what are some of the issues that you are facing in your county, ms. dillon, and relevance to this? >> thank you for the question. it is definitely a matter of local interest. it affects our local land-use. we have in particular in napa county have a very strict land-use regimen which everyone is required to comply with. we have an agricultural preserve, like no other in the united states. and we are very concerned about the integrity of the agricultural preserve. so, it is our desire is that everyone who acquires, and anyone who acquires land in napa county, plays by the same set of rules. again, our -- >> ms. tucker, do you have, the question i asked mr. gabaldon, what do you think that we should be doing here to make, improve

the process of recognition? >> i think that there are, are some realizations that have to be made. the first one being, indian people are not people who are like little pegs that fit in square holes. we have the same results of what happened to us, but it doesn't happen in the same way. and when you've got that kind of situation, what happened in the great lakes is not what happened to my people. what happened in california isn't what happened to my people. so when you're looking at indian people, you have to look at historically where they are, what has happened to create a situation that they are in. in 1947, when we had the first opportunity to voice, it was about a treaty that had taken the indians from where we lived,

the creek confederacy, and moved into oklahoma, and we've managed not to go. we felt we be recognized because we had to fight. it took 10 years to prove to the federal government they hadn't killed us all. i have a letter for my great grandfather you are either dead or your remove. when you're looking at across as though that is a rigid, you have to meet every single criteria, and you have to meet it exactly criteria a, criteria be, criteria see-one. you can't do that if you don't realize the differences that come in indian people, and that's the starting point. >> thank you. i guess i'm at a time. >> you can wait around if you want to. the gentleman from america somalia spent thank you, mr. chairman. i want to commend you and to ranking member for calling this hearing this afternoon, and especially i want to congratulate our colleague from new mexico, now that he has been

selected or elected as ranking member of this important committee, the gentleman from new mexico, mr. lujan. mr. chairman, thank you so much for calling this hearing. i ask unanimous consent that my opening statement be made a part of the record. >> without objection. >> mr. chairman, this is not a new issue, as you know. we have been through this quite a number of years, since the time of ben nighthorse campbell come when he was a member of this very committee before he went on to become united states senator. i think an understanding of the institutional history in terms of our treatment of native american peoples, mr. chairman, you probably more than anybody in this committee, and this congress understands and appreciates the problems that the native american communities have had to endure, and to go through as part of the history of our country. it's interesting to note, mr.

chairman, that our first national policy towards the native american indians was to kill the indians. the only good indian was a dead indian, it's my understanding of our history. the next phase of our history do with indians was, let's estimate the indians, make them all like fellow americans. assimilation i think was our policy been. then another phase of the change of our historical relationship with the native americans, and that is terminate the indian tribes. so any period of 150 years, this is what we've had to do in dealing with native american communities. so now the latest phase is to recognize the indians as indians. and i can't think of a tribe that is had to endure this gruesome and awful experience, over 100 years now, the lumbee indians, the largest indian tribe east of the mississippi, recognized by the state of north

carolina, 50,000 lumbee indians are not recognized, federally recognized by the government because of bigotry, racism, and all the problems that these people have had to endure. and by the way, they are still there in north carolina, over 50,000 lumbee indians are still not recognized, because the recognition process, in my humble opinion, mr. chairman, is broken. i think we all understand historically the current system of recognizing, process of recognizing native american tribes was never done by any statutory enactment of the congress. it was done administratively by the bureaucrats. with all due respect, i've got nothing against the bureaucracy. this was done since 1978, 34 years now, and i remember distinctly years ago, mr. chairman, the very person who wrote the regulations in bringing out the seven criteria that the poor tribes of have to

go through in order to be so-called recognized, he came right before this committee, mr. chairman, and said this system is so bad, even he would not have been able to go through the process of being recognized as an indian at the process was to be carried. this is exactly where we are right now. in terms of our treaty relationship, i want to always thank the chairman from michigan for reminded the members of the committee that we do have a very special relationship with native american indians. it's in the constitution. we even had treaties with native american tribes, i think 389 treaties we had with indian tribes, and the federal government broke every one of them. now, that's pretty good. mr. chairman, i did introduce a bill, h.r. 3103, to establish a commission statutorily by the will and mandate of the congress in how to make the system better

than what it is. we have had tribes have had to go through 15 years, have had to spend $300,000, some even in the millions, and still could not be recognized simply because the system simply is not workable and functional. so i cannot express my own sense of frustration, mr. chairman, and consider with your leadership and mr. lujan, that are subcommittee will seriously look at the possibility. let's make it is by the congress. because here's the problem we have here. congressman -- congress oldman does have the authority to recognize tribes simply by introducing a bill. a here's the problem. when a bill is recognized -- is introduce directness by tribe there is some object of our colleagues here who say they had to go to the recognition process. a process that is done administratively, not by the will of the congress by the way the bureaucrats have written these regulations for the past

34 years. so what do we do at the process is broken? it comes right back to the congress but what do we do from your? so i, in my humble recommendation, mr. chairman, that we need to put this inform a statute. because here's the problem when you have a regulation that can be done by this administration, the next administration will change the regulation. and the poor indian tribes don't know where to turn, who deterrent is simply because of the inconsistencies that we've had in dealing with the recognition process. i noticed my time is up, mr. chairman. i didn't even have a chance to ask a question. thank you, mr. chairman. i yield back. >> great speech, but -- the gentlelady from wyoming. south dakota, excuse me. >> thank you, mr. chairman. that's fine. >> two lovely ladies. >> that's right. and congratulations to ranking member lujan. your leadership on this committee is very important, and

a very important issue that we're dealing with today. ms. tucker, i want to thank you for your testimony, because i come from south dakota and we have nine tribes that are already recognized by the federal government. they are treaty tribes, and your story is not one that i often get the chance to hear. i want to thank you for that, and your testimony today was not in vain. it might have given an education to some because a different expense which tries to recognize any much different manner, and so i appreciate that. it's tribes that are located in my state. it's important recognize that they are being recognized in different manner, and his longtime treaty tribes to have a different status than you do today. and we need to make sure that in all of his assets we have the discussion and going forward that whatever the decision is an action that congress takes them that we do with integrity and that we recognize that our treaty rights, but we also recognize that it is our job to review the standards for which we recognize tribes into the future. and i find it very interesting,

as most everybody does you, as was the department of interior was invited but declined to in 10. my hope is that everyone in the agency believes that this is an important issue and that they should have been here today to talk to our tribes, and to have a discussion on them and how their recognized, as they are located here in the tiny. the department of interior and secretary salazar should make this a priority. and i know they can from some of the tribes from south dakota that they feel that the department of interior and the bureau of indian affairs are not making native americans a priority. and, unfortunately, their lack of attendance here today tells me that's yet another example of them not making this up early. the federal government does need to fulfill its promises and its obligations to tribes, but too often they fall short. and that's not acceptable to me. but i also wanted, supervisor dylan, at the bottom of your testimony on page five, i just had a question for you. one of the footnotes talks that

you're cognizant of the special relationship that happens between the tribes and the federal government, but that special relationship should not diminish the intensity with which the government litigates tribal clans the could you expand a bit on that, and what that means angel experience you've had with seeing that they have a dedicated that with the intensity? >> thank you. i'd be happy to. what we have found in the litigation that we have is that there were defenses, legal defenses that government put forth but then did not use. they haven't asserted those defenses in a proactive way at all. excessive one may say that the baa is a bit conflicted, and another reason why we advocate that this process of recognition for a terminated tribe, a tribe that was terminated by congress should not occur in litigation with the bia. the bia is obviously sympathetic

to the tribe. they are not pursuing the remedies, such as latches, meaning 50 years ago that they were terminated and now they have come forward. the government has not asked for the kind of discovery that's required to establish that they are a try. and, in fact, when we the counties asked for that proof, the reaction from the tribe was to move the court to dismiss us from the case, and the government is silent on that request for dismissal. they have not taken a position. it's as if they think it's okay for the tried to dismiss us from the case and for the not to be any proof but forward. so, so in your expense then you've seen them bring these forward, the defenses, and draw attention to them but yet you haven't seen them actually pursue them throughout the case as carried out? >> they put them on their initial response, but they have

done nothing spent our their defenses with you don't identify or you think that they choose to ignore? >> yes, we believe that's the case. >> then i'd like to ask for your feedback, mr. gabaldon, as well. on what's your perspective would be is if you feel as though the government relationship with your drive as they work through this process and if you feel as though there our defenses, but they're working in cooperation with you on, or he feel as though there's been clear separation? [inaudible] >> i almost have to defer to my attorney on this on the legal issues. this is over the place to discuss the case. but i can tell you it's no cakewalk even with the government. >> okay. well, thank you but i appreciate you all being here today. and with that, mr. chairman, i yield back. >> i think the lady. >> thank you, mr. chairman. and congratulations.

i saw congressman flew on on the way to work this morning. he was up early. let me first begin with ms. tucker. ms. tucker, i looked at your testimony, and it's not numbered but it's at page, about page five i guess where you have your chronology. >> a time when? >> yeah, your timely. and this is 1976-77 is when the initial petition was filed. and, of course, 2011, used to basically -- >> we are still waiting. >> are you waiting from the initial petition? >> well, no. the initial petition was returned in a cardboard box with i guess some of the data. most of the data, and a letter that we would start again. so now we have roughly 144 banker boxes, and we are after,

sitting in ready for active consideration for a number of years, we finally got moved in the summer at christmas. >> so what did they do for you in december at christmas the? >> they moved us to active consideration. by that point in time we are probably in house written for petitions. anytime a finding comes out on a tribe or more anytime court case using, initiated by petitioner, it changes something. and we are required to respond to the change. because our petition will not be judged on their current regulation. >> did you file any legal action during 1976-2011? >> no. we haven't filed any court cases. it's very expensive to go to court, and we are a very poor

tribe. >> isn't is also very expensive? >> this was very expensive. in the case of moving us to back to consideration, we have been very fortunate that administration or native americans had a funding that was available for tribes in status clarification. and our tribe was able to finally get funding that could help us defray some of this. >> have you been given any indication from the bia us to win they may make a final determination on your case? >> my conversation, i testified on the process before in the senate, and my conversation at christmas was they had a year to respond. i have heard from the one inside their organization assigned to us here i offered to come and meet with him, and they said that was not necessary. and that they would make a decision to i asked them at a time when they make an visit?

because that's important, but you come and see this community and how we live. and they said that they would determine an on sight if they thought it was mayor ted from our data. >> i have read a 3.7 and the seven criteria have portions of it which are time sensitive. for example, 50% requirement of marriages within a geographical location. now, have any of those criteria begin to now affect you or your eligibility? in other words, over the spirit of time, your population has changed? >> yes, it does. our members are still located in a small area. as time has changed, if you look at the years between, let's say, 1860-1940 before the defense installations got into our area, we were doing primarily second

cousin exchange marriages. and it was holding us very tightly together in terms of one of those criteria they look for. at that point as we're changing through time and become and more modern nation, we were coming and going and moving more. yes, it does affect, do you have 50% married to one another. >> i don't know if my colleagues realize this is a criteria. you know, that 50% of marriages in the group are between marriages in the group picks like you said, your second cousin speak to is exactly. we did second cousin exchange. another requirement, when you're looking at it is everything here, they would like to report that someone came where i live in the remotest slums of florida where he wasn't allowed and we would probably not treat him well if they come there anyway. ..

ranking member position. i know you will do fantastic job and think you to all the witnesses who came today to testify on this very important issue. i want to begin by saying i align myself with the chairman and i believe the other members who have gone on record as

stating that they believe it's the will congress to make these determinations, not the courts, not the department. and also i align myself with mr. dillon. i'm a little flabbergasted that the interior is not here. most of my questions are for them, number one. but they've been absent on my side of the discussion in regards to this issue and i think they need to participate so we can figure out how zero to best make these determinations that need to be part of that process. i just have a couple of questions, chairwoman tucker are you pursuing legislation to? >> we've been in 34 years and we've come to congress. >> in that case i also align myself with chairwoman tucker

and the chairwoman of the committee in regard to the proper process for making. ms. dillon what is the current status of the litigation? >> we are waiting for a determination from the court as to whether the tribal council motion to have a dismissed from the case will be granted or not. >> is there also some other information that you are waiting on as party to this suit? >> we've never received any information from the tribe that we've asked for. our discovery demands have been ignored. >> mr. gabaldon is there a reason you haven't been forthcoming on the information with folks enrolled in or tried and the status?

>> yes there is a reason we don't feel is the county's business as to do the job of the department of the interior. no county has ever asked for records from social security numbers, addresses and names or tribal members, some of i want to correct ms. dillon when she says it was after the discovery that we removed them. we removed them because they had their shot in court. they filed nine motions to remove us. the judge denied all those motions and we kept going to. then the appeal that and lost the appeal. so we felt what are they here for? would be a to the judge to determine if they have a right to have standing, and we feel they don't have standing so we will let the judge made that decision if they have standing in of the judge sees they have standing we will give them the information they need. >> so are the membership rolls available?

have they been released to interior to the court? >> we have released them to the interior. i believe in 2010 they have all of our records and there's speculation that we don't belong to the original group. i would like to make it clear there is only one wapoo group. >> who determines that? and assuming if the department has the information they are able to run the traps to figure out if the folks are who they say they are if there's a continuity of tribal organizations and tribal governments. is that correct? who determines that is it the department? >> the department of interior, yes. >> so they have everything they need to do that? >> we've given it to them like i said in 2010 if the need a fresh copy will give it to them.

>> and the department advised you that you should go through the court to settle this? >> when we ask for administration restoration we did ask to do that and he advised to go through the courts or through congress, and we understand that there are political challenges in congress and so we wanted a fair shot through the courts as recommended. >> so he recommended that even though he has all the documentation that you believed would determine tribal status? >> i believe he has it. i don't believe they went through it. >> i don't have any questions. thank you. >> i don't want to question anybody here today. i just like what deutsch said and that it shows the system is broke. i've always said that congress should have the authority to

issue recognition and not the bureau and i think it shows when the bureau is not here that they still think they have the deal and that is the trouble with this congress that has occurred over the years as we transfer the power to the executive branch and that's always changed. there's no real standard i believe set standards you have to meet but we have cases where they accept one tried and they will accept another. i would like to see the committee work together and work with the people and other tribes fy dessel not a criteria that we make the judgment on. i will tell you it will be a lot stronger. i don't like the interior for instance recognizing tribes without any input at all even when they weren't recognized and didn't ask to be. i don't think that was the right

thing to do. they overstepped their boundaries. you have a question? stand yes, could i ask in regard to the department of interior are you going to -- are they going to come to the committee to ask questions? >> i said we will have another hearing. i'm not saying -- we've got people from virginia here in this room that we are going to move that bill again and we will see what happens on the senate side but i suggest you talk to the senate side because the state -- i think the state recognizes your state, ms. tucker do they recognize you too? >> we have no recognition. we were honored in 1984 and recognized in 1986. i have the language from the people sending it back and forth and since we had no indian commission they had no where to put us so we are a defector state recognition. >> i believe you've been recognized by the state?

>> we have. >> if you are recognized by the state and i know the virginia tribes were, mr. moran specifically showed that less and i just think for some reason there is a shortage of wisdom in the interior department and i still believe with my colleagues that although it would take some time and effort i think we have though response of of the trust buys we shouldn't transfer power to the executive branch. we are doing it and we've done it over and over in all walks of life and i think in this case because of the nation to nation trust and authority we have to do a better job than we are going to try to do that. any other comments? >> two quick questions. >> go ahead. >> mr. gabaldon, one of the criteria of the 25 see if our part 23, 83.7 g the petitioner

demonstrates that neither the petitioner more members are the subject of congressional legislation that has expressly terminated the federal relationship. islamic i'm sorry i didn't hear the question. >> section g states that if you don't meet this criteria there is no administrative relief or you don't have the opportunity to pursue something administratively but the criteria is the petitioner demonstrates that neither the petitioner for its members on the subject of congressional legislation that has expressed terminated or forbidden that federal relationship. would your tried fall into that? would you meet that criteria? >> we don't meet that criteria. that's why we were not able to use the petition process. >> that's important to note as we talk about this that the aspects associated with the judicial recommendations from

the former assistant secretary you're pursued that may be one of those areas but it's important to know because the tribe is in a situation where it's privately held and there isn't publicly and in that area has that been talked about by the tribe at all? >> no land has been talked about by the tribe. the only land we possibly seek from the government doesn't require anything because it's already in federal trust so we were not seeking land like the old reservation that in private hands now. i will tell you in the beginning we did see that land and was to make a statement to the federal government saying we want it back immediately. if you look at our first amendment complaint we have changed that because we understood that it -- it ruffled the feathers of the county's senior need to go through the

process. we are not denying the fact we have to go through a process and we will but right now it's not about land. it's about restoration and it's always been about restoration. >> thank you. i appreciate the clarification. any other questions? if not i want to thank the panel. >> i would like to acknowledge what you said about the congress of devotee of power or authority to recognize. as of april 2011 according to the gao report, the 564 tribes that had been recognized, 540 of them with her congress, so i trust the collective wisdom of the congress and i appreciate the fact that the virginia tries did gain recognition through the house. so again i'm very optimistic that the right thing will happen. >> and if i can come on would prefer it going through this way and not through lawyers.

for those in the audience if you're here is rising, good. i get very frustrated when money is spent on legal let fais when should be directly, not money if the petition through the congress and i have a couple of lawyers sitting here so i have to be careful. but i just -- i watch it every day and it's a great industry that frankly produces nothing. it absorbs money and that's a terrible thing. >> my short comment is the lawyer that we are using is very helpful and he did a lot of it pro bono. >> he must be an angel. there are few of them. >> this meeting is adjourned.

it governs rights and international waters and came into effect of 1994 but the u.s. senate has yet to vote on the treaty. last week the committee held a hearing on all of the sea treaty with representatives from the business community >> the hearing will come to order. thank you very much for being here this morning. needless to say, capitol hill is filled with a little anticipation about the supreme court decision and we are going to prove we continue to do the nation's business notwithstanding that anticipation. i am delighted to have this very significant panel of business leaders here this morning to

further help us evaluate and take a double wall of the sea treaty and i want to just say a couple words at the beginning to put into perspective what brought this about and why we were here. i've been accused in many different reasons i just read something the other day in the papers about why this treaty is here and what it represents etc, and i think everybody has kind of got it wrong so far. i was actually out to dinner with tom, you may be a year and a half ago or so and we were talking about a number of things on the agenda but particularly energy policy. and at the very end of the dinner, tom turned to me and said by the way when are you going to give the law of the sea treaty done and i was completely taken aback. was the last thing that i expected to hear about at the

dinner and i said why is that a concern? he said are you kidding i have a bunch of members who are desperate to get this done so they can go out and explore, do what's necessary to produce he can answer that is what really flag it for me and i came back and talk to my staff and by this a promised would give a good faith effort and that is what really brought us here because i met with various representatives of the industries and became convinced that american competitiveness and american jobs were at stake, so we are not here because of any political agenda because the administration decided this was the moment this is really coming from america's business community and i think people

will hear that very powerfully, and that is what we will examine today. you have heard already from the nation's top military leaders, the secretary defense, the first sitting secateurs defense testified. we've heard from the secretary of state and from every past secretary of state, republican and democrat alike who have together signed an op-ed that the road that has been reproduced in the national newspapers regarding the treaty. we've heard from the tree experts and opponents and we will hear from more on that score. our military leaders have consistently supported the session of the treaty for more than two decades now and some have argued that we should prefer to rely on a customary

international law to protect our navigational freedom. but most of the national security community disagrees with that and does not believe that we should leave our national security to an unwritten set of rules subject to change by other countries and subject to change at any point in time. that capacity to have things subject to change also provides to the business community and as we hear again and again up here, nothing is more damaging to long-term business plans and investments, capital formation, job creation than the lack of certainty to know what the rules of the road are. so today we shift away our focus from the military to our energy and economic security. and we hear from top business and industry leaders to combine represent millions of businesses

and jobs our company is one this treaty quite simply bottom line because it affects their of bottomline. joining the law of the sea will provide business to the industry that are not available through any other means. just a quick few examples, telecommunications industry. as we will hear shortly, we have vast undersea cable networks and they provide a backbone for the world's voice and data networks. when there is a problem of the country were to seek to block a company firmly in the cable or impeding the repair of damaged vehicles, the wall of the sea provides redress, the party to the treaty can bring suit on behalf of its companies and since the u.s. is on the outside of that agreement today we cannot take advantage of this

legal road map. our companies have to piggyback on efforts by government to the convention. so instead of standing up for the companies when they need our help to join the treaty, it forces them to the greater expansion and lack of protection of american sovereignty the status quo is simply not acceptable. look at for verizon is very pleased today will go into some of the detail regarding that. the telecommunications industry, others all of whom urged the session to this treaty. on energy security people come to the same conclusion the united states is blessed with hundreds of thousands of dollars of square miles extended a continental shelf. we could literally have and this

by from what is underseas and available to us for the jurisdiction and the will be critical to the security for years to come. the only way to maximize the legal certainty and establish clear titles over the extended shelf is the recognition by the continental shelf commission. as a non-party to the treaty, we are shut out from this process. we are shutting ourselves out. this makes a critical difference to the energy companies as we will hear. they want and need certainty to invest the billions of dollars required especially in the arctic with the chinese and the russians are already laying claims. instead of doing what we can do to encourage environmentally sound energy experts in those areas of failure until all of

the seat we are pleased to have jack girard to speak on behalf of the american petroleum institute and explain exactly why would i just said is the case. mr. girard is not alone you can listen to breakfast head of exxonmobil but recently wrote senator lugar and missile verging ratification of the treaty. the head of the shell oil company which employs over 22,000 people in this country and strongly supports joining dell all of the sea. he was unfortunately unable to join us today that he has submitted testimony today and his testimony will be placed in the record as of right here in full. a short excerpt. if the united states were to become a party to the convention, it could participate in the internationally recognized process for claiming its extended continental shelf and its rights over we'll and gas which would provide legal certainty for accessing and developing those energy

resources. without this clear claim, our company wouldn't find investment conditions favorable. finally we turn to manufacturing. as many of you know, rare earth metals are crital to a large part of modern manufacturing. rare earth metals are an essential component of our communication systems, of our defense control systems, missile defense control technology and other weapons systems. it includes the scope of the rare earth mineral used in electronics, computers, phones and all of the advanced weapons systems some of which i named. today, my friends, china controls about 97% of production market of these minerals. can anybody in their right mind

suggest that the united states is safer and our companies are advantaged sitting in a situation you can't be saved and you can't be legally protected and we are sitting on the outside. we cannot secure international recognition for deep sea mining claims that our company is not in order to invest billions of dollars unless we are part of this treaty. so on a rare earth metals and, we'll and gas and on whatever on non-minerals and/or product may be finable under the ocean we have a choice. we can either join the major industrial nations that have already joined up and are already using this to this advantage and secure the benefits for law of the sea for our businesses and industries where we can remain on the outside to thrive accompanies of

the investment and operational securities they seek and see the american contended that vantage and watch while other countries to this baliles. i think the choice is clear. today we have people who can speak with much more authority than i can because it's their livelihood, it's their life endeavor and i think we need to listen to them. thomas donohue chamber of commerce representing broadly these industries, jack gerard ceo and president of the american petroleum institute of which all of our major producers are partners. president and ceo of the association of manufacturers and will macadam, chairman and ceo of verizon. so gentlemen, welcome to the. as the next before. i join you in welcoming our distinguished panel of industry leaders.

i appreciate especially their efforts on behalf of law of the sea and their willingness to explain how the convention will help them create private sector jobs and contribute to the growth of the united states economy. every major motion industry including fishing, telecommunications, oil and natural gas, a drilling contractor should support the united states for the law of the sea treaty. this is not a recent development. ocean industry support the invention has been virtually unanimous going back to 2003 when the foreign relations committee first initiated a process the resulted in unanimous kennedy voted favorably on that occasion. a few years later the foreign relations committee hearing on october 4th, 2007 a business panel testified in favor of the

convention. senator menendez and i were present for that powerful testimony. but then as now every major ocean industry backed the convention and appealed for ratification. with good reason americans are intensely interested in the job creation and the face of the economic activity. this is the paramount issue among voters. there are innumerable threats in the united states economy including the phenomenon which we have minimal control such as the european situation. moreover because of our own national debt we have few stimulus options that combat the future economic downturn. these increased the importance for the job impact and the logical innovation on their own natural resources. as we will hear today from the united states ratification law

of the sea was a job creating investment and opened a new resource quote to the industry at a critical time. law of the sea already in forms the basis of the maritime regardless and whether the united states is a party. the decisions related to the resource exploration navigation rights and other matters with the aid in the context of the convention will rejoin on what and we will not even be able to participate in the amendment process to this treaty which is far more likely to impose new requirements on the navy and ocean industry if the united states is absent. under these factors that people that actually deal with oceans on a daily basis invested their money on job activities on the oceans want this ratified. they do not want a competitive

disadvantage to the industry's. by not joining the law of the sea we also are diminishing the potential scope of our domestic energy production will allow all of the sea convention is on necessary to secure the legal basis for companies to fully exploit oil, natural gas and manager well on the ocean floor. it is not the opinion of american companies that might invest the resources in the activities. the title provided by the convention the couldn't go forward with any projects requiring large investments. their concern is that after doing the extensive exploration research testing and construction necessary to explore the site, the of to be certain that another entity won't be able to free ride on their investment or challenge

their claim in the international courts. the juggling and mining companies prefer to pay a small royalty beginning in the production. in return for an international system that gives them the undisputed claim to the sources produced. this provision of the convention was negotiated with the participation of extraction companies. the judge that it is reasonable given the legal certainty and the value of what might be produced especially since the first five years will not be subject to any loyalty. our resource extractive is telling us if we want them to move forward with steel development motion for resources that would contribute significantly the united states energy security create jobs we need to ratify wall of the sea. by thank chairman for this hearing and look forward to the discussions few stomachs before

senator lugar. i am reminded by your testimony i don't need to be reminded but this is ground that this committee has been over before and senator lugar has previously lead that effort and has had a long time association with and stayed in this effort and i just want to acknowledge that and thank him for leading the groundwork and the record that we have to date. ms. donohue come if you would leave off and mr. gerard second mr. temmins first and mr. mcadam >> thank you, mr. tramp. and ranking member lugar and all the members that are here will be here. we appreciate this opportunity to testify today. i am pleased to express the u.s. chamber of commerce strong support for approval of the law

of the sea treaty. this morning i will focus my remarks on why the treaty is in our economic interest, our national to the interest and why it is essential to america's global leadership. on the economic side of the treaty would be a boon to the u.s. economic growth on providing american companies with of the legal certainty and stability that they need to hyperion invest. it would codify the u.s. legal rights to use international shipping lanes to the under water tables and to develop that amount of oil and natural gas to the u.s. coast and the deep water sea bed. the treaty would benefit several industries key to economic growth, job creation and u.s. competitiveness. it would benefit the energy

industry by providing sovereign rights to the seabed resources, 200 miles off our coast. a certain geological criteria met could extend to 600 miles or the so-called continental shelf. a proper delineation of the extent of the continental shelf could bring an additional 4.1 million square miles of ocean floor under u.s. sovereign rights, an area larger than the lowest 48 states and the international body that determines the claims in the arctic keep to the sky and there are going to be a lot of international recognition for u.s. rights in these areas and defending against be unreasonable claims of other nations is vital to the economic

prosperity of the nation. the telecommunications industry needs the treaty to codify the right to maintain underwater cables and the oceans of the world. it also means them to provide stronger protection for cables against damages by other parties. a wide range of domestic industries including aerospace defense and consumer electronics needs the treaty to enable access to the new sources of mineral resources including rare earth metals as the senator indicated which lie in the massive deposits on or beneath the deep sea board floor. companies need the legal certainty and the stability provided by the treaty in order to minimize the investment risk and cause these resources in the u.s. extended continent shelf in

an area beyond that. that's why the treaty's approval is so important to sustaining and creating american jobs and protecting american interest close to the mainland. let me say a word about national security. the treaty clearly is essential to america's national security. the u.s. chamber has a long and proud history of supporting america's national security interest. for example, we play an instrumental role in mobilizing america's industrial might to fight and win the world war i and world war ii. i put them there if i might say mr. sherman because we just celebrated our 100th anniversary and we took the time to read about why the chamber was founded and why it's basic principles for which were to represent the american business community and represent at the

highest level with of the greatest service the country and its needs. we have long supported the robust national defense that we've recently launched a major effort called hiring our heroes to imply veterans by matching them with employers all round the country. it is in this tradition that we support approval of the law of the sea as it relates to national security. at any given time hundreds of u.s. flag ships and ships owned by u.s. companies rely on the freedom of navigation rights codified in the treaty while crossing the oceans. in fact, sea ferry vessels transport more than 95% of all goods imported to or exported from the united states and putting that essential commodities like oil. while we can always rely on the u.s. navy to ensure the lawful passage of the u.s. flag owned

ships, the chamber strongly supports the navy's desire to codify rights to freedom of navigation in the treaty rather than rely on the customary international law or its strong navy. let me say a word about a seat of the table. the treaty is critical to america's global leadership. as the world's preeminent maritime power with one of the largest continental shelves, the u.s. has more than any other country to gain or lose based on how the treaty's terms are interpreted or changed. of all of the sea treaty will continue to form the basis of maritime law with or without our approval. the nation's interests are best protected by being an active participant. another side comment, there is a lot of comment and suggestion

that this organization set up in jamaica is coming to run our lives. it clearly is not. but what a mistake we make if we don't join the treaty and put our representatives of their who would be at the absolute power to veto any action suggested by the organization. let me say a word about the critics of the treaty who i have a lot of respect for. but i would like to have to of the chief criticisms of your to read this couldn't be further from the truth this treaty promotes our sovereignty by codifying our property rights and turn our backs to the continental shelf it will be ours people know it's ours and we have every right to defend it. the opposition is to a small portion of royalties from developing the would be going

into the international seabed authority. she would lose hundreds of billions of dollars in royalty revenue by not providing the legal certainty and stability to develop its extended continental shelf. it's a simple balance. we get most of the money under that system. the treaty provides the certainty which will encourage companies to explore and develop these areas and produce potentially billions and billions of dollars of royalties, and to the government and finally like any, this treaty isn't perfect. it will be changed like all of the trees are and we better be sitting at the table. today the benefits far outweigh the cost and we must protect those benefits. for all of these reasons the u.s. chamber urges the senate to give its consent to the law of the sea treaty.

the treaty has the enthusiastic backing of every industry of impact including energy, telecom, shipping, mining, fishing, biotech and enjoys the support of every living secretary of state and the joint chiefs. the senate approval is imperative to expand u.s. territory beneath the oceans to protect vital national security interest to develop new commercial interests and to create jobs. so i think you for allowing me to share these obvious, sure the discussion will get more specific but the bottom line is very simple the benefits are all to accrue to this country and our economy, and we are to move forward on it. thank you very much. >> thank you. we appreciate it. mr. gerard. >> thank you mr. chairman and ranking member lugar and senator webb and isaacson it's a pleasure to be with you today.

it's good to be here at the table. with the 500 member companies along with the 2.2 million americans, men and women for work in the u.s. oil and natural gas industry we appreciate the opportunity to be here to testify in support to the law of the sea treaty. we agree with secretary of state hillary clinton with former secretary of state condoleezza rice and as well as presidents of both political parties who have urged the exception. during of the law of the sea convention is truly in the best interest in the united states. today the u.s. relies on oil and natural gas for over 60% of all of the energy that we consume. recent economic projections by our own department of energy and

the obama administration's show that 30 years from now, 57% of all the energy that we consume in the united states will continue to be oil and natural gas. other projections show the demand for the global energy led by oil and natural gas will increase by over 50% in the next 20 to 30 years. energy is a very serious issue particularly to our global economy. companies spend billions of dollars annually looking for and producing oil and natural gas are not the world. to give you some insight in 2009 to 2011, the industry spent over $700 billion just in the united states drilling and export an additional opportunities in the central gulf of mexico the u.s. oil and gas industry paid

$1.7 billion in bonus bids to the federal government to secure the rights to develop the resources in the gulf of mexico. preliminary studies estimate that the u.s. extended continental shelf as a result of the exception to the law of the sea treaty likely totals 1 million additional square kilometers and could contain resources worth billions if not trillions of dollars to our u.s. economy. the convention provides a clear objective means of asserting the u.s. authority and gaining international recognition of that authority reducing the potential for the jurisdictional conflict between the nation's. this provides certainty for business planning so the companies can manage their financial risk over the lifetime of their investments. i might add that when we and the early gas business look for investment opportunities we are not looking quarter by quarter and year by year, we look ten,

20, 30, 40 year horizons when we are talking about multibillion-dollar investments. this uncertainty will increase the likelihood of companies investing in the extended continental shelf. this in turn will result in more u.s. jobs, more u.s. revenue to our federal and state governments and many other benefits. the convention also broadens the definition of the continental shelf in a way that would significantly favor the united states. as tom touched on earlier, it would secure an additional 4.1 million square miles of ocean under u.s. jurisdiction and provide a mechanism to the vitally needed of natural resources in the arctic and other areas where other countries, russia for instance have already laid will protect a

one - delete the navigational rights and freedom from vessels. we understand there are legitimate concerns about certain aspects of the convention. we appreciate the attention by the members to ensure that this convention is truly in the best interest of the united states. i'm here today to express to you the benefits of the convention for the wheel and natural gas industry our expectation is that the administration of congress would continue to work to ensure u.s. interests are protected as they represent the nation and the implementation of the treaty. in short, the law of the sea convention will advance and protect america's energy interest. it would mean a level playing field and new opportunity for the resources development all around the world. thank you again mr. chairman and members and i look forward to your questions. estimates before. before you do, let me just say in response to your hope that

the congress is going to protect and address any of those concerns i want to again say to my colleagues that we will have a set of specific declarations and understandings that clarify the concerns made as they've gone along so there is crystal clarity with respect to issues raised by the tax or jurisdiction etc lubber will be taken care of. senator lugar and members of the committee for the opportunity to speak about the law of the sea treaty vital to the national security as well as the economic security threat of the nation's largest manufacturing trade associations and we represent 12,000 manufacturers of all sizes across the country. i'm pleased to add the voice of

manufacturers and support the adoption of the law of the sea treaty three this critical for the manufacturer's ability to compete and succeed in the global marketplace. one key to manufacturing growth and competitiveness. 95% of the world's consumers live outside of the united states comes to reaching these potential customers is absolutely necessary for manufacturing competitiveness. most significantly, it is 20%, 20% more expensive to manufacturing in the united states than among our major trading partners. and that is after you remove the cost of labor. the treaty will help reduce the cost of manufacturing in two very important ways. first it will provide new opportunities as you heard from my colleagues for energy exploration, secure and reliable sources of energy are a significant concern for manufacturers which consume one-third of the nation's energy

output. and second, it will open access to critical inputs for many manufacturing applications. if you use of self phone or computer or drive a hybrid car the chances are components containing rare earth metals. they are the basic inputs in the production process for many items such as renewable energy products, defense products, consumer electronics and others. today as was noted by the chairman china produces such words of 95% of the world's supply of rare earth minerals. brazil, india, malaysia and canada or the remaining sources and while china uses 60% but it minds today there's no doubt that it will likely use all of fact that it produces eventually. now if that happens this going to jeopardize the manufacturers'

access to the materials. cost will brough is not only on manufacturers but also on consumers. the economy will suffer and more jobs will be in jeopardy. the united states has an opportunity to tap and useless but first we need to ratify the wall of the sea treaty. the people of men on the deep seabed is incredibly expensive as you might imagine. companies in the united states are unlikely to invest heavily in deep seabed mining because the risk of legal challenges to their activities. today many u.s. companies have the means to explore and develop these resources and minerals that they will only do so if there is a structure in place that contains internationally recognized agreements. ratification of the treaty will give companies with certainty they need to begin to develop these resources. foreign mining companies who have joined the convention have

access to the international body's the grant the legal claims to operate in the deep seabed area. u.s. companies are currently excluded from the bodies simply because we haven't adopted the treaty. manufacturers cannot afford the united states to sit on the sidelines when it comes to the law of the sea treaty. we are in the global economy and countries are working feverishly to take away economic leadership. to strengthen and factoring in the united states and maintain our economic position we need to adopt policies that promote long-term sustained economic growth. manufacturing in the night it states in place over 12 million americans with high-paying jobs and the sector supports 5 million more jobs in this country. no doubt everyone in this hearing more and would like to see those numbers grow. a strong and prosperous country needs a strong manufacturing sector and this treaty will strengthen manufacturing and our nation. thank you again for the

opportunities to speak to you today. >> thank you. mr. mcadam. >> ranking member lugar and members of the committee, thank you for the invitation to speak before the committee today. i would ask that my full remarks be entered into the record. >> without objection, they will be curious, so far today you've heard the broad perspective from my esteemed colleagues and what i would like to do is discuss ways that the convention will strengthen protection for a global undersea cable network operator. my views are based on more than 20 years in the telecommunications industry during which time i helped build and six mobile networks domestically and internationally as a major communications company utilizing the international seabed to provide voice, video, internet and data services over the network of more than 80 submarine cables

they set for the ratification of the law of the sea convention. fiber-optic submarine cables are the lifeblood of u.s. carriers global business and the digital trey draft of the to the first century. aside from our land-based connections with canada and mexico, more than 95% of the international communications traffic travels over 38 submarine cables each roughly the dalia adder of a garden hose. without these tables, kermit satellite capacity could carry only seven per cent of the total u.s. international traffic. any disruption to the global submarined can have a significant effect on the flow of digital when formation around the world as well as an impact on the world economy.

as one issue on the federal reserve noted referring to a submarine cable networks, when communications networks go down, the financial sector does not grind to a halt. it snaps to halt. there must be an appropriate legal framework based on the end of the rule of law. the convention provides the necessary framework in ten provisions applicable to submarine cables. these provisions go beyond existing international law to provide a comprehensive international legal regime for submarine cables wherever they are deployed. several incidents recently underscored the urgent need for a clear and unambiguous framework protecting this vital communications infrastructure. first some nations have attempted to encroach on the ability of u.s. operators to

deploy, maintain and repair undersea cables. this is in violation of the convention. with a seat at the table the u.s. can more effectively oppose these types of foreign encroachments on restrictions and enforce the conventions freedoms too late, maintain and repair the undersea cables. second, ratification of the convention will halt u.s. companies better contend with disruptions to the undersea cables. for example, in march of 2007, the large sections of the active international cable systems in southeast asia were heavily damaged by commercial vessels from vietnam and taken out of service for about three months. more than 106 miles of cable were removed from the seabed and repaired at a significant cost. it would have been very helpful if the united states as well as affected u.s. companies

including verizon had been able to use the convention to compensate cable owners, arbitrate disputes over service disruptions and deter future violations. finally, the convention will help the united states government in the affected companies respond when countries unlawfully require licenses or permits before submarine cables can be laid or prepared to raise as an example, verizon as a co-owner of the year up in the gateway submarine cable system which passes over of a continental shelf, but never enters the territorial sea. even though the convention allows such transmit without interference by coastal nations, the resources authority has threatened legal actions if they do not obtain a license and pay a significant feat. not only to the fees at unforeseeable cost, existing in

the underseas cable systems they raise the system of them posing similar requirements for the sole purpose of raising revenue at the expense of the cable operators and owners. bye signing on to the convention, the u.s. will have an enhanced ability to effectively support american parties to such dispute and express freedom to lay and maintain submarine cables and international waters without tolls, taxation or fees' levied by coastal states. once the u.s. is party to the convention, verizon and other u.s. telecommunications companies can work with the appropriate u.s. agencies to enforce the freedoms to lay and repair cables saving millions of dollars over the life of a cable system to this convention will improve the reliability of our critical infrastructure and put u.s. companies on a level playing field for operating

international cable systems. in conclusion, senate ratification will provide confidence to u.s. companies and their underseas cable investments are protected by more specific and reliable international law. the convention will provide a tangible benefits to the united states through specific new protections for critical submarine cable infrastructure. verizon urges the senate to ratify the convention. thank you mr. chairman. >> thank you very much mr. mcadam. i appreciate that and a place for having to step out for just a minute. i think you've got to tell your grandchildren while you are speaking it wasn't just exactly your speech. [laughter] >> it wouldn't be the first time >> it's my understanding i don't have the full story but you've

also got a message if i'm correct that the entire aca was upheld with the exception of the federal government power to terminate medicaid, medicaid funds the was narrow but otherwise that's the way understood. is that when you understood? >> yes. a very complicated. first of all, the individual mandate was found to be taxed, and it appears very little information that we talked about is the chief justice move to the other side so that he could write the opinion and i think the opinion is going to be very interesting to read. some of us want to say anything. spec that's pretty accurate. >> we will wait to get a readout at the appropriate time. let me come back if we can to the importance of what is being

said. i think your statement today, mr. mcadam is a very important one, because a lot of people have focused on the extent to which an entire society, defense industry, finance, banking, all of this is not in the movement to move information to the degree which the ability to protect that is obviously very, very significant. and with respect to it there is obviously critical respect any kind of dispute, and there were interventions by someone by a terrorist group or by a nation state, and obviously one could envision any such intervention taking place in the world we're living in today. ..

just give us the practicalities. what does that approach do for your ability to infect go out and do it, if anything? could each of you respond to that? maybe you want to start mr. gerard. >> surely.

in simple terms senator the thing to remember is the word certainty. and as you quoted earlier, the united states made a simple comment. they said without certainty, the risk is too high. fundamentally from an oil and gas perspective that is what we looked at. we go through risk calculation on every project and if there is question as to who has that right or who owns that land, or who has access, we might be able to have the theoretical conversation about what u.s. baby can or cannot do but we are talking billions of dollars of investment. one quick anecdote senator that you might appreciate. shell oil is moving hopefully to the arctic even as we speak. a few days ago they released two of their vessels from the seattle region and headed up to the arctic. they are in the fifth year of it. they have invested $4 billion. that is it b, $4 billion

hopefully the summer they will get their first permit for their first drill hole. so when we talk about investments, we are talking about multibillion-dollar efforts here. so unless we have certainty and know who's got the right claim and who controls that area, our money will not go there. i think he made that quite clear in his statement. >> let me state for one minutes mr. chairman, on the issue of capital, that it takes, in other words to dig up rare earth minerals or whether it is to go for oil and gas or whether it is to make other advances, capital doesn'tç calm. it isn't safe. money goes where it's safe, where it can be profitable. so when we are talking about certainty, we are talking about a form of protection that we know we can get the permits.

we can do our business and by the way plus, we can always say the greek navy, even though we are shrinking the size of the navy and we haven't done sequestration yet in all of that sort of thing, i think it's a lot cheaper. i think it's a lot smarter. i think it's a lot more credible in the courts of the world and to be a partner to this treaty. i think we must keep side of the fact that when you are on the inside he can do something about it. when you are on the outside you are just going to tell them we have great massive navy power and we are going to do what we want to do? if it ever came to that, of course we can but i think it's important. we are going to have competition to these areas. if we don't lay a claim to these extended areas, there are lots of other people, as you mentioned, i think it was you, in the arctic. we have got the russians. we have got the chinese that will be there. everybody;ñ?ñ? is up there. everybody wants to get in on the deal. why do we just put our footprint there? all we have to do is put this

treaty in place, with the adjustments that should be made, put our people there and lay claim to what is rightly the resources of this country. >> is anybody else want to? >> 161 other countries would likely recognize our claims if we are not a part of the treaty and they are. the world is a very different place today than it was 40 years ago. we are at global economy. we compete internationally. we are competing for those 95% of consumers who live outside of the borders of the united states. many of the companies that would be able to invest and take advantage of the resources in the deep seabed are international in nature and they have operations in other countries. through commitments and treaties, they rely on other countries to follow the rules whether it be in areas like dumping or i.t. protection or financing.

are financing. these other countries or these companies, will want to follow the rules as well. they simply will not invest. >> now let me ask you one other question with respect to this. we are hearing from some people, we are hearing from some people that this may be a backdoor way of enforcing the climate change treaty, something like the kyoto protocol. now i know we have had many discussions mr. donohue about that. we worked together on some energy stuff. i know chambers and other people's concerns about you know, cost being dumped on you that you can't handle and may be noncompetitive and that is bennett nick major issue as we wrestle how to deal with these things. i will ask ask you to be the very same question. do you have any concern that joining law of the sea is going to require the united states to somehow he mandated into the kyoto or any other climate

change treatment? mr. donohue? >> well, if you read what seems to be the treaties environmental interests, we have met all of them. all of them. period. and, if we were a party to the treaty, and inordinate or particularly inappropriate climate demands were made on us, we would have the ability to veto it, veto it. it takes one veto. >> may i ask you yes, mr. timmins. >> just tell me how you think that's wrong and i will be happy to discuss it with you. >> i think it's a very important point that mr. donohue has just made. we would have the right to object to any provisions that are put forward. that said, there is nothing in

the treaty that i have read that indicates that we would have to join kyoto or any other treaty of that type, and that is coming from an organization that does not support kyoto and has serious reservations about a cap-and-trade regime. some critics have additionally argue that if the u.s. joins the convention, the chamber of commerce agree with that? >> no. if you expandfá the economy, and many of our jobs in the future are going to come from mining, from energy, from trade, and this clearly is a treaty that will enhance that, not detract from it, and i believe that, as we have said publicly, not only about this treaty but about the whole energy mining and other

issues. these are where a lot of the jobs of the future are. i think it would create jobs. >> anyone else want to comment on that? >> clearly it will be a job created. i will just add one other anecdote and i'm raising a touchy issue here. keystone xl poplin. a lot of people don't release the keystone xl pipeline has 2400 u.s. companies involved in its development from 49 different states. we have only not found someone in the state of hawaii that is involved in the keystone xl pipeline development so if you look at energy infrastructure, energy investments they are huge job creators and they occur in places that you least expect. the multiplier effects in energy particularly oil natural and gas, are very significant. so we see nothing but upside through ratification through the essential process to secure those rights hopefully so we can secure the opportunities to develop that resource and it will flow clear across this

country and in a friday of different ways. >> thank you. >> mr. chairman i would point out, in our industry telecommunications, the buzzword, the number one word is reliability and we invest as a company 16 to $17 billion a year into our networks, and we and the undersea cable area in particular invest in network so that we can avoid issues with large storms or earthquakes off the coast of japan, so we invest to get to the level of certainty or our customers. when a nation takes a unilateral action, like it referred i referred to in my testimony, you can't counter that so this treaty allows us to have certainty around those sorts of unilateral actions in the belief that we can resolve any conflict amicably and quickly.

so my view is it will help us with our certainty around investments and it will make more investments and that in turn will create more jobs. >> my time is up. i will come back. >> thank you mr. chairman. i wantçó to pursue a more certainty argument. this was made by others in earlier hearings of in the committee, and every pursuit during the last hearing, the former secretary of defense don rumsfeld who testified against the treaty. so i raise the question, secretary rumsfeld, how you would deal with the situqt9jez which american companies were testifying, as you have today, that without certainty they would not be prepared to invest the billions of dollars that are required, thus there would not be the creation of the jobs nor

the degree of energy independence. and his response, and i hope i attest this come he observed while businesses always preferred greater certainty, they enter into uncertain investments all the time. when they believe the potential benefits justify the risk. on that basis, he suggests the unitedw3 states companies solve potential benefits of deep seabed activities, go right ahead and make those investments even if the isps did not ratify the convention. as a practical matter there is no impediment to them doing so outside the rules. secondly he observed u.s. companies might consider entering into joint ventures. the companies from countries that are parties to the law of the sea convention. they have secure rights under the convention and that way the united states needing to join

the convention ourselves. these were supporting comments in terms of not ratifying under the basics of thoughts of the opponents of lead are forfeiting sovereignty and forfeiting money. you like certainty but you take risks all the time, and you have to sort of consider what the profit may be given our fleets

and given our general stature in the world. mr. gerard, do you have a thought about that? >> i do. there is risk and then there are risks. in this case there are risks, everyday business risk associated with doing business in making and making risk assessments and judgments. very fundamental to that risk assessment is property rights, who has the right and who doesn't have the right? this is a very fundamental issue. when you go out in the open law that is beyond our 200 nautical mile border today, the risk goes up very significantly. i would suggest if the return is that degree -- great there would be people there today and there's not. the second he is racist probably correct. what will eventually happen is u.s. companies will be forced to partner with other nations who acceded to the treaty, the 161 i

believe we mentioned earlier, to find opportunities around the globe because they cannot find certainty or protect their own interest through u.s. law, through u.s. practice and so we would find them teaming up with the russians, with the chinese and others or their preference would be to take the lead and to go along, or to find others that are partners in assessing and managing this risk. >> by definition these partnerships would be divided up in the profits leaving aside the royalties in the sixth year. >> that is right and at the behest of others and looking for those partners. we have i might say the best companies in the world, the most technologically advanced. we are the cutting-edge of the abilities to go out in these deep waters and produce these energy resources. wide-open risk without any limitation is a clear detriment and you heard the people making those decisions in the boardrooms, the risk is too

high. >> how do we deal with this proposition that is being offered and after all we do have the largest fleet and this fleet is everywhere. this is too bold a statement by the idea if there's a problem with somebody you just plow right on through. people recognize might and so forth and therefore all this quibbling over the royalties and so forth, simply as a nation of looting our sense of sovereignty and their sense of ability to manage things. why doesn't that work when you get into the real world? >> thank you. senator, we are a party to many around the world and there is a lot of opposition to them. a lot of people were upset weight went into the wto. what we have found, a single important thing we found is a way to adjudicate differences between countries.

and most of the time begin a has one. on occasions we have lost, and even then we have ignored some of those things, to our own detriment. but i happen to think, well i have great confidence in the military, i happen to think it would be better if we could avoid most of the needs to confront militarily by joining an organization that are 161 countries are already in, couldn't all be wrong. and having a way to participate vigorously in the process. clearly the amount of money that you are going to pay in some sort of royalties or fees is a fraction of what the government is going to make on this deal. and clearly it would need much much better to find, find a way to explore these tremendous resources without having to do it under the protection of the naval power.

i mean under that argument, we could sail across any -- go anywhere in the world and pull up with the navy and say by the way we are going to dig right here and maybe -- and those people may be claimants to that property because of their participation in the treaty. i wouldn't no, but i just think the argument that we are the toughest guys on the block, so let's go in there and do what we want is probably not the best argument for us to make. >> senator if i could just -- a couple of comments on both of your questions here. while we certainly do except risk and we balance that and i'll of our investments, it is very prudent for us to look for opportunities to lower risk wherever we can end this seems like a very reasonable way to do that. we to partner with many different companies to do these large undersea cable networks that i talked about. and some of the disputes that i have mentioned, we have had to

go to countries like the u.k. and france and ask them frankly to carry our water for us. and it seems almost an assault on our sovereignty that we have to go do that, because we don't have a seat at the table. for me to try to convince the navy to go dispatch a destroyer to fight over a garden hose size cable going into another country seems to be a bit of overkill. >> thank you very much. senator corker. >> thank you mr. chairman. thank you for having me's hearing in your diligence and having many of these in thank you to the witnesses for being here. imad -- i know most of you well and i appreciate you being here and i will say that it's a little bit of an out of body experience. to have especially you mr. gerard and you were talking about something administration is doing to help the oil industry. i think it is not a pejorative statement to say that they have

done everything they can to hurt the oil industry. the keystone pipeline that you talked about is a great example of this administration basically trying to keep something that is in the interest of americans and american jobs from happening, it looks like for political reasons, and yet, you know we have had members, people appear many times talking about this being good for the oil industry. so, secretary clinton was up here talking about the same thing so you can imagine, i am sitting appear with a little bit of an extraordinary experience and i wonder if you could explain to me why you think the administration is working so hard to help the oil industry with this treaty and yet domestically doing everything they can to damage it and keep it from being productive? >> well i appreciate the question, senator and the

irony -- [inaudible] but let me step back and take a broader u.s. view. what we are talking about is each country and where we will stand in the local economy and our potential opportunities. in our minds we separated those domestic challenges and in our view in adequacy's in allowing us to use their own domestic oil and natural gas. what you are alluding to senator is 85% of our shelf is out of limits today as a result of u.s. policy where we do have sovereign rights currently. we are frustrated by that. our views on that have not changed, but we look to the future particularly in the arctic. and under the expanded continental shelf, we have a potential to move back 200-mile radius or limit out to 600 miles. >> let me ask you this. i understand and i appreciate you being here and i appreciate

you experiencing the irony too. so you would be better off -- >> we appreciate a full answer. >> well, had a feeling it might last a long time. [laughter] >> senator, there is a lot to say. you have to live up to these things. >> the 200-mile though it is probably easier gotten to by u.s. companies, is it not? and the extended is deeper and more difficult to explore, is it not? >> yes and show. oversimplified in some places they arctic. the water is relatively shallow in some areas and it goes deeper quicker. so it just varies in the area around the world. speier can understand the perplexing nature of having secretary clinton and others advocating for the petroleum industry when what we see here domestically is something very different, but i know -- >> i understand.

>> thank you so much. mr. mcadam i heard you talking about the land cable on the seabed and i know you have a company that operates in the u.k.. in fact you have a major base of operation there and i know the u.k. is signatory to this treaty. so i guess i'm confused, if you had issues, and i'd know you operate from a global base, most of the company the chamber represents that care about this treaty operate all around the world. i mean these are not companies that operate in tennessee. i don't understand why you can't adjudicate these claims through the u.k.. if we are not signatory, it doesn't make any sense to me that all of this is writing upon us being signatory to this treaty.

>> senator i just feel we would be much more effective having a seat at the table and having that discussion. to go to the folks in the u.k., who are good partner certainly, and tried to convince them to carry our water and talking to another country i think is difficult for them because they have to balance that with all their priorities and i think one step removed makes us less effective. >> so in each case, the company and make -- let me make sure understand correctly. the company doesn't have the ability to try to make claims itself. it has to have a country representing them in the process? is that the way it works? >> well we would certainly be active with our legal folks and our operations on the ground, but our opportunity to be backstopped by the federal government is important to us and i believe will make us more effective. >> but to answer the question clearly, you have the ability to make claims directly, do you not? you don't have to come and ask permissions of the united states government to do so? >> certainly.

>> so to say that our country has to be signatory to these treaties, to this treaty, when basically everyone of these companies operates on a global basis and has other outlets through which to make claims, is not a true statement. >> well, obviously we have operated for years without the treaty. but our point is today merely, we would be more effective if we had a. >> and tell me how you would be more effective because i would assume that the many people that have worked for you and the u.k. who believe that they have a very effective government that they work with, and i'm sure when you are there, before their governing bodies, you are telling them how effective they are, so tell me why that would make you more effective tax i'm having a hard time understanding that. >> well i think the issue is you have many countries around the world likely a sample of malta that i used, they can take this sort of unilateral action and there is in the framework to

address. so this gives us the ability to not only work with malta directly ourselves, but also to bring in the state department or other federal government rather than having to go the circuitous route through the u.k.. >> now the issue of malta is not one of those issues where there is even a veto process, is there? i mean we can weigh in, but the malta issue, that is not something the u.s. government would have a veto process. that is one where we did have a voice among many other nations in trying to call that successfully agreed to. >> i would have to look at the specific terms of the agreement and get our legal experts to weigh in on that. i'm frankly not competent to offer the answer to that. if you would like it will get that for the record though. >> i appreciate all of you being here and i don't know whether you're being here as good soldiers or whether this is

something you are passionate about, but you certainly are people that i respect. and i am very neutral on this. i am here to learn. i have been to every one of these hearings and certainly there are people in the audience, senator warner and others, that i respect greatly in addition to all of you. i want to save mr. donohue who i knew well, your comment regarding the veto on the climate issue is categorically incorrect. and i would like for the record, for your legal person, to give us an opinion to that statement, because i don't think that is correct. i know that you are here and you don't know every word of the treaty and i don't. but i think you are missing out -- mixing apples with oranges and on the issue, the climate issue, we do not have a veto process in place for our own country, so if you could have your legal folks tell me

differently as part of the official record or tell me that i'm right, i would greatly appreciate it. because i think you are very wrong on that. >> senator wouldn't be the first time i'm wrong but i am very enthusiastic and not here on behalf of anybody else. as the senator indicated i was the one that was pushing him to do this. i would be very happy to have our legal guys do that. i think they are probably involved in the next 24 hours or so on what just came out of the supreme court, but by early next week we would be very happy to do it and i will come up, and now that i understand that you are neutral on this and trying very hard to, as we all did, to get a good grasp on it i will make my business to come and talked about it. >> you might bring that legal opinion with you. >> i will send it to you beforehand to get a chance to look at a. >> i hope that what we will do -- i do want to make the right decision on this treaty.

and as in every issue, i really want to understand the details, but i hope that the response will be deep and not rhetorical. i mean i think there are a lot of details that many of us are concerned about, especially in relation to the climate issues but other issues that really matter to us and some of the sovereignty issues really matter to us. again, i respect all four of you. i know that there is no way that you could possibly know the details of this. you are here because you are the leaders of your organizations. and you have people in the of your organization that do know the details, but i do look forward to future conversations and very much thank you for being here. and i will say. >> yosher -- soon i'm very sure. >> senator one point for the record. you know that the chamber is perhaps the most aggressive organization in the city on climate issues that affect adversely this country and our

economy. and talk about something i'm really worried about, it's the climate decisions that we may made just two days ago by the district court. that is a real problem. so we have very good people on this and i will be very happy to get you an answer to your question. i just want you to know, i have looked at this as a worrisome issue until i believe i have been carefully advised that we are okay here, but i will get that to you. >> and if you could, and i thank the chairman for giving me that extra minute. mr. mcgavin, -- mcadam i would love it if someone from the government relations government relations office would share with me the truth since you operate around the world than most of these companies, mr. timmons and mr. donohue and all that you represent today, i really would like to know for a fact why it enhances the

company's ability to make claims when they can easily make it through any other country that they operate in and i would really like to know that if you would send that to me i would appreciate it. >> can i take a moment? i want to add, senator corker if i could just for a minute. first of all you know how much i appreciate the due diligence and i really am grateful for you to putting in the time and looking at this without all the extra influences and kind of working through it. but let me just say to you with respect to the dispute resolution, and we will get this for the record for mr. mcadam that we will also have our own counsel. is important we spend time with you on it. you cannot only in a country have access to dispute resolution, not an individual company. so it is irrelevant that they have a company working here. they have to get the company --

the country to represent them and that is where we are disadvantaged. the united states can't ring that on behalf of our own company. we have to persuade another country, not the company within the country. so they don't have some sort of ability because they have affiliates around the world. just use the affiliate to their advantage. number two, with respect to the veto, this is not a split decision here. it is correct that the is a witch is a larger group of representative countries, doesn't have a veto. the council has a veto. mr. donohue is absolutely correct with respect to the council and the issues within the council. there are specific issues limited to the council. >> but climate is not one of those. >> you are correct, climate is not one of those but there is a section which specifically states that you cannot be held accountable to any international

law regarding climate or anything else and lets you as nation decide -- have signed up to it attend the united states senate has never ratified anything. so under this treaty, in fact, we are completely protected as to any environmental effort because one, you can come to the council where we have a veto in two, it is specifically stated within the confines of the treaty that you only are subject to something if you have signed up to it. there is no back door to make you sign up to it so i think when you see that you're going to feel completely comfortable. the final question and let me just ask you. i want to get this on the record. is anyone of you here because you are a good soldier or are you here because you are representing your industries and you you're expressing the views of the people you represent? mr. timmons? >> the latter mr. chairman. >> and i asked you first to please get dizzy on the deal and

you did and i thank you very much. we will talk some more senator. this is a very serious issue in so many ways, and i think this is a vigorous discussion and mr. chairman thank you for resolving all of that issue. my lawyers will get it done a lot faster now. >> until the question was asked, you have been in support of the administration. rv transcends political party and administrations. our view, regardless of who's in the white house, we look at the treaty and that is our focus. >> and i want to emphasize again, the administration did not ask us to bring this treaty out now. we went to the administration and said what do you think about it? and again, it's clear on the record here and mr. donnie who has made it clear that he made the request for us to be here at this time. that is what got us going. senator shaheen. >> thank you mr. chairman and

thank you all for being here. i apologize for missing your testimony. i was at an energy hearing so i'm actually going to start without mr. gerard, energy. and i wonder if you could talk about why this treaty is important to the security of begin a. in your letter to the committee to stated that accession will provide greater energy security by securing the united states exclusive rights for oil and gas production, so could you elaborate on that and talk about why it's important? >> surely. it gives us expanded opportunity with the expanded intercontinental shelf. the resources and the resources to develop those -- when we are focused more specifically right now which is a talked about regularly is the arctic. it's estimated the arctic has one corner of the world's oil and gas reserves.

that is a big number. right now, as we look at it, we will be limited in our ability to go beyond their 200-mile exclusive economic zone unless we become parties to the treaty and thus can claim the extended continental shelf. it's estimated our claim of there could go as far as 600 miles. it would give us a very significant footprint and coming back to the fundamental issues i talked about earlier before you got her senator, certainty is the key. if we have knowledge, understanding and confidence into who has the rights and who controls what law controls come it's much more likely the investment will flow. if the risk is too high, the investment will occur, but it will go elsewhere in the world. the world continues to shrink as to our ability to produce these resources. with modern technologies today, we can do things we couldn't think of 30 years ago with -- when the treaty was first written and talked about so it's

a very significant time for us on a global basis to look at the potential for oil and gas development. >> thank you. mr. donohue, in your opening remarks, you stated that companies will be hesitant to take those investment risks, which echoes what mr. gerard just said. i wonder if you could talk specifically about any sector of the u.s. business community that opposes u.s. accession to this treaty? have you heard from anybody who opposes it? >> there are a number of think-tanks and others who are representing some element of the business community. there are, as the senator indicated, people who are concerned about environmental issues, but across the board,

the people that we represent are concerned about the following issues, a energy, which is the financial base on which we are going to fix this economy, and give us more energy security. the second issue is some legal certainty. when the 161 other countries are involved in the process of basically giving up in their own mind the natural resources in the sea, also a lot of very important issues here on navigation, on supply-chain management and on the ability to get rare earth minerals. this, to me, this is very important and it's an easy issue

because you have -- you have many protections from any difficulties that might come from being a part of the treaty. you have many exclusions, because you are and not a part of the treaty, and as everybody on the panel indicated, you obviously have the protection of our armed forces that can sort of run around doing our business like that every day. although i would say that the chamber is a vigorous supporter of our armed forces because you can participate in the global economy without the security. and you know i think there is a very clear process in the chamber that brings the great preponderance of our members to be in support of this. senator you might imagine with more than 300,000 members and the ability to legally represent 3 million companies, i can never get everybody to agree on anything, including what day it

is. >> but just to be clear, you haven't heard from businesses that you represent, any significant downside to this country ratifying the this security? >> exact way, that's correct and i'm more comfortable myself after i had spent a good deal of time exploring that question with their own associates and with people around the city and with members of congress. and i thank you for that question. >> thank you. mr. timmons, mr. donohue talked about the rare earth minerals from china just now, and he pointed out in your testimony that china is in the process of sharply reducing those export and that they may eventually consume all of them within the country. can you talk about what the impact might be on both what the advantages of iraqification our ratification of the treaty gives

us as we are competing for those rare earth minerals and then what would happen if china in fact did consume what it is currently exporting all within the country and what impact that would have on consumers and on businesses and jobs in this country? >> if i could start with the latter question first. if we don't ratify the treaty and businesses don't make the investments necessary to take advantage of the rare earth that exist on the seabed floor and china does use all of its rare earth materials, it would be devastating to the american economy, to manufacturing and the jobs in this country. the bottom line's been stated many times on this panel is that businesses require certainty before they make multibillion-dollar investments. the mining on the seabed floor is not an inexpensive proposition.

it requires years of studying, planning, mapping and a significant investment to do so. and companies simply aren't going to do that without the certainty that the treaty provides. one of the reasons that we have such a strong military that we have all acknowledged and that we all it higher is because we have economic might in this country. the rare earth base is one that businesses have been quite aware of for a number of years, but it's rather new and the public dialogue, but it is one that will determine our ability to compete and succeed in the international marketplace in this global economy. and it's one that we simply cannot take for granted moving forward. >> and you talked about the importance of certainty before companies are going to be willing to invest large amounts of money that are required. can you talk about the extent to which those investments are

happening right now, are those sitting on the sidelines waiting to see what happens with this debate? >> they are sitting on the sidelines for the most part senator, and i would say that it's not only in this round. i think it's very important to remember that it's 20% more expensive to manufacture in this country than among our major trading partners after you take out the cost of labor. that is because of lots of different things. taxes, regulation, energy, where for the first time in many many years we actually have a slight cost advantage. but this is another significant amount of uncertainty that will not allow capital to flow to those investments. >> senator just one comment that you may want to mention. while there aren't many companies now on the deep part of the shelf bringing up the rare earth materials, many companies are preparing to do it. you don't just go out there with

eight -- to throw something over the side. this is a huge complicated technical issue and there is a lot of money being invested by american companies and by his consortium companies to figure out exactly where it is, exactly how to do it and exactly have to do it in a safe and environmentally sensitive way. >> thank you. >> thank you senator shaheen. senator isakson, thanks for your patience. >> thank you mr. chairman. thank you all for coming. it is good to have you here on what is today a historical day. i need to get a education of some of the things i heard an absence in absence of my having read the testimony. i apologize. mr. gerard i think you made a statement with regard to show. they had sent two ships recently out to washington to go there to first claim, is that correct? >> yes, they quoted the least five years ago to the processor permitting the ability to go out

and actually start to drill a well. it has cost them $4 billion to this point, and we hope they will get final approval to drill those first wells this summer during the summer season, but that is how long this process takes. my simple point was, these are long-term investments and they are very significant. so we have got to know that we have got some rights intact before we commit to make those investments. >> who is granting a permit? >> the u.s. government. >> the u.s. government so it's on our current territorial waters? >> yes, we have 200-mile exclusive -- >> thank you very much. mr. timmons you made a statement, and i wrote part of it down so i apologize again if this is wrong but this is an important issue for me. to talk about a deep seabed and talked about international bodies who have current authority to issue permits are issued permission on deep-sea bets. did i misunderstand you? >> i think so.

>> so currently if somebody was going to the deep seabed to try to unearth rare minerals there is no current authority other than what authority might be under -- >> that's right. >> mr. donohue the last time i brought this up to chairman and i got in a 15 minute discussion i blew up the whole meeting but the speedo thing is an issue of which there's a lot of conversation. the chairman and his response back to you talked about the council. i'm not talking about the environmental right now. i'm just talking about the council. the veto is when you object and there is an absence of consensus. that is why i understand the definition to be. but i also understand on the council and the assembly, there is an override, consensus that is the simple majority of those voting on the council for a two-thirds vote of the assembly. am i right or am i wrong? >> senator, having watched the discussion here, committed to get some more details for your

colleagues, and not wanting to start another 15 minute harangue, i look forward to answering that question in specific detail with at at least two opinions on the subject. >> i appreciate that and so does the audience. >> thank you. >> mr. mcadam in your testimony he referred to some nations who have attempted encroachment, and tempted to encroach on the ability of u.s. operators to effectively manage or deploy or compared maintenance and repairs. in your testimony, you cite all those attempts to assess a fee or a license. you talked about his vietnam carrier that had gone 106 miles with the damage to your cable. are those the examples you are referring to that some nations or are there other examples that come to my? >> there are other examples. it is in india. even though we don't cross into

their territory, they required the cable laying and maintaining ships to put into port and they assess a fee against them. it is against the convention, but they do that and so we have to take legal action or we just have to pay the fees. >> so those are three examples. >> the convention exempts you from having to pay a licensing fee or some type of arbitrary fee to maintain your cable or to lay your cable? >> that is all laid out in the framework we can rely on versus having these unilateral actions that have occurred in many places. >> is the seabed authority or the assembly or the council have to issue a license to lay a cable? >> i would have to look at the specific details of that, senator. i don't know that off the top of my head. >> i'm sure we are laying cable now and we are not a party to the treaty. so my question would be if we are laying cable now and we are not a part of the treaty, would being a part of the treaty from your testimony only benefit us to the extent it would exempt us from paying fees to countries?

>> no, it's not the fees. we are in and out of these cables constantly, upgrading the technology, doing maintenance on the cables, and i think the concern that we have is the arbitrary nature of what happens today. and if we could have greater certainty, we could predict our costs better cost better and we could make those investments. that is my main point, senator. >> thank you mr. chairman i have to join a conference call so i yield back the balance my time. >> i appreciate that. before you run out senator, does want to city quickly that you raised an important question. the voting structure in the council was typically rewritten as part of the 1994 implementing agreement and it was rewritten in a way that gives the united states a tremendous amount of influence, even in matters where the council is not asked by consensus so if you have a veto over every item that would be critical to us and let me be specific very quickly. the finance committee was

created. we insisted on this. it has to make recommendations on all financial and budgetary matters before the full council can make its decisions. the finance committee operates by consensus and there are provisions making clear that the united states will be on that committee so we have the ability to prevent any counter budgetary or fiscal matter from being contrary to our interest. the council secondly is divided into several chambers. for any other issues undecided by consensus, there is a rule stating that any chamber by majority vote can veto a matter and the united states would be in the chamber with four members, so there we would have to get to other members to agree with us to have a veto by virtue of that. and third, and this is very important, section 3, paragraph 4 of the annex states that the eye isaf simply cannot take a decision" any matter for which the council also has

confidence or any administrative budgetary or financial matter unless it does so based upon the recommendation of the council, where we have the veto. so, it can't change can change the recommendation of the council. all i can do is accept it or send the matter back. so in effect, because of our negotiations of 94, which came out at resident reagans questions about this, we haven't got negotiated rather remarkable position for ourselves, which we are not able to exercise. so we will get this fully, you know, properly articulated in the context of the record but i wanted you to be aware that. >> thank you mr. chairman. would you mind providing me with that? >> we will give you the entire thing to you. we will give you all the details. >> mr. chairman can i ask that you share it with all of us? >> everybody on the community will edit.

thank you to casey for your patience. >> mr. chairman thank you for calling this hearing. this is a vitally important issue and we are spending time on the subject matter that i think sometimes we don't in washington to enough of and i'm grateful to be part of this. at the risk of being redundant, i say redundancy is important in washington, repeating import messages that are important so i might in following old -- part of what, part of what i think hasn't been touched on with great detail yet is mr. mcadam, some of the statements in your testimony that i am not sure have been, had been put forth again. i'm reading from page to, the first page of your testimony, labeled page two and you say in the second to last paragraph, and i'm quoting, aside from our land-based protections with canada and mexico, more than 95%

of the u.s. international traffic voice, video, internet and data, travels over 38 submarine cables, each the diameter of the garden hose. without these cables capacity could carry only 7% of the total u.s. international economy. so as a predicate, i would ask if, based upon that dependence we have on that i guess is the best word, what can you tell us about the importance of this treaty just as it relates to that 95% that we have on that transmission? >> well we invested great deal senator in making these cables as redundant as we can. we use the term mesh networks and if you think about it, you can cut certain pieces of it but there are other pieces of the network that are redundant and

therefore the same as the government in some ways i guess. to make sure that our customers can rely on that service. that helps us when we have rings like storms or earthquakes that sever the cables, but if a country takes some sort of a unilateral action such as we have seen in, and doesn't frankly support some of the repair operations that we hadn't get non-and i referred to that in my testimony, where it took many months to get those cables repaired. that really can impact global commerce. and so, the framework that we will have in place with the treaty allows us to have an ongoing dialogue with a country. we have a set of rules that we can rely on. if there are disputes we have arbitration we can go to. we can enlist the help of the federal government, where a local team can't make the proper headway. so it is a series of additional steps to give us greater certainty and allow us to make

these sorts of investments. >> thank you. i was going to go back to the question senator shaheen raised and i'm sure others did as well, the question of manufacturing. appreciate your testimony. i represent a state that has had a long and very substantial legacy and reputation for manufacturing. we have had our challenges and as you and i have talked about, but we have had a bit of a resurgence and i think we are frankly headed in the right direction in terms of being able to create or maintain manufacturing jobs. if i were traveling across pennsylvania and someone grabbed me on the street instead, tell me in a few words why this treaty is important for manufacturing generally, having a strategy and especially for maintaining those jobs, what should i say to them in a few

sentences if you can help me with that?

it will cease to exist and it will harm our economy and cost jobs. i don't think that is a couple of sins is unfortunately but i will work on that. >> i would add one more sentence. maybe you are going to say. if we do this right we will drive down the cost and increase the availability of fuels, and that is going to have a large large effect on manufacturing and on your states economy. >> thank you is her donohue. >> sir i'm going to add some purity no. the other answer that is very significant to your state is natural gas. as you know the prices down to the two to 3-dollar range today. 83,000 new jobs in your status result of that resurgence and i think his jay said earlier, that is primarily what is driving the manufacturing resurgence in the united states. we often forget that those chemical plants and others are primary, primarily driven by the

feedstock of natural gas, where they convert natural gas to all the products we consume every day and don't think about it. so it's natural gas, low cost affordable, reliable energy that is driving those other benefits in our economy today. >> i will submit some more questions for the record. thankthank you so much free testimony. mr. chairman thank you. >> thank you very much. senator shaheen and you have anymore questions? >> a couple mr. chairman. i know that a couple of the issues that have been raised about the treaty and i heard some of that debate today, has been what is the real authority of the international seabed authority and how would our participation play in that? and i wonder if you all have looked at the authority to the extent that it has operated today, and whether you have any

views about country like russia and china and what their actions have been on the authority in our absence, and whether, whether they are in fact taking advantage of our inability to ratify the treaty and participate on the authority, what impact has it had to have the u.s. not be part of that body? >> i will try it, senator. first, it's very significant as senator kerry mentioned earlier. the 94 changes to the amendment were very significant in giving us additional power on that council and the seabed authority. the reason we say that is twofold. number one any other decisions that come out out of there we essentially have that be the right and we interpreted as such so i'm anxious to hear others' legal opinions. we have got outside counsel and

review we have that right and authority within the seabed counsel. the other thing we shouldn't overlook, there has been talk about royalties and other things that come from oil and gas production in the sixth of his 12 year. today, those are produced in another place in the world those dollars are going to go wherever that group says there will allow them to go. if we have the sea, the permanent cni council, counsel, we have the ability to direct back, to make sure those very significant resources aren't given to unfriendly nations around the world and aren't spent for purposes that are not in the best interest of the united states. so we think it's tubal. number one we need to be there to secure our own rights but number two by being there and having a seat at the table we can influence and have some direct leverage over the other decisions of the seabed authority. >> so, just to be clear, they are going to assess those raids from our companies, whether we are a member of the treaty or