[Senate Hearing 107-648]
[From the U.S. Government Publishing Office]
S. Hrg. 107-648
HOOPA-YUROK SETTLEMENT ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
OVERSIGHT HEARING ON THE DEPARTMENT OF THE INTERIOR SECRETARY'S REPORT
ON THE HOOPA YUROK SETTLEMENT ACT
__________
AUGUST 1, 2002
WASHINGTON, DC
81-636 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpr.gov Phone: toll free (866) 512-1800; (202) 512�091800
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. INOUYE, Hawaii, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
KENT CONRAD, North Dakota FRANK MURKOWSKI, Alaska
HARRY REID, Nevada JOHN McCAIN, Arizona,
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
PAUL WELLSTONE, Minnesota CRAIG THOMAS, Wyoming
BYRON L. DORGAN, North Dakota ORRIN G. HATCH, Utah
TIM JOHNSON, South Dakota JAMES M. INHOFE, Oklahoma
MARIA CANTWELL, Washington
Patricia M. Zell, Majority Staff Director/Chief Counsel
Paul Moorehead, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
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Page
Statements:
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
vice chairman, Committee on Indian Affairs................. 2
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman,
Committee on Indian Affairs................................ 1
Jarnaghan, Joseph, tribal councilman, Hoopa Valley Tribal
Council.................................................... 14
Marshall, Sr., Clifford Lyle, chairman, Hoopa Valley Tribal
Council.................................................... 12
Masten, Sue, chairperson, Yurok Tribe........................ 20
McCaleb, Neal, assistant secretary, BIA, Department of the
Interior................................................... 3
Schlosser, Thomas, counsel, Hoopa Valley Tribal Council...... 16
Appendix
Prepared statements:
Jarnaghan, Joseph............................................ 29
Marshall, Sr., Clifford Lyle (with attachments).............. 33
Masten, Sue (with attachments)............................... 62
McCaleb, Neal (with attachments)............................. 82
Schlosser, Thomas............................................ 30
Additional material submitted for the record:
Hoopa-Yurok Settlement Act Funding History................... 89
HOOPA-YUROK SETTLEMENT ACT
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THURSDAY, AUGUST 1, 2002
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to other business, at 10:18
a.m. in room 485, Senate Russell Building, Hon. Daniel K.
Inouye (chairman of the committee) presiding.
Present: Senators Inouye, Campbell, and Reid.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. This is the oversight hearing on the
Department of Interior Secretary's report on the Hoopa Yurok
Settlement Act submitted to the Congress in March 2002 pursuant
to Section 14 of Public Law 100-580.
As with almost all matters in Indian affairs, there is a
long history that preceded enactment of the legislation the
Secretary's report addresses. It is a history of deception, I
am sad to say, of a Senate that apparently met in secret
session in 1852 and rejected the treaties that had been
negotiated with California tribes, and didn't disclose their
action for another 43 years.
In the interim, the California tribes proceeded in good
faith, relying upon their contracts with the U.S. Government.
In 1864, the Congress enacted legislation to establish four
reservations in the State of California with the intent that
these reservations would serve as the new homeland for tribes
that had no cultural, linguistic, or historical ties to one
another. The Hoopa Valley Reservation was one such reservation
that was established for ``the Indians of the Reservation.''
Litigation later spawned a series of a series of court
rulings, which while resolving the issues before each court,
engendered considerable uncertainty into the daily lives of
those who resided on the reservation, and soon,, the Congress
was called upon to bring some final resolution to the matter.
Today, as we receive testimony on the Secretary's report,
it is clear that a final resolution was not achieved through
the enactment of the Hoopa-Yurok Settlement Act in 1988, and
that the Congress will once again have to act. Accordingly, we
look forward to the testimony we will receive today so that the
committee and members of Congress may have a strong substantive
foundation upon which to construct a final solution.
May I call upon the vice chairman.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Campbell. Thank you.
I think you have explained very well the situation Mr.
Chairman but just a couple of minutes for my opening statement.
I'd like to broaden it to something that has always bothered me
and many others because I was born and raised in California in
the foothills among many of the Me-wok Tribes, a small tribe
that has a number of bands in the foothills and valley country
around Sacramento.
As you alluded, I can tell you that the story of the
American Indian in the State of California was one of the most
gruesome and bloody chapters in the history of this country.
They say before the gold rush, there was about five times more
Indian people in California than non-Indian people. It was
literally a paradise. The weather was nice in most areas, the
production of natural plants, fruits and things was abundant,
people ate well, people lived well, they were at harmony with
their neighbors and at that time, as I understand there were
over 100 tribes in that area. In fact, some estimates say about
one-tenth of all American Indians lived in the California area
because living was a bit easier.
In 1848 when gold was discovered in a little place now
called Coloma on the north fork of the American River, it
started a wholesale change in their lifestyle. In fact, there
have been documented instances of Indian people in those days
being hired by gold miners and when payday came, they would
shoot them, throw them in a hole and just get some more Indians
to do the work again. So they know what real tragedy is, the
people who are descendants of the Native Americans who lived in
that area before the gold rush.
Even before that time if you look at California history, as
early as the late 1700's when Father Junipero Serra came north
from Mexico and developed what was later called the El Camino
Real, or the King's Highway, and the chain of missions from San
Diego all the way north of San Francisco, almost all those
missions were built with indentured Indian labor, if not slave
labor. If you visit some of those missions right now, like the
mission in Monterey, if you turn the roofing tile over and look
under the old, old roofing tile, you can find the skin imprints
of Indian people in that clay where they would take the wet
clay and bend it over their leg to make that curved feathered
kind of roof structure on all the old missions. They were never
paid for that and some of them were kept around the missions
for so long, many against their will, that some of the smaller
tribes in southern California lost their original identity. I
can remember when I was a boy many of them were called mission
Indians which was a kind of generic name for people who had
lost their identity but had been in the servitude of the
missions for so long.
There is no question that people who are descendants of the
Native peoples of California have a real gripe and a history of
mistreatment by both the Federal Government and people that
made millions, if not billions of dollars, from the wealth of
California. I'm just glad that two of the major tribes are here
today, the Hoopa and the Yurok and I know this hearing will
focus on their settlement but I wanted to put that in the
record of my own personal experiences in California.
The Chairman. I'm glad that your remarks were made for the
record because though it is rather sad, we who are the
successors to the Senators two centuries ago must remember that
our predecessors were a part of this terrible conspiracy.
With that, may I call upon the Assistant Secretary of the
Bureau of Indian Affairs, Department of the Interior, Neal
McCaleb. It's always good to see you, sir.
STATEMENT OF NEAL A. McCALEB, ASSISTANT SECRETARY, BUREAU OF
INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
Mr. McCaleb. Thank you, Chairman Inouye. I am pleased to be
here this morning to bring to you a report pursuant to section
14 of the Settlement Act.
Although I will not read my introductory background remarks
because you did such an excellent job of presenting the
history, I would have my entire testimony become a part of the
record.
The Chairman. Without objection, so ordered.
Mr. McCaleb. Prior to the Settlement Act, legal
controversies arose over the ownership and management of the
Square, that being the 12 square miles that were provided by
the United States Government for the Indians of California,
that ultimately became the Hoopa Reservation and its resources.
Although the 1891 Executive order joined the separate
reservations into one, the Secretary had generally treated the
respective sections of the reservation separately for
administrative purposes. A 1958 Solicitor's Opinion also
supported this view.
In the 1950's and 1960's, the Secretary distributed only
the timber revenues generated from the Square to the Hoopa
Valley Tribe and its members. All the revenues from the Square
were allocated to the Hoopa Valley Tribe. In 1963, Yurok and
other Indians, eventually almost 3,800 individuals, challenged
this distribution and the U.S. Court of Claims subsequently
held that all Indians residing within the 1891 reservation were
Indians of the reservation and were entitled to share equally
in the timber resources proceeds generated from the Square.
Short v. United States was the embodiment of that litigation.
Following the decision, the Department began allocating the
timber proceeds generated from the Square between the Yurok
Tribe, approximately 70 percent, and the Hoopa Valley Tribe, 30
percent. The 70/30 allocation was based upon the number of
individual Indians occupying the joint reservation that
identified themselves as members of either the Yurok or the
Hoopa Valley Tribe respectively.
Another lawsuit challenged the authority of the Hoopa
Valley Business Council to manage the resources of the Square
among other claims. These and related lawsuits had profound
impacts relating to the tribal governance and self
determination, extensive natural resources that compromised the
valuable tribal assets and the lives of thousands of Indians
who resided on the reservation.
In order to resolve longstanding litigation between the
United States, Hoopa Valley, Yurok, and other Indians regarding
the ownership and management of the Square, Congress passed the
Hoopa-Yurok Settlement Act in 1988. This act did not disturb
the resolution of the prior issues through the Short
litigation. Rather, the act sought to settle disputed issues by
recognizing and providing for the organization of the Yurok
Tribe by petitioning the 1891 Yurok joint reservation between
the Hoopa Valley and the Yurok Tribes and by establishing a
settlement fund primarily to distribute moneys generated from
the joint reservation's resources between the tribes.
Section 2 of the act provided for the petition of the joint
reservation. Upon meeting certain conditions of the act, the
act recognized and established the Square, the original 12
square miles, as a Hoopa Valley Reservation to be held in trust
by the United States for the benefit of the Hoopa Valley Tribe.
The act recognized and established the original Klamath River
Reservation and the connecting strip as the Yurok Reservation
to be held in trust by the United States for the benefit of the
Yurok Tribe.
In accordance with the conditions set in section 2(a), the
Hoopa Valley Tribe passed a resolution, No. 88-115 on November
28, 1988 waiving any claims against the United States arising
from the act and consenting to the use of the funds identified
in the act as part of the settlement fund. The BIA published a
notice of the resolution in the Federal Register of December 7,
1988. These actions had the effect of partitioning the joint
reservation.
As for the settlement fund itself, section 4 of the act
established a settlement fund which placed the moneys generated
from the joint reservation into an escrow account for later
equitable distribution between the Hoopa Valley and Yurok
Tribes according to the provisions of the act. The act also
authorized $10 million in Federal contribution to the
settlement fund primarily to provide lump sum payments to any
Indian on the reservation who elected not to become a member of
either tribe. It allocated about $15,000 to any individual
Indian who elected not to claim tribal membership of either
tribe.
As listed in section 1(b)(1) of the act, the escrow funds
placed in the settlement fund came from moneys generated from
the joint reservation and held in trust by the Secretary in
seven separate accounts, including the 70 percent Yurok timber
proceeds account and the Hoopa 30 percent timber proceeds
account. The Secretary deposited the money from these accounts
into the Hoopa-Yurok Settlement Fund upon the enactment of the
act. The settlement fund's original balance was nearly $67
million. At the beginning of fiscal year 2002, the fund
contained over $61 million in principle and interest.
Even with the previous distributions as described below,
appendix I to the report provides the relevant figures from the
fund. The act sought to distribute the moneys generated from
the joint reservation and placed in the settlement fund on a
fair and equitable basis between the Hoopa Valley and Yurok
Tribes. The Senate committee report briefly described what was
then believed to be a rough distribution estimate of the fund
based upon the settlement role, distribution ratios established
in the act. Twenty-three million, roughly one-third of the fund
would go to the Hoopa Valley Tribe pursuant to Section 4(c); a
similar distribution to the Yurok Tribe under Section 4(d) as
described below assuming roughly 50 percent of those on the
settlement roll would accept Yurok tribal membership; and the
remainder to the Yurok Tribe after individual payments
discussed below.
Substantial distributions have already been made from the
settlement fund in accordance with the act. The Department
disbursed to the Hoopa Valley Tribe just over $34 million
between passage of the act and April 1991. The total amount
determined by the BIA to be the tribe's share under 4(c) of the
act. The Department also distributed $15,000 to each person on
the settlement roll who elected not to become a member of
either tribe under the act. Approximately 708 persons chose the
lump sum payment option for a total distribution for this
purpose in the amount of approximately $10.6 million, exceeding
the $10 million Federal contribution authorized by the act for
this payment.
Section 4(d) of the act provided the Yurok Tribe's share of
the settlement fund similar to the determination of the Hoopa
Valley share under section 4(c). Section 7(a) further provided
the Yurok Tribe would receive the remaining moneys in the
settlement fund after distributions were made to individuals in
accordance with the settlement membership options under section
6 and to successful appellants left off the original settlement
roll under section 5(d).
Under section 1(1)(4), the condition that the Hoopa Valley
Tribe and Yurok Tribe received these moneys requiring the
tribes adopt a resolution waiving any claim against the United
States arising from the act. The Hoopa Valley Tribe adopted
such a resolution but the Yurok Tribe did not. In November
1993, the Yurok Tribe passed Resolution 93-61 which purported
to waive its claims against the United States in accordance
with section 2(c)(4). The tribe, however, also brought a suit
alleging that the act affected a constitutionally prohibited
taking of its property rights as described below. In effect,
the tribe sought to protect its rights under section 2 of the
act to its share of the settlement fund and other benefits
while still litigating the claims as contemplated in section 14
of the Act.
By a letter dated April 4, 1994, the Department informed
the tribe that the Department did not consider the tribe's
conditional waiver to satisfy the requirements of the act
because the waiver acted to preserve rather than waive its
claims. Instead of waiving its claims as the Hoopa Valley Tribe
did, the Yurok Tribe as well as the Karuk Tribe and other
individual Indians brought suit against the United States
alleging the act constituted a taking of their vested property
rights in the lands and resources of the Hoopa Valley
Reservation contrary to the Fifth Amendment of the U.S.
Constitution.
In general, the complaints argued that the 1864 Act
authorizing Indian reservations in California and other acts of
Congress vested their ancestors with compensable rights in the
Square. Alternatively, plaintiffs argued that their continuous
occupation of the lands incorporated into the reservation
created compensable interest. Potential exposure to the U.S.
Treasury was once estimated at close to $2 billion. This
litigation began in the early 1990's and was only recently
ended.
The U.S. Court of Federal Claims and the Federal Circuit
Court of Appeals disagreed with the positions of the Yurok and
other plaintiffs. The Federal courts generally followed the
reasoning provided in the committee reports of the bills
ultimately enacted as the Settlement Act. Unless recognized as
vested by some Act of Congress:
Tribal rights of occupancy and enjoyment, whether
established by Executive order or statute may be extinguished,
abridged or curtailed by the United States at any time without
payment of just compensation.
The courts concluded that no act of Congress established
vested property rights and the plaintiffs or their ancestors in
the Square. Rather the statutes and Executive orders creating
the reservation allowed permissive, not permanent occupation.
Thus, the courts held the act did not violate the takings
clause. Plaintiffs petitioned the U.S. Supreme Court for a writ
of certiorari to review the lower court decision and on March
26, 2001, the Court denied certiorari thereby concluding the
litigation.
On the Department's report, section 14 of the act provides:
The Department shall submit to Congress a report describing
the final decision that an illegal claim challenging the act as
affecting a taking of property rights contrary to the Fifth
Amendment to the U.S. Constitution or as otherwise providing
inadequate compensation.
The Court's denial of the certiorari triggered this
provision. The Department solicited the views of the Hoopa
Valley and Yurok Tribes regarding future actions of the
Department with respect to the settlement fund as required
under the act. The report briefly describes issues both leading
up to the subsequent act, attaches the written positions of the
tribes and provides recommendations of the Department for
further action with respect to the settlement fund.
In July 2001, the Hoopa Valley Tribe submitted its proposed
draft report for consideration by the Department. After
describing the history of the disputes, the Settlement Act and
subsequent actions, the Hoopa Valley Tribe provided various
recommendations and observations. The Hoopa submission noted
that the separate lawsuit determined that only 1.26 percent of
the settlement fund moneys were derived from the Yurok
Reservation, with the remainder of the moneys derived from the
Hoopa Reservation.
The Hoopa Valley Tribe has continued to assert its right to
a portion of the benefits offered to and rejected by the Yurok
Tribe. Prior to its July submission, the tribe previously
requested the Department recommend the remaining funds from the
Hoopa Square be returned to the Hoopa Valley Tribe. The Hoopa
submission ultimately suggested the following recommendations.
First, the suspended benefits under the act, including the
land transfer and land acquisition provisions for the Yurok
Tribe and the remaining moneys in the settlement fund be valued
and divided equally between the two tribes.
Second, the economic self-sufficiency plan of the Yurok
Tribe be carried forward, including any feasibility study
concerning the cost of the road from U.S. Highway 101 to
California Highway 96 and other objectives of the self
sufficiency plan.
Third, that additional Federal lands adjacent to or near
the Yurok and Hoopa Valley Reservation be conveyed to and
managed by the respective tribes.
The Yurok position. In August 2001, Counsel for the Yurok
Tribe submitted the tribe's position and proposed a draft
report. The Yurok Tribe submission similarly outlined the
history of the dispute and other considerations in its
recommendations for the Department to consider. In general, the
Yurok Tribe takes the position, among others, that its
conditional waiver was valid and became effective upon the
Supreme Court's denial of certiorari in the taking litigation.
The Yurok submission discusses the tribe's concern with the
process leading up to and ultimately resulting in the passage
of the Settlement Act. In the tribe's view, the act nullified a
large part which allowed all Indians of the reservation to
share equally in the revenues and resources of the joint
reservation. ``The tribe, not formally organized at the time,
was not asked and did not participate in this legislative
process'' and had the act imposed on the Yurok who were left
with a small fraction of their former land resources.
In its view, the act divested the Yurok Tribe of its
communal ownership in the joint reservation lands and resources
and relegated that much larger tribe to a few thousand acres
left in trust along the Klamath River with a decimated fishery,
while granting to the Hoopa Tribe nearly 90,000 acres of
unallotted trust land and resources including the valuable
timber resources thereon.
With respect to the waiver issue, the Yurok submission
considers the Department's view discussed above as erroneous.
The tribe references a March 1995 letter from the Department in
which the Assistant Secretary of Indian Affairs indicated the
tribe could cure the perceived deficiencies with its
conditional waiver by ``subsequent tribal action or final
resolution of the tribes lawsuit in the U.S. Court of Federal
Claims.''
The tribe takes the position that it made a reasonable
settlement offer and would have dismissed its claim with
prejudice but the Department never meaningfully responded. Now
the tribe considers the Supreme Court's denial of certiorari as
a final resolution suggested as curing the waiver. As a support
for its position, the tribe states, ``The text of the Act and
the intent of Congress make clear that filing a constitutional
claim and receiving the benefits of that act are not mutually
exclusive.'' The tribe suggests that principles of statutory
construction, including the canon ambiguities be resolved in
favor of the tribes and that the provisions within the statute
should be read so as not to conflict or be inconsistent
requires that a broader reading of the waiver provision in
section 2(c)(4) in light of the act's provision allowing a
taking claim to be brought under section 14.
The tribe considers the Department's reading of the statute
to be unfair and unjust. For these and other reasons, the tribe
is of the view that it is now entitled to its benefits under
the act.
Because the Yurok Tribe litigated its claims against the
United States based on the passage of the Act rather than
waiving those claims, the Department is of the view that the
Yurok Tribe did not meet the conditions precedent to the
establishment of section 2(c)(4) of the act for the tribe to
receive its share of the settlement fund or other benefits.
The Department is also of the view that the Hoopa Valley
Tribe has already received its portion of the benefits under
the act and is not entitled to further distributions from
settlement funds under the provisions of the act.
Ultimately, this situation presents a quandary for the
Department and for the tribes. We believe the act did not
contemplate such a result. The moneys remaining in the
settlement fund originated from seven trust accounts which held
revenues generated from the joint reservation. Thus, the moneys
remaining in the settlement fund should be distributed to one
or both tribes in some form. Moreover, the Department
recognizes that substantial financial and economic needs
currently exist within both tribes and their respective
reservations. Given the current situation, the report outlines
five recommendations of the Department to address these issues.
First, no additional funds need be added to the settlement
fund to realize the purpose of the Act.
Second, the remaining moneys in the settlement fund should
be retained in a trust account status by the Department pending
further considerations and not revert to the General Fund of
the U.S. Treasury.
Third, the settlement fund should be administered for the
mutual benefit of both tribes and their respective reservations
taking into consideration prior distributions to each tribe
from the fund. It is our position that it would be
inappropriate for the Department to make any general
distribution from the fund without further action of Congress.
Fourth, Congress should fashion a mechanism for the further
administration of the settlement fund in coordination with the
Department and in consultation with the tribes.
Fifth, Congress should consider the need for further
legislation to establish a separate permanent fund for each
tribe from the remaining balances of the settlement fund in
order to address any issue regarding entitlement of the moneys
and fulfill the intent and spirit of the Settlement Act in
full.
This concludes my testimony and I will be happy to respond
to any questions at the appropriate time. We have attached a
schematic for the committee with a flow chart of the funds and
the dates funds were disbursed pursuant to the short litigation
in the 1988 Act.
[Prepared statement of Mr. McCaleb appears in appendix.]
The Chairman. Thank you very much, Mr. Secretary.
The chart you speak of, entitled ``Hoopa-Yurok Settlement
Act Funding History,'' received by the committee yesterday will
be made a part of the record.
[The information appears in appendix.]
The Chairman. At this juncture, there will be a recess for
10 minutes.
[Recess.]
The Chairman. We will resume our hearings.
The vice chairman of the committee has a very urgent matter
to work on this afternoon, so he will have to be leaving us in
about 10 minutes, so may I call upon him for his questions.
Senator Campbell. Thank you. I apologize for having to
leave, we have some terrible wildfires out west and some of
them are in Colorado, so I'm doing a joint event with some of
the other Colorado delegation on our fire problem. It just
closed Mesa Area in our part of the State which is a big
tourist attraction, so I probably won't be able to ask the
representatives from the two tribes questions. I'll submit
those in writing if they can get those back to me.
This is a very tough one for me because to me this is like
refereeing a fight among family. Some folks on both sides of
this issue I've known for years and years and am real close to
from my old California days. Let me ask you just a couple.
We have two reservations, one allotted, one not allotted,
and this is certainly a sad history but the Yurok land and
resources were allotted and dissipated. The Hoopa lands and
resources remain in tact. Why were they treated so differently
when they are so geographically close in our history? Do you
happen to know that?
Mr. McCaleb. I don't have personal knowledge of that,
Senator. Let me get that information and respond in writing to
you. I have an impression but I don't have a real factual
answer to that.
Senator Campbell. Let me ask another general question.
We've been through a lot of disagreements between tribes and it
seems to me those that can settle their issues without
intervention from the courts are a lot better off than the ones
who are not. I have no problem with the legal profession but
let me tell you, the attorneys end up getting paid very well
from the Indians that are fighting with each other. In keeping
with the spirit of the settlement in 1988, shouldn't we try to
bring this to a conclusion that both tribes can live with
without fighting it out in courts?
Mr. McCaleb. That would certainly be my desire, Senator
Campbell.
Senator Campbell. Have you personally tried to impress on
both sides your sentiments?
Mr. McCaleb. I have met with representatives of both sides,
yes, and made those kinds of suggestions.
Senator Campbell. I understand there is a lot of money
involved. Let me ask about the account balance. What is the
balance of revenues of the settlement fund and can you trace
where the moneys from the fund came from?
Mr. McCaleb. Aside from interest that had accrued over
time, the source of all the funds was timber sale proceeds.
Senator Campbell. Did they come primarily from Hoopa or
Yurok lands or both?
Mr. McCaleb. I'm advised a little over 98 percent of the
funds derived from the Square, are on Hoopa land.
Senator Campbell. Before they were put in the settlement
fund, was there any audit performed to verify the accuracy of
the transactions?
Mr. McCaleb. I'm not aware of that but I will investigate
that and reply in writing to you.
Senator Campbell. In the Secretary's report, I read part of
it and the staff read all of it, but they make two key
findings, that the Hoopas have been made whole and have no
claims against the United States and that because the Yuroks
failed to provide necessary waivers, they are not entitled to
benefits under the act.
My question is, with a multimillion dollar fund sitting in
the Treasury, how should it be divided?
Mr. McCaleb. Senator, I was hoping you'd have some
suggestion for me on that. I don't mean to be flip about it but
it is a very difficult answer. The two extreme positions of the
tribes are the Hoopas want half of all the proceeds and the
Yuroks think they should have all of the funds.
Senator Campbell. Would you recommend some kind of
development fund for both tribes be established?
Mr. McCaleb. I think that would be a good solution. As
opposed to per capita payments, you mean?
Senator Campbell. Yes.
Mr. McCaleb. Yes; I almost always favor that kind of
investment as opposed to per capita payments.
Senator Campbell. Thank you, Mr. Chairman. I have no
further questions. I appreciate you giving me that time.
The Chairman. Thank you.
Mr. Secretary, I have a few questions for clarification. Do
the funds in the settlement fund represent revenues derived
from the sale of timber located on the Square?
Mr. McCaleb. Over 98 percent. According to the facts
furnished to me, only about 1.26 percent were not derived from
timber on the Square.
The Chairman. Were those revenues generated from the Square
while members of the Yurok and Karuk Tribes were still
considered ``Indians of the reservation''?
Mr. McCaleb. The money in the settlement fund is there
pursuant to the Short litigation that was resolved in 1974 and
the subsequent timber cuttings. Would you restate your question
so I can make sure I understand it?
The Chairman. Were those revenues generated from the Square
while members of the Yurok and Karuk Tribes were still
considered ``Indians of the reservation''? That is the phrase
in the statute.
Mr. McCaleb. Yes.
The Chairman. So they were Indians in the reservation at
the time the revenues were generated in the Square?
Mr. McCaleb. Yes; that's my understanding.
The Chairman. Because the Short case instructs us that if
there is to be a distribution of revenues, the distribution
must be made to all Indians of the reservation. Would that mean
Hoopa, Yurok, Karuk?
Mr. McCaleb. Yes, sir.
The Chairman. The Hoopa Valley Tribe contends it is the
only tribe entitled to the funds in the settlement fund, so
your response does not agree with that?
Mr. McCaleb. No; for the reasons you just said. The Short
case is, I think, specific on that point.
The Chairman. So it seems it may be critical to the
resolution of the competing claims of entitlement to funds in
the settlement fund to know whether the timber revenues that
were placed in the fund were generated after the reservation
was partitioned or whether they were generated while there were
three tribal groups making up the ``Indians of the
reservation,'' isn't that correct?
Mr. McCaleb. The revenues that make up the original amount,
almost $17 million in the chart, were generated prior to the
partitioning of the reservation, while other revenues were
generated from the timber fund after 1988, the partitioning
actually occurred in 1988 by act of Congress.
The Chairman. There are two time periods?
Mr. McCaleb. Yes; there are.
The Chairman. Can you tell the committee what disbursements
have been made from the settlement fund, when the disbursements
were made and to whom these disbursements were made?
Mr. McCaleb. From the settlement fund, $15 million was
disbursed to individual Indians who elected to become Yurok.
There was another $10.6 million distributed to individual
Indians who elected to buy out. That $10.6 million was offset
by a $10-million direct appropriation of Congress. There has
been another $1.5 million distributed to the Yurok Tribe since
1991 given they were provided about $500,000 a year for 3 years
to help them in the process of establishing their tribal
government.
The Chairman. Anything distributed to the Karuk Tribe?
Mr. McCaleb. None directly to the Karuk to my knowledge.
There was another $34 million distributed to the Hoopa Tribe,
$34,651,000 pursuant to their signing their waiver in keeping
with the act.
The Chairman. Given the Department's position as set forth
in the Secretary's report that neither the Hoopa Valley Tribe
nor the Yurok Tribe is entitled to the balance of the funds
remaining in the HYSA fund, what benefits of the act or
activities authorized in the act does the Department envision
should be carried out and funded by the recommended two
separate permanent funds to fulfill the intent of the original
Act in full measure?
Mr. McCaleb. I think all the funds should be distributed
that are in the settlement fund. I don't think there is much
debate over that. I think the issue is over the distribution,
how the money should be distributed.
The Chairman. How shall the distribution be made?
Mr. McCaleb. I guess if you go to our third recommendation,
it touches as closely as anything on that:
The settlement fund should be administered for the mutual
benefit of both tribes and the reservations taking into
consideration prior distributions to each tribe from the fund.
If you assume that 30-70 percent distribution was
appropriate originally and take into consideration the prior
distribution of the funds, that would provide some guidance in
that area.
The Chairman. In your opinion, were all the provisions of
the Act benefiting the Hoopa Valley Tribe implemented?
Mr. McCaleb. Yes.
The Chairman. Would you say the same of the act benefiting
the Yurok Tribe implemented?
Mr. McCaleb. No; that's not correct.
The Chairman. So the Hoopa Valley got all the benefits,
Yurok did not?
Mr. McCaleb. One of the provisions was the partitioning of
the tribal lands. That was done, that was accomplished but the
Yuroks got none of the money except for the $1.5 million I
indicated. There were other provisions for economic development
that were supposed to be carried out pursuant to an economic
development plan submitted by the Yuroks. The plan was never
submitted, so it was never implemented. For example, there was
some roadbuilding to be done pursuant to that economic
development plan that has never been done. The Yurok only
received a partitioning of tribal lands plus the $1.5 million.
The Chairman. Because of the obvious complexities, may we
submit to you questions of some technicality that you and your
staff can look over and give us a response?
Mr. McCaleb. I would appreciate that because I really need
to rely on the historical and technical views of the staff to
answer the meaningful questions that are attendant to this
really sticky issue.
The Chairman. Thank you very much, Mr. Secretary.
Mr. McCaleb. May I be excused at this point?
The Chairman. Yes; and thank you very much, sir.
The second panel consists of the chairman of the Hoopa
Valley Tribal Council of Hoopa, California, Clifford Lyle
Marshall, Sr., accompanied by Joseph Jarnaghan, tribal
councilman, Hoopa Valley Tribal Council and Thomas Schlosser,
counsel, Hoopa Valley Tribal Council and Sue Masten,
chairperson, Yurok Tribe, Klamath, CA.
STATEMENT OF CLIFFORD LYLE MARSHALL, Sr., CHAIRMAN, HOOPA
VALLEY TRIBAL COUNCIL, ACCOMPANIED BY JOSEPH JARNAGHAN, TRIBAL
COUNCILMAN, HOOPA VALLEY TRIBAL COUNCIL AND THOMAS SCHLOSSER,
COUNSEL
Mr. Marshall. I am Clifford Lyle Marshall, chairman of the
Hoopa Valley Tribe.
At this time, I ask that our written testimony be included
in the record.
The Chairman. Without objection.
Mr. Marshall. Thank you for this opportunity to present the
Hoopa Tribe's position on the Interior Report on the Hoopa
Yurok Settlement Act. I am here today with council member
Joseph Jarnaghan and attorney Tom Schlosser.
First, let me express the Hoopa Tribe's deepest gratitude
to Chairman Inouye, Vice Chairman Campbell and the other
members of this committee for the leadership in achieving
passage of the landmark Hoopa Yurok Settlement Act. We also
acknowledge and appreciate the hard work of your dedicated
staff. This act could not have occurred without your decision
to resolve the complex problems that had crippled our
reservation and tribal government for more than 20 years.
The years since its passage have demonstrated the
outstanding success of the Settlement Act. It resolved the
complex issues of the longstanding Jesse Short case, the act
vested rights and established clear legal ownership in each of
the tribes to the respective reservations. It also preserved
the political integrity of the Hoopa Tribe by confirming the
enforceability of our tribal constitution.
The Hoopa Tribe waived its claims against the United States
and accepted the benefits provided in the act and since then we
have accomplished a number of tribal objectives. We immediately
embarked on a strategy to reestablish control of our small
Indian nation and were one of the self-governance tribes. We
believe that tribal self-governance is the true path to trust
reform.
Although the Yurok Tribe rejected the settlement offer
provided in the act, it nevertheless provided a means for
organization of the Yurok Tribe, use of Federal properties for
establishment of tribal government offices and the ability to
obtain Federal grants and contracts. The act ultimately enabled
the Yurok Tribe to join the ranks of self-governance tribes.
The Yurok Tribal Council could not stand before you today as
tribal government officials without this act.
The Settlement Act called for an end to litigation. It
provided benefits to the Hoopa Tribe and the Yurok Tribe on the
condition that they waive all claims which they might assert
against the United States as arising from the act. The Hoopa
Tribe accepted that offer. The Yurok Tribe rejected that offer
and sued the United States and so the act as applied did not
authorize payments to them. As a result, the Yurok Tribe is now
clearly prohibited by the act from receiving a portion of the
settlement fund. Congress should not now conclude that the act
was unfair due to the fact the Yurok Tribe did not receive the
benefits of the act. The Yurok Tribe made a conscious decision
to sue and thereby chose to forego nearly 13 years of potential
development and economic opportunity.
The Hoopa Tribal Council would be remiss in our duties to
our members if we did not see return of the timber revenues
derived exclusively from the Hoopa Valley Indian Reservation.
Over 98 percent of the settlement fund balance comes from Hoopa
escrow accounts derived from logging on Hoopa lands. I must
respectfully disagree with Secretary McCaleb's referring to
this fund as the Yurok account. The act refers to the money as
Hoopa escrow moneys.
In 1988, the Hoopa Tribe enacted a resolution authorizing
the use of these Hoopa escrow moneys as a settlement offer to
end the effects of the litigation leading to the act. That
consent was required in the act. The Hoopa Tribe's resolution,
however, does not authorize use of these moneys for purposes
not provided in the act. The Hoopa Tribe's agreement that the
act provided a settlement offer of Hoopa moneys to the Yurok
Tribe was withdraw by operation of law when the Yurok Tribe
sued the United States.
The answer to the question what happens now to the
settlement fund must be found outside the act. Federal law
provides for payment of proceeds from logging on tribal lands
to the tribe whose reservation was logged. It is clear that the
Hoopa Valley Indian Reservation belongs to the Hoopa Tribe and
that the Hoopa Tribe is the only governing body concerned with
the sale of timber on the unalloted trust land of the Hoopa
Reservation.
It simply follows that to the extent money remaining in the
settlement fund came from the Hoopa Tribe's Reservation, the
Hoopa Tribe is the only tribe entitled to those proceeds.
Certainly a party to any other legal dispute which rejected the
settlement offer, sued instead and lost could not come back and
claim the previously made settlement offer. The Hoopa Tribe
should not now be forced to pay for prior injustices that
resulted during the allotment era or from the Yurok Tribe's
decision to sue.
Using the settlement fund remainder for such purposes
forces the Hoopa Tribe to be liable for the Federal
Government's actions. Moreover, it would force the Hoopa Tribe
to pay for the poor judgment of the Yurok Tribe's decision to
litigate. We know of no other situation where Congress has
taken resources and resource revenues derived from one
reservation and simply given it to another reservation.
Congress was thorough in developing the Settlement Act.
Congress considered history, aboriginal territory, demographics
and equity. Likewise, Federal courts have held that the Hoopa
Valley Indian Reservation was historically the homeland of the
Hoopa Tribe as a matter of history and as a matter of law. We
know today that the Yurok Tribe would attempt to claim
otherwise.
These are not new issues and after 40 years of litigation,
the courts have heard and determined this issue and every other
possible issue to be raised in regard to this piece of
legislation. The litigation is now over. We ask Congress now to
respect these judicial decisions and move forward.
In conclusion, the Interior report to Congress is
disappointing. Interior concludes that neither tribe is
entitled to the fund under the act but recommends that they
administer the fund for the benefit of both the Hoopa and Yurok
Tribes. This is clearly contradictory. We have long and hard
experience with such administration during the Short v. United
States era. As another witness will testify, Interior lacks the
legal authority and the competence to carryout such
responsibilities fairly.
We believe the issues now before Congress should be
resolved through considered thought and hard work over some
period of time, not necessarily years but long enough to ground
any new legislation on substance and reason rather than
emotion.
We have attempted to negotiate and remain open to
negotiation.
Thank you for your time.
[Prepared statement of Mr. Marshall appears in appendix.]
The Chairman. Thank you, Mr. Chairman.
Would your councilman and the counsel wish to say
something?
Mr. Marshall. Yes.
STATEMENT OF JOSEPH JARNAGHAN, COUNCIL MEMBER, HOOPA VALLEY
TRIBE
Mr. Jarnaghan. My name is Joseph Jarnaghan. I thank you for
the opportunity to speak before you. I consider it a great
honor.
I am a council member of the Hoopa Valley Tribe. Before
being elected to the council, I worked for the tribe's timber
industry for many years. I have a written statement and request
that it be included in the record.
The Chairman. Without objection, so ordered.
Mr. Jarnaghan. Our forests are invaluable to our tribe. I
want to tell you with the use of some slides why the return of
the Hoopa escrow moneys to the Hoopa Valley Tribe is
particularly appropriate in this case now that the payment
provisions of the act have been exhausted.
The first slide is a map of the roads built on the Hoopa
Valley Reservation beginning in the 1940's. There are 550 miles
of road on the reservation. These roads are a major source of
sediment production and contamination of our waters because the
Bureau of Indian Affairs' maintenance of these roads was
grossly inadequate.
When the BIA clearcut our forests, which ultimately
generated the settlement fund, the BIA was more interested in
the volume of timber going to the mill to create the settlement
fund account than it was in the environmental state of our
reservation.
Today, the Hoopa Tribe is still faced with the forest
resource management and rehabilitation costs that were left
undone. As a result, we have been spending $200,000 to $400,000
per year from tribal revenues to fix this road system. This
year in the Pine Em Timber Sale, we have over 100 culverts that
need to be installed as a result of the job not being done when
the BIA harvested our timber between 1972 and 1988. That was
424 million board feet of timber.
The road construction standards the BIA used when
harvesting our timber were deplorable and created ongoing
problems that we continue to deal with today. The road erosion
is devastating to our fisheries, water quality and riparian
organisms. As you can see by this slide which shows a log jam
that blocks fish passage, you will also notice the unit went
right into the creek itself. The BIA logged 33,000 acres of
tribal timber before the Settlement Act was passed. Most of the
rest of our reservation is difficult to log because of steep
slopes and in many cases, it is impossible to log because of
ESA and National Marine Fisheries Service restrictions. Most of
the easy units were logged to create the settlement fund.
These slides show that the BIA simply clearcut our
reservation. This degraded cultural resources and created large
areas for the tribe to now rehabilitate. Assistant Secretary
McCaleb said Tuesday at the trust reform hearing that most
tribes would not clearcut their land and that is a fact but
unfortunately, the BIA did clearcut our forest. Timber stand
improvements cost us over $500 per acre to treat. At 2 to 3
years old, we grub around trees for conifer release; 10 to 15
years after the harvesting, these clearcuts are invaded by
brush and must be brushed by hand because we don't allow
herbicide spraying. We do this at increased cost to promote
tree growth as well as to ensure water quality.
We have suffered terrible forest fires. The Megram fire of
1999 shown here destroyed 4,500 acres of our reservation,
mostly 30 year old stands that had been previously treated at
the cost of $1,000 per acre.
Our tribe must not be forced to withstand losing escrow
moneys that came from timber cuts on our reservation and having
to finance the forest restoration and rehabilitation costs
resulting from forest fires or poor BIA timber mismanagement.
The settlement fund remainder was generated almost exclusively
from timber from our reservation. Our forest has been ravaged
by the BIA, our money has been taken from our people to create
this fund and we have been forced to fight clear to the Supreme
Court to defend our reservation, costing the Hoopa Tribe much
money, time and lost opportunity.
Now the Yurok Tribe wants the settlement fund anyway. Is
that fair? The fund that was left on the table by the Yurok
Tribe's refusal to waive its claim should be returned to us so
we can rehabilitate our aboriginal territory and our forests
after the damage that was done to them by the BIA clearcutting.
Thank you.
[Prepared statement of Mr. Jarnaghan appears in appendix.]
The Chairman. Thank you very much.
Mr. Schlosser.
STATEMENT OF THOMAS SCHLOSSER
Mr. Schlosser. My name is Thomas Schlosser. I thank the
committee for the opportunity of submitting testimony on the
Secretary's report.
I have been honored to serve as the litigation counsel for
the Hoopa Valley Tribe for over 20 years. During that time, I
have represented the Tribe in the Short litigation and in the
litigation concerning the Settlement Act.
I have several points I would like to make. First, the
Secretary's report threatens a return to the situation the
tribes were in prior to passage of the Settlement Act. The
Settlement Act was necessitated by complex litigation among the
United States, the Hoopa Valley Tribe and a large number of
individual Indians, most of whom but not all, have become
members of the Yurok Tribe.
The chairman mentioned the Karuk Tribe and there are a few
members of the Karuk Tribe who were involved in the Short
litigation and were held to be Indians of the reservation. It
is a very small fraction of the Karuk Tribe, I would guess less
than 10 percent. Whereas of the people who were held to be
Indians of the reservation who elected to join the Yurok Tribe
in 1991, the base roll of the Yurok Tribe was entirely made up
of Indians of the reservation.
There is another large fraction of Indians of the
reservation that Mr. McCaleb referred to who chose to
disaffiliate from both tribes, the so-called lump sum option
under section 6(d). The Secretary's report mistakes the
Settlement Act as having primarily been a boundary resolution
act and instead suggests that the settlement fund be
administered for the mutual benefit of both tribes.
Boundary clarification was only a small part of this act
and the efforts to administer the fund for mutual benefit were
dramatically unsuccessful prior to the Settlement Act. For
years, long proceedings were necessary to get a tribal budget
approved. Sometimes the tribal budget would get approved in the
last month of the fiscal year because of Interior's inability
to adopt standards and to determine whether things affected the
reservation fairly. This led to conflicts between rulings in
the Short case and the Puzz case over which kinds of
expenditures were permissible.
For example, the Short case in 1987 held that money that
was distributed to the tribe for tribal governmental purposes
did not damage the Short plaintiffs, was not an injury to the
Indians of the reservation and did not invade their rights. The
Puzz court, a district court in the Northern District of
California, held to the contrary, that funds used by the Hoopa
Valley Tribe did damage the Indians of the reservation. So
there are insufficient standards and not enough expertise to
make that recommendation work well. As George Santayana said,
``Those who cannot remember the past are condemned to relive
it.'' There is an error found in Interior's recommendation.
Under the Settlement Act, there are some benefits
potentially available to the Hoopa Valley and Yurok Tribes.
Only 22 Short plaintiffs were adjudicated to be Indians of the
reservation in 1973, so the court embarked on a long process
which actually is still underway of identifying the eligible
Indians of the reservation and their heirs for inclusion in per
capita payments.
This ruling precipitated other lawsuits, precipitated
administrative actions that brought tribal government to a
standstill, jeopardized public health, and made necessary the
Hoopa Yurok Settlement Act. The Settlement Act originated in
the House and in the House two hearings were conducted, one by
the Interior and Insular Affairs Committee and another by the
Judiciary Committee, and this committee conducted two hearings
on its bill. And as you recall, at least three law firms
appeared and participated in the proceedings on behalf of
various groups of what have become Yurok tribal members. This
included the Faulkner and Wunsch firm which represented most of
the Short plaintiffs, many who became Yurok tribal members, the
Heller, Ehrman White & McAuliffe firm which represented the
Short plaintiffs, the Jacobsen, Jewitt & Theirolf firm which
represented the Puzz plaintiffs, and so although the Yurok
Tribe had not organized in a fashion to designate its own
attorney, its members participated completely and fully.
With the committee's guidance, after all these legal issues
were discussed and the equities were considered, the parties
came together on a settlement package to be laid before each
one of the contestants. At the request of the House, the
Congressional Research Service analyzed the House bill to
determine whether Congress could lawfully do this or whether it
would involve a taking of property. The Congressional Research
Service concluded that because of the unique background of this
reservation and the litigation, it was possible that a court
would conclude that non-tribal Indians, Indians of the
reservation, had some vested interest in reservation property.
Ultimately, the courts didn't conclude that but the fact
that there was a risk there is part of why the committee and
Congress in the Settlement Act went to great pains to offer
benefits in exchange for waivers of claims. So the settlement
fund, for example, was allocated essentially in three ways,
partly to the Hoopa Valley Tribe and the Yurok Tribe, if those
tribes waived their claims, and partly to Indians as
individuals who qualified as Indians of the reservation and
appropriated money was provided which defrayed most of the cost
of the lump sum payments.
As Mr. McCaleb correctly said, the appropriated money was
not sufficient for the people who disaffiliated from both
tribes, so some of the Yurok and Hoopa escrow funds went to
that payment.
This act nullified the Short rulings. That was the purpose
of the act. The act, this committee said in its report, was not
to be considered a precedent for individualization of tribal
communal assets but rather, sprang from the realization that
there were some judicial decisions that were unique and the
committee concluded,
The intent of this legislation is to bring the Hoopa Valley
Tribe and the Yurok Tribe within the mainstream of Federal
Indian law.
That is in the committee's report on page 2.
The Settlement Act preserved the money judgments that had
been won by the individual Short plaintiffs, so they ultimately
recovered about $25,000 each from the treasury in addition to
the payments that were made to them in exchange for claim
waivers under section 6 of the act.
The committee said while it didn't believe the legislation
was in conflict with the Short case, ``To the extent there is
such a conflict, it is intended that this legislation will
govern.'' The reason that is important now is because it is
indisputable that over 98 percent of the remainder in the
settlement fund is derived from Hoopa escrow funds, from Hoopa
timber sales, trees cut on the Hoopa Square. That proportion in
our view belongs to the Hoopa Valley Tribe.
The Short case is not to the contrary. The Hoopa Valley
Tribe has a right to timber proceeds for trees cut on the
Square. As a historical matter, tribes didn't have a right to
proceeds for timber sales on reservation until 1910 when
Congress passed a general timber statute now enacted in section
407. In 1964, Congress changed the designation of beneficiaries
from the 1910 Act which said the proceeds would be used for the
benefit of Indians of the reservation. In 1964 that was changed
to say that proceeds would be used for the benefit of Indians
who are members of the tribe or tribes concerned.
At that time, the Department of the Interior, which
advocated that technical correction, explained that Indians of
the reservation didn't really describe anyone and that in fact
members of the relevant tribe shared in the proceeds of sale of
tribal properties. In the Short case, the 1983 opinion, the
court held to the contrary and said Congress, when it used the
term tribe here meant only the general Indian groups communally
concerned with the proceeds and not officially organized or
recognized tribes.
So another important part of the Settlement Act was
correcting the damage done to the general timber statute. A
section of the Settlement Act amended section 407 to say the
proceeds of sale shall be used as determined by the governing
bodies of the tribes concerned.
In the litigation that came after the Settlement Act, the
Yurok Tribe and other plaintiffs continued to presume the
correctness of some of the rulings in the Short case, in
particular, the 1891 Executive order. The Short case did not
support their claim that they had a right to the Hoopa escrow
funds generated from timber cut on the Hoopa Square. Instead,
in two opinions in 1987, an opinion discussed in this
committee's report, and later in 1993, in the sixth published
Short opinion, the Short court held that the plaintiffs there
did not have a right to the trust funds, the escrow funds.
Instead, the court made very clear that all it held in Short
was that if money is distributed to individuals, not
distributions to tribes but individualization of money, gave
rise to a right by Indians of the reservation to share.
The Federal courts rejected this most recently in the
litigation concerning the Hoopa Yurok Settlement Act. Without
the theories of the Short case that as Indians of the
reservation, they have some claim to the timber revenues of the
Square, without that theory, there is no connection between the
Yurok Tribe and the Hoopa escrow moneys. The Hoopa escrow
moneys were part of a settlement package and that is the only
method by which they could have had access to them.
As the court ruled in the most recent case, Karuk Tribe of
California v. United States, this litigation is the latest
attempt by plaintiffs to receive a share of the revenues from
timber grown on the Square. The Settlement Act nullified the
Short rulings by establishing a new Hoopa Valley Reservation. A
necessary effect of the Settlement Act was to assure payment of
the timber revenues from the Square exclusively to the Hoopa
Valley Tribe.
It was the purpose of the Settlement Act to return these
tribes to the mainstream of Federal Indian law. In the
mainstream of Federal Indian law, the proceeds of trees cut on
a tribe's reservation go to that tribe.
I want to mention one other issue that comes up recurrently
and that is the assertion that a portion of the Hoopa Square
was actually traditional Yurok Tribe territory or some even say
traditional Karuk Tribe territory.
As the chairman pointed out, this is not a new issue, it is
an issue that has been litigated specifically and in the just
completed litigation concerning the Settlement Act, Karuk Tribe
v. United States, the court's ruling was that both as a matter
of history and as a matter of law, the record does not support
the Yurok's claim to Indian title to the site of the Square.
This issue is adverted to in this committee's report concerning
the Settlement Act where the committee pointed out that the
Settlement Act's choice of the Bissell Smith Line as the
dividing line between the two reservations had the effect of
putting a traditional Yurok village into the Yurok Reservation
where it might previously have been in the Square.
With that, I would conclude my remarks and would be happy
to answer questions.
[Prepared statement of Mr. Schlosser appears in appendix.]
The Chairman. Thank you.
One of the first issues confronting me as chairman of this
committee was this matter. Obviously I knew very little about
Indian country or Indian history or relationship. I spent 2
whole days in Sacramento conducting hearings, I visited the
Valley, I would never fly back again and I must say that I
thought the committee did pretty well.
But this committee was a successor of other committees in
the U.S. Senate that felt that all the answers were in
Washington, that the answers were in the minds of lawyers and
government officials. What we have here today is the product of
government officials and lawyers, starting off with deception
and based upon the deception coming forth with conclusions and
then obviously wanting to justify the deception.
In the years that followed my tenure as chairman beginning
in 1987, I have become much more dependent upon the wisdom of
Indian country, to tell me and to tell Washington what the
solutions should be. We have too often tried to impose our will
upon Indian country and this is one example.
In looking at the activities of 1852 and 1864, one must
assume that the Indians were well organized with a whole array
of lawyers who knew the Constitution inside and out and
therefore they had their rights and liabilities all determined
and that was not so. The Government of the United States went
out of its way to make certain that Indians never got
organized. I wish we could start all over and I could tell the
Hoopa and the Yuroks why don't you all get together as you did
in the old days. In the old days, it was either war and kill
each other and decide or you sit down, have a big conference.
In some places they smoked tobacco or exchanged gifts. Maybe
the time has come for the restoration of the old method because
as certain as I sit here if the Congress of the United States
should come forth with Settlement Act No. 2, we will be back
here in about 20 years trying to draw up Settlement Act No. 3.
I have a series of technical questions but those are all
legal questions. It is good to know the history but I was
trained to be a lawyer myself and when one presents his case,
you make certain you don't say good things about the other
side, you speak of the good things about your side. That is
what you are paid for. I would expect lawyers to do the same.
With that, I will be submitting questions of a technical
nature for the record.
May I thank you, Mr. Chairman and your staff.
Our next witness is the most distinguished member of Indian
country, the chairperson of Yurok Tribe of Klamath, California,
Sue Masten.
STATEMENT OF SUE MASTEN, CHAIRPERSON, YUROK TRIBE
Ms. Masten. Good morning.
I have the distinct honor to serve as the chairperson of
the Yurok Tribe. The Yurok Tribe is the largest tribe in
California with over 4,500 members of which 2,800 members live
on or near the reservation.
Thank you for holding this hearing. We appear today with
deep resolve and a commitment to working hard toward addressing
the issues before you.
I know you can appreciate that the issues here run deep and
are heart felt. I also know that when the act was passed
Congress believed that the act reached equity for both tribes.
Thank you for your willingness to hear our concerns that those
goals were not achieved.
We especially thank you, Chairman Inouye, for taking this
very significant step toward addressing our concerns for equity
under the Hoopa Yurok Settlement Act to look at what has been
achieved or not achieved during the last 14 years and for
asking what now may need to be done.
We are deeply appreciative of your October 4, 2001 letter
where you invited both tribes to step beyond the act to address
current and future needs. We know this committee sought to
achieve relative equity for both the Hoopa Valley Tribe and the
Yurok Tribe in 1988.
During the course of our many meetings with members of
Congress and their staff, we have been asked why Congress
should look at this matter again. The answer to this question
is clear, the act has not achieved the full congressional
intent and purpose and Congress often has to revisit issues
when its full intent is not achieved.
Additionally, we believe that the Departments of the
Interior and Justice did not completely or accurately inform
Congress of all the relevant factors. Congress did not have the
full assistance from the departments that you should have had.
In reviewing the Department's testimony and official
communications, we were appalled that the Yurok historic
presence on the Square was minimized or ignored and that the
relative revenue and resource predictions for the tribe were
also wrong. Furthermore, we are also concerned about the
significant disparity of actual land base that each tribe has
received.
Can you imagine in this day and age an Assistant Secretary
addressing a serious dispute between tribes by describing one
tribe as a model tribe and dismissing the other, as some sort
of remnant who would only need 3,000 acres because only 400
Indians remain on what would become their reservation.
Interior also told Congress that the income of the tribes
was comparable. The Hoopa Tribe would earn somewhat over $1
million a year from timber resources and the Yuroks had just
had $1 million plus fishery the year before. Here are the real
facts.
Several thousand Yuroks lived on or near the reservation,
on or near is the legal standard for a tribe's service
district. There is a serious lack of infrastructure, roads,
telephones, electricity, housing on the Yurok Reservation and
we have 75 percent unemployment and a 90-percent poverty level.
Further, there is a desperate need for additional lands,
particularly lands that can provide economic development
opportunities, adequate housing sites and meet the tribal
subsistence and gathering needs.
The Department gave the impression that the Short
plaintiffs who were mostly Yurok had left our traditional
homelands, were spread out over 36 States, were perhaps non-
Indian descendants and were just in the dispute for the
dollars. This impression was highly insulting to the Yurok
people and a disservice to Congress.
There are at least as many Yuroks on or near the
reservation as are Hoopas. With respect to the relative income
or resource equity projected for the new reservations, it is
true there was a commercial fishery shortly before the act,
true but also very misleading. Commercial fishing income, if
any, went predominantly to the Hoopa and Yurok fishermen. The
fact was that in most years, there was no commercial fishery
and in many years, we did not meet our subsistence and
ceremonial needs.
Since the act, Klamath River coho salmon have been listed
as an endangered species and other species are threatened to be
listed. In fact, the Klamath River is listed as one of the 10
most threatened rivers in the Nation and has lost 80 to 90
percent of its historic fish populations and habitat. Today,
the fish runs we depend on are subject to insufficient water
flows and in spite of our senior water right and federally
recognized fishing right, we continue to have to fight for
water to protect our fishery.
The average annual income of the Yurok Tribe from our
salmon resource was and is nonexistent. To be fair, we should
note that since the Settlement Act, the Yurok Tribe has had a
small income from timber revenues, averaging about $600,000
annually. With respect to the land base, the Yurok Tribe's
Reservation contains approximately 3,000 acres of tribal trust
lands and approximately 3,000 acres of individual trust lands.
The remainder of the 58,000 acre reservation is held in fee by
commercial timber interests.
The Hoopa Tribe Reservation has approximately 90,000 acres
with 98 percent in tribal trust status. Regarding the $1
million plus in timber revenues projected for the Hoopa Tribe,
testimony of the Hoopa tribal attorney in 1988 indicated the
annual timber revenue from the Square was approximately $5
million. Since the act, the Hoopa timber revenues have been $64
million. The point is the projected revenue comparison that
should have been before the committee in 1988 was zero
fisheries income for the Yurok Tribe and more than $5 million
in annual timber and other revenues from the Square for the
Hoopa Valley Tribe, not the comparable $1 million or so for
each tribe the committee report relied upon.
This disparity of lands, resources and revenues continues
today and hinders our ability to provide services to our
people. Unfortunately, the Yurok Tribe in 1988 unlike today was
unable to address misleading provisions of key information. The
Yurok Tribe, although federally recognized since the mid-19th
century, was not formally organized and had no funds, lawyers,
lobbyists or other technical support to gather data or analyze
the bill, to present facts and confront misinformation.
It is important to acknowledge the positive provisions of
the Act which provided limited funds to retain attorneys and
others to assist us in the creation of the base roll, the
development of our constitution and the establishment of our
tribal offices. We also appreciated the Senate committee report
recognized and acknowledged that the tribe could organize under
our inherent sovereignty which we did.
Had we been an organized tribe, we would have testified
before you in 1988 and we would have pointed out that while it
is true the Square is part of the Hoopa peoples' homeland, it
is also true that the Square is part of the ancestral homelands
of the Yurok people.
Almost without fail throughout the testimony received in
1988, the Square is described as Hoopa and the addition is
described as Yurok. The Yurok ancestral map provided to you
shows that our territory was quite large and included all the
current Yurok Reservation, 80 percent of Redwood National Park,
as well as significant portions of the U.S. National Forest.
Yurok villages existed in the square and these sites have
been verified by anthropologists. This fact should not be a
matter of dispute. The Justice Department and the Hoopa Valley
Tribe in Yurok v. United States agreed in a joint fact
statement that the Yuroks were always inhabitants of the
Square. We are not claiming that we had Indian title to the
whole square but that we have always been a part of the Square.
The Short cases reached that same determination.
We think these different perspectives are important as we
consider today's issues. However, it is critical for everyone
to understand that we are not asking Congress to take back
anything from the Hoopa Valley Tribe that they received under
the Settlement Act. What we do want is for the committee to
look at the relative equities achieved under the act,
understanding the Yuroks have always been inhabitants of the
Square and have never abandoned our connection to our
territories, our culture and traditions.
We have already noted the significant disparities between
the tribes in income, resources, land base and infrastructure
after the act. The data provided by Interior Department today
supports our position. To reiterate, the Hoopa Valley Tribe
received a 90,000-acre timbered reservation of which 98 percent
is held in tribal trust. The Yurok Tribe received a 58,000-acre
reservation with 3,000 acres in tribal trust, containing little
timber. The map we have provided to you shows this extreme
disparity.
We have already noted that the projected income for the
tribes were incorrect. Time has verified that the predictions
of a bountiful or restored Yurok fishery has not happened. It
is also a fishery that we share with the non-Indians as well as
Hoopa. Hoopa timber resources however have produced substantial
income exceeding the 1988 predictions as reflected in the
Interior Department's records. In addition, as this committee
is aware from your recent joint hearing on telecommunications,
infrastructure on the Yurok Reservation is virtually
nonexistent.
In our response to Senator Inouye's letter of October 4,
2001, we have submitted an outline of an economic development
and land acquisition plan to you and the Department of the
Interior. The plan is based on our settlement negotiations with
the Department in 1996 and 1997. We would like to request from
you today the creation of a committee or a working group
composed of tribal administration and congressional
representatives and hopefully, under your leadership, Senator.
We recommend that the committee's responsibility be to
develop legislation that would provide a viable self sufficient
reservation for the Yurok people as originally intended by the
Settlement Act. As you can see, our issues are broad based and
focus on equity for the Yurok Tribe. The Department's report
has prompted this hearing to address access by the Yurok Tribe
to the Yurok Trust Fund. The Interior Department has said that
neither tribe has legal entitlement to the Yurok Trust Fund.
Our view is simple.
The financial equities and the actual distributions of
timber revenues from 1974 to 1988 clearly demonstrate that the
Yurok Tribe should receive its share of the settlement fund as
the act intended. Arguments based on where the revenue came
from on the joint reservation are wrong. These revenues
belonged as much to the Yuroks of the Square and the Yuroks of
the extension as they did to the Hoopas of the Square. This is
the key point of the cases both tribes lost in the Claims
Court.
The point is that prior to 1988, the Hoopa Valley
Reservation was a single reservation intended for both tribes
and whose communal lands and income were vested in neither
tribe. Short also means that the Department could not favor one
tribe above the other in the distribution of assets. These are
pre-1988 moneys. We should not have to reargue what Yuroks won
in the Short cases.
After the final 1974 decision in Short I, the Department
ceased to distribute timber revenues only to the members of the
Hoopa Valley Tribe and began to reserve 70 percent of the
timber revenues for the Yurok plaintiffs. The remaining 30
percent of the revenues were for Hoopa and were placed in a
separate escrow account which the Department disbursed to the
Hoopa Valley Tribe. When we discussed the 1974-88 timber
revenues with the Hoopa Tribal Council, they asserted that all
of the timber revenues should have been theirs. Legally as the
committee knows, that is not what the courts have said. No
Indian tribe, before 1988, had a vested right to the Square or
its assets. In 1974, the Federal courts had finally determined
that the Secretary had since 1955 wrongfully made per capital
distributions to only Hoopa tribal members and the plaintiffs,
mostly Yurok, were entitled to damages against the United
States. Damages were eventually provided to the plaintiffs for
the years 1955-74 but not for 1974-88. The point is that
neither tribe had title to timber or a constitutional right to
the revenues from 1974-88. If the revenues were distributed to
one group, the other group was entitled to its fair share. It
did not matter what percentage of the timber proceeds came from
the square or came from the addition because according to the
Federal courts, neither revenues were vested in either tribe.
In 1974-88, revenues were distributed to the Hoopa Tribe,
first under the 30 percent Hoopa share totaling $19 million and
second under the Settlement Act. As you are aware, the
Settlement Act placed the 70 percent escrow account which was
$51 million, the small balance of the Hoopa 30 percent escrow
account, some smaller joint Hoopa Yurok escrow accounts, Yurok
escrow accounts, as well as the $10 million Federal
appropriation all in the settlement fund.
In 1991, the Department split the settlement account
between the two tribes based on our enrollments. The Hoopa
Valley Tribe was allocated 39.5 percent of the settlement fund
or $34 million. Because the Hoopa Valley Tribe had executed its
waiver, the Department provided these funds to the tribe. The
Yurok Tribe was allocated $37 million and it was put in a Yurok
trust account and was not provided to us.
From 1974 to 1988, timber revenues and interest was
approximately $64 million of which the Hoopa Tribe received a
total of $53 million or 84.2 percent of this total. Also in
1991, the claims attorneys for the Short cases sued the United
States to try to recover attorneys fees from the settlement
account. Two other Yuroks and I intervened in this case as co-
defendants to protect the Yurok share of the settlement funds.
The United States approved this intervention and the Justice
Department attorneys encouraged our participation and we won
this case.
As you are aware, in 1993, the Yurok Tribe sued the United
States for a takings claim under the Settlement Act. We lost
this case in 2001 when the Supreme Court declined to review a 2
to 1 decision by the Federal Court of Appeals. We lost this
case for the same reason that the Hoopa Tribe lost all of their
pre-1988 cases. No part of the pre-1988 Hoopa Valley
Reservation was vested to any Indian tribe and none of us had
title against the United States. We could argue that the case
was unfair and historically blind and that it is outrageous to
use colonial notions of Indian title in these modern times but
it doesn't matter. We lost, as the Hoopa Tribe lost before us,
and in this legal system, the only appeal we have left is an
appeal to equity and justice before Congress to fix these
wrongs.
At the same time in 1993, we adopted the conditional waiver
which provided that our waiver was effective if the Settlement
Act was constitutional. The courts have determined that the act
is constitutional. That determination should have been
sufficient to meet the condition of our waiver but the
Department held that our waiver was not valid. Although we
disagree, we have not challenged the Department's judgment in
the court and will not take the committee's time to debate it
today.
The Department determined that the Hoopa waiver was
effective and they received their funds under the Act.
Therefore, they have no legal right to additional funds. The
Department has reported to Congress that you should resolve
this issue. Among other things, the Department sees itself as
the administrator of the funds for both tribes. In resolving
these issues, the report indicates that Congress should
consider funds already received and focus on the purpose of the
act to provide for two self sufficient reservations. A better
solution would be to permit the Yurok Tribe to manage our own
funds. We, of course, would be willing to submit a plan for
review and approval. In fact, our constitution mandates that a
plan be developed and approved by our membership before any of
these funds are spent.
As we have stated, a complete review of the record
indicates that almost all of the trust lands, economic resource
and revenues of the pre-1988 joint reservation have to date
been provided almost exclusively to the Hoopa Valley Tribe. A
final point to consider is that in 1996, we negotiated an
agreement with the Hoopa Valley Tribe to support H.R. 2710 in
return for their support of our settlement negotiation issues
specifically the balance of the settlement funds. Apparently
the Hoopa Valley Tribal Council now believes that its end of
the deal ended with the collapse of our settlement
negotiations. We lived up to our end of the bargain and the
Hoopa Valley Tribe received an additional 2,600 acres of trust
land. This almost equals the total tribal trust lands we
received under the act. Copies of both of our 1996 commitment
letters have been provided with our written testimony.
In closing, back home our people are preparing for our most
sacred ceremonies, the White Deer Skin dance and the Jump
dance. These ceremonies are prayers to the Creator to keep
balance in our Yurok world. When our people are in balance, we
are strong, our children's futures are bright, life is as it
should be, good. When our people are not in balance, we are
weakened, our people are disheartened and we worry about what
will become of our children. Life is not good.
In a way, this hearing is a kind of ceremony. We come
seeking balance for our people, we come seeking strength, we
come seeking a stable future for our children, we come seeking
a good life for our tribe. Sadly, our people are not now in
balance. Though our dances help our spiritual well being, the
resources given to us by the Creator so that we would never
want for anything have been taken from us. Once we were a very
wealthy people in all aspects in our Yurok world, in our
spirituality, in our resources and in our social-economic
affairs. The sad irony is that because of our great wealth, we
were targeted heavily by the Government's anti-Indian policies
for termination and assimilation. Many of our elders have
passed on never having received the benefits they were entitled
to under Short and under the Hoopa Yurok Settlement Act. We
hope Congress will not let more pass on without benefiting from
the settlement fund.
Be that as it may, we pray Congress will use its power to
bring balance back to our people, that it will relieve our
fears about our children's futures and make us strong once
again, that it will make our lives good as they should be.
Once more, Senator, thank you for the honor of appearing
before the committee today and would welcome any of your
questions.
[Prepared statement of Ms. Masten appear in appendix.]
The Chairman. Thank you very much.
If the Congress is called upon to resolve this matter, I
can assure you that the Congress can and will do so but I would
hope that all of you assembled here would realize under what
circumstances these decisions would be made. Here I sit alone
before you. This is a committee of 15 members. The vice
chairman unfortunately had to leave because of other
commitments and other issues. As a general rule, we are the
only two who sit through all of these hearings.
Second, I think you should take into consideration that the
sanctuary that Indian country once held in the Supreme Court
may not be available. Supreme Court decisions of recent times
have indicated that they are not too favorably inclined as to
the existence of Indian sovereignty. I need not remind you of
Nevada v. Hicks and the Atkins on Trading Post cases. Keeping
that in mind, I wasn't being facetious when I said if you left
it up to us for Settlement Act No. 2, you may get it but it may
be worse than Settlement Act No. 1.
Solutions for Indian problems coming from Indian country
are always the best and I know you have attempted to sit
together in the past but it has not succeeded but I would hope
you can do so and come forth with a joint recommendation that
both of you can approve and support because if we do it,
somebody is going to get hurt. I have no idea who is going to
get hurt but I can guarantee you somebody is going to get hurt.
If you have the patience and the wisdom to get together and
sit down, have negotiations and discussions and if you want to
have the help of this committee to some mediation, we are happy
to do so but to try to do this legislatively at this stage, I
don't think is a wise thing because the foundation is shaky to
begin with and this is not the kind of solution that lawyers
can make, only Indians can make it. I would hope that you can
sit together, begin a process. We would be very happy to help
you and hopefully come forth in the not too distant future,
maybe 6 months from now, with some solution. I can assure you
that I will act speedily and expeditiously.
The way it is now, I am the only one sitting here but this
is the way the Congress of the United States acts
unfortunately. If you want people who have no knowledge, no
idea of your issues acting upon your case, you can have it but
I think that's the wrong way.
I will not ask you any questions at this time. We will just
confuse it and maybe anger people further and that's not my
mission here, to anger Indians. I think the time has come for
Indians to get together. You have big problems ahead of you. If
you can't solve the immediate problems at home, then you will
have real problems on the big ones.
With that, Chairperson Masten and Chairman Marshall, just
for us, would you please stand up and shake hands?
Ms. Masten. We have no problem with that, Senator. We work
on many issues together where we have mutual benefit but I
would like to say before I do that, we would request the
committee's assistance because in our prior negotiations there
has been a breach of trust because after our last negotiations,
the Hoopa Tribe issued a press release.
The Chairman. When you have negotiations, I will make
certain there is a representative from this committee.
Ms. Masten. Appreciate that, Senator. Thank you again.
The Chairman. If you can keep your rhetoric reasonable and
rationale and friendly, I think we can work out something.
Mr. Marshall. I'm sorry, Senator. I cannot shake hands
after being offended in that way. We did not offend them in the
last negotiation and I cannot be that hypocritical.
The Chairman. I think we should start the process.
With that, this hearing is adjourned.
[Whereupon, at 12:04 p.m., the committee was recessed, to
reconvene at 2 p.m. the same day.]
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A P P E N D I X
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Additional Material Submitted for the Record
=======================================================================
Prepared Statement of Joseph Jarnaghan, Councilman, Hoopa Valley Tribe
of California
My name is Joseph Jarnaghan and I am a member of the Hoopa Valley
Tribal Council. Our tribe has lived on and governed its affairs in the
Hoopa Valley for over 10,000 years. I testify as a tribal official
elected in a democratic process by the tribal membership, and
expressing the views of our people.
On behalf of the Hoopa Valley Tribe, I want to thank this committee
for the opportunity to be here today and to testify in this oversight
hearing. I want to tell you why the return of the Hoopa escrow moneys
to the Hoopa Valley Tribe is particularly appropriate in this case, now
that the payment provisions of the Hoopa-Yurok Settlement Act have been
exhausted.
My first slide is a map of roads built on the Hoopa Valley Indian
Reservation beginning in the 1940's. There are over 550 linear miles of
road on the reservation. These roads are a major source of sediment
production and contamination of our waters because the Bureau of Indian
Affairs' maintenance of these roads was grossly inadequate, virtually
nonexistent, when it clear-cut timber from our reservation. The Bureau
was more interested in getting the trees down and to sale rather than
forest resource management and rehabilitation. Now, the Hoopa Valley
Tribe spends approximately $200,000 to $400,000 per year from tribal
revenue to fix this road system. Simply put, the BIA road construction
standards employed in harvesting timber from our reservation created a
huge ongoing problem. The roads erosion is devastating to fisheries,
water quality and riparian organisms. The tribe continues to
rehabilitate old logging roads and landings that are major contributors
to sediment production and which thereby affect fish habitat and water
quality.
The BIA cut down approximately 33,000 acres of tribal timber before
the Hoopa-Yurok Settlement Act was passed. Most of the remainder of the
reservation cannot be logged. As the photos illustrate, clear cutting
management techniques were practiced by the BIA. This type of
harvesting disregarded cultural resources and created large areas that
the tribe must now rehabilitate through timber stand improvement
projects. Even 10 years after harvesting, clear cuts have led to
invasion by brush species, understocked timber regrowth, and unhealthy
conditions susceptible to fire or insects. Timber stand improvement
costs the tribe over $500 per acre to treat. Thin and release programs
conducted by hand produce substantial improvements in growth rates.
Our reservation has also been substantially damaged by forest
fires. The Megram fire of 1999 resulted in approximately 4,500 acres
being destroyed through fire suppression efforts on the reservation.
About one-half of the damage was the result of ``back bum'' operations.
The rest of the damage occurred through creation of a ``contingency
fire line.'' The fire line was up to 400 feet wide and approximately 11
miles long.
The Hoopa Valley Tribe must not be subjected to the double hit of
losing both the Hoopa escrow moneys derived from timbering activities
on our reservation and having to finance the restoration and
rehabilitation costs resulting from the BIA's poor timber harvest
projects and forest fires. The potential application of Hoopa escrow
funds to settlement costs never came to pass, instead we had to incur
tremendous defense costs to protect our reservation. The Hoopa escrow
funds from our reservation should be restored to meet the needs of our
people.
______
Prepared Statement Thomas P. Schlosser, Counsel, Hoopa Valley Tribe of
California
My name is Thomas P. Schlosser and I am an attorney for the Hoopa
Valley Tribe. I thank the committee for the privilege of presenting
testimony concerning the report to Congress submitted by the Secretary
of the Interior in March 2002, pursuant to Sec. 14(c) of Pub. L. 100-
580, as amended, the Hoopa-Yurok Settlement Act.
I have been honored to serve as litigation counsel to the Hoopa
Valley Tribe for over 20 years and, during that time, have represented
the tribe in the hopelessly misnamed case of Short v. United States, a
suit still pending after 39 years. Along with numerous lawyers
representing various sides of the controversy, I participated in the
proceedings of the 100th Congress and this Committee that fashioned the
landmark Hoopa-Yurok Settlement Act.
1. The Secretary's Report Threatens a Return to Pre-1988
Conditions.
The Settlement Act was necessitated by complex litigation between
the United States, the Hoopa Valley Tribe, and a large number of
individual Indians, most, but not all of whom were of Yurok decent.
Those who do not recall the applicable court rulings or the conditions
from which the Settlement Act emerged will not fully appreciate the
strengths and weaknesses of the Secretary's Sec. 14(c) report. Thus,
the Secretary's report mistakes the Settlement Act as having been
enacted ``with the primary objective of providing finality and clarity
to the contested boundary issue,'' and concludes with the
recommendation that the Settlement Fund ``would be administered for the
mutual benefit of both the Hoopa Valley and Yurok Tribes.'' The
Secretary's report is not all wrong but boundary clarification was only
an aspect of the Hoopa-Yurok Settlement Act. If administration of the
Fund for the joint benefit of the tribes is the outcome of this process
we will have returned to the difficult era between 1974 and 1988 that
required passage of the Settlement Act in the first place. As George
Santayana said, ``those who cannot remember the past are condemned to
repeat it.'' The error of establishing a ``Reservation-wide'' account
is clear from comparing Sec. 1(b)(1)(F) with Puzz v. United States,
1988 WL 188462, *9 (N.D. Cal. 1988).
Under the Settlement Act there are potential benefits currently
unavailable to the Yurok and Hoopa Valley Tribes because of the Yurok
Tribe's decision to reject the conditions of the act. The Hoopa-Yurok
Settlement Fund is only one of the undistributed assets, and probably
not the most valuable one, by comparison to the hundreds of acres of
Six Rivers National Forest land within and near the Yurok Reservation,
the money appropriated for Yurok land acquisition, the Yurok self-
sufficiency plan which was never submitted or funded, and the statutory
authority to acquire land in trust for the Yurok Tribe. Thus. a second
shortcoming of the Secretary's Sec. 14(c) report is that it focuses
myopically on the Hoopa-Yurok Settlement Fund. Nevertheless, because
the Settlement Fund is the only asset in which the Hoopa Valley Tribe
has a continuing interest, my testimony will focus on it.
2. The Short Case Was an Aberration From Federal Indian Law.
The Settlement Act brought to an end a long detour from a correct
decision of the Interior Department on February 5, 1958, the Deputy
Solicitor's memorandum regarding rights of the Indians in the Hoopa
Valley Reservation, California. The Solicitor's opinion found that a
group of Indians had been politically recognized as the Hoopa Tribe by
the United States in 1851 and were the beneficiaries of administrative
actions in 1864 and an Executive order in 1876 setting aside the Hoopa
Square for the benefit of any Indians who were then occupying the area
and those who availed themselves of the opportunity for settlement
therein. (Those Indians were, as this committee found in 1988,
primarily Hoopa Indians, but the Hoopa Valley Tribe included other
individuals who joined the community and ultimately became enrolled
tribal members.) The Solicitor found that Commissioner of Indian
Affairs had been correct in recognizing tribal title to the communal
lands in the Hoopa Square to be in the Hoopa Valley Tribe. The Federal
Government's action a generation later, in 189 1, to append to the
Hoopa Valley Reservation the old Klamath River Reservation and the
intermediate Connecting Strip, as an aid to the administration of those
areas, could not have had any effect on the rights of Indians to
property within the Reservation because Hoopa Valley rights attached in
1864 and Klamath River Reservation rights attached in 1855.
Unfortunately for all concerned, the Court of Claims differed with
the Interior Department's 1958 view in Short v. United States, 202 Ct.
Cl. 870 (1973), cert. denied, 416 U.S. 961 (1974) (``Short 1''). Short
I ruled that the Secretary violated trust duties to non-Hoopa ``Indians
of the Reservation,'' when he excluded them from tribal per capita
payments. Nearly 4,000 individuals were plaintiffs in Short, and Short
I found only 22 ``Indians of the Reservation'' and left a very
difficult job (which is still underway) for the courts to perform
determining which other ``Indians of the Reservation'' and their heirs
were entitled to damages from Treasury for breach of trust. Short I
precipitated a series of crises and related lawsuits that jeopardized
public health and welfare and nearly destroyed tribal government before
Congress stepped in with the Hoopa-Yurok Settlement Act.
The Settlement Act originated in the House as H.R. 4469. The
Interior and Insular Affairs Committee and the Judiciary Committee of
the House conducted hearings on that bill, in addition to the two
hearings conducted by this committee. As you may recall, at least three
law firms represented factions of Yurok tribal members at those
hearings, including Faulkner & Wunsch, Heller Ehrman White & McAuliffe,
and Jacobsen, Jewitt & Theirolf. Many legal issues were argued but,
with this committee's guidance, the warring factions came together on a
settlement package to lay before all parties.
At the request of the House, the American Law Division of the
Congressional Research Service prepared an analysis of H.R. 4469 which
pointed out that because of the unique statutory and litigation
background, a remote possibility existed that litigation concerning
H.R. 4469 could create a new Federal Indian law precedent, holding that
if the Reservation was established for non-tribal Indians, Indians of
the Reservation would have a vested interest in Reservation property.
The courts did not ultimately reach that conclusion, but it is useful
to recall that issue now in order to realize how the Secretary's Sec.
14(c) report oversimplifies the Settlement Act as merely a division of
assets between the Hoopa Valley and Yurok Tribes. Actually, the
Settlement Act initially divided the Hoopa-Yurok Settlement Fund
between the Hoopa Valley Tribe and the Yurok Tribe, subject to
surrender of claims, and then added appropriated funds to finance lump-
sum payments to Indians who did not elect to join the Yurok Tribe or
the Hoopa Valley Tribe. Because of the long history of Yurok Short
plaintiff opposition to organization of the Yurok Tribe and the wide
geographic dispersal of Yurok Indians it was simply unknown how many
persons on the Hoopa-Yurok Settlement Roll would elect Yurok tribal
membership.
3. The Settlement Act Nullified the Short Rulings.
This committee emphasized that the Settlement Act should not be
considered an individualization of tribal communal assets and that the
solutions in the Settlement Act sprang from a series of judicial
decisions that are unique in recognizing individual interests that
conflict with general Federal policies and laws favoring recognition
and protection of tribal property rights and tribal governance of
Indian reservations. The committee concluded: ``the intent of this
legislation is to bring the Hoopa Valley Tribe and the Yurok Tribe
within the mainstream of Federal Indian law.'' S. Rep. 564, 100th
Cong., 2d Sess. (1988) at 2.
The Settlement Act preserved the money judgments won by qualified
plaintiffs in the Short case, and they ultimately recovered about
$25,000 each from the United States Treasury in 1996. They also
received the payments provided by Sec. 6 of the Act. But this
committee noted that while it did not believe ``that this legislation,
as a prospective settlement of this dispute, is in any way in conflict
with the law of the case in the Short cases, to the extent there is
such a conflict, it is intended that this legislation will govern.''
Id. at 19.
The interplay of the Settlement Act and the Short case is important
to allocation of the Settlement Fund now for this reason: is
indisputable that over 98 percent of the funds remaining in the Hoopa-
Yurok Settlement Fund originated in trees cut from the Hoopa Square,
now the Hoopa Valley Reservation. That proportion of the funds belongs
to the Hoopa Valley Tribe.
4. The Hoopa Valley Tribe Has a Right to its Timber Proceeds.
As an historical matter, Indian tribes did not generally have a
right to logging proceeds until Congress, by the Act of June 25, 1910,
authorized the sale of timber on unallotted lands of any Indian
reservation and provided that ``the proceeds from such sales shall be
used for the benefit of the Indians of the reservation in such manner
as he may direct.'' See 25 U.S.C. Sec. 407. In 1964, Congress changed
the identity of the beneficiaries of proceeds in the statute from
``Indians of the reservation'' to ``Indians who are members of the
tribe or tribes concerned.'' As the Interior Department testified in
support of that amendment, this was a technical correction because the
term ``Indians of the reservation'' did not describe anybody and
actually members of the relevant tribe shared in the proceeds of the
sale of tribal property. However, in Short v. United States, 719 F.2d
1133, 1136 (Fed. Cir. 1983), cert. denied, 467 U.S. 1256 (1984)
(``Short III''), the court rejected that explanation and held that
``Congress, when it used the term `tribe' in this instance, meant only
the general Indian groups communally concerned with the proceeds--not
an officially organized or recognized Indian tribe--and that the
qualified plaintiffs fall into the group intended by Congress.'' Thus,
another important portion of the Settlement Act was the correction to
the Short--caused distortion of 25 U.S.C. Sec. 407 to provide that
``the proceeds of the sale shall be used--(1) as determined by the
governing bodies of the tribes concerned and approved by the
Secretary----'' This amendment restored tribal control over enrollment
and use of timber proceeds.
The Short case, as explained in some detail in this committee's
report, found that no vested Indian rights existed at the time the
Hoopa Valley Reservation was extended to include the Connecting Strip
and Klamath River Reservation in 1891, and that therefore all Indians
of the reservation, as extended, had to be included in per capita
distributions from reservation revenues. In the litigation that
challenged the Settlement Act as a taking of plaintiffs' vested rights,
the Yurok Tribe, its members, and the Karuk Tribe of California
logically presumed both the propriety of President Benjamin Harrison's
1891 Executive order and the correctness of the Court of Claim's
decision in Short I. In other words, those plaintiffs assumed that
President Harrison acted lawfully in expanding the Hoopa Valley
Reservation to include the Addition, and that the effect of 1891
Executive order was to give all Indians having an appropriate
connection to the reservation as so expanded an equal claim to all of
the expanded reservation's income. If either of those propositions was
incorrect, then the Settlement Act could not be thought to deprive
plaintiffs of anything to which they were ever entitled. However, those
propositions depended in turn on the assumption that the 1876 Executive
order did not confer property rights on the inhabitants of the Hoopa
Square, as the reservation was then defted, since if such rights were
conferred they would have been taken by the 1891 Executive Order, at
least as construed in Short I.
Here we are again hearing the Yurok Tribe contend that they have a
right to receive timber proceeds from the Hoopa Valley Square. The
courts have correctly rejected this, not once, but time after time in
Short IV, Short VI, and Karuk Tribe of California. In Short IV, 12 Cl.
Ct. 36, 44 (1987), the Court held that the escrow fund did not belong
to Short plaintiffs but was held in the Treasury subject to the
discretion of the Secretary of the Interior. That ruling was reaffirmed
in Short VI, 28 Fed. Cl. 590, 591, 593 (1993), where the Court recalled
that prior to 1987 the Short plaintiffs claimed a right to the entire
escrow fund but that claim was rejected in Short IV and remained the
law of the case. The Federal courts rejected plaintiffs continued
effort to capitalize on Short. Karuk Tribe of California, et al. v.
United States, et al., 209 F.3d 1366, 1372 (Fed. Cir. 2000), cert.
denied, 523 U.S. 941 (2001).
Without the theories of the Short case, the Yurok Tribe has no
claim to portions of the Settlement Fund derived from Hoopa escrow
funds and timber on the Square. As the Court ruled in Karuk Tribe of
California, ``This litigation is the latest attempt by plaintiffs to
receive a share of the revenues from timber grown on the Square. . . .
[but] the Settlement Act nullified the Short rulings by establishing a
new Hoopa Valley Reservation. . . . A necessary effect of the
Settlement Act was thus to assure payment of the timber revenues from
the Square exclusively to the `Hoopa Valley Tribe.''' 209 F.3d at 1372.
It was the purpose of the Settlement Act to return the Yurok and Hoopa
Valley Tribes to the mainstream of Federal Indian law. The twisted
logic of the Short case can have no further effect on these tribes.
Under mainstream law, the proceeds of Indian timber sales must go to
the tribe whose trees were cut.
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