[Congressional Record Volume 145, Number 68 (Wednesday, May 12, 1999)]
[Senate]
[Pages S5159-S5164]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL:
  S. 1021. A bill to provide for the settlement of claims of the 
Menominee Indian Tribe of Wisconsin; to the Committee on the Judiciary.


                 MENOMINEE TRIBAL FAIRNESS ACT OF 1999

  Mr. KOHL. Mr. President, today I am introducing bipartisan 
legislation that would give a Congressional ``stamp of approval'' to a 
settlement for which the Menominee Indian Tribe of Wisconsin has long 
awaited--a settlement that, in my opinion and in the opinion of the 
Federal Court that approved it last year, is long overdue.
  Specifically, this bill--the ``Menominee Tribal Fairness Act of 
1999''--would enforce a settlement owed to the Menominee Tribe by the 
Federal government, whose termination of the Tribe's federal trust 
status resulted in enormous damage to the Menominee from 1954 to 1973. 
Six years ago, Congress passed a congressional reference that ordered 
the U.S. Claims Court to report back regarding what damages, if any, 
were owed the Tribe. Last year, the Court approved a $32 million 
settlement, and now that we have settled the merits of the case, we 
simply need congressional approval to conclude this 45-year-old matter 
once and for all. Let me tell you why this legislation is crucially 
needed.
  When Congress passed the Menominee Termination Act of June 13, 1954, 
it ended the Tribe's federal trust status, effective in 1961. As a 
result of termination, the Menominee Tribe plunged into years of severe 
impoverishment and community turmoil. Indeed, according to a 1965 BIA 
study of conditions on the former reservation, the economic and social 
effects were disastrous. Unemployment was 26 percent, compared to 
Wisconsin's 5 percent rate. The school dropout rate was 75 percent, and 
the per capita income was less than one-third of the state average. The 
local hospital, which was built with tribal funds, was shut down 
because it could not meet state standards, effectively eliminating 
local health care services which in turn increased mortality rates.
  Twelve years after termination, Congress recognized the economic and 
social devastation this Act had caused for the Tribe by passing the 
Menominee Restoration Act of 1973, which reinstated the Tribe's federal 
trust status. Clearly, though, BIA mismanagement and termination 
threatened to devastate the Tribe for generations to

[[Page S5160]]

come, and the Tribe subsequently sought relief for its recuperation.
  The Menominee Tribe took this matter to the courts, and though it 
obtained favorable trial court judgments on the merits of its claims, 
the Tribe encountered a series of technical roadblocks that prevented 
it from ever really having its case heard.
  The Tribe then came to Congress for help. But it was not until 1993 
that Congress passed my proposal to settle this matter by sending it to 
the Court of Claims and ordering the court to report back what damages 
the Tribe was owed.
  After extensive negotiation, the Federal government and the Menominee 
Tribe agreed upon a settlement of the Tribe's claims for a sum of 
$32,052,547. The Claims Court, on August 12, 1998, reported back to 
Congress, concluding that the Tribe has stated legitimate claims and 
endorsing this settlement.
  Now, to compensate the Tribe for damages and implement the decision 
of the Court of Claims, we must pass this legislation that authorizes 
the payment of this agreed-to settlement. And the money does not have 
to be appropriated--it will simply be taken from a Treasury Department 
``judgment fund'' account.
  Mr. President, the congressional reference procedure is designed so 
that the court may examine claims against the United States based on 
negligence or fault, or based on less than fair and honorable dealings, 
regardless of ``technical'' defenses that the United States may 
otherwise assert, especially the statute of limitations.
  In other words, it is to be used for precisely the types of 
circumstances surrounding the Menominee Tribe. The tribe and its 
members suffered grievous economic loss through legislative termination 
of its rights and from BIA mismanagement of its resources. Indeed, the 
Federal governments' actions brought the Menominee Tribe to the brink 
of economic, social, and cultural disaster. In 1973, the tribe was 
restored to Federal recognition and tribal status by action of the 
Congress. But the Tribe has yet to be compensated for the damages it 
suffered.
  Mr. President, I urge my colleagues to approve the Court's ruling, 
support this bill, and settle this case once and for all. And don't 
take my word for it--this measure has been endorsed by the Chairman of 
the Indian Affairs Committee, Ben Nighthorse Campbell, and 
Representative Mark Green, who represents the district where the 
Menominee reservation is located.
  I ask unanimous consent that the full texts of my bill, the U.S. 
Court of Federal Claims Report of the Review Panel, Court Order, and 
Stipulation for Recommendation of Settlement, along with Chairman 
Campbell's letter of support for this measure, be printed in the 
Record.
  There being no objection, the materials were ordered to be printed in 
the Record, as follows:

                                S. 1021

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. PAYMENT.

       The Secretary of the Treasury shall pay to the Menominee 
     Indian Tribe of Wisconsin, out of any funds in the Treasury 
     of the United States not otherwise appropriated, $32,052,547 
     for damages sustained by the Menominee Indian Tribe of 
     Wisconsin by reason of--
       (1) the enactment and implementation of the Act entitled 
     ``An Act to provide for a per capita distribution of 
     Menominee tribal funds and authorize the withdrawal of the 
     Menominee Tribe from Federal jurisdiction'', approved June 
     17, 1954 (68 Stat. 250 et seq., chapter 303); and
       (2) the mismanagement by the United States of assets of the 
     Menominee Indian Tribe held in trust by the United States 
     before April 30, 1961, the effective date of termination of 
     Federal supervision of the Menominee Indian Tribe of 
     Wisconsin.

     SEC. 2. EFFECT OF PAYMENT.

       Payment of the amount referred to in section 1 shall be in 
     full satisfaction of any claims that the Menominee Indian 
     Tribe of Wisconsin may have against the United States with 
     respect to the damages referred to in that section.

     SEC. 3. REQUIREMENTS FOR PAYMENT.

       The payment to the Menominee Indian Tribe of Wisconsin 
     under section 1 shall--
       (1) have the status of a judgment of the United States 
     Court of Federal Claims for the purposes of the Indian Tribal 
     Judgment Funds Use or Distribution Act (25 U.S.C. 1401 et 
     seq.); and
       (2) be made in accordance with the requirements of that Act 
     on the condition that after payment of attorneys fees and 
     expenses of litigation, of the remaining amount--
       (A) not less than 30 percent shall be distributed on a per 
     capita basis; and
       (B) not more than 70 percent shall be set aside and 
     programmed to serve tribal needs, including--
       (i) educational, economic development, and health care 
     programs; and
       (ii) such other programs as the circumstances of the 
     Menominee Indian Tribe of Wisconsin may justify.
                                  ____


  [In the United States Court of Federal Claims, No. 93-649X (Filed: 
                           August 12, 1998)]

 Menominee Indian Tribe of Wisconsin, plaintiff, v. the United States, 
                               defendant


                       report of the review panel

       Pending before the review panel in this congressional 
     reference is the order of the hearing officer of August 11, 
     1998, adopting the stipulated settlement of the parties. The 
     parties have agreed to resolve this matter without further 
     litigation. The hearing officer carefully reviewed the basis 
     of the settlement and satisfied himself that it was well 
     grounded in fact and law. The parties have waived by 
     stipulation the normal period for filing exceptions to the 
     report.
       This panel hereby affirms and adopts the order of the 
     hearing officer in its entirety. After reviewing the order of 
     August 11, 1998, it is the judgment of this panel that the 
     stipulated agreement between the parties is a just and 
     equitable resolution of the lengthy dispute that it resolves. 
     It is the view of the panel that there is a basis in law and 
     in equity to support the payment to the Tribe of the 
     settlement amount and that such payment would not constitute 
     a gratuity.
       Accordingly, the review panel recommends that Congress 
     adopt legislation paying to the Menominee Tribe of Wisconsin 
     $32,052,547 in settlement of the claims embraced in this 
     congressional reference.
       Because the parties have waived the normal period for 
     requesting reconsideration, the Clerk is directed promptly to 
     forward this order and supporting materials to Congress.
       Done this twelfth day of August, 1998.
     Robert H. Hodges, Jr.,
       Presiding Officer.
     Moody R. Tidwell,
       Panel Member.
     Bohdan A. Futey,
       Panel Member.
                                  ____


  [In the United States Court of Federal Claims, No. 93-649X (Filed: 
                           August 11, 1998)}

 Menominee Indian Tribe of Wisconsin, plaintiff, v. the United States, 
                               defendant

       Charles A. Hobbs, with whom were Jerry C. Straus, Frances 
     L. Horn, Marsha Kostura Schmidt, and Joseph H. Webster, all 
     of Washington, D.C. for plaintiff.
       James Brookshire, with whom was Glen R. Goodsell, U.S. 
     Department of Justice, General Litigation Section, 
     Environment & Natural Resources Division, Washington, D.C., 
     for defendant.


                                 order

       On August 6, 1993, Senate Resolution 137 referred to the 
     Court of Federal Claims a proposed bill, S. 1335, for the 
     relief of the Menominee Indian Tribe of Wisconsin, and 
     requested the Chief Judge to proceed in accordance with the 
     provisions of 28 U.S.C. Sec. Sec. 1492 and 2509 regarding 
     congressional references. The Resolution requested that the 
     court ``report back to the Senate . . . providing such 
     findings of fact and conclusions that are sufficient to 
     inform the Congress of the nature, extent, and character of 
     the damages referred to in such bill as a legal or equitable 
     claim against the United States or a gratuity, and the 
     amount, if any, legally or equitably due from the United 
     States to the Menominee Indian Tribe of Wisconsin by reason 
     of such damages.''
       The proposed bill if enacted would authorize the payment, 
     ``out of any money in the Treasury of the United States not 
     otherwise appropriated,'' of ``a sum equal to the damages 
     sustained by the Menominee Tribe of Wisconsin by reason of 
     ``(a) the enactment and implementation of the Act of June 17, 
     1954 (68 Stat. 250), as amended, and (b) the mismanagement by 
     the United States of the Menominee assets held in trust by 
     the United States prior to April 30, 1961, the effective date 
     of Termination of Federal supervision of the Menominee Indian 
     Tribe of Wisconsin.''
       The Menominee Tribe filed with this court a complaint 
     alleging injury and damages that arose from the enactment and 
     implementation of the Menominee Termination Act, as well as 
     for various acts of mismanagement by the Bureau of Indian 
     Affairs (BIA) during the period to Termination, 1951-1961. 
     Specific claims alleged were: Count (I) Congressional Breach 
     of Trust (``Basic'' claim); (II) Forest Mismanagement; (III) 
     Mill Mismanagement; (IV) Loss of Tax Exemption; (V) Loss of 
     Hospital; (VI) Highway Rights-of-Way; (VII) Power Lines; 
     (VIII) Public Water and Sewage Systems; (IX) Mismanagement of 
     Tribal Funds (Accounting); (X) Loss of Government Programs; 
     (XI) Imposition of Bond Debt; and (XII) Loss of Tribal 
     Property.
       This case has a long history before this court. Many of the 
     claims at issue in this congressional reference were 
     litigated previously before the U.S. Court of Claims in the 
     case of Menominee Tribe of Indians v. United States, Nos. 
     134-67-A through -I, originally filed in April 1967. The case 
     concerned breach of trust and taking claims related to the 
     Termination of the Menominee Tribe and certain claims for 
     mismanagement of tribal

[[Page S5161]]

     assets during the period prior to Termination (1951-1961). It 
     has been the subject of seven trial court decisions and four 
     decisions before the appellate court. Manominee Tribe v. 
     United States, 607 F.2d 1335 (Ct. CL. 1979) (congressional 
     breach of trust or ``Basic'' claim); Menominee Tribe v. 
     United States, 223 Ct. Cl. 632 (1980) (tax exemption statute 
     of limitations); Menominee Tribe v. United States, 726 F.2d 
     712 (Fed. Cir. 1983) (deed restrictions); Menominee Tribe v. 
     United States, 726 F.2d 718 (Fed. Cir. 1984) (forest 
     mismanagement). All of the dockets were ultimately dismissed 
     in 1984, seventeen years after they were filed, on statute-
     of-limitations and jurisdictional grounds.
       Relying on the substantial record developed in that earlier 
     case as well as on substantial supplemental evidence in the 
     current case, the parties in the present congressional 
     reference filed briefs with the court on the issue of 
     liability as to the first three counts of the Tribe's 
     complaint, as well as on the issue of whether there was good 
     cause for removing the bar of the statute of limitations. In 
     an opinion dated October 30, 1997, this hearing officer held 
     that the claims for Congressional Breach of Trust and forest 
     Mismanagement were not equitable claims for which damages 
     could be recommended; rather, payment of damages for these 
     claims would constitute a gratuity. See Menominee Indian 
     Tribe v. United States, 39 Fed. Cl. 441, 460-62 (1997). This 
     hearing officer held as to the Mill Mismanagement claim that 
     the issues presented were grounded in equity, but reserved to 
     a later time a decision on the merits and damages, if any, as 
     to each of the particular acts of mill mismanagement alleged 
     by the Tribe. See id. at 471. Finally, the hearing officer 
     held that there was good cause to remove the bar of the 
     statute of limitations, which had barred some of the claims 
     in the earlier case. See id. The Tribe has stated in the 
     stipulation filed by the parties its disagreement with the 
     hearing officer's holdings on the merits of Count I and II 
     and its intention, if the case were not settled, to appeal 
     the ruling to the review panel. The United States has 
     reserved the right to challenge the hearing officer's good-
     cause ruling.
       After those decisions were rendered, the parties entered 
     into settlement discussions and on August 11, 1998, the 
     parties filed with the hearing officer for approval a 
     stipulated settlement agreement, attached hereto, asking the 
     hearing officer to report to Congress that it has approved 
     the stipulation and recommends that Congress adopt it.
       The parties have stipulated that the reference overall 
     includes proper equitable claims appropriate for settlement, 
     and though each side contests certain aspects of the case and 
     aspects of the decisions rendered by this hearing officer, 
     the parties have agreed that the case overall is appropriate 
     for compromise and settlement.
       The stipulation of the parties, attached hereto, details 
     the claims and the damage award sought by the Tribe in this 
     reference for the twelve claims. The Tribe claims a total 
     value of $141 million on all of its claims. Although the 
     government does not concur in the Tribe's assessment of the 
     individual claims, it has negotiated terms of a settlement 
     with the Tribe that the parties believe to be fair, just, and 
     equitable. Although the parties did not agree on a settlement 
     value to each claim in the case, the parties have stipulated, 
     in compromise and settlement of the reference overall, that 
     the Menominee Tribe should be compensated in the amount of 
     $32,052,547 in total for its claims as a whole.
       In issuing its opinion in 1997 with respect to the first 
     three counts, this hearing officer read all the findings and 
     conclusions of the prior litigation, as well as the appellate 
     opinions. In addition the hearing officer read all the expert 
     reports, irrespective of whether they were directed solely to 
     issues raised in the first three counts, and reviewed 
     virtually all the remaining documentary and testimonial 
     evidence. Because the settlement agreement encompasses not 
     only the three claims that were the subject of the prior 
     opinion, however, but also the remaining claims that have not 
     yet been heard on the merits in the present case, as well as 
     other claims that could have been alleged in the reference, 
     the hearing officer considered additional documentary 
     evidence and citations to the record as well as other 
     information to satisfy himself that the reference overall 
     includes claims equitable in nature. This evidence includes 
     documentary exhibits and an expert report bearing on the 
     Tribe's claim for mismanagement of funds. The government 
     reviewed this evidence as well and provided to the hearing 
     officer its position as to the claims.
       Upon careful review of the evidence and consideration of 
     the legal issues, and without withdrawing my 1997 opinion, I 
     am satisfied that the reference overall includes substantial 
     equitable claims appropriate for settlement. I have reviewed 
     the evidence in support of the remaining nine counts, as well 
     as the evidence supporting the damages assertions, and 
     believe that there is ample basis in the record to support a 
     settlement on the grounds that these counts embrace equitable 
     claims that could be the subject of an affirmative 
     recommendation by the hearing officer. I also am satisfied 
     that the amount of the settlement proposed is in line with my 
     assessment of a potential recovery, particularly when 
     recognizing that the tribe does not concede the correctness 
     of the 1997 opinion with respect to counts I and II. Further, 
     while recognizing that the United States disagrees, I 
     conclude that, based on my prior good-cause ruling in this 
     matter, there is a proper basis to find that the bar of the 
     statute of limitations, to the extent applicable, should be 
     removed.
       Based on the facts presented in the stipulation, and the 
     evidence that the hearing officer has independently reviewed 
     after consideration of the legal issues, the hearing officer 
     hereby reports that:
       a. The reference overall states equitable claims against 
     the United States as set forth in the bill referred to this 
     court.
       b. The amount agreed by the parties to be equitably due the 
     Menominee Indian Tribe in full settlement of the aforesaid 
     equitable claims, namely $32,052,547, appears fair and 
     reasonable to the hearing officer, and the hearing officer 
     recommends that Congress appropriate this amount to the 
     Tribe.
       c. there is good cause to remove the bar of the statute of 
     limitations to the extent it applies to any of the claims.
       d. The parties have stipulated that they waive the right 
     they would otherwise have under RCFC appendix D, paragraph 
     nine, to a thirty-day period in which to accept or reject 
     this recommendation. They have stipulated to its 
     acceptability. They have also stipulated, in the event that 
     the review panel accepts this recommendation, to waive the 
     right to reconsideration under RCFC appendix D, paragraph 
     eleven.
                                                 Eric G. Bruggink,
     Hearing Officer.
                                  ____


[Congressional Reference to the United States Court of Federal Claims, 
         Congressional Reference No. 93-649X (Judge Bruggink)]

  Menominee Indian Tribe of Wisconsin, plaintiff, v. United States of 
                           America, defendant


              stipulation for recommendation of settlement

       1. On August 6, 1993, the Senate enacted Resolution 137 
     which referred to this court a proposed bill, S. 1335, for 
     the relief of the Menominee Indian Tribe of Wisconsin, and 
     requested the Chief Judge to proceed in accordance with the 
     provisions of 28 U.S.C. Sec. Sec. 1492 and 2509 regarding 
     Congressional References. The Resolution requested that the 
     court ``report back to the Senate . . . providing such 
     findings of fact and conclusions that are sufficient to 
     inform the Congress of the nature, extent, and character of 
     the damages referred to in such bill as a legal or equitable 
     claim against the United States or a gratuity, and the 
     amount, if any, legally or equitably due from the United 
     Stats to the Menominee Indian Tribe of Wisconsin by reason of 
     such damages.''
       2. The proposed bill, S. 1335, sets forth the claims 
     Congress requested the court to consider as follows:
       ``Section 1. The Secretary of the Treasury is authorized 
     and directed to pay to the Menominee Indian Tribe of 
     Wisconsin, out of any money in the Treasury of the United 
     States not otherwise appropriated, a sum equal to the damages 
     sustained by the Menominee Indian Tribe of Wisconsin by 
     reason of--
       ``(a) the enactment and implementation of the Act of June 
     17, 1954 (68 Stat. 250), as amended, and
       ``(b) the mismanagement by the United States of the 
     Menominee assets held in trust by the United States prior to 
     April 30, 1961, the effective date of termination of Federal 
     supervision of the Menominee Indian Tribe of Wisconsin.
       ``Section 2. Payment of the sum referred to in section 1 
     shall be in full satisfaction of any claims that the 
     Menominee Indian Tribe of Wisconsin may have against the 
     United States with respect to the damages referred to in such 
     section.''
       3. Many of the claims at issue in this Congressional 
     Reference were litigated previously before the United States 
     Court of Claims in the case of Menominee Tribe of Indians v. 
     United States, Dkt. Nos. 134-67 A through I, originally filed 
     in 1967. That case concerned breach of trust and taking 
     claims related to the Termination of the Menominee Tribe and 
     certain claims for mismanagement of tribal assets prior to 
     Termination. It was the subject of seven trial court 
     decisions and four decisions before the appellate court. All 
     of the dockets were ultimately dismissed in 1984, seventeen 
     years after they were filed, on statute of limitations and 
     jurisdictional grounds; none were dismissed on the merits. 
     The Congressional Reference asks this court to make a 
     recommendation under the principles applicable in 
     Congressional Reference cases as to whether the claims are 
     legal or equitable or a gratuity.
       4. The Tribe has alleged twelve claims in this 
     Congressional Reference as follows:
       (I) Congressional Breach of Trust.--The Tribe claims that 
     the United States breached its trust duty to the Tribe by 
     enacting and implementing the Termination Act of June 17 
     1954, which terminated federal supervision over the Menominee 
     Tribe. The nature of the alleged wrong was that the Tribe was 
     not prepared for Termination and that, though Congress has 
     the power to terminate a Tribe, it cannot without breaching 
     its trust responsibilities terminate the Tribe prematurely or

[[Page S5162]]

     in a manner that would result in unreasonable harm to the 
     Tribe. The Tribe claims this was the circumstance in 1954 
     when the Termination Act was enacted and later in 1961 when 
     the Termination Act was implemented. It is alleged that after 
     the Termination Act was implemented, the economy on the 
     reservation collapsed, and tribal members suffered from 
     poverty, serious lack of health care and education, 
     disruption of tribal institutions and customary ways of 
     making a living, causing severe economic and psychological 
     hardship, so that the once thriving Menominee reservation 
     became a pocket of poverty and despair. In the Tribe's view, 
     the loss of tribal status left tribal members disenfranchised 
     and shorn of their tribal identity and culture.
       The Tribe's federal trust status was later restored in 
     1973. In enacting the Restoration Act, 25 U.S.C. Sec. 903, 
     members of the enacting Congress repudiated the policy of 
     Termination as applied to the Menominee as a ``mistake'', a 
     ``failure'' and ``an experiment that has had tragic and 
     disheartening results.'' 119 Cong. Rec. 34308 (Oct. 16. 1973) 
     (statements of Rep. Froehlich, Nelson and Kastenmeier). 
     President Nixon also stated that ``This policy of forced 
     Termination is wrong . . .  .'' 6 Pres. Doc. 894 (1970), 
     reprinted in, 116 Cong. Rec. S23258-23262 (July 8, 1970).
       In the original ``Basic'' proceeding the trial court held 
     that the United States had breached its trust duties to the 
     Tribe by terminating it. However,on appeal, the Court of 
     Claims held that the court had no jurisdiction to determine 
     if an act of Congress was a wrong subject to judicial remedy. 
     Menominee Tribe v. United States. 607 F.2d 1335 (Ct. Cl. 
     1979). Following the reasoning of the Court of Claims, the 
     hearing officer in this Congressional Reference has also held 
     that even though ``the decision to end the Government's 
     relationship with the Tribe when it did was a serious mistake 
     of judgment,'' acts of Congress cannot serve as a source of a 
     wrong even as an equitable claim in a Congressional Reference 
     context.
       Whether this conclusion has been, and remains, correct is a 
     subject of contention between the parties. In any event, the 
     Tribe has the right to seek review of this decision by the 
     Review Panel when it becomes final. The Government agrees 
     with the hearing officer's ruling. Despite their differing 
     positions, the parties nevertheless agree the claim is 
     appropriate for inclusion in an overall compromise and 
     settlement of all the Reference claims. The Tribe's valuation 
     of this claim is $60 million.
       (II) Forest Mismanagement.--This is a claim for beach of 
     trust in the mismanagement of the Menominee Tribe's 
     valuable forest between 1951 and 1961, prior to 
     Termination. The claim springs from the alleged failure of 
     the BIA to seek an amendment to the congressionally 
     imposed but (according to the Tribe) outdated statutory 
     cutting limit which seriously impaired the ability of the 
     agency to properly manage the forest. In the original case 
     the trial court found the BIA had breached its trust duty 
     and awarded damages in the amount of $7.2 million. The 
     decision was overturned when the Federal Circuit ruled the 
     claim was barred by the statute of limitations. Menominee 
     Tribe v. United States, 726 F.2d 718 (Fed. Cir. 1984).
       In the Congressional Reference action, this claim was 
     briefed before the hearing officer, who held that the claim 
     could not be an equitable one because the Tribe was actually 
     challenging an act of Congress. As such the claim was 
     dismissed for reasons similar to those set forth under Count 
     I--i.e., an act of Congress may not constitute a wrong, even 
     for an ``equitable'' claim. The Tribe strenuously disagrees 
     with that assessment because it believes the wrongdoer was 
     the BIA for not warning Congress of the damage being done by 
     the outmoded cutting limit. The Tribe has the right to review 
     of this decision by the Review Panel when it becomes final. 
     The Government disagrees with the Tribes's legal and factual 
     basis for this claim. Despite their differing positions, the 
     parties nevertheless agree the claim is appropriate for 
     inclusion in an overall compromise and settlement of all the 
     Reference claims. The Tribe's valuation of the Forest claim 
     is $6.6 million.
       (III) Mill Mismanagement.--This claim is for breach of 
     trust in the mismanagement of the Menominee Mill between 1951 
     and 1961. In the Tribe's view, the Mill and Forest were the 
     heart of the economy on the Reservation. The claim focuses on 
     the BIA's alleged failure to make repairs and to maintain the 
     Mill, as well as update the equipment to make it efficient 
     and safe. The claim is made up of 13 subclaims which deal 
     with specific acts of mill mismanagement. In the original 
     case, the trial court awarded $5.5 million in damages, but 
     the claim was later dismissed by stipulation based on the 
     Federal Circuit's ruling on statute of limitations in the 
     forest mismanagement case.
       In this Congressional Reference, the hearing officer ruled 
     that the claim is an equitable claim but has reserved 
     judgment as to liability and damages on each of the 13 
     subclaims to a later proceeding. The hearing officer also 
     ruled that there is reason to remove the statute of 
     limitations bar. The Government disputes this and has the 
     right to seek review of both rulings. Despite their differing 
     positions, the parties nevertheless agree the claim is 
     appropriate for inclusion in an overall compromise and 
     settlement of all the Reference claims. The Tribe's valuation 
     of this claim is $5.9 million.
       (IV) Tax Exemption Taking.--This claim alleges the taking 
     of the Tribe's tax exemption with the passage of the 
     Termination Act. The Tribe claims that, at the time of 
     Termination, it held a valuable property right in its tax 
     immunity. According to the Tribe, this immunity from taxes 
     was based on (a) the Tribe's political status as a sovereign 
     entity; (b) the related doctrine that a state has no 
     jurisdiction over a tribe; and (c) the Tribe's treaty-
     guaranteed right that its land would ``be held as 
     Indian lands are held,'' and hence implied tax exemption. 
     Treaty of 1854, 10 Stat. 1065, Art. 2. The Tribe alleges 
     that this immunity from taxation is a property right 
     protected by the Fifth Amendment. See Choate v. Trappe, 
     224 U.S. 665 (1912).
       When the Termination Act was passed, it envisioned 
     specifically subjecting the assets and income of the Tribe's 
     successor corporation (Menominee Enterprise, Inc. or MEI) to 
     federal and state taxation. 25 U.S.C. Sec. Sec. 898, 899. 
     While Congress has the power to take away the Tribe's 
     immunity from tax, the Tribe contends that immunity is a 
     valuable property right and that the Tribe is 
     constitutionally entitled to just compensation for its taking 
     (Choate v. Trappe, supra).
       In the original case the taking claim was subject to trial 
     and briefing but was ultimately dismissed on statute of 
     limitations grounds. Menominee Tribe v. United States, 223 
     Ct. Cl. 632 (1980). The Tribe maintains that, as a taking 
     claim, the claim is an equitable one and that there is a 
     substantial argument that the statute of limitations should 
     be removed. The United States does not concur in the Tribe's 
     assessment of this claim. The hearing officer has not heard 
     this claim. The Tribe's valuation of this claim is 
     $12,675,910 including principal and interest.
       (v) Hospital Breach of Trust.--The Tribe claims that the 
     BIA breached its trust duty in managing tribal funds which 
     were negligently spent by the BIA in remodeling the Tribe's 
     hospital. The Tribe alleges that the BIA was required to 
     ensure that any renovations to the hospital be in the best 
     interest of the Tribe. In the Tribe's view, this necessarily 
     included bringing the hospital up to state standards when the 
     BIA knew that the hospital would become subject to state laws 
     upon Termination. The Tribe alleges that the BIA failed in 
     this duty by spending hundreds of thousands of dollars of 
     tribal money on major renovations to the Tribe's hospital, 
     though it knew that the renovations would be inadequate under 
     State codes to allow the hospital to continue operating after 
     Termination. Further, according to the Tribe, the BIA failed 
     to remedy these problems in the months before Termination 
     despite the BIA's actual knowledge that the hospital could 
     not be licensed due to numerous violations of State codes. 
     Allegedly as a result, the hospital was forced to close and 
     the tribal money spent on renovations was wasted.
       The Tribe alleges that such conduct is a clear violation of 
     the BIA's trust duty to manage tribal funds prudently and is 
     a proper basis for an equitable claim. The original court 
     proceeding did not address this claim directly and it was 
     dismissed by stipulation along with the other unadjudicated 
     claims, in the wake of the unfavorable rulings on the Basic 
     and Forest claims in 1979 and 1984. The Tribe contends that 
     the Court of Claims did however recognize, in dicta, this 
     claim as a potential breach of trust claim. 607 F.2d 1335, 
     1346-47. The hearing officer has not heard this claim. The 
     United States does not concur in the Tribe's assessment of 
     the facts or law underlying this claim. Despite their 
     differing positions, the parties nevertheless agree the claim 
     is appropriate for inclusion in an overall compromise and 
     settlement of all the Reference claims. The Tribe's valuation 
     of this claim is $3,952,307 including principal and lost 
     interest.
       (VI) Road Right-of-Way Taking.--Under the Treaty of 1854, 
     the United States held, in trust for the Menominee Tribe, fee 
     title to all land within the Menominee Reservation. The State 
     of Wisconsin built two highways and smaller roads throughout 
     the reservation in the early 1920's. As the 1961 Termination 
     date approached, the State requested and the BIA agreed that 
     the roads on the reservation be brought up to State standards 
     and transferred to the State, and to the future Menominee 
     Town and County. On April 26, 1961, the United States 
     transferred by quitclaim deed for $1.00, a right-of-way over 
     the existing road system on the Reservation as well as 
     additional acreage for the widening of the roads as requested 
     by the State. The Secretary allegedly obtained no 
     compensation for the transfer of the easement or the timber 
     located on the additional right-of-way, nor did the Secretary 
     reserve to the Tribe the right to log that timber.
       The Tribe claims that this transfer was a taking under the 
     Fifth Amendment. In the original claim, the trial judge found 
     the transfers were a taking but reserved damages to a later 
     date. The claim was subsequently dismissed by stipulation. As 
     a taking claim, the Tribe maintains that the claim 
     constitutes an equitable claim within the context of the 
     Congressional Reference. The United States does not concur in 
     the Tribe's assessment of this claim. Despite their different 
     positions, the parties nevertheless agree the claim is 
     appropriate for inclusion in an overall compromise and 
     settlement of all the Reference claims. The hearing officer 
     has not heard this claim. The Tribe's valuation of this claim 
     is $1,664,996 including principal and interest.
       (VII) Power Contract and Right-of-Way Breach of Trust.--
     This claim is properly considered included as one of the 
     subclaims in the Mill Mismanagement (count III) count

[[Page S5163]]

     and damages are included in that total figure.
       (VIII) Water and Sewer Breach of Trust.--This is a claim 
     that BIA failed to ensure that adequate water and sewer 
     facilities were in place on the Reservation between the 
     period 1951 and 1961. In the original claim, the trial judge 
     found the BIA had breached its fiduciary duty to maintain 
     properly and to upgrade these facilities but reserved damages 
     to a later time. The government disagrees with that ruling. 
     Despite their differing positions, the parties nevertheless 
     agree the claim is appropriate for inclusion in an overall 
     compromise and settlement of all the Reference claims. The 
     hearing officer has not yet heard this claim. The Tribe 
     examined the claim in the context of the current case and 
     decided to drop the claim.
       (IX) Mismanagement of Funds Breach of Trust.--This is a 
     breach of trust claim for the improper expenditure of tribal 
     trust funds by the BIA between 1951 and 1961 and the loss of 
     interest on the money removed from the trust funds. The Tribe 
     claims there were four types of improper expenditure, and 
     asserts the following arguments in support of its position:
       (1) The BIA used tribal funds to pay for the BIA's own 
     agency administrative expenses. Since administrative expenses 
     are considered to be for the benefit of and therefore the 
     responsibility of the Government, use of tribal funds for 
     these expenses was a breach of the Secretary's trust duty 
     to manage the Tribe's funds as a trustee would. Sioux 
     Tribe v.  United States, 105 Ct.Cl. 725 (1946). Moreover, 
     by expending these funds, the Tribe lost interest it would 
     otherwise have earned.
       (2) Tribal funds were also used to pay for law and order 
     expenses on the reservation. These expenses are also the 
     responsibility of the Government and not the tribe, and are 
     also not allowed. Blackfeet Tribe v.  United States, 32 Ind. 
     Cl. Comm. 65 (1973); Red Lake Band v.  United States, 17 
     Ct.Cl. 362 (1989).
       (3) Tribal funds were used for the expenses of the tribal 
     council in administering Termination. Since Termination was 
     for the benefit of the Government, the Government should have 
     borne the expense based on the same principles stated in (1) 
     and (2) above;
       (4) Tribal funds were used to pay for tribal health, 
     education, and welfare expenses while the Government 
     routinely paid for these services for other tribes with 
     Government funds. The Tribe alleges that it was a breach of 
     trust to spend the Tribe's money on such expenses 
     particularly when the Tribe's funds were depleted far below 
     the amount necessary for the Tribe to operate its mill and 
     forest profitably before Termination, and to have the 
     necessary capital on hand to make repairs and rehabilitation 
     after Termination.
       The total amount of funds the Tribe alleges were 
     imprudently spent in these four claims is $2,553,180. Had 
     those funds remained in the Tribe's trust fund, and had the 
     Secretary invested those funds as required by 15 U.S.C. 162a, 
     the Tribe alleges that it would have received additional 
     interest. In the Tribe's view, the lost interest is a valid 
     claim. Cheyenne-Arapahoe Tribes v.  United States, 206 Ct.Cl. 
     340 (1975). The Tribe's valuation of lost interest to date is 
     $27,388,973. Its total valuation on the accounting claim is 
     therefore $29,942,153. The Tribe maintains that the claim for 
     improper expenditures would be an equitable claim within the 
     context of a reference. The government disagrees with the 
     Tribe's assessment of this claim. Despite their differing 
     positions, the parties nevertheless agree the claim is 
     appropriate for inclusion in an overall compromise and 
     settlement of all the Reference claims. The hearing officer 
     has not heard this claim.
       (X) Loss of Government Programs.--The Tribe considers that 
     the damages of this claim are properly included within the 
     damages of Count I. No separate claim is stated herein.
       (XI) Imposition of Bond Debt.--As part of the Termination 
     Plan approved by the Secretary of the Interior, each tribal 
     member received an income bond at $3,000 face value bearing 
     four percent interest. The Tribe argues that, while normally 
     bonds are issued in return for financial capital, in MEI's 
     case a debt was incurred but it received no corresponding 
     funds or assets. Furthermore, the Tribe argues that there was 
     no practical way for MEI to avoid paying the interest on the 
     bonds even when it did not have the funds to do so. The Tribe 
     argues that, although tribal revenues had been sufficient to 
     make stumpage payments to tribal members before Termination, 
     the Secretary knew that MEI would become subject to a massive 
     tax burden, as well as other new expenses after Termination, 
     and that the Secretary also knew, or should have known, that 
     the imposition of such a massive debt burden in addition to 
     these other expenses would undermine the viability of MEI and 
     cause great hardship to the Menominee.
       The Tribe argues that the Secretary was required to ensure 
     that the provisions of the Termination Plan which he approved 
     were in the best interest of the Tribe and its members. See 
     Cheyenne Arapaho Tribes v. United States, 512 F.2d 1390, 
     1396 (1975) (BIA required to make ``an independent 
     judgment that the tribe's request was in its own best 
     interest''); Oglala Sioux Tribe v. United States, 21 Cl. 
     Ct. 176, 193 (Cl. Ct. 1990) (BIA not permitted to place 
     responsibility for poor decisions on Tribe, since tribal 
     decisions subject to final BIA approval).
       For these reasons, the Tribe argues, the Secretary breached 
     his duty to the Menominee Tribe by approving the bond 
     provisions of the Termination Plan. If the Secretary breached 
     his trust duty to the Tribe as alleged, it would, in the 
     Tribe's view, be the proper basis for a equitable claim. The 
     hearing officer has not heard this claim. The United States 
     disputes the legal and factual bases for this claim. Despite 
     their differing positions, the parties nevertheless agree the 
     claim is appropriate for inclusion in an overall compromise 
     and settlement of all the Reference claims. The Tribe's 
     valuation of this claim is $20,574,000.
       (XII) Taking of Tribal Property.--Upon Termination, the 
     tribal office building was transferred to Menominee County by 
     the Secretary of the Interior. The Tribe alleges that The 
     Termination Act, which required the Secretary to approve and 
     put into effect a plan for the management of tribal assets 
     after Termination, contemplated that such transfers of 
     property from control of the Tribe to other entities would 
     take place. The Secretary issued a deed transferring title to 
     the tribal office building to the County. Despite restoration 
     of the Tribe to federal status in 1973, this property was 
     never returned to the Tribe. Further, according to the Tribe, 
     at no time has the Tribe received any compensation for this 
     property taken by the United States, despite the fact that 
     recognized tribal title, including land and buildings, is 
     protected by the Fifth Amendment, and cannot be taken by the 
     Government without just compensation. The United States does 
     not concur in the Tribe's assessment of this claim. Despite 
     their differing positions, the parties nevertheless agree the 
     claim is appropriate for inclusion in an overall compromise 
     and settlement of all the Reference claims.
       This claim, then an undefined part of the accounting claim, 
     was not heard in the original case and it has not been heard 
     by the hearing officer in this Congressional Reference. The 
     Tribe's valuation of this claim is $87,688 including 
     principal and interest.
       In summary, the Tribe values its 12 claims at $141 million. 
     The United States does not concur in the Tribe's assessment 
     of the claims. However, as mentioned above, both parties 
     agree that the Reference overall is appropriate for 
     settlement.
       5. There has been a full and extensive development of the 
     record in the prior adjudication before the Court of Claims 
     as to many of these claims. Further extensive development of 
     the facts occurred before the hearing officer in the present 
     proceeding including the filing of supplemental evidence in 
     the record of additional plaintiff expert reports, 
     affidavits, and depositions. The parties agree that, after 
     over thirty years of dispute, including seventeen years of 
     litigation in the first case and some thirteen more years of 
     seeking and litigating this Congressional Reference, there 
     has been a sufficient development of all of the claims to 
     support a compromise and settlement. Further, while the 
     parties are each confident in their positions, they each 
     recognize that the outcome with respect to each claim, if 
     fully litigated, is not certain.
       6. The hearing officer issued a detailed opinion on the 
     first three claims as well as on the issue of whether the 
     statute of limitations should be removed. This opinion 
     prompted the parties to enter into extensive settlement 
     negotiations.
       7. The stipulations herein are based upon an exhaustive 
     review of the evidence by the parties and these stipulations 
     are justified and supported by competent evidence.
       Now therefore the parties stipulate and agree,
       (a) That the Congress directed the Court through this 
     Reference to determine whether the Menominee Tribe has legal 
     or equitable claims against the United States as a result of 
     ``(a) the enactment and implementation by the United States 
     of the Menominee assets held in trust by the United States 
     prior to April 30, 1961 . . .'';
       (b) That this Reference overall is a proper one for 
     compromise and settlement, given the extensive development of 
     the legal and factual record that has already occurred in 
     this and prior litigation between the parties, and given the 
     parties' careful consideration and negotiation of the legal 
     and factual issues in this matter;
       (c) That, recognizing that the parties reserve their 
     positions on these matters, the legal and factual record 
     developed with respect to the Menominee in this and prior 
     litigation establishes a basis for equitable claims against 
     the United States within the scope of this Reference, 
     including a potential basis for removal of the bar of the 
     statute of limitations;
       (d) That it would be fair, just, and equitable, under the 
     terms of the Reference, to pay the Menominee Tribe of 
     Wisconsin the sum of $32,052,547 as a final settlement of all 
     claims that the Tribe has stated in this action, and that 
     that amount is supported by the record in this and prior 
     litigation;
       (e) That, as demonstrated by the record in this and prior 
     litigation, and as acknowledged by President Richard Nixon 
     and members of Congress, the policy of forced termination as 
     applied to the Menominee Tribe, was ``wrong'';
       (f) That the hearing officer in this matter, the Review 
     Panel, and the Chief Judge should approve this Stipulation 
     and recommend to Congress the above-stated sum as the 
     appropriate amount to be paid to the Menominee Tribe;
       (g) That the compromise and settlement of these claims 
     include any and all claims which were, or could have been, 
     alleged--either directly or indirectly--pursuant to S.

[[Page S5164]]

     1355, including, but not limited to, claims for attorney's 
     fees and other expenses;
       (h) That any and all claims encompassed by S. 1335 will, 
     consistent with Paragraph (i), below, be fully and finally 
     resolved upon a recommendation of payment of $32,052,547 as 
     consistent with the overall merit of the claims;
       (i) That, upon the tendering of a recommendation by the 
     hearing officer in approving the compromise and settlement of 
     any and all claims encompassed by S. 1335 for the amount 
     agreed to by the parties, and the transmission to Congress by 
     the Chief Judge of the Court's Report to the same effect, the 
     Reference under S. 1335 to the Court of Federal Claims shall 
     be fully and finally resolved; and
       (j) That this compromise and settlement derives from the 
     unique circumstances of the Menominee Tribe with respect to 
     the Act of June 17, 1954, and the Tribe's continuous effort 
     since 1967 to obtain relief, and that this compromise and 
     settlement shall not be cited for, and does not constitute, 
     precedent in any fashion with respect to any other dispute.
       (k) That, if this stipulation is accepted by the hearing 
     officer, the parties waive their right under RCFC Appendix D 
     para. 9 to file within 30 days a notice of acceptance or 
     exception to the hearing officer's report. They herewith 
     accept such a report.
       (l) That, if the hearing officer accepts this stipulation 
     and so reports to the review panel, and if the review panel 
     adopts the report of the hearing officer, the parties waive 
     the right under Appendix D para. 11 to seek rehearing within 
     ten days, and instead request that the matter be promptly 
     filed with the Clerk for transmission by the Chief Judge to 
     Congress.
       Stipulated and signed this 11th day of August, 1998.
     Charles A. Hobbs,
       Attorney for the plaintiff.
     James Brookshire,
       Attorney for the United States.
                                  ____

                                                      U.S. Senate,


                                  Committee on Indian Affairs,

                                   Washington, DC, April 22, 1999.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, Committee on Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Hatch and Senator Leahy: This letter concerns 
     a Congressional reference made by the United States Senate 
     during the 103rd Congress concerning the Menominee Tribe of 
     Wisconsin. Through Senate Resolution 137, the Senate directed 
     the United States Court of Federal Claims to hear a series of 
     claims of the Menominee Tribe and, based on its findings, 
     make recommendations to Congress.
       Senator Kohl has indicated that he will soon introduce 
     legislation based upon the findings, recommendations, and 
     conclusions reached by the Court of Federal Claims on August 
     11, 1998. I understand that the proposed legislation would 
     authorize the settlement of all of the claims referred by 
     Congress in return for a payment of approximately $32 
     million. This settlement amount is based on an agreement 
     reached between the Menominee Indian Tribe of Wisconsin and 
     the United States Department of Justice.
       On August 12, 1998, the U.S. Court of Federal Claims 
     reported to the Senate that it ``recommends that Congress 
     adopted legislation paying to the Menominee Tribe of 
     Wisconsin $32,052,547 in settlement of the claims embraced in 
     this congressional reference.'' It is significant that the 
     hearing officer independently concluded that the settlement 
     was ``fair and reasonable'' and that the Court's Review Panel 
     concluded that ``the stipulated agreement between the parties 
     is a just and equitable resolution of the lengthy dispute 
     that it resolves.
       Accepting the recommendations of the Court of Claims 
     provides a means for brining closure to this painful chapter 
     in our Nation's treatment of the Menominee Tribe. The 
     legislative and judicial path to restitution has been a long 
     road for this Tribe. This journey can and should be brought 
     to an appropriate conclusion during the 106th Congress.
       After reviewing this matter, it is clear that the 
     settlement proposal is consistent with past practices and 
     precedents.
           Sincerely,
                                          Ben Nighthorse Campbell.
                                 ______