[Congressional Record Volume 148, Number 72 (Wednesday, June 5, 2002)]
[Extensions of Remarks]
[Pages E957-E959]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 THE SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION GRAND COULEE 
               DAM EQUITABLE COMPENSATION SETTLEMENT ACT

                                 ______
                                 

                     HON. GEORGE R. NETHERCUTT, JR.

                             of washington

                    in the house of representatives

                         Tuesday, June 4, 2002

  Mr. NETHERCUTT. Mr. Speaker, I am honored today to introduce 
legislation that will provide an equitable settlement of the 
meritorious claims of the Spokane Tribe of Indians concerning its 
contribution to the production of hydropower by the Grand Coulee Dam.
  Similar settlement legislation was enacted in 1994 to compensate the 
neighboring Confederated Colville Tribes as a consequence of the Grand 
Coulee Dam. That legislation, P.L. 103-436, provided for a $53 million 
lump sum payment for past damages and roughly $15 million annually from 
the ongoing proceeds from the sale of hydropower by the Bonneville 
Power Administration. The Spokane settlement legislation, which I am 
introducing today, would provide a settlement of the Spokane Tribe of 
Indians claims directly proportional to the settlement afforded the 
Colville Tribes based upon the percentage of lands appropriated from 
the respective tribes for the Grand Coulee Project, or approximately 
39.4 percent of the past and future compensation awarded the Colville 
Tribes pursuant to the 1994 legislation. Though the proposed Spokane 
settlement is proportionately less, the losses sustained by the Spokane 
Tribe are substantially the same as those sustained by the Colville 
Tribes and arise from the same actions of the United States Government. 
The difference being that the Spokane Tribe lost its entire salmon 
fishery, the base of its economy.
  Grand Coulee Dam is the largest concrete dam in the world, the 
largest electricity producer in the United States, and the third 
largest electricity producer in the world. It produces four times more 
electricity than Hoover Dam on the Colorado River and is three times 
its size. Grand Coulee is one mile in width; its spillway is twice the 
height of Niagara Falls. It provides electricity and water to one of 
the world's largest irrigation projects, the one million acre Columbia 
Basin Project. The Grand Coulee Project is the backbone of the 
Northwest's federal power grid and agricultural economy.
  For more than half a century, the Grand Coulee Project has produced 
enormous revenues for the United States Government and brought 
prosperity to the Pacific Northwest. The construction of the dam and 
the electricity it produced, helped pull the Northwest out of the Great 
Depression. It provided electricity to the aluminum plants that built 
the air force that helped to defeat Germany and Japan in World War II.
  To the Spokane Tribe of Indians, however, the dam is a monument to 
the destruction of their way of life. The Dam flooded their reservation 
on two sides. The Spokane River--the ancestral umbilical cord to 
Spokane existence and the heart of their reservation--was changed from 
a free flowing waterway that supported plentiful salmon runs, to barren 
slack water that now erodes away the southern lands of the Reservation 
with every change in the reservoir level. The enormous benefits that 
accrued to the Nation and the Northwest were made possible by 
uncompensated and irreparable injury to the Native Americans of the 
Columbia and Spokane Rivers.
  From 1927 to 1931, at the direction of Congress, the U.S. Army Corps 
of Engineers investigated the Columbia River and its tributaries. In 
its report to Congress, the Corps identified a number of potential 
sites and recommended the Grand Coulee site for hydroelectric 
development by either the State of Washington or private concerns. 
Shortly thereafter, the Columbia River Commission, an agency of the 
State of Washington applied for and, in August 1933, was granted a 
preliminary permit from the Federal Power Commission for the water 
power development of the Grand Coulee site. However, on November 1, 
1933, Harold Ickes, Secretary of the Interior and Director of Public 
Works Administration, federalized the project under the National 
Industrial Recovery Act of 1933. Excavation for the dam commenced on 
December 13, 1933. However, its legal authorization was in question and 
Congress reauthorized the Dam in the Rivers and Harbors Act of 1935. In 
1940, very belatedly and inadequately (at the urging of the Department 
of the Interior), Congress did enact a statute to authorize the 
Secretary of the Interior to designate whichever Indian lands he deemed 
necessary for Grand Coulee construction and to receive all rights, 
title and interest the Indians had in them in return for his appraisal 
of its value and payment of compensation by the Secretary. The only 
land that was appraised and supposedly compensated for was the newly 
flooded lands. Pursuant to this legislation, 54 Stat. 703 (1940), the 
Spokane Tribe received the grand total of $4,700. There is no evidence 
that the Department advised or that Congress knew that the Tribes' 
water rights were not extinguished. Nor had the Indian title and trust 
status of the Tribal land underlying the river beds been extinguished. 
No compensation was included for the power value contributed by the use 
of the Tribal resources nor the loss of the Tribal fisheries or other 
damages to tribal resources.
  Although the Department of the Interior and other federal officials 
were well aware of the flooding of Indian trust lands and other severe 
impacts the Grand Coulee Project would have on the fishery and other 
critical resources of the Spokane and Colville Tribes, no mention was 
made of these impacts or the need to compensate the Tribes in either 
the 1933 or 1935 authorizations. Federal inter-departmental and intra-
office correspondence of the Department of the Interior from September 
1933 thru October 1934 clearly demonstrate that the Federal government 
knew that the Colville and Spokane Tribes should be compensated for the 
flooding of their lands, destruction of their fishery and other 
resources, destruction of their property and annual compensation from 
power production for the use of the Tribes' land and water resources 
contributing to such power production. As pointed out in a 1976 Opinion 
of Lawrence Aschenbrenner, the Acting Associate Solicitor, Division of 
Indian Affairs, Department of the Interior:

       The 1940 act followed seven years of construction during 
     which farm lands, and timber lands were flooded, and a 
     fishery destroyed, and during which Congress was silent as to 
     the Indian interests affected by

[[Page E958]]

     the construction. Both the Congress and the Department of the 
     Interior appeared to proceed with the Grand Coulee project as 
     if there were no Indians involved there.

                         .    .    .    .    .

       The Department correspondence and memoranda on the subject 
     of Indian rights apparently came to an abrupt halt [after 
     1934]. There is no tangible evidence, currently available, to 
     indicate that the Department ever consulted with the tribes 
     during the 1933-1940 period concerning the ongoing 
     destruction of their land and resources and proposed 
     compensation therefore.''

  The Opinion goes on to point out:

       It is our conclusion that the location of the dams on 
     tribal land and the use of the water for power production, 
     without compensation, violated the Government's fiduciary 
     duty toward the Tribes.

                         .    .    .    .    .

       The situation at hand involves a conflict-of-interest on 
     the part of the Department of the Interior. . . . The 
     Department of the Interior has responsibility for protecting 
     the Tribes' Winters Rights [water rights] as well as its 
     property rights in the bed of the river. Recognizing the 
     value of the river as a power production and irrigation site, 
     the Department of the Interior . . . has used this land and 
     the water for its own purposes, without ensuring that 
     consideration and benefit from the development of those 
     resources flowed to the Tribes who own part of them. The case 
     fits squarely into the reasoning of Manchester Band, Navajo 
     Tribe and Pyramid Lake cases, where ``. . . a fiduciary who 
     learns of an opportunity, prevents the beneficiary from 
     getting it, and seizes it for himself.'' (Citations omitted)

                         .    .    .    .    .

       Throughout the construction, the Department's apparent 
     failure to communicate with the Tribes concerning their land 
     and water rights is appalling. No case law grants executive 
     agencies authority to unilaterally abrogate Indian rights. 
     [T]he posture of the Department can be described not as . . . 
     an exercise of guardianship, but an act of confiscation.'' 
     (Citations omitted).

  Why did the 1994 Colville settlement legislation not also include a 
settlement of the claims of the Spokane Tribe of Indians? The Colville 
settlement legislation ratified a settlement agreement reached between 
the United States and the Colville Tribes to settle the claims of the 
Tribes to a share of the hydropower revenues from the Grand Coulee Dam. 
This claim was among the claims which the Colville Tribes filed with 
the Indian Claims Commission (ICC) under the Act of August 13, 1946 (60 
Stat. 1049) and later transferred to the U.S. Court of Claims. Pursuant 
to that Act, there was a five year statute of limitations to file 
claims before the Commission which expired August 13, 1951. Prior to 
the statute of limitations deadline, the Colville Tribes had already 
been formally organized with a functioning tribal government for more 
than 15 years. The Spokane Tribe, however, did not formally organize 
and receive approval of its constitution until June 27, 1951--only 16 
days prior to the ICC statute of limitations deadline. The Tribe's 
attempt to retain legal counsel to file its claims before the ICC was 
delayed due to the then Commissioner of Indian Affairs, Dillion Meyer's 
efforts to impose restrictive conditions on attorney contracts with the 
tribes nationwide. While these conditions were subsequently repudiated 
by the Secretary of the Interior, significant and precious time had 
elapsed and the Tribe's legal counsel was left with insufficient time 
to fully investigate the full range of potential claims of the Tribe 
prior to the filing deadline. Additionally, the ICC Act imposed a duty 
on the Bureau of Indian Affairs to apprise the various tribes of the 
provisions of the Act and the need to file claims before the 
Commission. While the BIA was well aware of the potential claims of the 
Spokane Tribe to a portion of the hydropower revenues generated by 
Grand Coulee, there is no evidence that the BIA ever advised the Tribe 
of such claims. As stated in the testimony of the Assistant Secretary 
for Indian Affairs, concerning the 1994 Colville Settlement 
legislation: ``Over the next several years the Federal Government moved 
ahead with the construction of the Grand Coulee Dam, but somehow the 
promise that the Tribe would share in the benefits produced by it was 
not fulfilled.''
  In 1974 the Solicitor of the Department of the Interior issued an 
Opinion which concluded, among other things, that the Spokane and 
Colville Tribes each retained ownership of the lands underlying the 
Columbia River and, in the case of the Spokane Tribe, the lands 
underlying the Spokane River. The Opinion suggested that the resource 
interests of the Tribes were being utilized in the production of 
hydroelectric power at Grand Coulee.
  In 1976, in response to this Opinion, the Senate Appropriations 
Committee directed the Secretary of the Interior and the Secretary of 
the Army to ``open discussions with the Tribes to determine what, if 
any, interest the Tribes have in such production of power, and to 
explore ways in which the Tribes might benefit from any interest so 
determined.'' (S. Rept. 94-505 at 79). A technical team was 
subsequently composed of representatives of various federal agencies, 
BPA and the Tribes. On May 7, 1979, the Solicitor for the Department of 
the Interior forwarded to OMB a lengthy memorandum proposing 
legislative resolution of the claims of both the Colville Tribes and 
Spokane Tribe. However, no further action occurred.
  When the Colville settlement legislation was moving forward in 1994, 
the Spokane Tribe pressed for an amendment to waive the statute of 
limitations and allow the Spokane Tribe to seek just and equitable 
compensation resulting from the construction of the Grand Coulee Dam. 
Fearful that the Spokane Tribe's efforts might delay and jeopardize 
final enactment of the Colville settlement legislation, the Colville 
Tribes and others requested that the Spokane Tribe defer its efforts to 
seek settlement of its claims. The Spokane Tribe honored that request. 
During the joint House and Senate hearings on the Colville legislation, 
the Assistant Secretary for Indian Affairs did commit in her testimony 
that she would study the merits of the Spokane claim. The day after the 
hearings, the Solicitor of the Department committed the Department to 
examine, independent of the Colville Bill, the Spokane Tribe's claims. 
The House Resources Committee Report accompanying the Colville 
legislation stated that the Spokane claim was ``identical in many 
respects'' to the harm suffered by the Colville Tribes. The Committee 
noted ``that the Spokane Tribe has a moral claim and requests that the 
Department of the Interior and the Department of Justice work with the 
Spokane Tribe to develop a means to address the Spokane's claim.'' In 
the Senate, Senators Inouye, Bradley, Murray, McCain and Hatfield 
joined in a colloquy expressing their concern that the claims of the 
Spokane Tribe should be addressed and urged the Administrative agencies 
to work with the Spokane Tribe to resolve the Tribe's claims.
  Following a subsequent commitment from Associate Attorney General, 
John R. Schmidt, that the Department and other federal agencies would 
undertake an ``earnest'' and ``fair evaluation'' of the Tribe's claims, 
the Tribe committed a great deal of time, resources and funding to 
fully research and document its claims. By late 1995, the Tribe was 
prepared to formally request that the Interior and Justice Departments 
establish a federal ``negotiating team''. In a meeting with Interior 
Department officials in December 1995, Tribal representatives were 
astounded when they were advised that the Tribe should return to 
Congress and renew the Tribe's request for a waiver of the statute of 
limitations.
  On July 9, 1996, Senators Murray, McCain, Inouye, Bradley and I sent 
a letter to Secretary Bruce Babbitt stating the federal/tribal 
negotiations urged by Congress in 1994 were not predicated on the 
Tribe's first obtaining a waiver of the statute of limitations; that 
the requirement for such an undertaking was ``totally contrary to the 
understanding of the Tribe and to the direction of Congress''; and 
urged that the Interior Department ``proceed as soon as possible to 
negotiate with the Tribe on its power value and fishing claims as 
previously directed by Congress.'' Unfortunately, viable and equitable 
settlement negotiations have not materialized.
  Enactment of settlement legislation addressing the meritorious claims 
of a Tribe, claims otherwise barred by a statute of limitations, is 
neither new or precedent setting. There is ample precedent for 
Congressional recognition of the moral claims of Indian tribes and 
provision of appropriate compensation. Several tribes within the 
Missouri River Basin suffered very significant damage because of 
inundation of reservation bottom lands through construction of the 
Pick-Sloan Project dams. In recognition of these damages, Congress has 
provided substantial compensation to the Affiliated Tribes of the Fort 
Berthold Reservation and the Standing Rock Sioux Tribe (P.L. 102-575), 
the Crow Creek Sioux Tribe (P.L. 104-233), and the Lower Brule Sioux 
Tribe (P.L. 105-132). Compensatory legislation for the Cheyenne River 
Sioux Tribe (S. 964) and the Santee Sioux and Yankton Sioux Tribes (S. 
1148) are currently pending before this Congress and are expected to 
move through the Senate Committee on Indian Affairs shortly.
  The Federal Government, by its own admission, had a conflict of 
interest and blatantly breached its fiduciary trust responsibility to 
the Spokane Tribe. Having breached that trust by converting the Tribe's 
resources to its own benefit, it also failed to advise the Tribe in a 
timely manner of its potential claims and frustrated and critically 
delayed the Tribe's attempt to secure independent legal counsel to 
research and file such claims. Now, it seeks to avoid fair and 
honorable negotiations with the Tribe it betrayed because the Tribe 
failed to timely file its claims before the expiration of the statute 
of limitations. As quoted by the Assistant Secretary for Indian Affairs 
in her testimony on the Colville settlement legislation:

       . . . I am reminded of the words of Justice Black . . . in 
     litigation about another dam flooding the lands of another 
     tribe's territory: ``Great nations, like great men, should 
     keep their word.'' When the Congress enacts

[[Page E959]]

     and the President signs this legislation, we can all be proud 
     that we are, at last, acting as a great nation should.

  I urge my colleagues to keep the word of our Nation and act 
expeditiously and favorably on this legislation as it proceeds through 
the Congress.

                          ____________________