[Congressional Record (Bound Edition), Volume 149 (2003), Part 7]
[Extensions of Remarks]
[Pages 9736-9738]
[From the U.S. Government Publishing Office, www.gpo.gov]




      INTRODUCTION OF THE SPOKANE TRIBE OF INDIANS SETTLEMENT ACT

                                 ______
                                 

                     HON. GEORGE R. NETHERCUTT, JR.

                             of washington

                    in the house of representatives

                        Thursday, April 10, 2003

  Mr. NETHERCUTT. Mr. Speaker, I am honored today to introduce 
legislation with my colleague from Washington [Mr. Dicks] 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

[[Page 9737]]

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. As 
pointed out in 1980 in the Final Report of a Federal interdepartmental 
Colville/Spokane Task Force: In spite of the fact that the Act 
authorized the project for the purposes, among others, of reclamation 
of public lands and Indian reservations. . . . no hydroelectric or 
reclamation benefits flow to the Indians. The irrigation benefits of 
the project all flowed south of the Reservation. 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 through 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 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 Right [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).

  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. Why did the 1994 Colville settlement legislation not also 
include a settlement of the claims of the Spokane Tribe of Indians?
  Although the Indian Claims Commission statute of limitations expired 
August 1951 neither the Colville Confederated Tribes nor the Spokane 
Tribe knew then or for many years thereafter that there would be a need 
to even file claims related to the use of their tribal land and water 
resources for the construction and operation of the Grand Coulee Dam 
for power production and reclamation. After all, beginning in the 1930s 
through the 1970s, the historical and legal record is replete with high 
level agency correspondence, Solicitor Opinions, inter-agency 
proposals/memoranda, Congressional findings and directives and on-going 
negotiations with the affected Tribes to come to agreements upon the 
share of revenue generated by Grand Coulee which should go to the 
Tribes for their use of their respective resources. The Tribes had 
every reason to believe that their Trustee, the United States, was, 
although belatedly, going to act in good faith to provide fair and 
honorable compensation to the Tribes for the United States' 
proportionate use of their Tribal resources for revenue generated by 
the Grand Coulee Dam.
  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 1975, in response to this Opinion, the Senate Appropriations 
Committee directed the Secretary of the Interior and the Secretary of 
the Army and the Bonneville Power Administration 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 
Colville/Spokane Task Force was subsequently composed of 
representatives of various federal agencies, BPA and the Tribes.
  By this time, it was becoming apparent to the Tribes that the U.S. 
was beginning to consider possible legal defenses such as navigational 
servitude and the 1951 Indian Claims Commission statute of limitations 
to severely limit and/or entirely eliminate any obligation by the 
federal government as fiduciary to compensate the Tribes for the 
conversion of Tribal resources by the U.S.
  In response to the newly expressed suggestion of the U.S. to attempt 
to severely limit or entirely eliminate any obligations to provide 
compensation for its breach of its trust responsibility and conversion 
of Tribal resources, the Colville Confederate Tribes filed a petition 
with the Indian Claims Commission on August 5, 1976 to amend its 
original claim petition (filed on July 31, 1951), which was then still 
pending and to include a claim for ``compensation and damages arising 
out of the taking and use of its lands, including the resources . . . 
in connection with the construction . . . operation by defendant 
[United States of America] of the Grand Coulee Dam, including the 
reservoir area created by the Dam.'' The U.S. then, for the first time, 
argued that the Colville Tribes' attempt to amend their 1951 petition 
in 1976 should be denied because it was barred by the 1951 statute of 
limitations of the Indian Claims Commission Act.

[[Page 9738]]

  On November 18, 1976, the Indian Claims Commission held that the 
original land claim filed in 1951 . . . was broad enough to support a 
claim for damages arising from the construction and operation of the 
Grand Coulee Dam. Therefore [the Colville Tribes'] amended claim 
relates back and is not barred by the statute of limitations.'' 39 Ind. 
Cl. Comm. 159. As a consequence, the Colville Tribes, in 1976, were 
able to effectively respond to the U.S.' belated strategy to raise the 
1951 statute of limitations.
  The Spokane Tribe, however, was not similarly situated. While the 
Spokane Tribe, like the Colville Tribes, had timely filed its land 
claims before the Indian Claims Commission in 1951, the Spokane Tribe 
had already entered into a settlement agreement concerning its original 
claims on February 21, 1967, approximately nine years prior to any 
indication that the U.S. might suggest or attempt to limit or eliminate 
its obligations to the Tribes regarding Grand Coulee Dam. As a 
consequence, the Spokane Tribe did not have a pending Indian Claims 
Commission claim to amend in 1976 as did the Colville Tribes. As 
evidenced by the U.S.' attempt in 1976 to defeat the Colvilles' motion 
to amend their petition, the U.S. apparently hoped to prevent both the 
Colvilles and the Spokane from bringing Grand Coulee Claims.
  While neither the Colville Confederate Tribes nor the Spokane Tribe 
knew in 1951 or in 1967 that they needed to file claims for damages and 
compensation for the construction and operation of Grand Coulee, it was 
mere happenstance that the Colville Tribes still had an Indian Claims 
Commission case pending and capable of being amended in the mid-1970's 
and the Spokane Tribe did not.
  Up until the mid-1970's, neither the Colville Tribes nor the Spokane 
Tribe had any reason to distrust that the U.S. would not attempt to 
negotiate a fair and honorable compensation settlement given the past 
Federal agency pronouncements, legal opinions, on-going negotiations 
and Congressional directives.
  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 Commission 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 led the Tribe to believe it would 
receive fair and honorable compensation. The United States then changed 
its position and belatedly asserted new legal defenses against 
compensation for the Tribe. Now, the U.S. 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 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.

                          ____________________