COL~LLET~B~RAND 

COULEE SETTLEMENT 

HEARING 

BEFORE THE 

SUBCOMMITTEE ON 

OVERSIGHT Al~D I~"VESTIGATIONS 

OF THE 

COMMITTEE ON NATURAL RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

SECOND SESSION 

ON 

H.R. 4757 

TO PROVIDE FOR THE SETI'LEMENT OF THE CLAIMS OF THE CONFEDERATED TRIBES OF THE COLVILLE RESERVATION CONCERNING 

THEIR CONTRIBUTION TO THE PRODUCTION OF HYDROPOWER BY 

THE GRAND COULEE DAM, AND FOR <Yl'HER PURPOSES 

84-173 

HEARING HELD IN WASHINGTON, DC 

AUGUST 2, 1994 

Serial No. 103-106 

Printed for the use of the Committee on Natural Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 19!U 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office. W asbington. DC 20402 

ISBN 0·16·046123·5 
COMMI'ITEE ON NATURAL RESOURCES 

GEORGE MILLER, California, Chairman 

PHILIP R. SHARP, Indiana DON YOUNG, Alaska, 

EDWARD J. MARKEY, Massachusetts Ranking Republican Member 

AUSTIN J. MURPHY, Pennsylvania JAMES V. HANSEN, Utah 

NICK JOE RAHALL II, West Virginia BARBARA F. VUCANOVICH, Nevada 

BRUCE F. VENTO, Minnesota ELTON GALLEGLY, California 

PAT WILLIAMS, Montana ROBERT F. (BOB) SMITH, Oregon 

RON DE LUGO, Virgin Islands CRAIG THOMAS, Wyoming 

SAM GEJDENSON, Connecticut JOHN J. DUNCAN, JR., Tennessee 

RICHARD H. LEHMAN, California JOEL HEFLEY, Colorado 

BILL RICHARDSON, New Mexico JOHN T. DOOLI'ITLE, California 

PETER A. DEFAZIO, Oregon WAYNE ALLARD, Colorado 

ENI F.H. FALEOMAVAEGA, American RICHARD H. BAKER, Louisiana 

Samoa KEN CALVERT, California 

TIM JOHNSON, South Dakota SCO'IT MciNNIS, Colorado 

LARRY LAROCCO, Idaho RICHARD W. POMBO, California 

NEIL ABERCROMBIE, Hawaii JAY DICKEY, Arkansas 

CALVIN M. DOOLEY, Calif01;nia 

CARLOS ROMERO-BARCELO, Puerto Rico 

KARAN ENGLISH, Arizona 

KAREN SHEPHERD, Utah 

NATHAN DEAL, Georgia 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM FARR, California 

LANE EVANS, Illinois 

PATSY T. MINK, Hawaii 

THOMAS J. BARLOW Ill, Kentucky 

THOMAS M. BARRE'IT, Wisconsin 

JoHN LAWRENCE, Staff Director 

STANLEY ScOVILLE, GeMrol Coun.sel DANIEL VAL KlSH, Republican Staff Dim:tor 

SUBCOMMI'M'EE ON OVERSIGHT AND INVESTIGATIONS 

GEORGE MILLER, California, Chairman 

SAM GEJDENSON, Connecticut ROBERT F. SMITH, Oregon 

CALVIN M. DOOLEY, California Ranking Republican Member 

NATHAN DEAL, Georgia JAMES V. HANSEN, Utah 

PHILIP R. SHARP, Indiana BARBARA F. VUCANOVICH, Nevada 

BRUCE F. VENTO, Minnesota JOHN J. DUNCAN, JR., Tennessee 

RICHARD H. LEHMAN, California JOHN T. DOOLI'ITLE, California 

PETER A. DEFAZIO, Oregon WAYNE ALLARD, Colorado 

KARAN ENGLISH. Arizona KEN CALVERT, California 

KAREN SHEPHERD, Utah RICHARD W. POMBO, California 

MAURICE D. HINCHEY, New York JAY DICKEY, Arkansas 

NEIL ABERCROMBIE, Hawaii 

LANE EVANS, Illinois 

THOMAS M. BARRE'IT, Wisconsin 

JOHN LAWRENCE, Staff Director 

DANIEL M. ADAMSON, Professional Staff Member 

LINDA GoRDON STEVENS, Clerk 

TED CASE, Republican Consultant on Oversight and Investigations 

(II) 
CONTENTS 

Page 

Hearing held: August 2, 1994 ......................... ........................... ....... ........ .............. 1 

Text of the bill: H.R. 4757 ....................................................................................... 2 

Member statement: Hon. Jay Dickey ..................................................................... 10 

Witness statements: 

Panel consisting of: 

Eddie Palmanteer, Jr., chairman, Confederated Tribes of the Colville 

Reservation, Nespelem, Washington .................................................... 10 

JackS. Robertson, deputy administrator, Bonneville Power Administration, Department of Energy ........................ ......................... ..... ....... 25 

Ada Deer, Assistant Secretary for Indian Affairs, Department of the 

Interior .. . . . . . . .. .. . .. .. . . .. . . .. . . . . . . . .. . . ... . . . . . . . . .. . . . . .. . .. .. . . .. . . . . .. . . . .. .. .. . . . . .. . . . .. .. .. . . . . .. 33 

Peter R. Steenland, appellate section chief, Environment and Natural 

Resources Division, Department of Justice ........................... ......... ..... 39 

Warren Seyler, chairman, Spokane Tribe of Indians, Wellpinit, Washington .................................................................................................................. 56 

Additional material supplied: 

Briefing paper: The Spokane Tribe of Indians' Right to Fair and Honorable Treatment by the United States Government for Past and Future 

Use of Tribal Lands and Resources for the Construction and Operation of Grand Coulee Dam, prepared by the Spokane Tribe of Indians, 

July 20, 1994 ................................................................................................. 66 

APPENDIX 

AUGUST 2, 1994 

Additional material supplied for the hearing record by: 

Department of the Interior: Letter from John Leshy, Solicitor, to Chair- man George Miller, dated August 5, 1994 .................................................. 89 

Confederated Tribes of the Colville Reservation: Settlement Agreement, . April 1994 ...................................................................................................... 91 

Colville Business Council: Resolution 1994-264 .. . . . .. ...... .. . . .. ... .. . .. . .. .. . .. .. .. ... . . 97 

(Ill) 

H.R. 4757, THE CONFEDERATED TRffiES OF 

THE COLVILLE RESERVATION GRAND COULEE DAM SETTLEMENT ACT 

TUESDAY, AUGUST 2, 1994 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, 

COMMITTEE ON NATURAL RESOURCES, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:00 a.m. in room 

1310, Longworth House Office Building, Hon. Karen Shepherd presiding. 

Ms. SHEPHERD [presiding]. The Subcommittee on Oversight and 

Investigations will come to order for the purpose of hearing testimony on H.R. 4757, the Confederated Tribes of the Colville Reservation of the Grand Coulee Dam Settlement Act. 

[Text of the bill, H.R. 4757, follows:] 

!); 
103D CONGRESS 

2D SESSION 

2 

H.R.4757 

I 

To provide for the settlement of the claims of the Confederated Tribes 

of the Cohille Reservation concerning their contribution to the production 

of hydropower by the Grand Coulee Dam, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 14, 1994 

Mr. MILLER of Califomia (for himself, Mr. RICHARDSO!\', 1\lr. I!\'SLEE, Mr. 

DICKS, and Ills. DUN!\') introduced the following bill; which was referred 

to the Committee on Natural Resources 

A BILL 

To provide for the settlement of the claims of the Confederated Tribes of the Colville Reservation concerning their 

contribution to the production of hydropower by the 

Grand Coulee Dam, and for other purposes. 

l Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Confederated Tribes 

5 of the Colville Reservation Grand Coulee Dam Settlement 

6 Act". 

7 SEC. 2. DEFINITIONS. 

8 For purposes of this Act: 
3 

2 

1 (1) The term "Administrator" means the Ad2 ministrator of the Bonneville Power Administration. 

3 (2) The term "Bonneville· Power Administra4 tion" means the Bonneville Power Administration of 

5 · the Department of Energy or any successor Agency, 

6 Corporation, or entity that markets power produced 

7 at the Dam. 

8 (3) The term "Dam" means the Grand Coulee 

9 Dam operated by the Bureau of Reclamation of the 

10 Department of the Interior, the power from which is 

11 marketed by the Bonneville Power Administration of 

12 the Department of Energy. 

13 ( 4) The term "Settlement ~o-reement" means 

14 the Settlement Agreement entered into between the 

15 United States and the Tribe, signed by the United 

16 States on April 21, 1994, and by the Tribe on April 

17 16, 1994, to settle the claims of the Tribe in Docket 

18 181-D of the Indian Claims Commission, which 

19 docket has been transferred to the United States 

20 Court of Federal Claims. 

21 (5) The term "Tribe" means the Confederated 

22 Tribes of the Colville Reservation, a federally recog23 nized Indian tribe. 

24 SEC. 3. FINDINGS AND PURPOSES. 

25 (a) FINDINGS.-The Congress finds that-

•HR 4757 IH 
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3 

1 ( 1) there is pending before the United States 

2 Court of Federal Claims, a suit by the Confederated 

3 Tribes of the Colville Reservation against the United 

4 States, in which the Tribe seeks to recover damages 

5 under the "Fair and Honorable Dealings" clause of 

6 the Indian Claims Commission Act, (Act of August 

1 13, 1946, 60 Stat. 1049), and in which, although 

8 the matter is in dispute, the potential liability of the 

9 United States is substantial; 

10 (2) the claim alleges that the United States has 

11 since the construction of Grand Coulee Dam used 

12 Colville Reservation land in the generation of electric 

13 power, and will continue to use such reservation land 

14 for as long as Grand Coulee Dam produces power; 

15 and that the United States has promised and under16 taken to pay the Tribe for such use and has not 

17 done so; 

18 (3) the United States, after years of litigation, 

19 has negotiated a Settlement Agreement with the 

20 Tribe, signed by the Department of Justice, the 

21 Bonneville Power Administration and the Depart22 ment of the Interior. The Settlement Agreement is 

23 contingent on the enactment of the enabling legisla24 tion; and 

•HR 47117 m 
5 

4 

1 ( 4) the Settlement Agreement, approved in th.is 

2 Act, will provide mutually agreeable compensation 

3 for the past use of reservation land in connection 

4 with the generation of electric power at Grand Cou· 

5 lee Dam, and will establish a method to ensure that 

6 the Tribe will be compensated for the future use of 

7 reservation land in the generation of electric power 

8 at Grand Coulee Dam, and will settle the claims of 

9 the Tribe against the United States brought under 

10 the Indian Claims Commission Act. 

11 (b) PuRPOSES.-It is the purpose of this Act12 (1) to approve and ratify the Settlement Agree· 

13 ment entered into by the United States and the 

14 Tribe; and 

15 (2) to direct the Bonneville Power Administra· 

16 tion to carry out its obligations under the Settlement 

17 Agreement. 

18 SEC. 4. APPROVAL, RATIFICATION, AND IMPLEMENTATION 

19 OF SETTLEMENT AGREEMENT. 

20 (a) APPROVAL AND RATIFICATION.-The Settlement 

21 Agreement is approved and ratified. 

22 (b) ANNUAL PAYlfENTS.-The Bonneville Power Ad· 

23 ministration shall make annual payments to the Tribe as 

24 set forth in the Settlement Agreement and shall carry out 

25 its other obligations under the Settlement Agreement. 

•HR 4767 m 
6 

5 

1 (c) SETTLEMENT.-Consistent with the negotiated 

2 terms of the Settlement Agreement, the United States 

3 shall join in the motion that the Tribe has agreed to file 

4 in Confederated Tribes v. United States, Indian Claims 

5 Commission Docket 181-D, for the entry of a compromise 

6 final judgment in the amount of $53,000,000. The judg7 ment shall be paid from funds appropriated pursuant to 

8 section 1304 of title 31, United States Code and is not 

9 reimbursable by the Bonneville Power Administration. 

10 SEC. 5. DISTRIBUTION OF THE SETI'LEMENT FUNDS. 

11 (a) LUl\IP·SUM PAYMENT.-The judgment of 

12 $53,000,000, when paid, shall be deposited in the Treas13 ury of the United States and the principal amount and 

14 interest on the judgment, shall be credited to the account 

15 of the Tribe. These funds may be advanced or expended 

16 for any purpose by the tribal governing body of the Con17 federated Tribes of the Colville Reservation, pursuant to 

18 a distribution plan developed by the Tribe and approved 

19 by the Secretary of the Interior pursuant to section 3 of 

20 Public Law 93-134 (25 U.S.C. 1403): Provided, That any 

21 payment to a minor under the distribution plan shall be 

22 held in trust by the United States for the minor until the 

23 minor reaches the age of 18, or until the minor's class 

24 is scheduled to graduate from high school, whichever is 

25 later: Provided further, That emergency use of trust funds 

•HR 4757 IH 
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6 

1 may be authorized for the benefit of the minor pursuant 

2 to regulations of the Bureau of Indian Affairs. 

3 (b) ANNUAL PAYMENTS.-ln addition to the lump4 sum payment, annual payments shall be made directly to 

5 the Tribe in accordance with the Settlement Agreement, 

6 and may be used in the same manner as any other income 

7 received by the tribe from the lease or sale of natural re8 sources. 

9 SEC. 6. REPAYMENT CREDIT. 

10 Beginning with fiscal year 2000 and continuing for 

11 so long as annual payments are made under this Act, the 

12 Administrator shall deduct from the interest payable to 

13 the Secretary of the Treasury from net proceeds as de14 fined in section 13 of the Federal Columbia River Trans15 mission System Act, an amount equal to 26 percent of 

16 the payment made to the Tribe for the prior fiscal year. 

17 Each deduction made under this section shall be a credit 

18 to the interest payments otherwise payable by the Admin19 istrator to the Secretary of the Treasury during the fiscal 

20 year in which the deduction is made, and shall be allocated 

21 pro rata to all interest payments on debt associated with 

22 the generation function of the Federal Columbia River 

23 Power System that are due during that fiscal year; except 

24 that, if the deduction in any fiscal year is greater than . 25 the interest due on debt associated with the generation 

•HR 4757 IH 
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7 

1 function for that fiscal year, then the amount of the de2 duction that exceeds the interest due on debt associated 

3 with the generation function shall be allocated pro rata 

4 to all other interest payments due during that fiscal year. 

5 SEC. 7. MISCELLANEOUS PROVISIONS, 

6 (a) LIENS AND FORFEITURES, ETC.-Funds paid or 

7 deposited to the credit of the Tribe pursuant to the SettleS ment Agreement or this Act, the interest or investment 

9 income earned or received on those funds, and any pay10 ment authorized by the Tribe or the Secretary of the Inte11 rior to be made from those funds to tribal members, and 

12 the interest or investment income on those payments 

13 earned or received while the payments are held in trust 

14 for the member, are not subject to levy, execution, forfeitIS ure, garnishment, lien, encumbrance, seizure, or Federal, 

16 State or local taxation. 

17 (b) ELIGIBil .. ITY FOR FEDERAL Al'\"D FEDERALLY 

18 FUNDED PROGR.A:\IS.-Funds paid or deposited to the 

19 credit of the Tribe pursuant to the Settlement J\.,oreement 

20 or this Act, the interest or investment income earned or 

21 received on such funds, and any payTnent authorized by 

22 the Tribe or the Secretary of the Interior to be made from 

23 those funds to tt·ibal members, and the interest or invest24 ment income on those payments earned or received while 

25 the payments are held in trnst for the member, may not 

•HR 4757 IH 
9 

8 

1 be treated as income or resources nor otherwise utilized 

2 as the basis for denying or reducing the financial assist3 ance or other benefit to which the Tribe, a tribal member, 

4 or household would otherwise be entitled under the Social 

5 Security Act or any Federal or federally assisted program. 

6 (c) TRUST RESPONSIBILITY.-This Act and the Set7 tlement Agreement do not affect the trust responsibility 

8 of the United States and its agencies to the Tribe and 

9 the members of the Tribe. 
10 

Ms. SHEPHERD. I would like to take this opportunity to commend 

the tribes and the Federal agencies for working together to achieve 

this agreement and the settlement of the tribes' claims related to 

the inundation of their lands by the Grand Coulee Dam in Washington State, and I look forward to hearing the testimony of the 

witnesses. 

Would you like to come forward now and take your places? And 

we will begin. 

We will take a moment to have opening statements. Representative Smith, do you have a statement? 

Mr. SMITH. I have no statement. 

Ms. SHEPHERD. Mr. Dooley, do you have a statement? 

Mr. DOOLEY. No opening statement. 

Ms. SHEPHERD. All right. Thank you. No opening statements 

today. However, hearing no objection, the statement of Mr. Dickey 

will be inserted into the record. 

[Prepared statement of Mr. Dickey follows:] 

OPENING STATEMENT OF HON. JAY DICKEY 

Mr. Chairman, thanks for holding this hearing today on H.R. 4757, to settle the 

Colville Tribes' claims against the U.S. resulting from the flooding of their lands by construction of the Grand Coulee Dam. 

This specific issue is new to me, as is the general issue of settlement of Native 

American water rights and land claims. If all parties, including the Tribe, the Bonneville Power Administration, the Department of the Interior, and the Justice Department are all agreeable to this proposed settlement, after all these years of liti· 

gation, it seems to me we should proceed accordingly, to honor the commitments the 

federal government initially made to the Tribes. 

I look forward to reviewing the testimony and learning more about the history of 

this settlement. 

PANEL CONSISTING OF EDDIE PALMANTEER, JR., CHAIRMAN, 

CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, 

NESPELEM, WASHINGTON; JACK S. ROBERTSON, DEPUTY 

ADMINISTRATOR, BONNEVILLE POWER ADMINISTRATION, 

DEPARTMENT OF ENERGY; ADA DEER, ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTE· 

RIOR; AND, PETER R. STEENLAND, APPELLATE SECTION 

CHIEF, ENVIRONMENT AND NATURAL RESOURCES DIVI· 

SION, DEPARTMENT OF JUSTICE 

Ms. SHEPHERD. Shall we begin with our first panel? Mr. 

Palmanteer. 

STATEMENT OF EDDIE PALMANTEER, JR. 

Mr. PALMANTEER. I would be willing to start. 

Madam Chairperson, members of the committee, my name is 

Eddie Palmanteer, chairman of the Colville Tribes. I would like to 

thank you for this opportunity to testify, along with representatives 

of BPA, Justice and Interior. 

We all support the Colville Grand Coulee Dam Settlement Act. 

The settlement will end litigation between the Colville Tribes and 

the United States that has lasted for over 40 years. 

There are over 8,000 members of the Colville Tribes. The Colville 

Reservation was reserved because it provided access to the tribe's 

traditional salmon fisheries on the Columbia River and had abundant hydropower. When, in 1891, the United States took the north-
11 

ern portion of the reservation with all the good fannland, Congress 

promised that tribal members would continue to, "enjoy without let 

or hindrance the right at all times freely to use all water power 

and water courses." 

Although Grand Coulee Dam contributed greatly to the economy 

of the United States, its construction denied the Colville Tribes the 

ability to use that site or any other site for its own power development, and it destroyed forever the mighty salmon runs that used 

to migrate to Kettle Falls on the upper Columbia River and to the 

tributaries on the reservation. 

Two reservation communities, Inchelium and Keller, were covered by the backwaters created when Grand Coulee Dam was built. 

Many of us were born in homes that today lie under the waters of 

Lake Roosevelt, as do the graves of many of our ancestors that 

could not be removed as the waters rose. 

This project was originally to be built under a Federal Power 

Commission license, and we were to get annual payments for our 

contribution to power production. When the Federal Government 

took over the project, it promised the same thing. A congressional 

hearing was held on the Colville Reservation. A Mr. Pete Lemery, 

Colville representative at the time, testified that the Colville Tribes 

were entitled to a 10 percent royalty on the power to be produced 

because the United States had taken the north half of the reservation and was now taking the power site and the fishery. 

A few weeks later, Mr. Harold Ickes, the then Secretary of the 

Interior, as a reply to the Colville request, endorsed a series of letters saying that the tribes should be paid the same annual payments from power they would have received under the Federal 

Power Act. This was never done. 

We have sought justice on this claim since the 1940s. In April 

of 1992, the Court of Appeals finally held that our view of the law 

was correct. The court sent the case back for trial with instructions 

favorable to us. That is when the settlement negotiations began. Negotiations were thorough, sometimes technical, and sometimes 

heated. However, we all maintained respect for each other, which 

in large part helped us reach a settlement. 

The settlement was based on comparisons with payments to 

other tribes under the Federal Power Act, a mixture of theories on 

compensation and a lot of compromise. Members of Congress suggested that we negotiate a settlement before coming to Congress. 

While we entered these negotiations with some concern, it now is 

clear that that advice was good. 

The settlement provided a lump sum payment for past losses and 

annual payments for continued use of our resources. The lump sum 

is paid under the Judgment Funds Distribution Act. That means 

the Secretary of the Interior and Congress must approve our plan 

for the use of those funds. Annual payments are to be received by 

the tribe in the same manner as income for the use of any other 

tribal natural resource. These funds are budgeted by the tribes annually and the budget is approved by the Department of the Interior. 

I would like to conclude my testimony by spending a moment to 

describe to you how the Colville Tribes went about approving the 

settlement and what the settlement means to our people. We sent 
12 

to each adult member a detailed package identifying the settlement, its terms, and the compromises we had to make to get the 

settlement. After that, we held meetings throughout the reservation and in some locations within the State to inform our members 

and let them ask questions. Finally, on April 16th, we held a general meeting at tribal headquarters for people to vote. We have 

about 5,000 eligible voters of our tribe, of which 2,353 made the 

trip to our headquarters to vote. Of that number, 2,191 voted in 

favor of the settlement. 

To us, that April election was more than an opportunity to vote 

on a settlement. It was the gathering of our people to vote on an 

issue that all felt was critical to our tribes. Members traveled from 

all over the northwest and from the far corners of the United 

States to vote. The settlement represented an end to a long ordeal. 

It is for our elders, I believe, that many of our tribal members 

voted in favor of the settlement. These elders had waited too long 

already for us to continue litigation. 

Is it full compensation for our loss? The answer has to be no. But 

is it a fair settlement? We think it is. We have always been a tribe 

that seeks the reasonable center course in its negotiations and 

dealings. The United States can do nothing to resurrect the past, 

but the settlement is a move away from the harms that occurred 

in the past. It provides a chance for the Colville Tribes to advance 

and finally to get some benefit from the giant structure on our 

lands. The settlement provides some measure of compensation to 

our elders who have suffered more than anyone else. It ends this 

litigation and honors the commitments made by the United States 

to the Colville Tribes. 

We accept the settlement as a reasonable and fair way to end 

this litigation. If I can answer any questions, please feel free to ask. 

Ms. SHEPHERD. Thank you, Mr. Palmanteer, and as you know, 

your statement will be fully entered into the record, as will all of 

the statements of all of the witnesses. 

[Prepared statement of Mr. Palmanteer follows:] 
13 

TESTIMONY OF EDDIE PALMANTEER, JR. 

CHAIRMAN 

CONFEDERATED TRIBES OF THE COLVTI.LE RESERVATION 

IN SUPPORT OF H.R. 4757 

BEFORE 

THE HOUSE OF REPRESENTATIVES COMMITTEE 

ON NATURAL RESOURCES 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

AUGUST 2, 1994 

Chairman Miller, members of the Committee, I am Eddie Palmanteer, Jr., 

Chairman of the Business Council of the Confederated Tribes of the Colville 

Reservation. On behalf of the Colville Tribes, I would like to thank you for the 

opportunity to present testimony in support of H.R. 4757, the Confederated Tribes 

of the Colville Reservation Grand Coulee Dam Settlement Act. 

I am particularly pleased to be able to testify in support of this historic 

settlement together with representatives from the Bonneville Power Administration, 

the United States Department of Justice, and the United States Department of the 

Interior, all of whom with different local and national interests support this legislation. 

We have litigated and negotiated with each other fairly, and have arrived at a 

settlement we all support. The settlement will end litigation between the Colville 

Tribes and the United States that has lasted over 40 years. It will, as much as 

possible, correct an injustice that has continued year after year for more than SO 

years. 
14 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

Page2 

The Colville Reservation was established by President Grant on July 2, 1872. 

There are over 8,000 members of the Colville Tribes, a confederation of twelve 

aboriginal tribes and bands. Our Reservation is bounded on the west by the 

Okanogan River, and on the south and east by the Columbia River. The Reservation 

is approximately 1.3 million acres. The land was chosen because it provided farming, 

hunting grounds, the Tribes' traditional salmon fisheries on the Columbia River and 

its tributaries, and abundant hydropower. In 1891 the United States required the 

Tribes to give up the northern portion of the Reservation, with the best agricultural 

land. When it did so it made specific commitments that tribal members would "enjoy 

without let or hinderance the right .at all times freely to use all water power and water 

courses ... ". 

The Grand Coulee dam, which was begun in 1933, was a great boon to the 

State of Washington and the Northwest, but a disaster to the Colville Tribes. Grand 

Coulee Dam is built in large part on the Colville Reservation. It irrigated hundreds 

of thousands of acres, but none on the Colville Reservation. Its construction denied 

the Colville Tribes the ability to use that site or any other site for its own power 

development. The Dam destroyed forever the mighty salmon runs that used to 
15 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

Page3 

migrate to Kettle Falls on the upper Columbia River and to the tributaries on the 

Reservation. 

The Colville people suffered uniquely as a result of the construction of Grand 

Coulee Dam. Two Colville towns, Inchelium and Keller, were inundated by the 

backwaters created when Grand Coulee Dam was built. Today they, with their 

hundreds of years of history, lie under the waters of Lake Roosevelt, as do the graves 

of many of our ancestors that could not be removed as the waters rose. In short, 

Grand Coulee Dam changed forever the livelihood and lives of our people and the 

very nature of the Colville Reservation. For this, the Colville Tribes received sixty 

three thousand dollars. 

But, when Grand Coulee Dam was built, we were promised more. In 1920, 

Congress had passed the Federal Power Act, which authorizes the development of 

hydroelectric power in the United States, through the issuance of federal licenses to 

state or other public or private developers. Under Section 10( e) of the Federal 

Power Act, any licensee using Indian lands must pay to the Indian Tribe an annual 

payment for the use of its land. 
16 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

Page4 

The Grand Coulee Dam received its first funding and began construction under 

a Federal Power Commission permit, which would have assured the Colville Indians 

annual payments for their contribution to power. Later, Harold Ickes, who was both 

Secretary of Interior and Director of Public Works, took the project over as an 

exclusively federal project. At that time, a Congressional hearing was held on the 

Colville Reservation. A Colville representative testified that the United States had 

taken the Northern Half of the Colville Reservation with all the farming land, and 

was about to end our salmon fishing. He asked, how were the people to live. He 

presented letters showing that the Colville Tribes own to the center of the Columbia 

River, and said he thought the Colville Tribes were entitled to a 10% royalty on the 

power to be produced. 

A few weeks later Harold Ickes, apparently as a direct reply to the Colville 

request, endorsed a series of letters saying that the Tribes should be paid the same 

annual payments from power they would have received if the project had remained 

one licensed under the Federal Power Act. The payments were to be computed in the 

same fashion as the payments already approved for Warm Springs and Flathead. 

But, with the completion of the project, and the coming of World War II, this was 

never done. Although the Colville Reservation had been devastated, the entire 
17 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

PageS 

payment to the Colville Tribes for their contribution to Grand Coulee remained sixty 

three thousand dollars. 

The Colville Tribes have sought justice on this claim since the 1940's. In 1951 

we brought suit under the Indian Claims Commission Act. Settlement efforts in the 

1970's were blocked by disputes between the Department of Interior and the Corps 

of Engineers over legal defenses. When no settlement was reached, the Colville 

Tribes went back to court. In April of 1992, the Court of Appeals for the Federal 

Circuit unanimously held that the navigational servitude relied on by the Corps did 

not insulate the United States from liability in an Indian Claims Commission Act case. 

The Court sent the case back for trial, with instructions favorable to the Colville 

Tribes. At that point negotiations began. 

The Settlement you have before you was not reached easily. The negotiations 

involved the Colville Tribes, which appointed a Committee from its council to 

participate in all negotiations, the Department of Justice, the Department of the 

Interior, and the Bonneville Power Administration. The negotiations required 

numerous meetings between the parties both in Washington D.C. and Washington 

State. Our lawyers had done extensive historical and legal research in the law suit, 
18 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

Page6 

which were used in the settlement. The Colville Tribes also employed an economist, 

who specialized in hydropower, who presented a report showing that fair 

compensation to the Colville Tribes could be over a billion doJlars in back payments 

and annual payments beginning at $88 million per year. The Bonneville Power 

Administration brought its considerable resources to the table, and had very different 

ideas of what would be a fair result. 

Negotiations were thorough, with papers exchanged on legal liability, methods 

of computing compensation, questionable patenting of land at part of the dam site, 

riverbed ownership, fast land ownership, and comparisons with payments to other 

Tribes. The discussions were sometimes technical, and at times quite animated. 

However, the parties, throughout the process, maintained a civility and respect for 

each other, which in large part was responsible for the success of the negotiations. 

Always, the parties expressed their various views in good faith, and in an effort to 

resolve the issues that were advanced throughout the negotiations. In the end, the 

parties sought a solution that would meet the particular and unique needs of the 

parties. The final result was based on assessments of success in court, comparisons 

with payments to other Tribes under the Federal Power Act, a mixture of theories on 

compensation, and compromise. 
19 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

Page7 

We are quite proud to have been party to these negotiations. Early in our 

discussions, members of Congress suggested that we try to negotiate a settlement 

before coming to Congress, in the hope that some solution agreeable to all parties 

could be reached. While we entered those negotiations with some trepidation, it now 

is clear that that advice was well given, and well taken by the Colville Tribes. 

The Settlement Agreement approved by this legislation resolves the claims of 

the Colville Tribes in Docket 181-D of the Claims Commission, the last Colville 

Claims under the Indian Claims Commission Act. There are two parts to the 

Settlement: (1) a judgment to be entered against the United States in the amount 

of $53 million for past use of the tribal resources and; (2) annual payments to be 

made by the Bonneville Power Administration starting at $15.25 million to be paid 

by March 1, 1996, for continuing use of tribal resources. Then, before March 1 of 

each succeeding year, the Bonneville Power Administration is to pay to the Colville 

Tribes an amount adjusted up or down from the $15.25 millon according to a formula 

agreed to in the Settlement Agreement. That formula is based on hydroelectric 

generation at Grand Coulee Dam, the average price BP A receives for the sale of 

electricity, and the consumer price index. 
20 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

PageS 

The Settlement guarantees the Colville Tribes a minimum payment of $15.25 

million annually. At the Tribe's option, any underrun produced by the formula is 

treated as a loan to be deducted from subsequent payments that would otherwise 

exceed $15.25 million. This element of the Settlement is particularly important to us. 

It provides a planning base that allows us to allocate funds in the future based upon 

some assurance that a minimum level of funding will be available. This provision, and 

the provisions of the formula, represent the kind of good faith respect for each party's 

needs which was an integral part of the negotiation. 

The Settlement provides that the $53,000,000 for the past use of Tribal 

resources ~II be paid to the Tribes pursuant to 25 U.S.C. 1401, The Distribution of 

Judgment Funds Act. That Act requires the Secretary of the Interior to approve a 

tribal plan for the distribution of the funds. The plan is then submitted to Congress. 

If no action is taken in Congress, the plan is then implemented by the parties. 

Under the Settlement Act, annual payments are received by the Tribes in the 

same manner as income for the use of any other Tribal resource, such as income 

from timber sales. This is appropriate because the payment represents compensation 
21 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

Page 9 

for the use of one of the Tribes most valuable natural resource, water power. These 

funds are budgeted by the Tribes annually, and the budget is approved by the 

Department of the Interior. 

I can not conclude my testimony without spending a moment to describe to you 

what the Settlement means to the Colville people. I would like to tell you first how 

the Colville Tribes went about approving the Settlement. 

We sent to each adult member a detailed package identifying the Settlement, 

its terms, and the pros and cons of the Settlement. After that, the Colville Tribes 

held meetings throughout the Reservation, and throughout Washington State off the 

reservation, to inform our members and to allow members an opportunity to question 

Tribal representatives who were involved in the negotiations. Finally, on Apri116, the 

Colville Tribes held a general meeting, which has been our practice with all claims 

settlements, at Nespelem, the center of our Tribal government, where tribal members 

were invited to come and vote for, or against, the settlement. As I noted earlier, 

there are about 8,000 members of the Colville Tribes. Of those, about 5,000 are over 

eighteen years of age and eligible to vote. Remarkably, 2,353 adult members made 

the trip to Nespelem to vote. Of that number, 2,191 voted in favor of the Settlement. 
22 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

Page 10 

To us, that April election day was more than an opportunity to vote on a 

Settlement. It was like a gathering of nations if you will, of our people, to vote on 

an issue that all felt was critical to the Colville Tribes. Members traveled from all 

over the Northwest and from the far corners of the United States to vote. 

For our elders who have had to look at Grand coulee Dam since its 

construction over fifty years ago, the Settlement represented an end to a long ordeal. 

Each has personal memories of the losses suffered as a result of the Dam. It is for 

our elders, I believe, that many of our tribal members voted in favor of the 

Settlement. These elders had just waited too long for compensation to justify 

continued litigation. 

The Settlement puts to rest the litigation, ends the acrimony between the 

United States and the Tribes over this issue, and provides resources which we and our 

children need. 

Is it full compensation for our loss? The answer has to be no. You have to 

understand that we have looked at Grand Coulee Dam for a long time. We realize 

that for the Pacific Northwest the Grand Coulee Dam has made development and 
23 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

Page 11 

prosperity possible. But for us, it has been a disaster. How much is reasonable 

compensation for the loss of our fishery, our way of life, our towns where our elders 

lived? How much must be paid for the destruction of our mother's and father's 

graves? For some of our members no amount of money can fairly compensate the 

Tribes for this loss. 

But is it a fair settlement? We think yes. We have always been a Tribe that 

seeks the reasonable center course in its negotiations and dealings. The United 

States can do nothing to resurrect the past or correct the actual harm that it has 

caused. Thus, we view the Settlement from a slightly different perspective. Yes, it 

is reasonable to move forward from the harms that occurred in the past. Yes, it 

provides a chance for the Colville Tribes to advance and to finally get some benefit 

from the giant structure on its Reservation. When we look at the dam for the first 

time, it will be something we receive a benefit from. Yes, the Settlement provides 

some measure of compensation to our elders who have suffered more than anyone 

else. Yes, it puts an end to litigation which has cost resources and time and kept 

open wounds festering for so many years. 
24 

TESTIMONY OF EDDIE PALMANTEER 

August 2, 1994 

Page 12 

Yes, the Colville Tribes accepts the Settlement as a reasonable and fair way 

to end this litigation. 

If I can answer any questions, please feel free to ask. 
25 

Ms. SHEPHERD. Jack Robertson, the Deputy Administrator of 

Bonneville Power Administration. 

STATEMENT OF JACK S. ROBERTSON 

Mr. RoBERTSON. Thank you, Madam Chairperson. It is my pleasure to appear before the House Natural Resources Subcommittee, 

Oversight and Investigations. We appreciate the historical and 

close working relationships we have with the subcommittee and 

look forward to that continuing relationship in the future. 

My testimony today will focus on Bonneville's role as proposed in 

H.R. 4757. Let me say first, before I get into my testimony, that 

Bonneville is proud to be part of what I think to be an historic 

agreement. The settlement agreement and subsequent draft legislation represent a sound business decision for Bonneville. The decision ends the Federal Government and Bonneville ratepayer exposure to further litigation and represents a final settlement of this 

suit for all parties. 

In my statement, I will first discuss the rationale for Bonneville's 

involvement in the legislation and for providing payments to the 

Confederated Tribes of the Colville Reservation. I will then briefly 

address the method used in reaching the amount of the settlement. 

Finally, I will discuss the partial Treasury repayment offset as proposed in the legislation. 

The case arose out of statements made by Federal officials to the 

Colville Indian tribes when the Grand Coulee Dam was under construction in the 1930s. Approximately 7,000 acres of land within 

the Colville Reservation were taken for use in the Grand Coulee 

project. The Federal Power Act preliminary license issued to the 

State of Washington prior to the federalization of the project would 

have provided that a share of the annual revenues produced by the 

Grand Coulee project go to the tribe. The subsequent Federal statements could well be read as an undertaking to meet that same obligation. 

In 1933, the Secretary of the Interior, Harold Ickes, as has been 

mentioned, endorsed two letters indicating that, because Colville 

lands were within both the power site and reservoir areas, the 

Colvilles should receive a share of the revenue from the sale of the 

power produced by the dam. Other officials wrote letters attempting to assess the tribes' appropriate share. The appropriate share 

was never actually determined, and in 1951 the tribe filed suit 

against the United States to bring about a resolution of the issue. 

The Bonneville Power Administration, as part of the Department 

of the Interior originally, and now the Department of Energy, has 

marketed the power from the Grand Coulee Dam since the dam 

began operations in 1942. Bonneville receives the revenues from 

power generated by the dam, and Bonneville's ratepayers have realized the benefits of Grand Coulee's low-cost power. Therefore, although Bonneville is not named as a party to the litigation, Bonneville understood that its ratepayers would likely be expected to pay 

a significant portion of any judgment rendered in the case. As I 

point out in my testimony, the Administration believes that the 

sharing of costs contemplated in this case between Bonneville and 

the Department of the Treasury's general fund revenues is reasonable. 
26 

This case will not set a precedent for future payments to other 

tribes or entities. It arose out of a unique set of circumstances surrounding the construction of Grand Coulee Dam. Our judgment 

that no precedent would be set was a significant factor in our decision to settle the case. The settlement is a reasonable decision 

based on the government's exposure in litigation. 

The settlement reached with the Colville Tribes contains two 

parts: a lump sum payment from the judgment fund of $53 million 

for past use of reservation lands, and annual payments from the 

Treasury's general fund revenues and Bonneville, beginning in 

1996, for continued use of reservation lands. 

Under long-standing provisions of the Federal Power Act, private 

developers of hydroelectric projects who use tribal lands or water 

power from Federal dams must pay an annual fee fixed by the Federal Energy Regulatory Commission. Although this case did not 

arise under the Federal Power Act, it concerned the fixing of payments for the use of tribal lands in a hydroelectric project. Therefore, the parties looked to methodologies employed under the Federal Power Aq as a means of reaching a principled settlement 

agreement. '-

Under the Act, the Federal Energy Regulatory Commission traditionally has determined fees by either the net benefits method or 

the profitability method. Following discussions regarding both 

methods, the settlement was based primarily on the profitability 

method. Under this method, the annual cost of producing power at 

the project is subtracted from the share of the developer's annual 

revenues attributed to the project. The result is the commercial 

value of the project, which is allocated between the landholders and 

the developer. Then, based on individual landholdings, each landholder is allocated a specific percentage of the value assigned to the 

land. The result is the landholder's contribution to the project, 

which equals the annual fee. 

Based in rart on Grand Coulee's projected revenues and costs 

during fisca year 1995, the first annual payment was fixed at 

$15.25 million. Subsequent payments are tied to increases in Bonneville's power prices and annual generation at Grand Coulee Dam. 

Therefore, future payments are a function of three items: the initial 

payment, the change in Bonneville's rates, and the annual generation of power at Grand Coulee Darn. This formula is beneficial to 

the Bonneville because it links the payments to the operations of 

the power system. 

If Bonneville maintains stable rates, the payments will remain 

stable. If power production is down because of a poor water year, 

the payment will be less. In good water years, the payment will increase. 

The settlement is intended to provide the tribes a share of the 

revenues derived from Grand Coulee Dam. Tying the payments to 

Grand Coulee's production and Bonneville's revenues fulfills this 

intention. In addition, the agreement contains floor and ceiling payments to ensure that the increase in payments does not diverge too 

greatly, in either direction, from the rate of inflation. This provision reduces both parties' risks over time. 

Before entering into the settlement discussions with the tribes, 

the various Federal agencies discussed among themselves the ap-
27 

propriate division of responsibility for settlement payments. The 

tribes were willing to agree to a settlement only if it provided for 

both a lump sum payment for past damages and annual payments for continuing damages. 

Moreover, they were most concerned with the annual payments. 

The Federal agencies agreed that a lump sum would be paid out 

of the Judgment Fund and that Bonneville would make the annual 

payments. Bonneville agreed to this, based on the understanding 

that after a settlement was reached, the Federal agencies would 

determine whether it resulted in an appropriate division of responsibility. 

The lump sum payment by the Judgment Fund is $53 million. 

The present value of the annual payments is approximately $513 

million, or 90 percent of the settlement's total value. Under the 

draft legislation, beginning in fiscal year 2000, Bonneville will receive an offset on its payments to the Treasury equal to 26 percent 

of each annual payment to the tribes. Together with the lump sum 

payment, the offset results in the Treasury's general fund revenues 

paying 30 percent of the total value of the settlement, with Bonneville ratepayers paying 70 percent instead of 90 percent. 

The Administration believes that this division of responsibility is 

acceptable. The 70/30 split recognizes the interest in bringing this 

decades-long suit to a close. Our analysis indicates that the profitability method would have resulted in a split in the range of 70 

percent future costs and 30 percent historical costs. 

During the settlement discussions, the parties focused initially 

on the annual payments. The successful negotiation of the annual 

payments then reduced contention over the lump sum, allowing the 

Administration to negotiate a smaller lump sum payment. 

In closing, Madam Chairperson, I would like to reiterate that 

this settlement and the legislation as proposed end the Federal 

Government's exposure to this litigation, and represents a mutually 

acceptable settlement and a reasonable business decision for Bonneville. Further, this case does not set a precedent for future payments to other tribes or entities. 

I would also reiterate that Bonneville believes the sharing of 

costs is reasonable, and I stand ready to answer any of the ques- tions the committee may have. 

Thank you. 

Ms. SHEPHERD. Thank you very much, Mr. Robertson. 

[Prepared statement of Mr. Robertson follows:] 
28 

STATEMENT OF JACKS. ROBERTSON 

BONNEVILLE POWER ADMINISTRATION 

U.S. DEPARTMENT OF ENERGY 

BEFORE THE 

HOUSE NATURAL RESOURCES SUBCOMMITIEE ON 

OVERSIGHT AND INVESTIGATIONS 

AUGUST 2, 1994 
29 

Statement of Jack S. Robertson, Deputy Administrator 

Bonneville Power Administration 

August 2, 1994 

Mr. Chairman, it is my pleasure to appear before the House Natural Resources Subcommittee on 

Oversight and Investigations. We appreciate the historical and close working relationship we 

have with the Subcommittee, and look forward to a continued relationship in that vein. 

My testimony today will focus on Bonneville's role as is proposed in H.R. 4757. The settlement 

agreement and subsequent draft legislation represent a sound business decision for Bonneville. 

The decision ends the Federal government and Bonneville ratepayer exposure to further litigation 

and represents a final settlement of this suit for all parties 

In my statement, I will first discuss the rationale for Bonneville's involvement in the legislation 

and for providing payments to the Confederated Tribes of the Colville Reservation. I will then 

briefly address the method used in reaching the amount of the settlement Finally, I will discuss 

the partial Treasury repayment offset as proposed in the legislation. 

BPA Involvement 

The case arose out of statements made by Federal officials to the Colville Indian tribes when the 

grand Coulee Dam was under construction in the 1930s. Approximately 7,000 acres ofland 

within the Colville reservation were taken for use in the Grand Coulee Project. The Federal 

Power Act preliminary license, issued to the State of Washington prior to the Federalization of the 

project would have provided for a ~h<lr~ of the annual revenues produced by the grand Coulee 

Project to go to the Tribe. The subsequent Federal statements could well be read as undertaking 

to meet that same obligation. In 1933, the Secretary of the Interior Harold Ickes endorsed two 

letters indicating that, because Colville lands were within both the power site and reservoir areas, 

the Colvilles should receive a share of the revenue from the sale of power produced by the dam. 

Other officials wrote letters attempting to assess the Tribes' appropriate share. The appropriate 
30 

share was never actually detennined and in 1951 the Tribe filed suit against the U.S to bring 

about a resolution of this issue. 

The Bonneville Power Administration (as part of the DOl and later the DOE) has marketed the 

power from Grand Coulee Dam since the dam began operations in 1942. Bonneville receives the 

revenues from power generated by the dam, and Bonneville's ratepayers have realized the benefits 

of Grand Coulee's low-cost power. Therefore, although Bonneville is not named a party to the 

litigation, Bonneville understood that its ratepayers would likely be expected to pay a significant 

portion of any judgment rendered in the case. As I point out later in my testimony, the 

Administration believes that the sharing of costs contemplated in this case between Bonneville and 

the Department of the Treasury's general fund revenues is reasonable. 

This case will not set a precedent for future payments to other tribes or entities. It arose out of a 

unique set of circumstances surrounding the construction of Grand Coulee Dam. Our judgment 

that no precedent would be set was a significant factor in our decision to settle the case. The 

settlement is a reasonable decision based on the Government's exposure in litigation. 

Settlement Amount 

The settlement reached with the Colville Tribes contains two parts: a lump sum payment from the 

Judgment Fund of $53 million for past use of reservation lands, and annual payments from the 

Treasury's general fund revenues and Bonneville beginning in 1996 for continued use of 

reservation lands. 

Under longstanding provisions of the Federal Power Act, private developers of hydroelectric 

projects who use tribal lands or water power from Federal dams must pay an annual fee fixed by 

the Federal Energy Regulatory Commission. Although this case did not arise under the Federal 

Power Act, it concerned the fixing of payments for use of tribal lands in a hydroelectric project. 

Therefore, the parties looked to methodologies employed under the Federal Power Act as a 

means of reaching a principled settlement amount. 

2 
31 

Under that Act, the Federal Energy Regulatory Commission traditionally has determined fees by 

either the net benefits method or the profitability method. Following discussions regarding both 

methods, the settlement was based primarily on the profitability method. Under this method, the 

annual cost of producing power at the project is subtracted from the share of the developer's 

annual revenues attributable to the project. The result is the commercial value of the project, 

which is allocated between the landholders and the developer. Then, based on individual 

landholdings, each landholder is allocated a specific percentage of the value assigned to the land. 

The result is the landholder's contribution to the project, which equals the annual fee. 

Based in part on Grand Coulee's projected revenues and costs during fiscal year 1995, the first 

annual payment was fixed at $15.25 million. Subsequent payments are tied to increases in 

Bonneville's power prices and annual generation at Grand Coulee Dam. Therefore, future 

payments are a function of three items: the initial payment; the change in Bonneville's rates; and 

the annual generation of power of Grand Coulee Dam. This formula is beneficial to Bonneville 

because it links the payments to the operation of the power system. If Bonneville maintains stable 

rates, the payments will remain stable. If power production is down because of a poor water year, 

the payment will be less. In good water years the payment will increase. 

The settlement is intended to provide the Tribes a share of the revenues derived from Grand 

Coulee Dam. Tying the payments to Grand Coulee's production and Bonneville's revenues 

fulfills this intention. In addition, the agreement contains floor and ceiling payments to ensure that 

the increase in payments does not diverge too greatly, in either direction, from the rate of 

inflation. This provision reduces both parties' risks over time. 

Repayment Offset 

Before entering into settlement discussions with the Tribes, the various Federal agencies discussed 

among themselves the appropriate division of responsibility for settlement payments. The Tribes 

were willing to agree to a settlement only if it provided for both a lump sum payment for past 

3 
32 

damages and annual payments for continuing damages. Moreover, they were most concerned 

with the annual payments. The Federal agencies agreed that the lump sum would be paid out of 

the Judgment Fund, and that Bonneville would make the annual payments. Bonneville agreed to 

this based on the understanding that after a settlement was reached the Federal agencies would 

determine whether it resulted in an appropriate division of responsibility. 

The lump sum payment is $53 million. The present value of the annual payments is approximately 

$5 13 million, or 90 percent of the settlement's total value. Under the draft legislation, beginning 

in fiscal year 2000 Bonneville will receive an offset on its payments to the Treasury equal to 26 

percent of each annual payment to the Tribes. Together with the lump sum payment, the offset 

results in the Treasury's general fund revenues paying 30 percent of the total value of the 

settlement, with Bonneville ratepayers paying 70 percent instead of 90 percent 

The Administration believes that this division of responsibility is acceptable. The 70/30 split 

recognizes the interest in bringing this decades-long suit to a close. Our analysis indicates that the 

profitability method would have resulted in a split in the range of 70 percent future costs and 30 

percent historical costs. During the settlement discussions, the parties focused initially on the 

annual payments. The successful negotiation of the annual payments then reduced contention 

over the lump sum, allowing the Administration to negotiate a smaller lump sum payment. 

Conclusion 

Mr. Chairman, in closing, I would reiterate that this settlement and the legislation as proposed end 

the Federal government's exposure to this litigation, and represents a mutually acceptable 

settlement and a reasonable business decision for Bonneville. Further, this case does not set a 

precedent for future payments to other Tribes or entities. 

I would also reiterate that Bonneville believes the sharing of costs is reasonable. 

I stand ready to answer any questions you may have. 

4 
33 

Ms. SHEPHERD. Ms. Deer, representing the Department of the Interior. 

STATEMENT OF ADA DEER 

Ms. DEER. Madam Chair and members of the committee, it is 

with great pleasure that I come before you today to testify in favor 

of enactment of H.R. 4757. 

Originally, an agency of the state of Washington planned and obtained a permit to develop a hydroelectric dam on the Columbia 

River on the Colville Indian Reservation. That license contained a 

provision to share the benefits of the dam with the Colville Tribes 

by agreeing to make annual payments to the tribe for its use of the 

tribe's land to produce hydropower. 

However, in 1933 the United States took over the project under 

the National Industrial Recovery Act. That same year the Senate 

Committee on Indian Affairs held a hearing on the Colville Reservation, and the question arose whether the tribe would still receive annual payments even though the Federal Power Act did not 

require the Federal Government to obtain a license or make annual 

payments when it developed and operated a dam project directly. 

A few weeks later, Secretary of the Interior Harold Ickes endorsed 

correspondence indicating that the Colvilles should receive a share 

of the revenue from the sale of power produced by the dam. 

Over the next several years, the Federal Government moved 

ahead with construction of the Grand Coulee Dam, but somehow 

the promise that the tribe would share in the benefits produced by 

it was not fulfilled. The Bonneville Power Administration was created within the Department of the Interior to market the power 

that would be produced by the Grand Coulee and other dams in the 

Columbia River system. Plentiful production of electricity from the Grand Coulee Dam 

stimulated aluminum production and helped the U.S. armed forces 

equip themselves for World War II. This cheap source of power has 

transformed the economy of the entire Pacific Northwest region. 

But for the Confederated Tribes of the Colville Reservation, the 

impact of the Grand Coulee project was just the opposite. The 

power that affected the tribe was not the water surging through 

the turbines, but the water backing up behind the dam, flooding 

the villages that had been their home for generations. The Colville 

shared only marginally from these great economic benefits. 

Although the government seemed to have forgotten its promise, 

the tribe did not. The wall of concrete a mile wide and 550 feet tall 

and the vast lake over what had once been their homes were a 

daily reminder. After the Second World War, Congress enacted the 

Indian Claims Commission Act, which allowed tribes to bring suit 

for redress where they believed the government had taken actions 

against their interests that were not "fair and honorable." 

Forty-three years ago, on July 3, 1951, the Confederated Tribes 

of the Colville Indian Reservation filed suit under this act for the 

Federal Government's failure to permit them to share in the benefits of the Grand Coulee Dam. 

This case has dragged on for decades. In the late 1970s, more 

than a quarter century after the suit was filed, the Federal Government established a negotiating team to seek an honorable settle-
34 

ment to the case. Although at the time the head of the U.S. negotiating team, then Interior Department Solicitor Leo Krulitz admitted that the Colville people, "have been treated shabbily." It took 

until April 21, 1994 to negotiate a settlement approved by both the 

Confederated Tribes of the Colville Indian Reservation and the executive branch of the Federal Government. It is that settlement 

which I am today urging this committee and the whole Congress 

promptly to approve. 

Because the tribe has waited so long for us to keep our promise, 

and because the benefits to the American people from this dam 

partly built on the tribe's territory has been so great, fairness has 

required that the settlement be large. This settlement will be, in 

fact, the largest settlement or judgment received by a tribe in any 

case brought before the Indian Claims Commission Act. For the 52 

years that the tribe was not paid what was promised to them, the 

Indians will receive a lump sum payment of $53 million to be paid 

within 45 days after the bill becomes law. Beginning no later than 

March 1, 1996, the tribe will receive $15.25 million each year for 

so long as the waters flow through the Grand Coulee turbines. The 

parties have also reached agreement on annual adjustments to 

take into account revenue fluctuations and inflation over the years. 

From the lump sum payment, the Colville Tribe has decided to 

provide an immediate payment of $5,937 to each member of the 

tribe. The Council has chosen to make this initial distribution in 

this way to ensure that its elders receive immediate benefit from 

the settlement, since they have borne this burden and waited for 

its resolution for so long. From the future annual payments, the 

Colville Tribes will be able to meet the needs of its future generations. 

After this bill becomes law, when members of the tribe see the 

massive wall of concrete and the lake behind it each day, we hope they will see them less as wrong inflicted on them by a government 

that forgot its promises and more as a continuing contribution to 

their future. 

As for the rest of us, I am reminded of the words of Justice Black 

in dissent 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. 

This concludes my prepared statement, and I will be happy to 

answer questions. 

Ms. SHEPHERD. Thank you very much. 

[Prepared statement of Ms. Deer follows:] 
85 

STATEMENT OF ADA DEER, ASSISTANT SECRETARY FOR INDIAN AFFAIRS, 

UNITED STATES DEPARTMENT OF mE INTERIOR, BEFORE TilE HOUSE OF 

REPRESENTATIVES COMMITTEE ON NATURAL RESOURCES, SUBCOMMITTEE 

ON OVERSIGHT AND INVESTIGATIONS ON H.R. 4757, "COLVILLE INDIAN 

TRIBES." 

Good Morning, Mr. Chairman and Members of the Committee. It is with great pleasure that 

I come before you today to testify in favor of enactment of H.R. 4757. 

Originally, an agency of the State of Washington planned and obtained a permit to develop a 

hydroelectric dam on the Columbia River on the Colville Indian Reservation. That license 

contained a provision to share the benefits of the dam with the Colville Tribes by agreeing to 

make annual payments to the Tribe for its use of the Tribe's land to produce hydropower. 

However, in 1933 the United States took over the project under the National Industrial 

Recovery Act. That same year the Senate Committee on Indian Affairs held a hearing on the 

Colville Reservation and the question arose whether the Tribe would still receive annual 

payments even though the Federal Power Act did not require the Federal Government to 

obtain a license or make annual payments when it developed and operated a dam project 

directly. A few weeks later Secretary of the Interior Harold Ickes endorsed correspondence 

indicating that the Colvilles should receive a share of the revenue from the sale of power 

produced by the dam. 

Over the next several years the Federal Government moved ahead with construction of the 

Grand Coulee Dam, but somehow the promise that the Tribe would share in the benefits 
36 

produced by it was not fulfilled. The Bonneville Power Administration was created within 

the Interior Department to market the power that would be produced by the Grand Coulee 

and other dams in the Columbia River system. 

Plentiful production of electricity from the Grand Coulee Dam stimulated aluminum 

production and helped the U.S. Armed Forces equip themselves for World War II. This 

cbeap source of power has transformed the economy of the entire Pacific Northwest Region. 

But for the Confederated Tribes of the Colville Resen!ation, tbe impact of the Grand Coulee 

project was just the opposite. Tbe power that affected tbe Tribe was not the water surging 

through the turbines, but the water backing up behind the dam flooding the villages that had 

been their home for generations. The Colville shared only marginally from these great 

economic benefits. 

Although the Government seemed to have forgotten its promise, the Tribe did not. Tbe wall 

of concrete a mile wide and SSO feet tall and the vast lake over what had once been their 

homes were a daily reminder. After the Second World War Congress enacted tbe Indian 

Claims Commission Act, which allowed tribes to bring suit for redress where they believed 

the Government had taken actions against their interests that were not "fair and honorable. • 

Forty-three years ago, on July 3, 1951, the Confederated Tribes of the Colville Indian 

Reservation fLied suit under this Act for the Federal Government's failure to permit them to 

share in the benefits of the Grand Coulee Dam. 

2 
37 

This case has dragged on for decades. In the late 1970s, more than a quarter century after 

suit was filed, the Federal Government established a negotiating team to seek an honorable 

settlement to the case. Although at the time the head of the U.S. negotiating team, then 

Interior Department Solicitor Leo Krulitz, admitted that the Colville people "have been 

treated shabbily," it took until Apri121, 1994, to negotiate a settlement approved by both the 

Confederated Tribes of the Colville Indian Reservation and the Executive Branch of the 

Federal Government. It is that settlement which I am today urging this committee and the 

whole Congress promptly to approve. 

Because the Tribe has waited so long for us to keep our promise and because the benefits to 

the American people from this dam partly built on the Tribe's territory has been so great, 

fairness has. required that the settlement be large. This settlement will be, in fact, the largest 

settlement or judgment received by a Tribe in any case brought under the Indian Claims 

Commission Act. For the 52 years that the Tribe was not paid what was promised to them, 

the Indians will receive a lump sum payment of $53 million to be paid within 45 days after 

this bill becomes law. Beginning no later than March I, 1996, the Tribe will receive $15.25 

million each year for so long as the waters flow through the Grand Coulee turbines. The 

parties have also reached agreement on annual adjustments to take into account revenue 

fluctuations and inflatiol\ over the years. 

From the lump sum payment, the Colville Tribe has decided to provide an immediate 

payment of $5,937 to each member of the Tribe. The Council has chosen to make this initial 

3 
38 

-distribution in this way to ensure that its elders receive immediate benefit from the 

settlement, since they have borne this burden and waited for its resolution for so long. From 

the future annual payments, the Colville Tribes will be able to meet the needs of its future 

generations. 

After this bill becomes law, when members of the Tribe see each day the massive wall of 

concrete and the lake behind it, we hope they will see them less as wrong inflicted on them 

by a government that forgot its promises and more as a continuing contribution to their 

future. As for the rest of us, I am reminded of the words of Justice Black in dissent 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. 

That concludes my prepared statement; I would be happy to answer questions . 

. 4 
39 

Ms. SHEPHERD. Mr. Steenland. 

STATEMENT OF PETER STEENLAND 

Mr. STEENLAND. Good morning, Madam Chairperson and Members of the committee. My name is Peter Steenland and I am 

pleased to appear before you today on behalf of the Department of 

Justice to testify on H.R. 4757. 

You have already heard from the plaintiffs in this lawsuit that 

is the subject of the hearing. And, you have heard from two Federal 

agencies. They have given you their perspective on this. We have 

provided the committee with a very lengthy statement. I guess it 

is only appropriate for a lawsuit that has gone on for more than 

40 years that we do. 

I think what would be most helpful would be for me to very briefly summarize our testimony from the perspective of the government's litigators, because you have heard from the BPA and Interior, and gotten their perspective. 

This is a very important legislative settlement of a very difficult 

and troublesome case. H.R. 4757 provides a legislative settlement 

of a lawsuit that was filed by the tribes in 1951. We are very happy 

and very proud to say that by working diligently and in good faith, 

the tribes, Bonneville Power, the Department of the Interior, and 

our Department have been able to fashion a proposed settlement 

which everyone thinks is fair. We all appear before you today to 

recommend it as an appropriate resolution of this dispute. 

The government's liability in this case goes back to the "fair and 

honorable" dealings clause of the Indian Claims Commission Act 

which Congress passed on August 13, 1946. The Indian Claims 

Commission Act provides that for any tribal claims of wrong under 

those provisions, they had to be filed within five years of August 

13, 1951, or they would be time-barred. The time bar has been, in 

our view, an essential and important component of that act. The 

Confederated Tribes of the Colville Reservation timely filed this 

lawsuit in 1951. In our judgment, for this reason, the legislative 

settlement of this lawsuit will not serve as a precedent for the settlement of claims by Indian tribes that did not file claims in a timely manner. 

As has been suggested this morning, the tribes and the Federal 

Government have been actively involved in settlement negotiations 

now for some time. These negotiations have resulted in a proposed 

settlement agreement that has two components: one is a lump sum 

award to compensate the tribe for lost power revenues from 1942 

to the present, and the other is a future annual revenue-sharing 

plan. The lump sum payment would be made by an agreed judgment in the Court of Claims and paid from the judgment fund. The 

annual payments would come from revenues derived from powersharing generated at the Grand Coulee Dam starting in 1996. 

Madam Chairperson, Members of the committee, in our judgment, the Federal Government is not that well postured for a victory on this claim which has been pending for over 40 years. Absent the settlement, we could well litigate it for another 10 years 

and the outcome could easily be a significant cost to the taxpayers 

and to the public. For that reason, we do not believe that further 
40 

protracted litigation would serve the interest of justice, or the 

American taxpayers. 

We have been given terrific assistance by the tribe in reaching 

a resolution here. The Solicitor of the Interior Department, John 

Leshy, has been very helpful. The General Counsel of the Bonneville Power Administration has played an integral role in these mediation and negotiation efforts; and our own staff, with members of 

the Justice Department, have done a terrific job. We are very proud 

of all of them. 

We are proud of this agreement, and we urge your consideration 

and approval of it. 

Thank you. 

Ms. SHEPHERD. Thank you very much. 

[Prepared statement of Mr. Steenland follows:] 
41 

11\epartntent of J(ustite 

PETER R. STEENLAND 

APPELLATE SECTION CHIEF 

ENVIRONMENT AND NATURAL RESOURCES DIVISION 

BEFORE THE 

SUBCOMMITTEE ON OVERSIGHT AND 

INVESTIGATIONS 

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

CONCERNING 

CONFEDERATED TRIBES OF THE COLVILLE RESERVATION 

GRAND COULEE DAM SETTLEMENT ACT 

H.R. 4757 

PRESENTED ON 

AUGUST 2, 1994 
42 

Mr. Chairman and Members of the Committee--

My name is Peter R. Steenland and I am pleased to appear 

before you on behalf of the Department of Justice to testify on 

H.R. 4757, the Confederated Tribes of the Colville Reservation 

Grand Coulee Dam Settlement Act. 

Introduction and Summary -- H.R. 4757 provides for a 

legislative settlement of Confederated Tribes of the Colville 

Reservation v. United States, Docket No. 181-D, a lawsuit filed 

by the Tribes in 1951 before the Indian Claims Commission. We 

are pleased to state that by working diligently and in good 

faith, the Tribe, the Bonneville Power Administration (Department 

of Energy) , the Department of the Interior and our Department 

have been able to fashion a proposed settlement which all think 

fair and which we can all recommend to you as an appropriate 

resolution to this dispute. We are very proud of that joint 

effort. 

This case concerns the government's alleged denial of power 

revenue benefits to the plaintiff Indian Tribes from construction 

and operation of the Grand Coulee Dam project, which utilized the 

Tribes' lands and water power rights. The dam was completed in 

1942 and has been generating hydroelectric power since that time 

without any payments to the Tribes. The dam is maintained and 

operated by the Department of the Interior, Bureau of 

Reclamation, and the power is marketed by the Bonneville Power 

Administration of the Department of Energy. 
43 

The government's potential liability traces to the "fair and 

honorable dealings" clause of the Indian Claims Commission Act of 

August 13, 1946, 60 Stat. 1049, 1050. In a larger sense, that 

Act waived the government's sovereign immunity for the purpose of 

allowing the Indian Claims Commission to consider and adjudicate 

tribal claims of "ancient" wrongs. The Court of Claims (now the 

United States Court of Federal Claims) inherited the Commission's 

jurisdiction by virtue of the Act of October 8, 1976, 90 Stat. 

1990. 

The Indian Claims Commission Act of 1946 provides that any 

tribal claims for wrongs under its enabling provisions had to be 

filed within five years of August 13, 1951, or they would be time 

barred. The time bar has been, in our view, an essential and 

important component of Act. The Confederated Tribes of the 

Colville Reservation timely filed this lawsuit in 1951. For this 

reason, the legislative settlement of this action will not serve 

as a precedent for the settlement of claims by Indian tribes that 

failed to file their claims in a timely manner. 

The Tribes and the federal government have been actively 

engaged in settlement negotiations for over a year. These 

negotiations have resulted in a proposed settlement agreement. 

The proposed settlement has two components. One is a lump sum 

award to compensate the Tribes for lost power revenues from 1942 

to present, and the other is a future annual revenue sharing 

plan. The lump sum payment would be made by an agreed judgment 

in the Court of Federal Claims and paid from the Judgment Fund 

2 
44 

under 31 U.S.C. § 1304. The annual payments would come from 

revenues derived from power generated at the Grand Coulee Dam 

starting in 1996. 

The federal government is not well postured for a victory on 

this claim which has been pending for over 40 years. Thus we do 

not believe that further protracted litigation would serve the 

interest of justice or those of the American taxpayers. 

DISCUSSION 

This lawsuit involves a claim of entitlement by the 

Confederated Tribes of the Colville Reservation to a share of the 

power revenues attributable to the Grand Coulee Dam and the 

Franklin D. Roosevelt Reservoir on the Columbia River in the 

State of Washington, from the time of its construction and 

operation. 1 

1. The Confederated Tribes of the Colville Reservation --

A brief history of the Colville Reservation is helpful here. The 

reservation was carved out of an extensive region in the Pacific 

Northwest that included the ancestral lands of a number of Indian 

bands. Those bands later became members of the Confederated 

Tribes. The government acquired title to the region which was 

the aboriginal domain of the Tribes by a Treaty with Great 

Britain on June 15, 1846. The reservation was later created by 

This particular Docket, No. 181-D, was stayed pending resolution 

of other actions within Docket No. 181. In Dockets 181-A and B, 

which were consolidated, the Indian Claims Commission awarded the 

Tribes $3.5 million for land claims in 1967. In 1978, the Indian 

Claims Commission awarded the Tribes $3.257 million in Docket 

181-C for the loss of their fisheries as a result of the 

construction of the Grand Coulee Dam. 

3 
45 

the Executive Order of President Grant on July 2, 1872. The 

boundaries of the 3,000,000 acre reservation were described as 

being "bounded on the east and south by the Columbia River, on 

the West by the Okanogan River, and on the North by the British 

possessions." 

The decision to build the Grand Coulee Dam -- This dispute 

arose when the government decided to construct the Grand Coulee 

Dam on the Columbia River adjacent to the reservation. From 1927 

to 1931, at the direction of Congress, the Corps of Engineers 

·investigated the Columbia River and its tributaries. The Corps' 

report listed a number of sites, including Grand Coulee, where 

power could be produced at low cost, and recommended that the 

development be performed by local governmental authorities or 

private utilities under the Federal Power Act of 1935. Under 

Section lO(e) of the Federal Power Act, licensees must pay Indian 

tribes for the use of reservation lands. 

Shortly thereafter, the Columbia Basin Commission, an agency 

of the State of Washington, applied for, and in August 1933 

received a preliminary permit from the Federal Power Commission 

for the water power development of the Grand Coulee site. When 

the project was federalized, however, the preliminary permit was 

cancelled. Instead, the federal government, which is not subject 

to the Federal Power Act, undertook to build the dam. That 

action precluded commercialization of water power by the Tribes. 

The government began building the dam in the mid-1930's. A 

letter dated December 5, 1933, to the Supervising Engineer 

4 
46 

regarding the Grand Coulee and the power interests of the Tribes, 

with the approval signature of Secretary of the Interior Ickes, 

states: 

This report should take into 

consideration the most valuable purpose to 

which the Indians' interests could be placed, 

including the development of hydro-electric 

power. 

We cannot too strongly impress upon you the 

importance of this matter to the Indians and 

therefore to request that it be given careful and 

prompt attention so as to avoid any unnecessary 

delay. 

Also, a letter dated December 5, 1933, to the Commission of 

the Bureau of Reclamation and endorsed by Interior Secretary 

Ickes, stated that "it is necessary to secure additional data 

before we can advise you what would constitute a reasonable 

revenue to the Indians for the use of their lands within the 

[Grand Coulee] power and reservoir site areas." And a letter 

dated June 4, 1935 from the Commissioner of the Bureau of 

Reclamation requested that additional data be secured to 

determine "a reasonable revenue to the Indians for the use of 

their lands within the power and reservoir site areas." 

The Dam, after a series of Acts appropriating funds for the 

continuation and eventual completion of the project, began to 

generate hydroelectric power in 1941 and was completed in 1942. 

Pursuant to the Act of June 29, 1940, the Secretary of the 

Interior compensated the Tribes $63,000 for some 3,000 acres of 

lands taken as a result of the Dam project. However, the 

compensation made to the Tribes did not include remuneration for 

5 
47 

power related values taken by the government, and the Tribe is 

not presently given a share of the ongoing revenues from power 

generation. 

This litigation After the enactment of the Indian Claims 

Commission Act, the Tribes timely filed this action in 1951, 

contending that the government must pay compensation for the 

hydroelectric power generated by the flow of the Columbia River 

over the tribal lands taken in aid of the Grand Coulee Dam. 

Ultimately, the government filed a motion for partial summary 

judgment arguing that the Tribes were precluded from recovering 

any compensation because Congress, in authorizing the Dam, 

exercised its constitutional powers to promote and aid navigation 

for the public good. It asserted that this proper exercise of 

the navigational servitude legally foreclosed a~y attempt by the 

Tribes to recover compensation for water power values stemming 

from the flow of the Columbia River. The government further 

argued that it had not assumed or breached any trust 

relationship, special or otherwise, when it took certain tribal 

lands to build the project. 

The Tribes responded with a cross-motion for partial summary 

judgment arguing that, even if the navigational servitude was 

properly exercised by the government, the servitude was 

subordinate to claims initiated under the extra-legal grounds of 

recovery provided in the "fair and honorable dealings" clause of 

the Indian Claims Commission Act. The Tribes further argued that 

notwithstanding any exercise of the navigational servitude, they 

6 
48 

were entitled to recover power revenue benefits under the Indian 

Claims Commission Act's fair and honorable dealing clause. 

The Claims Court granted the government's motion for summary 

judgment and dismissed the petition, holding that the 

navigational servitude was superior to all the Indian legal, 

equitable, and moral claims presented in this case. On appeal, 

the Federal Circuit affirmed-in-part and reversed-in-part and 

remanded for trial, holding that while plaintiff had no legal and 

equitable claim based on the navigational servitude, they did 

have a viable moral claim based on the "fair and honorable 

dealings" provision of the Indian Claims Commission Act of 1946. 

S~e Confederated Tribes of Colville Reservation v. U. s., 964 

F.2d 1102 (Fed. Cir. 1992). 

With the Federal Circuit's ruling that the Tribes' moral 

claim under the "fair and honorable dealings" provision of the 

Indian Claims Commission Act survives the defenses raised in 

government's motion for summary judgment, the historical record 

will become the focus in the litigation. 

While this litigation was underway, in 1975, the Senate 

Committee on Appropriations directed the Secretaries of the 

Interior and Army to open discussions with the Tribes to assess a 

resolution of this dispute. s. Rep. 94-505, p. 79. Pursuant to 

that directive, a task force, consisting of the Departments of 

the Interior and Army, and the Bonneville Power Administration, 

issued a final report in September 1980. 

7 
49 

The report was approved by the Secretary of the Interior. 

It concluded among other things that there was "no question but 

that the Tribes would be entitled to compensation had the 

projects been built and operated by the Federal Power Act 

licensees," and that the Tribes would have received a reasonable 

benefit as fixed by that Commission pursuant to Section lO(e) of 

the Federal Power Act. The report further suggested that the 

legal defenses of the United States be exhausted with respect to 

the navigational servitude before further action be taken 

regarding the Tribes• power claims. With the recent Federal 

Circuit decision in this action, that has, in effect, been done. 

In this action, the federal historical record will be tested 

under the standard set by Aleut Community v. United states, 480 

F.2d 831, 839 (Ct.Cl. 1973), for establishing a fair and 

honorable dealings claims: 

There must be a showing [1] that the United States 

undertook an obligation, a "special relationship," 

[2] the obligation was to the Tribe, [3] that the 

United States failed to meet its obligation, and 

[4] that as a result the Tribe suffered damages. 

For its part, the Federal Circuit has already stated that it 

is undisputed that the Tribes were attempting commercial 

development of the Columbia River from riparian lands upstream of 

the Grand Coulee Darn prior to construction and that the 

government knowingly interfered with and frustrated the endeavors 

of the Tribes. Moreover, with respect to Tribes• efforts to 

develop their water power interests, that Court stated that "the 

8 
50 

United States itself knowingly interfered with and frustrated the 

endeavors of the Colville Tribes." 

The resolution reached in the proposed settlement does not 

constitute an admission of liability. In fact, we would 

vigorously contest liability if the Tribes• claim were litigated. 

But, we are prepared to recognize that the record, in this timely 

filed "claim, can be read to reflect an undertaking by the United 

States with respect to power values. Because of that we think it 

is fair and just to fashion a complete resolution of this longstanding claim. We believe that we have crafted such a complete 

resolution in the proposed settlement. 

VALUATION 

The Grand Coulee Dam has been generating electric power 

since 1941. Therefore, for an assessment of past damages in this 

action, we look at power values for fiscal years 1942 to 1994, a 

fifty-two year period. Although the project has been generating 

power since 1941, it has never paid any rental or annual charge 

for power values to the Tribes. Had the project continued under 

the original license as a non-federal project subject to Section 

lO(e) of the Federal Power Act, the Tribes would have received a 

reasonable annual payment fixed by the Federal Power Commission 

(which is now the Federal Energy Regulatory Commission) . 

After extensive negotiations, the Tribes and the government 

arrived at an agreed $53 million lump sum for back payments since 

1942 in settlement of the Tribes• timely claim for lost power 

revenues in the operation of the Grand Coulee Dam. For 

9 
51 

settlement of future claims, BPA and the Tribes have agreed to an 

annual payment of $15.25 million starting in 1996 based on a 

percentage factor of the annual profits from the Dam's 

operations. 

CONCLUSION 

It is our judgment that settlement is both warranted and 

feasible. We believe that the settlement agreement signed by the 

Department of Justice, the Department of the Interior, and the 

Bonneville Power Administration of the Department of Energy is 

fair and in the interest of all concerned parties. We therefore 

recommend that H.R. 4757 be enacted into law. 

That concludes my prepared testimony. At this time, Mr. 

Chairman, I would be pleased to respond to questions or comments 

from you or other Committee Members. 

10 
52 

Ms. SHEPHERD. We are now open for questions. 

Mr. Smith. 

Mr. SMITH. Thank you, Madam Chairman. 

Mr. Robertson, welcome to the steamy east. 

Mr. ROBERTSON. Thank you, Congressman. 

Mr. SMITH. He and I come from Oregon, so we understand what 

good weather is really like. 

I wanted to ask you what the effective rate impact on BPA ratepayers will be because of the estimated $15 million annual payment. 

Mr. ROBERTSON. Mr. Smith, the specific rate impacts of this can't 

be determined yet. It will clearly add incrementally to rate pressures. It is designed to allow us to shape this rate pressure into 

our rates by 1996. Between then and now, as you know, we are 

going through a major overhaul of our rates and our business approach to power marketing. 

So, it is complicated to say what precisely will occur in terms of 

rate pressures. It will add, obviously, an additional $15 million to 

a roughly $2.3 billion Bonneville base budget. 

Mr. SMITH. Minimal, minimal rate increase, $15 million to $2.3 

billion? 

Mr. RoBERTSON. Yes, right. 

Mr. SMITH. Do you have any idea what the litigation, Mr. 

Steenland, has cost the Federal Government and the taxpayers 

over this issue? 

Mr. STEENLAND. The litigation, Congressman, has been an important component of one of our divisions in the Justice Department. I don't have the exact numbers, but I can say with a great 

deal of confidence that we have expended over 1,000 hours within 

the past two years working on this case. 

Going back 40 years, it is a harder to quantify because we didn't 

keep exact records on attorney time over that period. For some period, the case was relatively dormant, but as the records indicate 

in the statements provided this morning, it did begin to heat up 

in the mid-1970s. So I think that we can justify this on the basis 

of expenses both in terms of cost to the Justice Def.artment and the 

potential exposure to the Judgment Fund, as wei , which is where 

the much larger number would come from, if we continued to litigate this case and we got a judgment that was much higher than 

this settlement. 

Mr. SMITH. So, roughly, you have identified $1 million? 

Mr. STEENLAND. Yes, sir. 

Mr. SMITH. Yes. 

Mr. Palmanteer, how much has litigation cost the tribes? Do you 

have any idea? 

Mr. PALMANTEER. We have two attorneys', contracts with two different firms, one firm who initially initiated the case, and the recent firm that has been handling the case for us. But it is a contingency contract where they will receive a total of 10 percent of the 

annual payments that the tribe will receive for the first 10 years. 

It will be split equally between the two firms. 

Mr. SMITH. Okay. Thank you. 

Mr. Steenland, you have seen and, I am sure, read the testimony 

of the Spokane Indian Tribe, which they will present here in a mo-
53 

ment. And I heard the explanation that you made that this is not 

a precedent, yet we do know that in other areas of the law, the 

statute of limitations is a figment of the current imagination about 

whether it should apply or not. 

It seems to me a very good case could be made in 1951 for the 

Spokane Indians, simply because they had no attorneys, and in 

those days they were not informed of our laws. If you were the 

plaintiffs' attorney, wouldn't they have a fair case? 

Mr. STEENLAND. Congressman, what I would suggest is this, that 

that question be bifurcated if we can, split into two parts in terms 

of first saying, is H.R. 4757 an appropriate resolution of litigation 

that has in fact been pending for well over 40 years? Have the Justice Department and the Interior Department and BPA done well 

in terms of the taxpayers, in compromising a certain liability, have 

we done a good job there? 

Mr. SMITH. I would say no. It took you 50 years to get it done. 

Mr. STEENLAND. Well, perhaps we should have done it more 

quickly. But today is better than next year or better than four 

years down the road. I think that the Spokane case presents a different question, because that is not litigation; that does not have 

the certainty of an adverse judgment. That is why we are here; we 

are the litigators. 

That presents a policy question. And that is something that, you 

know, perhaps Interior might want to address. Our focus is simply 

that we think we have brought an appropriate resolution of a difficult case to this committee. 

Mr. SMITH. I am not arguing that point with you, except to ask 

you again, if there were not a statute of limitations issue here, 

would the Spokane Tribe have an equally important and an equal 

right to a judgment? 

Mr. STEENLAND. If we did not have a statute of limitations, then 

the Spokane Tribe would have to file its own lawsuit. 

Mr. SMITH. I understand. 

Mr. STEENLAND. And after it filed its lawsuit, Congressman, we 

would make an assessment as to what the vulnerability or liability 

of the United States might be for that claim. 

Mr. SMITH. Right. 

Mr. STEENLAND. We haven't done that, because it hasn't filed 

that lawsuit. 

Mr. SMITH. Well, I know, but you are ducking my question a little bit. Similar circumstances could be applied to the Spokane as 

are here applied. After all, their land was taken, their land was inundated to a smaller extent-with a smaller tribe, understandably. 

But I guess my point is, and I will ask you again to say this is no 

precedent and rest your case on the question of the statute of limitations; I am only saying the Congress of the United States could 

lift those in one swoop of the hand. 

Mr. STEENLAND. There is no doubt, Congressman, that if the 

Congress thinks it is appropriate to waive the statute of limitations, it certainly has the opportunity and the ability to do so; and 

it may very well be that the Department of the Interior might want 

to take a look at this and make a recommendation to the Congress 

as to whether or not that should be done. All I am saying, sir, is 
54 

that from our perspective as the litigator, it is inappropriate for us 

to make a pass on that. 

Mr. SMITH. Well, unless you wanted to retire and go to work for 

the Spokane. 

Ms. Deer, I would like for you to comment on this,question. 

Ms. DEER. Yes. The Spokane Tribe has raised this issue of their 

claim for compensation arising out of the construction of the Grand 

Coulee Dam, and we at Interior are willing to look more closely at 

the merits of their equitable claim and take whatever steps might 

be appropriate, based on that closer look. The legislation now before the committee is framed as a settlement of long-standing litigation brought by the Colville Tribe to which the Spokane Tribe is 

not a party, and its consideration should not be delayed. 

Mr. SMITH. So you don't want to fuss around with this piece of 

legislation right now with respect to the Spokane issue is what I 

hear you saying. 

Ms. DEER. Well, I believe the legislation should proceed, but the 

injustices to the Spokane Tribe need to be recognized. 

Mr. SMITH .. Would Interior support a stand-alone bill to release 

the statute of limitations so that the Spokanes could enter a lawsuit? 

Ms. DEER. We would have to submit this to our lawyers and others. But speaking personally, myself.--

Mr. SMITH. All right. It is probably not fair of me to ask you that 

question. 

Mr. Robertson, do you have anything to add to this discussion? 

Mr. ROBERTSON. Well, I will just reiterate, what we were faced 

with. We were brought into this case relatively late, actually in 

April, I think, of 1993. Just to reinforce the point, there was a clear 

case here that was filed within the appropriate time historically, 

and we feel proud of the fact that we will play at least a significant 

role in helping resolve this issue after 40 years of uncertainty. 

We want to encourage you and the committee to move forward 

on this bill. We think speed is important and action is important, 

and so we are focused on this particular claim and the rightful resolution of it. 

Mr. SMITH. All right. Well, thank you. Thank you alL 

I frankly believe this is a precedent piece of legislation. I don't 

see how in the world anybody can look at it differently. The question remains for fairness for the Spokanes. 

Thank you. 

Ms. SHEPHERD. Thank you, Mr. Smith. 

I have a couple of questions I would like to ask as well. 

Mr. Palmanteer, can you talk to this panel about something you 

left out of your testimony, which I would be really interested in 

knowing about; and that is, what was the economic damage to your 

tribe as the result of the Grand Coulee Dam? It was well enumerated that there weren't many benefits. Was there economic damage? 

Mr. PALMANTEER. Well, as I mentioned slightly in my testimony, 

the loss of a tribal power site, the loss of the lands that were inundated by the backwaters of the Grand Coulee Dam and the loss of 

income from the production of power in the past years; I guess we 
55 

did not have the opportunity to use those funds that we should 

have had coming in the past years for our tribal needs. 

Ms. SHEPHERD. To what degree did the Colville Indians depend 

on the salmon fishing industry to sustain their people? 

Mr. PALMANTEER. The salmon fishery represented a way of life 

for our people. The salmon were a reg1.,1lar part of our diet, and the 

loss of that fishery changed our way of life, actually. We had to 

change our living habits because we didn't have that staple for our 

basic diet. If we wanted to eat salmon, we had to buy it in the store 

or go get it from a neighboring tribe that still had a fishery, and 

it basically changed our way of life by losing the salmon. 

Ms. SHEPHERD. Thank you very much. 

I am not sure who the most appropriate person is to answer my 

next question, perhaps Mr. Robertson or Mr. Steenland. 

It is pretty clear that the benefits of the Grand Coulee Dam flow 

primarily to the people of the Northwest, and yet after the year 

2000, there is an offset payment that will be borne by the American taxpayer; and I would just be interested in knowing what justification there is for that. 

Mr. ROBERTSON. The settlement in its totality represents a contribution both from the taxpayers and a significant contribution 

from the ratepayers-a 70/30 split, as I described in my testimony. 

Looking historically over 50 years, we think that the split is fair 

and reasonable, based on the requirements to settle. 

In lieu of any legislation, looking back again historically and prospectively, the burden of the lawsuit would rest on the taxpayers 

of the United States exclusively. It takes legislative relief, in the 

form we have suggested in the judgment here, to transfer-we 

think appropriately-a significant portion-70 percent-of this responsibility to the ratepayers. This is because the ratepayers have 

historically benefited and will prospectively benefit from the power 

generation at Grand Coulee. 

So, in a complex historical picture and in the mix of exposures that would come if the lawsuit continued, we thought that this constituted a fair and reasonable settlement between the taxpayers 

and the ratepayers. We proposed that and came to settlement within the executive branch. 

Ms. SHEPHERD. All right. Thank you very much. 

I, too, would like to commend you on the settlement, because of 

course there is always cause to cheer when any legal case is settled, I think, but this one in particular, being as long-standing as 

it is and having incurred as much injustice as it has. 

Ms. Deer, let me just ask you if you have anything further that 

you would like to add in terms of the Spokane Indian issue. 

Ms. DEER. Well, basically, in my previous statement I made my 

position clear. I would ask that the committee look at the situation 

there and make a determination based on the request of the Spokane Tribe. 

Ms. SHEPHERD. All right. Thank you very much. 

Mr. Barrett, would you like to ask some questions? 

Mr. BARRETT. I don't have any questions, Madam Chairman. 

I want to welcome Ada Deer, who is a fellow Wisconsinite, and 

I was pleased to see you here this morning-and to congratulate 

you. I used to work in the Federal courts and there was nothing 
56 

that I liked to see more than a settlement in a case, and it looks 

like that is what we are looking at here today, and so I congratulate everyone. 

Ms. SHEPHERD. Thank you. 

We will now turn to the second panel, if we can, please. This is 

a panel that will deal more specifically with the issue of the Spokane Indian tribe. 

Mr. Seyler, Warren Seyler, welcome to the committee, and we 

are open for your testimony. Of course, it will be put entirely into 

the record. 

STATEMENT OF WARREN SEYLER, CHAIRMAN, SPOKANE 

TRIBE OF INDIANS, WELLPINIT, WA 

Mr. SEYLER. Thank you, Madam Chairperson and Members of 

the subcommittee for this opportunity to testify on H.R. 4757. Accompanying me is our attorney, Patrick Smith, who is available for 

questions and may have a few comments. 

I am here today on behalf of the Spokane Tribe to ask for your 

help. Specifically, I ask for your recognition of the Spokane Tribe's 

right to fair and honorable treatment by the United States Government for the Grand Coulee project. We have prepared briefing 

books for the committee, which will provide more detailed background on this issue. My testimony today summarizes our key concerns. 

The reservoir behind Grand Coulee Dam flooded two tribes. We 

are one of those two tribes. Our reservation is smaller than the 

Colville, but the impacts to our people were as severe. We are both 

victims of the same misconduct. 

Our ancestors buried their dead on the banks of the Spokane and 

Columbia Rivers with their heads pointing down river. We did this 

because our life, culture, economy and religion centered around the 

Spokane and Columbia Rivers. We were river people. We were a 

fishing tribe. 

The Spokane River, named after our people, was and is the center of our world. That is why when the Spokane Reservation was 

established in 1881, it expressly provides that the entire adjacent 

river bed of the Columbia and Spokane Rivers is part of the Spokane Reservation. 

Because of Grand Coulee Dam, the Spokane River is now an arm 

of Lake Roosevelt. The western and southern boundaries of our reservation, our best lands and fishing sites, lie at the lake bottom. 

In 1978, the United States Indian Claims Commission ruled that 

the United States Government's conduct in building Grand Coulee 

Dam was unfair and dishonorable and, therefore, awarded the 

Colville Tribe over $3 million for fishing losses. In 1992, the Appeals Court for the Federal Circuit ruled that the Colvilles' claim 

for power value, based on the same standard, was not barred. This 

resulted in the recent settlement that brings us here today. 

The Spokane Tribe was subjected to the identical misconduct by 

the United States Government as the Colville Tribe. Both tribes 

were equally deceived. In 1933, when construction on Grand Coulee 

Dam began, the Commissioner of Indian Affairs recommended, in 

writing, compensation to both tribes in the form of annual payments. It never happened. 
57 

Grand Coulee Dam is one of the largest concrete structures in 

the world and this Nation's largest producer of electricity. It has 

produced enormous benefits for others in subsidized irrigation, 

cheap electricity and water pumped to the Columbia Basin. Gross 

electricity sales from Grand Coulee Dam are approximately $400 

million each year. 

The Spokane Tribe has subsidized this cheap electricity for 53 

years through the loss of our cultural, religious, burial, power and 

irrigation sites. We have never been compensated for the destruction of our fishery or for the contribution to Grand Coulee power 

production. The total compensation the Spokane Tribe has received 

from the United States Government is $4,700. Yet, every day the 

Grand Coulee project produces millions of dollars in benefits to our 

trustee and others. 

I am here today requesting that this injustice not go unanswered, that the United States Government recognize our contributions and sacrifices. Many of the Spokane claims are barred by 

statutes of limitation. Unlike the Colville, our tribe did not have attorneys to advise us to file a claim for Grand Coulee before the August 1951 filing deadline set forth in the Indian Claims Commission Act, nor did the BIA advise us how or when to file this claim, 

as provided in the Act. The BIA office serving our reservation was 

located 100 miles away on the Colville Reservation. Unlike the 

Colville, whose government was organized and functioning years 

before the filing deadline, our tribal government organized, and our 

constitution was approved, only two months before the filing deadline in 1951. 

We are requesting that Congress include as a separate title to 

this bill a waiver of the statute of limitations to allow the Spokane 

Tribe to seek just and equitable compensation from the United 

States Government resulting from construction and operation of 

Grand Coulee Dam. 

There is ample legislative precedent for Congress to do so. In our 

briefing book, at pages 15 through 17, we cite many examples of 

where Congress has waived the statute of limitations and other 

technical defenses where justice and equity so required. A most recent example of this concerns the taking of Indian lands on the 

Fort Berthold and Standing Rock Reservations for the construction 

of the two Federal dams on the Missouri River, the Garrison Dam 

and the Oahe Dam. 

In 1992, having found that the $12 million each Missouri River 

tribe originally received was completely inadequate in light of the 

devastating and disproportionate share of the impact borne by 

those tribes, Congress enacted the Three Affiliated Tribes and 

Standing Rock Sioux Tribe Equitable Compensation Program Act. 

Congress appropriated $149.2 million for the three affiliated tribes 

and $90.6 million for the Standing Rock Sioux tribe. 

In another example, Congress waived the statute of limitations 

for the Zuni Tribe, because, quote, the Zuni Indian tribal leadership failed to comprehend the absolute necessity of filing a claim 

during the statutory five-year period ending in 1951. Numerous 

other examples are cited where Congress afforded similar relief: 

the Wichita tribe, the Sioux, the Cow Creek Band, the Three Affili-
58 

ated Tribes, the Blackfeet, the Gros Ventre, the Assiniboine and 

the Tule River Tribe. 

An equally compelling case exists here. The Columbia and Spokane Rivers were taken from the Spokane Indians over 50 years 

ago in a classic case of self-dealing by our legal guardian. The United States Government exploited the Grand Coulee site for the benefit of itself and others at the expense of the Spokane Tribe. Its 

conduct was neither fair nor honorable, as established by the 

courts and evidenced by the legislation before this body. 

Unless the Congress waives this statute of limitations, there is 

no incentive whatsoever for Federal agencies to negotiate in good 

faith with my tribe. To compensate one of the two tribes devastated 

by Grand Coulee and not the other will only compound the injustice to our people and prolong this conflict. 

We believe it would be unprecedented for Congress to only provide relief to one tribe and not the other when both tribes were 

similarly impacted. 

Madam Chairperson and Honorable members of the committee, 

I ask you to listen to your hearts. We have no place to turn. We 

have no place to go. We ask for our day of justice. We have waited 

for this day for 50 years. 

Thank you. 

Ms. SHEPHERD. Thank you very much. 

[Prepared statement of Mr. Seyler and briefing paper follow:] 
59 

TESTIMONY 01' WARREN SEYLER 

CHAIRMAN 1 SPOKANE '1'1\IBE OF INDIANS 

ON :S.R.4757 

(Gl:U.JIID COOLE:&: DAM COMPENSATION) 

BEFORE THE 

OVJ:RSIGHT AND INVESTIGATIONS SOBCOMMI'l''l'J:E 

011' 'l'BB 

HOOSE COMMITTEE ON NA'l't11U.I. RESOURCES 

August 2, 1994 

Thank you Mr. Chairman and members of the Subcommittee for 

the opportunity to testify on H.R. 4757. Accompanying me is our attorney, Patrick Smith, who is available for questions and may 

have a few comments. 

I am here today on behalf of the Spokane Tribe to ask for 

your help. Specifically, I ask for your recognition of the 

Spokane Tribe's right to fair and honorable treatment by the United 

States Government for the Grand Coulee Project. We have prepared 

briefing books for the Committee which provide more detailed 

background on this issue. My testimony today summarizes our key concerns. 

The reservoir behind Grand Coulee Dam flooded two tribes. We are one of the two tribes. Our reservation is smaller than the 

Colville, but the impacts to our people were as severe. We are both victims of the same misconduct. 

Our ancestors buried their dead on the banks of the Spokane 

and Columbia Rivers with their heads pointing down river. We did 

this because our life, culture, economy and religion centered 

around the Spokane and Columbia Rivers. We were river people. We were fishing people. The Spokane River--named after our people--was and is the center of our world. That is why when the 

Spokane Reservation was established in 1881 it expressly provides 

that the entire adjacent riverbed of the Columbia and Spokane 

Rivers is part of the Spokane Reservation. 

Because of Grand Coulee Dam, the Spokane River is now an arm of Lake Roosevelt. The western and southern boundaries of our Reservation--our best lands and fishing sites--lie at the lake 

bottom. 

In 1978, the u.s. Indian Claims Commission ruled that the 

United States Government's conduct in building Grand Coulee Dam was unfair and dishonorable and, therefore, awarded the Colville Tribe 
60 

over $3 million for fishery losses. In 1992, the Appeals Court for 

the Federal Circuit ruled that the Colville's claim for power 

value, based on the same standard, was not barred. This resulted 

in the recent settlement that brings us here today. 

The Spokane Tribe was subjected to the identical misconduct 

by the United States Government as the .Colville Tribe. Both tribes were equally deceived. In 1933, when construction on Grand Coulee 

began, the Commissioner of Indian Affairs recommended, in writing, 

compensation to hQth tribes in the form of annual payments. It never happened. 

Grand Coulee Dam is one the largest concrete structures in 

the world and this nation's largest producer of electricity. It 

has produced enormous benefits for others--subsidized irrigation, 

"cheap" electricity, and water pumped to the Columbia Basin. Gross 

electricity sales from Grand Coulee Dam are approximately $400 

million each year. 

The Spokane Tribe has subsidized this "cheap" electricity for 

53 years through the loss of our cultural, religious, burial, power 

and irrigation sites. We have never been compensated for the 

destruction of our fishery or for our contribution to Grand Coulee 

power production. The total compensation the Spokane Tribe has 

received from the United States Government is $4,700. Yet, ~ 

~ the Grand Coulee Project produces millions of dollars in 

benefits to our trustee and others. 

I am here today requesting that this injustice not go 

unanswered. That the United States Government recognize our contributions and sacrifices. Many of the Spokane claims are barred by statutes of limitation. Unlike the Colville, our Tribe 

did not have attorneys to advise us to file a claim for Grand 

Coulee before the August 1951 filing deadline set forth in the 

Indian Claims Commission Act. Nor did the BIA advise us how or when to file this claim, as provided in the Act. The BIA office 

serving our Reservation was located 100 miles away on the Colville 

Reservation. Unlike the Colville, whose government was organized 

and functioning years before the filing deadline, our tribal 

government organized, and our constitution was approved, only two 

months before the filing deadline in 1951. 

We are requesting that Congress include as a separate title 

to this bill a waiver of the statute of limitations to allow the 

Spokane Tribe to seek just and equitable compensation from the 

United States Government resulting from construction and operation 

of Grand Coulee Dam. 

There is ample legislative precedent for Congress to do so. In our briefing book, at pages 15-17, we cite many examples of 

- 2 -
61 

where Congress has waived the statute of limitations and other 

technical defenses where justice and equity so required. The most 

recent example of this concerns the taking of Indian lands on the 

Fort Berthold and Standing Rock Reservations for the construction 

of two federal dams on the Missouri River, Garrison Dam and Oahe D~. 

In 1992, having found that the $12 million each Missouri 

River tribe original ly received was completely inadequate in light 

of the devastating and disproportionate share of the impact borne 

by those tribes, Congress enacted the "Three Affiliated Tribes and 

Standing Rock Sioux Tribe Equitable Compensation Program Act." 

Congress appropriated $149.2 million for the Three Affiliated 

Tribes and $90.6 million for the Standing Rock Sioux Tribe. 

In another example, Congress waived the statute of 

limitations for the Zuni Tribe because (quote) "the Zuni Indian 

tribal leadership failed to comprehend the absolute necessity of 

filing a claim during the statutory five-year period ending in 

1951." (P.L. 95-280). Numerous other examples are cited where 

Congress afforded similar relief: the Wichita Tribe, the Sioux, 

the Cow Creek Band, the Three Affiliated Tribes, the Blackfeet, the 

Gros Ventre, the Assiniboine, and the Tule River Tribe. 

An equally compelling case exists here. The Columbia and 

Spokane Rivers were taken from the Spokane Indians over 50 years 

ago in a classic case of self-dealing by our legal guardian. The 

United States Government exploited the Grand Coulee site for the 

benefit of itself and others at the expense of the Spokane Tribe. 

Its conduct was neither fair nor honorable--as established by the 

courts and evidenced by the legislation before this body. 

Unless the Congress waives this statute of limitations, there 

is no incentive whatsoever for federal agencies to negotiate in 

good faith with our Tribe. To compensate one of the two Tribes 

devastated by Grand Coulee, and not the other, will only compound 

the injustice to our people and prolong this conflict. 

Mr. Chairman, and honorable members of this Committee, I ask 

you to listen with your hearts. We have no place to turn. We have no place to go. We ask for our day of justice. We have waited for 

this day for over fifty years. 

Thank you. 

- 3 -
62 

Spokane Tribe of Indians P.O. Box 100 • Wellpinl~ WA 99040. Ph. (5011) 258-4581/838-3otel! 

CENTFRY OF SURVIVAL 

1881 . 1981 

A Message from the Spokane People: 

We offer tor your review end analysis the attached briefing paper. It summarizes past history and recent 

events surrounding the United States Government's taking of the Spokane People's land and waters for the 

construction and operation of the Grand Coulee Dam. 

This taking of our land and waters and the destruction of our salmon runs was accomplished with complete 

disregard lor the rights and welfare of the Spokane People. Grand Coulee flooded the western and southern 

boundaries of our Reservation-it's heartland. Our social and cultural ways were changed forever. The very 

core of our subsistence was uprooted. forcing our dependence on the United States for our livelihood. 

While we continue to suffer, others in the Pacific Northwest reap enormous benefits from irrigation and 

hydropower from Grand Coulee. It brought growth end prosperity to the Northwest. It brought poverty to 

our People. 

In 1978, the Colville Tribe received $3.2 million in compensation for their destroyed fishery. Legislation has 

been introduced (5. 2250 and H.R. 4757) which will compensate the Colville People for past use ($53 

million) and future use ( $15 million annually) of Colville lands and waters. This compensation is based on 

the United States• obligation to deal "fairly and honorably" with the Colville Tribe over these matters. 

The Spokane People have never been compensated lor our lost fishery. We have never been compensated 

for our Tribe's contribution to Grand Coulee power production. The United States Government has turned 

a blind eve to the injustice inflicted on our People. 

The Grand Coulee Settlement Act provides the opportunity for the United States Government to honorably 

and fairly correct this injustice. Justice must be afforded to both Tribes. Both ere victims of the identical 

dishonorable conduct. Both have suffered equally. Correcting the injustice for one Tribe. end not the other, 

only compounds the injustice. 

We are encouraged tnat the United States is willing to offer legislation on behalf of the Colville Tribes, but 

we can not stand idly by and allow the injustice to our Tribe go unanswered. 

We, the Spokane People, request President Clinton and the United States Congress to address this injustice 

through a separate title to the Grand Coulee Settlement Act to provide just compensation to the Spokane 

Tribe of Indians. 

We ask for your support. 
63 

IMPACTS AND HISTORY OF GRAND COULEE DAM 

Largest concrete dam in wo- 1.d flooded western and southern 

boundaries of Reservation 1 .o miles total); ended upstream 

fish migration in 1939. 

Fishing--and Spokane River in particular-was center of 

Spokane People's econany, religion and lifestyle. Had lived 

and fished there since time tmmemorial. Destruction of 

fishery made Spokane dependent on u.S. 

1881 Spokane Reservation boundaries expressly include entire 

adjacent riverbed of Columbia and Spokane Rivers (because of 

fishing reliance). 

In 1933, when construction on dam started, the BIA intended 

to pay annual rental to the Tribes. (U.S. knew of fishing 

reliance and knew it was flooding other tribal power sites.) 

Tribe received only $4,700 in compensation, yet: 

- -Grand Coulee's gross electricity sales are about $400 

million/year (does not include additional reservoir storage 

power value to downstream dams). 

--Largest electricity producer in the United States (6,500 

megawatts) • --Its pumps deliver 500,000 acre feet of water for 

off-Reservation irrigation. 

-Power subsidizes construction costs of irrigation projects. 

--Enormous benefits to Pacific Northwest and Nation continue 

to accrue while Spokane live in poverty. 

Colville and Spokane subject to identical dishonorable 

conduct by United States Government. 

COLVILLE CLAIMS 

COMPENSATION FOR POWER PRODUCTION. In 1992, U.S. Claims Court 

ruled that United States was liable to the Colville for 

failing to deal •fairly and honorably• on Grand Coulee by expropriating power value of river for itself. 

--This resulted in 1994 Settlement of $53 million for past use of tribal lands and $15 million annually in perpetuity. 

COMPENSATION FOR LOST FISHERY. In 1978, Indian Claim 

Commission awarded Colville $3.25 million for fishery losses 

1 
64 

for United States• dishonorable dealings at Grand Coulee. 

(This $3.2 million has a present value of over $7 million 

today.) 

WHY SPOKANE DID NOT FILE CLAIM 

Spokane Tribe missed 1951 ICCA filing deadline because: 

--Did not have attorneys (until too late) 

--Did not know it could file separate claim for Grand Coulee 

(It had received $4,700 in compensation under 1940 Act) 

--special lands claim legislation was vetoed by 

President Coolidge (This was only claim Tribe knew about.) 

--BIA, 100 miles away at Colville, did not advise the Tribe 

that it could bring claim (though required to do so) • --Inexperience: Spokane Government/Constitution approved 

6- 27-51 (2 months before filing deadline). 

In 1993, Spokane Tribe was requested by Colville Tribe to 

defer pursuit of compensation from United States until 

Colville reached agreement with Justice Department. Spokane 

honored that request. The issue is now ripe. 

CONGRESSIONAL PRECEDENT IN SIMILAR SITUATIONS 

Missouri River Tribes (Fort Berthold & Standing Rock) 

--Each received $12 million at the time of construction. 

--In 1992, they received $240 million: Ft. Berthold ($150 

million) and Standing Rock ($90 million) 

Other examples of where Congress has waived statute of 

limitations deadline and/or u.s. defenses: 

--Zuni ('.taived S/L because stribal leadership failed to 

comprehend the absolute necessity of filing a claim during the statutory five-year period ending in 1951.") 

--Wichita (waived S/L for land claims) --cow Creek (waived S/L for treaty violations) 

--Sioux (waived u.s. defenses of res judicata and collateral 

estoppel for Black Hills claim) 

--Three Affiliated Tribes (waived all U.S. defenses--

including S/L, lapse of time, res judicata, collateral 

estoppel-for a land claims) 

-Blackfeet (waived res judicata for land claims) 

--Gros Ventre (waived res judicata for land claims) 

--Assiniboine (waived res judicata for land claims) 

-Tule River (restored lands without bringing claim) 

2 
65 

SETTLEMENT IN INTEREST OF U.S. AND TRIBE 

To compensate Colville--and not the Spokane--for the 

identical misconduct by United States compounds the 

in;•.lstice. 

This is an on-going breach of the federal trust 

responsibility. In a historic meeting, President Clinton 

recently affirmed his commitment to honoring the trust 

relationship. 

Tribe would have no choice but to bring claims against the 

United States under existing laws for its unlawful and 

tortious conduct. 

--'rhe federal government has breached its trust obligation. That breach is on-going. 

--Tribal land and resources continue to be utilized without 

compensation. 

--Tribe will assert federal navigational servitude is 

inapplicable because, among other reasons: (1) the Spokane 

River has been decreed as non-navigable, (2) special 

statutes applicable to Spokane and/or Grand Coulee. (Dams on the Flathead Reservation and Crow Reservation were held 

to be compensable under similar grounds) • 

Litigation costs, the liklihood of substantial liability by 

the United States Government, and the patently inequitable 

and unjust nature of the status quo warrant Congressional 

settlement of the Spokane claims on Grand Coulee. 

3 
66 

BlRlllEJFING lP AlPJElR 

THE SPOKANE TRIBE OF INDIANS' 

RIGHT TO FAIR AND HONORABLE TREATMENT 

BY THE 

UNITED STATES GOVERNMENT 

FOR PAST AND FUTURE USE OF TRIBAL 

LANDS AND RESOURCES 

FOR THE CONSTRUCTION AND OPERATION 

OF GRAND COULEE DAM 

PREPARED BY THE SPOKANE TRIBE OF INDIANS 

JULY 20, 1994 
67 

To His Excellency Governor Stevens: 

Sir, 

You had desired our going to meet you at the treaty, but we can not go on 

account of the Salmon which is coming up now. We are laying in our winter supply 

as that is our only resource for living. We think we cannot do without it. As for us, 

we are for peace and it does not make any difference about our not going to meet you, 

for we all want to remain quiet and peaceful ... 

Repecifully yours, 

Garry 

September 12, 1856 - Spokane River 

Letter from Chief Spokane Garry to 

Governor Isaac Stevens on why Spokane 

tribal leaders were not able to attend the 

treaty negotiating meeting. 

Cover Picture: 

Indian fisherman--and one of their assistants--catch downstream migrating 

"silvers" injured by their plunge over the Grand Coulee Dam spillway. 

Aprill4, 1949. 
68 
69 

Since time immemorial the Spokane Tribe were a river people. 1 

The Columbia and Spokane Rivers were central to their culture, 

economy, religion, and very existence. The ancestral river 

homelands of the Spokane and Colville Tribes were flooded by the 

largest concrete dam in the world.2 Some of the world's finest 

fishing grounds--Kettle Falls and the Lower Spokane River--were relegated to the bottom of Lake Roosevelt. When the turbines in 

Grand Coulee Dam began producing their first electricity in 1941, 

the western and southern boundaries of the Spokane Reservation, 

and the eastern and southern boundaries of the Colville 

Reservation, were rendered to the lake bottom. 

President Franklin 

D. Roosevelt visits 

site of Grand 

Coulee Dam on 

August 4, 1934. 

S&Lr DzALilfQ Rli.':I'HIItlt 'l'KAK F.ua DIIIALIIIQ 

The rivers that had sustained the Spokane for centuries were simply taken from them. They were taken by the very legal 

guardian, the United States Government, which had the moral and 

legal obligation to deal in good faith and to safeguard its 

•wards'" interests. In a classic case of self-dealing, the United 

States Government subordinated its moral and legal obligation to 

deal fairly with the tribes to its private interest in exploiting 

the Grand Coulee site for the benefit of itself and others. The 

See SpgkMtit Ttihe pf Indjans y United Statea, 163 Ct. Cl. 58. 61-62 (1963); ~ 

Tribe pf Indians y Unitgd States, 9: Ind. Cl. Coan.. 236 {1961 ) ; United States y Anderson, 

591 F. Supp. 1. 5 (E.O. wash. 1982), partially rev'd on other grounds. 736 F.2d 1358 (9th 

Cir. 1984). 

See Guinness Book of world Records. Grand Coulee Dam eliminated 1140 miles of upriver 

streams that previously had been spawni ng and rearing habitat for salmon and steelhead. 
70 

history of the United States Government's expropriation of Indian 

lands to develop the Grand Coulee site stands as one of the most 

egregious breaches of guardianship in the annals of American 

Indian history. That breach is ongoing. 

Bsuzrns AccllUE 'l'O Ev!tP.YONI. BuT THE SPOt<ANE 

More than 50 years have passed since the waters of Lake 

Roosevelt inundated Kettle Falls, the Lower Spokane, and the 

ancestral river bottoms of the Spokane and Colville reservations. 

During this time the profits and benefits from Grand Coulee Dam--

measured 

~ 

in billions of dollars--have accrued to nearly everyone 

the tribes. Yet it was these tribes who paid the 

devastating price for the construction of Grand Coulee and who 

live with its aftermath day-to-day. These tribes await their day 

of justice. 

The nation's largest electricity producer, Grand Coulee Dam's gross 

electricity sales are approximately $400 million annually and subsidize 

irrigation construction charges. Its pumps serve water for 500,000 acres. 

Benefits accrue to everyone but the Tribes--who sacrificed the most. 

The largest producer of electricity in the United States, 

Grand Coulee Dam has produced an enormous revenue stream for the 

United States Government that accrues in perpetuity. In 1993, a 

low water year, gross electricity sales from Grand Coulee are 

estimated at $362 million.3 In 1992, electricity sales were $412 

million. The massive federal irrigation projects which receive 

water from the project and whose construction debt is repaid by 

power revenues receive enormous benefits from the Grand Coulee 

project.• Grand Coulee electricity sells at an average wholesale 

price of approximately 2.13 cents per kilowatt hour, providing 

some of the "cheapest" electricity in the nation. 

SPoxA•• Suastotza ftCs•AP" BLBC'rlliCITY 

In reality, the "cheap• electricity produced by Grand Coulee 

has been subsidized by the Spokane and Colville Tribes for 53 

years. That subsidization continues every day: without 

compensation. The Tribes continue to subsidize Grand Coulee 

through the loss of cultural sites, religious sites, fishing 

Based on figures supplied by the Department of Interior. Grand Coulee Dam generates a 

maximum of 6,494 Il'le{jawatts of electricity and produced 19.3 and 17 billion kilowatt hours of 

electricity in 1992 and 1993, respectively. 

The electricity-driven p~s at Grand Coulee provide enough water for the 500,000 acres 

now under irrigation and sufficient water supply for the entire Columbia Basin. As the 

network of siphons and canals expand, over one million acres will receive water pumped from 

the Grand Coulee pumps. 

2 
71 

sites, burial sites, power sites, irrigation sites, and the 

general usurpation of a lifestyle and economy that had nourished 

these tribes for centuries. The heartland of the Reservation and 

its people was excised. They receive no rental for the use of 

their lands and resources. While the region extracts billions of 

dollars in revenues and benefits from Grand Coulee, the Spokanes 

live in poverty.s 

There is a moral and legal obligation to compensate the 

Spokane Tribe for the taking of its land and trust resources and 

the ongoing use of those resources. The cost of compensation is a 

small fraction of the revenues and benefits that accrue from Grand 

Coulee. Not to do so perpetuates the injustice and inequity that 

have endured for 53 years. The failure of the United States 

Government to own up to its misconduct and self-dealing at Grand 

Coulee makes a mockery of the federal-tribal trust relationship 

affirmed as recently as April 29, 1994, by President Clinton in a 

historic meeting with this nation's tribal leaders. 

CoLVILLE OBTAIN S&T'l'LEIIJ:NT Fo~t THEIR RIGHTs 

On April 21, 1994, the Confederated Tribes of the Colville 

Reservation and the United States Government entered into a 

Settlement Agreement to compensate the Colville Tribe for past and 

continued use of reservation lands for the Grand Coulee Dam. The 

Grand Coulee Project inundated the southern and eastern boundaries 

of the Colville Reservation (hereafter "Colville Settlement"). 

Under the Colville Settlement, the Colville Tribe receives a $53 million lump sum 

and $15 million annually in perpetuity. This is in addition to the $3.2 million 

received for fisheries losses and the $6 million received for Chief Joseph Dam 

compensation. In contrast, the Spokanes total compensation to date has been 

$4,700." 

The Settlement Agreement provides for a $53 million lump sum 

payment to the Colville for past use and expropriation of tribal 

lands to be paid from funds appropriated for Indian claims 

settlements. For future use of Colville lands, the United States 

Government has agreed to provide the Colville approximately $15 

million annually in perpetuity under a formula set fortr. in the 

Agreement. The Settlement Agreement is contingent upon enactment 

of enabling legislation (the "Settlement Act•). 

Indian unemployment on the Spokane Reservation runs as high as 60% in the winter months. 

3 
72 

The Settlement Agreement is premised on the United States 

Government's violation of the "Fair and Honorable Dealings* clause 

of the Indian Claims Commission Act of 1946 ("ICCA").6 The Spokane 

Tribe, at the recent request of the Colville Tribe, agreed to not 

pursue its claim until the Colville Tribe and the U.S. Justice 

Department had reached a settlement. Now that the Colville 

Settlement is signed, and the Settlement Act has been introduced 

in Congress, it is time for the United States Government to 

address settlement for the Spokane Tribe. 

Sl!!T'I'Ll!:MJUI'r Ac<r Saou1.n Isct.un& TBB SPOI<AJIE CLA>M 

Like the Colville, the Spokane Tribe's lands and resources 

were--and continue to be--utilized by the United States 

Government. Grand Coulee inundates the entire western boundary of 

the Spokane Reservation (ten miles of the Columbia River) and 

nearly the entire southern boundary of the Spokane Reservation 

(31.5 miles of the Spokane River). Today Lake Roosevelt separates 

the Spokane and Colville Reservations. The Spokane River is now 

an arm of Lake Roosevelt. 

A separate title should be added to the Settlement Act 

providing for the Spokane Tribe's past and future compensation for 

the taking and utilization of its resources. To honor and 

recognize this right to the Colville--but to deny it to the 

Spokane--would be a travesty of justice, a breach of fiduciary 

responsibility, and only ensure future conflict and protracted 

litigation over this matter. 

Compensation will never restore the magnitude of the injuries 

suffered by the Spokane people. Much of what was lost is 

intangible in an economic sense. There were societal and 

psychological costs associated with the destruction of fishing, 

cultural, and religious sites and the decimation of the great fish 

runs. The lands and resources confiscated had provided the 

Spokane people with cultural continuity. The Spokane River was 

central to these people. For example, the Spokanes buried their 

people by placing bodies parallel to the Spokane River with their 

heads downriver. 

A HIS'!'Oitl:CALLY P'EACICFUr.. AND P!lOSPBROUS PZOPLZ 

For millennium, the Spokane lived, boated, fished and relaxed 

on the lower Spokane River. Their name derives from their 

homeland on the lower Spokane River. The salmon migrating up the 

Spokane River were stopped by natural falls in what is now the 

City of Spokane. The Spokane River from that point down to its 

confluence with the Columbia River provided a salmon harvest 

rivaled only by the fish that were gathered at Kettle Falls on the 

Columbia River. These rivers were the main arteries of commerce 

The Colville claim was filed on July 31, 1951, pursuant to .§ 2 of the ICCA, Public L. 

No. 79-726, 60 Stat. 1049, 1050, formerly codified at 2S u.s.c. S 70a 0976). 

4 
73 

for the Spokane. For centuries they lived a prosperous and 

contented lifestyle in their aboriginal lands--the center of which 

was the Spokane River. 

The salmon came up the Columbia River to Kettle Falls to spawn so 

thick that the river appeared to be matted clear across the river below 

the falls. They appeared so thick it seemed also possible for one on foot 

to walk across the river on the backs of the salmon, massed below Kettle 

Falls." 

Tribal elder Peter Paul,then 81 years old, 

remarked on January 28, 1930. 

The Spokane opted to not take up arms against the United 

States and the settlers that swarmed on to their aboriginal lands. 

The Spokane sought peaceful coexistence. By the 1870's, however, 

Columbia River at Kettle Falls, 

a fishing Mecca, January 6, 

1939. Kettle Falls was one of 

the premiere fishing sites on 

the entire Columbia. Indian 

Inspector William J. Pollock had 

recommended that the 1881 

Executive Order establishing 

the Spokane Reservation 

include a six-mile corridor, 

bordering the east bank of the 

Columbia River, that would link 

the northern boundary of the 

Spokane Reservation to Kettle 

Falls. This corridor was not 

included in the Executive 

Order, but all bordering 

waterways (including the 

Columbia River) were included. 

it was clear that the Northern Pacific Railroad would be crossing 

Spokane lands. Pressure from white settlers increased. 

Hostilities broke out in 1877 between many Washington Tribes and 

the white settlers. The Spokane Tribe did not join in these 

hostilities and, instead, at the urging of the United States 

Government, parlayed with the official representatives of the 

United States Government for three days at a council held at 

Spokane Falls. 

5 
74 

RUBRVINQ A SPOkANE HOIU,LAIID 

The result of these negotiations was the Agreement of August 

18, 1877, wherein the Spokane reserved the present Spokane 

Reservation. This agreement was duly transmitted to the United 

States Senate and the President. The final boundaries of the 

Spokane Reservation were defined and formally established in 

President Hayes' Executive Order of January 18, 1881. In 

recognition that the Spokane were a river people, the boundaries 

of the Reservation were set at the far bank of the water ways that 

formed the boundaries of the Reservation on three sides. To the 

west, the Reservation boundary was set along the Columbia River's 

•western bank.• To the south, the Reservation boundary was set at 

the Spokane River's •southern bank." To the east, the Reservation 

boundary was set at the •east bank" of Chamokane Creek. 

"The Spokanes live on both sides of the Spokane River, from its mouth 

to the Idaho line." 

Reports of Agents in Washington Territory# 

September 1. 1875. 

Thus by aboriginal title and by the plain terms of the 1881 

Executive Order, the Spokanes retained reserved rights to the 

waters of the Spokane and Columbia Rivers and clear title to the 

beds and banks thereof.7 The reservation lands--mountainous and 

arid, with interspersed irrigable valleys--had little value except 

when viewed in combination with the waters that bounded and framed 

them on three sides. 

In 1887, the Spokane Tribe agreed in the Articles of 

Agreement to cede their vast aboriginal homelands to the United 

States Government, except for the lands reserved for the Tribe in 

the 1881 Executive Order. That Agreement was ratified by the 

Congress on July 13, 1892 (27 Stat. 120, 139). As established 

before the Indian Claims Commission, the Tribe ceded title to 

about three million acres to the United States in return for its 

reserved Spokane Reservation homeland.B Included in the vast lands 

In a quiet title action, the ~d and hanks of the SpokMe River were decreed to the 

Spokane Tribe. Spolqme Tribe of !ndians y State of WJshinaton et al , No. C 92-753 MM 

(B.D. Wash. September 14, 1990}. The United States Government and the State of Washinqton 

signed written disclaimers of ownership_in the original bed l'!lnd banks of the Spokane River 

now inundated by Lake Roosevelt. The mile and a. half of the Spok.m.e River upstream from the 

confluence with the Columbia was excluded from the disclaimers and was not part of the quiet 

title decree. 

See St20kana Tribe of Indiaps y pnHeQ States, 17 Ind. Cl. Comm. (1967) and~ 

Tribe of lndians y United States, 16J Ct. CL SS (1963}. 

6 
75 

ceded were fabulous fishing waters, but the Spokane retained all 

of the waterways within or bordering the Spokane Reservation and 

the prized fishing sites that lay within these waterways. 

THE CONSTRUCTION or GRAND COULEE 

The federal government's intention was to compensate 

the Spokane and Colville Tribes the use of tribal resources by 

providing for annual rental or payments. For example, in a 

December 5, 1933, letter from the Commissioner of Indian Affairs 

to the Commissioner of Reclamation, the Indian Commissioner states 

that the project "could bear a reasonable annual rental in 

addition thereto for the Indians' land and water rights involved." 

In 1933, the Commissioner of Indian Affairs recommended that the 

Spokane and Colville Tribes receive "a reasonable annual rental" for 

use of their lands and water rights by the Grand Coulee Dam. 

Similarly, in a letter of the same date from the Indian 

Commissioner to the BIA Supervising Engineer, the Commissioner 

notes that revenue "should accrue annually to the Indians by 

reason of their interests which are involved in the development.• 

The Commissioner notes that development of power was the "most 

valuable purpose" for the Indians' interest in the affected site. 

In an April 20, 1934, letter from the BIA Supervising Engineer to 

the Indian Commisoner, the Engineer discusses the damages the 

tribe will suffer and recommends that compensation include land, 

timber fisheries, and water power value. 

Construction on Grand Coulee dam commenced in 1933 under the 

purported authority of the National Industrial Recovery Act of 

1933. When the legitimacy of this authority was clouded,9 

responded by reauthorizing Grand Coulee in the Rivers and 

Act of 1935. As construction escalated on Grand Coulee 

and the nation worked its way out of the Depression, the federal 

trustee's prior interest in compensating the Indians evaporated. 

No mention was made in either the 1933 or 1935 authorizations of 

the tribal land and resources to be flooded by the dam, or any 

consideration of compensation. 

The authorization of a dam on the Colorado River under the same authority was 

invalidated by the U.S. Supreme COl,I.:J;"t in Ynit1d States v Ariz:gna, 295 U.S. 174 (1935). 

7 
76 

The Spokane River (on the left) flows into the Columbia River. March 27, 1940. In a few 

months. the water impounded by Grand Coulee Dam would inundate this confluence 

"Fish they say is t/zeir principal article of focJ, and this is so easily 

obtained from tlte river that they prefer to live on its banks, to removal 

any place else." fJ S. Indian Inspector ~llilliam Vanderve:r 

commen t ing on the Indians gathered at t he 

confluence of the Sp okane and Columbia 

Rivers. November 2, 1874. 

The confluence of the Spokane and Columbia Rivers today (Lake Roosevelt). 

8 
77 

In a January 11, 1911, report to the Commissioner of Indian Affairs, Agent 

Webster identifies the "narrows" reach of the Spokane and a site 15 miles below 

Little Falls as two enormously valuable hydro-power sites. He recommends that 

when these two sites are developed that at least part of the proceeds revert to the 

Spokane Tribe as the river is entirely within the Spokane Reservation at these 

sites. Both sites are now submerged by Lake Roosevelt. 

Tribal protests were ignored.lO 

Construction continued for seven years. It was not until the 

waters of Lake Roosevelt were actually flooding tribal lands 

that Congress made any attempt 

to address the use or taking of 

Indian lands. 11 

In 1940, in aid of 

construction of Grand Coulee, 

the Congress •granted• to the 

United States •all right, title, 

and interest of the Indians in 

and to the tribal and allotted 

lands within the Spokane and 

Colville Reservations ..• as may be designated therefor by 

the Secretary of the Interior 

from time to time.•12 The 

Secretary of the Interior was to , determine the amount of •just 

and equitable• compensation for 

the tribal lands designated to 

be taken.l3 Under this authority, 

the United States paid the Spokane 

Tribe approximately $4,700.00 for 

looking northeasterly at the Spokane 

River at the •narrows, • near its conftuence 

with the Columbia. November 6, 1939. 

10 See, e.g., confeder.otftd Tribas of the Cglyillg Bft&eryotion v Unitgd States, 43 Ind. Cl. 

C01m>. 505. 555-58 119781. 

11 See 59 I .D. 147, 155 l1945). 

12 Act of June 29, 1940, Pub. L. No. 76-6~0. s• Stat. 703, 704, codiL:ied •• a.mended, 16 

u.s.c. 5 835d-835h. 

13 l.d., codified as Nnended, 16 u.s.c. S 835e. 

9 
78 

the taking of "fast• lands.l4 

While other property owners had the right, and exercised the 

right, to have their day in court and to challenge the 

condemnation and compensation offered them by the United States, 

the Indian land was simply taken under the 

1940 Act "by 

designation.• The 

federal trustee 

unilaterally 

determined what was "just and equitable.• 

More important than 

what tribal lands were taken by designation was what tribal 

properties were not 

taken by designation. 

The compensation paid 

to the Spokane and 

Colville Tribes under 

the 1940 Act did not 

include the water 

power value of 

upstream lands taken 

by the Government, the 

water power value or the ordinary value of 

the bed and banks of 

Spokane River at the •narrows." January 3, 1941. Water backing up 

from Grand Coulee Dam is evident 

the Columbia or Spokane River, nor did it include the value of 

fishery rights,ls These tribal property rights have been taken and 

continue to be utilized by the United States without compensation. 

COLVZLL& Ptti:VA:tL ON CLAIMS c ..... In 1951 the Colville Tribe filed a petition under the ICCA 

seeking compensation for losses resulting from the construction of 

Grand Coulee Dam. On September 29, 197B, the Indian Claims 

Commission made an award to the Colvilles for the destruction of 

their fishery as a result of the construction and operation of 

Grand Coulee Dam in the amount of $3.257 million.16 

14 "'Fast" lands are those above the high water mark which, when flooded, are considered a. 

taking and subject to just compensation. See COnfederated Tribes of tM Colyille Reseryo.tl.on 

v United States, 96• F.2d 1102, 1105 n. 5 (Fed. Cir. 1992). 

15 See Confedaratftrl Tribes of the CC)lyilla Reservation y united States, 964 F. 2d at 

1105; Solicitor's Opinion M~36887 (June 3, 1974) ("'1974 Solicitor Opinion"). 

16 Cpnfgdgrated Tribes of thg Cplyille Reseryation y united States, 43 Ind. Cl. Co.mm. 505 

11978)' 

10 
79 

In Confederated Tribes of the Colville Reservation v. United 

~' 20 Cl.Ct. 31 (1990), the United States Claims Court (the 

successor to the Indian Claims Commission) held that the United 

States was not liable for water power values of tribal lands taken 

by Grand Coulee Dam. The Court held that in constructing the dam 

"Congress intended to create a multiple purpose project with 

navigational benefits" and that the "full and proper assertion" of 

the United States' navigational servitude was superior to all of 

the Tribes' legal, equitable, and moral claims. ~- at 34. The 

Tribe appealed. 

The United States Court of Appeals in Confederated Tribes of 

The Colville Reservation v. United States, 964 F.2d 1102 (Fed Cir. 

1992), partially reversed the Claims Court. The Federal Circuit 

affirmed the Claims Court's holding that construction of Grand 

Coulee Dam does not entitle the tribe to compensation under the 

Fifth Amendment for the water power value of land where the United 

States has invoked its sovereign right to exercise its 

navigational servitude. The Court found that (under the statutes 

applicable to the Colville Reservation) the Colville Tribe's 

takings claims were subordinate to the Federal Government's 

exercise of its navigational servitude. 

The Federal Circuit rev~rsed the Claims Court on its holding 

that the United States did not violate the "fair and honorable 

dealings" standard of the ICCA. The ICCA contains, as a separate 

basis for judicial relief, "claims based upon fair and honorable 

dealings that are not recognized by an existing rule of law or 

equity." (Clause 5 of § 2). The Claims Court had held that claims 

based on Clause 5 are also barred by the navigational servitude. 

The appellate court reversed on this point, holding that the 

navigational servitude is ~ a bar to the power value claim and 

allowed that claim to go forward. 

The 1994 Colville Settlement establishes, as a matter of law 

and equity, that the United States violated its duty to deal 

fairly and honorably with the Colville Tribe. Because of the 

United States' culpability, it has now agreed to compensate the 

Tribe for its past use ($5S million) and future use ($15 million 

annually in perpetuity) of tribal lands and resources. That 

Settlement at last satisfies the Colville claim pending before the 

Claims Court on the 1992 remand from the Federal Circuit Court of 

Appeals. 

PAIR AND BoHOJ.ABLB TRZATIIBH'r POR BoTH TRIBES 

In effect, the Colville Settlement establishes that the 

United States Government failed to deal honorably and fairly with 

both the Colville and Spokane Tribes. After initially making 

plans in 1933-34 to compensate both tribes, the United States 

11 
80 

ignored these plans and pressed onward with construction of the 

dam and flooding of the lands and resources of both Tribes. 

Though it had a fiduciary duty to protect these lands and to deal 

in good faith,l7 that duty was abandoned. Instead, the United 

States Government used its guardian position to exploit the very 

beneficiaries it had a legal and moral obligation to safeguard. 

The benefits from Grand Coulee were structured to accrue to the 

United States and private interests, while major costs and 

sacrifices were absorbed by the two Tribes. The Grand Coulee 

project continues to occupy both reservations without just and 

equitable compensation. 

The old Detellion Bridge, 10 

miles upriver from the 

Spokane River's confluence 

with the Columbia. 

The United States has a legal and moral obligation to deal 

fairly and equitably with QQth Tribes on this matter. The total 

compensation the Spokane have obtained for the destruction of 

their lifestyle and the taking of their Reservation heartland is 

$4,700.00. Yet Grand Coulee yields billions of dollars of 

revenues and benefits to the United States Government, federal 

irrigation projects, and other recipients. The Colville Tribe is 

poised to receive $5~ million in past compensation and $15 million 

annually, in perpetuity, for future compensation. (This is in 

addition to the $3.257 million the Colville received in 1978 as 

17 See, e,g .. Seminole Nat jon y United States, 316 U.S. 286, 297 (1942) (Its conduct should 

be "judged by the most exacting fiduciary standard*); Laney Pugblo of Santa Pueblo, 249 

U.S. 110, 113 {1919} (treating Indian lands a.s public lands "would not be an exercise of 

guardianship. but an act of confiscation."); United States y Creek Nation, 295 u.s. 103. 

110 (1935) (federal authority over Indians "is subject to limitations inhering in such a 

guardianship") . 

12 
81 

compensation for past fishery losses and in addition to the 

$6 million received as separate compensation for Chief Joseph Dam, 

which utilizes Lake Roosevelt storage.) 

The United States Government used its guardian position to exploit the 

very beneficiaries it had a moral and legal obligation to safeguard. 

To compensate the Colville for the United States' misconduct 

and use of tribal trust resources--and deny the Spokane the right 

to compensation for the same purpose--would be an egregious 

miscarriage of justice. 

TillE FOR RI:SOLUTIOJI 

At the request of the Colville Tribe, the Spokane Tribe 

delayed their active pursuit of remedies with the federal agencies 

and the Congress while the Colville settlement negotiations were 

underway. The Colville Tribe suggested that inclusion of the 

Spokane claim could be addressed when a settlement was reached on 

the Colville claim. That time has arrived. 

Congress should address the Spokane Tribe's claims at Grand 

Coulee in a separate title of the Settlement Legislation. To not 

address the Spokane claim would perpetuate the ongoing 

injustice and guarantee costly and unnecessary litigation for all 

parties concerned. The Colville Settlement establishes that the 

United States Government has not treated either tribe in a fair 

and honorable manner. Fundamental notions of fairness and 

morality require the United States Government to own up to its 

trust responsibility to deal with both Tribes' claims in a fair 

and equitable manner. 

Through no fault of the Tribe, the Spokane Tribe missed the 

1951 filing deadline for a ICCA-based action for claims arising 

out of the construction of Grand Coulee Dam. At the time, five 

years after the completion of Grand Coulee Dam, the Tribe was 

unaware (until it was too late) that they could bring a claim 

under the ICCA for Grand Coulee damages. By 1951, the Spokane 

Tribe had been paid the $4,700 compensation for the "fast• lands 

designated under the 1940 Act and were unaware a further claim 

could be brought. The Tribe had no attorneys at that time to 

advise them of the ICCA and its deadlines, and no federal agency 

advised them of the filing deadline.lB 

11 The Spokane Tribe did not have an official tribal government or approved constitution 

until June 27, 1951. The deadline for filing ICCA claims was August 13, 1951. The Spokane 

Tribe had its government in place for less than 60 days before that date. It had no tribal 

attorney or claims attorney. Calvin Coolidge had vetoed special leo-islation to allow the 

Spokane Tribe to file claims for loss of aboriginal lands. That potential claim for its 

13 
82 

With the filing deadline approaching, the Tribe barely found 

legal counsel in time to represent the Tribe before the Indian 

Claims Commission on its aboriginal lands claim. It was also 

unclear whether a claim could be brought under the ICCA for post1946 damages given the ICCA's provision that "No claim accruing 

after the date of approval of this Act [August 13, 1946] shall be 

considered by the [Indian Claims] Commission."'• 

Irrigated farm lands 

in the 

Spokane Valley 

flooded by Lake 

Roosevelt. 

Circa 1939. 

The fact the Spokane Tribe did not file an ICCA-based claim 

prior to 1951 does not negate the merits of the Spokane claim. 

Nor does it insulate the United States Government from liability.20 

aboriginal lands wa.s the only claim that the Tribe had knowl-edge it had. Upon learning that 

the Kalispels and Coeur d'Alene were filing claims under the ICCA for their aboriginal lands, 

the Spokane, belatedly, sought to employ the sam.e clail'M attorneys, These claims attorneys 

had no time to inv••tigat.a other claims and. filed only the abori9inal lands claim for the 

Spokane. Given the various Acts rela.tinq to the construction of Grand Couhte, and especially 

the Act of June 29, 1940, it was Wlclear whether the Trib•'s ela.ims were governed by the 

ICCA. It is still unclear today. 

11 60 Stat. 1050; formerly codified at 25 u.s.c § 70a. The authority to include post1946 dtunages in a ICCA-based claim was not clearly established until 1978. See Nav.ajp Tribe 

y United States, 586 F.2d 192 (Cl.Ct. 1978). 

20 The Spokane Tribe does not concede that. the navigational servitude is a bar to the 

Tribe • s claim for the power value of inundated lands. Though the 1992 Federal Circuit Court 

affirmed this holding based on the statutes applicable to Colville, the Courts have not 

addressed that question with regard to the statutes applicable to the Spokane "Tribe and its 

reservation lands. The 1992 holding is further distinguish-.d because the entire length of 

the Spokane River is non-navigable and therefore not subjeet to the naviqational servitude. 

WAshington WAter powgr Cg y FEB c , 775 F.2d 305 {D.C. Cir. 1985), cert. denied, 113 s. 

Ct. 493 (1992) (The entire length of the Spokane River is non-navigable and the const.ruction 

14 
83 

The Spokane Tribe would have no alternative but to seek judicial 

relief if the Congress does not accommodate the Spokane's just 

claim for compensation. That would result in substantial legal 

costs for everyone and further polarization. The Tribe patiently 

sought to avoid protracted litigation as it awaited the resolution 

of the Colville settlement.2l 

It is unclear whose tribal resources are being compensated in 

the Colville Settlement. This becomes a difficult issue because 

the Columbia River {Lake Roosevelt) is the boundary between the 

Colville and Spokane Reservations; this boundary has never been 

judicially determined.22 This raises the thorny question of how 

the United States Government can carry out its trust obligation to 

the Colville in the Settlement Agreement without compromising the 

Spokane Tribe's property rights. Are the Colville being 

compensated on their eastern Reservation boundary for rights 

belonging to the Spokane? This question alone is justification 

for legislatively resolving the Spokane claim in a separate title 

to the Settlement Legislation. 

CONSISU!NT WITH loEOISLATIVE PRECEDENT 

There is ample legislative precedent for Congressional 

resolution of tribal claims the United States 

notwithstanding technical that the United States could 

raise. The most recent example of this involved Indian lands 

flooded by Missouri River dams built by the United States 

Government. 

In 1992, Missouri River Tribes received $240 million in additional 

compensation from Congress for inundated lands. 

In 1992, Congress enacted the "Three Affiliated Tribes and 

Standing Rock Sioux Tribe Equitable Compensation Program Act," 

which provided compensation to both tribes for the taking of 

of Grand Coulee Dam does not legally convert it into a navigable river.} Moreover, 

notwithstanding the navigational servitude, the Colville received compensation for the past 

and future use of their tribal re.sources. 

l1 From 1~16-1990, the Spokane and Colville Tribes participated in a Task Force with 

.Department of Interior and Department of Defense officials to explore ways in which these 

Tribes might benefit from power production from Grand coulee. Unfortunately, the Task Force 

was unable to reach a consensus on how these Tribes might participate in the power production 

benefits. Given the lack of consensus, thft Colville Tribe resumed its litigation before the 

Claims Court which ultimately resulted in the April 21. 1994, Settlement Aqreement. 

22 On its western boundary, tbe Spokane Reservation includes the bed and banks of the 

Columbia River to the "western bank." The Colville Tribe asserts that the eastern boundary 

of their Reservation extends to the middle of the original channel of the Columbia River. No 

court has resolved this conflict. In the 1990 Lake Roosevelt Cooperative Management 

Agreement, the two tribes agreed to "'determine as between themselves the allocation 

management. responsibility• along thi$ disputed border. 

1 5 
84 

reservation lands for the construction of Gar·rison Dam and 

Reservoir and the Oahe Darn and Reservoir. Like the Grand Coulee 

Project, these Missouri River dams were built without consultation 

and equitable compensation to the two impacted tribes, yet 

enormous benefits accrued to the United States and its designated 

beneficiaries. 

The $12 million in compensation each tribe had received for 

the taking of its lands at the time was found to be totally 

inadequate in light of the devastating and inordinate share of the 

impact borne by these two tribes. Congress appropriated an 

additional $149.2 million for the Three Affiliated Tribes and 

$90.6 million to the Standing Rock Sioux Tribe. (See Title 35 of 

Public Law 102-575 and Senate Report No. 102-267.) 

Numerous other examples can be cited: 

P.L. 95 - 280. The Zuni Act directed the Secretary of the 

Interior to purchase and hold certain lands in trust for the Zuni 

Indian Tribe of New Mexico. Notwithstanding statutes of 

limitations, the Act also conferred jurisdiction upon the Court of 

Claims to hear and determine the Zuni's aboriginal lands claim. 

Congress recognized that "[u)nfortunately, the Zuni Indian tribal 

leadership failed to comprehend the absolute necessity of filing a 

claim during the statutory five-year period ending in 1951." 

Congress took note of the fact that the Zuni lacked sufficient 

legal representation and that the federal government had failed to 

meet its obligation to provide notice and explanation to the Zuni 

of their right to file a claim against the United States. 

P.L. 95-247. Notwithstanding certain statutes of 

limitations, Congress conferred jurisdiction on the Indian Claims 

Commission to consider the merits of the Wichita Indian Tribe's 

claim against the United States for the taking of lands. 

P.L. 95 - 243. This Act authorized the U.S. Court of Claims to 

review, without regard to the technical defenses of res judicata or collateral estoppel, the Sioux Tribe's claims for compensation 

for the taking of the Black Hills. Thus Congress overrode the 

Court of Claims dismissal of the Sioux's claim, which had been 

dismissed on the grounds of res judicata. 

P.L. 96-251 Waived the statute of limitations of the ICCA 

to permit the Cow Creek Band of Umpqua Indians to file a claim 

against the United States for treaty violations. Congress stated 

that its enactment of this legislation "will assure the Cow Creek 

Band their right to due process and a fair day in court." Senate 

Report No. 96-397, at 2. 

P.L. 96 - 404. Allowed a land claim suit by the Three 

Affiliated Tribes to proceed in the U.S. Court of Claims 

16 
85 

notwithstanding statutes of limitations, lapse of time, res 

judicata, collateral estoppel, or any other provisions of law. 

P.L. 96-405. Authorized the U.S. Court of Claims to hear 

claims by the Blackfeet and Gros Ventre Tribes for land takings 

not withstanding the Court of Claims' earlier dismissal of these 

tribes suit on the grounds of res judicata. 

P.L. 96-434 Same relief as in P.L. 96-405 afforded to the 

Assiniboine Tribe. 

P.L. 96-338. Restored lands to the Tule River Indian Tribe 

despite the fact that the Tribe did not bring a claim for these 

lands under the ICCA. 

P.L. 96 - 401. Authorized the Secretary of the Interior to 

cancel and renegotiate coal leases involving Northern Cheyenne 

lands in light of an apparent violation of the Federal 

Government's fiduciary duty to the tribe, and because the present 

"impasse can only lead to expensive and lengthy litigation." 

House Report No. 96-1370, at 3. 

CONCLUSION 

By agreeing to the 1994 Settlement Agreement with the 

Colville Tribe, the United States Government has made amends and 

compensation to one of the two Indian tribes whose lands were 

inundated by the Grand Coulee Dam project. What about the other 

tribe? The record is indisputable that the United States 

Government equally trampled on the Spokane Tribe's rights. Its 

conduct was anything but "fair and honorable." Given the reliance 

placed on fishing the Spokane and Columbia Rivers the Spokanes 

were impacted perhaps more than any Indian tribe U.S. history 

by hydroelectric development of a large river. 

Billions of dollars in revenue have accrued--and continue to 

accrue-- to the United States Government and its selected 

beneficiaries of the Grand Coulee project. These benefits come in 

the form of subsidized irrigation, "cheap" electricity, and water 

pumped to the Columbia Basin. At the same time, the economy of 

the Spokane Reservation lays prostrate. Every day, the Spokane 

Tribe and its people subsidize the economic bonanza flowing from 

Grand Coulee. The injustice is palpable and unconscionable. 

As discussed above, there is substantial precedent for 

Congress to address this injustice. A separate title must be 

added to the Grand Coulee Settlement Legislation to compensate the 

Spokane Tribe for its injuries and the ongoing utilization of 

tribal property and rights on the Columbia and Spokane Rivers. A 

failure to do so is a miscarriage of justice and will only lead to 

protracted litigation against the United States Government--adding 

insult to injury. 

1 7 
86 

Ms. SHEPHERD. Mr. Smith. Questions? 

Mr. SMITH. Thank you, Madam Chairperson. 

This is kind of an interesting situation with respect to how this 

bill should proceed. Obviously, the litigants in this case are delighted that they have reached a compromise, and they are worried 

that any addition of language which might waive the statute of 

limitations for the Spokanes might endanger the passage of a bill 

which is going to pass. 

On the other hand, the question is-from my point of view, at 

least-obviously you have an excellent position to at least go forward with a lawsuit, with the exception that the statute of limitations stands in your way; and in order to relieve that, you have to 

have Congress state that they will suspend the statute of limitations on this bill or some other bill. 

So it is kind of an interesting situation, since your position is enhanced by the must-pass bill. However, the question is what 

endangerment we might place on the bill should we add your waiver of the statute of limitations, and that is for you to make a judgment. 

However, I wanted to ask you, have you talked to your Member 

of Congress? 

Mr. SEYLER. We have met with, I believe, all of the Washington 

delegation, yes. 

Mr. SMITH. Are they supportive of your position? 

Mr. SEYLER. In speaking with the delegations and their staff, 

they didn't say yes and they didn't say no. 

Mr. SMITH. That is typical. 

Mr. SEYLER. Yes. They didn't want to hold up this legislation 

also. 

Mr. SMITH. Well, okay. I wanted to ask you, do they support your position that a stand-alone bill separated from this, or attachment 

to another bill merely suspending the statute of limitations would 

be one that they could support? 

Mr. SEYLER. They would support it if they knew it would not just endanger this, yes. 

Mr. SMITH. Okay. So you have talked to the "big chief." That is, 

you know, the number one legislator here--Mr. Foley, who is your 

Member of Congress. 

Mr. SEYLER. I have spoken with his staff and I have a 3 o'clock 

appointment today. 

Mr. SMITH. And he supports a stand-alone position? 

Mr. SEYLER. Like I said, I have a 3 o'clock appointment today 

that will confirm. 

Mr. SMITH. Well, I think you understand that, you know, if you 

get his support, it is a giant step-and, of course, that of the Washington delegation. I see no possible reason they could not support 

your position. I think it is totally sustainable. 

Mr. SEYLER. Basically, when I met with his staff, they did not 

even want to speak to this issue. They had direction to do so. 

Mr. SMITH. Until after this hearing. 

Mr. SEYLER. Until after this hearing, yes. 

Mr. SMITH. All right. I think I understand, and in that respect, 

I would tend to agree. I don't think amending this bill is the proper 

way to go. 
87 

But I would certainly support your position to waive the statute 

of limitations which would allow you, at least, to go to court and 

allow Mr. Smith a contingency fee. I mean, we have to look out for 

everyone here. 

Thank you. 

Ms. SHEPHERD. Thank you. 

Mr. Barrett. 

Mr. BARRE'IT. No questions. 

Ms. SHEPHERD. Mr. Seyler, since it appears that we have finally 

ended a 40-year negotiation for the Colville Tribe's bill, and although we hope we are not looking at a additional 40-year negotiation for the Spokane Tribe of Indians, do you think that your best 

alternative is to seek a stand-alone bill. Are you comfortable with 

that? 

Mr. SEYLER. Madam Chairperson, I believe what I seek today is 

an indication that we would have support. For me to go back to my 

tribe and tell them that we would not receive compensation or be 

considered for that, even though for centuries we stood alongside 

and fished the same waters, we lived the same and shared the 

same river, to bring back to them that we would not be considered 

for just compensation would be tough. 

If there was evidence that we would be considered and that we 

would have support, yes, I could do that. 

Ms. SHEPHERD. I believe that the record of this hearing will show 

that the Department of Interior is interested in working with you 

and with this committee on trying to solve the problems and make 

the outcome be more fair to your tribe. So perhaps that is at least 

the first hopeful sign that you can go home with. 

If those are all the questions, we will just thank you very much 

for your attendance today. Thanks to all of the panel members, and 

thanks to all of you who attended this hearing; and this hearing 

is adjourned. 

Mr. SEYLER. Thank you. 

[Whereupon, at 11:05 a.m., the subcommittee was adjourned.] 

APPENDIX 

AUGUST 2, 1994 

ADDITIONAL MATERIAL SUBMITTED FOR THE HEARING RECORD 

United States Department of the Interior 

OffiCE OF TilE SOL!< :JTOR 

\\'ashing·tnn, l),( :. :!0~-W 

Honorable George Miller, Chainnan 

House Natural Resources Conunittee 

Subconunittee on Oversight 

and Investigations 

U.S. House of Representatives 

Washington, D.C. 20510-6450 

Dear Chairman Miller: 

August 5, 1994 

At this week's hearing of the Subconunittee on Oversight and Investigations, we were asked 

about the Department of the Interior's position on the Spokane Tribe's request to waive the 

statute of limitations that bars certain tribal claims for compensation relating to. the 

construction of the Grand Coulee Darn. I wish to reiterate on behalf of the Department that 

we do not support an amendment relating to the Spokane Tribe as part of the Colville Grand 

Coulee Darn Settlement bill {H.R. 4757). It is our understanding that any amendments to the 

Colville bill will jeopardize its timely passage and we cannot support that delay. 

We will, however, conunit to examining, in consultation with the Tribe and along with other 

federal agencies, the Spokane Tribe's request independently of H.R. 4757. The Bureau of 

Indian Affairs and Solicitor's Office representatives met recently with the Spokane Tribal 

Chairman and their attorneys, and we are now reviewing the Tribe's submission supporting 

their waiver request. The Solicitor's Office has requested more information from the Tribe. 

We will complete this examination expeditiously and will report our fmdings to Congress. 

We hope this information is useful to you in the Subcommittee's examination of H.R. 4757. 

We urge you to swiftly approve the bill in its current form. 

Sincerely, 

(89) 
Suggested revision to last sentence in Colville report : 

Nevertheless, the Committee aqrees that the Spokane may have a moral claim and requests that the Department of the Interior and 

other federal agencies examine the claim, in consultation with 

the Spokane Tribe, and make appropriate recommendations to 

Congress. · 
91 

SETILEME.NT AGREEMENT 

Between the Confederated Tn'bes of the Colville Reservation 

and 

The United States of America 

The Confederated Tribes of the Colville Resetvation, consisting of the Tribes 

of the Colville, Lake, Sanpoil, Nespelem, Okanogan, Methow, Columbia, Wenatchee, 

Chelan, Entiat, Palus, and Joseph's Band of the Nez Perce Indians, are the plaintiffs 

in Docket 181-D of the Indian Claims Commission, which has been transferred by 

various acts of Congress to the United States Court of Federal Claims. The United 

States has recognized the Confederated Triq,es· of the Colville Resetvation as the 

governing body of the plaintiff tribes. The Confederated Tribes of the Colville 

Resetvation are hereafter referred to as the Tribe. 

The Defendant in this action is the United States. 

The claim asserts the entitlement of the Tribe under the "Fair and Honorable 

Dealings" clause and other clauses of the Indian Claims Commission Act to payment 

for use of resetvation lands for the production of power by the Grand Coulee Dam. 

L It is hereby agreed between the Tribe and the United States through the 

Department of Justice and the Bonneville Power Administration (BP A) and with the 

support of the Department of the Interior, to settle Docket 181-D upon the tenns 

stated herein, contingent upon enactment of enabling legislation (The Settlement Act) 

approving and ratifying this Settlement Agreement. The parties agree to work 

together and to use their best efforts to see that each step is accomplished as quickly 

as possible so as to meet the time schedule set forth in this agreement. 

a. The term "BPA power sales revenue" means all BPA revenue for the 

fiscal year from the sale of electric power and transmission of such 

power. BP A Power Sales Revenue does not include revenue from 

wheeling (i.e., the transmission of electric power not marketed by BPA) 

or from miscellaneous setvices not associated with the sale or delivery 

of power. 
92 

b. The term "BPA power sales price" means the ratio of BPA power sales 

revenue for a fiscal year divided by BP A power sales for such fiscal year 

measured in megawatt-hours. 

c. The term "BP A price escalator" means the ratio of the BPA power sales 

price for a fiscal year divided by the BPA power sales price for FY95, 

taken to six decimal places. 

d The term "CPI escalator" means the ratio of the Consumer Price Index 

(for all urban consumers as published by the Bureau of Labor Statistics) 

for the September ending the fiscal year to the Consumer Price Index 

for September 1995, taken to six decimal places. 

e. The term "combined escalator" m.eans the average of the BP A price 

escalator for the fiscal year and <:PI escalator for the fiscal year. 

f. The term "Grand Coulee generation" means Grand Coulee total 

generation less generation reserved for use at Grand Coulee Dam. 

-PROSPECI'IVE PAYMENTS2. The Bonneville Power Administration, or any successor thereto that 

markets Grand Coulee generation, shall be authorized and required by the Act of 

Congress (Settlement Act) to make annual payments to the Tribe as set forth below. 

a. The first annual payment, covering BP A fiscal year 1995, shall be in the 

amount of$15.25 million paid by BPA to the Tribe no later than March 

1, 1996. 

b. Not later than March 1 of each succeeding year, BPA shall pay to the 

Tribe for the preceding BPA fiscal year a sum computed as follows: 

2 
93 

(1) The FY95 annual payment of $15.25 million and Grand Coulee 

Dam's 50 water-year computer simulated average annual 

generation of 20,410,800 MWh establishes a "base price" of 

0.747153 mills/kWh calculated as $15.25 million divided by 

20,410,800. For each fiscal year subsequent to FY95, a "base 

annual charge" shall be calculated equal to the base price 

multiplied by the BPA price escalator for the fiscal year 

multiplied by Grand Coulee generation for the fiscal year. 

(2) There are hereby established a "floor price" of 0.661414 

mills/kWh and a "ceiling price" of 0.832892 mills/kWh. For each 

fiscal year subsequent to FY95, a "floor annual charge" shall be 

calculated as the floor price multiplied by the combined escalator 

for the fiscal year multiplied by Grand Coulee generation for the 

fiscal year. Also for each fiscal year subsequent to FY95, a 

"ceiling annual charge" shall be calculated as the ceiling price 

multiplied by the combined escalator for the fiscal year multiplied 

by Grand Coulee generation for the fiscal year. 

(3) The annual payment for a fiscal year shall be the base annual 

charge, except that if the base annual charge is less than the floor 

annual charge then the annual payment will be the floor annual 

charge, and if the base annual charge is greater than the ceiling 

annual charge then the annual payment will be the ceiling annual 

charge. 

c. BP A shall make available to the Tribe at the time of payment its 

computation of the amount paid, and at the Tribe's request will make 

available to the Tribe such other information as may reasonably be 

requested by the Tribe to verify the computation. 

d. In the event that the computed annual payment for any fiscal year is less 

than $15.25 million, the Tribe shall have the option to take a payment 

of $15.25 million in lieu of the computed amount. Should the Tribe 

exercise this option, the difference between $15.25 million and the 

computed amount shall constitute a loan from BP A to the Tribe. The 

amount of the loan shall be debited to an account held by BPA and, for 

the time period during which the loan is outstanding, shall accrue 

interest at a rate equal to the average of each month's weighted average 

cost of debt for all of BP A's borrowing with a term of more than one 

3 
94 

year or, if there are no such borrowings, then at the rate paid by the 

United States on 1-year notes for the period in question. Repayment of 

the loan with accrued interest may be made at any time at the Tribe's 

option. However, if in any subsequent fiscal year the computed annual 

payment exceeds $15.25 million, the loan balance, including accrued 

interest, shall be deducted from the annual payment and credited against 

the account established herein. If, after this deduction, the recomputed 

annual payment is less than $15.25 million, the Tribe shall have the 

option to take a payment of $15.25 million. Should the Tribe exercise 

this option, the difference between the recomputed annual payment and 

$15.25 million shall remain as a debit to the account established herein 

and shall continue to accrue interest at the rate stated herein. The 

Tribe shall have no obligation to repay any loan allowed under this 

section except from the proceeds of future annual payments that in any 

year exceed $15.25 million. 

-PAST PAYMENT3. Within 15 days after (and contingent upon) enactment of the Settlement 

Act, the Tribe and the United States will file with the United States Court of Federal 

Claims a copy of this Agreement, the Settlement Act, and such papers as are 

necessary for entry of a compromise judgment in the amount of $53 million to settle 

the past payment element of this claim. Enactment of the Settlement Act and 

payment of that judgment will be a full and final resolution of all claims that were or 

could have been brought in Docket No. 181-D, excluding post judgment interest. The 

referenced judgment shall be paid from the funds appropriated pursuant to 31 U.S.C. 

1304 and shall not be reimbursable by BPA. 

4. The Tribe shall pay out of the funds described in paragraphs two and 

three above such attorneys fees and expenses as it has agreed to pay under contracts 

approved by the Secretary of the Interior or his duly authorized agent. 

-AGREEMENT EFFECTIVE5. This Settlement Agreement shall become effective upon signature by the 

United States and Tribes as follows: 

a. For the United States by a duly authorized representative of the 

4 
95 

Department of Justice of the United States, by the Administrator of the 

Bonneville Power Administration, and with the concurrence of a duly 

authorized representative of the Department of the Interior. 

b. For the Tribe by the Chairman of the Confederated Tribes of the 

Colville Reservation, authorized by a resolution of the Colville Business 

Council and a majority vote of a General Meeting of the membership 

of the Confederated Tribes of the Colville Reservation held for that 

purpose or by referendum, as determined by the Tribes. The general 

meeting of the membership, or referendum, shall be held after receipt 

of a letter of commitment to the proposed terms of this agreement from 

the Department of Justice on behalf of the federal signatories shown 

below. 

IN WITNESS WHEREOF, the undersigned have executed this Proposed 

Settlement Agreement on the dates and at the places shown below. 

w,~. Q.c. 

Date 

UNITED STATES BY: 

DEPARTMENT OF JUSTICE 

ioi?J. Schiff.• 

Acting Assistant Attorney General 

Environment & Natural Resources Div. 

BONNBVJI.LB POWER ADMIN1STRATION 

f)/J r (,~ tJ!( 

Randall W. Hardy __J 

Administrator 

5 
96 

CONFEDERATED TRIBES OF Tim COLVll..LB RESERVATION BY: 

Eddie Palmanteer, Jr. 

Chairman 

CoJ.wille Business Council 

6 
97 

R E S 0 L U T I 0 N 

COLVILLE BUSINESS COUNCIL 

1994-264 

WHEREAS, the United States has offered to settle Docket 181-D now pending in the United States Court of Federal Claims for a lump sum payment of $53 million and annual payments commencing at $15.25 

million as set forth in the attached Settlement Agreement; and, 

WHEREAS, the Colville Business Council fully considered the 

proposed offer to settle and unanimously agreed to recommended to 

the general Tribal membership that the Tribal membership accept the 

offer to settle; and, 

WHEREAS, the Colville Business Council on March 22, 1994, 

mailed to each Tribal member eligible to vote: (1) an explanation 

of the offer to settle, a summary of the negotiations and a summary 

of the 181-o case; (2) notification of the general Tribal 

membership meeting to be held on April 16, 1994 at which the Tribal 

membership would vote on the offer to settle; and (3) notice of six 

informational meetings to be held at Omak on April 4, 1994, 

Nespelem on April 5, 1994, Keller on April 6, 1994, Inchelium on April 7, 1994, Spokane on April 8, 1994, and Seattle on April 9, 

1994; and, 

WHEREAS, notice of the general membership meeting scheduled 

for April 16, 1994 and the informational meetings was also 

published in the March issue of the Colville Tribal Tribune which 

is sent to all Tribal members; and 

WHEREAS, the informational meetings were held as set out in 

the March 22, 1994 notice; staff from the Tribal enrollment office 

and Tribal police monitored each informational meeting to insure 

that only Tribal members were allowed to attend; total attendance 

at the informational meetings exceeded 1100 members; Tribal 

attorneys and members of the Tribal Business Council attended each 

informational meeting and explained the offer to settle in detail 

and answered questions from Tribal members concerning the offer to 

settle and th• process by which the Tribal membership would vote on the offer to settle; and 

WHEREAS, an additional informational meeting was held on the 

Yakima Reservation on April 12, 1994, conducted in the same manner as all scheduled informational meetings; and 

WHEREAS, the general Tribal membership meeting was held on April 16, 1994, at Nespelem, Washington on the Colville Indian 

Reservation, as scheduled and was conducted in the following manner: 

Resolution - P.l 
98 

a. The doors to the Nespelem Community Center, where the 

general Tribal membership meeting to consider the offer 

to settle was held, were opened at 8:30 A.M. Only Tribal 

members were allowed to enter. Membership status was checked by staff from the Tribal enrollment office and 

monitored by a representative of the Bureau of Indian 

Affairs and the Colville Tribal police. 

b. At approximately 10:00 A.M. the lead Tribal claims 

attorney, Harry Sachse, and an attorney from the 

Reservation Attorneys Office, Alan c. stay, made a formal 

presentation to those Tribal members present explaining the details of the offer to settle and answering any questions raised by the membership. Members of the 

Tribal Business Council particiJ~ated in the presentation. 

c. Throughout the day the Tribal attorneys and members of 

the Colville Business council were available to answer any question that a Tribal member had concerning the 

offer to settle; and displays highlighting aspects of the 

offer to settle and its value to the Tribes and Tribal 

members were present in th~ Community Center • . d. Tribal members were able to vote on the offer to settle 

by secret ballot from 8:30 A.M. until 3:00 P.M. Each 

member was required to register immediately before 

voting; was given a ballot and after marking the ballot 

the Tribal member immediately placed the ballot in a locked ballot box. The actual balloting was conducted by representatives from the Tribal Election Board, and was monitored by a representative from the Bureau of Indian 

Affairs. 

e. When voting closed at 3:00 P.M. the votes were counted. 

The Tribal Executive Director read aloud each ballot and 

the votes were tallied on a public board by a representative from the Bureau of Indian Affairs. Three 

members from the Colville Business Council Election 

Ca.aittee independently, tallied the votes cast. The 

Superintendent for the COlville Agency of the Bureau of 

Indian Affairs and the Tribal .Election Coordinator 

observed the vote count. The Tribal Business council also 

observed the counting of the ballots. 

WHEREAS, at that general membership meeting, those members 

present 

opposed, 

and 

with yoting ___a: 

voted 

ballots 

4!!ll 

being 

in favor 

rejectedJ 

of the settlement and ~ 

THEREFORE, BE IT RESOLVED, that the Colville Business 

Council, meeting in SPECIAL Session, this 16th day of April, 1994, 

at the Colville Indian Agency, Nespel .. , Washington, does certify that the offer to settle the 181-D Grand coulee claims case was 

Resolution - P.2 
99 

approved by a majority vote of those Tribal members voting at the 

general membership meeting of the members of the Confederated 

Tribes of the Colville Reservation held for that purpose on April 16, 1994. 

AND BE IT FURTHER RESOLVED, that the Colville Business council 

does hereby approve the settlement and authorizes the Chairman of 

the Colville Business Council to sign the Settlement Agreement, and 

any other necessary document needed to implement the settlement, on behalf of the Confederated Tribes of the Colville Reservation. 

The foregoing was duly enacted by the Colville Business 

Council by a vote of ..l.L FOR and Q_ AGAINST, under authority contained in Article V, Section l(a) of the Constitution of the 

Confederated Tribes of the Colville Reservation, ratified by the 

Colville Indians on February 26, 1938, and approved by the 

Commissioner of Indian Affairs on April 19, 1938. 

Attest: 

~'NN'w">)~~ Frlies Charette 

Secretary 

Colville Business Council 

Resolution - P.3 
100 

OPPICIAL COUNT 01' TD VOTB 01' TD 

TRIBAL KBKBBRB VOTING AT THI GBNBRAL KBKBBRSHIP KBBTING 

TO CONSIDER TD GRAND COULBB 181-D SBTTLBMBNT 

HBLD APRIL 16, 1994 AT TD COLVILLE INDIAN AGENCY 

NBSPBLBH, WASHINGTON 

+Ate/qA...-

oa-te I 

To Pccept the Settlement: 

To reject the Settlement: 

Ballots rejected 

Total votes cast: 

'2..1 '\I 

\54--

ff 

COllle Business Council Secretary 

SUPERINTENDENT'S CERTIFICATION 

This is to certify that: (1) I attended, and along with my staff, monitored the vote to consider the Grand Coulee Settlement 

(181-D) held and conducted at a general membership meeting on April 

16, 1994 at Nespelem, Washington on th~ Colville Indian 

Reservation; and (2) that the vote at that meeting was conducted in 

the aanner and following the procedures set out in Resolution No. \~~~f the Colville Business council in a proper and regular fas~n after sufficient notification to the Tribal membership. A 

total of ?'353 :ballots were cast. I observed the canvassing of 

the :ballots cast and further certify that a majority of those 

voting at the general membership·aeeting vo~ed in favor of the 

settlement as set-out in the above tabulation. All ballots are being kept at the Colville Indian Agency of the Bureau of Indian 

Affairs in the custody of the Superintendent. 

Dated this JJzl~ day of April 1994. 

A 

.. f:i Superintendent e{,R.:., -...0. ~/ 

Colville Indian Agency 

0 

84-173 (104) 

ISBN 0-16-046123-5 

90000