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89–744 PDF 2004

S. HRG. 108–375

SPOKANE TRIBE OF INDIANS OF THE SPOKANE

RESERVATION GRAND COULEE DAM EQUITABLE

COMPENSATION SETTLEMENT ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

S. 1438

TO PROVIDE FOR EQUITABLE COMPENSATION OF THE SPOKANE TRIBE

OF INDIANS OF THE SPOKANE RESERVATION IN SETTLEMENT OF

CLAIMS OF THE TRIBE CONCERNING THE CONTRIBUTION OF THE

TRIBE TO THE PRODUCTION OF HYDROPOWER BY THE GRAND COULEE DAM

OCTOBER 2, 2003

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 1438, text of ......................................................................................................... 3

Statements:

Cantwell, Maria, U.S. Senator from Washington .......................................... 16

Funke, Howard, Funke and Work Law Offices, Coeur D’Alene, ID ............. 19

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Committee on Indian Affairs ............................................................................... 1

Murray, Patty, U.S. Senator from Washington ............................................. 17

Pace, Charles E., president and CEO, Regional Services, Challis, ID ......... 19

Seyler, Warren, chairman, Spokane Tribal Business Council ...................... 19

Prepared Statements:

Cantwell, Maria, U.S. Senator from Washington .......................................... 29

Funke, Howard ................................................................................................. 33

Hickok, Steven G., deputy administrator, Bonneville Power Administration ................................................................................................................. 36

Murray, Patty, U.S. Senator from Washington ............................................. 31

Pace, Charles E. ................................................................................................ 45

Robinson, Robert A., managing director, Natural Resources and Environment ............................................................................................................... 60

Seyler, Warren (with attachment) .................................................................. 52

(1)

SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION GRAND COULEE DAM

EQUITABLE COMPENSATION SETTLEMENT

ACT

THURSDAY, OCTOBER 2, 2003

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 2:08 p.m. in room 485,

Russell Senate Building, Hon. Daniel K. Inouye (vice chairman of

the committee) presiding.

Present: Senators Inouye and Cantwell.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

Senator INOUYE. The Committee on Indian Affairs meets this

afternoon to receive testimony on S. 1438, a bill to provide for the

equitable compensation of the Spokane Tribe in settlement of the

tribe’s claims relating to the use of tribal lands for the production

of hydropower.

Seventy years ago, the United States began construction of the

Grand Coulee Dam in Washington State. In 1940, lands belonging

to the Confederated Tribes of the Colville Reservation and the Spokane Tribe were acquired by the United States for its hydropower

project, and some minimal compensation was authorized to be paid

to the tribes.

Those tribal lands were directly affected by the construction and

operation of the Grand Coulee Dam. Some lands were inundated

with water; others were affected by the production of hydropower,

and salmon fisheries on which the tribes were dependent both for

subsistence and economically were destroyed.

Fifteen years ago, the Congress enacted a settlement for the Confederated Tribes of the Colville Reservation based upon the tribe’s

legal claims which had been pending for 43 years before the Indian

Claims Commission, the United States Court of Federal Claims,

and finally the U.S. Court of Appeals for the Federal Circuit.

At that time, recognizing that the Spokane Tribe’s legal claims

for the loss of tribal lands and resources were barred by the applicable statute of limitations, several senators joined me in calling

upon the Departments of the Interior and Justice to work with the

Spokane Tribe to develop a settlement of the tribe’s equitable

claims.
2

That process did not come to fruition, but today I am pleased to

report that the good and worthy Senators from the State of Washington have not forgotten the history of the Grand Coulee Dam,

and the losses suffered by the Spokane Tribe. We are here today

to receive testimony on the bill that they have introduced to provide equitable compensation to the Spokane Tribe for its losses.

[Text of S. 1438 follows:]
3

1

II

108TH CONGRESS

1ST SESSION S. 1438

To provide for equitable compensation of the Spokane Tribe of Indians of

the Spokane Reservation in settlement of claims of the Tribe concerning

the contribution of the Tribe to the production of hydropower by the

Grand Coulee Dam, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 22 (legislative day, JULY 21), 2003

Ms. CANTWELL (for herself, Mr. INOUYE, and Mrs. MURRAY) introduced the

following bill; which was read twice and referred to the Committee on Indian Affairs

A BILL

To provide for equitable compensation of the Spokane Tribe

of Indians of the Spokane Reservation in settlement of

claims of the Tribe concerning the contribution of the

Tribe to the production of hydropower by the Grand

Coulee Dam, and for other purposes.

1 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 ‘‘Spokane Tribe of Indi5 ans of the Spokane Reservation Grand Coulee Dam Equi6 table Compensation Settlement Act’’.
4

2

S 1438 IS

1 SEC. 2. FINDINGS.

2 Congress finds the following:

3 (1) From 1927 to 1931, at the direction of

4 Congress, the Corps of Engineers investigated the

5 Columbia River and its tributaries to determine sites

6 at which power could be produced at low cost.

7 (2) The Corps of Engineers—

8 (A) identified a number of sites, including

9 the site at which the Grand Coulee Dam is lo10 cated; and

11 (B) recommended that power development

12 at those sites be performed by local govern13 mental authorities or private utilities under the

14 Federal Power Act (16 U.S.C. 791a et seq.).

15 (3) Under section 10(e) of that Act (16 U.S.C.

16 803(e)), a licensee is required to compensate an In17 dian tribe for the use of land under the jurisdiction

18 of the Indian tribe.

19 (4) In August 1933, the Columbia Basin Com20 mission, an agency of the State of Washington, re21 ceived a preliminary permit from the Federal Power

22 Commission for water power development at the

23 Grand Coulee site.

24 (5) In the mid-1930’s, the Federal Government,

25 which is not subject to the Federal Power Act (16

26 U.S.C. 791a et seq.)—
5

3

S 1438 IS

1 (A) federalized the Grand Coulee Dam

2 project; and

3 (B) began construction of the Grand Cou4 lee Dam.

5 (6) At the time at which the Grand Coulee

6 Dam project was federalized, the Federal Govern7 ment recognized that the Spokane Tribe and the

8 Confederated Tribes of the Colville Reservation had

9 compensable interests in the Grand Coulee Dam

10 project, including compensation for—

11 (A) the development of hydropower;

12 (B) the extinguishment of a salmon fishery

13 on which the Spokane Tribe was almost com14 pletely financially dependent; and

15 (C) the inundation of land with loss of po16 tential power sites previously identified by the

17 Spokane Tribe.

18 (7) In the Act of June 29, 1940, Congress—

19 (A) in the first section (16 U.S.C. 835d)

20 granted to the United States—

21 (i) all rights of Indian tribes in land

22 of the Spokane Tribe and Colville Indian

23 Reservations that were required for the

24 Grand Coulee Dam project; and
6

4

S 1438 IS

1 (ii) various rights-of-way over other

2 land under the jurisdiction of Indian tribes

3 that were required in connection with the

4 project; and

5 (B) in section 2 (16 U.S.C. 835e) provided

6 that compensation for the land and rights-of7 way was to be determined by the Secretary of

8 the Interior in such amounts as the Secretary

9 determined to be just and equitable.

10 (8) In furtherance of that Act, the Secretary of

11 the Interior paid—

12 (A) to the Spokane Tribe, $4,700; and

13 (B) to the Confederated Tribes of the

14 Colville Reservation, $63,000.

15 (9) In 1994, following 43 years of litigation be16 fore the Indian Claims Commission, the United

17 States Court of Federal Claims, and the United

18 States Court of Appeals for the Federal Circuit,

19 Congress ratified an agreement between the Confed20 erated Tribes of the Colville Reservation and the

21 United States that provided for damages and annual

22 payments of $15,250,000 in perpetuity, adjusted an23 nually, based on revenues from the sale of electric

24 power from the Grand Coulee Dam project and
7

5

S 1438 IS

1 transmission of that power by the Bonneville Power

2 Administration.

3 (10) In legal opinions issued by the Office of

4 the Solicitor of the Department of the Interior, a

5 Task Force Study conducted from 1976 to 1980 or6 dered by the Committee on Appropriations of the

7 Senate, and hearings before Congress at the time at

8 which the Confederated Tribes of the Colville Res9 ervation Grand Coulee Dam Settlement Act (Public

10 Law 103–436; 108 Stat. 4577) was enacted, it has

11 repeatedly been recognized that—

12 (A) the Spokane Tribe suffered damages

13 similar to those suffered by, and had a case le14 gally comparable to that of, the Confederated

15 Tribes of the Colville Reservation; but

16 (B) the 5-year statute of limitations under

17 the Act of August 13, 1946 (25 U.S.C. 70 et

18 seq.) precluded the Spokane Tribe from bring19 ing a civil action for damages under that Act.

20 (11) The inability of the Spokane Tribe to

21 bring a civil action before the Indian Claims Com22 mission can be attributed to a combination of fac23 tors, including—
8

6

S 1438 IS

1 (A) the failure of the Bureau of Indian Af2 fairs to carry out its advisory responsibilities in

3 accordance with that Act; and

4 (B) an attempt by the Commissioner of In5 dian Affairs to impose improper requirements

6 on claims attorneys retained by Indian tribes,

7 which caused delays in retention of counsel and

8 full investigation of the potential claims of the

9 Spokane Tribe.

10 (12) As a consequence of construction of the

11 Grand Coulee Dam project, the Spokane Tribe—

12 (A) has suffered the loss of—

13 (i) the salmon fishery on which the

14 Spokane Tribe was dependent;

15 (ii) identified hydropower sites that

16 the Spokane Tribe could have developed;

17 and

18 (iii) hydropower revenues that the

19 Spokane Tribe would have received under

20 the Federal Power Act (16 U.S.C. 791a et

21 seq.) had the project not been federalized;

22 and

23 (B) continues to lose hydropower revenues

24 that the Federal Government recognized were
9

7

S 1438 IS

1 owed to the Spokane Tribe at the time at which

2 the project was constructed.

3 (13) More than 39 percent of the land owned

4 by Indian tribes or members of Indian tribes that

5 was used for the Grand Coulee Dam project was

6 land of the Spokane Tribe.

7 SEC. 3. STATEMENT OF PURPOSE.

8 The purpose of this Act is to provide fair and equi9 table compensation to the Spokane Tribe, using the same

10 proportional basis as was used in providing compensation

11 to the Confederated Tribes of the Colville Reservation, for

12 the losses suffered as a result of the construction and op13 eration of the Grand Coulee Dam project.

14 SEC. 4. DEFINITIONS.

15 In this Act:

16 (1) SECRETARY.—The term ‘‘Secretary’’ means

17 the Secretary of the Treasury.

18 (2) CONFEDERATED TRIBES ACT.—The term

19 ‘‘Confederated Tribes Act’’ means the Confederated

20 Tribes of the Colville Reservation Grand Coulee

21 Dam Settlement Act (Public Law 103–436; 108

22 Stat. 4577).

23 (3) FUND ACCOUNT.—The term ‘‘Fund Ac24 count’’ means the Spokane Tribe of Indians Settle25 ment Fund Account established under section 5(a).
10

8

S 1438 IS

1 (4) SPOKANE TRIBE.—The term ‘‘Spokane

2 Tribe’’ means the Spokane Tribe of Indians of the

3 Spokane Reservation, Washington.

4 SEC. 5. SETTLEMENT FUND ACCOUNT.

5 (a) ESTABLISHMENT OF ACCOUNT.—There is estab6 lished in the Treasury an interest-bearing account to be

7 known as the ‘‘Spokane Tribe of Indians Settlement Fund

8 Account’’.

9 (b) DEPOSIT OF AMOUNTS.—

10 (1) INITIAL DEPOSIT.—On the date on which

11 funds are made available to carry out this Act, the

12 Secretary shall deposit in the Fund Account, as pay13 ment and satisfaction of the claim of the Spokane

14 Tribe for use of land of the Spokane Tribe for gen15 eration of hydropower for the period beginning on

16 June 29, 1940, and ending on November 2, 1994,

17 an amount that is equal to 39.4 percent of the

18 amount paid to the Confederated Tribes of the

19 Colville Reservation under section 5(a) of the Con20 federated Tribes Act, adjusted to reflect the change,

21 during the period beginning on the date on which

22 the payment described in subparagraph (A) was

23 made to the Confederated Tribes of the Colville Res24 ervation and ending on the date of enactment of this
11

9

S 1438 IS

1 Act, in the Consumer Price Index for all urban con2 sumers published by the Department of Labor.

3 (2) SUBSEQUENT DEPOSITS.—On September

4 30 of the first fiscal year that begins after the date

5 of enactment of this Act, and on September 30 of

6 each of the 5 fiscal years thereafter, the Secretary

7 shall deposit in the Fund Account an amount that

8 is equal to 7.88 percent of the amount authorized to

9 be paid to the Confederated Tribes of the Colville

10 Reservation under section 5(b) of the Confederated

11 Tribes Act through the end of the fiscal year during

12 which this Act is enacted, adjusted to reflect the

13 change, during the period beginning on the date on

14 which the payment to the Confederated Tribes of the

15 Colville Reservation was first made and ending on

16 the date of enactment of this Act, in the Consumer

17 Price Index for all urban consumers published by

18 the Department of Labor.

19 (c) ANNUAL PAYMENTS.—On September 1 of the

20 first fiscal year after the date of enactment of this Act,

21 and annually thereafter, the Secretary shall pay to the

22 Spokane Tribe an amount that is equal to 39.4 percent

23 of the annual payment authorized to be paid to the Con24 federated Tribes of the Colville Reservation under section

25 5(b) for the Confederated Tribes Act for the fiscal year.
12

10

S 1438 IS

1 SEC. 6. USE AND TREATMENT OF SETTLEMENT FUNDS.

2 (a) TRANSFER OF FUNDS TO SPOKANE TRIBE.—

3 (1) INITIAL TRANSFER.—Not later than 60

4 days after the date on which the Secretary receives

5 from the Spokane Business Council written notice of

6 the adoption by the Spokane Business Council of a

7 resolution requesting that the Secretary execute the

8 transfer of settlement funds described in section

9 5(a), the Secretary shall transfer all or a portion of

10 the settlement funds, as appropriate, to the Spokane

11 Business Council.

12 (2) SUBSEQUENT TRANSFERS.—If not all funds

13 described in section 5(a) are transferred to the Spo14 kane Business Council under an initial transfer re15 quest described in paragraph (1), the Spokane Busi16 ness Council may make subsequent requests for, and

17 the Secretary of the Treasury may execute subse18 quent transfers of, those funds.

19 (b) USE OF INITIAL PAYMENT FUNDS.—Of the set20 tlement funds described in subsections (a) and (b) of sec21 tion 5—

22 (1) 25 percent shall be—

23 (A) reserved by the Spokane Business

24 Council; and
13

11

S 1438 IS

1 (B) used for discretionary purposes of gen2 eral benefit to all members of the Spokane

3 Tribe; and

4 (2) 75 percent shall be used by the Spokane

5 Business Council to carry out—

6 (A) a resource development program;

7 (B) a credit program;

8 (C) a scholarship program; or

9 (D) a reserve, investment, and economic

10 development program.

11 (c) USE OF ANNUAL PAYMENT FUNDS.—Annual

12 payments made to the Spokane Tribe under section 5(c)

13 may be used or invested by the Spokane Tribe in the same

14 manner and for the same purposes as other tribal govern15 mental funds.

16 (d) APPROVAL BY SECRETARY.—Notwithstanding

17 any other provision of law—

18 (1) the approval of the Secretary of the Treas19 ury or the Secretary of the Interior for any payment,

20 distribution, or use of the principal, interest, or in21 come generated by any settlement funds transferred

22 or paid to the Spokane Tribe under this Act shall

23 not be required; and

24 (2) the Secretary of the Treasury and the Sec25 retary of the Interior shall have no trust responsibil-
14

12

S 1438 IS

1 ity for the investment, supervision, administration,

2 or expenditure of those funds after the date on

3 which the funds are transferred to or paid to the

4 Spokane Tribe.

5 (e) TREATMENT OF FUNDS FOR CERTAIN PUR6 POSES.—The payments and distributions of any portion

7 of the principal, interest, and income generated by the set8 tlement funds described in section 5 shall be treated in

9 the same manner as payments or distributions under sec10 tion 6 of the Saginaw Chippewa Indian Tribe of Michigan

11 Distribution of Judgment Funds Act (Public Law 99–346;

12 100 Stat. 677).

13 (f) TRIBAL AUDIT.—After the date on which the set14 tlement funds described in section 5 are transferred or

15 paid to the Spokane Tribe, the funds—

16 (1) shall be considered to be Spokane Tribe

17 governmental funds; and

18 (2) shall be subject to an annual tribal govern19 mental audit.

20 SEC. 7. SATISFACTION OF CLAIMS.

21 Payment by the Secretary under section 5 constitutes

22 full satisfaction of the claim of Spokane Tribe to a fair

23 share of the annual hydropower revenues generated by the

24 Grand Coulee Dam project from June 29, 1940, through
15

13

S 1438 IS

1 the fiscal year preceding the fiscal year in which this Act

2 is enacted.

3 SEC. 8. AUTHORIZATION OF APPROPRIATIONS.

4 There are authorized to be appropriated such sums

5 as are necessary to carry out this Act.

Æ
16

Senator INOUYE. In order to provide a sharpened focus on the

testimony of the Spokane Tribe, the committee has called upon the

Bonneville Power Administration, the General Accounting Office

[GAO] and the Department of the Interior to submit written testimony for the record of the hearing today.

Now it is my pleasure to call upon the authors of the measure,

my distinguished colleagues from the State of Washington, Senator

Patty Murray and Senator Maria Cantwell.

Senator Cantwell.

STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM

WASHINGTON

Senator CANTWELL. Thank you, Mr. Chairman.

I greatly appreciate your willingness to hold this important hearing and for your cosponsorship of this legislation. You have been

a consistent champion for establishing a fair and equitable settlement process and to compensate sovereign Indian nations harmed

by actions of the U.S. Government and those that we represent.

For this and the other efforts on Washington State tribes, Senator

Murray and I greatly thank you.

I would also like to thank my friend and colleague, Senator Murray, for her important efforts on this legislation. As you all are

aware, Senator Murray was instrumental in providing the

Colville’s with a fair and equitable settlement in 1994 for nearly

identical impact to their reservation. I look forward to working

with her as we move through this settlement agreement.

And of course, I would like to thank Warren Seyler and the other

Spokanes and their representatives for coming today. I know you

have been fighting for just compensation for a long period of time,

and the damages to your reservation way of life that have been

that way since the construction of the Grand Coulee Dam in 1933.

I recognize that this has been a long and extremely frustrating

process. I hope that this hearing will provide the necessary information for us to move forward and once and for all resolve the Spokane claims against the U.S. Government.

I would also like to take this opportunity to reiterate my condolences to the tribe regarding the death of Bruce Wynne. Bruce obviously was very dedicated to this community and was invaluable.

His loss will not just be felt in Washington State, but across the

country. My thoughts and prayers are with his family. I know that

Bruce spent a great deal of time trying to solve this issue, so it is

my hope that we can give some quick action to this and the longstanding grievances that have been here, so that we can move forward and make that a legacy to Bruce’s leadership.

Mr. Chairman, my goal for this hearing is to establish for the

record the harm done to the Spokane Tribe, and the damage that

was done following the construction of the Grand Coulee Dam and

the legal and moral obligation that I believe that we have as a Federal Government to compensate the Spokane’s for those damages.

For more than one-half century, as you mentioned, the Grand

Coulee Dam project has been an extraordinary contribution to our

Nation. It helped pull the economy out of the Great Depression. It

provided the electricity that produced the aluminum industry required for airplanes and weapons, and it ensured our national se-
17

curity. The project continues to provide enormous revenues for the

United States and is a key component of our agricultural economy

in Eastern Washington.

However, these benefits have come at direct cost and expense to

tribal property that have been inundated when the United States

built the Grand Coulee Dam. Before dam construction, the freeflowing Columbia River supported a very robust and plentiful salmon run and provided virtually all of the subsistence needed by the

Spokane Tribe. After that construction, the Columbia and Spokane

River tributary flooded tribal communities, schools, roads, and

causing problems with stagnant water and still erosion problems

on the reservation today.

The legislation that Senators Inouye, Murray, and I have introduced, which was done in July, is similar to the legislation that

Senator Murray did in 1994, a bill that codified the settlement and

provided perpetual payments to the neighboring Confederated

Colville Tribes. To date, the Colvilles have received over $180 million in payments for their land inundated by Lake Roosevelt.

This bill provides the framework for the success that was the

same for that settlement, providing the Spokanes with compensation that is directly proportional to the settlement afforded the

Colville Tribes.

Specifically, the Spokane Tribe would receive 39.4 percent of the

past and future compensation awarded the Colville Tribes pursuant to the 1994 legislation. This percentage is based on the proportion of tribal lands impacted after the Federal Government built

the Grand Coulee project.

S. 1438 also outlines the facts of the Spokane claims and describes how the tribe can use that compensation that is forthcoming.

Mr. Chairman, I will enter the rest of my statement for the

record, but I just want to say that I very much appreciate the fact

that you have given time for this hearing on this important issue.

When Federal actions take physical and economic impacts on our

tribes, we need to respond. So I applaud the leadership that you

and Senator Murray and others are using on this legislation.

Thank you.

[Prepared statement of Senator Cantwell appears in appendix.]

Senator INOUYE. I thank you very much. Your full statement will

be made part of the record.

Now it is my great honor to recognize the distinguished senior

Senator of the State of Washington, the Honorable Patty Murray.

STATEMENT OF HON. PATTY MURRAY, U.S. SENATOR FROM

WASHINGTON

Senator MURRAY. Good afternoon, Mr. Chairman. It is a delight

to call you Mr. Chairman. Thank you very much for having this

very important hearing today.

And Senator Cantwell, thank you for your leadership on this and

the many tribal issues that affect our State, our region and, really,

our Nation. I look forward to working with you on this. I appreciate

all your work on this.

I am really proud to be here today to introduce to the committee

the distinguished chairman of the Spokane Tribal Business Coun-
18

cil, Chairman Warren Seyler. He is a leading figure in Washington’s tribal communities and I know his testimony will be of great

value to this committee.

Before I introduce him, I would like to share a few ideas about

S. 1438. Earlier this year, I joined with Senators Cantwell and

Inouye in offering legislation that would finally compensate the

Spokane Tribe for its contribution to the hydropower that is generated by the Grand Coulee Dam. You will recall I introduced similar legislation in the 106th and 107th Congresses. The Grand Coulee Dam is the largest electricity producer in the United States. It

provides electricity and water to the Columbia Basin Project, which

is one of the world’s largest irrigation projects.

For more than 60 years, the Grand Coulee has been the backbone of the Northwest Federal power grid and our agricultural

economy. But for the Native peoples of this region, construction of

the Grand Coulee Dam came at a very high price. For the Spokane

Tribe in particular, it brought an end to a way of life. The Spokane

River was once a free- flowing waterway that supported plentiful

salmon runs. It became a barren stretch of slack water that now

erodes the southern lands of the reservation. In fact, the tribe’s reservation has been flooded on two sides.

Mr. Chairman, S. 1438 is not the first piece of legislation seeking

to compensate a tribe for losses brought by the construction of

Grand Coulee Dam. In 1994, Congress passed similar settlement

legislation to compensate the neighboring Confederated Colville

Tribes. Since the 1970’s, the Congress and Federal agencies have

indicated that both the Colville and Spokane Tribes should be compensated for their losses. This legislation will provide a long overdue settlement to the Spokane Tribe.

Mr. Chairman, it is now my pleasure to introduce Chairman

Seyler to the committee. He was first elected to the Spokane Tribal

Business Council in 1990. Chairman Seyler also serves on the

board of the Upper Columbia United Tribes, which is involved in

fish and management issues along the Columbia River. He is also

active in management issues at Lake Roosevelt, a reservoir created

when the Grand Coulee Dam was constructed.

Finally, Mr. Chairman, I would like to join with Senator Cantwell in offering my condolences to the tribe. Last week they lost,

and indeed all of Indian Country, lost a great deal with the passing

of former Chairman Bruce Wynne. He led with his heart and had

a remarkable ability to bridge generations. His leadership, knowledge of history and warm personality will be missed. I must say

his legacy continues in leaders like Chairman Seyler, and I am

proud to introduce him to the committee today.

Thank you very much.

[Prepared statement of Senator Murray appears in appendix.]

Senator INOUYE. Chairman Seyler, with that introduction, you

can’t lose. [Laughter.]

Before you proceed, just for the record, you are accompanied by

Howard Funke of Funke and Work Law Offices, Coeur d’Alene, ID;

and Charles E. Pace, president and CEO, Regional Services,

Challis, ID.

Would you gentlemen like to join Chairman Seyler at the table?
19

STATEMENT OF WARREN SEYLER, CHAIRMAN, SPOKANE TRIBAL BUSINESS COUNCIL, ACCOMPANIED BY HOWARD FUNKE,

ESQUIRE, FUNKE AND WORK LAW OFFICES, COEUR

D’ALENE, ID; AND CHARLES E. PACE, PRESIDENT AND CEO,

REGIONAL SERVICES, CHALLIS, ID

Mr. SEYLER. Thank you, Mr. Chairman and members of the Committee on Indian Affairs for the opportunity to testify on S. 1438.

As stated, accompanying me is Howard Funke, our attorney, and

Charles Pace, our economist. Also joining us today in the audience

is Vice Chairman Greg Abrahamson, tribal council member, Dave

Wynekoop, Jr., and tribal attorney, Margo Hill.

I am here today on behalf of the Spokane Tribe to ask for your

help as representatives of the United States of America. I ask that

you act on behalf of the United States to finally treat the Spokane

Tribe fairly and honorably for the injury to our tribe and reservation caused by the Grand Coulee project.

My testimony today summarizes the critical need for this important legislation. We are also providing briefing books for the record

and a video. I ask that they be put in the record also.

The Spokane Tribe is an honorable tribe. We are a strong tribe,

a trusting tribe. We are good for our word and strong in our commitment to this Nation. Grand Coulee’s waters flooded the lands of

two sister Indian reservations that held great economic, cultural

and spiritual significance. Ours is one of those reservations.

Let me just state one issue that I just mentioned, being sister Indian reservations. That is exactly what we are even today. Today,

you can find family members, one enrolled on the Colville Reservation as a brother, and on the Spokane Reservation a sister may be

enrolled. Aunts and uncles, one may be enrolled on the Spokane,

another on the Colville. That is just historic. It has always been

that way, even when we had free use of the river.

Our life, culture, economy and religion centered around the river.

We were river people. We were fishing people. We depended heavily on the rivers and historic salmon runs that were brought to us.

We were known by our neighboring tribes as the salmon eaters.

The Spokane River, which was named after our people, was and is

the center of our universe. We call it the Path of Life.

President Rutherford B. Hayes in 1881 recognized the importance and significance of these rivers by expressly including the entire adjacent river beds of the Spokane and Columbia Rivers within

our reservation. But the Spokane and Columbia Rivers are now beneath Grand Coulee’s waters.

The other reservation flooded by Grand Coulee is that of the

Colville. The waters that rose behind Grand Coulee brought similar

fates to our reservations. Burial sites, village sites, spiritual sites,

all lost to the rising waters, lost so this country could benefit. The

river banks which provided us plants for foods and medicines were

forever flooded. Homes, gardens, farms, ranches our people had

worked hard to build on our reservation are now under water. The

free-flowing Columbia River and our Path of Life is now under the

water behind Grand Coulee Dam.

The dam also destroyed our salmon runs, which from time immemorial had given us life and identity. While the Colville lost most

of their runs, salmon were still able to reach the Colville Reserva-
20

tion. But upstream to our reservation, the salmon was entirely lost.

For decades, the Colville and Spokane Tribes shared similar histories and dialogue in connection with the Grand Coulee issue and

were subjected to identical misconduct by the U.S. Government.

When the project first began, it was to be a State project governed by the Federal Power Act, which required annual compensation to impacted Indian tribes. Later, after the project was Federalized and no longer fell under the Federal Power Act, Government

officials promised and acknowledged that the tribes still should be

compensated.

When the construction on Grand Coulee Dam began, the Commissioner of Indian Affairs recommended in writing that both

tribes receive annual payments for the dam’s operations. The Secretary of the Interior and other high-level Federal official knew the

tribe should receive compensation, but this never happened.

In 1941, the tribes renewed their efforts, taking the extraordinary step of sending a joint delegation cross country by train to

meet in Washington, DC. This meeting was with the Commissioner

of Indian Affairs, the issue, Grand Coulee Dam. The meeting was

held on December 10, 3 days after Pearl Harbor was bombed. The

Commissioner and his staff explained that the war had become the

Nation’s priority and that Congress could not be expected at such

times to address the tribes’ needs, but they promised to do so. They

promised they would help. When our leaders returned home, they

trusted that things would be made right once the war was over,

and this is the same war that we sent our young men and women

to help fight.

Understand, for the Spokane Tribe these were times our people

were completely dependent on the Bureau of Indian Affairs [BIA].

We were allowed to do nothing without the BIA or their approval.

In words of one of the spiritual people back in our tribe, in many

of his comments, unfortunately he has passed away recently, he

would state that back then, BIA was God. We could do nothing

without asking their permission. We could do nothing without them

leading the way.

We were not experienced in the ways of American law, politics

and business. At that time, we were among the most isolated tribes

in the Nation. We were a ward of the Department of Interior and

the BIA. We were beginning to farm and ranch, but our subsistence

ways depended heavily on the river’s salmon, and this was most

prominent.

At that time, we had no constitutionally formed government.

Even though the BIA’s nearest agency was 100 miles away on the

Colville Reservation, we relied on the BIA officials for managing

details as simple as taking minutes at tribal meetings. And put

forth at that time, many of our elders still did not speak English.

They spoke in our Salish tongue.

So when the Commissioner of Indian Affairs told our people he

would do all he could to help, it carried great weight back home.

Most of the communication at this time was done in letter form,

so it had to be interpreted or read to our people.

Soon after the war’s end in 1946, Congress enacted the Indian

Claims Commission Act. The ICCA allowed Indian tribes to bring

historic legal claims against the U.S. Government. Several obsta-
21

cles, unique to our tribe, made the task of filing the ICCA claims

unusually difficult. First, although the Act required the Commission and the BIA to notify all tribes of the claim that should be

filed, we received no such notice. This was due to the very remoteness of our tribe.

We learned of the ICCA only from the neighboring tribe. I believe

it was the Colville or the Kalispel and Coeur d’Alene Tribes, by

happenstance. This was only months before the 1951 deadline. Second, our leadership acted to retain a lawyer once they learned of

the ICCA, but the Commissioner of Indian Affairs withheld his approval several months, costing our tribe much critical time. Also,

our constitutional government was only finally formed 60 days

prior to the 1951 deadline.

Eventually, the Spokanes filed the standard ICCA claim, much

like the claim filed by the Colville Tribe, but no mention of Grand

Coulee was ever made. It was understood to apply only to historic

claims, rather than claims for wrongful conduct that was ongoing.

In 1972, the Secretary of the Interior established a task force to

address the Spokane and Colville Tribes, but unfortunately the

only thing that came out of this task force was legal defenses. We

trusted that the right thing would be done when the task force report came out. It was not. We trusted that the Congress would help

by addressing our claims side by side with the Colvilles. This has

not happened yet.

Grand Coulee’s impacts on the Spokane and Colville Tribes is

virtually identical, as were the tribes’ histories of dealing with the

United States throughout all of the years. While the tribes have

survived decades of lost hope and broken promises, we continue to

fight for this today.

There is a simple historical fact that separates the two tribes. It

is the fact that led ultimately to the Colville settlement of its claim.

The settlement under the Colvilles received $53 million in back

damages and annual payments in perpetuity that since 1994 have

been $15 million to $20 million each year. I think it would be unprecedented for one tribe to receive such compensation from the

United States on the exact identical issue that a sister tribe would

receive nothing.

In the mid-1960’s, the Spokane Tribe, a trusting tribe that had

always come to the aid of the U.S. Government whenever asked,

entered into a cooperative relationship with the United States, and

in 1967 the tribe settled its Indian Claims Commission case. The

Colville’s did not. Instead, the Colville’s persisted with their legal

battles through the 1960’s and beyond the days of the task force.

The Colville’s had not raised the Grand Coulee claim either in

their original ICCA case any better than the Spokanes, but their

decades-long resistance to settlement enabled them to benefit from

a 1970’s Indian Claims Commission case. In 1975, the Commission

ruled for the first time ever that it had jurisdiction over cases

where the wrong continued beyond the ICCA’s 1951 statutory deadline.

From this point forward, it seems our trusting ways have been

working against us, because the Colvilles, armed with that new decision, in 1976 had sought and obtained permission to amend their

claim to include for the first time the Grand Coulee. Our tribe, hav-
22

ing come to terms with the United States in the 1960’s, had no case

to amend.

In 1978, the Indian Claims Commission ruled that the United

States’ conduct in building Grand Coulee Dam was unfair and dishonorable. Therefore, they awarded the Colville Tribes over $3 million for fisheries. In 1992, the Federal Circuit Court of Appeals

ruled that the Colvilles’ claim for power values based on the same

standard was not barred. With that leverage, the Colville’s secured

a settlement which in 1994 the Congress approved Public Law

103–436.

Nine years ago, in the context of the Colville settlement, I came

here and testified to you, Congress, on my tribe’s behalf. I asked

Congress to include our settlement with the Colville’s or to waive

the statute of limitations so we may also present our case. But

rather than providing our requested relief, Congress again directed

the United States to negotiate a fair settlement. Unfortunately,

again Congress’ directive never happened.

Since then, I have participated in virtually all discussions held

between the tribe and the three separate BPA administrators that

had represented the United States. During the past nine years, we

have been forced to confront countless tactics that run directly

counter to Congress’ direction and intent, that our Grand Coulee

claim be negotiated in good faith and on its merits.

For the first several years, we met nothing but delay and assertion of technical legal defenses. Members of Congress who had been

made aware of these failings admonished the United States, stating in clear terms that the negotiation must be on the merits of our

claim without consideration of legal defenses, and that definition

negotiations must involve flexibility.

After 9 years of fruitless negotiations, 9 years of broken promises

and delays, I am back here today requesting that justice not go unanswered; that the U.S. Government recognize our contributions

and sacrifices to this great Nation. To compensate one of two tribes

devastated by Grand Coulee and not the other has only compounded the injustice to our people and prolonged this conflict. We

believe it would be unprecedented for Congress to only provide relief to one tribe and not the other, when both are so similarly impacted.

We also make two quotes: Acting Associate Solicitor

Aschenbrenner, quote, ‘‘The government overlooked the prohibition

against a guardian seizing property of its own ward, and then profiting from the seizure.’’ Also a quote from Chief Justice Blackmun,

‘‘Great nations like great men should honor their word.’’

In closing, Mr. Chairman and honorable members of the committee, I ask that you 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 over 60 years. One last comment from the

words of the Spokane Tribe and in our language, that goes [remarks in native tongue], listen to your hearts what is on your

heart.

Thank you.

[Prepared statement of Mr. Seyler appears in appendix.]

Senator INOUYE. Thank you very much.
23

I have been advised that Mr. Funke would like to say a few

words.

Mr. FUNKE. Thank you Mr. Chairman.

Just a few words. Just to give you a sense of what was going on

in the 1930’s on the Spokane Indian Reservation before Grand Coulee was visited on these people. They were one of the most isolated

tribes in America. They were sitting there on the shores of the Columbia River and the Spokane River. Their reservation is bordered

by and includes within the description of the reservation the Columbia River and the Spokane River. It is very unusual for the

United States to do that. They did that for the specific reason that

these people were so tied to those rivers that they included them

within the boundary of the Spokane Reservation. Very unusual.

Sitting there very isolated, intact Indian communities, virtually

untouched, and in come 7,800 non–Indian workers plopped right in

the middle of that whole operation to build Grand Coulee. As the

United States is moving to build Grand Coulee as a public works

project, and to begin production of energy, they made promises to

the tribe about how they would protect their interests. They made

promises to the tribe that they would get a share of the power revenues. And then they went ahead and built Grand Coulee and they

have not paid the tribe anything. They started flooding their lands

and people were being driven out of their homes.

As that was occurring their cemeteries were being buried, their

cultural sites and the best land on that reservation was being inundated, then Congress saw fit to direct the Secretary to designate

a taking of those lands. It was not a bargain deal. It was not a sale.

It was a taking of Indian lands as directed by Congress. Go in and

designate what you want and what you need, and then you, Secretary, determine what that is worth. What he thought it was

worth, thousands of acres of land, cutting off their fish runs, disrupting their culture, their economy, their health system, their social systems, their entire life-way, what he thought that was worth

was $4,700.

Well, then they turned around and started reaping billions annually from the value of Grand Coulee. We are not against people and

so-called progress and the generation of value from hydropower.

But this Nation has benefited tremendously from the generation of

hydropower at Grand Coulee. It is called the ‘‘economic engine’’ of

the Northwest.

I could spend hours telling you the value of Grand Coulee. It is

the keystone in the Federal Columbia River Power System. It regulates water supply all the way from Canada into the United States,

all the way to the southern end. It regulates the Transmission

Inter-tie. It generates billions of kilowatts. The only group that I

can identify that really does not share in the value of the generation of this power is the people that this land was stolen from to

build it. They are the only people that do not benefit from it. Everybody else reaps millions, billions. They got $4,700. That is atrocious.

Larry Aschenbrenner says that was an act of confiscation by the

guardian from land that belonged to the ward. And then the

United States turned around and converted it to their own use.
24

That is what the U.S. Associate Solicitor for Indian Affairs had to

say about that activity and about that transfer.

A lot is made about the fact, Senator, that the tribe did not file

Grand Coulee claims on time back in 1951; that the Colvilles filed

in 1951, why didn’t the Spokanes? If they could do it, why didn’t

you do it? Well, the fact of the matter and if the truth were really

revealed, neither tribe filed in 1951 to beat that statute of limitations. The Colvilles did not and neither did the Spokane. Neither

one of them did because they were in discussions with the United

States. They were being represented by the United States saying

their interests would be protected. The United States was telling

them they would provide compensation and protect their interests.

They were in negotiation with the United States for management

of the Grand Coulee Reservoir. Nothing was being said about filing

claims through this entire period.

When the United States started asserting legal defenses in the

1960’s and 1970’s, well, in 1967 the Spokane Tribe settled their

claims case, a claims case based on land. It did not have anything

to do with hydropower. At that point in the late 1960’s and 1970’s,

neither tribe had filed. Then the United States started for the first

time to assert defenses. Instead of continued negotiating, they

began to both negotiate and start to erect defenses against the

tribes.

In 1975, the Navajo case was decided, which allowed claims that

had not been filed in 1951 by the statute, you could take those

claims and if you could relate them back to a wrong occurring in

1951, you could add those to claims you did file in 1951. So the

Colvilles had not yet settled their case. They went into the court

and asked the court to amend their petition to add Grand Coulee

claims in 1976, not in 1951, but in 1976. That is the legal difference between this tribe and the Colvilles. They had an active

case that they could amend in 1976 to relate back to 1951 or they

would have been out of luck probably, too.

So that is the only difference legally between these two tribes. So

one is compensated; the other is told, you did not put that postage

stamp on that envelope back in 1951, so you are out of luck. We

now have a defense against you called navigational servitude. It

does not have anything to do with fairness. It does not have anything to do with honor. All it has to do with is, navigational servitude, a defense. Fairness and honor are not on the table where

you are concerned because you did not make that filing, or you did

not have a case to amend.

So just to illustrate the legal difference between the two and why

one is compensated today and Congress has settled with one tribe,

and the United States has not settled with the Spokane.

Thank you.

Senator INOUYE. Thank you very much, Mr. Funke.

Dr. Pace, would you care to add something to this?

Mr. PACE. Thank you, Mr. Chairman and members of the committee. I will be very brief.

In terms of the benefits that have been derived, Senator Cantwell mentioned the contribution in World War II. That was the aircraft. The electricity that was produced at Grand Coulee was used

to produce the aircraft that turned the tide in the Pacific. Another
25

thing that the project contributed at that time was readily available power to build the atomic bomb at Hanford, so there was a

national security contribution there.

I don’t know if we have mentioned the Columbia Basin Project.

I have done some estimation. I think the fact that a full water supply is provided for 500,000 acres has caused an increase in the

valuation of land on the order of $2.5 billion. There are another

500,000 acres that potentially could have a full water supply. So

there have been significant benefits to Eastern Washington.

The support the project provides for the electric system serving

the Western United States is unparalleled by any other asset.

There simply is no substitute for Grand Coulee. If Grand Coulee

was not available, the system operators would have far less flexibility. The system would be far less reliable, much less efficient, and

be much more costly. So those are very significant national, regional and extra-regional benefits that are conferred by this

project.

At the same time, I have worked for the Spokane Tribe on their

TANF program. I can tell you that the Spokane tribal government

is essentially on life support. They have slashed millions of dollars

out of their budgets between fiscal year 1999 and fiscal year 2002.

Over $1.3 million has come out of those budgets. That has impacted their ability to deliver services to their tribal membership.

It has impacted their ability to perform a number of other governmental functions. Their most recent round of budget cuts, looking

forward to fiscal year 2004, have again devastated the tribe, with

another $1.3 million coming out of their general fund just to balance their budget.

Their health care facility operates on priority one status. You

cannot even get service unless you are essentially dying or about

to die. That is the state of affairs there.

So there are dramatic contributions that Chairman Seyler and

the people that have gone before him have made, and that the people who come after him will make from the Spokane Tribe. They

have not shared in the substantial benefits of this project.

Thank you.

Senator INOUYE. I thank you very much, Dr. Pace.

Senator Cantwell.

Senator CANTWELL. Thank you, Mr. Chairman.

I wondered if I could, Chairman Seyler, go back over a few

things, because I think it is important for people to understand the

damage that actually has been done in the area. While we are talking about the Colville Federation and the restitution that was

given to them, sometimes we get lost in all the numbers. Could you

provide the committee some detail about the tribal assets that have

been inundated because of the rising river?

Mr. SEYLER. The Spokane Tribe, being historically living along

the river, only naturally started developing through the years those

farms, the orchards, those families as they built their homes, used

the cemeteries that historically lay our ancestors were all covered

over. Every year, that water as it has fluctuated for the Nation’s

use opens those graves up, opens up those village sites, opens up

the cultural and spiritual sites. Within the records, you will see

that there were other hydropower sites that could have been built
26

benefiting the Spokane Tribe. Those have been covered over. That

is probably some of the most.

Senator CANTWELL. Was there any attempt to relocate the graves

during the construction of the dam?

Mr. SEYLER. More so for the Colville Tribe because they had

more notice that it was going to happen. A few graves did get relocated, just on a last minute, maybe 1 week before they were covered over. But every year, we have people down on the boats walking the shores, trying to protect those graves. That water fluctuates

on most years 90 feet. If you take 90 feet in a valley, sometimes

you have a 1-mile long beach, for 18 miles, sometimes narrower,

but sometimes 1 mile of beach. The Spokane River is about 15

miles like that, so it is a constant looking for those graves, because

we do not know where they are at, because historically we have

been there for over 10,000 years.

Senator CANTWELL. So compared to the Colvilles, you think that

maybe what, 90 percent of those graves were not moved?

Mr. SEYLER. They are still there.

Senator CANTWELL. And have been affected and continue to be

affected.

Mr. SEYLER. As of last month, I can attest that graves, we still

had to relocate some as we found them coming up open.

Senator CANTWELL. And Chairman Seyler, what about the economic loss from salmon as a mainstay for the tribe?

Mr. SEYLER. Both economically and just for life itself, economically we cannot fish salmon. We have no place to go get salmon if

we wanted. The Colvilles do. They can go to Chief Joseph and pull

those fish out of the river. Other tribes can go to where the Klamath Falls used to be, where the other fishing sites used to be, and

fish for those salmon. We do not have that right anymore, unless

we buy a State permit. We should not have to do that.

Senator CANTWELL. Prior to the construction of the dam, though,

the mainstay of economic resource for the tribe was salmon fishing?

Mr. SEYLER. Centered around salmon. Prior to the construction,

salmon benefited the tribes not just in sustenance, but also it was

a trading item. When times were tough, we could take the salmon

and trade with other tribes. The economic value, we never sold the

salmon because in our teachings, you do not take anything more

than you can eat. So it is hard to put an economic value as far as

sales of the salmon because that was not our heritage. We were not

allowed to take something from the river if it was not for our own

provision. That is just our cultural way.

Senator CANTWELL. In the 1940 directive by the Secretary of the

Interior on what is just and equitable compensation, I think they

came up with some number.

Mr. SEYLER. $4,700.

Senator CANTWELL. $4,700. I don’t know if under any scenario

$4,700 would have been equitable justification. But what do you

think the number should be as far as payment to the tribe as it

relates to the impact of the Grand Coulee Dam and the Federal

Power Act?

Mr. SEYLER. I think fairness would go back to the process that

was developed, and we know that there was also a tie to the

Colville legislation through the years. I have had to deal with that.
27

We feel that even they were cut short of what they deserved. The

$39.4 million that has been mentioned over the years by the tribe

is fair to us, not that it based on the Colvilles is probably not

enough, but that is something that we could move forward with.

Over the years, we have had negotiations, and following the identical discussions that the Colville Tribal Council had with the U.S.

Government, when they came to a loggerhead, the Colville Tribe

had a high, I guess BPA or the Government had a low figure, and

they just cut the baby right in half. That is where they come up

with their $57 million and their $15.25 million annually. There

was no formula. They had no formula. There was a formula created

later to work around that number. That came directly from their

economist. My good friend and chairman at that time, Eddie

Pomantier, that came from them directly and that was the method

that was used.

Senator CANTWELL. The damage done by Lake Roosevelt, which

has been specified as it related to the Colvilles and their payments,

was similar to the damage done from Lake Roosevelt to the Spokanes?

Mr. SEYLER. Identical, if not worse for the Spokanes, because of

the no-notice. I saw there was a video that was done, and I cannot

recall even what it was. Actually, it was the first camera that came

out of California, a video camera that was colored. It showed the

Colville Tribes taking the time to remove those graves, taking the

time to relocate their homes and their churches and that. Where

the Spokanes as the water rose, we had to watch ours float down

river.

Senator CANTWELL. Thank you, Mr. Chairman.

Senator INOUYE. Thank you very much.

I gather, Mr. Chairman, that at this moment the negotiations between BPA and your tribe are not going on.

Mr. SEYLER. That is correct.

Senator INOUYE. Do you intend to resume these negotiations?

Mr. SEYLER. This morning, both BPA and the Spokane Tribe testified over at the House on this issue, and both parties were asked

that same question. Both parties indicated that they would like to

go back to the negotiating table. My comment to that is that the

tribe has been trying to negotiate this for the last 60 years and just

with one understanding is that whoever negotiates for the Federal

Government on this is that they really understand what the term

‘‘negotiation’’ means. That is not what we have found in the past,

a take-it-or-leave-it offer, but both parties show willingness at this

time.

Senator INOUYE. On the payment of the compensation, I presume

part of that will come from the Bonneville Power Administration

and part of it from the Government.

Mr. SEYLER. Up until this point, it has been looked at just from

Bonneville. I think just recently they looked at other forums. The

Spokane tribal members do not care where it comes from. They just

feel that things need to be fairly and honorably addressed. I think

there are some real avenues that could resolve this issue. Part of

that answer, because of who is receiving the rewards, Bonneville

is part of that; maybe the water and land settlement could be used.
28

We have other thoughts and ideas, but it is getting those onto the

table and really looked at carefully.

Senator INOUYE. The bill, as you know, does not establish the

source of compensation payment. I presume that was done to give

you the flexibility to negotiate. If this committee can do anything

to bring this about or to expedite it, we would be very happy to

help.

Mr. SEYLER. That is very much appreciated.

Senator INOUYE. Do you have further questions?

Senator CANTWELL. Mr. Chairman, if I could, to followup on your

comment, I believe that there have been many benefits from the establishment of the Grand Coulee Dam, and obviously, a history

here that we have had the opportunity to look back on both from

the Colvilles and the experience that the Spokanes have. So I guess

at this point in time I am interested in looking at restitution to the

Spokanes. If that means looking broader at the Treasury as opposed as to the Bonneville Power Administration as a source, I am

happy to consider a variety of options.

What I think is important for today’s hearing is that we have

had two courses of history here, two entities, sovereign nations impacted in similar ways. I am not sure if we actually weighed actual

damages, we might have the most damage done right before us

today. And yet, the restitution was not paid. So not only do we

want to see that restitution, we want to look back on Indian country history and say that there was equitable access to restitution,

equitable results, and not see future generations viewing the films

of a lost opportunity to preserve the heritage and the history of a

culture within the State of Washington.

So I very much appreciate your attention to this important issue

and to Senator Murray being here as well today.

Senator INOUYE. The record of this hearing will be kept open for

2 weeks just in case you want to supplement your remarks or to

add anything.

Mr. SEYLER. Just one last comment. I think it would only be appropriate that not only everything be expected out of BPA, because

this country, the great country of the United States of America, has

also benefited from what the tribe lost, what we gave. We gave everything for this country to survive the war, to help it come out of

the Depression and many other things.

Thank you.

Senator INOUYE. I thank all of you very much for this most enlightening hearing. I thank Senator Cantwell. I think this has been

very helpful. You have me very eager to move forward.

Senator CANTWELL. Thank you, Mr. Chairman.

Senator INOUYE. Thank you very much.

The hearing is adjourned.

Mr. SEYLER. Thank you, Mr. Chairman. Thank you, committee.

[Whereupon, at 3 p.m. the committee was adjourned, to reconvene at the call of the Chair.]
(29)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM WASHINGTON

Thank you, Senator Inouye, I greatly appreciate your willingness to hold this important hearing and for your cosponsorship of this legislation. You have been a consistent champion for establishing fair and equitable settlements agreements that

compensate sovereign Indian nations harmed by actions of the U.S. Government.

For this and other efforts on behalf of Washington State tribes, I thank you.

I would also like to thank my friend and colleague Senator Murray for her remarks in support of this bill. As you are all aware, Senator Murray was instrumental in providing the Confederated Colville Tribe with a fair and equitable settlement

in 1994 for nearly identical impacts to its reservation. I look forward to working

with her as we move this settlement agreement forward.

And of course I would like to thank Warren Seyler and the other members of the

Spokane Tribe and their representatives for coming today. I know you have been

fighting for just compensation for the damages to your Reservation and way of life

since construction of the Grand Coulee Dam began in 1933. I recognize that it has

been an extremely frustrating process, and I hope this hearing will provide the necessary catalyst to once and for all resolve the Spokanes claim against the U.S. Government.

I would also like to take this opportunity to reiterate my condolences to you and

the tribe regarding the death of Bruce Wynne. Bruce’s dedication to his community

was legendary, and his loss will be felt not just in Washington State, but across the

country. My thoughts and prayers are with his family and the tribe at this difficult

time. I know Bruce spent a great deal of time trying to solve this very issue, so it

is my hope that we can act quickly to settle this long-standing grievance which

could serve as a legacy to Bruce’s leadership.

Mr. Chairman, my goal for this hearing is to establish for the record the harm

done to the Spokane Tribe following construction of the Grand Coulee Dam, and the

obligation the Federal Government has to compensate the Spokanes for these damages.

For more than one-half century, the Grand Coulee Project has made an extraordinary contribution to this Nation. It helped pull the economy out of the Great Depression. It provided the electricity that produced aluminum required for airplanes

and weapons that ensured our national security. The Project continues to produce

enormous revenues for the United States, it is a key component of the agricultural

economy in eastern Washington, and plays a pivotal role in the electric systems

serving the entire western United States.

However, these benefits have come at a direct cost to tribal property that became

inundated when the U.S. Government built the Grand Coulee dam. Before dam construction, the free flowing Columbia and Spokane Rivers supported robust and plentiful salmon runs and provided for virtually all of the subsistence needs of the Spokane Tribe. After construction, the Columbia and Spokane rivers flooded tribal communities, schools, and roads, and the remaining stagnant water continues to erode

reservation lands today.
30

The legislation that Senators Inouye, Murray, and I introduced in July is similar

to Senator Murray’s 1994 bipartisan bill codified a settlement and provided perpetual payments to the neighboring Confederated Colville Tribes. To date, the Colville

Tribes have received over $180 million in payments for their lands inundated by

Lake Roosevelt.

This bill builds on the success of that successful settlement by providing the Spokane Tribe of Indians’ with compensation that is directly proportional to the settlement afforded the Colville Tribes. Specifically, the Spokane Tribe would receive 39.4

percent of the past and future compensation awarded the Colville Tribes pursuant

to the 1994 legislation. This percentage is based on the proportion of tribal lands

impacted after the Federal Government built the Grand Coulee Project. S. 1438 also

outlines the facts of the Spokane claim and describes how the tribe will use any

forthcoming compensation funds.

Mr. Chairman, if you will indulge me, I would like to read for the record the findings forwarded by this legislation:

From 1927 to 1931, at the direction of Congress, the U.S. Army Corps of Engineers investigated the Columbia River and its tributaries to determine sites at

which power could be produced at low cost.

The Corps of Engineers identified a number of sites, including the site at which

the Grand Coulee Dam is located; and recommended that power development at

those sites be performed by local governmental authorities or private utilities under

the Federal Power Act.

Under section 10(e) of that act, a licensee is required to compensate an Indian

tribe for the use of land under the jurisdiction of the Indian tribe.

In August 1933, the Columbia Basin Commission, an agency of the State of Washington, received a preliminary permit from the Federal Power Commission for waterpower development at the Grand Coulee site.

In the mid-1930’s, the Federal Government, which is not subject to the Federal

Power Act, Federalized the Grand Coulee Dam project and began construction of the

Grand Coulee Dam.

At the time at which the Grand Coulee Dam project was Federalized, the Federal

Government recognized that the Spokane Tribe and the Confederated Tribes of the

Colville Reservation had compensable interests in the Grand Coulee Dam project,

including compensation for the development of hydropower; the extinguishment of

a salmon fishery on which the Spokane Tribe was almost completely financially dependent; and the inundation of land with loss of potential power sites previously

identified by the Spokane Tribe.

In the act of June 29, 1940, Congress granted to the United States all rights to

Spokane Tribe and Colville Indian Reservations lands that were required for the

Grand Coulee Dam project; and various rights-of-way over other land under the jurisdiction of Indian tribes that were required in connection with the project. Additional provisions provided that compensation for the land and rights-of-way was to

be determined by the Secretary of the Interior in such amounts as the Secretary

determined to be just and equitable.

In response to these provisions, the Secretary of the Interior paid to the Spokane

Tribe $4,700, and $63,000 to the Confederated Tribes of the Colville Reservation.

In 1994, following 43 years of litigation before the Indian Claims Commission, the

United States Court of Federal Claims, and the United States Court of Appeals for

the Federal Circuit, Congress ratified an agreement between the Confederated

Tribes of the Colville Reservation and the United States that provided for damages

and annual payments of $15,250,000 in perpetuity, adjusted annually, based on revenues from the sale of electric power from the Grand Coulee Dam project and transmission of that power by the Bonneville Power Administration.

In legal opinions issued by the Office of the Solicitor of the Department of the

Interior, a Task Force Study conducted from 1976 to 1980 ordered by the Committee

on Appropriations of the Senate, and hearings before Congress at the time at which

the Confederated Tribes of the Colville Reservation Grand Coulee Dam Settlement

Act was enacted, it has repeatedly been recognized that the Spokane Tribe suffered

damages similar to those suffered by, and had a case legally comparable to that of,

the Confederated Tribes of the Colville Reservation; but that the 5-year statute of

limitations under the act of August 13, 1946 precluded the Spokane Tribe from

bringing a civil action for damages under that act.

The inability of the Spokane Tribe to bring a civil action before the Indian Claims

Commission can be attributed to a combination of factors, including the failure of

the Bureau of Indian Affairs to carryout its advisory responsibilities in accordance

with that act; and an attempt by the Commissioner of Indian Affairs to impose improper requirements on claims attorneys retained by Indian tribes, which caused
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delays in retention of counsel and full investigation of the potential claims of the

Spokane Tribe.

As a consequence of construction of the Grand Coulee Dam project, the Spokane

Tribe has suffered the loss of the salmon fishery on which the Spokane Tribe was

dependent; identified hydropower sites that the Spokane Tribe could have developed; and hydropower revenues that the Spokane Tribe would have received under

the Federal Power Act had the project not been Federalized; and continues to lose

hydropower revenues that the Federal Government recognized were owed to the

Spokane Tribe at the time at which the project was constructed.

More than 39 percent of the land owned by Indian tribes or members of Indian

tribes that was used for the Grand Coulee Dam project was land of the Spokane

Tribe.

Mr. Chairman, the United States has a trust responsibility to maintain and protect the integrity of all tribal lands within its borders. When Federal actions physically or economically impact harm, our nation has a legal responsibility to address

and compensate the damaged parties. Unfortunately, despite countless efforts, onehalf century has passed without justice to the Spokane people.

The time has come for the Federal Government to finally meet its fiduciary responsibility for converting the Spokane tribe’s resources to its own benefit. I believe

that the legislation we are proposing today will catalyze the completion of a fair and

equitable settlement and put a closure to these matters. I was pleased to see similar

bipartisan legislation introduced earlier this year in the U.S. House of Representatives and I am glad to see that the House bill also received a hearing just this morning.

Again, thank you Mr. Chairman for holding this hearing and support this important legislation. I look forward to working with you, the Indian Affairs Committee,

our Senate colleagues, and the Spokanes as endeavor to develop a satisfactory and

permanent settlement with all parties involved.

PREPARED STATEMENT OF HON. PATTY MURRAY, U.S. SENATOR FROM WASHINGTON

Good morning, Mr. Chairman, and thank you for this opportunity. I’m proud to

introduce to the committee the distinguished chairman of the Spokane Tribal Business Council, Chairman Warren Seyler. He’s a leading figure in Washington’s tribal

communities, and I know his testimony will be of great value to this committee.

Before I introduce him, I’d like to share a few ideas about S. 1438. Earlier this

year, I joined with Senators Cantwell and Inouye in offering legislation that would

finally compensate the Spokane Tribe for its contribution to the hydropower that is

generated by the Grand Coulee Dam.

Some of you will recall that I introduced similar legislation in the 106th and

107th Congresses.

The Grand Coulee Dam is the largest electricity producer in the United States.

It provides electricity and water to the Columbia Basin Project, which is one of the

world’s largest irrigation projects. For more than 60 years, the Grand Coulee has

been the backbone of the Northwest’s Federal power grid and our agricultural economy.

But for the Native peoples of this region, construction of the Grand Coulee Dam

came at a very high price. For the Spokane Tribe in particular, it brought an end

to a way of life.

The Spokane River was once a free-flowing waterway that supported plentiful

salmon runs. It became a barren stretch of slack water that now erodes the southern lands of the reservation. In fact, the tribe’s reservation has been flooded on two

sides.

Mr. Chairman, S. 1438 is not the first piece of legislation seeking to compensate

a Tribe for losses brought by construction of the Grand Coulee Dam. In 1994, Congress passed similar settlement legislation to compensate the neighboring Confederated Colville Tribes.

Since the 1970’s, the Congress and Federal agencies have indicated that both the

Colville and Spokane Tribes should be compensated for their losses. This legislation

will provide a long overdue settlement to the Spokane Tribe.

Mr. Chairman, it is now my pleasure to introduce Chairman Seyler to the committee. First elected to the Spokane Tribal Business Council in 1990, Chairman Seyler

also serves on the board of the Upper Columbia United Tribes, which is involved

in fish and management issues along the Columbia River. He is also active in management issues at Lake Roosevelt, a reservoir created when the Grand Coulee Dam

was constructed.
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Finally, Mr. Chairman, I’d like to offer my condolences to the Spokane Tribe. Last

week the tribe—and indeed all of Indian country—suffered a great loss with the

passing of former Chairman Bruce Wynne. Bruce led with his heart and had a remarkable ability to bridge generations. His leadership, knowledge of history, and

warm personality will be missed, but his legacy continues in leaders like Chairman

Seyler.

Thank you.
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