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81–636 PDF 2003

S. HRG. 107–648

HOOPA-YUROK SETTLEMENT ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

OVERSIGHT HEARING ON THE DEPARTMENT OF THE INTERIOR

SECRETARY’S REPORT ON THE HOOPA YUROK SETTLEMENT ACT

AUGUST 1, 2002

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

DANIEL K. INOUYE, Hawaii, Chairman

BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

PAUL WELLSTONE, Minnesota

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

FRANK MURKOWSKI, Alaska

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

PATRICIA M. ZELL, Majority Staff Director/Chief Counsel

PAUL MOOREHEAD, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

Statements:

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, vice chairman, Committee on Indian Affairs .............................................................. 2

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, Committee

on Indian Affairs ........................................................................................... 1

Jarnaghan, Joseph, tribal councilman, Hoopa Valley Tribal Council .......... 14

Marshall, Sr., Clifford Lyle, chairman, Hoopa Valley Tribal Council .......... 12

Masten, Sue, chairperson, Yurok Tribe .......................................................... 20

McCaleb, Neal, assistant secretary, BIA, Department of the Interior ......... 3

Schlosser, Thomas, counsel, Hoopa Valley Tribal Council ............................ 16

APPENDIX

Prepared statements:

Jarnaghan, Joseph ........................................................................................... 29

Marshall, Sr., Clifford Lyle (with attachments) ............................................. 33

Masten, Sue (with attachments) ..................................................................... 62

McCaleb, Neal (with attachments) .................................................................. 82

Schlosser, Thomas ............................................................................................ 30

Additional material submitted for the record:

Hoopa-Yurok Settlement Act Funding History .............................................. 89

(1)

HOOPA-YUROK SETTLEMENT ACT

THURSDAY, AUGUST 1, 2002

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC.

The committee met, pursuant to other business, at 10:18 a.m. in

room 485, Senate Russell Building, Hon. Daniel K. Inouye (chairman of the committee) presiding.

Present: Senators Inouye, Campbell, and Reid.

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

HAWAII, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. This is the oversight hearing on the Department

of Interior Secretary’s report on the Hoopa Yurok Settlement Act

submitted to the Congress in March 2002 pursuant to Section 14

of Public Law 100–580.

As with almost all matters in Indian affairs, there is a long history that preceded enactment of the legislation the Secretary’s report addresses. It is a history of deception, I am sad to say, of a

Senate that apparently met in secret session in 1852 and rejected

the treaties that had been negotiated with California tribes, and

didn’t disclose their action for another 43 years.

In the interim, the California tribes proceeded in good faith, relying upon their contracts with the U.S. Government. In 1864, the

Congress enacted legislation to establish four reservations in the

State of California with the intent that these reservations would

serve as the new homeland for tribes that had no cultural, linguistic, or historical ties to one another. The Hoopa Valley Reservation

was one such reservation that was established for ‘‘the Indians of

the Reservation.’’ Litigation later spawned a series of a series of court rulings,

which while resolving the issues before each court, engendered considerable uncertainty into the daily lives of those who resided on

the reservation, and soon,, the Congress was called upon to bring

some final resolution to the matter.

Today, as we receive testimony on the Secretary’s report, it is

clear that a final resolution was not achieved through the enactment of the Hoopa-Yurok Settlement Act in 1988, and that the

Congress will once again have to act. Accordingly, we look forward

to the testimony we will receive today so that the committee and

members of Congress may have a strong substantive foundation

upon which to construct a final solution.

May I call upon the vice chairman.
2

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, VICE CHAIRMAN, COMMITTEE ON

INDIAN AFFAIRS

Senator CAMPBELL. Thank you.

I think you have explained very well the situation Mr. Chairman

but just a couple of minutes for my opening statement. I’d like to

broaden it to something that has always bothered me and many

others because I was born and raised in California in the foothills

among many of the Me-wok Tribes, a small tribe that has a number of bands in the foothills and valley country around Sacramento.

As you alluded, I can tell you that the story of the American Indian in the State of California was one of the most gruesome and

bloody chapters in the history of this country. They say before the

gold rush, there was about five times more Indian people in California than non-Indian people. It was literally a paradise. The

weather was nice in most areas, the production of natural plants,

fruits and things was abundant, people ate well, people lived well,

they were at harmony with their neighbors and at that time, as I

understand there were over 100 tribes in that area. In fact, some

estimates say about one-tenth of all American Indians lived in the

California area because living was a bit easier.

In 1848 when gold was discovered in a little place now called

Coloma on the north fork of the American River, it started a wholesale change in their lifestyle. In fact, there have been documented

instances of Indian people in those days being hired by gold miners

and when payday came, they would shoot them, throw them in a

hole and just get some more Indians to do the work again. So they

know what real tragedy is, the people who are descendants of the

Native Americans who lived in that area before the gold rush.

Even before that time if you look at California history, as early

as the late 1700’s when Father Junipero Serra came north from

Mexico and developed what was later called the El Camino Real,

or the King’s Highway, and the chain of missions from San Diego

all the way north of San Francisco, almost all those missions were

built with indentured Indian labor, if not slave labor. If you visit

some of those missions right now, like the mission in Monterey, if

you turn the roofing tile over and look under the old, old roofing

tile, you can find the skin imprints of Indian people in that clay

where they would take the wet clay and bend it over their leg to

make that curved feathered kind of roof structure on all the old

missions. They were never paid for that and some of them were

kept around the missions for so long, many against their will, that

some of the smaller tribes in southern California lost their original

identity. I can remember when I was a boy many of them were

called mission Indians which was a kind of generic name for people

who had lost their identity but had been in the servitude of the

missions for so long.

There is no question that people who are descendants of the Native peoples of California have a real gripe and a history of mistreatment by both the Federal Government and people that made

millions, if not billions of dollars, from the wealth of California. I’m

just glad that two of the major tribes are here today, the Hoopa

and the Yurok and I know this hearing will focus on their settle-
3

ment but I wanted to put that in the record of my own personal

experiences in California.

The CHAIRMAN. I’m glad that your remarks were made for the

record because though it is rather sad, we who are the successors

to the Senators two centuries ago must remember that our predecessors were a part of this terrible conspiracy.

With that, may I call upon the Assistant Secretary of the Bureau

of Indian Affairs, Department of the Interior, Neal McCaleb. It’s always good to see you, sir.

STATEMENT OF NEAL A. MCCALEB, ASSISTANT SECRETARY,

BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Mr. MCCALEB. Thank you, Chairman Inouye. I am pleased to be

here this morning to bring to you a report pursuant to section 14

of the Settlement Act.

Although I will not read my introductory background remarks

because you did such an excellent job of presenting the history, I

would have my entire testimony become a part of the record.

The CHAIRMAN. Without objection, so ordered.

Mr. MCCALEB. Prior to the Settlement Act, legal controversies

arose over the ownership and management of the Square, that

being the 12 square miles that were provided by the United States

Government for the Indians of California, that ultimately became

the Hoopa Reservation and its resources. Although the 1891 Executive order joined the separate reservations into one, the Secretary

had generally treated the respective sections of the reservation separately for administrative purposes. A 1958 Solicitor’s Opinion also

supported this view.

In the 1950’s and 1960’s, the Secretary distributed only the timber revenues generated from the Square to the Hoopa Valley Tribe

and its members. All the revenues from the Square were allocated

to the Hoopa Valley Tribe. In 1963, Yurok and other Indians, eventually almost 3,800 individuals, challenged this distribution and

the U.S. Court of Claims subsequently held that all Indians residing within the 1891 reservation were Indians of the reservation

and were entitled to share equally in the timber resources proceeds

generated from the Square. Short v. United States was the embodiment of that litigation.

Following the decision, the Department began allocating the timber proceeds generated from the Square between the Yurok Tribe,

approximately 70 percent, and the Hoopa Valley Tribe, 30 percent.

The 70/30 allocation was based upon the number of individual Indians occupying the joint reservation that identified themselves as

members of either the Yurok or the Hoopa Valley Tribe respectively.

Another lawsuit challenged the authority of the Hoopa Valley

Business Council to manage the resources of the Square among

other claims. These and related lawsuits had profound impacts relating to the tribal governance and self determination, extensive

natural resources that compromised the valuable tribal assets and

the lives of thousands of Indians who resided on the reservation.

In order to resolve longstanding litigation between the United

States, Hoopa Valley, Yurok, and other Indians regarding the own-
4

ership and management of the Square, Congress passed the HoopaYurok Settlement Act in 1988. This act did not disturb the resolution of the prior issues through the Short litigation. Rather, the act

sought to settle disputed issues by recognizing and providing for

the organization of the Yurok Tribe by petitioning the 1891 Yurok

joint reservation between the Hoopa Valley and the Yurok Tribes

and by establishing a settlement fund primarily to distribute moneys generated from the joint reservation’s resources between the

tribes.

Section 2 of the act provided for the petition of the joint reservation. Upon meeting certain conditions of the act, the act recognized

and established the Square, the original 12 square miles, as a

Hoopa Valley Reservation to be held in trust by the United States

for the benefit of the Hoopa Valley Tribe. The act recognized and

established the original Klamath River Reservation and the connecting strip as the Yurok Reservation to be held in trust by the

United States for the benefit of the Yurok Tribe.

In accordance with the conditions set in section 2(a), the Hoopa

Valley Tribe passed a resolution, No. 88–115 on November 28, 1988

waiving any claims against the United States arising from the act

and consenting to the use of the funds identified in the act as part

of the settlement fund. The BIA published a notice of the resolution

in the Federal Register of December 7, 1988. These actions had the

effect of partitioning the joint reservation.

As for the settlement fund itself, section 4 of the act established

a settlement fund which placed the moneys generated from the

joint reservation into an escrow account for later equitable distribution between the Hoopa Valley and Yurok Tribes according to the

provisions of the act. The act also authorized $10 million in Federal

contribution to the settlement fund primarily to provide lump sum

payments to any Indian on the reservation who elected not to become a member of either tribe. It allocated about $15,000 to any

individual Indian who elected not to claim tribal membership of either tribe.

As listed in section 1(b)(1) of the act, the escrow funds placed in

the settlement fund came from moneys generated from the joint

reservation and held in trust by the Secretary in seven separate accounts, including the 70 percent Yurok timber proceeds account

and the Hoopa 30 percent timber proceeds account. The Secretary

deposited the money from these accounts into the Hoopa-Yurok

Settlement Fund upon the enactment of the act. The settlement

fund’s original balance was nearly $67 million. At the beginning of

fiscal year 2002, the fund contained over $61 million in principle

and interest.

Even with the previous distributions as described below, appendix I to the report provides the relevant figures from the fund. The

act sought to distribute the moneys generated from the joint reservation and placed in the settlement fund on a fair and equitable

basis between the Hoopa Valley and Yurok Tribes. The Senate

committee report briefly described what was then believed to be a

rough distribution estimate of the fund based upon the settlement

role, distribution ratios established in the act. Twenty-three million, roughly one-third of the fund would go to the Hoopa Valley

Tribe pursuant to Section 4(c); a similar distribution to the Yurok
5

Tribe under Section 4(d) as described below assuming roughly 50

percent of those on the settlement roll would accept Yurok tribal

membership; and the remainder to the Yurok Tribe after individual

payments discussed below.

Substantial distributions have already been made from the settlement fund in accordance with the act. The Department disbursed to the Hoopa Valley Tribe just over $34 million between

passage of the act and April 1991. The total amount determined by

the BIA to be the tribe’s share under 4(c) of the act. The Department also distributed $15,000 to each person on the settlement roll

who elected not to become a member of either tribe under the act.

Approximately 708 persons chose the lump sum payment option for

a total distribution for this purpose in the amount of approximately

$10.6 million, exceeding the $10 million Federal contribution authorized by the act for this payment.

Section 4(d) of the act provided the Yurok Tribe’s share of the

settlement fund similar to the determination of the Hoopa Valley

share under section 4(c). Section 7(a) further provided the Yurok

Tribe would receive the remaining moneys in the settlement fund

after distributions were made to individuals in accordance with the

settlement membership options under section 6 and to successful

appellants left off the original settlement roll under section 5(d).

Under section 1(1)(4), the condition that the Hoopa Valley Tribe

and Yurok Tribe received these moneys requiring the tribes adopt

a resolution waiving any claim against the United States arising

from the act. The Hoopa Valley Tribe adopted such a resolution but

the Yurok Tribe did not. In November 1993, the Yurok Tribe

passed Resolution 93–61 which purported to waive its claims

against the United States in accordance with section 2(c)(4). The

tribe, however, also brought a suit alleging that the act affected a

constitutionally prohibited taking of its property rights as described

below. In effect, the tribe sought to protect its rights under section

2 of the act to its share of the settlement fund and other benefits

while still litigating the claims as contemplated in section 14 of the

Act.

By a letter dated April 4, 1994, the Department informed the

tribe that the Department did not consider the tribe’s conditional

waiver to satisfy the requirements of the act because the waiver

acted to preserve rather than waive its claims. Instead of waiving

its claims as the Hoopa Valley Tribe did, the Yurok Tribe as well

as the Karuk Tribe and other individual Indians brought suit

against the United States alleging the act constituted a taking of

their vested property rights in the lands and resources of the

Hoopa Valley Reservation contrary to the Fifth Amendment of the

U.S. Constitution.

In general, the complaints argued that the 1864 Act authorizing

Indian reservations in California and other acts of Congress vested

their ancestors with compensable rights in the Square. Alternatively, plaintiffs argued that their continuous occupation of the

lands incorporated into the reservation created compensable interest. Potential exposure to the U.S. Treasury was once estimated at

close to $2 billion. This litigation began in the early 1990’s and was

only recently ended.
6

The U.S. Court of Federal Claims and the Federal Circuit Court

of Appeals disagreed with the positions of the Yurok and other

plaintiffs. The Federal courts generally followed the reasoning provided in the committee reports of the bills ultimately enacted as

the Settlement Act. Unless recognized as vested by some Act of

Congress:

Tribal rights of occupancy and enjoyment, whether established by Executive order

or statute may be extinguished, abridged or curtailed by the United States at any

time without payment of just compensation.

The courts concluded that no act of Congress established vested

property rights and the plaintiffs or their ancestors in the Square.

Rather the statutes and Executive orders creating the reservation

allowed permissive, not permanent occupation. Thus, the courts

held the act did not violate the takings clause. Plaintiffs petitioned

the U.S. Supreme Court for a writ of certiorari to review the lower

court decision and on March 26, 2001, the Court denied certiorari

thereby concluding the litigation.

On the Department’s report, section 14 of the act provides:

The Department shall submit to Congress a report describing the final decision

that an illegal claim challenging the act as affecting a taking of property rights contrary to the Fifth Amendment to the U.S. Constitution or as otherwise providing

inadequate compensation.

The Court’s denial of the certiorari triggered this provision. The

Department solicited the views of the Hoopa Valley and Yurok

Tribes regarding future actions of the Department with respect to

the settlement fund as required under the act. The report briefly

describes issues both leading up to the subsequent act, attaches the

written positions of the tribes and provides recommendations of the

Department for further action with respect to the settlement fund.

In July 2001, the Hoopa Valley Tribe submitted its proposed

draft report for consideration by the Department. After describing

the history of the disputes, the Settlement Act and subsequent actions, the Hoopa Valley Tribe provided various recommendations

and observations. The Hoopa submission noted that the separate

lawsuit determined that only 1.26 percent of the settlement fund

moneys were derived from the Yurok Reservation, with the remainder of the moneys derived from the Hoopa Reservation.

The Hoopa Valley Tribe has continued to assert its right to a portion of the benefits offered to and rejected by the Yurok Tribe.

Prior to its July submission, the tribe previously requested the Department recommend the remaining funds from the Hoopa Square

be returned to the Hoopa Valley Tribe. The Hoopa submission ultimately suggested the following recommendations.

First, the suspended benefits under the act, including the land

transfer and land acquisition provisions for the Yurok Tribe and

the remaining moneys in the settlement fund be valued and divided equally between the two tribes.

Second, the economic self-sufficiency plan of the Yurok Tribe be

carried forward, including any feasibility study concerning the cost

of the road from U.S. Highway 101 to California Highway 96 and

other objectives of the self sufficiency plan.

Third, that additional Federal lands adjacent to or near the

Yurok and Hoopa Valley Reservation be conveyed to and managed

by the respective tribes.
7

The Yurok position. In August 2001, Counsel for the Yurok Tribe

submitted the tribe’s position and proposed a draft report. The

Yurok Tribe submission similarly outlined the history of the dispute and other considerations in its recommendations for the Department to consider. In general, the Yurok Tribe takes the position, among others, that its conditional waiver was valid and became effective upon the Supreme Court’s denial of certiorari in the

taking litigation.

The Yurok submission discusses the tribe’s concern with the

process leading up to and ultimately resulting in the passage of the

Settlement Act. In the tribe’s view, the act nullified a large part

which allowed all Indians of the reservation to share equally in the

revenues and resources of the joint reservation. ‘‘The tribe, not formally organized at the time, was not asked and did not participate

in this legislative process’’ and had the act imposed on the Yurok

who were left with a small fraction of their former land resources.

In its view, the act divested the Yurok Tribe of its communal

ownership in the joint reservation lands and resources and relegated that much larger tribe to a few thousand acres left in trust

along the Klamath River with a decimated fishery, while granting

to the Hoopa Tribe nearly 90,000 acres of unallotted trust land and

resources including the valuable timber resources thereon.

With respect to the waiver issue, the Yurok submission considers

the Department’s view discussed above as erroneous. The tribe references a March 1995 letter from the Department in which the Assistant Secretary of Indian Affairs indicated the tribe could cure

the perceived deficiencies with its conditional waiver by ‘‘subsequent tribal action or final resolution of the tribes lawsuit in the

U.S. Court of Federal Claims.’’ The tribe takes the position that it made a reasonable settlement

offer and would have dismissed its claim with prejudice but the Department never meaningfully responded. Now the tribe considers

the Supreme Court’s denial of certiorari as a final resolution suggested as curing the waiver. As a support for its position, the tribe

states, ‘‘The text of the Act and the intent of Congress make clear

that filing a constitutional claim and receiving the benefits of that

act are not mutually exclusive.’’ The tribe suggests that principles

of statutory construction, including the canon ambiguities be resolved in favor of the tribes and that the provisions within the statute should be read so as not to conflict or be inconsistent requires

that a broader reading of the waiver provision in section 2(c)(4) in

light of the act’s provision allowing a taking claim to be brought

under section 14.

The tribe considers the Department’s reading of the statute to be

unfair and unjust. For these and other reasons, the tribe is of the

view that it is now entitled to its benefits under the act.

Because the Yurok Tribe litigated its claims against the United

States based on the passage of the Act rather than waiving those

claims, the Department is of the view that the Yurok Tribe did not

meet the conditions precedent to the establishment of section

2(c)(4) of the act for the tribe to receive its share of the settlement

fund or other benefits.

The Department is also of the view that the Hoopa Valley Tribe

has already received its portion of the benefits under the act and
8

is not entitled to further distributions from settlement funds under

the provisions of the act.

Ultimately, this situation presents a quandary for the Department and for the tribes. We believe the act did not contemplate

such a result. The moneys remaining in the settlement fund originated from seven trust accounts which held revenues generated

from the joint reservation. Thus, the moneys remaining in the settlement fund should be distributed to one or both tribes in some

form. Moreover, the Department recognizes that substantial financial and economic needs currently exist within both tribes and their

respective reservations. Given the current situation, the report outlines five recommendations of the Department to address these

issues.

First, no additional funds need be added to the settlement fund

to realize the purpose of the Act.

Second, the remaining moneys in the settlement fund should be

retained in a trust account status by the Department pending further considerations and not revert to the General Fund of the U.S.

Treasury.

Third, the settlement fund should be administered for the mutual benefit of both tribes and their respective reservations taking

into consideration prior distributions to each tribe from the fund.

It is our position that it would be inappropriate for the Department

to make any general distribution from the fund without further action of Congress.

Fourth, Congress should fashion a mechanism for the further administration of the settlement fund in coordination with the Department and in consultation with the tribes.

Fifth, Congress should consider the need for further legislation

to establish a separate permanent fund for each tribe from the remaining balances of the settlement fund in order to address any

issue regarding entitlement of the moneys and fulfill the intent and

spirit of the Settlement Act in full.

This concludes my testimony and I will be happy to respond to

any questions at the appropriate time. We have attached a schematic for the committee with a flow chart of the funds and the

dates funds were disbursed pursuant to the short litigation in the

1988 Act.

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

The CHAIRMAN. Thank you very much, Mr. Secretary.

The chart you speak of, entitled ‘‘Hoopa-Yurok Settlement Act

Funding History,’’ received by the committee yesterday will be

made a part of the record.

[The information appears in appendix.]

The CHAIRMAN. At this juncture, there will be a recess for 10

minutes.

[Recess.]

The CHAIRMAN. We will resume our hearings.

The vice chairman of the committee has a very urgent matter to

work on this afternoon, so he will have to be leaving us in about

10 minutes, so may I call upon him for his questions.

Senator CAMPBELL. Thank you. I apologize for having to leave,

we have some terrible wildfires out west and some of them are in

Colorado, so I’m doing a joint event with some of the other Colo-
9

rado delegation on our fire problem. It just closed Mesa Area in our

part of the State which is a big tourist attraction, so I probably

won’t be able to ask the representatives from the two tribes questions. I’ll submit those in writing if they can get those back to me.

This is a very tough one for me because to me this is like refereeing a fight among family. Some folks on both sides of this issue I’ve

known for years and years and am real close to from my old California days. Let me ask you just a couple.

We have two reservations, one allotted, one not allotted, and this

is certainly a sad history but the Yurok land and resources were

allotted and dissipated. The Hoopa lands and resources remain in

tact. Why were they treated so differently when they are so geographically close in our history? Do you happen to know that?

Mr. MCCALEB. I don’t have personal knowledge of that, Senator.

Let me get that information and respond in writing to you. I have

an impression but I don’t have a real factual answer to that.

Senator CAMPBELL. Let me ask another general question. We’ve

been through a lot of disagreements between tribes and it seems

to me those that can settle their issues without intervention from

the courts are a lot better off than the ones who are not. I have

no problem with the legal profession but let me tell you, the attorneys end up getting paid very well from the Indians that are fighting with each other. In keeping with the spirit of the settlement

in 1988, shouldn’t we try to bring this to a conclusion that both

tribes can live with without fighting it out in courts?

Mr. MCCALEB. That would certainly be my desire, Senator Campbell.

Senator CAMPBELL. Have you personally tried to impress on both

sides your sentiments?

Mr. MCCALEB. I have met with representatives of both sides, yes,

and made those kinds of suggestions.

Senator CAMPBELL. I understand there is a lot of money involved.

Let me ask about the account balance. What is the balance of revenues of the settlement fund and can you trace where the moneys

from the fund came from?

Mr. MCCALEB. Aside from interest that had accrued over time,

the source of all the funds was timber sale proceeds.

Senator CAMPBELL. Did they come primarily from Hoopa or

Yurok lands or both?

Mr. MCCALEB. I’m advised a little over 98 percent of the funds

derived from the Square, are on Hoopa land.

Senator CAMPBELL. Before they were put in the settlement fund,

was there any audit performed to verify the accuracy of the transactions?

Mr. MCCALEB. I’m not aware of that but I will investigate that

and reply in writing to you.

Senator CAMPBELL. In the Secretary’s report, I read part of it

and the staff read all of it, but they make two key findings, that

the Hoopas have been made whole and have no claims against the

United States and that because the Yuroks failed to provide necessary waivers, they are not entitled to benefits under the act.

My question is, with a multimillion dollar fund sitting in the

Treasury, how should it be divided?
10

Mr. MCCALEB. Senator, I was hoping you’d have some suggestion

for me on that. I don’t mean to be flip about it but it is a very difficult answer. The two extreme positions of the tribes are the

Hoopas want half of all the proceeds and the Yuroks think they

should have all of the funds.

Senator CAMPBELL. Would you recommend some kind of development fund for both tribes be established?

Mr. MCCALEB. I think that would be a good solution. As opposed

to per capita payments, you mean?

Senator CAMPBELL. Yes.

Mr. MCCALEB. Yes; I almost always favor that kind of investment as opposed to per capita payments.

Senator CAMPBELL. Thank you, Mr. Chairman. I have no further

questions. I appreciate you giving me that time.

The CHAIRMAN. Thank you.

Mr. Secretary, I have a few questions for clarification. Do the

funds in the settlement fund represent revenues derived from the

sale of timber located on the Square?

Mr. MCCALEB. Over 98 percent. According to the facts furnished

to me, only about 1.26 percent were not derived from timber on the

Square.

The CHAIRMAN. Were those revenues generated from the Square

while members of the Yurok and Karuk Tribes were still considered ‘‘Indians of the reservation’’?

Mr. MCCALEB. The money in the settlement fund is there pursuant to the Short litigation that was resolved in 1974 and the subsequent timber cuttings. Would you restate your question so I can

make sure I understand it?

The CHAIRMAN. Were those revenues generated from the Square

while members of the Yurok and Karuk Tribes were still considered ‘‘Indians of the reservation’’? That is the phrase in the statute.

Mr. MCCALEB. Yes.

The CHAIRMAN. So they were Indians in the reservation at the

time the revenues were generated in the Square?

Mr. MCCALEB. Yes; that’s my understanding.

The CHAIRMAN. Because the Short case instructs us that if there

is to be a distribution of revenues, the distribution must be made

to all Indians of the reservation. Would that mean Hoopa, Yurok,

Karuk?

Mr. MCCALEB. Yes, sir.

The CHAIRMAN. The Hoopa Valley Tribe contends it is the only

tribe entitled to the funds in the settlement fund, so your response

does not agree with that?

Mr. MCCALEB. No; for the reasons you just said. The Short case

is, I think, specific on that point.

The CHAIRMAN. So it seems it may be critical to the resolution

of the competing claims of entitlement to funds in the settlement

fund to know whether the timber revenues that were placed in the

fund were generated after the reservation was partitioned or

whether they were generated while there were three tribal groups

making up the ‘‘Indians of the reservation,’’ isn’t that correct?

Mr. MCCALEB. The revenues that make up the original amount, almost $17 million in the chart, were generated prior to the partitioning of the reservation, while other revenues were generated
11

from the timber fund after 1988, the partitioning actually occurred

in 1988 by act of Congress.

The CHAIRMAN. There are two time periods?

Mr. MCCALEB. Yes; there are.

The CHAIRMAN. Can you tell the committee what disbursements

have been made from the settlement fund, when the disbursements

were made and to whom these disbursements were made?

Mr. MCCALEB. From the settlement fund, $15 million was disbursed to individual Indians who elected to become Yurok. There

was another $10.6 million distributed to individual Indians who

elected to buy out. That $10.6 million was offset by a $10-million

direct appropriation of Congress. There has been another $1.5 million distributed to the Yurok Tribe since 1991 given they were provided about $500,000 a year for 3 years to help them in the process

of establishing their tribal government.

The CHAIRMAN. Anything distributed to the Karuk Tribe?

Mr. MCCALEB. None directly to the Karuk to my knowledge.

There was another $34 million distributed to the Hoopa Tribe,

$34,651,000 pursuant to their signing their waiver in keeping with

the act.

The CHAIRMAN. Given the Department’s position as set forth in

the Secretary’s report that neither the Hoopa Valley Tribe nor the

Yurok Tribe is entitled to the balance of the funds remaining in the

HYSA fund, what benefits of the act or activities authorized in the

act does the Department envision should be carried out and funded

by the recommended two separate permanent funds to fulfill the

intent of the original Act in full measure?

Mr. MCCALEB. I think all the funds should be distributed that

are in the settlement fund. I don’t think there is much debate over

that. I think the issue is over the distribution, how the money

should be distributed.

The CHAIRMAN. How shall the distribution be made?

Mr. MCCALEB. I guess if you go to our third recommendation, it

touches as closely as anything on that:

The settlement fund should be administered for the mutual benefit of both tribes

and the reservations taking into consideration prior distributions to each tribe from

the fund.

If you assume that 30–70 percent distribution was appropriate

originally and take into consideration the prior distribution of the

funds, that would provide some guidance in that area.

The CHAIRMAN. In your opinion, were all the provisions of the

Act benefiting the Hoopa Valley Tribe implemented?

Mr. MCCALEB. Yes.

The CHAIRMAN. Would you say the same of the act benefiting the

Yurok Tribe implemented?

Mr. MCCALEB. No; that’s not correct.

The CHAIRMAN. So the Hoopa Valley got all the benefits, Yurok

did not?

Mr. MCCALEB. One of the provisions was the partitioning of the

tribal lands. That was done, that was accomplished but the Yuroks

got none of the money except for the $1.5 million I indicated. There

were other provisions for economic development that were supposed to be carried out pursuant to an economic development plan

submitted by the Yuroks. The plan was never submitted, so it was
12

never implemented. For example, there was some roadbuilding to

be done pursuant to that economic development plan that has

never been done. The Yurok only received a partitioning of tribal

lands plus the $1.5 million.

The CHAIRMAN. Because of the obvious complexities, may we submit to you questions of some technicality that you and your staff

can look over and give us a response?

Mr. MCCALEB. I would appreciate that because I really need to

rely on the historical and technical views of the staff to answer the

meaningful questions that are attendant to this really sticky issue.

The CHAIRMAN. Thank you very much, Mr. Secretary.

Mr. MCCALEB. May I be excused at this point?

The CHAIRMAN. Yes; and thank you very much, sir.

The second panel consists of the chairman of the Hoopa Valley

Tribal Council of Hoopa, California, Clifford Lyle Marshall, Sr., accompanied by Joseph Jarnaghan, tribal councilman, Hoopa Valley

Tribal Council and Thomas Schlosser, counsel, Hoopa Valley Tribal

Council and Sue Masten, chairperson, Yurok Tribe, Klamath, CA.

STATEMENT OF CLIFFORD LYLE MARSHALL, SR., CHAIRMAN,

HOOPA VALLEY TRIBAL COUNCIL, ACCOMPANIED BY JOSEPH JARNAGHAN, TRIBAL COUNCILMAN, HOOPA VALLEY

TRIBAL COUNCIL AND THOMAS SCHLOSSER, COUNSEL

Mr. MARSHALL. I am Clifford Lyle Marshall, chairman of the

Hoopa Valley Tribe.

At this time, I ask that our written testimony be included in the

record.

The CHAIRMAN. Without objection.

Mr. MARSHALL. Thank you for this opportunity to present the

Hoopa Tribe’s position on the Interior Report on the Hoopa Yurok

Settlement Act. I am here today with council member Joseph

Jarnaghan and attorney Tom Schlosser.

First, let me express the Hoopa Tribe’s deepest gratitude to

Chairman Inouye, Vice Chairman Campbell and the other members of this committee for the leadership in achieving passage of

the landmark Hoopa Yurok Settlement Act. We also acknowledge

and appreciate the hard work of your dedicated staff. This act

could not have occurred without your decision to resolve the complex problems that had crippled our reservation and tribal government for more than 20 years.

The years since its passage have demonstrated the outstanding

success of the Settlement Act. It resolved the complex issues of the

longstanding Jesse Short case, the act vested rights and established

clear legal ownership in each of the tribes to the respective reservations. It also preserved the political integrity of the Hoopa Tribe by

confirming the enforceability of our tribal constitution.

The Hoopa Tribe waived its claims against the United States and

accepted the benefits provided in the act and since then we have

accomplished a number of tribal objectives. We immediately embarked on a strategy to reestablish control of our small Indian nation and were one of the self-governance tribes. We believe that

tribal self-governance is the true path to trust reform.

Although the Yurok Tribe rejected the settlement offer provided

in the act, it nevertheless provided a means for organization of the
13

Yurok Tribe, use of Federal properties for establishment of tribal

government offices and the ability to obtain Federal grants and

contracts. The act ultimately enabled the Yurok Tribe to join the

ranks of self-governance tribes. The Yurok Tribal Council could not

stand before you today as tribal government officials without this

act.

The Settlement Act called for an end to litigation. It provided

benefits to the Hoopa Tribe and the Yurok Tribe on the condition

that they waive all claims which they might assert against the

United States as arising from the act. The Hoopa Tribe accepted

that offer. The Yurok Tribe rejected that offer and sued the United

States and so the act as applied did not authorize payments to

them. As a result, the Yurok Tribe is now clearly prohibited by the

act from receiving a portion of the settlement fund. Congress

should not now conclude that the act was unfair due to the fact the

Yurok Tribe did not receive the benefits of the act. The Yurok Tribe

made a conscious decision to sue and thereby chose to forego nearly

13 years of potential development and economic opportunity.

The Hoopa Tribal Council would be remiss in our duties to our

members if we did not see return of the timber revenues derived

exclusively from the Hoopa Valley Indian Reservation. Over 98 percent of the settlement fund balance comes from Hoopa escrow accounts derived from logging on Hoopa lands. I must respectfully

disagree with Secretary McCaleb’s referring to this fund as the

Yurok account. The act refers to the money as Hoopa escrow moneys.

In 1988, the Hoopa Tribe enacted a resolution authorizing the

use of these Hoopa escrow moneys as a settlement offer to end the

effects of the litigation leading to the act. That consent was required in the act. The Hoopa Tribe’s resolution, however, does not

authorize use of these moneys for purposes not provided in the act.

The Hoopa Tribe’s agreement that the act provided a settlement

offer of Hoopa moneys to the Yurok Tribe was withdraw by operation of law when the Yurok Tribe sued the United States.

The answer to the question what happens now to the settlement

fund must be found outside the act. Federal law provides for payment of proceeds from logging on tribal lands to the tribe whose

reservation was logged. It is clear that the Hoopa Valley Indian

Reservation belongs to the Hoopa Tribe and that the Hoopa Tribe

is the only governing body concerned with the sale of timber on the

unalloted trust land of the Hoopa Reservation.

It simply follows that to the extent money remaining in the settlement fund came from the Hoopa Tribe’s Reservation, the Hoopa

Tribe is the only tribe entitled to those proceeds. Certainly a party

to any other legal dispute which rejected the settlement offer, sued

instead and lost could not come back and claim the previously

made settlement offer. The Hoopa Tribe should not now be forced

to pay for prior injustices that resulted during the allotment era or

from the Yurok Tribe’s decision to sue.

Using the settlement fund remainder for such purposes forces

the Hoopa Tribe to be liable for the Federal Government’s actions.

Moreover, it would force the Hoopa Tribe to pay for the poor judgment of the Yurok Tribe’s decision to litigate. We know of no other

situation where Congress has taken resources and resource reve-
14

nues derived from one reservation and simply given it to another

reservation.

Congress was thorough in developing the Settlement Act. Congress considered history, aboriginal territory, demographics and equity. Likewise, Federal courts have held that the Hoopa Valley Indian Reservation was historically the homeland of the Hoopa Tribe

as a matter of history and as a matter of law. We know today that

the Yurok Tribe would attempt to claim otherwise.

These are not new issues and after 40 years of litigation, the

courts have heard and determined this issue and every other possible issue to be raised in regard to this piece of legislation. The

litigation is now over. We ask Congress now to respect these judicial decisions and move forward.

In conclusion, the Interior report to Congress is disappointing.

Interior concludes that neither tribe is entitled to the fund under

the act but recommends that they administer the fund for the benefit of both the Hoopa and Yurok Tribes. This is clearly contradictory. We have long and hard experience with such administration

during the Short v. United States era. As another witness will testify, Interior lacks the legal authority and the competence to carryout such responsibilities fairly.

We believe the issues now before Congress should be resolved

through considered thought and hard work over some period of

time, not necessarily years but long enough to ground any new legislation on substance and reason rather than emotion.

We have attempted to negotiate and remain open to negotiation.

Thank you for your time.

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

The CHAIRMAN. Thank you, Mr. Chairman.

Would your councilman and the counsel wish to say something?

Mr. MARSHALL. Yes.

STATEMENT OF JOSEPH JARNAGHAN, COUNCIL MEMBER,

HOOPA VALLEY TRIBE

Mr. JARNAGHAN. My name is Joseph Jarnaghan. I thank you for

the opportunity to speak before you. I consider it a great honor.

I am a council member of the Hoopa Valley Tribe. Before being

elected to the council, I worked for the tribe’s timber industry for

many years. I have a written statement and request that it be included in the record.

The CHAIRMAN. Without objection, so ordered.

Mr. JARNAGHAN. Our forests are invaluable to our tribe. I want

to tell you with the use of some slides why the return of the Hoopa

escrow moneys to the Hoopa Valley Tribe is particularly appropriate in this case now that the payment provisions of the act have

been exhausted.

The first slide is a map of the roads built on the Hoopa Valley

Reservation beginning in the 1940’s. There are 550 miles of road

on the reservation. These roads are a major source of sediment production and contamination of our waters because the Bureau of Indian Affairs’ maintenance of these roads was grossly inadequate.

When the BIA clearcut our forests, which ultimately generated

the settlement fund, the BIA was more interested in the volume of
15

timber going to the mill to create the settlement fund account than

it was in the environmental state of our reservation.

Today, the Hoopa Tribe is still faced with the forest resource

management and rehabilitation costs that were left undone. As a

result, we have been spending $200,000 to $400,000 per year from

tribal revenues to fix this road system. This year in the Pine Em

Timber Sale, we have over 100 culverts that need to be installed

as a result of the job not being done when the BIA harvested our

timber between 1972 and 1988. That was 424 million board feet of

timber.

The road construction standards the BIA used when harvesting

our timber were deplorable and created ongoing problems that we

continue to deal with today. The road erosion is devastating to our

fisheries, water quality and riparian organisms. As you can see by

this slide which shows a log jam that blocks fish passage, you will

also notice the unit went right into the creek itself. The BIA logged

33,000 acres of tribal timber before the Settlement Act was passed.

Most of the rest of our reservation is difficult to log because of

steep slopes and in many cases, it is impossible to log because of

ESA and National Marine Fisheries Service restrictions. Most of

the easy units were logged to create the settlement fund.

These slides show that the BIA simply clearcut our reservation.

This degraded cultural resources and created large areas for the

tribe to now rehabilitate. Assistant Secretary McCaleb said Tuesday at the trust reform hearing that most tribes would not clearcut

their land and that is a fact but unfortunately, the BIA did clearcut

our forest. Timber stand improvements cost us over $500 per acre

to treat. At 2 to 3 years old, we grub around trees for conifer release; 10 to 15 years after the harvesting, these clearcuts are invaded by brush and must be brushed by hand because we don’t

allow herbicide spraying. We do this at increased cost to promote

tree growth as well as to ensure water quality.

We have suffered terrible forest fires. The Megram fire of 1999

shown here destroyed 4,500 acres of our reservation, mostly 30

year old stands that had been previously treated at the cost of

$1,000 per acre.

Our tribe must not be forced to withstand losing escrow moneys

that came from timber cuts on our reservation and having to finance the forest restoration and rehabilitation costs resulting from

forest fires or poor BIA timber mismanagement. The settlement

fund remainder was generated almost exclusively from timber from

our reservation. Our forest has been ravaged by the BIA, our

money has been taken from our people to create this fund and we

have been forced to fight clear to the Supreme Court to defend our

reservation, costing the Hoopa Tribe much money, time and lost

opportunity.

Now the Yurok Tribe wants the settlement fund anyway. Is that

fair? The fund that was left on the table by the Yurok Tribe’s refusal to waive its claim should be returned to us so we can rehabilitate our aboriginal territory and our forests after the damage that

was done to them by the BIA clearcutting.

Thank you.

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

The CHAIRMAN. Thank you very much.
16

Mr. Schlosser.

STATEMENT OF THOMAS SCHLOSSER

Mr. SCHLOSSER. My name is Thomas Schlosser. I thank the committee for the opportunity of submitting testimony on the Secretary’s report.

I have been honored to serve as the litigation counsel for the

Hoopa Valley Tribe for over 20 years. During that time, I have represented the Tribe in the Short litigation and in the litigation concerning the Settlement Act.

I have several points I would like to make. First, the Secretary’s

report threatens a return to the situation the tribes were in prior

to passage of the Settlement Act. The Settlement Act was necessitated by complex litigation among the United States, the Hoopa

Valley Tribe and a large number of individual Indians, most of

whom but not all, have become members of the Yurok Tribe.

The chairman mentioned the Karuk Tribe and there are a few

members of the Karuk Tribe who were involved in the Short litigation and were held to be Indians of the reservation. It is a very

small fraction of the Karuk Tribe, I would guess less than 10 percent. Whereas of the people who were held to be Indians of the reservation who elected to join the Yurok Tribe in 1991, the base roll

of the Yurok Tribe was entirely made up of Indians of the reservation.

There is another large fraction of Indians of the reservation that

Mr. McCaleb referred to who chose to disaffiliate from both tribes,

the so-called lump sum option under section 6(d). The Secretary’s

report mistakes the Settlement Act as having primarily been a

boundary resolution act and instead suggests that the settlement

fund be administered for the mutual benefit of both tribes.

Boundary clarification was only a small part of this act and the

efforts to administer the fund for mutual benefit were dramatically

unsuccessful prior to the Settlement Act. For years, long proceedings were necessary to get a tribal budget approved. Sometimes the

tribal budget would get approved in the last month of the fiscal

year because of Interior’s inability to adopt standards and to determine whether things affected the reservation fairly. This led to conflicts between rulings in the Short case and the Puzz case over

which kinds of expenditures were permissible.

For example, the Short case in 1987 held that money that was

distributed to the tribe for tribal governmental purposes did not

damage the Short plaintiffs, was not an injury to the Indians of the

reservation and did not invade their rights. The Puzz court, a district court in the Northern District of California, held to the contrary, that funds used by the Hoopa Valley Tribe did damage the

Indians of the reservation. So there are insufficient standards and

not enough expertise to make that recommendation work well. As

George Santayana said, ‘‘Those who cannot remember the past are

condemned to relive it.’’ There is an error found in Interior’s recommendation.

Under the Settlement Act, there are some benefits potentially

available to the Hoopa Valley and Yurok Tribes. Only 22 Short

plaintiffs were adjudicated to be Indians of the reservation in 1973,

so the court embarked on a long process which actually is still un-
17

derway of identifying the eligible Indians of the reservation and

their heirs for inclusion in per capita payments.

This ruling precipitated other lawsuits, precipitated administrative actions that brought tribal government to a standstill, jeopardized public health, and made necessary the Hoopa Yurok Settlement Act. The Settlement Act originated in the House and in the

House two hearings were conducted, one by the Interior and Insular Affairs Committee and another by the Judiciary Committee,

and this committee conducted two hearings on its bill. And as you

recall, at least three law firms appeared and participated in the

proceedings on behalf of various groups of what have become Yurok

tribal members. This included the Faulkner and Wunsch firm

which represented most of the Short plaintiffs, many who became

Yurok tribal members, the Heller, Ehrman White & McAuliffe firm

which represented the Short plaintiffs, the Jacobsen, Jewitt &

Theirolf firm which represented the Puzz plaintiffs, and so although the Yurok Tribe had not organized in a fashion to designate

its own attorney, its members participated completely and fully.

With the committee’s guidance, after all these legal issues were

discussed and the equities were considered, the parties came together on a settlement package to be laid before each one of the

contestants. At the request of the House, the Congressional Research Service analyzed the House bill to determine whether Congress could lawfully do this or whether it would involve a taking

of property. The Congressional Research Service concluded that because of the unique background of this reservation and the litigation, it was possible that a court would conclude that non-tribal Indians, Indians of the reservation, had some vested interest in reservation property.

Ultimately, the courts didn’t conclude that but the fact that there

was a risk there is part of why the committee and Congress in the

Settlement Act went to great pains to offer benefits in exchange for

waivers of claims. So the settlement fund, for example, was allocated essentially in three ways, partly to the Hoopa Valley Tribe

and the Yurok Tribe, if those tribes waived their claims, and partly

to Indians as individuals who qualified as Indians of the reservation and appropriated money was provided which defrayed most of

the cost of the lump sum payments.

As Mr. McCaleb correctly said, the appropriated money was not

sufficient for the people who disaffiliated from both tribes, so some

of the Yurok and Hoopa escrow funds went to that payment.

This act nullified the Short rulings. That was the purpose of the

act. The act, this committee said in its report, was not to be considered a precedent for individualization of tribal communal assets

but rather, sprang from the realization that there were some judicial decisions that were unique and the committee concluded,

The intent of this legislation is to bring the Hoopa Valley Tribe and the Yurok

Tribe within the mainstream of Federal Indian law.

That is in the committee’s report on page 2.

The Settlement Act preserved the money judgments that had

been won by the individual Short plaintiffs, so they ultimately re- covered about $25,000 each from the treasury in addition to the

payments that were made to them in exchange for claim waivers

under section 6 of the act.
18

The committee said while it didn’t believe the legislation was in

conflict with the Short case, ‘‘To the extent there is such a conflict,

it is intended that this legislation will govern.’’ The reason that is

important now is because it is indisputable that over 98 percent of

the remainder in the settlement fund is derived from Hoopa escrow

funds, from Hoopa timber sales, trees cut on the Hoopa Square.

That proportion in our view belongs to the Hoopa Valley Tribe.

The Short case is not to the contrary. The Hoopa Valley Tribe

has a right to timber proceeds for trees cut on the Square. As a

historical matter, tribes didn’t have a right to proceeds for timber

sales on reservation until 1910 when Congress passed a general

timber statute now enacted in section 407. In 1964, Congress

changed the designation of beneficiaries from the 1910 Act which

said the proceeds would be used for the benefit of Indians of the

reservation. In 1964 that was changed to say that proceeds would

be used for the benefit of Indians who are members of the tribe or

tribes concerned.

At that time, the Department of the Interior, which advocated

that technical correction, explained that Indians of the reservation

didn’t really describe anyone and that in fact members of the relevant tribe shared in the proceeds of sale of tribal properties. In

the Short case, the 1983 opinion, the court held to the contrary and

said Congress, when it used the term tribe here meant only the

general Indian groups communally concerned with the proceeds

and not officially organized or recognized tribes.

So another important part of the Settlement Act was correcting

the damage done to the general timber statute. A section of the

Settlement Act amended section 407 to say the proceeds of sale

shall be used as determined by the governing bodies of the tribes

concerned.

In the litigation that came after the Settlement Act, the Yurok

Tribe and other plaintiffs continued to presume the correctness of

some of the rulings in the Short case, in particular, the 1891 Executive order. The Short case did not support their claim that they

had a right to the Hoopa escrow funds generated from timber cut

on the Hoopa Square. Instead, in two opinions in 1987, an opinion

discussed in this committee’s report, and later in 1993, in the sixth

published Short opinion, the Short court held that the plaintiffs

there did not have a right to the trust funds, the escrow funds. Instead, the court made very clear that all it held in Short was that

if money is distributed to individuals, not distributions to tribes but

individualization of money, gave rise to a right by Indians of the

reservation to share.

The Federal courts rejected this most recently in the litigation

concerning the Hoopa Yurok Settlement Act. Without the theories

of the Short case that as Indians of the reservation, they have some

claim to the timber revenues of the Square, without that theory,

there is no connection between the Yurok Tribe and the Hoopa escrow moneys. The Hoopa escrow moneys were part of a settlement

package and that is the only method by which they could have had

access to them.

As the court ruled in the most recent case, Karuk Tribe of California v. United States, this litigation is the latest attempt by

plaintiffs to receive a share of the revenues from timber grown on
19

the Square. The Settlement Act nullified the Short rulings by establishing a new Hoopa Valley Reservation. A necessary effect of

the Settlement Act was to assure payment of the timber revenues

from the Square exclusively to the Hoopa Valley Tribe.

It was the purpose of the Settlement Act to return these tribes

to the mainstream of Federal Indian law. In the mainstream of

Federal Indian law, the proceeds of trees cut on a tribe’s reservation go to that tribe.

I want to mention one other issue that comes up recurrently and

that is the assertion that a portion of the Hoopa Square was actually traditional Yurok Tribe territory or some even say traditional

Karuk Tribe territory.

As the chairman pointed out, this is not a new issue, it is an

issue that has been litigated specifically and in the just completed

litigation concerning the Settlement Act, Karuk Tribe v. United

States, the court’s ruling was that both as a matter of history and

as a matter of law, the record does not support the Yurok’s claim

to Indian title to the site of the Square. This issue is adverted to

in this committee’s report concerning the Settlement Act where the

committee pointed out that the Settlement Act’s choice of the Bissell Smith Line as the dividing line between the two reservations

had the effect of putting a traditional Yurok village into the Yurok

Reservation where it might previously have been in the Square.

With that, I would conclude my remarks and would be happy to

answer questions.

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

The CHAIRMAN. Thank you.

One of the first issues confronting me as chairman of this committee was this matter. Obviously I knew very little about Indian

country or Indian history or relationship. I spent 2 whole days in

Sacramento conducting hearings, I visited the Valley, I would

never fly back again and I must say that I thought the committee

did pretty well.

But this committee was a successor of other committees in the

U.S. Senate that felt that all the answers were in Washington, that

the answers were in the minds of lawyers and government officials.

What we have here today is the product of government officials and

lawyers, starting off with deception and based upon the deception

coming forth with conclusions and then obviously wanting to justify

the deception.

In the years that followed my tenure as chairman beginning in

1987, I have become much more dependent upon the wisdom of Indian country, to tell me and to tell Washington what the solutions

should be. We have too often tried to impose our will upon Indian

country and this is one example.

In looking at the activities of 1852 and 1864, one must assume

that the Indians were well organized with a whole array of lawyers

who knew the Constitution inside and out and therefore they had

their rights and liabilities all determined and that was not so. The

Government of the United States went out of its way to make certain that Indians never got organized. I wish we could start all

over and I could tell the Hoopa and the Yuroks why don’t you all

get together as you did in the old days. In the old days, it was either war and kill each other and decide or you sit down, have a
20

big conference. In some places they smoked tobacco or exchanged

gifts. Maybe the time has come for the restoration of the old method because as certain as I sit here if the Congress of the United

States should come forth with Settlement Act No. 2, we will be

back here in about 20 years trying to draw up Settlement Act No.

3.

I have a series of technical questions but those are all legal questions. It is good to know the history but I was trained to be a lawyer myself and when one presents his case, you make certain you

don’t say good things about the other side, you speak of the good

things about your side. That is what you are paid for. I would expect lawyers to do the same.

With that, I will be submitting questions of a technical nature

for the record.

May I thank you, Mr. Chairman and your staff.

Our next witness is the most distinguished member of Indian

country, the chairperson of Yurok Tribe of Klamath, California, Sue

Masten.

STATEMENT OF SUE MASTEN, CHAIRPERSON, YUROK TRIBE

Ms. MASTEN. Good morning.

I have the distinct honor to serve as the chairperson of the Yurok

Tribe. The Yurok Tribe is the largest tribe in California with over

4,500 members of which 2,800 members live on or near the reservation.

Thank you for holding this hearing. We appear today with deep

resolve and a commitment to working hard toward addressing the

issues before you.

I know you can appreciate that the issues here run deep and are

heart felt. I also know that when the act was passed Congress believed that the act reached equity for both tribes. Thank you for

your willingness to hear our concerns that those goals were not

achieved.

We especially thank you, Chairman Inouye, for taking this very

significant step toward addressing our concerns for equity under

the Hoopa Yurok Settlement Act to look at what has been achieved

or not achieved during the last 14 years and for asking what now

may need to be done.

We are deeply appreciative of your October 4, 2001 letter where

you invited both tribes to step beyond the act to address current

and future needs. We know this committee sought to achieve relative equity for both the Hoopa Valley Tribe and the Yurok Tribe

in 1988.

During the course of our many meetings with members of Congress and their staff, we have been asked why Congress should

look at this matter again. The answer to this question is clear, the

act has not achieved the full congressional intent and purpose and

Congress often has to revisit issues when its full intent is not

achieved.

Additionally, we believe that the Departments of the Interior and

Justice did not completely or accurately inform Congress of all the

relevant factors. Congress did not have the full assistance from the

departments that you should have had.
21

In reviewing the Department’s testimony and official communications, we were appalled that the Yurok historic presence on the

Square was minimized or ignored and that the relative revenue

and resource predictions for the tribe were also wrong. Furthermore, we are also concerned about the significant disparity of actual land base that each tribe has received.

Can you imagine in this day and age an Assistant Secretary addressing a serious dispute between tribes by describing one tribe as

a model tribe and dismissing the other, as some sort of remnant

who would only need 3,000 acres because only 400 Indians remain

on what would become their reservation.

Interior also told Congress that the income of the tribes was com- parable. The Hoopa Tribe would earn somewhat over $1 million a

year from timber resources and the Yuroks had just had $1 million

plus fishery the year before. Here are the real facts.

Several thousand Yuroks lived on or near the reservation, on or

near is the legal standard for a tribe’s service district. There is a

serious lack of infrastructure, roads, telephones, electricity, housing

on the Yurok Reservation and we have 75 percent unemployment

and a 90-percent poverty level. Further, there is a desperate need

for additional lands, particularly lands that can provide economic

development opportunities, adequate housing sites and meet the

tribal subsistence and gathering needs.

The Department gave the impression that the Short plaintiffs

who were mostly Yurok had left our traditional homelands, were

spread out over 36 States, were perhaps non-Indian descendants

and were just in the dispute for the dollars. This impression was

highly insulting to the Yurok people and a disservice to Congress.

There are at least as many Yuroks on or near the reservation as

are Hoopas. With respect to the relative income or resource equity

projected for the new reservations, it is true there was a commercial fishery shortly before the act, true but also very misleading.

Commercial fishing income, if any, went predominantly to the

Hoopa and Yurok fishermen. The fact was that in most years, there

was no commercial fishery and in many years, we did not meet our

subsistence and ceremonial needs.

Since the act, Klamath River coho salmon have been listed as an

endangered species and other species are threatened to be listed.

In fact, the Klamath River is listed as one of the 10 most threatened rivers in the Nation and has lost 80 to 90 percent of its historic fish populations and habitat. Today, the fish runs we depend

on are subject to insufficient water flows and in spite of our senior

water right and federally recognized fishing right, we continue to

have to fight for water to protect our fishery.

The average annual income of the Yurok Tribe from our salmon

resource was and is nonexistent. To be fair, we should note that

since the Settlement Act, the Yurok Tribe has had a small income

from timber revenues, averaging about $600,000 annually. With respect to the land base, the Yurok Tribe’s Reservation contains approximately 3,000 acres of tribal trust lands and approximately

3,000 acres of individual trust lands. The remainder of the 58,000

acre reservation is held in fee by commercial timber interests.

The Hoopa Tribe Reservation has approximately 90,000 acres

with 98 percent in tribal trust status. Regarding the $1 million
22

plus in timber revenues projected for the Hoopa Tribe, testimony

of the Hoopa tribal attorney in 1988 indicated the annual timber

revenue from the Square was approximately $5 million. Since the

act, the Hoopa timber revenues have been $64 million. The point

is the projected revenue comparison that should have been before

the committee in 1988 was zero fisheries income for the Yurok

Tribe and more than $5 million in annual timber and other revenues from the Square for the Hoopa Valley Tribe, not the comparable $1 million or so for each tribe the committee report relied

upon.

This disparity of lands, resources and revenues continues today

and hinders our ability to provide services to our people. Unfortunately, the Yurok Tribe in 1988 unlike today was unable to address

misleading provisions of key information. The Yurok Tribe, although federally recognized since the mid-19th century, was not

formally organized and had no funds, lawyers, lobbyists or other

technical support to gather data or analyze the bill, to present facts

and confront misinformation.

It is important to acknowledge the positive provisions of the Act

which provided limited funds to retain attorneys and others to assist us in the creation of the base roll, the development of our constitution and the establishment of our tribal offices. We also appreciated the Senate committee report recognized and acknowledged

that the tribe could organize under our inherent sovereignty which

we did.

Had we been an organized tribe, we would have testified before

you in 1988 and we would have pointed out that while it is true

the Square is part of the Hoopa peoples’ homeland, it is also true

that the Square is part of the ancestral homelands of the Yurok

people.

Almost without fail throughout the testimony received in 1988,

the Square is described as Hoopa and the addition is described as

Yurok. The Yurok ancestral map provided to you shows that our

territory was quite large and included all the current Yurok Reservation, 80 percent of Redwood National Park, as well as significant portions of the U.S. National Forest.

Yurok villages existed in the square and these sites have been

verified by anthropologists. This fact should not be a matter of dispute. The Justice Department and the Hoopa Valley Tribe in Yurok

v. United States agreed in a joint fact statement that the Yuroks

were always inhabitants of the Square. We are not claiming that

we had Indian title to the whole square but that we have always

been a part of the Square. The Short cases reached that same determination.

We think these different perspectives are important as we consider today’s issues. However, it is critical for everyone to understand that we are not asking Congress to take back anything from

the Hoopa Valley Tribe that they received under the Settlement

Act. What we do want is for the committee to look at the relative

equities achieved under the act, understanding the Yuroks have always been inhabitants of the Square and have never abandoned

our connection to our territories, our culture and traditions.

We have already noted the significant disparities between the

tribes in income, resources, land base and infrastructure after the
23

act. The data provided by Interior Department today supports our

position. To reiterate, the Hoopa Valley Tribe received a 90,000-

acre timbered reservation of which 98 percent is held in tribal

trust. The Yurok Tribe received a 58,000-acre reservation with

3,000 acres in tribal trust, containing little timber. The map we

have provided to you shows this extreme disparity.

We have already noted that the projected income for the tribes

were incorrect. Time has verified that the predictions of a bountiful

or restored Yurok fishery has not happened. It is also a fishery that

we share with the non-Indians as well as Hoopa. Hoopa timber resources however have produced substantial income exceeding the

1988 predictions as reflected in the Interior Department’s records.

In addition, as this committee is aware from your recent joint hearing on telecommunications, infrastructure on the Yurok Reservation is virtually nonexistent.

In our response to Senator Inouye’s letter of October 4, 2001, we

have submitted an outline of an economic development and land

acquisition plan to you and the Department of the Interior. The

plan is based on our settlement negotiations with the Department

in 1996 and 1997. We would like to request from you today the creation of a committee or a working group composed of tribal administration and congressional representatives and hopefully, under

your leadership, Senator.

We recommend that the committee’s responsibility be to develop

legislation that would provide a viable self sufficient reservation for

the Yurok people as originally intended by the Settlement Act. As

you can see, our issues are broad based and focus on equity for the

Yurok Tribe. The Department’s report has prompted this hearing

to address access by the Yurok Tribe to the Yurok Trust Fund. The

Interior Department has said that neither tribe has legal entitlement to the Yurok Trust Fund. Our view is simple.

The financial equities and the actual distributions of timber revenues from 1974 to 1988 clearly demonstrate that the Yurok Tribe

should receive its share of the settlement fund as the act intended.

Arguments based on where the revenue came from on the joint reservation are wrong. These revenues belonged as much to the

Yuroks of the Square and the Yuroks of the extension as they did

to the Hoopas of the Square. This is the key point of the cases both

tribes lost in the Claims Court.

The point is that prior to 1988, the Hoopa Valley Reservation

was a single reservation intended for both tribes and whose communal lands and income were vested in neither tribe. Short also

means that the Department could not favor one tribe above the

other in the distribution of assets. These are pre-1988 moneys. We

should not have to reargue what Yuroks won in the Short cases.

After the final 1974 decision in Short I, the Department ceased

to distribute timber revenues only to the members of the Hoopa

Valley Tribe and began to reserve 70 percent of the timber revenues for the Yurok plaintiffs. The remaining 30 percent of the revenues were for Hoopa and were placed in a separate escrow account

which the Department disbursed to the Hoopa Valley Tribe. When

we discussed the 1974–88 timber revenues with the Hoopa Tribal

Council, they asserted that all of the timber revenues should have

been theirs. Legally as the committee knows, that is not what the
24

courts have said. No Indian tribe, before 1988, had a vested right

to the Square or its assets. In 1974, the Federal courts had finally

determined that the Secretary had since 1955 wrongfully made per

capital distributions to only Hoopa tribal members and the plaintiffs, mostly Yurok, were entitled to damages against the United

States. Damages were eventually provided to the plaintiffs for the

years 1955–74 but not for 1974–88. The point is that neither tribe

had title to timber or a constitutional right to the revenues from

1974–88. If the revenues were distributed to one group, the other

group was entitled to its fair share. It did not matter what percentage of the timber proceeds came from the square or came from the

addition because according to the Federal courts, neither revenues

were vested in either tribe.

In 1974–88, revenues were distributed to the Hoopa Tribe, first under the 30 percent Hoopa share totaling $19 million and second

under the Settlement Act. As you are aware, the Settlement Act

placed the 70 percent escrow account which was $51 million, the

small balance of the Hoopa 30 percent escrow account, some smaller joint Hoopa Yurok escrow accounts, Yurok escrow accounts, as

well as the $10 million Federal appropriation all in the settlement

fund.

In 1991, the Department split the settlement account between

the two tribes based on our enrollments. The Hoopa Valley Tribe

was allocated 39.5 percent of the settlement fund or $34 million.

Because the Hoopa Valley Tribe had executed its waiver, the Department provided these funds to the tribe. The Yurok Tribe was

allocated $37 million and it was put in a Yurok trust account and

was not provided to us.

From 1974 to 1988, timber revenues and interest was approxi- mately $64 million of which the Hoopa Tribe received a total of $53

million or 84.2 percent of this total. Also in 1991, the claims attorneys for the Short cases sued the United States to try to recover

attorneys fees from the settlement account. Two other Yuroks and

I intervened in this case as co-defendants to protect the Yurok

share of the settlement funds. The United States approved this

intervention and the Justice Department attorneys encouraged our

participation and we won this case.

As you are aware, in 1993, the Yurok Tribe sued the United

States for a takings claim under the Settlement Act. We lost this

case in 2001 when the Supreme Court declined to review a 2 to 1

decision by the Federal Court of Appeals. We lost this case for the

same reason that the Hoopa Tribe lost all of their pre-1988 cases.

No part of the pre-1988 Hoopa Valley Reservation was vested to

any Indian tribe and none of us had title against the United States.

We could argue that the case was unfair and historically blind and

that it is outrageous to use colonial notions of Indian title in these

modern times but it doesn’t matter. We lost, as the Hoopa Tribe

lost before us, and in this legal system, the only appeal we have

left is an appeal to equity and justice before Congress to fix these

wrongs.

At the same time in 1993, we adopted the conditional waiver

which provided that our waiver was effective if the Settlement Act

was constitutional. The courts have determined that the act is constitutional. That determination should have been sufficient to meet
25

the condition of our waiver but the Department held that our waiver was not valid. Although we disagree, we have not challenged the

Department’s judgment in the court and will not take the committee’s time to debate it today.

The Department determined that the Hoopa waiver was effective

and they received their funds under the Act. Therefore, they have

no legal right to additional funds. The Department has reported to

Congress that you should resolve this issue. Among other things,

the Department sees itself as the administrator of the funds for

both tribes. In resolving these issues, the report indicates that Congress should consider funds already received and focus on the purpose of the act to provide for two self sufficient reservations. A better solution would be to permit the Yurok Tribe to manage our own

funds. We, of course, would be willing to submit a plan for review

and approval. In fact, our constitution mandates that a plan be developed and approved by our membership before any of these funds

are spent.

As we have stated, a complete review of the record indicates that

almost all of the trust lands, economic resource and revenues of the

pre-1988 joint reservation have to date been provided almost exclusively to the Hoopa Valley Tribe. A final point to consider is that

in 1996, we negotiated an agreement with the Hoopa Valley Tribe

to support H.R. 2710 in return for their support of our settlement

negotiation issues specifically the balance of the settlement funds.

Apparently the Hoopa Valley Tribal Council now believes that its

end of the deal ended with the collapse of our settlement negotiations. We lived up to our end of the bargain and the Hoopa Valley

Tribe received an additional 2,600 acres of trust land. This almost

equals the total tribal trust lands we received under the act. Copies

of both of our 1996 commitment letters have been provided with

our written testimony.

In closing, back home our people are preparing for our most sacred ceremonies, the White Deer Skin dance and the Jump dance.

These ceremonies are prayers to the Creator to keep balance in our

Yurok world. When our people are in balance, we are strong, our

children’s futures are bright, life is as it should be, good. When our

people are not in balance, we are weakened, our people are disheartened and we worry about what will become of our children.

Life is not good.

In a way, this hearing is a kind of ceremony. We come seeking

balance for our people, we come seeking strength, we come seeking

a stable future for our children, we come seeking a good life for our

tribe. Sadly, our people are not now in balance. Though our dances

help our spiritual well being, the resources given to us by the Creator so that we would never want for anything have been taken

from us. Once we were a very wealthy people in all aspects in our

Yurok world, in our spirituality, in our resources and in our socialeconomic affairs. The sad irony is that because of our great wealth,

we were targeted heavily by the Government’s anti-Indian policies

for termination and assimilation. Many of our elders have passed

on never having received the benefits they were entitled to under

Short and under the Hoopa Yurok Settlement Act. We hope Congress will not let more pass on without benefiting from the settlement fund.
26

Be that as it may, we pray Congress will use its power to bring

balance back to our people, that it will relieve our fears about our

children’s futures and make us strong once again, that it will make

our lives good as they should be.

Once more, Senator, thank you for the honor of appearing before

the committee today and would welcome any of your questions.

[Prepared statement of Ms. Masten appear in appendix.]

The CHAIRMAN. Thank you very much.

If the Congress is called upon to resolve this matter, I can assure

you that the Congress can and will do so but I would hope that all

of you assembled here would realize under what circumstances

these decisions would be made. Here I sit alone before you. This

is a committee of 15 members. The vice chairman unfortunately

had to leave because of other commitments and other issues. As a

general rule, we are the only two who sit through all of these hearings.

Second, I think you should take into consideration that the sanctuary that Indian country once held in the Supreme Court may not

be available. Supreme Court decisions of recent times have indicated that they are not too favorably inclined as to the existence

of Indian sovereignty. I need not remind you of Nevada v. Hicks

and the Atkins on Trading Post cases. Keeping that in mind, I

wasn’t being facetious when I said if you left it up to us for Settlement Act No. 2, you may get it but it may be worse than Settlement Act No. 1.

Solutions for Indian problems coming from Indian country are always the best and I know you have attempted to sit together in the

past but it has not succeeded but I would hope you can do so and

come forth with a joint recommendation that both of you can approve and support because if we do it, somebody is going to get

hurt. I have no idea who is going to get hurt but I can guarantee

you somebody is going to get hurt.

If you have the patience and the wisdom to get together and sit

down, have negotiations and discussions and if you want to have

the help of this committee to some mediation, we are happy to do

so but to try to do this legislatively at this stage, I don’t think is

a wise thing because the foundation is shaky to begin with and this

is not the kind of solution that lawyers can make, only Indians can

make it. I would hope that you can sit together, begin a process.

We would be very happy to help you and hopefully come forth in

the not too distant future, maybe 6 months from now, with some

solution. I can assure you that I will act speedily and expeditiously.

The way it is now, I am the only one sitting here but this is the

way the Congress of the United States acts unfortunately. If you

want people who have no knowledge, no idea of your issues acting

upon your case, you can have it but I think that’s the wrong way.

I will not ask you any questions at this time. We will just confuse it and maybe anger people further and that’s not my mission

here, to anger Indians. I think the time has come for Indians to get

together. You have big problems ahead of you. If you can’t solve the

immediate problems at home, then you will have real problems on

the big ones.

With that, Chairperson Masten and Chairman Marshall, just for

us, would you please stand up and shake hands?
27

Ms. MASTEN. We have no problem with that, Senator. We work

on many issues together where we have mutual benefit but I would

like to say before I do that, we would request the committee’s assistance because in our prior negotiations there has been a breach

of trust because after our last negotiations, the Hoopa Tribe issued

a press release.

The CHAIRMAN. When you have negotiations, I will make certain

there is a representative from this committee.

Ms. MASTEN. Appreciate that, Senator. Thank you again.

The CHAIRMAN. If you can keep your rhetoric reasonable and rationale and friendly, I think we can work out something.

Mr. MARSHALL. I’m sorry, Senator. I cannot shake hands after

being offended in that way. We did not offend them in the last negotiation and I cannot be that hypocritical.

The CHAIRMAN. I think we should start the process.

With that, this hearing is adjourned.

[Whereupon, at 12:04 p.m., the committee was recessed, to reconvene at 2 p.m. the same day.]

(29)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF JOSEPH JARNAGHAN, COUNCILMAN, HOOPA VALLEY TRIBE

OF CALIFORNIA

My name is Joseph Jarnaghan and I am a member of the Hoopa Valley Tribal

Council. Our tribe has lived on and governed its affairs in the Hoopa Valley for over

10,000 years. I testify as a tribal official elected in a democratic process by the tribal

membership, and expressing the views of our people.

On behalf of the Hoopa Valley Tribe, I want to thank this committee for the opportunity to be here today and to testify in this oversight hearing. I want to tell

you why the return of the Hoopa escrow moneys to the Hoopa Valley Tribe is particularly appropriate in this case, now that the payment provisions of the HoopaYurok Settlement Act have been exhausted.

My first slide is a map of roads built on the Hoopa Valley Indian Reservation beginning in the 1940’s. There are over 550 linear miles of road on the reservation.

These roads are a major source of sediment production and contamination of our

waters because the Bureau of Indian Affairs’ maintenance of these roads was grossly inadequate, virtually nonexistent, when it clear-cut timber from our reservation.

The Bureau was more interested in getting the trees down and to sale rather than

forest resource management and rehabilitation. Now, the Hoopa Valley Tribe spends

approximately $200,000 to $400,000 per year from tribal revenue to fix this road

system. Simply put, the BIA road construction standards employed in harvesting

timber from our reservation created a huge ongoing problem. The roads erosion is

devastating to fisheries, water quality and riparian organisms. The tribe continues

to rehabilitate old logging roads and landings that are major contributors to sediment production and which thereby affect fish habitat and water quality.

The BIA cut down approximately 33,000 acres of tribal timber before the HoopaYurok Settlement Act was passed. Most of the remainder of the reservation cannot

be logged. As the photos illustrate, clear cutting management techniques were practiced by the BIA. This type of harvesting disregarded cultural resources and created

large areas that the tribe must now rehabilitate through timber stand improvement

projects. Even 10 years after harvesting, clear cuts have led to invasion by brush

species, understocked timber regrowth, and unhealthy conditions susceptible to fire

or insects. Timber stand improvement costs the tribe over $500 per acre to treat.

Thin and release programs conducted by hand produce substantial improvements in

growth rates.

Our reservation has also been substantially damaged by forest fires. The Megram

fire of 1999 resulted in approximately 4,500 acres being destroyed through fire suppression efforts on the reservation. About one-half of the damage was the result of

‘‘back bum’’ operations. The rest of the damage occurred through creation of a ‘‘contingency fire line.’’ The fire line was up to 400 feet wide and approximately 11 miles

long.

The Hoopa Valley Tribe must not be subjected to the double hit of losing both the

Hoopa escrow moneys derived from timbering activities on our reservation and having to finance the restoration and rehabilitation costs resulting from the BIA’s poor
30

timber harvest projects and forest fires. The potential application of Hoopa escrow

funds to settlement costs never came to pass, instead we had to incur tremendous

defense costs to protect our reservation. The Hoopa escrow funds from our reservation should be restored to meet the needs of our people.

PREPARED STATEMENT THOMAS P. SCHLOSSER, COUNSEL, HOOPA VALLEY TRIBE OF

CALIFORNIA

My name is Thomas P. Schlosser and I am an attorney for the Hoopa Valley

Tribe. I thank the committee for the privilege of presenting testimony concerning

the report to Congress submitted by the Secretary of the Interior in March 2002,

pursuant to § 14(c) of Pub. L. 100–580, as amended, the Hoopa-Yurok Settlement

Act.

I have been honored to serve as litigation counsel to the Hoopa Valley Tribe for

over 20 years and, during that time, have represented the tribe in the hopelessly

misnamed case of Short v. United States, a suit still pending after 39 years. Along

with numerous lawyers representing various sides of the controversy, I participated

in the proceedings of the 100th Congress and this Committee that fashioned the

landmark Hoopa-Yurok Settlement Act.

1. The Secretary’s Report Threatens a Return to Pre–1988 Conditions.

The Settlement Act was necessitated by complex litigation between the United

States, the Hoopa Valley Tribe, and a large number of individual Indians, most, but

not all of whom were of Yurok decent. Those who do not recall the applicable court

rulings or the conditions from which the Settlement Act emerged will not fully appreciate the strengths and weaknesses of the Secretary’s § 14(c) report. Thus, the

Secretary’s report mistakes the Settlement Act as having been enacted ‘‘with the

primary objective of providing finality and clarity to the contested boundary issue,’’

and concludes with the recommendation that the Settlement Fund ‘‘would be administered for the mutual benefit of both the Hoopa Valley and Yurok Tribes.’’ The Secretary’s report is not all wrong but boundary clarification was only an aspect of the

Hoopa-Yurok Settlement Act. If administration of the Fund for the joint benefit of

the tribes is the outcome of this process we will have returned to the difficult era

between 1974 and 1988 that required passage of the Settlement Act in the first

place. As George Santayana said, ‘‘those who cannot remember the past are condemned to repeat it.’’ The error of establishing a ‘‘Reservation-wide’’ account is clear

from comparing § 1(b)(1)(F) with Puzz v. United States, 1988 WL 188462, *9 (N.D.

Cal. 1988).

Under the Settlement Act there are potential benefits currently unavailable to the

Yurok and Hoopa Valley Tribes because of the Yurok Tribe’s decision to reject the

conditions of the act. The Hoopa-Yurok Settlement Fund is only one of the undistributed assets, and probably not the most valuable one, by comparison to the hundreds of acres of Six Rivers National Forest land within and near the Yurok Reservation, the money appropriated for Yurok land acquisition, the Yurok self-sufficiency plan which was never submitted or funded, and the statutory authority to

acquire land in trust for the Yurok Tribe. Thus. a second shortcoming of the Secretary’s § 14(c) report is that it focuses myopically on the Hoopa-Yurok Settlement

Fund. Nevertheless, because the Settlement Fund is the only asset in which the

Hoopa Valley Tribe has a continuing interest, my testimony will focus on it.

2. The Short Case Was an Aberration From Federal Indian Law.

The Settlement Act brought to an end a long detour from a correct decision of the

Interior Department on February 5, 1958, the Deputy Solicitor’s memorandum regarding rights of the Indians in the Hoopa Valley Reservation, California. The Solicitor’s opinion found that a group of Indians had been politically recognized as the

Hoopa Tribe by the United States in 1851 and were the beneficiaries of administrative actions in 1864 and an Executive order in 1876 setting aside the Hoopa Square

for the benefit of any Indians who were then occupying the area and those who

availed themselves of the opportunity for settlement therein. (Those Indians were,

as this committee found in 1988, primarily Hoopa Indians, but the Hoopa Valley

Tribe included other individuals who joined the community and ultimately became

enrolled tribal members.) The Solicitor found that Commissioner of Indian Affairs

had been correct in recognizing tribal title to the communal lands in the Hoopa

Square to be in the Hoopa Valley Tribe. The Federal Government’s action a generation later, in 189 1, to append to the Hoopa Valley Reservation the old Klamath

River Reservation and the intermediate Connecting Strip, as an aid to the administration of those areas, could not have had any effect on the rights of Indians to property within the Reservation because Hoopa Valley rights attached in 1864 and

Klamath River Reservation rights attached in 1855.
31

Unfortunately for all concerned, the Court of Claims differed with the Interior Department’s 1958 view in Short v. United States, 202 Ct. Cl. 870 (1973), cert. denied,

416 U.S. 961 (1974) (‘‘Short 1’’). Short I ruled that the Secretary violated trust duties to non-Hoopa ‘‘Indians of the Reservation,’’ when he excluded them from tribal

per capita payments. Nearly 4,000 individuals were plaintiffs in Short, and Short

I found only 22 ‘‘Indians of the Reservation’’ and left a very difficult job (which is

still underway) for the courts to perform determining which other ‘‘Indians of the

Reservation’’ and their heirs were entitled to damages from Treasury for breach of

trust. Short I precipitated a series of crises and related lawsuits that jeopardized

public health and welfare and nearly destroyed tribal government before Congress

stepped in with the Hoopa-Yurok Settlement Act.

The Settlement Act originated in the House as H.R. 4469. The Interior and Insular Affairs Committee and the Judiciary Committee of the House conducted hearings on that bill, in addition to the two hearings conducted by this committee. As

you may recall, at least three law firms represented factions of Yurok tribal members at those hearings, including Faulkner & Wunsch, Heller Ehrman White &

McAuliffe, and Jacobsen, Jewitt & Theirolf. Many legal issues were argued but, with

this committee’s guidance, the warring factions came together on a settlement package to lay before all parties.

At the request of the House, the American Law Division of the Congressional Research Service prepared an analysis of H.R. 4469 which pointed out that because

of the unique statutory and litigation background, a remote possibility existed that

litigation concerning H.R. 4469 could create a new Federal Indian law precedent,

holding that if the Reservation was established for non-tribal Indians, Indians of the

Reservation would have a vested interest in Reservation property. The courts did

not ultimately reach that conclusion, but it is useful to recall that issue now in order

to realize how the Secretary’s § 14(c) report oversimplifies the Settlement Act as

merely a division of assets between the Hoopa Valley and Yurok Tribes. Actually,

the Settlement Act initially divided the Hoopa-Yurok Settlement Fund between the

Hoopa Valley Tribe and the Yurok Tribe, subject to surrender of claims, and then

added appropriated funds to finance lump-sum payments to Indians who did not

elect to join the Yurok Tribe or the Hoopa Valley Tribe. Because of the long history

of Yurok Short plaintiff opposition to organization of the Yurok Tribe and the wide

geographic dispersal of Yurok Indians it was simply unknown how many persons

on the Hoopa-Yurok Settlement Roll would elect Yurok tribal membership.

3. The Settlement Act Nullified the Short Rulings.

This committee emphasized that the Settlement Act should not be considered an

individualization of tribal communal assets and that the solutions in the Settlement

Act sprang from a series of judicial decisions that are unique in recognizing individual interests that conflict with general Federal policies and laws favoring recognition and protection of tribal property rights and tribal governance of Indian reservations. The committee concluded: ‘‘the intent of this legislation is to bring the Hoopa

Valley Tribe and the Yurok Tribe within the mainstream of Federal Indian law.’’

S. Rep. 564, 100th Cong., 2d Sess. (1988) at 2.

The Settlement Act preserved the money judgments won by qualified plaintiffs in

the Short case, and they ultimately recovered about $25,000 each from the United

States Treasury in 1996. They also received the payments provided by § 6 of the

Act. But this committee noted that while it did not believe ‘‘that this legislation, as

a prospective settlement of this dispute, is in any way in conflict with the law of

the case in the Short cases, to the extent there is such a conflict, it is intended that

this legislation will govern.’’ Id. at 19.

The interplay of the Settlement Act and the Short case is important to allocation

of the Settlement Fund now for this reason: is indisputable that over 98 percent of

the funds remaining in the Hoopa-Yurok Settlement Fund originated in trees cut

from the Hoopa Square, now the Hoopa Valley Reservation. That proportion of the

funds belongs to the Hoopa Valley Tribe.

4. The Hoopa Valley Tribe Has a Right to its Timber Proceeds.

As an historical matter, Indian tribes did not generally have a right to logging

proceeds until Congress, by the Act of June 25, 1910, authorized the sale of timber

on unallotted lands of any Indian reservation and provided that ‘‘the proceeds from

such sales shall be used for the benefit of the Indians of the reservation in such

manner as he may direct.’’ See 25 U.S.C. § 407. In 1964, Congress changed the identity of the beneficiaries of proceeds in the statute from ‘‘Indians of the reservation’’

to ‘‘Indians who are members of the tribe or tribes concerned.’’ As the Interior Department testified in support of that amendment, this was a technical correction because the term ‘‘Indians of the reservation’’ did not describe anybody and actually

members of the relevant tribe shared in the proceeds of the sale of tribal property.

However, in Short v. United States, 719 F.2d 1133, 1136 (Fed. Cir. 1983), cert. de-
32

nied, 467 U.S. 1256 (1984) (‘‘Short III’’), the court rejected that explanation and held

that ‘‘Congress, when it used the term ‘tribe’ in this instance, meant only the general Indian groups communally concerned with the proceeds—not an officially organized or recognized Indian tribe—and that the qualified plaintiffs fall into the group

intended by Congress.’’ Thus, another important portion of the Settlement Act was

the correction to the Short—caused distortion of 25 U.S.C. § 407 to provide that ‘‘the

proceeds of the sale shall be used—(1) as determined by the governing bodies of the

tribes concerned and approved by the Secretary——’’ This amendment restored tribal control over enrollment and use of timber proceeds.

The Short case, as explained in some detail in this committee’s report, found that

no vested Indian rights existed at the time the Hoopa Valley Reservation was extended to include the Connecting Strip and Klamath River Reservation in 1891, and

that therefore all Indians of the reservation, as extended, had to be included in per

capita distributions from reservation revenues. In the litigation that challenged the

Settlement Act as a taking of plaintiffs’ vested rights, the Yurok Tribe, its members,

and the Karuk Tribe of California logically presumed both the propriety of President

Benjamin Harrison’s 1891 Executive order and the correctness of the Court of

Claim’s decision in Short I. In other words, those plaintiffs assumed that President

Harrison acted lawfully in expanding the Hoopa Valley Reservation to include the

Addition, and that the effect of 1891 Executive order was to give all Indians having

an appropriate connection to the reservation as so expanded an equal claim to all

of the expanded reservation’s income. If either of those propositions was incorrect,

then the Settlement Act could not be thought to deprive plaintiffs of anything to

which they were ever entitled. However, those propositions depended in turn on the

assumption that the 1876 Executive order did not confer property rights on the inhabitants of the Hoopa Square, as the reservation was then defted, since if such

rights were conferred they would have been taken by the 1891 Executive Order, at

least as construed in Short I.

Here we are again hearing the Yurok Tribe contend that they have a right to receive timber proceeds from the Hoopa Valley Square. The courts have correctly rejected this, not once, but time after time in Short IV, Short VI, and Karuk Tribe

of California. In Short IV, 12 Cl. Ct. 36, 44 (1987), the Court held that the escrow

fund did not belong to Short plaintiffs but was held in the Treasury subject to the

discretion of the Secretary of the Interior. That ruling was reaffirmed in Short VI,

28 Fed. Cl. 590, 591, 593 (1993), where the Court recalled that prior to 1987 the

Short plaintiffs claimed a right to the entire escrow fund but that claim was rejected

in Short IV and remained the law of the case. The Federal courts rejected plaintiffs

continued effort to capitalize on Short. Karuk Tribe of California, et al. v. United

States, et al., 209 F.3d 1366, 1372 (Fed. Cir. 2000), cert. denied, 523 U.S. 941 (2001).

Without the theories of the Short case, the Yurok Tribe has no claim to portions

of the Settlement Fund derived from Hoopa escrow funds and timber on the Square.

As the Court ruled in Karuk Tribe of California, ‘‘This litigation is the latest attempt by plaintiffs to receive a share of the revenues from timber grown on the

Square. . . . [but] the Settlement Act nullified the Short rulings by establishing a

new Hoopa Valley Reservation. . . . A necessary effect of the Settlement Act was

thus to assure payment of the timber revenues from the Square exclusively to the

‘Hoopa Valley Tribe.’’’ 209 F.3d at 1372. It was the purpose of the Settlement Act

to return the Yurok and Hoopa Valley Tribes to the mainstream of Federal Indian

law. The twisted logic of the Short case can have no further effect on these tribes.

Under mainstream law, the proceeds of Indian timber sales must go to the tribe

whose trees were cut.
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Æ