The land oligopoly has, according to the Hawaii Legislature, created artificial The partition plan proposed in II.R. 4469 can be distinguished from the flawaii land redistribution scheme on at least two grounds. First, it constitutes an uncompensated taking. Second, unlike the situation in Midkiff in which governmental action enlarged the class of persons eligible to share in property in order to combat for public purposes the evil effects of oligopoly of ownership, the partition plan of II.R. 4469 concentrates ownership in the Hoopa Valley Tribe oligopoly by extinguishing the valid co-cqual ownership rights of the 70% of the reservation population constituting the excluded but eligible Indians of the Reservation. Thus, the partition plan proposed in II.R. 4469 has precisely the opposite effect of the Hawaii land redistribution plan it concentrates land ownership to public detriment and in violation of the legitimate property rights of the majority of the present owners of the Reservation. Thus, Midkiff supports the idea that the partition plan proposed in II.R. 4469 constitutes a constitutionally invalid effort through an uncompensated taking to appropriate private property for private usc. Furthermore, the contingent indemnification provision of section 2(e)(2) plainly manifests on the fact of the partition legislation the intent to appropriate property to private purposes. In Midkiff, the Court indicated that "deference to the legislature's 'public use' determination is required 'until it is shown to involve an impossibility." The bizarre contingent indemnification provisions of section 2(e)(2) and the obvious concomitant unwillingness of Congress to shoulder the costs of providing full compensation for the extinguishment of rights engendered by the proposed partition plan, plainly make it impossible to defer to the presumption of public use. The entire partition scheme proposed in H.R. 4469 therefore, as in the Thompson case, constitutes a constitutionally invalid uncompensated taking of property for private purposes. E. The Contingent Indemnification Provision Will Not Insulate the United States from Monetary Liability for Takings Effectuated by the Partition Plan The contingent indemnification provision of section 2(e)(2) is designed to assure that the United States will not incur any monetary liability for the obvious taking of vested Indian property rights contemplated by the partition plan. This provision constitutionally cannot successfully accomplish that result. Basically, the provision requests that the tribe benefitting from the gross reallocation of property rights contemplated in the partition plan pay for the benefits that it receives. The constitutional infirmity of this provision is evident from the legal dilemma that it creates. If, as is obviously correct, the reason for this provision is that the Hoopa Valley Tribe and its members, rather than the public, would benefit by the plan, the plan constitutes, as discussed above, an uncompensated taking of property for private purposes. On the other hand, if the partition plan is thought to be for public benefit, the only theory that would sustain such an involuntary partition, then under the fifth amendment the federal government is constitutionally obligated by the fifth amendment to pay full compensation for the taking. The contingent indemnification provision of the Act seeks to cast this obligation on the tribe benefited by the partition and then limit the indemnification recovery only to taken from the benefited tribe's "future income." This effort to involuntarily force the benefited tribe to pay for an exercise of eminent domain powers undertaken ostensibly "for public use" might constitute a taking of Indian property for public use itself. Thus, were the partition plan to take effect and were the contingent indemnification provision triggered, the benefited tribe, The Hoopa Valley Tribe, probably would have a valid cause of action against the United States under the fifth amendment takings clause that it could enforce in the United States Claims Court under 28 U.S.C. sec. 1505 claiming that confiscation of its property to pay for the takings liabilities incurred by the United States as a result of the partition plan constituted an involuntary taking of its property for public use, i.e. to pay obligations of the United States. Even though the Hoopa Valley Business Council may currently support the plan, they are both legally and pract ically capable of disingenuously turning around and attacking the contingent indemnification provisions as a taking should they ever be successfully invoked against them. Indeed, the loopa Valley Business Council demonstrated just such behavior when it disingenuously and, ultimately unsuccessfully, filed suit in the United States District Court for the Northern District of California (No. C-76-1405 RIIS) against the Secretary of the Interior, without ever mentioning the Short decision, to contest the allegedly illegal sequestration of "70% of the plaintiff's income." The nonconsensual partition plan contained in II.R. 4469 certainly constitutes an uncompensated taking. Either it constitutes an uncompensated taking for private use, in which case it is entirely unconstitutional, as discussed above, or it constitutes a taking for public use, in which the United States must assume the obligation to pay full compensation or a voluntary compensation structure must be established by the Act. The contingent indemnification provision therefore cannot conceivably insulate the United States from liability. Either the provision constitutionally invalidates the entire partition scheme or its takes for public use the property of the tribe required to pay such compensation. Under the fifth amendment, there simply is not and constitutionally should not be any way to escape alternative conclusions. CONCLUSION The nonconsensual partition plan for the Hoopa Valley Reservation constitutes a cynical, arrogant, and unconstitutional effort to overturn the judicial vindication of the vested and recognized property rights of the excluded but eligible Indians of the Hoopa Valley Reservation. It would overturn judgments and orders secured after 25 years of litigation and it would reward the Hoopa Valley Business Council, the small minority of the Reservation who currently compose the Hoopa Valley Tribe, and the Bureau of Indian Affairs for actions that numerous courts have found to be illegal. Furthermore, the partition plan is completely anti-democratic and therefore violates the substantive majoritarian principle of the Indian Reorganization Act of 1934 that has been the comerstone of twentieth century federal policies of furthering Indian tribal self government. Finally, the partition plan is blatantly unconstitutional since it takes vested, recognized Indian property rights, both individual and communal rights, for private purposes and otherwise constitutes a completely uncompensated taking. Thus, involuntary partition of the Hoopa Valley Reservation in the fashion contemplated in II.R. 4469 is both bad policy and unconstitutional. If Congress believes that federal legislative intervention is appropriate into the almost 40 year dispute involving the political and economic structure of the Hoopa Valley Reservation, a far better and more constitutional policy would be to require restructuring of a single tribe for the entire loopa Valley Reservation, both the Square and the Extension, which would comply with the substantive majoritarian principle of the Indian Reorganization Act of 1934, which would include, serve and allow equal participation for all eligible Indians of the whole Reservation. Such legislation would vindicate, rather than thwart, the hard won rights of the plaintiffs in Short and Puzz. Such legislation merely would rectify past administrative errors and illegal actions that created the current exclusion of 70% of the cligible Indians of the Reservation from ful participation in the Hoopa Valley Reservation government and from full enjoyment of equal benefits from the economic resources of the Reservation. [The statement of Ms. Newton follows:] STATEMENT OF NELL JESSUP NEWTON IN OPPOSITION TO PROPOSED LEGISLATIVE PLANS TO RESOLVE DISPUTES ON THE HOOPA VALLEY RESERVATION BY NONCONSENSUAL PARTITIONING OF THE RESERVATION Hearing before the Senate Committee on Indian Affairs Sacramento, California June 30, 1988 |