TESTIMONY OF CONGRESSMAN DOUGLAS H. BOSCO HOUSE JUDICIARY SUBCOMMITTEE ON ADMINISTRATIVE LAW AND GOVERNMENTAL RELATIONS THE HOOPA/YUROK SETTLEMENT ACT September 30, 1988 Mr. CHAIRMAN - Let me first express my gratitude to you for agreeing to hold this hearing. H.R. 4469 will divide the Hoopa Valley Indian Reservation in Northern California into two reservations one for the use of the Hoopa tribe, the other for the Yurok tribe. It will enable each to organize and govern itself, and it provides for the establishment of tribal roles and the payment to individuals of funds now held in trust by the United States. Originally this legislation contemplated the payment of sums owed certain individuals under a court of claims case, Jessie Short v. United States. For this reason, it was referred to the House Judiciary Committee. Because this case is nearing settlement on its own, and due to the Justice Department's belief that even partial payments under the case would be premature, this provision was deleted from the legislation. The measure as it now stands, as amended in the House Interior Committee, would not be referred to the Judiciary Committee, according to the House Parliamentarian. Nevertheless, I believe Chairman Rodino had concerns that the legislation would unduly affect existing litigation. We are prepared today to address these concerns. I would commend to your Committee's attention a fine report issued by the American Law Division of the Congressional Research Service (September 13, 1988 "Question with Respect to Hoopa Valley Reservation Settlement as proposed in H.R. 4469"). This report, requested by the Interior Committee, presents a detailed discussion of the main legal issues and a historical perspective as well. Mr. Chairman, each of the Federal judges who has heard matters related to the Hoopa Valley Reservation dispute over the years has said that it is Congress' responsibility to settle many of the contentious issues involved. This legislation meets that responsibility. I am proud to say that the people who will be affected the most, the Indians of the reservation, have worked hard to resolve their differences. As a result, we have widespread support for this legislation, including the leadership of both tribes, all the national Indian organizations, the major newspapers of California, and even Jesse Short, who filed the original lawsuit some twenty-five years ago and whose dedication to her people will soon result, we hope, in an act of Congress that benefits the thousands of people who heretofore have seen no relief whatsoever. Mr. FRANK. We will next hear from Mr. Schlosser. Oh, I forgot the Department of Justice, I am sorry. Why don't you come forward? Go ahead. TESTIMONY OF JAMES L. BYRNES, DEPUTY ASSISTANT ATTORNEY GENERAL, LANDS DIVISION, DEPARTMENT OF JUSTICE Mr. BYRNES. Thank you, Mr. Chairman and members of the committee. On behalf of the Department of Justice, I am pleased to have this opportunity to present our views on H.R. 4469 as amended, legislation to partition reservation lands between the Hoopa Valley Tribe and the Yurok Indians, as introduced by Congressman Bosco. This legislation satisfies our litigation concerns. However, because of budgetary and other policy concerns, we defer to the Department of the Interior for the Administration's position on the bill. In 1876, a 12-mile square tract of land in northern California, The Square, occupied mainly by Hoopa Indians, was set aside by President Grant as the Hoopa Valley Indian Reservation. In 1891, President Harrison extended the boundaries of the reservation to include the adjoining one-mile-wide strip of land on either side of the Klamath River, the "Addition" or "Extension," which was occupied mostly by Yurok Indians. Beginning in the 1950s, the Hoopa Valley Tribe, a federally-recognized and organized tribe, began receiving proceeds from the harvesting of timber from the Square. Some of the proceeds from the timber harvests were distributed on a per capita basis to individual members of the Hoopa Valley Tribe. This prompted suits by other Indians who were not members of the tribe and thus did not receive per capita payments. In these cases, the United States Claims Court held, contrary to the Government's position, that the Square and the Extension were a single reservation and that all Indians of the reservation were entitled to share in a money judgment based on past distributions of individualized moneys, i.e. the per capita payment. Since the initial ruling in 1973, efforts have been made to identify the qualified plaintiffs, to settle the litigation and to mediate the dispute which is focused on the conflicting positions of the organized Hoopa Valley Tribe and the federally-recognized but not organized Yurok Tribe. As amended, H.R. 4469 would provide for the partition of the Hoopa Valley Reservation into two separate reservations, to be held in trust by the United States for the Hoopa Valley Tribe and the Yurok Tribe, respectively. The bill also provides for the establishment and distribution of a Settlement Fund for eligible individuals. The Department of Justice has worked closely with Congressman Bosco's staff to draft legislation that meets our litigation concerns. We have, however, two remaining concerns with the bill. Our first concern is clarification that no Fifth Amendment taking is intended by the sections providing for the contribution of tribal moneys to the Settlement Fund. This bill already provides for a waiver of claims by the Hoopa Tribe and, under certain circumstances, the While we understand the waiver language as already evidencing tribal consent, we think a provision requiring express tribal consent could provide a clearer acknowledgment by the tribal government that no taking has occurred. We, therefore, suggest that section 2(a)(2)(A) be changed to read as follows: "(2)(A) The partition of the joint reservation as provided in this subsection shall not become effective unless, within 60 days after the date of the enactment of this Act, the Hoopa Valley Tribe shall adopt, and transit to the Secretary, a tribal resolution: "(i) waiving any claim such tribe may have against the United States arising out of the provisions of this Act, and “(ii) affirming tribal consent to the contribution of Hoopa escrow moneys to the Settlement Fund, and for their use as payments to the Yurok Tribe, and to individual Yuroks, as provided in this Act." We likewise suggest that section 9(c)(2)(A) be changed to read as follows: "(A) the adoption of a resolution, by a vote of not less than twothirds of the voters present and voting: "(i) waiving any claim the Yurok Tribe may have against the United States arising out of the provision of this Act, and "(ii) affirming tribal consent to the contribution of Yurok escrow moneys to the Settlement Fund, and for their use as payments to the Hoopa Tribe, and to individual Hoopa members, as provided in this Act.' Our second concern involves section 13(c)(2) of the bill, which provides that, in the event of a judgment against the United States based on a Fifth Amendment taking, the Secretary of the Interior shall submit a report to Congress recommending possible Congressional modifications to the bill. Pursuant to this section, Congress could change the nature of the act that constituted a taking, and thus make payment for a permanent taking by the United States unnecessary. In order to ensure that payment is not made in the event that Congress takes action to make the payment unnecessary, we suggest that the following provision be added to section 13(c)(2) of the Act: "Notwithstanding the provisions of 28 U.S.C. 2517, any judgment entered against the United States shall not be paid for 180 days after the entry of judgment; and, if the Secretary of the Interior submits a report to Congress pursuant to this section, then payment shall be made no earlier than 120 days after submission of the report." The bill's remaining provisions largely involve budget and policy matters, and we defer to the Department of the Interior on them. I would be pleased to answer any questions you might have. Mr. FRANK. Any questions? Mr. COBLE. Mr. Chairman? One brief question. Is it not true that the United States presently holds the reservation in trust for the benefit of all the Indians of the reservations? Mr. BYRNES. Yes, it is. Mr. COBLE. Is that going to be any problem? Mr. BYRNES. No, sir, this bill exercises Congress' plenary power in establishing how the reservation will be run. The reservation |