TESTIMONY OF WEYMAN I. LUNDQUIST, COUNSEL FOR THE For the past 13 years, my law firm has represented the majority of the Indians of the Hoopa valley Reservation in the case entitled Jessie Short v. United States, No. 102-63, Claims Court. On behalf of those 4000 Indians, who were never asked by referendum or otherwise whether they wanted this bill, I strongly urge this Committee to prevent this termination bill from becoming law. The proponents of this bill ask you to step into the middle of an ongoing lawsuit, one which has been in the courts for 25 years. They ask you to reverse the 13 federal judges who have ruled that the majority of the Indians of the Reservation have exactly the same rights in their Reservation as does the minority. They ask you to reward their litigation strategy, which has been to SEP 29 '88 17:39 HEW&M 415 772-6268 S.F., CA. USA P.3 Page 2 delay and complicate the litigation in the hope that Congress would eventually step in and undo everything which was accomplished in the courts. I urge you to take no action which will reverse this ongoing litigation. Congress should pass no law affecting Indian rights without first conducting a referendum on the Reservation to determine the wishes of the people. The Hoopa Valley Reservation was created in 1864. It was not created for any particular tribe or group of people, but rather for all the Indians of Northern California who chose or were induced to settle there. There were at least 11 different tribal groups in the area who were given rights on the Reservation. Until 1950, the Reservation ran smoothly for the benefit of all of its Indian people. In 1950, the BIA created a political organization called the Hoopa Valley Tribe, which represents only a minority of the Indians with rights on the Reservation. The majority of the Indians were, with BIA complicity, excluded from that organization. The BIA then allowed the minority group to claim exclusive control of the vast timber resources of the Square part of the Reservation to the exclusion of the majority. The majority sued the BIA in 1963, claiming that they too were entitled to share in the resources and revenues of their Reservation. In 1973 the Court of Claims issued a well reasoned and lengthy decision, with 218 findings of fact, which held that P.4 SEP 29 '88 17:39 HEH&M 415 772-6268 S.F., CA. USA Page 3 The all Indians of the Reservation owned equal rights in their land, and that all must be treated equally. To reach this simple and obviously fair principle, the Court studied thousands upon thousands of documents, listened to expert witnesses and considered the problem for many years. The Court's decision was a fair one, a just one and the only one supported by the facts and the law. Supreme Court has refused three times to reverse the decision. A total of 13 federal judges have considered the complex issues surrounding the Hoopa Valley Reservation, and each one has ruled that the majority of individuals must be treated equally with the minority. Unfortunately, justice has been slow in coming to the majority. Despite the Court's final decision, the BIA and the Hoopa Valley Tribe have poured millions of dollars in attorneys' fees into the litigation to stall and delay the case as long as possible. Even though the BIA has been funding the losing party's lawyers with the communal revenues of the Reservation, the case is finally near its end. Nearly every issue necessary to conclude the case has been resolved. For the most part, the few remaining matters are fully briefed and already before the Claims Court for decision. Now, having stalled the case for the past 15 years, the losing parties come to you, the Congress, and ask you to reverse those 13 federal judges, to make legal those actions of the SEP 29 '88 17:40 HEW&M 415 772-6268 S.F., CA. USA P.5 Page 4 BIA which the Court held were illeqal; in essence, to bring us back to where we were when the Short case was filed in 1963. It is clear that this bill will not end litigation, nor will it solve the Reservation's problems. The bill explicitly states that the Jessie Short case must continue to its completion to determine the Indians' past damages. But what the bill does not explicitly tell you is that it will result in a number of additional lawsuits. Professor Clinton, a renowned Indian law scholar from the University of Iowa, testified before the House Interior Committee that this bill would constitute an unconstitutional taking of private property for a private purpose. Lawsuits will be filed to enjoin the implementation of this bill. Professor Clinton has also concluded that the bill would constitute a Fifth Amendment taking of property for which the Government would have to pay fair compensation. The Congressional Research Office recently issued a report citing a few of the portions of the bill which demonstrate its confiscatory intent: (1) that the Hoopa Valley Tribe is given the power to stop the partition but the Yurok Tribe is not, (2) that the major assets of the Reservation are given to the minority, and (3) the lack of consideration for any other tribes with rights in the Reservation. The proponents of the bill have not obtained an appraisal of the Reservation, nor have they made any attempt to provide just and fair compensation in the bill. Most of the money for SEP 29 '88 17:41 HEW&M 415 772-6268 S.F., CA. USA P.6 Page 5 termination payments comes from an escrow fund already owned by the Indians, a fund which is the subject of competing claims in court. Various estimates of the value of the land range from $500 million and up. Recognizing that a Fifth Amendment suit will likely be successful, the authors of the bill have included an unconstitutionally short statute of limitations period. Do they hope to shorten the statute of limitations so much that these 4000 individuals are deprived of the opportunity to vindicate their rights through our court system? Additional lawsuits will also be filed. The bill does not settle the issue of fishing, hunting or gathering rights on the Reservation. The termination provisions of the bill will also result in litigation. In short, this bill would interfere with and reverse a 25-year old case which is coming to a close, only to create new lawsuits. As I said earlier, the reason this case has taken so long is that delay has been the tactic of defendants. The BIA has funded the losing party in the litigation with millions of dollars of communal revenues in order to stall the case. But you need not take my word for it. In 1985, the American Lawyer interviewed the Hoopa Valley Tribe's former counsel, Howard Dickstein, for a June, 1985 article. He discussed the Government's and the Hoopa Valley Tribe's unsuccessful attempt to force the majority of Indians to create an artificial Yurok Tribe, a maneuver which wasted two full |