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“THE SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION GRAND COULEE DAM EQUITABLE COMPENSATION SETTLEMENT ACT” mentioning the Department of Interior was published in the Extensions of Remarks section on pages E957-E959 on June 5, 2002.
The publication is reproduced in full below:
THE SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION GRAND COULEE
DAM EQUITABLE COMPENSATION SETTLEMENT ACT
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HON. GEORGE R. NETHERCUTT, JR.
of washington
in the house of representatives
Tuesday, June 4, 2002
Mr. NETHERCUTT. Mr. Speaker, I am honored today to introduce legislation that will provide an equitable settlement of the meritorious claims of the Spokane Tribe of Indians concerning its contribution to the production of hydropower by the Grand Coulee Dam.
Similar settlement legislation was enacted in 1994 to compensate the neighboring Confederated Colville Tribes as a consequence of the Grand Coulee Dam. That legislation, P.L. 103-436, provided for a $53 million lump sum payment for past damages and roughly $15 million annually from the ongoing proceeds from the sale of hydropower by the Bonneville Power Administration. The Spokane settlement legislation, which I am introducing today, would provide a settlement of the Spokane Tribe of Indians claims directly proportional to the settlement afforded the Colville Tribes based upon the percentage of lands appropriated from the respective tribes for the Grand Coulee Project, or approximately 39.4 percent of the past and future compensation awarded the Colville Tribes pursuant to the 1994 legislation. Though the proposed Spokane settlement is proportionately less, the losses sustained by the Spokane Tribe are substantially the same as those sustained by the Colville Tribes and arise from the same actions of the United States Government. The difference being that the Spokane Tribe lost its entire salmon fishery, the base of its economy.
Grand Coulee Dam is the largest concrete dam in the world, the largest electricity producer in the United States, and the third largest electricity producer in the world. It produces four times more electricity than Hoover Dam on the Colorado River and is three times its size. Grand Coulee is one mile in width; its spillway is twice the height of Niagara Falls. It provides electricity and water to one of the world's largest irrigation projects, the one million acre Columbia Basin Project. The Grand Coulee Project is the backbone of the Northwest's federal power grid and agricultural economy.
For more than half a century, the Grand Coulee Project has produced enormous revenues for the United States Government and brought prosperity to the Pacific Northwest. The construction of the dam and the electricity it produced, helped pull the Northwest out of the Great Depression. It provided electricity to the aluminum plants that built the air force that helped to defeat Germany and Japan in World War II.
To the Spokane Tribe of Indians, however, the dam is a monument to the destruction of their way of life. The Dam flooded their reservation on two sides. The Spokane River--the ancestral umbilical cord to Spokane existence and the heart of their reservation--was changed from a free flowing waterway that supported plentiful salmon runs, to barren slack water that now erodes away the southern lands of the Reservation with every change in the reservoir level. The enormous benefits that accrued to the Nation and the Northwest were made possible by uncompensated and irreparable injury to the Native Americans of the Columbia and Spokane Rivers.
From 1927 to 1931, at the direction of Congress, the U.S. Army Corps of Engineers investigated the Columbia River and its tributaries. In its report to Congress, the Corps identified a number of potential sites and recommended the Grand Coulee site for hydroelectric development by either the State of Washington or private concerns. Shortly thereafter, the Columbia River Commission, an agency of the State of Washington applied for and, in August 1933, was granted a preliminary permit from the Federal Power Commission for the water power development of the Grand Coulee site. However, on November 1, 1933, Harold Ickes, Secretary of the Interior and Director of Public Works Administration, federalized the project under the National Industrial Recovery Act of 1933. Excavation for the dam commenced on December 13, 1933. However, its legal authorization was in question and Congress reauthorized the Dam in the Rivers and Harbors Act of 1935. In 1940, very belatedly and inadequately (at the urging of the Department of the Interior), Congress did enact a statute to authorize the Secretary of the Interior to designate whichever Indian lands he deemed necessary for Grand Coulee construction and to receive all rights, title and interest the Indians had in them in return for his appraisal of its value and payment of compensation by the Secretary. The only land that was appraised and supposedly compensated for was the newly flooded lands. Pursuant to this legislation, 54 Stat. 703 (1940), the Spokane Tribe received the grand total of $4,700. There is no evidence that the Department advised or that Congress knew that the Tribes' water rights were not extinguished. Nor had the Indian title and trust status of the Tribal land underlying the river beds been extinguished. No compensation was included for the power value contributed by the use of the Tribal resources nor the loss of the Tribal fisheries or other damages to tribal resources.
Although the Department of the Interior and other federal officials were well aware of the flooding of Indian trust lands and other severe impacts the Grand Coulee Project would have on the fishery and other critical resources of the Spokane and Colville Tribes, no mention was made of these impacts or the need to compensate the Tribes in either the 1933 or 1935 authorizations. Federal inter-departmental and intra-
office correspondence of the Department of the Interior from September 1933 thru October 1934 clearly demonstrate that the Federal government knew that the Colville and Spokane Tribes should be compensated for the flooding of their lands, destruction of their fishery and other resources, destruction of their property and annual compensation from power production for the use of the Tribes' land and water resources contributing to such power production. As pointed out in a 1976 Opinion of Lawrence Aschenbrenner, the Acting Associate Solicitor, Division of Indian Affairs, Department of the Interior:
The 1940 act followed seven years of construction during which farm lands, and timber lands were flooded, and a fishery destroyed, and during which Congress was silent as to the Indian interests affected by the construction. Both the Congress and the Department of the Interior appeared to proceed with the Grand Coulee project as if there were no Indians involved there.
. . . . .
The Department correspondence and memoranda on the subject of Indian rights apparently came to an abrupt halt [after 1934]. There is no tangible evidence, currently available, to indicate that the Department ever consulted with the tribes during the 1933-1940 period concerning the ongoing destruction of their land and resources and proposed compensation therefore.''
The Opinion goes on to point out:
It is our conclusion that the location of the dams on tribal land and the use of the water for power production, without compensation, violated the Government's fiduciary duty toward the Tribes.
. . . . .
The situation at hand involves a conflict-of-interest on the part of the Department of the Interior. . . . The Department of the Interior has responsibility for protecting the Tribes' Winters Rights [water rights] as well as its property rights in the bed of the river. Recognizing the value of the river as a power production and irrigation site, the Department of the Interior . . . has used this land and the water for its own purposes, without ensuring that consideration and benefit from the development of those resources flowed to the Tribes who own part of them. The case fits squarely into the reasoning of Manchester Band, Navajo Tribe and Pyramid Lake cases, where ``. . . a fiduciary who learns of an opportunity, prevents the beneficiary from getting it, and seizes it for himself.'' (Citations omitted)
. . . . .
Throughout the construction, the Department's apparent failure to communicate with the Tribes concerning their land and water rights is appalling. No case law grants executive agencies authority to unilaterally abrogate Indian rights.
[T]he posture of the Department can be described not as . . . an exercise of guardianship, but an act of confiscation.''
(Citations omitted).
Why did the 1994 Colville settlement legislation not also include a settlement of the claims of the Spokane Tribe of Indians? The Colville settlement legislation ratified a settlement agreement reached between the United States and the Colville Tribes to settle the claims of the Tribes to a share of the hydropower revenues from the Grand Coulee Dam. This claim was among the claims which the Colville Tribes filed with the Indian Claims Commission (ICC) under the Act of August 13, 1946 (60 Stat. 1049) and later transferred to the U.S. Court of Claims. Pursuant to that Act, there was a five year statute of limitations to file claims before the Commission which expired August 13, 1951. Prior to the statute of limitations deadline, the Colville Tribes had already been formally organized with a functioning tribal government for more than 15 years. The Spokane Tribe, however, did not formally organize and receive approval of its constitution until June 27, 1951--only 16 days prior to the ICC statute of limitations deadline. The Tribe's attempt to retain legal counsel to file its claims before the ICC was delayed due to the then Commissioner of Indian Affairs, Dillion Meyer's efforts to impose restrictive conditions on attorney contracts with the tribes nationwide. While these conditions were subsequently repudiated by the Secretary of the Interior, significant and precious time had elapsed and the Tribe's legal counsel was left with insufficient time to fully investigate the full range of potential claims of the Tribe prior to the filing deadline. Additionally, the ICC Act imposed a duty on the Bureau of Indian Affairs to apprise the various tribes of the provisions of the Act and the need to file claims before the Commission. While the BIA was well aware of the potential claims of the Spokane Tribe to a portion of the hydropower revenues generated by Grand Coulee, there is no evidence that the BIA ever advised the Tribe of such claims. As stated in the testimony of the Assistant Secretary for Indian Affairs, concerning the 1994 Colville Settlement legislation: ``Over the next several years the Federal Government moved ahead with the construction of the Grand Coulee Dam, but somehow the promise that the Tribe would share in the benefits produced by it was not fulfilled.''
In 1974 the Solicitor of the Department of the Interior issued an Opinion which concluded, among other things, that the Spokane and Colville Tribes each retained ownership of the lands underlying the Columbia River and, in the case of the Spokane Tribe, the lands underlying the Spokane River. The Opinion suggested that the resource interests of the Tribes were being utilized in the production of hydroelectric power at Grand Coulee.
In 1976, in response to this Opinion, the Senate Appropriations Committee directed the Secretary of the Interior and the Secretary of the Army to ``open discussions with the Tribes to determine what, if any, interest the Tribes have in such production of power, and to explore ways in which the Tribes might benefit from any interest so determined.'' (S. Rept. 94-505 at 79). A technical team was subsequently composed of representatives of various federal agencies, BPA and the Tribes. On May 7, 1979, the Solicitor for the Department of the Interior forwarded to OMB a lengthy memorandum proposing legislative resolution of the claims of both the Colville Tribes and Spokane Tribe. However, no further action occurred.
When the Colville settlement legislation was moving forward in 1994, the Spokane Tribe pressed for an amendment to waive the statute of limitations and allow the Spokane Tribe to seek just and equitable compensation resulting from the construction of the Grand Coulee Dam. Fearful that the Spokane Tribe's efforts might delay and jeopardize final enactment of the Colville settlement legislation, the Colville Tribes and others requested that the Spokane Tribe defer its efforts to seek settlement of its claims. The Spokane Tribe honored that request. During the joint House and Senate hearings on the Colville legislation, the Assistant Secretary for Indian Affairs did commit in her testimony that she would study the merits of the Spokane claim. The day after the hearings, the Solicitor of the Department committed the Department to examine, independent of the Colville Bill, the Spokane Tribe's claims. The House Resources Committee Report accompanying the Colville legislation stated that the Spokane claim was ``identical in many respects'' to the harm suffered by the Colville Tribes. The Committee noted ``that the Spokane Tribe has a moral claim and requests that the Department of the Interior and the Department of Justice work with the Spokane Tribe to develop a means to address the Spokane's claim.'' In the Senate, Senators Inouye, Bradley, Murray, McCain and Hatfield joined in a colloquy expressing their concern that the claims of the Spokane Tribe should be addressed and urged the Administrative agencies to work with the Spokane Tribe to resolve the Tribe's claims.
Following a subsequent commitment from Associate Attorney General, John R. Schmidt, that the Department and other federal agencies would undertake an ``earnest'' and ``fair evaluation'' of the Tribe's claims, the Tribe committed a great deal of time, resources and funding to fully research and document its claims. By late 1995, the Tribe was prepared to formally request that the Interior and Justice Departments establish a federal ``negotiating team''. In a meeting with Interior Department officials in December 1995, Tribal representatives were astounded when they were advised that the Tribe should return to Congress and renew the Tribe's request for a waiver of the statute of limitations.
On July 9, 1996, Senators Murray, McCain, Inouye, Bradley and I sent a letter to Secretary Bruce Babbitt stating the federal/tribal negotiations urged by Congress in 1994 were not predicated on the Tribe's first obtaining a waiver of the statute of limitations; that the requirement for such an undertaking was ``totally contrary to the understanding of the Tribe and to the direction of Congress''; and urged that the Interior Department ``proceed as soon as possible to negotiate with the Tribe on its power value and fishing claims as previously directed by Congress.'' Unfortunately, viable and equitable settlement negotiations have not materialized.
Enactment of settlement legislation addressing the meritorious claims of a Tribe, claims otherwise barred by a statute of limitations, is neither new or precedent setting. There is ample precedent for Congressional recognition of the moral claims of Indian tribes and provision of appropriate compensation. Several tribes within the Missouri River Basin suffered very significant damage because of inundation of reservation bottom lands through construction of the Pick-Sloan Project dams. In recognition of these damages, Congress has provided substantial compensation to the Affiliated Tribes of the Fort Berthold Reservation and the Standing Rock Sioux Tribe (P.L. 102-575), the Crow Creek Sioux Tribe (P.L. 104-233), and the Lower Brule Sioux Tribe (P.L. 105-132). Compensatory legislation for the Cheyenne River Sioux Tribe (S. 964) and the Santee Sioux and Yankton Sioux Tribes (S. 1148) are currently pending before this Congress and are expected to move through the Senate Committee on Indian Affairs shortly.
The Federal Government, by its own admission, had a conflict of interest and blatantly breached its fiduciary trust responsibility to the Spokane Tribe. Having breached that trust by converting the Tribe's resources to its own benefit, it also failed to advise the Tribe in a timely manner of its potential claims and frustrated and critically delayed the Tribe's attempt to secure independent legal counsel to research and file such claims. Now, it seeks to avoid fair and honorable negotiations with the Tribe it betrayed because the Tribe failed to timely file its claims before the expiration of the statute of limitations. As quoted by the Assistant Secretary for Indian Affairs in her testimony on the Colville settlement legislation:
. . . I am reminded of the words of Justice Black . . . in litigation about another dam flooding the lands of another tribe's territory: ``Great nations, like great men, should keep their word.'' When the Congress enacts and the President signs this legislation, we can all be proud that we are, at last, acting as a great nation should.
I urge my colleagues to keep the word of our Nation and act expeditiously and favorably on this legislation as it proceeds through the Congress.
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