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II

108TH CONGRESS 2D SESSION

S. 2878

To amend the Hoopa-Yurok Settlement Act to provide for the acquisition of land for the Yurok Reservation and an increase in economic development beneficial to the Hoopa Valley Tribe and the Yurok Tribe, and for other purposes.

IN THE SENATE OF THE UNITED STATES
SEPTEMBER 30, 2004 Mr. CAMPBELL introduced the following bill; which was read twice and referred to the Committee on Indian Affairs

A BILL
To amend the Hoopa-Yurok Settlement Act to provide for the acquisition of land for the Yurok Reservation and an increase in economic development beneficial to the Hoopa Valley Tribe and the Yurok Tribe, and for other purposes. 1 Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled, 3 4
SECTION 1. SHORT TITLE.

This Act may be cited as the ``Hoopa-Yurok Settle-

5 ment Amendment Act of 2004''.

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2 1 2 3
SEC. 2. ACQUISITION OF LAND FOR THE YUROK RESERVATION.

Section 2(c) of the Hoopa-Yurok Settlement Act (25

4 U.S.C. 1300i­1(c)) is amended by adding at the end the 5 following: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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``(5) LAND

ACQUISITION.-- GENERAL.--Not

``(A) IN

later than 1 year

after the date of enactment of this paragraph, the Secretary and the Secretary of Agriculture shall-- ``(i) in consultation with the Yurok Tribe, identify Federal and private land available from willing sellers within and adjacent to or in close proximity to the Yurok Reservation in the aboriginal territory of the Yurok Tribe (excluding any land within the Hoopa Valley Reservation) as land that may be considered for inclusion in the Yurok Reservation; ``(ii) negotiate with the Yurok Tribe to determine, from the land identified under clause (i), a land base for an expanded Yurok Reservation that will be adequate for economic self-sufficiency and the maintenance of religious and cultural practices;
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3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ``(iii) jointly with the Yurok Tribe, provide for consultation with local governments, and other parties whose interests are directly affected, concerning the potential sale or other transfer of land to the Yurok Tribe under this Act; ``(iv) submit to Congress a report identifying any parcels of land within their respective jurisdictions that are determined to be within the land base negotiated under clause (ii); and ``(v) not less than 60 days after the date of submission of the report under clause (iv), convey to the Secretary in trust for the Yurok Tribe the parcels of land within their respective jurisdictions that are within that land base. ``(B) ACCEPTANCE retary shall-- ``(i) accept in trust for the Yurok Tribe the conveyance of such private land as the Yurok Tribe, or the United States on behalf of the Yurok Tribe, may acquire from willing sellers, by exchange or purchase; and
IN TRUST.--The

Sec-

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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ``(ii) provide for the expansion of the Yurok Reservation boundaries to reflect the conveyances. ``(C) FUNDING.--Notwithstanding any

other provision of law, from funds made available to carry out this Act, the Secretary may use $2,500,000 to pay the costs of appraisals, surveys, title reports, and other requirements relating to the acquisition by the Yurok Tribe of private land under this Act (excluding land within the boundaries of the Hoopa Valley Reservation). ``(D) REPORT.-- ``(i) IN
GENERAL.--Not

later than 90

days after the date of submission of the report under subparagraph (A)(iv), the Secretary, in consultation with the Secretary of Agriculture relative to the establishment of an adequate land base for the Yurok Tribe, shall submit to Congress a report that describes-- ``(I) the establishment of an adequate land base for the Yurok Tribe and implementation of subparagraph (A);

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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ``(II) the sources of funds remaining in the Settlement Fund, including the statutory authority for such deposits and the activities, including environmental consequences, if any, that gave rise to those deposits; ``(III) disbursements made from the Settlement Fund; ``(IV) the provision of resources, reservation land, trust land, and income-producing assets including, to the extent data are available (including data available from the Hoopa Valley Tribe and the Yurok Tribe), the environmental condition of the land and income-producing assets, infrastructure, and other valuable assets; and ``(V) to the extent data are available (including data available from the Hoopa Valley Tribe and the Yurok Tribe), the unmet economic, infrastructure, and land needs of each of

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6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 the Hoopa Valley Tribe and the Yurok Tribe. ``(ii) LIMITATION.--No expenditures for any purpose shall be made from the Settlement Fund before the date on which, after receiving the report under clause (i), Congress enacts a law authorizing such expenditures, except as the Hoopa Valley Tribe and Yurok Tribes may agree pursuant to their respective constitutional requirements. ``(6) CLAIMS.-- ``(A) IN
GENERAL.--The

Court of Federal

Claims shall hear and determine all claims of the Yurok Tribe or a member of the Yurok Tribe against the United States asserting that the alienation, transfer, lease, use, or management of land or natural resources located within the Yurok Reservation violates the Constitution, laws, treaties, Executive orders, regulations, or express or implied contracts of the United States. ``(B) CONDITIONS.--A claim under subparagraph (A) shall be heard and determined--

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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
AND

``(i) notwithstanding any statute of limitations (subject to subparagraph (C)) or any claim of laches; and ``(ii) without application of any setoff or other claim reduction based on a judgment or settlement under the Act of May 18, 1928 (25 U.S.C. 651 et seq.) or other laws of the United States. ``(C) LIMITATION.--A claim under subparagraph (A) shall be brought not later than 10 years after the date of enactment of this paragraph.''.
SEC. 3. JURISDICTION.

(a) LAW ENFORCEMENT

AND

TRIBAL COURT FUNDS

PROGRAMS.--Section 2(f) of the Hoopla-Yurok Set-

16 tlement Act (25 U.S.C. 1300i­1(f)) is amended-- 17 18 19 20 21 22 23 24 (1) by striking ``The Hoopa'' and inserting the following: ``(1) IN
GENERAL.--The

Hoopa'';

(2) by striking the semicolon after ``Code'' the first place it appears and inserting a comma; and (3) by adding at the end the following: ``(2) LAW
ENFORCEMENT AND TRIBAL COURT

FUNDS AND PROGRAMS.--

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8 1 2 3 4 5 6 7 8 9 10 11 12 13 ``(A) IN
GENERAL.--Notwithstanding

para-

graph (1), Federal law enforcement and tribal court funds and programs shall be made available to the Hoopa Valley Tribe and Yurok Tribe on the same basis as the funds and programs are available to Indian tribes that are not subject to the provisions of law referred to in paragraph (1). ``(B) AUTHORIZATION
OF APPROPRIA-

TIONS.--There

is authorized to be appropriated

for Yurok law enforcement and tribal court programs $1,000,000 for each fiscal year.''. (b) RECOGNITION
OF THE

YUROK TRIBE.--Section

14 9 of the Hoopa-Yurok Settlement Act (25 U.S.C. 1300i­ 15 8) is amended by adding at the end the following: 16 ``(f) RECOGNITION
OF THE

YUROK TRIBE.--The au-

17 thority of the Yurok Tribe over its territories as provided 18 in the constitution of the Yurok Tribe as of the date of 19 enactment of this subsection are ratified and confirmed 20 insofar as that authority relates to the jurisdiction of the 21 Yurok Tribe over persons and land within the boundaries 22 of the Yurok Reservation.''. 23 (c) YUROK RESERVATION RESOURCES.--Section 12

24 of the Hoopa Yurok Settlement Act (102 Stat. 2935) is 25 amended by adding at the end the following:

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9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ``(c) KLAMATH RIVER BASIN FISHERIES.-- ``(1) IN
GENERAL.--The

Secretary and the Sec-

retary of Agriculture shall enter into stewardship agreements with the Yurok Tribe with respect to management of Klamath River Basin fisheries and water resources. ``(2) EFFECT
OF PARAGRAPH.--Nothing

in

paragraph (1) provides the Yurok Tribe with any jurisdiction within the Hoopa Valley Reservation. ``(d) MANAGEMENT AUTHORITY.-- ``(1) DEFINITION
THORITY.--In OF COMANANGEMENT AU-

this subsection, the term `manage-

ment authority' means the right to make decisions jointly with the Secretary or the Secretary of Agriculture, as the case may be, with respect to the natural resources and sacred and cultural sites described in paragraph (2). ``(2) GRANT
OF MANAGEMENT AUTHORITY.--

There is granted to the Yurok Tribe management authority over all natural resources, and over all sacred and cultural sites of the Yurok Tribe within their usual and accustomed places, that are on land remaining under the jurisdiction of the National Park Service, Forest Service, or Bureau of Land

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10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Management within the aboriginal territory of the Yurok Tribe. ``(e) SUBSISTENCE.-- ``(1) IN
GENERAL.--There

is granted access for

subsistence hunting, fishing, and gathering rights for members of the Yurok Tribe over all land and water within the aboriginal territory of the Yurok Tribe that remain under the jurisdiction of the Yurok Tribe or the United States, excluding any land within the Hoopa Valley Reservation. ``(2) CONDITION.--All subsistence-related activities under paragraph (1) shall be conducted in accordance with management plans developed by the Yurok Tribe.''.
SEC. 4. BASE FUNDING.

From amounts made available to the Secretary for

17 new tribes funding, the Secretary shall make an adjust18 ment in the base funding for the Yurok Tribe based on 19 the enrollment of the Yurok Tribe as of the date of enact20 ment of this Act. 21 22
SEC. 5. YUROK INFRASTRUCTURE DEVELOPMENT.

(a) IN GENERAL.--There are authorized to be appro-

23 priated--

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11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (1) $20,000,000 for the upgrade and construction of Bureau of Indian Affairs and tribal roads on the Yurok Reservation; (2) for each fiscal year, $500,000 for the operation of a road maintenance program for the Yurok Tribe; (3) $3,500,000 for purchase of equipment and supplies for the Yurok Tribe road maintenance program; (4) $7,600,000 for the electrification of the Yurok Reservation; (5) $2,500,000 for telecommunication needs on the Yurok Reservation; (6) $18,000,000 for the improvement and development of water and wastewater treatment systems on the Yurok Reservation; (7) $6,000,000 for the development and construction of a residential care, drug and alcohol rehabilitation, Weitchpec; (8) $7,000,000 for the construction of a cultural center for the Yurok Tribe; (9) $4,000,000 for the construction of a tribal court, law enforcement, and detention facility in Klamath; and recreational complex near

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12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (10) $10,000,000 for the acquisition or construction of at least 50 homes for Yurok Tribe elders; (11) $3,200,000 for the development and initial startup cost for a Yurok School District; and (12) $800,000 to supplement Yurok Tribe higher education need. (b) PRIORITY.--Congress-- (1) recognizes the unsafe and inadequate condition of roads and major transportation routes on and to the Yurok Reservation; and (2) identifies as a priority that those roads and major transportation routes be upgraded and brought up to the same standards as transportation systems throughout the State of California.
SEC. 6. YUROK ECONOMIC DEVELOPMENT.

There are authorized to be appropriated-- (1) $20,000,000 for the construction of an ecolodge and associated costs; (2) $1,500,000 for the purchase of equipment to establish a gravel operation; and (3) $6,000,000 for the purchase and improvement of recreational and fishing resorts on the Yurok Reservation.

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13 1 2
SEC. 7. BLM LAND.

(a) CONVEYANCE

TO THE

YUROK TRIBE.--The fol-

3 lowing parcels of Bureau of Land Management land with4 in the aboriginal territory of the Yurok Tribe are conveyed 5 in trust status to the Yurok Tribe: 6 7 8 9 10 11 12 13 14 (1) T. 9N., R. 4E, HUM, sec. 1. (2) T. 9N., R. 4E, sec. 7. (3) T. 9N., R. 4E., sec. 8, lot 3. (4) T. 9N., R. 4E., sec. 9, lots 19 and 20. (5) T. 9N., R. 4E., sec. 17, lots 3 through 6. (6) T. 9N., R. 4E., sec. 18, lots 7 and 10. (7) T. 9N., R. 3E., sec. 13, lots 8 and 12. (8) T. 9N., R. 3E, sec. 14, lot 6. (b) CONVEYANCE
TO THE

HOOPA VALLEY TRIBE.--

15 The following parcels of Bureau of Land Management 16 land along the western boundaries of the Hoopa Valley 17 Reservation are conveyed in trust status to the Hoopa Val18 ley Tribe: 19 20 21 22 23 24 (1) T. 9N, R. 3E., sec. 23, lots 7 and 8. (2) T. 9N., R. 3E., sec. 26, lots 1 through 3. (3) T. 7N., R. 3E., sec. 7, lots 1 and 6. (4) T. 7N., R. 3E., sec. 1.
SEC. 8. REPEAL OF OBSOLETE PROVISIONS.

Section 2(c)(4) of the Hoopa-Yurok Settlement Act

25 (25 U.S.C. 1300i­1(c)(4)) is amended by striking ``The-- 26 '' and all that follows through ``shall not be'' and inserting
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14 1 ``The apportionment of funds to the Yurok Tribe under 2 sections 4 and 7 shall not be''. 3 4
SEC. 9. VOTING MEMBER.

Section 3(c) of the Klamath River Basin Fisheries

5 Restoration Act (16 U.S.C. 460ss­2(c)) is amended-- 6 7 8 9 10 11 12 13 14 15 (1) by redesignating paragraphs (4) and (5) as paragraphs (5) and (6); and (2) by striking paragraph (3) and inserting the following: ``(3) A representative of the Yurok Tribe who shall be appointed by the Yurok Tribal Council. ``(4) A representative of the Department of the Interior who shall be appointed by the Secretary.''.
SEC. 10. ECONOMIC SELF-SUFFICIENCY.

Section 10 of the Hoopa-Yurok Settlement Act (25

16 U.S.C. 1300i­9) is amended by striking subsection (a) and 17 inserting the following: 18 19 20 21 22 23 24 ``(a) PLAN FOR ECONOMIC SELF-SUFFICIENCY.-- ``(1) NEGOTIATIONS.--Not later than 30 days after the date of enactment of the Hoopa-Yurok Settlement Amendment Act of 2004, the Secretary shall enter into negotiations with the Yurok Tribe to establish a plan for the economic self-sufficiency of the Yurok Tribe, which shall be completed not later than

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15 1 2 3 4 5 6 7 8 9 10 18 months after the date of enactment of the Hoopa-Yurok Settlement Amendment Act of 2004. ``(2) SUBMISSION
TO CONGRESS.--On

the ap-

proval of the plan by the Yurok Tribe, the Secretary shall submit the plan to Congress. ``(3) AUTHORIZATION
OF APPROPRIATIONS.--

There is authorized to be appropriated $3,000,000 to establish the Yurok Tribe Self-Sufficiency Plan.''.
SEC. 11. EFFECT OF ACT.

Nothing in this Act or any amendment made by this

11 Act limits the existing rights of the Hoopa Valley Tribe 12 or the Yurok Tribe Tribe.

Æ

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UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET, SUITE 300 ARLINGTON, VA 22203

HOOPA VALLEY TRIBE, Appellant, v. ROSS SWIMMER, SPECIAL TRUSTEE FOR AMERICAN INDIANS, DEPARTMENT OF INTERIOR, Appellee.

) ) ) ) ) ) ) ) ) ) ) ) ) )

Docket No. IBIA 07-90-A PETITION FOR RECONSIDERATION

April 17, 2007

1.

Introduction

On March 27, 2007, the Board of Indian Appeals ("Board") docketed and dismissed the Hoopa Valley Tribe's Notice of Appeal and Statement of Reasons which the Board received the previous day. Pursuant to 43 C.F.R. § 4.315, the Hoopa Valley Tribe ("Tribe") respectfully petitions for reconsideration of the Board's decision, which is reported at 44 IBIA 210, and requests that the Board stay the effectiveness of the Special Trustee's decision subject to this appeal until the Board rules on the instant Petition. As explained below, reconsideration should be granted and jurisdiction found to hear this appeal for the following reasons: (1) the Board has jurisdiction because this is a "dispute" within the meaning of 25 C.F.R. pt. 1200 and the related provisions in 25 C.F.R. pt. 115, subpart G; and (2) review by the Board, before the release of tribal trust funds in violation of federal law, is in the interests of justice because it might prevent substantial money damages liability for the United States for breach of trust. In addition, the Board may hear this appeal pursuant to Hoopa Valley Tribe's Petition For Reconsideration - 1

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43 C.F.R. § 4.318, which allows the Board to broadly exercise the inherent authority of the Secretary of the Interior "to correct a manifest injustice or error where appropriate."1 Manifest injustice results from the Special Trustee's unlawful action and the subsequent denial of jurisdiction to hear this appeal, which could be referred by the Secretary, before tribal trust funds are released in contravention of the Trust Reform Act and the Hoopa Yurok Settlement Act. 2. Standard of Review

43 C.F.R. § 4.315 empowers the Board to reconsider its decisions in extraordinary circumstances upon receipt of a petition containing "a detailed statement of the reasons why reconsideration should be granted." The Board has prudently exercised this authority and should do so in this instance. E.g., McKenzie v. Senior Awarding Official, 39 IBIA 242 (2004); Dragswolf, 31 IBIA 228 (1997). The Board's very prompt ruling on this large and complex appeal overlooked facts concerning the unique and limited authority of the Special Trustee in this instance and evidence that jurisdiction exists under, at least, 25 C.F.R. pt. 1200 and the related provisions in 25 C.F.R. pt. 115, subpart G. 2 A manifest injustice will be done, and substantial

"Manifest injustice" or "manifest error" arise when the injustice or the error is obvious. Estates of Walter George and Minnie Racehorse George Snipe, 9 IBIA 20, 22-23 (1981); cf. Estate of Glenn Begay, 16 IBIA 115, 118 (1988) (the Board has authority "in extraordinary cases" to correct manifest error); Chitina Traditional Village Council v. Juneau Area Director, Bureau of Indian Affairs, 31 IBIA 100 (1997) (using authority in 25 C.F. R. § 4.318 to "modify the Judge's procedural disposition" of the case because Judge erroneously relied on a prior Board decision). The Board believes that Mr. Swimmer's decisions "were made pursuant to the Department's administration of the Settlement Act." 44 IBIA at 212. This, however, is the ultimate issue on the merits: whether the Settlement Act authorizes the decisions by Mr. Swimmer. The Tribe believes the Settlement Act does not authorize Mr. Swimmer's decisions. However, this issue on the merits has no bearing on whether the Board may exercise jurisdiction over this appeal of Mr. Swimmer's egregious and very political decision that attempts to shrewdly deprive the Tribe of any forum for a remedy at law preventing distribution of the settlement funds. Griffith v. Acting Portland Area Dir., Bureau of Indian Affairs, 19 IBIA 14, 18 (1990) (Board serves to provide independent, objective administrative review of decisions of Hoopa Valley Tribe's Petition For Reconsideration - 2
2

1

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liability for the United States will arise, if the Board declines to exercise its jurisdiction here to prevent the unlawful distribution of tribal trust monies in violation of federal law. 3. Actions Governed by the Reform Act Are Within the Board's Jurisdiction.

Upon a thorough examination of the exhibits in support of the Tribe's notice of appeal, together with the three additional exhibits provided herewith, 3 the Board should conclude that it has jurisdiction because this is a "dispute" within the meaning of 25 C.F.R. pt. 1200 and the related provisions in 25 C.F.R. pt. 115, subpart G. As explained below, the only lawful way the Special Trustee could have acted here is under the Reform Act, which makes his actions subject to review by the Board. No Secretarial Order or special delegation of authority to the Special Trustee applies here. Secretarial Order No. 3259, Amendment No. 2 (Mar. 31, 2006) temporarily redelegated all functions of the Assistant Secretary-Indian Affairs to the Associate Deputy Secretary during the time that the Assistant Secretary-Indian Affairs position remained vacant. The Special Trustee's first decision, dated March 1, 2006, occurred just before Mr. Carl Artman was confirmed as Assistant Secretary-Indian Affairs on March 5, 2007. The second decision, dated March 21, 2006, came after the Assistant Secretary position was filled. Because the Special Trustee did not purport to be exercising either the authority of the Associate Deputy Secretary or the authority of

BIA officials and to prevent the politicization of those decisions). The Board's reference to the ultimate question on the merits is circular and cannot be used as grounds to deny jurisdiction. The Tribe is aware that the Board ordinarily declines to consider arguments or evidence presented for the first time in a petition for reconsideration. Yeahquo v. Southern Plains Regional Dir., 36 IBIA 59 (2001). However, the new evidence could not have been presented at the time the notice of appeal was filed and was not relevant until the Board's decision. This is particularly true concerning Exhibit HVT-17 which was dated March 21, 2007 and received by the Tribe on March 30, 2007, after the notice of appeal was filed. This newly available evidence, which could not have been presented earlier, should be considered by the Board upon reconsideration. Hoopa Valley Tribe's Petition For Reconsideration - 3
3

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the Assistant Secretary-Indian Affairs, any power the Special Trustee had must find its source in the Reform Act and the regulations implementing it. 4 The Board notes that 25 C.F.R. pt. 1200 provides it with jurisdiction "over the denial of a tribe's request under Section 202 of the . . . Reform Act." 44 IBIA 211. Those regulations are the only legal basis for the Special Trustee's involvement in this matter. It therefore follows that the Board has jurisdiction here. This appeal involves a disagreement over distribution of tribal trust funds which the Board has jurisdiction over to assure statutory compliance. 25 C.F.R. § 115.806; 25 C.F.R. pt. 1200. The Trust Reform Act of 1994 has four parts. Subchapter I recognizes the United States' trust responsibility and the duty to account for balances of Indian trust funds. Subchapter II authorizes withdrawals from trust funds programs. Subchapter III creates the position of Special Trustee for American Indians. Subchapter IV authorizes appropriations. The Special Trustee is a creation of Subchapter III of the Reform Act which has as its purposes: more effective management of and accountability for the Secretary's trust responsibilities to tribes, the goal of reforming and carrying out in a unified manner the trust responsibilities, and overseeing certain reform efforts. See 25 U.S.C. § 4041-43. The Reform Act was adopted six years after the Hoopa-Yurok Settlement Act became law. Consequently, the Settlement Act makes no reference to the Reform Act and it gives no special authority to the Office of Special Trustee which was created after Congress passed the Settlement Act. This does not mean, however, that the Reform Act does not apply.

The Comptroller General of the United States in Opinion B-290233, issued October 22, 2002, 2002 U.S. Comp. Gen. LEXIS 265, concluded that the Department of the Interior Associate Deputy Secretary was an "employee" rather than an "officer" either principal or inferior of the Department, and thus was not subject to the Appointment Clause's PAS or statutory delegation procedures. Accordingly, it is unclear that the Associate Deputy Secretary could ever have exercised the Secretary's authority under the Hoopa-Yurok Settlement Act here. Hoopa Valley Tribe's Petition For Reconsideration - 4

4

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As a creature of the Reform Act, the authority and responsibilities of the Special Trustee are defined effective April 21, 2003, by Pt. 109, Chapter 11 of the Departmental Manual. "The Special Trustee exercises Secretarial direction and supervision, pursuant to the 1994 Reform Act, over of the Office of Special Trustee for American Indians." Id. § 11.3 (emphasis added). The regulations adopted under the Trust Reform Act delineate that authority. The final rule adopting 25 C.F.R. Pt. 1200 notes that "the Act, for the first time, permits American Indian tribes to take tribal funds out of trust status with the Department of the Interior." 61 Fed. Reg. 67931. The situation is analogous to Estate of Madeline Bone Wells, 15 IBIA 165 (1987). In Wells, the Agency Superintendent proposed to disperse funds from an IIM account for funeral expenses. However, after responsibility for Indian probate shifted to the Office of Hearings and Appeals, the IIM regulations were not updated. The Board held that the Superintendent's authority had been superseded by the new authority vested in administrative law judges by the Departmental Manual and regulations. Similarly, here the Reform Act governs any action by the Special Trustee to allow withdrawal from old trust funds such as those contained in the Hoopa-Yurok Settlement Fund. Unlike the Secretary himself, or certain other Departmental officials, the Special Trustee only has authority to release Indian trust funds pursuant to Section 202 of the Reform Act and the related regulations. 5 The Hoopa-Yurok Settlement Act reserved to Congress the authority to further distribute resources such as this. 25 U.S.C. § 1300i-11(c). The Reform Act had not yet become law in 1988, but it clearly now does apply to the Special Trustee. The fact that the
5

This limited authority is underscored by the provisions of 25 C.F.R. pt. 115 which govern trust funds for tribes and individual Indians. See 66 Fed. Reg. 7094 (Jan. 22, 2001). 25 C.F.R. § 115.806 provides for BIA review of requests for distribution to assure statutory compliance. Section 115.815 governs requests for access to tribal trust funds and points to the provisions of 25 C.F.R. pt. 1200. Hoopa Valley Tribe's Petition For Reconsideration - 5

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Special Trustee's letters make no reference to the procedures required by the Reform Act adds nothing to his authority or his ability to act outside the Reform Act. It is a glaring omission by the Special Trustee that does not provide grounds to deny jurisdiction over this appeal. 6 Plainly, the Special Trustee plans to withdraw from trust status and distribute to the Yurok Tribe the balance of the Hoopa-Yurok Settlement Fund on April 20, 2007. This is a clear example of a withdrawal of funds within the meaning of 25 C.F.R. § 1200.11 and it approves the Yurok Tribe's application for that withdrawal as provided in its waiver. Plainly, there is a "disagreement" concerning the lawfulness of the Special Trustee's action and "any disagreements over application approvals are subject to the criteria and procedures in § 1200.21 of the regulation." 61 Fed. Reg. 67,932 (Dec. 26, 1996) (emphasis added). 7 Because 25 C.F.R. § 1200.21 expressly authorizes appeal under 43 C.F.R. pt. 4, the Board has jurisdiction here. Because the Special Trustee's decision concerns trust funds held for tribes and individual Indians, and allows withdrawal of such funds and distributions to a tribe, it must conform to the requirements of the Reform Act. If this act walks like a duck, and quacks like a duck, it should be treated as a duck.

The Board's statement that because the Special Trustee's decision "do not purport to be taken pursuant to 25 C.F.R Part 1200," jurisdiction to hear the appeal cannot vest, can lead to absurd results. 44 IBIA at 212. Taken to its logical conclusion, Department officials might simply fail to cite controlling authority for their action to avoid the Board's jurisdiction. Certainly, this cannot be a result that the Board desires. The Board makes too much of the "Hoopa Tribe's assertion that in this appeal it does not seek a share of the remainder of the Settlement Fund." 44 IBIA 212. This is because the equal division plan for the funds proposed by the Hoopa Valley Tribe requires new congressional authority. The Board cannot allocate the fund. Indeed, any change in the status of the funds requires congressional direction. See Hearing before the Committee of Indian Affairs United States Senate, S. Hrg. 107-648 at 88 (Aug. 1, 2002) (Testimony of Assistant Secretary--Indian Affairs Neal A. McCaleb). Hoopa Valley Tribe's Petition For Reconsideration - 6
7

6

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The Special Trustee's limited authority here is also illustrated by Mr. Swimmer's minimal involvement in the matter prior to March 1, 2007. Attached as Exhibits HVT-15 and HVT-16 are the Hoopa Valley Tribe's March 22, 2006 letter to the Special Trustee (requesting a report on the Settlement Fund balance and investment information pursuant to the Reform Act) and the June 13, 2006 reply of the Deputy Special Trustee-Field Operation stating the balance of the Fund as of June 12, 2006. The Special Trustee's duties regarding these funds are no different than those for other Indian trust funds. Neither Congress nor the Secretary of the Interior has bestowed upon the Special Trustee a wide-ranging power to dispose of Indian trust funds. The Special Trustee is bound by the regulations and these create jurisdiction in the Board in the event of exactly these types of disputes over the disposition of trust funds. There is an appealable disagreement within the meaning of 25 C.F.R. § 1200.21 concerning the Special Trustee's rejection of the Hoopa Valley Tribe's proposal for the funds and his approval of the Yurok Tribe's request for 100% of the funds. 4. Reconsideration is in the Interest of Justice Because it Will Avoid a Likely Loss to the Judgment Fund. The Board should stay the effectiveness of Mr. Swimmer's decisions pending consideration of the merits and thus protect the United States from damages liability in the Court of Federal Claims for misapplication of trust funds. The trust funds at issue are subject to particular statutory and judicial constraints. To the extent that the Hoopa-Yurok Settlement Act does not authorize this expenditure, as the Tribe's Statement of Reasons shows, the standards of Short v. United and particularly Short III, 719 F.2d 1133, 1135 (Fed. Cir. 1983) and Short VI, 28 Fed. Cl. 590, 595 (1993), aff'd, 50 F.3d 994 (Fed. Cir. 1995), must be met or the United States will be liable in damages for breach of trust.

Hoopa Valley Tribe's Petition For Reconsideration - 7

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In Short VI, plaintiffs pointed to a 1991 distribution to members of the Hoopa Valley Tribe in which other Indians of the Reservation outside the Tribe did not share. The Court noted that the plain language of Section 7 of the Act, 25 U.S.C. § 1300i-6, permitted the distribution. The Court concluded that a reasonable construction of the Settlement Act is that it changed the nature of the government's discretion to make per capita distributions. Under the law of this case, it is within the Secretary of the Interior's discretion to make per capita distributions. Short IV, 12 Cl. Ct. at 44. The Secretary's discretion is constrained by statutes including 25 U.S.C. §§ 117a and 407, and by the fiduciary relationship between the Secretary and the Indians. Short III, 719 F.2d at 1135-37. The Settlement Act is simply another statute that constrains the Secretary's discretion in new ways. Short VI, 28 Fed. Cl. 590, 594-95. In other words, the Settlement Act requires that the Secretary use the Settlement Fund for the benefit of all "Indians of the Reservation," unless another provision of the Act expressly allows another use. No provision of the Settlement Act allows this use for the distribution violates the plain language of 25 U.S.C. §§ 1300i-1(c)(4); 1300i-8(d). Moreover, the Yurok Tribe is now poised to distribute the tribal trust funds held as part of the Settlement Fund to its members through a per capita payment. Exhibit HVT-17 (attached hereto). There can be no mistaking that the non sequitor request by the Yurok Chairwoman that all members "contact the Enrollment Department . . . to update their details" telegraphs a per capita distribution. Id. Such a payment of federal trust monies committed to the benefit of all "Indians of the Reservation" to only Yurok members plainly violates the fiduciary relationship. The Settlement Act did not supersede the rulings in Short v. United States. See 25 U.S.C. § 1300i-2. Those rulings require that all Indians of the Reservation, including the Hoopa Valley Tribe, be benefited by expenditures from these funds unless the Act otherwise provides. Thus, if

Hoopa Valley Tribe's Petition For Reconsideration - 8

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the Settlement Act does not authorize the distribution contemplated by the Special Trustee, and the funds are expended, the United States will be liable in the Court of Federal Claims. The interests of justice should also compel the Board to act here because judicial review by a United States District Court of the administrative decisions here will likely not reach the merits of the action because of Fed. R. Civ. P. 19. A court might find that the Yurok Tribe has a legal interest in the litigation concerning the validity of the Special Trustee's decisions. Because the Yurok Tribe has sovereign immunity and cannot be compelled to participate in the litigation, the litigation would almost be certainly dismissed under Fed. R. Civ. P. 19. See, e.g., Shermoen v. United States, 982 F.2d 1312 (9th Cir. 1992), cert. denied, 509 U.S. 903 (1993) (suit by Indians and tribe challenging implementation of Hoopa-Yurok Settlement Act dismissed because absent tribes were indispensable parties and were immune from suit). 8 Importantly, the rigid limitations of Rule 19 do not restrict the Board. E.g., Citizen Potawatomi Nation v. Dir., Office of Self-Governance, 42 IBIA 160, 171 (2006); Citizen Band Potawatomi Indian Tribe of Oklahoma v. Anadarko Area Dir., 28 IBIA 169, 181, n. 16 (1995); Indians of the Quinault Reservation v. Comm'r of Indian Affairs, 9 IBIA 63, 65 ("it is not incumbent on administrative tribunals to invoke traditional rules of joinder and of necessary or indispensable parties. Nat'l Licorice Co. v. NLRB, 309 U.S. 350 (1960)"). Thus, it appears that the Board is the only tribunal which can review the Special Trustee's decision prior to its implementation. The Board can proceed to the merits of this appeal prior to exposing the United States to damages liability. The interests of justice require that these trust funds remain in their
8

See also, e.g., Dawavendewa v. Salt River Proj., 276 F.3d 1150, 1155 (9th Cir. 2002); Clinton v. Babbitt, 180 F.3d 1081, 1088 (9th Cir. 1999); Washington v. Daley, 173 F.3d 1158, 1167 (9th Cir. 1999); Cherokee Nation of Oklahoma v. Babbitt, 944 F. Supp. 974, 979 (D.D.C. 1996), rev'd on other grounds, 117 F.3d 1489 (D.C. Cir. 1997); Pit River Home Ass'n v. U.S., 30 F. 3d 1088, 1098 (9th Cir. 1994); Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459 (9th Cir. 1994); Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765 (D.C. Cir. 1986). Hoopa Valley Tribe's Petition For Reconsideration - 9

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App. 392