Free Response to Motion - District Court of Federal Claims - federal

Case 1:08-cv-00072-TCW

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Electronically Filed September 10, 2008 IN THE UNITED STATES COURT OF FEDERAL CLAIMS HOOPA VALLEY TRIBE, on its own behalf, and in ) its capacity as parens patriae on behalf of its members; ) Elton Baldy; Oscar Billings; Benjamin Branham, Jr.; ) Lila Carpenter; William F. Carpenter, Jr.; Margaret ) Mattz Dickson; Freedom Jackson; William J. ) Jarnaghan, Sr.; Joseph LeMieux; Clifford Lyle ) Marshall; Leonard Masten, Jr.; Danielle Vigil-Masten ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) Case No. 08-72-TCW Judge Thomas C. Wheeler DECLARATION OF CLIFFORD LYLE MARSHALL IN SUPPORT OF PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

I, Clifford Lyle Marshall, depose and state as follows: 1. I am a member of the Hoopa Valley Tribe and one of the individual plaintiffs in

this proceeding. I have served as a member of the Hoopa Valley Tribal Council for many years. In addition, I have been elected the Hoopa Valley Tribe's Chairman since 2001. I have personal knowledge of the matters stated here and can testify to them. 2. Following the Senate Committee on Indian Affairs' 2002 hearing concerning the

Interior Department's report made pursuant to Section 14(c) of the Hoopa-Yurok Settlement Act, there have been many attempts to resolve distribution of the Hoopa-Yurok Settlement Fund through mediation or legislation. 3. In 2002-03, the Hoopa Valley Tribe and the Yurok Tribe participated in

mediation on matters concerning the Hoopa-Yurok Settlement Act. The Tribes reached a mediation agreement in December 2003. On September 30, 2004, S. 2878, the Hoopa-Yurok Settlement Amendment Act of 2004, was introduced by Senator Campbell to carry out the Tribes' mediation agreement. No hearings were held on the bill before the end of the 108th Congress.

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4.

In 2005, we conducted further discussions concerning introduction of a new bill

in the Congress. Our counsel met with the Yurok Tribe's new law firm, Hogan & Hartson, to develop a joint position on proposed legislative options. We also met repeatedly with representatives of the Interior Department, including Mr. James Cason, concerning options for legislation, either along the lines of S. 2878 or simpler bills which would merely create a process for division of the Hoopa-Yurok Settlement Fund remainder. However, in 2005-06, we found the Interior Department unwilling to express support for any legislative proposal. 5. In February 2006, we learned from our Congressman that the Department of the

Interior was conducting another analysis of the Hoopa-Yurok Settlement Fund issue. We confirmed this during a meeting with Associate Deputy Secretary James Cason. In July 2006, Mr. Cason sent me a letter explaining that the Department was considering whether the Interior Department has the authority to release the Fund administratively, notwithstanding that the Department told Congress Interior could not do so a mere four years earlier. 6. On January 26, 2007, Tribal Council Member Jackson and I had scheduled a

meeting with Mr. Cason. Our attorney received a call that morning from Mr. Cason's assistant stating that Mr. Cason needed to recuse himself from the Hoopa-Yurok Settlement Fund matter, but that the meeting could be held without him. At the meeting, I was told that the recusal was because the law firm personally representing Mr. Cason, Hogan & Hartson, also had an interest in the Hoopa Yurok Settlement Fund issue. The Interior Department representatives explained that Special Trustee Ross O. Swimmer was to be the point person on the Interior Department's policy decision. Mr. Swimmer was the person who, on behalf of the Interior Department, testified in opposition to the Hoopa-Yurok Settlement Act in 1988 and threatened an Administration veto of the bill.

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CERTIFICATE OF SERVICE I hereby certify that on September 10, 2008, a copy of, DECLARATION OF CLIFFORD LYLE MARSHALL IN SUPPORT OF PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT, was electronically sent via the CM/ECF system by the United States Court of Federal Claims on the following party: Devon Lehman McCune Email: [email protected] Sara E. Costello Email: [email protected]

s/ Thomas P. Schlosser____________________ Thomas P. Schlosser, Attorney of Record MORISSET, SCHLOSSER, JOZWIAK & McGAW 801 Second Avenue, Suite 1115 Seattle, WA 98104-1509 Tel: (206) 386-5200 Fax: (206) 386-7322 [email protected]
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