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

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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

SUPPLEMENTAL APPENDIX OF EXHIBITS TO HOOPA MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

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SUPPLEMENTAL CONTENTS Exhibit No. Document Description T. Schlosser Memo to Bernhardt Regarding Can the Yurok Interim Council's Failure to Satisfy 25 U.S.C. § 1300i-1(c)(4) be Cured? (Mar. 23, 2006) T. Schlosser e-mail to E. Passarelli and C. Alexander Regarding Identity of the Indians for Whom the Funds of the Hoopa-Yurok Settlement Fund were Collected (June 15, 2006) Chairman Marshall letter to Kempthorne Regarding Department's Policy Decision to Release the Hoopa-Yurok Settlement Fund and Block Hoopa Appeal (May 21, 2007) Memo of Pretrial Conference held May 17, 1974 - Short v. U.S., No. 102-63 (May 24, 1974) Hogan & Hartson, LLP Memo to Honorable Sue Ellen Wooldridge Regarding Critical Issues Facing the Yurok Tribe (Oct. 21, 2005) Iudicello letter to Chairman Marshall Regarding Cason Recusal (Apr. 3, 2007) Sacramento Area Director letter to T. Schlosser Regarding Hoopa Valley Tribal Council and Enrollment Committee Appeal Upheld (Sept. 17, 1992) Exhibits 1-40 previously filed with the Court. Exhibit No. Document Description Exhibit 1 Finale Memorandum Regarding Hoopa Valley Reservation Trust Funds (June 25, 1974) Finale letter to Chairman Masten Regarding Set Aside Trust Funds (Mar. 19, 1975) Page 1 Page

Exhibit 41

406

Exhibit 42

413

Exhibit 43

414

Exhibit 44

416

Exhibit 45

424

Exhibit 46

429

Exhibit 47

430

Exhibit 2

4

2

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Exhibit 3

Assistant Secretary-Indian Affairs Gerard Message to Hoopa and Yurok People (Nov. 20, 1978) S. 2723, 100th Cong., 2d Sess., A Bill to Partition Certain Reservation Lands between the Hoopa Valley Tribe and Yurok Indians to Clarify the use of Tribal Timber Proceeds (Aug. 10, 1988) Memorandum of Congressional Research Service to House Committee Regarding Questions Concerning Hoopa Valley Reservation Settlement as Proposed in H.R. 4469 (Sept. 13, 1988) Senate Report, S. Rep. 100-564 (Sept. 30, 1988) Public Law 100-580 (Oct. 31, 1988) Notice Regarding Hoopa Valley Tribe Claim Waiver, 53 Fed. Reg. 49361 (Dec. 7, 1988) Notice of Options for Persons on the Hoopa- Yurok Settlement Roll (Apr. 12, 1991) Notice of Settlement Option Deadline, 56 Fed. Reg. 22996 (May 17, 1991) Notice of Statute of Limitation for Certain Claims, 56 Fed. Reg. 22998 (May 17, 1991) Notice to Convene General Council Meeting of the Yurok Tribe to Nominate the Yurok Interim Tribal Council (Aug. 14, 1991) Memorandum to Area Director Regarding Distribution of Funds (Aug. 22, 1991)

6

Exhibit 4

9

Exhibit 5

35

Exhibit 6 Exhibit 7

78 119

Exhibit 8

133

Exhibit 9

135

Exhibit 10 Exhibit 11 Exhibit 12

148 149 150

Exhibit 13

152

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Exhibit 14

Memorandum to Superintendent Regarding Issuance of Per Capita Checks (Oct. 24, 1991) Memorandum of Assistant Solicitor-- to Area Director Regarding Issues Raised at Organizational Meeting of the Yurok Interim Council (Feb. 3, 1992) Testimony of Richard Haberman, Chairman Interim Council of the Yurok Tribe (Mar. 5, 1992) Yurok Indian Tribe v. United States of America Complaint, No. 92-173 L (Mar. 10, 1992) Letter of Assistant Secretary - Indian Affairs to Honorable Dale Risling, Sr. (Apr. 13, 1992) Letter of Assistant Secretary - Indian Affairs to Honorable Richard Haberman (Apr. 15, 1992) Letter of Susie L. Long, Vice-Chair, Yurok Interim Tribal Council to Honorable Ada Deer (Aug. 20, 1992) Letter of Assistant Secretary - Indian Affairs to Susie L. Long (Nov. 23, 1993) Letter of Assistant Secretary - Indian Affairs to Susie L. Long (Apr. 4, 1994) Letter of Assistant Secretary - Indian Affairs to Susie L. Long (Mar. 14, 1995) Letter of Assistant Secretary - Indian Affairs to Hon. 1. Dennis Hastert Regarding Department's Section 14(c) Report (Mar. 15, 2002) Committee on Indian Affairs, United States Senate, Oversight Hearing on Hoopa-Yurok Settlement Act, S. Hrg. 107-648 (Aug. 1, 2002)

156

Exhibit 15

159

Exhibit 16

166

Exhibit 17

170

Exhibit 18

176

Exhibit 19

178

Exhibit 20

180

Exhibit 21

182

Exhibit 22

183

Exhibit 23

187

Exhibit 24

189

Exhibit 25

241

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Exhibit 26

Proposed Amendments to the Hoopa Yurok Settlement Act Developed in Formal Mediation (Dec. 3, 2003) S. 2878, 108th Cong., 2d Sess., A Bill to Amend the Hoopa-Yurok Settlement Act (Sept. 30, 2004) Letter of Feinstein, Boxer and Thompson to Hon. David L. Bernhardt, Acting Solicitor (Mar. 21, 2006) Letter of Associate Deputy Secretary of Interior to Clifford Lyle Marshall (July 19, 2006) Letter of Special Trustee for American Indians to Clifford Lyle Marshall (Mar. 1, 2007) Letter of Special Trustee for American Indians to Clifford Lyle Marshall (Mar. 21, 2007) Yurok Tribal Council Resolution 07-037 (Mar. 21, 2007) Hoopa Petition for Reconsideration, IBIA No. 07-90-A (Apr. 17,2007) Resolution of Yurok Tribal Council No. 07-41 Regarding Distribution of Assets Held in Trust (Apr. 19, 2007) Letter of Deputy Solicitor to Clifford Lyle Marshall (Apr. 20, 2007) Fax of Cindee McKernan to Donna Erwin Regarding Acceptability of Draft Resolution (Apr. 20, 2007) Letter of Special Trustee for American Indians to Clifford Lyle Marshall (Apr. 30, 2007) Letter of Deputy Special Trustee - Trust Services to SEI Private Trust Company Regarding Free-Delivery of Hoopa-Yurok Settlement Account (Apr. 20, 2007) Letter from Assistant Secretary - Indian Affairs to Clifford Lyle Marshall (June 29, 2007)

348

Exhibit 27

353

Exhibit 28

368

Exhibit 29

370

Exhibit 30

372

Exhibit 31

375

Exhibit 32 Exhibit 33

376 378

Exhibit 34

393

Exhibit 35

395

Exhibit 36

396

Exhibit 37

399

Exhibit 38

400

Exhibit 39

403

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Exhibit 40

Check from Morgan Stanley to Yurok tribal member (Jan. 15, 2008)

405

6

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CERTIFICATE OF SERVICE I hereby certify that on September 10, 2008, a copy of, SUPPLEMENTAL APPENDIX OF EXHIBITS TO HOOPA MOTION AND MEMORANDUM 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 parties: 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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MORIS

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LAW OFFICES

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SET, SCHLOSSER, JOZWIAK & MeGA W
A PROFESSIONAL SERVICE CORPORATION

SHARON i. HAENSL Y (W A) FRANK R. JOZWIAK (WA) KYME A.M. McGAW (WA, OK) MASON D. MORIS SET (WA) THOMAS P SCHLOSSER (WA) ROB ROY SMITH (W A, OR, ID) THANE D SOMERVILLE (W A)
COMPTROLLER

1115 NORTON BUILDING
801 SECOND AVENUE

SEATTLE, WA 98104-1509

TELEPHONE (206) 386-5200 FACSIMILE (206) 386-7322
WWW.MSAJCOM

M. ANN BERNHEISEL

MEMORANDUM
TO:
David Bernhardt, Solicitor

FROM:
DATE:

Thomas P. Schlosser
March 23,2006

RE:

Can the Yurok Interim Council's Failure to Satisfy 25 U.S.C.
§ 1300i-1(c)(4) be Cured?

This memorandum examines whether the Yurok Tribe or its current governing
body can now satisfy the requirements of section 2( c)( 4) of the Hoopa- Yurok Settlement
Act by curing the failure of the Interim Council of the Yurok Tribe to adopt a resolution "waiving any claims such tribe may have against the United States arising out of the provisions of this Act." Briefly, the answer is "no."

Interim Council of

This memorandum reviews the Act, Interior Department rulings concerning the the Yurok Tribe, the litigation initiated by the Interim Council and

pursued by the Yurok Tribe's governing body, and the effect ofresjudzcata and the

concept of bar.
1.

The Hoopa-Yurok Settlement Act Waiver Requirement
The Hoopa-Yurok Settlement Act, Pub. L. 100-580, codifed as amended at 25

U.S.C. § 1300-i et seq., offered monetary awards in exchange for claim waivers by

individuals qualified for a Settlement Roll, the Hoopa Valley Tribe, and the Interim Council of the Yurok Tribe. The tribal claim waiver provisions appear in sections 2 and 9 of the Act. The waiver provisions arose from concerns by the United States Department of Justice that a taking of property protected by the Fifth Amendment could Rodney R. Parker, for the be found by a court reviewing the Act. The statement of Justice Department, expressed the understanding that waiver language in the Senate bill as introduced already evidenced tribal consent but he requested "a provision requiring express tribal consent (which) could provide a clearer acknowledgment by the tribal government that no taking has occurred." S. Rep. 100-564 at 40 (1988). Accordingly,

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the final version of

2(c)(4) and 9(d)(2) of transfers of

the bill expanded the claim waiver requirements of sections 2(a), the Act. The Senate Report explains that the authority for certain funds and lands:

the Yurok Tribe adopts a resolution waiving any claims it might have against the United States under this Act and granting consent as provided in section 9( d)(2). Section 9 of the bill provides for an Interim Council to be elected by the General Council of the tribe.
(S)hall not be effective unless the Interim Council of

S. Rep. 100-564 at 18 (1988).

2.

Application of the Waiver Requirement

On December 7, 1988, the Interior Department published a notice that the Hoopa Valley Tribe had adopted a valid resolution which met the requirements of section 2(a)(2)(A) of the Act. 53 Fed. Reg. 49361. i Pursuant to the Act, a roll of eligible Indians was prepared and approximately 3,000 persons selected the option of membership in the Yurok Tribe. Pursuant to section 6(c)(4), persons electing Yurok membership waived their individual claims and also granted to members of the Interim Council a proxy directing them to approve a proposed resolution waiving any claim the Yurok Tribe may have against the United States arising out of the Act and granting necessary tribal
consent. Under section 9( c), the Secretary of the Interior prepared a voter list for adults

who elected the Yurok tribal membership option, convened a General Council meeting of
the eligible voters, and conducted an election of a five-member Interim CounciL.

On November 19, 1991, Acting Associate Solicitor, Division ofIndian Affairs, Scott Keep wrote to congressional aide Jason Conger concerning individuals who accepted the payments authorized to be made under section 6(c) of the Act ($5,000 or the Act to accept the $7,500 each). He held they were "legally bound by the terms of privileges and limitations associated with Yurok tribal membership," although certain amounts had been withheld from the payments for attorney fees.
The BIA Sacramento Area Director requested an opinion on several issues that arose at the organizational meeting of the Interim Council held on November 25-26, 1991. Duard R. Barnes, Assistant Solicitor, Branch of General Indian Legal Activities, responded with a thorough opinion on February 3, 1992, which concluded:
(1 )

the Yurok Tribe automatically dissolved two years after November 25, 1991;
The Interim Council of

1 The approved resolution noted that "the waiver required by the Act does not prevent the

Hoopa Valley Tribe "from enforcing rights or obligations created by this Act," S. Rep. 100-564 at 17." Id.

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(2)

The Settlement Act permits three separate Interim Council resolutions, if necessary, to address claim waiver, contribution of escrow monies, and recei pt of grants and contracts;
Refusal to pass resolution waiving claims against the United States and/or
fiing a claim would prevent the Yurok Tribe from receiving the

(3)

apportionment of funds, the land transfers, and the land acquisition authorities provided by various sections of the Settlement Act, but would not preclude the Yurok Tribe from organizing a tribal government;
On March 11, 1992, the Yurok Interim Council fied Yurok Indzan Trzbe v. Unzted States, No. 92-CV-173 (Fed. Cl.). The complaint asserted "claims for just compensation under the Fifth Amendment to the Constitution of the United States for the taking of compensable property and property rights of the Yurok Tribe by the United States under the Hoopa-Yurok Settlement Act of 1988." Id., ii 1.

13, 1992, Assistant Secretary-Indian Affairs Eddie F. Brown wrote to the Hoopa Valley Tribe indicating that the Yurok Interim Council's decision to fie the claims in Yurok Trzbe v. Unzted States "means that the same consequences follow as if it fails to enact a resolution waiving claims against the United States." Mr. Brown deferred responding to the Hoopa Valley Tribe's request for access to the funds remaining in the Hoopa- Yurok Settlement Fund as a result of the fiing of
On April the Chairman of

Yurok Trzbe v. Unzted States.

On November 23, 1993, Assistant Secretary-Indian Affairs Ada E. Deer wrote to the Yurok Interim Council expressing willingness to accept the decision of the Yurok Tribe to organize outside the authority offered by the Settlement Act. Ms. Deer cautioned that the Yurok Interim Council would, on November 25, 1992, lose the legal powers vested in it by the Settlement Act. She said, "the authority vested in the Interim Council by section 2(c)(4) of the Act to waive claims against the United States will expire on November 25, 1993." Ms. Deer pointed out that "(a)ny subsequent waiver of claims by the Tribe will be legally insuffcient.,,2
the Vice-Chairman of

Chair of

On April 4, 1994, Assistant Secretary-Indian Affairs Ada E. Deer wrote to the the Interim Tribal Council of the Yurok Tribe determining that Resolution

No. 93-61, approved November 24, 1993, did not meet the requirements of

the Act. She

stated:

It is quite clear that Resolution No. 93-61 specifically preserves, rather than waives, the Yurok tribe's taking claim against the United States. Indeed, the Yurok Tribe has fied a claim in the
2 The Yurok Tribe could have challenged the Assistant Secretary's determination that any

waiver after November 25, 1993, would be legally insufficient, but failed to do. The claim is now limitations. barred by the applicable six-year statute of

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Federal Claims asserting that the Hoopa-Yurok Settlement Act effected a taking under the Fifth Amendment of the United States Constitution.
US. Court of

Id. at 3. The Assistant Secretary reaffrmed the February 3, 1992 Solicitor's Opinion

conclusion that fiing suit in the Claims Court would produce the same results as would the Interim Council's failure to enact a resolution waiving claims under the Act.3
On March 14, 1995, Assistant Secretary-Indian Affairs Ada E. Deer wrote the the Yurok Tribal Council rejecting the Tribal Council's request for
her decision of April

Chairperson of

reconsideration of

4, 1994. Ms. Deer explained that the legislative

history of the Act indicates that potential taking claims against the United States were precisely the type of claims Congress was most concerned about, which explained why waiver of such claims were essential elements to triggering key provisions of the Act.
She stated:

In our opinion, the Tribe's decision to prosecute its claim in this litigation is inconsistent with the waiver of claims required under the Act. Were there to be a settlement of the lawsuit, it would have to be accomplished before the case has proceeded to a determination on the merits. This is necessary to both save time, energy and money on costly legal proceedings and because a settlement will not be possible if the court has ruled on any portion of the merits.
Ms. Deer urged the Yurok Tribe to seek a stay of proceedings in Yurok Trzbe v. Unzted

States in order to conduct a referendum and undertake settlement negotiations. The Yurok Tribe made no such motion nor did it conduct a referendum.
After another year, on May 17, 1996, the parties to Yurok Trzbe v. Unzted States (which had been consolidated with other claims under the heading of Karuk Trzbe of Californza, et ai. v. Unzted States, et ai., No. 90-CV-3993), fied a joint motion to postpone oral argument on cross-motions for summary judgment on the merits. The court granted that motion, and related motions, delaying oral argument on the motions for summary judgment until January 29, 1998. Subsequently, on August 6, 1998, the court denied plaintiffs' motions for summary judgment and granted the cross-motions for summary judgment of the United States and the Hoopa Valley Tribe, and directed the clerk to dismiss the complaints. See Karuk Trzbe ofCalifornza v. Unzted States, 41 Fed. Cl. 468 (1998), aff'd, 209 F.3d 1366 (Fed. Cir. 2000), cert. denzed, 532 US. 941 (2001).

During the period 1995-2001, the Yurok Tribe and the United States engaged in settlement negotiations concerning its claims. Indeed, the March 14, 1995 letter of Assistant Secretary-Indian Affairs Ada E. Deer, states a settlement position advanced by
3 The 1994 decision of the Assistant Secretary also could have been challenged, but was
not, and that claim is barred by the statute of

limitations.

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the United States, which was that the Yurok Tribal Council could cure the deficiencies in Resolution No. 93-61 of the Interim Council, even at that late date, if a settlement was accomplished before a final determination on the merits. The Hoopa Valley Tribe made
similar proposals and urged the settlement of the case. Defendants were concerned that

unless the Act's benefits could be made available there would be little incentive for the Yurok Tribe to settle. Defendants explored every option to bring the matter to a close. However, no settlement offer was accepted and the litigation was concluded on the merits
by the US. Supreme Court's Order of

March 26,2001. Defendants' proposals, including

the suggestion in the Assistant Secretary's March 14, 1995 letter, cannot change the requirements of the Act. Also, conduct or statements of this kind that were made in settlement negotiations during this period have no evidentiary value. See Fed. R. Evid.
408.
3.

Res Judicata and the Concept of Bar

The takings claim that was to be waived by the Yurok Interim Council under the HYSA was instead litigated and lost by the Tribe. As explained below, the takings claim has been extinguished by the previous litigation and judgment on the merits in favor of
the United States. As a matter of law, the Tribe no longer has a takings claim to waive.

Under the doctrine of claim preclusion, a party that litigates a claim to final judgment is forever barred from subsequent litigation of that same claim. W Radzo
Servs. Co. v. Gllckman, 123 F .3d 1189, 1192 (9th Cir. 1997) (stating "(r )es judicata, also

known as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action"); Cromwell v. County of Sac., 94 US. 351, 352 (1876) (holding "(T)he judgment, if rendered upon the merits, constitutes an absolute bar to the subsequent action. It is finality as to the claim or demand in controversy. . ."); see also 18 Moore's Federal Practice (3d. ed), § 131.01 (2005) (stating "(I)f the plaintiff loses the litigation, the resultant judgment acts as a bar to any further actions by the plaintiff on the same claim, with limited exceptions") (emphasis in original). The doctrine of claim preclusion is applicable whenever there is "(1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties." See Gllckman, 123 F.3d at 1192. When claim preclusion applies, as it does here, a party's claim is extinguished upon final judgment. Hornback v. Unzted States, 405 F.3d 999, 1001 (Fed. Cir. 2005). Thus, a purported waiver of a claim that has been
extinguished by a prior final judgment is void ab znztzo.

Claim preclusion, and the concept of "bar" prevents a party who loses in litigation from bringing a subsequent action based on the same transaction or series of transactions by simply asserting additional facts or proceeding under a different legal theory. Skzlsky
v. Lucky Stores, Inc., 893 F.2d 1088, 1095 (9th Cir. 1990) (stating that claim preclusion
precludes relitigation of all grounds supporting recovery regardless of

whether they were

asserted or determined in the prior proceeding); Kasper Wzre Works, Inc. v. Leco Eng'g

& Mach., Inc., 575 F.2d 530, 535 (5th Cir. 1978) (concluding that when defendant obtains favorable judgment, it acts as a "bar" to subsequent litigation on same claim by

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plaintiff); Restatement 2d of Judgments §§ 19, 24 (1982). A valid judgment, even if

erroneous, that is final and rendered on the merits can form the basis for claim preclusion. FederatedDep't Stores, Inc. v. Moztze, 452 US. 394, 398 (1981). The judgment "puts an end to the cause of action, which cannot again be brought into litigation between the
parties upon any ground whatever. . ." Comm'r v. Sunnen, 333 US. 591, 597 (1948).
4.

Claim Preclusion Extinguishes the Claim

The doctrine of claim preclusion not only prohibits subsequent litigation of claims, but it wholly exttn;zuzshes the claim and any rights that a plaintiff has in the claim
after final judgment is rendered. Hornback, 405 F.3d at 1001 (Fed. Cir. 2005) (holding

the plaintiff. . . with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose); Gonzales v. Hernandez, 175 F.3d 1202, 1205 (10th Cir. 1999) (stating that a final judgment extinguishes plaintiffs claims); Kotsopoulos v. Asturza Shzppzng Co., s.A., 467 F.2d 91,95 (2d. Cir. 1972) (stating "once a claim is reduced to judgment, the original claim is extinguished and merged into the judgment"); see also Restatement 2d of
that claim preclusion "extinguishes all rights of

Judgments § 24(1) (1982) ("When a valid and final judgment rendered in an action

extinguishes the plaintiffs claim pursuant to the rules of (res judicata), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of
which the action arose"). Thus, once a plaintiff litigates a claim to final judgment on the

merits, as the Yurok Tribe did in litigation, the plaintiff no longer possesses a legal claim - - the plaintiffs claim is extinguished by the prior judgment.
The United States Supreme Court has emphasized that the doctrine of claim preclusion is more than a matter of procedure, it ensures that "rights once established by the final judgment of a court of competent jurisdiction shall be recognized by those who are bound in it in every way." Hart Steel Co. v. RaIlroad Supply Co., 244 US. 294, 299 (1917). Extinguishing claims via the claim preclusion doctrine provides finality and a conclusive end to litigation, promotes judicial economy, and fosters reliance on court
judgments. 18 Moore's Federal Practice (3d ed.), § 131. 12 (2005).

Applying these well-established principles here, it is plain that the Yurok Tribe's the Act has been adjudicated in a final decision on the merits, is extinguished, and thus can no longer be "waived." Karuk, et ai., 209 F.3d at 1366. The Tribe's Complaint against the United States, fied in March 1992, states that "plaintiff, a federally recognized Indian Tribe, asserts claims for just compensation under the Fifth Amendment to the Constitution of the United States for the taking of compensable property and property rights of the Yurok Tribe by the United States under the (HYSA of 1988)." The Tribe's Complaint requested the Court to enter "judgment awarding the Yurok Tribe just compensation for the taking of its compensable property rights. . . ." This takings claim was the claim that was to be waived by the
takings claim against the United States arising out of

Interim Council prior to November 25, 1993. 25 US.C. §§ 1300i-1(c)(4) and

1300i-11(a). Congress chose the term "claim," which has a well-recognized legal

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meaning. The use of the term must be given its purposeful effect. Russello v. Unzted

States, 464 US. 16,23 (1983).
waiving its takings claims against the United States in accordance with the Act, the Yurok Tribe opted to litigate. Having been determined with finality on the merits against the Yurok Tribe, the takings claim that was the subject of the litigation has been extinguished. Accordingly, as a matter oflaw, the takings claim arising out of the Act no longer exists. Because the claim that was to be waived in 1993 no longer exists, it simply cannot be waived now, even if the Interim Council purported to do so.
Instead of

5.

Conclusion

The Settlement Act conditioned some benefits upon waiver of precisely the claim that the Yurok Tribe litigated on the merits from 1992 through 2001 and lost. The Act authorized certain persons to elect a five-member Yurok Interim Council, a Council that would exercise specific statutory powers for a two-year period and then go out of existence. During the two-year lifespan of the Yurok Interim Council, it was also hoped that the Yurok Tribe would adopt a constitution and choose a governing body. In fact, it did that, although the Tribe was unable to use the Indian Reorganization Act authority which was also offered as a Settlement Act benefit, but conditioned upon waiver.
After fiing Yurok Indzan Trzbe v. Unzted States in 1992, the Yurok Interim Council managed that litigation for approximately 20 months before it ceased to exist on November 25, 1993. Thereafter, the Yurok Tribal Council assumed the reins and managed the litigation to its bitter end in 2001. There is no action that the Yurok Tribe can take today that could resuscitate the extinguished taking claim against the United States that arose out of this Act. Any attempt at a new or amended waiver by the Yurok Tribal Council would be legally insuffcient, as the Department has repeatedly ruled. A new waiver would be void ab znztto because having been litigated and extinguished, there is no claim to be waived now, nor does the Yurok Interim Council exist to take action. There can be no waiver of a claim that no longer exists. The Department of the Interior correctly concluded in its March 15,2002 report to Congress pursuant to section 14(c) of the Act that "the Yurok Tribe did not meet the waiver conditions of the Act and is therefore not entitled to the benefits enumerated within the Act." The Department should adhere to that conclusion.
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tps:3/23/06

App. 412

Case 1:08-cv-00072-TCW Document 29-2 Filed 09/10/2008 Page 15 of 33 Subject: Identity of the Indians for whom the funds in the Hoopa-Yurok Settlement fund were collected From: Tom Schlosser ~t.schlosserCfmsaj.com? Date: Thu, 15 Jun 200612:44:27 -0700 To: "Passarelli, Edward" ~edward.passarelliCfusdoj.gov?, "Alexander. Craig" ~craig.alexanderCfusdoj.gov?
Gentlemen:
While looking at Hoopa-Yurok documents today, I noted that Section 4(b) of

the Hoopa-Yurok Settlement Act requires the Secretary to administer the Settlement Fund "as Indian trust funds." SO..oo.. perhaps you ask, who are the beneficiaries?
The identity of the Indians for whom the funds are held in trust is revealed by looking at the source of "the funds in the escrow funds," from which the Settlement Fund in --_e_G-l!g_n-n4ÚÙ derived. (Certain federal funds lump sum payments, the were added to the HYSF also but these were entirely used to fund individual
so-called "buy-outs." See Se.çt~.9n-n::(e) and the Senate Oversight Hearing page 89 (Al-gl-stJ.i.~QQ.~))

All of nearly all of the escrow funds came from the resources, particularly timber harvest pursuant to ~:?
lL.S:Ç:n::Qi, of the Square portion of the Hoopa Valley Indian Reservation. Interior Memo at 2-3 (QgL~~2. 1991). Several other Hoopa- Yurok documents shed light on Interior's determination ofIndian beneficiaries of
proceeds from the Hoopa Square, particularly the Sacramento Area Director William Finale Memo a~--_en~_S-_'
1974)(Indians of the Res) the Finale Letter (Mar. 19, 1975)(Indians of the Res includes Hoopas) and the Assistant Secretary Forrest Gerard Plan (Nov. 20, 1978)(designating the H & Y tribes)

Of course, rights to the escrow funds was often at issue in the Short litigation and was definitely addressed in Short
lYi SlJq!t-YJ2. and upheld in Sb.Q.rt-YP. The Short litigation determined that no part could compel distributions

from the escrow funds, and concluded plaintiffs were not entitled to damages based upon unexpended monies in
the escrow funds.

Today I was reminded that Short and the underlying administrative determinations by the Interior Department still shed some light on the identity on the Indian beneficiaries for whom the funds were originally collected and are
currently being administered. I hope this is helpfuL.

Tom

Important notices

App. 413

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Document 29-2

Filed 09/10/2008

Page 16 of 33

Hoopa Valley Tribal Council
HOOPA VALLEY TRIBE
Regular Meetings on the First and Third Thursday of Each Month

P.O. Box 1348 . HOOPA, CALIFORNIA 95546. Phone 625.421 I . Fax 625.4594

Clifford Lyle Marshall, Sr.

Chairman

May 21,2007

Honorable Dirk Kempthorne, Secretary Department of the Interior 1849 C Street, NW Washington, D.C. 20240
Re:
Lawless Handling of

the Hoopa-Yurok Settlement Fund

Dear Secretary Kempthorne:
Last month I informed you of the mismanagement of the Hoopa-Yurok Settlement Fund proposed on March 1,2007 by Special Trustee Ross Swimmer. I asked you to refer the issue to the Interior Board of Indian Appeals so that impartial attorneys could consider the merits before the Hoopa- Yurok Settlement Fund left federal hands contrary to law.

On April 20, 2007, Lawrence 1. Jensen, Deputy Solicitor, responded on your behalf and rejected rnIA review on the ground that it "would not be appropriate." On the same day, the IBIA denied the Hoopa Valley Tribe's separate petition for reconsideration of its appeal while pointing out that they "expressed no opinion on the merits of whether or not the action was authorized by the Settlement Act." The Board also remarked that no delegation of authority "grants the Board jurisdiction to review a decision of the Special Trustee on the ground that the 20, 2007, decision may expose the United States to liability." 44 rnIA 250-51. Also on April the Special Trustee "advised the custodian of the account holding the remaining balance of the Hoopa- Yurok Settlement Fund that its ownership has been transferred solely to the Yurok Tribe." Preparations for withdrawal of the money from the federal accounts are now underway, but we believe over $90 million remains in trust today.

Breach of trust by the United States is, of course, compensable in the US. Court of Federal Claims. But the result of suing there is that the Treasury Department pays damages for the naked assertion of power by a few individuals within the Interior Department's Offce of the 20 letter mocked us by asserting that a Solicitor and the Special Trustee. Mr. Jensen's April "30-day period established in the Special Trustee's decisions provides the Tribe an opportunity to explore further steps." The Solicitors fully understood that sovereign immunity and the rules on indispensable parties blocked equitable relief in US. District Court by the Hoopa Valley

App. 414

Case 1:08-cv-00072-TCW Document 29-2 Honorable Dirk Kempthorne, Secretary May 21,2007
Page - 2

Filed 09/10/2008

Page 17 of 33

Tribe. The Solicitors were careful to evade review and to oppose a referral that would have clarified IBIA jurisdiction. We were denied a right to appeaL.
As you know, faithless actions by the United States Trustee led to litigation in the Cobell case, which has revealed widespread trust mismanagement that is extremely diffcult and
expensive to resolve. Here we go again. The Hoopa Valley Tribe cannot accept this latest move

to rob us of revenues generated from our lands, and our rightful inheritance. We will fie suit against the United States if the funds are withdrawn from the trust account.
On August 1,2002, Assistant Secretary-Indian Affairs Neal McCaleb testified to the

Senate Indian Affairs Committee that "the Settlement Fund should be administered for the
mutual benefit of both

Tribes and their respective reservations. . . (and) it would be

inappropriate for the Department to make any general distribution from the Fund without further instruction from Congress." S. Hrg. 107-648 at 88 (2002). Neither the law nor the facts has changed since that testimony was given. Instead, the personal views of a few unsupervised employees of the Department have prevailed. They have turned a blind eye to the clear language of the Settlement Act and accepted as valid a resolution of the wrong Council and the "waiver" of a "claim" the Yurok Tribe litigated and lost. No law supports their decision to hand over the entire Settlement Fund to one tribe only. If you can suggest any alternative to litigation of this Federal Claims, we would welcome your consideration. breach of trust in the Court of
Sincerely yours,
HOOP A VALLEY TRIBE
Isl

Clifford Lyle Marshall, Chairman
cc:

Senator Byron Dorgan Senator Dianne Feinstein Senator Barbara Boxer Representative Nick Rahall Representative Mike Thompson Hon. Maria Tripp Scott Bergstrom

T: \WPDOCS\0020\09561 \CORRESPlKemp05 1 707 JO 1 .DOC nmc:5118/07

App. 415

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DOHCE winD STATES COUR .;or . CUl~ .

mo. 102~'
(F 11.. May 24 ø 1914)

..
J&SSIB SOOw. êt al. fi

~ldntlffll
v.
'1 tnI'ED STATES

~fcndant
!looPA VALLE nIBI; et al..

Int~i-.aoJ:
I'E:OUm-i OF irw MAY 11. 1914

Present tor plaintiffs i 'Hrold .C. Faulknerv .Esq",
and william c. WUllEEcc, Esq.

For diif't:mdantl

Pittle. Esq., Department of Justic~. accomnied by Durd R. Barnes, Esq., Assiatant Solicitor. Indian

uarberl:

DiVision. Departmnt of Interior. ~d William Wirtz,

E~.. Office of the SOlicitor, Deartmnt of Zntorior~
sacramento, california.

For intervenor: Jerrx c..

straus. E~., Angelos A. iadorola. ~$q. and Al~ R..
RUbinstein, Esq.. attorney. for intervonor, The Hoopa
valley Trib, accompanied by wesley t. Barkor, E.sq..

counsel for The noopa Valley Tribe, S(lcr~ntoø

california.

App. 416

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1. 'lia cofereee 18 eoV$ned at. the Gall of

th trial j--g-e. tlUe coel HVE I&g-r~ to at.tend.
their piu:tictpat.oa b Gubjeot. to e peUt.ton for re..

hoaiQ9 of the denial of tho petition for certlbrari.
ft in pros...
, 2..

counsel have met imd are wor1d..ii on ii forr of,

questionnire to be filled out by each plaintiff. to dotonaine elii¡ibiUty to share m dilit.rilUons of procee..

of roaorvation ti~ 0010$.

'rho

would bG

etged under pennltieli of perjur but S'ot ~for. 1' not.ary.

COunttl will exchnge drafts within i 'ioolui, an coenb.
on each otherisl d.aft-$ one we lat-t!r"
,..
The questionnairt!

will cotain questions proze by all the partieø.
Defenant and inteenor may oither conce~c the

adiuibiHty of the anWM'S tr.f l!qrE!lIIin that the plaintiff 1f called 'iculd 80 test.ify, or, if convinc~ of.

the untrth. or amiinity of any lien, doolliU¡( ~t the,;
plaintiff appr to be cross-eamined.

Defendant an

1ntervanr also reserve the right, even if admission of
.1;e 8n$wers 1n evidence ia accr.cG( to" to introduc con-

uar or 8upleanta ev11once an to di-A'J# factual oi-.
locl concluøli:ius fro tho qusationnir\: &UG'ere.

Ths triai judge will tlt. that if defendAnt or

intervenor caL aqree, on the basis of a oolQte!

questionnire, to tho eligibUity of the plaintiff"
they will voice their doubts an objections to CQulUol

for plaintiff, an mae every effort to resolve the

-2..

App. 417

Case 1:08-cv-00072-TCW

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iT Of CLAIMS

problem withut a forml hoarlni¡. or. at leaat, to agree
on a part of tho matters in issuo an limit thoir 4iaagroa-

--t to a prec1ao baue, framd for &. hear:l.

4.

Intorvenor advisGd that it had 8U19~8ted an

expa~itQd briofing of the i.sues raised by the four
cases ordttrQd to be rearguod r

Plaintiffs wieh, however.

to proco~j first with discovery.

5. on the subject. of discovery, defendant and lntorvenor rococniza thei. obbligntlon to makie full voluntary

pre~ont thoir request3 In
writing, clearly specifying What th~y wisb.

5.

Tnc trial judgo .pointed out to coun$el for ~~a

defendant LrrD.t thG plaintiff Yuoks, havil1 been held to

be In1ian$ of the ono reservation, are now ontitled from

t.ii GoverfU~''t to more than it might 0'.-'0 to an ordln.:ry
litigation advorsary.

DGfcndant's pqsition haz changed

fr~ that of a defolllant in an enLirely advcr$ary rolat ;00

to plaintiffs to ~1at of a stake-holdGr or trustee ~ho
$llould rtt~in nautral as bc~'aQn ~l~in~iff$ and. the

muers of tho intorvcnór tr~G anJ ~~èk to bo hQlpful
to both of thom.

~otenant.G position may thus be com-

parod to that Of a truiitee of I!n intervivo$ trust, onca

a new group of perzona has bcn hel~ as a qroup, subject

wi.t. t."'oso formGL'ly reccÜ'.riiog incoo, to bo bcnoficiarial5.

to prof of 1ndtvi1ual gcnooloqy, equally entitlcj

..
-3-

Moro Gp.cifkl'11y, the phil'tiffn l1Z in:.Hviclu:alnYuroks of tho t'o::arvation haviilt Poem hel::! to b. Indiim9

App. 418

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''\)
~ .ooCLAIM$
.r

of the ~U'tioa..e ~ by th uca~ a dllty of.
aas18t.ncc ia øtiUiihÚI theÙ' lMivi~i elaiJ..
ThLa duty 18 no iire, but. no less thu t1t. ~ t: 11ft

1Qdividual tDia cmagll in prvin bb ift1vidwrl

øt.1tlenmnt. to a 8b~ 11' 11 ëlillt.r.fut1oß-ether under individual
a statute or a ju&:nt.-fortho b6nefit. of the

~rs of a t.d.b8 or lI$Op..
. 'xu the l~t. of ~ dlifdmrmt l.. fiiUure in thEl pilat

1: rllCQ~ Uuri riçtM:ø ,of ~e ,of ~ rlls.IIrvt.ion IInd.
iAè4iOOq t: dccll1 of thse. ittØt&,' defenant CWlJ the

1nividua plaintiff. a special dut.y to iiuuibt.t.-- in roc:verll 218 cciU.oudy .SI ipoliud.ble their full rl.gts.
retrspet! vell'.. performc: o~ thi. duty isy in II circutance. caUtor affim.tJ.ve action by the unit.ed
states t10U the Department of interior and the Burel\u
of india Affair... ; FOr ùuit:cø, d$fenfhmt Ghoui- in the

porfomance of thb duty iiymthetica:U.Y conAAder reqeøu
for datt whoDe coUect.ion an eoilat.cm will reqire

iioa offort or expense or both, in elrCNtancs "Ie if
an adVe1aa rade the X'oquost it. \\ltt not. be unfair to prcxuco papers a."t put the buren of comilation on the
party mainq th ree.t.
.. 'I.. nefenant at;tec that:

it bas conaidcnod propodnq

tht the ldentificatlou of .li~ .~l. plaintiff. be acco plbh--. ~ the exnt poSll.le. by th$ t)partmt of
inteior. .a ia done ift ca.e. of determning Wht individuals

..hould aha in a judqqt. tor Il trib. 90th intervenor and

pla1nt1tfa are op....

App. 419

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¡r Of CLAIMS

ñ. t.d4\i j~e iitd ~t &afMdiiuit hu a

duty.

if it thinks any palculu C~ 18 in t1 beat lntue.Gt"
of tt8 wal'.G ~ ..111 tavvoo the Illy M4 jwat cUspait.on of the Cle. to ppse it; aM øuppo it.. Defenant
Ii ",ish to r~J.u it. podt.on on this subject.

1n t. l1i¡t of t. vidW uproSl-- abve an otu- vitM

exroøed at th eonferee, uo ~ th itont3 of
A$Ulistat solicitor auull U to th cUfficult:es of an
assumt.ion by the I)par~t of the :mt.rlor of rllpon-

. silil1tJ1u for ~vidnÇ proof of eli..ibiUty.. It øhou). a130 bt r~~ tht def~t h411 a d\lty to
coleui judgmt. ~. it b jWlt to do so, ~ the
quøt.on ia relly one of alternt,1v8 æethoe of deVGlo

111 tho facta C4lin for cafesld.OM of jw:~t in

in1J..vidWll casu..
8.. The t:ul ~ud9'e inired whethor the parties could

not Agrac, before 1U.$tribt.1ng the quest.ionnaire, ot\ rules
of eligibility.. .Interor ~iJpo'Dl1 ~t thu b tbcc

question on 'lich they prosed ~.ued briefl~ f an
that their rosearch hu not yet ooem ~lete.. plainti!!.
axC! opped to lafireet.nt on rule. at thia tii.
Th trial judfio apprltlates that plaint:1fflS.

co\.el may not. find it eaoy to agree 't Nle.. wich may

disqlify ~ of thou cUtmts.. The iiugq$stJon ao to

agree.1nt. no. on eeli..1bil1ty rules ill novorthol"s8
i:enewee. an dlroctG pri.ily to defendant. which .a
trust" lor all

18 obliqat. in eqity to ISINk out tho...

who are entiti.d~ and aho-.ld be in the forefront of the

-5-

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'0

) OF eulM5 . ïr

effort. to arr1ve at aM to prllfl, oither for adoptio
by the trial jWq8 or, at. lqst. for dbc\uuid.o/' .. l:nt. by

tho patiN. a set. of principle. for determinin. GIliiiibllity,
0180 th afforta devotod to the queat.lonnairo will be va.ta
to an ext..at now avoidablo.

9.

Ii question WAS raised u to any duty on the pat. of

plaintiffs' counsel to solicit evidenee of possiblo entitlOM~nt
of othare ~~an the na~~i plaintiffs.

Tho trial judgo rules

that tl--ere is no ouch duty- .This is ¿In. action by som
3,000 indiao$ who ara th~ name~
tí!l.

party

in..

tiff$ may recover li jud~t.
tr ibuted only to plaintif¡~. .

Questionnai~a5 azn to b$ dis-

10..

plaintHilS i consal ~hould - consult. wit.'- the clark

~$ to motion. to $ubstitu~ su¿casßQra to plaintiffs who

have died, and like ~tt~8..couneei for intervenor and
the Gover¡mment ar.; ex~ct.iid not to oppose ßuch motlons..

ll.

Qu~Ltion~ ~cro r~i~a~ by plaintiftß' couna~l ao to

tho plac~, in the litig~tlon on the entitlamt of paticular
yurek plainti!f., of l&suoa ae to the propriety of the
ent.it.leeent to receive d.L3t.rLbution.t of. p.-utic:ular lIoopaG

who have bc~n r~coiving distributions.

such 12$1.&0 might

ftr ilUil in two way., Ç)..¡¡ ""oul. 'Co a (Hrt;ct challengo to
th'3 proprioty or a distribution to a p.articular Hoopa.
7onoi:$r fiigh:: bo an 1lJ:'i~iJnt. that a pu-ticular plaintiff

havi~g a c~rtaia ralùtionshi9 to tho ru~cr~Ation or th~

~rok Tr.l~ £houlJ b,:) h;;W to bo Iimt1tlc.l, be(.U:.C a uoopa

has ~n held ent.itlod to reeoh.. (Het.ribut.on. on the ba$is
of a c~?~rable rQl3tion~hip by him to the resorvation or

to his tribo..

App. 421

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-;Vv,. .
Yo bF CLAIMS
L

Th~ trial ju1go notos ~at ~ig ia an action by

indivUU3li- for a money jud'ji.enl:.

'!e ju.:i;ent will'

prcs~~ly bo a c~llation of aocisiona tht a paticular platntiff who is h~ld to bo an indian of the

re8a~~tio~ in entttl~d to a certain fraction of tho
total availallle for dizLribution.
It is ::P1?:Jrcntly rl11evimt. a.s evidence 0.'1 tho i5ZUO

of a plaintiff'S antitlemnt to a üharo. that a goopa

rac01Véfi di~trillution$ en ~~~ baais siDl1ar to o~a that
a

A j udipari t.

plaintiff proposes as juztifyin his right.

that a p~rticulnr no':)p:. 'wo has in tho past reco1.~ dis..

tribut tons ~~a 11 hcncetorth not racoi va L~cr. however. doas

.i

not sec: to b~ vit.i-i:\ the pleadings, or. indotr. ",it.i-in

the juri~diction or tho coirt.
1\t th~ confei:~nc;J,' t.i-cra "''as a d1acu~:;ion of. pos:.ilÜQ
clrcur.st~nC0$ in ~hich Lhe fractional or inonotary 9h~ro

of tho tJovural st.~C(:c";fJrut i?lai,iii:itf'3 mi.ght bo great.er tha.-otheervi::c, if it. \.¡",ria m2,lo to nj)poar that. HOQP2le ",era ra'"

calving dtßiributionti on a basin rejectod by the court as a
c;roua' íc::r "'~t.ithc;;)rrt. of a plaintifr or platrtiífß.
by the trial ju¿gø on this ~~joct were terrta~ive, and not ihe quo$tion is opon for intonjc~ to ~6ctdc any i¿cuos.
dcciLion on mvtio~ or ls6ue ~ppropriataly raiß~l by any

cornt:ø

party.

Tha only issug ~~c~i~toly prc~entod is one of
~1C trt~l ju1g~ rul~~ t11at plaintiffs are on'"

die co..;:-¡.

titlo:! to volunL"lry di::ç.ç,'¡,¡r::' J.i;cY1 at g'!O'.dnr; vhat rulcs or
oligibility Brc npplled in rokiog distributions to HOOpAs.

App. 422

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..;¡ OF CLAIMS

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12.

A quOstion WAS raised a8 to divoraity of intereßt

anj PODc!bla conflicting position$ ~~g plain~iffs.
is in the first instace 8 que$tionfor plaintiffa. COunsel.

This

No question for decision b no present.ed..
13..
A que8tion was raised by plaintiffs as to distr1.utions to the lloopaa or the Roopa Tribe, from the funds

in quostion, of moneys ~ic: arc Used tQ dot:a. thQ case..
NO iS$U& on such question 1a presented for doc!$!one

16.

'ro tr41 jUdge !nqir~ aa to the! atatUg of
OOUfi301for tha

p.:,-mGnt3 aiid wag

paymente to Hoopas have cont.inu\\ untH recently. and no

t: t

"'HI be 8Usp"ndad. cccept. for pa~aants to t.''e 'tribe..
trüi jUdge cautioned. generally and without intending to
approve or disapprove any particular CourSiO of action. that

'tha

any ovarpymentB could lead to double Or individual liability,
Once Judgment fa rendered.

15..

Counsel Will please report status and progress of

que.stiOn1ire co::lQUon tw months from tha date of this

meorandum and tharßZtft,ar bimnthly whonQver no report
of $paacific action has bean i;,je for the two proce:Hng

months.

Councol for c:fn~ant: 18 asked to tifkQ the load

in ak'kir.g sucb r~ports, anj ~houid U$Q thom as a vohtcle
for roporting on tho perforri:incG of its dutioa to all tho

plaintirru and to the mmmber~ of thQ L~tQrvonor Tribe,

abov~0l1tionc1.

Counsel for oth~r parti3s ahould add

any SUP,?lome'1tary coont they may havdd.

Trial JU-igo

~

-8App. 423

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HOGAN & HARTSON
L.L.P.
COLUM.ßIA SQUAitE

555 TllRTEF.NTH STRJET, N.W,
W ASHrNGTON, DC 200041109
Tl: (202) 637-5600

F,A (202) 637,5910

www,mrÁw,co~i

MEMORANDUM
October 21, 2005

TO:

Hon, Sue

oolcl:idge

FROM:
RE~

Hogan & Hm:tson, L,L.P.
Critical Issues Facing the Yu).'ok Tribe

On behalf ofthi- Yurok Tribe and us at Hogan & Hartson, thank you

very much for your continued willingness to understand the Tribe's concerns and for
all your efforts in addressing those concerns, We appi'ecíate also the work of Scott Bergstrom on matters of importance to the Tribe.

In anticipation or a possible meeting on or discussion of these issues with you soon, we wanted to be sure that we have accurately eÁ"Pressed to you the Tribe's clear priorities. The most ilgent matter for the Yurok Tl'be is to obtain a
speedy release of the $3 millíorr for land acquisitiorr and associated expenses as

mandated by the Hoopa~Yurok Settlement Act of 1988 ("the Act"). See 25 D.S.C.
§ 1300i-l(c)(3)(B). As you are aware, the larrd acquisition monies have already beeD

appropriated1 and the Tribe's claÌJJ1 to those monies is undisputed. The distribution of the monies intended for the Tribe under the Act and currently being held in the Settlement Fund a.lso is important to the Tribe. However) due to the immediate need that the Tribe has for the land acquisition monies and the fact that those monies wil serve as a first step to helping the Tribe address its urgent priorities, including a pending transactiorr to acqi.iire substantial additional forested acreage, the Tribe considers its request for prompt release of this $3 million to be its most urgent
current claim.

We understand from Buruau of Indian Afairs staff that two separate appropriations have
been made: one for $2.5 milon uod another for $500,000.
W,'\j'GIN, PC

BAJ- TIioR£ IJi:1JIJ'G BERON BOUI..ER ¡;RUss''LS IJUDAPFSS CARACA COLORADO SPRINGS Df.NVER G£NEVA KONG KONG LONDON

LOANGELL MIMIJ MOS' 'W i'lljNial i'VYORK NOmlRNYIFG1N PAR S¡'bNGGI TOKYO W/,JW

App. 424

\\',¡¡ç. 2473'\10001. 2Z0G037 Y'

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H76

HOGAN & HAON L.L.P.
Hon. Sue Ellen Wooldridge

October 2 i, 2005
Page 2

The Tribe's strong preference is to find an acceptable arrangement by which the $3 millíon for land acquisition could be provided to the Tribe

administratively, without need of further intervention by the Congress. By this we
mean that the Tribe is eager to learn what waivers or other conditions the Department of the Interior ("the Department") would require the Tribe to meet in order to receive the $3 millìon for land acquisition and the basis for any such

conditions. rlhe Tribe strongly m:ges the Department to look to such an aclministrative resolution. As e::rplained below, the rrribe believes that: (1) it is clear that the Department has legal authority for administrative resolution of such
matters, 2) such administrative resolution would effectuate the clearly-expressed

intention of Congl'ess; and (3) no furthei: e::'"ression of Congressional intent is

required.

The_Department Has Authoritv Under the Law to Make Such Distribution Once the Yurok Tribe lVleds Inte:dor's ConditIons
'While the Act D'iay provide for certain minimal conditions that m1.st be

met by the Tribe, such as execution of a complete waiver of claims arising under the
Act and certain organizational requirements, the Act clearly provides the

Department with the discretion and authority to disburse funds to the Tribe once those conditions are met. Indeed, as we understand it, the Department maintains the Yurok with the
of the Yurok's portion of the funds and manages them on behalf

expectation that they will ultimately be dishnrsed for the Tribe's benefit.
The Department is stil entitled to rely upon the provisions of the Act,

notwithstanding what has transpired since its enactment, including the initiation and resolution of litigation. The settlement of litigation pertaining Rathel', the to takings claims the Act.
against the United States was not the primary purpose of

primary puroses of the Act were to establish an adequate land base for the Yurok, settle ongoing disputes between the Hoopa and Yurok pertaining to land distribution
and equitably distribüte the Settlement Funds to the Tribes and their mem.bers.

Indeed, the Act itself anticipates the possibility of a takings claim al'Îsing from the judgment
Act and specificaJly provicle~ for it. See 25 U.S.C. § 1300i-IL The final

against the Yurok's claim co:oipletes a cycle of events specificaly contemplated by the Act and allows the Yurok and the Department now to proceed with accomplishing the under lyíng purposes of the Act, including the disbursement of the Y ú.rok' s portion of the funds to the Tribe.

The Act neither states nor implies that addítional Congressional

direction is necessary for disbu).'sement of funds under the Act. Specifically, Section
App. 425
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HOGA &I-1ON L.L.P.
Bon. Sue Ellen Wooldridge

October 21, 2005
Page 3

14(c) of the Act, requiring a report to Congress following the final judgment of a

takings claim against the United States, does not diminish the Department's
discretion. nor require the Department to seek Congressional approval before acting

within its authority to disbur:-e the funds. As evidenced by the legislative history and plain language of the Act, the intent of Section 14(c) was to provide Congress with recommendations if additional funds or management authorities were needed the Act
and, roost importantly, to afford time for Congress to correct the language of

to avoid having to pay a final judgment in the event the claims were successfuL. See
25 D.S.C. § 1300i-ll(c)(2); S. Rep. 100-564, at 30, 40 (1988).

Finally, the Act does not specify a time-certain in which the waiver conditions must be met. Nor does the Act indicate that pursuit of a takings claim against the government would nulli the Tribe's ability to obtain, or the
Department's obligation to provide, the funds authorized by Congress. Instead, as

noted above, the Act specifically contemplates the filing of a takings claim. As evidenced by other settlement acts with other tribes employing much stronger
language in their waiver provisions, Congress certainly knew how to limit the Tribe's

ability to obtain access to its portion of the funds, if that is what Congress so the Act, Congress intended for
intended. It is not. According to the plain language of

the Department to handle the details of disbursement of the Yruok's portion of the

funds u.nder the Act once the Tribe met certain conditions.
Distributing the Funds Is Consistent with Cong-ressional Intent

The intent of Co:ngress in enacting the Hoopa-Yurok Settlement Act was
both of to deal fairly with the interests of

the Tribes. As time has passed, however,

the inequities of the YUl'ok's treatment under the Act have become apparent.

Nevertheless) Congressional intent that the Yurok be entitled to certain funds under the Act is plain. The Department's disbursement of those funds, in particular the
land acquisition funds and the remainder of the Settlement Fund, would be

consistent with that intent,
The $3 million of land acquisition funds has already been authorized and appropriated in two insi:allments to the Departm.ent for disbmsement solely to

the Yurok. No other party has any rightful claim to those funds.

With regard to the remainder of the Settlement Fund, the Tribe
recognizes its own role in contributing to the dela.y of

the Fund's disbursement.

However, to deny the Yurok Tribe access to the Settlement Fund now would be in the
direct opposition to clear Congressional intent. Even though portions of

App. 426
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HOGAN & l-lAON L.LP.
Hon. Sue Ellen Woolcl'ídge

October 21, 2005
Page 4

previous
Settlement Fund were derived from Yurok t:ábal xnembers' settlement of

lítigatiop and the Yurok's portion of the joint reservation (i.e., the Yurok Escrow

funds), the Tribe has yet to receive its distribution as provided f01' by Congress. See 25 U.S.C. § 1300i-3(d)- Conversely, the Hoopa have already received their portion of the funds under the Act. In its Section 14(c) Report, the Depa.i:tment ackuowledged
the Hoopa's receipt of their bonefits under the Act2 and stated that "it is the position
of

the Departrnent that Hoop:J, Valley Tribe is not eptitled (to) any further portion of funds or benefits under the e~isting Act." DOl Report to Congress at 2 (2002).
Finally, no ODe but the Yurok Tribe is prejudiced by the passage of time

that has occurred between enactment of the Act, the disburseu::ent Hoopa's
portion of funds, and, what can hopefully be, a final disbursement of the Yurok's

funds. The Yurok's delay in ()xecuting what the DepaTtxnent considers a complete waiver does not somehow negate Congress' intent that the Yurok receive their
portion of the funds specifca Uy provided for the Tribe under the Act. As stated in
the original

legislative hístory of the Act, Congress did not intend that the waiver conditions would prevent the tribes fTom enforcing rights or obligations created by

the Act, See S. Rep. 100-564 at 17 (1988). Once the waiver conditions of the Act are met, the Depa:rtment is fn~e LO distribute the funds to which the YuX'ok are entitled as
intended by Congress and ckarly expressed in the original Act. The Hoopas' claim to

Settlernent Funds having beep met, and their waiver to further claiIDs against the United States having been executed, a distribution of the Yuroks) share remains the principal unfinished business of the Department under the Act.

No Further Action by Congress Is Required
The Act was a landmark piece of legislation that took an impottant first step in addressing Congress' concerns regarding the Yurok and Hoopa tribes. Owing to the inequities noted abov8, the Congress has since recognized that it must do mote (i.e., S.2878, proposed amendments to the Act, introduced in the 108th Congress). Similar legislation is being considered by Members of the 109tb Con¡p:ess. However, before the Congress can take further action it is necessary for the U.S. government
and the parties involved to allow the already-expressed intention of Congress to be

fully realized. It is not necessary for the Department to seek to obtain additional Congressional guidance before distributing the funds clearly intended by Congress to be received by the Yurok Tribe, Additional issnes yet to be addressed include
2 The Department also nored that the Hoopa had executed a tÚbal resolution "waiving Ð-ny
claim such tribe may havE; against the United States arising out of the provisions of the Act." 53 Fed.

Reg. 49,361 (1988) (emphiisis added).

App. 427
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HOGAN &HAON L.L.P.
Hon. Sue Ellen Wooldridge

October 21, 2005
Page 5

expansion of the Reservation boundaries, acquisition of land, public and private,
within the expanded bonnda1'es, and authorization of infrastructure impi'overnents on the Reservation.

Furthermore, ahhough Congressional guidance may have beei). necessary during the period when the Yurok Tribe's waiver was not considered complete, such guidance WaD ld not be necessary today if the Yurok were to execute a the Yurok had
complete waiver that met the Department's conditions. Similarly, if

succeeded in their claim agai fist the government a case might be made for the
necessity of further CongressÜonal guidance. However, the Yurok's claim was not

successful and the Tribe 18 now willng seriously to consider promptly meeting the Department's conditions. The Tribe is eager to move forward in cooperation with the Department to help achieve both the Department's and the Tribe's goals. Such
cooperation is a very high priority for the Yurok's new leadership. To that end, the

Tribe looks forward to a constructive discussion, and hopefully quick resolution, of these matters with the Department.
vVe look forward to discussing these matters with you as your schedï.e

permits.
Hogan & Hartson, L.L.P.

cc: Scott Bergstrom

App. 428
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UnIted States Departinent of the Interior
OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240
APR 0 3 2007

TAKE PRIDE

INAMERICA

lt j ~
o HANQ
¡j lNîIiI'N!f

The HonorabJe Clifford LyJe Marshall Chairman Hoopa Valley Tribal Council Hoopa Valley Tribe P.O. Box 1348 Hoopa, Califomia 95546

RECEIVED
MQRISSØ-, $OHlÒ5SÊR, JOZWIAK ä MGGAW

APR 0 9 2007

ÖFAX
Dear Chairman Marshall:
This is to acknowledge receipt on March 2007, by Associate Deputy Secretary of

dMA1L

o EXPRESS
o E.MAIL

James E. Cason of a copy of the ¡'¡oopa Valley Tribe's Petition for Stay and Notice of Appeal and

the Interior

Statement of Reasons in the matter of Hoopa Valley Trzbe v. Ross Swzmmer, No. --' before
the Interior Board ofIndian Appeals. For your information, Mr. Cason has recused himseJffrom
this case.

..

Thank YOll for your attention to this matter.

Sincerely,

Ä~ ~ ~~~~
Fay S. ludicello Director Office of the Executive Secretariat

cc: Nina Cordova, Morisset, Scholsser et af.

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United States Department of the Interior
BUREAU OF INDIAN AFAIRS

Sacramento Area Offce
IN REP1.Y REFER TO:

II

2800 Cottage Way Sacramento, CalifornIa 95825
SEP 1 7 1992

.

CERTIFIED MAIL # P 423 394 958 RETURN RECE IPT REQUESTED

i L l 1 J ¡ I~'ì- '
,.- - SEP 2 1992 _/
PIRTLE:, MORISSrr S(~HLOSt;ER S AVEH

(0) ~ I§ rì ~p R¡ ~J~

Mr. Thomas P. Sch 1 asser
Pil"tle, Marisset. Schlosser & Ayer 1115 Norton Building 8Øl Second Avenue Seattle. Washington 98104-1509

Dear'i'1r'.

Sch 1 0 sse r ;

The Hoopa Valley Tribal Council and the Enrollment Committee of the Hoapa Valley Tribe filed an appeal regarding the April 16,
1 992 de t e f~ m i n a t ion 0 f the Ac tin 9 Sup e r i n ten den t , Nor the r n

California Agency, that four individuals met the criteria of § 6(b) of the Hoopa-Vurok Settlement Act and are entitled to be enrolled with the Hoopa Valley Tribe.

Sect i on to (b) of the Hoopa-Vurok Sett lement Act

reads as fallows:

(b) HDopa Tribal Membership Option.--(1) Any person on the Settlement Roll, eighteen yeay's ar older, who can meet any of the enrollment criteria of the Hoopa Valley Tribe set out in the decision of the United States Court of Claims in its March 31, 19B2, decision in the Short case (No. 102-63) as "Schedule A". "Schedule 8"~ or "Schedule C" and who-(A) maintained a residence on the Hoopa Valley Reservation on the date of enactment of this Act; (8) had maintained a residence on the Hoopa Val ley Reservation at any time within the five year period prior to the enactment of this Act; or (C) owns an interest in real property on the Hoopa Valley Reservation on the date of enactment of this Act,

may elect to be, and, upon such election shall be entitled to be, enrolled as a full member of the Hoopa Valley Tribe. (2) Notwithstanding any provision of the constitution, ordinances or resolutions of the Hoopa Valley Tribe to the contrary~ the Secretary shall cause any entitled person electing to be enrolled as a member of the Hoopa Valley Tribe to be so enrolled and such person shall thereafter be entitled to the same rights, benefìts~ and privileges as any other member of such

t r i be.

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-3Schedule B. A review was also conducted regarding Schedule A and Schedule C. It was determined that these individuals do not meet

the requirements of these schedules either.

The appeal filed on behalf of the Hoopa Valley Tribal Council and the Enrollment Committee of the Hoopa Valley Tribe is hereby upheld. Because this decision constitutes an adverse enrollment action, Bessie MOQn Latham, Jack Norton, Jr., Laura Grant George, and Zane Grant will be advised of their right to appeal this decision under separate cover. Should these individuals choose not to appeal this decision, they will be given fifteen ((5i days fro recei of their letter to select another option.

cc ~

Super i nt endent. Northern

lane E. Grant. Sr.

alifornia Agency

Laura Lee George Bessie Latham

Jack Norton, Jr.

Yurok Interim Council

App. 431