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

Case 1:08-cv-00072-TCW

Document 13-5

Filed 05/01/2008

Page 1 of 2

Honorable Dirk Kempthorne, Secretary May 21, 2007 Page - 1

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 J. Jensen, Deputy Solicitor, responded on your behalf and rejected IBIA 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 decision may expose the United States to liability." 44 IBIA 250-51. Also on April 20, 2007, 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 U.S. 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 Office of the Solicitor and the Special Trustee. Mr. Jensen's April 20 letter mocked us by asserting that a "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 U.S. District Court by the Hoopa Valley

Exhibit 43, p. 1

Case 1:08-cv-00072-TCW

Document 13-5

Filed 05/01/2008

Page 2 of 2

Honorable Dirk Kempthorne, Secretary May 21, 2007 Page - 2 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 difficult 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 file 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 breach of trust in the Court of Federal Claims, we would welcome your consideration. Sincerely yours, HOOPA VALLEY TRIBE /s/ 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\CORRESP\Kemp051707_l01.DOC nmc:5/18/07

Exhibit 43, p. 2