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[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:89744.wais]
S. Hrg. 108-375
SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION GRAND COULEE DAM
EQUITABLE COMPENSATION SETTLEMENT ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
S. 1438
TO PROVIDE FOR EQUITABLE COMPENSATION OF THE SPOKANE TRIBE OF INDIANS
OF THE SPOKANE RESERVATION IN SETTLEMENT OF CLAIMS OF THE TRIBE
CONCERNING THE CONTRIBUTION OF THE TRIBE TO THE PRODUCTION OF
HYDROPOWER BY THE GRAND COULEE DAM
__________
OCTOBER 2, 2003
WASHINGTON, DC
89-744 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
----------
Page
S. 1438, text of................................................. 3
Statements:
Cantwell, Maria, U.S. Senator from Washington................ 16
Funke, Howard, Funke and Work Law Offices, Coeur D'Alene, ID. 19
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice
chairman, Committee on Indian Affairs...................... 1
Murray, Patty, U.S. Senator from Washington.................. 17
Pace, Charles E., president and CEO, Regional Services,
Challis, ID................................................ 19
Seyler, Warren, chairman, Spokane Tribal Business Council.... 19
Prepared Statements:
Cantwell, Maria, U.S. Senator from Washington................ 29
Funke, Howard................................................ 33
Hickok, Steven G., deputy administrator, Bonneville Power
Administration............................................. 36
Murray, Patty, U.S. Senator from Washington.................. 31
Pace, Charles E.............................................. 45
Robinson, Robert A., managing director, Natural Resources and
Environment................................................ 60
Seyler, Warren (with attachment)............................. 52
SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION GRAND COULEE DAM
EQUITABLE COMPENSATION SETTLEMENT ACT
----------
THURSDAY, OCTOBER 2, 2003
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 2:08 p.m. in room
485, Russell Senate Building, Hon. Daniel K. Inouye (vice
chairman of the committee) presiding.
Present: Senators Inouye and Cantwell.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Inouye. The Committee on Indian Affairs meets this
afternoon to receive testimony on S. 1438, a bill to provide
for the equitable compensation of the Spokane Tribe in
settlement of the tribe's claims relating to the use of tribal
lands for the production of hydropower.
Seventy years ago, the United States began construction of
the Grand Coulee Dam in Washington State. In 1940, lands
belonging to the Confederated Tribes of the Colville
Reservation and the Spokane Tribe were acquired by the United
States for its hydropower project, and some minimal
compensation was authorized to be paid to the tribes.
Those tribal lands were directly affected by the
construction and operation of the Grand Coulee Dam. Some lands
were inundated with water; others were affected by the
production of hydropower, and salmon fisheries on which the
tribes were dependent both for subsistence and economically
were destroyed.
Fifteen years ago, the Congress enacted a settlement for
the Confederated Tribes of the Colville Reservation based upon
the tribe's legal claims which had been pending for 43 years
before the Indian Claims Commission, the United States Court of
Federal Claims, and finally the U.S. Court of Appeals for the
Federal Circuit.
At that time, recognizing that the Spokane Tribe's legal
claims for the loss of tribal lands and resources were barred
by the applicable statute of limitations, several senators
joined me in calling upon the Departments of the Interior and
Justice to work with the Spokane Tribe to develop a settlement
of the tribe's equitable claims.
That process did not come to fruition, but today I am
pleased to report that the good and worthy Senators from the
State of Washington have not forgotten the history of the Grand
Coulee Dam, and the losses suffered by the Spokane Tribe. We
are here today to receive testimony on the bill that they have
introduced to provide equitable compensation to the Spokane
Tribe for its losses.
[Text of S. 1438 follows:]
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Senator Inouye. In order to provide a sharpened focus on
the testimony of the Spokane Tribe, the committee has called
upon the Bonneville Power Administration, the General
Accounting Office [GAO] and the Department of the Interior to
submit written testimony for the record of the hearing today.
Now it is my pleasure to call upon the authors of the
measure, my distinguished colleagues from the State of
Washington, Senator Patty Murray and Senator Maria Cantwell.
Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman.
I greatly appreciate your willingness to hold this
important hearing and for your cosponsorship of this
legislation. You have been a consistent champion for
establishing a fair and equitable settlement process and to
compensate sovereign Indian nations harmed by actions of the
U.S. Government and those that we represent. For this and the
other efforts on Washington State tribes, Senator Murray and I
greatly thank you.
I would also like to thank my friend and colleague, Senator
Murray, for her important efforts on this legislation. As you
all are aware, Senator Murray was instrumental in providing the
Colville's with a fair and equitable settlement in 1994 for
nearly identical impact to their reservation. I look forward to
working with her as we move through this settlement agreement.
And of course, I would like to thank Warren Seyler and the
other Spokanes and their representatives for coming today. I
know you have been fighting for just compensation for a long
period of time, and the damages to your reservation way of life
that have been that way since the construction of the Grand
Coulee Dam in 1933.
I recognize that this has been a long and extremely
frustrating process. I hope that this hearing will provide the
necessary information for us to move forward and once and for
all resolve the Spokane claims against the U.S. Government.
I would also like to take this opportunity to reiterate my
condolences to the tribe regarding the death of Bruce Wynne.
Bruce obviously was very dedicated to this community and was
invaluable. His loss will not just be felt in Washington State,
but across the country. My thoughts and prayers are with his
family. I know that Bruce spent a great deal of time trying to
solve this issue, so it is my hope that we can give some quick
action to this and the longstanding grievances that have been
here, so that we can move forward and make that a legacy to
Bruce's leadership.
Mr. Chairman, my goal for this hearing is to establish for
the record the harm done to the Spokane Tribe, and the damage
that was done following the construction of the Grand Coulee
Dam and the legal and moral obligation that I believe that we
have as a Federal Government to compensate the Spokane's for
those damages.
For more than one-half century, as you mentioned, the Grand
Coulee Dam project has been an extraordinary contribution to
our Nation. It helped pull the economy out of the Great
Depression. It provided the electricity that produced the
aluminum industry required for airplanes and weapons, and it
ensured our national security. The project continues to provide
enormous revenues for the United States and is a key component
of our agricultural economy in Eastern Washington.
However, these benefits have come at direct cost and
expense to tribal property that have been inundated when the
United States built the Grand Coulee Dam. Before dam
construction, the free-flowing Columbia River supported a very
robust and plentiful salmon run and provided virtually all of
the subsistence needed by the Spokane Tribe. After that
construction, the Columbia and Spokane River tributary flooded
tribal communities, schools, roads, and causing problems with
stagnant water and still erosion problems on the reservation
today.
The legislation that Senators Inouye, Murray, and I have
introduced, which was done in July, is similar to the
legislation that Senator Murray did in 1994, a bill that
codified the settlement and provided perpetual payments to the
neighboring Confederated Colville Tribes. To date, the
Colvilles have received over $180 million in payments for their
land inundated by Lake Roosevelt.
This bill provides the framework for the success that was
the same for that settlement, providing the Spokanes with
compensation that is directly proportional to the settlement
afforded the Colville Tribes.
Specifically, the Spokane Tribe would receive 39.4 percent
of the past and future compensation awarded the Colville Tribes
pursuant to the 1994 legislation. This percentage is based on
the proportion of tribal lands impacted after the Federal
Government built the Grand Coulee project.
S. 1438 also outlines the facts of the Spokane claims and
describes how the tribe can use that compensation that is
forthcoming.
Mr. Chairman, I will enter the rest of my statement for the
record, but I just want to say that I very much appreciate the
fact that you have given time for this hearing on this
important issue. When Federal actions take physical and
economic impacts on our tribes, we need to respond. So I
applaud the leadership that you and Senator Murray and others
are using on this legislation.
Thank you.
[Prepared statement of Senator Cantwell appears in
appendix.]
Senator Inouye. I thank you very much. Your full statement
will be made part of the record.
Now it is my great honor to recognize the distinguished
senior Senator of the State of Washington, the Honorable Patty
Murray.
STATEMENT OF HON. PATTY MURRAY, U.S. SENATOR FROM WASHINGTON
Senator Murray. Good afternoon, Mr. Chairman. It is a
delight to call you Mr. Chairman. Thank you very much for
having this very important hearing today.
And Senator Cantwell, thank you for your leadership on this
and the many tribal issues that affect our State, our region
and, really, our Nation. I look forward to working with you on
this. I appreciate all your work on this.
I am really proud to be here today to introduce to the
committee the distinguished chairman of the Spokane Tribal
Business Council, Chairman Warren Seyler. He is a leading
figure in Washington's tribal communities and I know his
testimony will be of great value to this committee.
Before I introduce him, I would like to share a few ideas
about S. 1438. Earlier this year, I joined with Senators
Cantwell and Inouye in offering legislation that would finally
compensate the Spokane Tribe for its contribution to the
hydropower that is generated by the Grand Coulee Dam. You will
recall I introduced similar legislation in the 106th and 107th
Congresses. The Grand Coulee Dam is the largest electricity
producer in the United States. It provides electricity and
water to the Columbia Basin Project, which is one of the
world's largest irrigation projects.
For more than 60 years, the Grand Coulee has been the
backbone of the Northwest Federal power grid and our
agricultural economy. But for the Native peoples of this
region, construction of the Grand Coulee Dam came at a very
high price. For the Spokane Tribe in particular, it brought an
end to a way of life. The Spokane River was once a free-
flowing waterway that supported plentiful salmon runs. It
became a barren stretch of slack water that now erodes the
southern lands of the reservation. In fact, the tribe's
reservation has been flooded on two sides.
Mr. Chairman, S. 1438 is not the first piece of legislation
seeking to compensate a tribe for losses brought by the
construction of Grand Coulee Dam. In 1994, Congress passed
similar settlement legislation to compensate the neighboring
Confederated Colville Tribes. Since the 1970's, the Congress
and Federal agencies have indicated that both the Colville and
Spokane Tribes should be compensated for their losses. This
legislation will provide a long overdue settlement to the
Spokane Tribe.
Mr. Chairman, it is now my pleasure to introduce Chairman
Seyler to the committee. He was first elected to the Spokane
Tribal Business Council in 1990. Chairman Seyler also serves on
the board of the Upper Columbia United Tribes, which is
involved in fish and management issues along the Columbia
River. He is also active in management issues at Lake
Roosevelt, a reservoir created when the Grand Coulee Dam was
constructed.
Finally, Mr. Chairman, I would like to join with Senator
Cantwell in offering my condolences to the tribe. Last week
they lost, and indeed all of Indian Country, lost a great deal
with the passing of former Chairman Bruce Wynne. He led with
his heart and had a remarkable ability to bridge generations.
His leadership, knowledge of history and warm personality will
be missed. I must say his legacy continues in leaders like
Chairman Seyler, and I am proud to introduce him to the
committee today.
Thank you very much.
[Prepared statement of Senator Murray appears in appendix.]
Senator Inouye. Chairman Seyler, with that introduction,
you can't lose. [Laughter.]
Before you proceed, just for the record, you are
accompanied by Howard Funke of Funke and Work Law Offices,
Coeur d'Alene, ID; and Charles E. Pace, president and CEO,
Regional Services, Challis, ID.
Would you gentlemen like to join Chairman Seyler at the
table?
STATEMENT OF WARREN SEYLER, CHAIRMAN, SPOKANE TRIBAL BUSINESS
COUNCIL, ACCOMPANIED BY HOWARD FUNKE, ESQUIRE, FUNKE AND WORK
LAW OFFICES, COEUR D'ALENE, ID; AND CHARLES E. PACE, PRESIDENT
AND CEO, REGIONAL SERVICES, CHALLIS, ID
Mr. Seyler. Thank you, Mr. Chairman and members of the
Committee on Indian Affairs for the opportunity to testify on
S. 1438. As stated, accompanying me is Howard Funke, our
attorney, and Charles Pace, our economist. Also joining us
today in the audience is Vice Chairman Greg Abrahamson, tribal
council member, Dave Wynekoop, Jr., and tribal attorney, Margo
Hill.
I am here today on behalf of the Spokane Tribe to ask for
your help as representatives of the United States of America. I
ask that you act on behalf of the United States to finally
treat the Spokane Tribe fairly and honorably for the injury to
our tribe and reservation caused by the Grand Coulee project.
My testimony today summarizes the critical need for this
important legislation. We are also providing briefing books for
the record and a video. I ask that they be put in the record
also.
The Spokane Tribe is an honorable tribe. We are a strong
tribe, a trusting tribe. We are good for our word and strong in
our commitment to this Nation. Grand Coulee's waters flooded
the lands of two sister Indian reservations that held great
economic, cultural and spiritual significance. Ours is one of
those reservations.
Let me just state one issue that I just mentioned, being
sister Indian reservations. That is exactly what we are even
today. Today, you can find family members, one enrolled on the
Colville Reservation as a brother, and on the Spokane
Reservation a sister may be enrolled. Aunts and uncles, one may
be enrolled on the Spokane, another on the Colville. That is
just historic. It has always been that way, even when we had
free use of the river.
Our life, culture, economy and religion centered around the
river. We were river people. We were fishing people. We
depended heavily on the rivers and historic salmon runs that
were brought to us. We were known by our neighboring tribes as
the salmon eaters. The Spokane River, which was named after our
people, was and is the center of our universe. We call it the
Path of Life.
President Rutherford B. Hayes in 1881 recognized the
importance and significance of these rivers by expressly
including the entire adjacent river beds of the Spokane and
Columbia Rivers within our reservation. But the Spokane and
Columbia Rivers are now beneath Grand Coulee's waters.
The other reservation flooded by Grand Coulee is that of
the Colville. The waters that rose behind Grand Coulee brought
similar fates to our reservations. Burial sites, village sites,
spiritual sites, all lost to the rising waters, lost so this
country could benefit. The river banks which provided us plants
for foods and medicines were forever flooded. Homes, gardens,
farms, ranches our people had worked hard to build on our
reservation are now under water. The free-flowing Columbia
River and our Path of Life is now under the water behind Grand
Coulee Dam.
The dam also destroyed our salmon runs, which from time
immemorial had given us life and identity. While the Colville
lost most of their runs, salmon were still able to reach the
Colville Reservation. But upstream to our reservation, the
salmon was entirely lost. For decades, the Colville and Spokane
Tribes shared similar histories and dialogue in connection with
the Grand Coulee issue and were subjected to identical
misconduct by the U.S. Government.
When the project first began, it was to be a State project
governed by the Federal Power Act, which required annual
compensation to impacted Indian tribes. Later, after the
project was Federalized and no longer fell under the Federal
Power Act, Government officials promised and acknowledged that
the tribes still should be compensated.
When the construction on Grand Coulee Dam began, the
Commissioner of Indian Affairs recommended in writing that both
tribes receive annual payments for the dam's operations. The
Secretary of the Interior and other high-level Federal official
knew the tribe should receive compensation, but this never
happened.
In 1941, the tribes renewed their efforts, taking the
extraordinary step of sending a joint delegation cross country
by train to meet in Washington, DC. This meeting was with the
Commissioner of Indian Affairs, the issue, Grand Coulee Dam.
The meeting was held on December 10, 3 days after Pearl Harbor
was bombed. The Commissioner and his staff explained that the
war had become the Nation's priority and that Congress could
not be expected at such times to address the tribes' needs, but
they promised to do so. They promised they would help. When our
leaders returned home, they trusted that things would be made
right once the war was over, and this is the same war that we
sent our young men and women to help fight.
Understand, for the Spokane Tribe these were times our
people were completely dependent on the Bureau of Indian
Affairs [BIA]. We were allowed to do nothing without the BIA or
their approval. In words of one of the spiritual people back in
our tribe, in many of his comments, unfortunately he has passed
away recently, he would state that back then, BIA was God. We
could do nothing without asking their permission. We could do
nothing without them leading the way.
We were not experienced in the ways of American law,
politics and business. At that time, we were among the most
isolated tribes in the Nation. We were a ward of the Department
of Interior and the BIA. We were beginning to farm and ranch,
but our subsistence ways depended heavily on the river's
salmon, and this was most prominent.
At that time, we had no constitutionally formed government.
Even though the BIA's nearest agency was 100 miles away on the
Colville Reservation, we relied on the BIA officials for
managing details as simple as taking minutes at tribal
meetings. And put forth at that time, many of our elders still
did not speak English. They spoke in our Salish tongue.
So when the Commissioner of Indian Affairs told our people
he would do all he could to help, it carried great weight back
home. Most of the communication at this time was done in letter
form, so it had to be interpreted or read to our people.
Soon after the war's end in 1946, Congress enacted the
Indian Claims Commission Act. The ICCA allowed Indian tribes to
bring historic legal claims against the U.S. Government.
Several obstacles, unique to our tribe, made the task of filing
the ICCA claims unusually difficult. First, although the Act
required the Commission and the BIA to notify all tribes of the
claim that should be filed, we received no such notice. This
was due to the very remoteness of our tribe.
We learned of the ICCA only from the neighboring tribe. I
believe it was the Colville or the Kalispel and Coeur d'Alene
Tribes, by happenstance. This was only months before the 1951
deadline. Second, our leadership acted to retain a lawyer once
they learned of the ICCA, but the Commissioner of Indian
Affairs withheld his approval several months, costing our tribe
much critical time. Also, our constitutional government was
only finally formed 60 days prior to the 1951 deadline.
Eventually, the Spokanes filed the standard ICCA claim,
much like the claim filed by the Colville Tribe, but no mention
of Grand Coulee was ever made. It was understood to apply only
to historic claims, rather than claims for wrongful conduct
that was ongoing.
In 1972, the Secretary of the Interior established a task
force to address the Spokane and Colville Tribes, but
unfortunately the only thing that came out of this task force
was legal defenses. We trusted that the right thing would be
done when the task force report came out. It was not. We
trusted that the Congress would help by addressing our claims
side by side with the Colvilles. This has not happened yet.
Grand Coulee's impacts on the Spokane and Colville Tribes
is virtually identical, as were the tribes' histories of
dealing with the United States throughout all of the years.
While the tribes have survived decades of lost hope and broken
promises, we continue to fight for this today.
There is a simple historical fact that separates the two
tribes. It is the fact that led ultimately to the Colville
settlement of its claim. The settlement under the Colvilles
received $53 million in back damages and annual payments in
perpetuity that since 1994 have been $15 million to $20 million
each year. I think it would be unprecedented for one tribe to
receive such compensation from the United States on the exact
identical issue that a sister tribe would receive nothing.
In the mid-1960's, the Spokane Tribe, a trusting tribe that
had always come to the aid of the U.S. Government whenever
asked, entered into a cooperative relationship with the United
States, and in 1967 the tribe settled its Indian Claims
Commission case. The Colville's did not. Instead, the
Colville's persisted with their legal battles through the
1960's and beyond the days of the task force.
The Colville's had not raised the Grand Coulee claim either
in their original ICCA case any better than the Spokanes, but
their decades-long resistance to settlement enabled them to
benefit from a 1970's Indian Claims Commission case. In 1975,
the Commission ruled for the first time ever that it had
jurisdiction over cases where the wrong continued beyond the
ICCA's 1951 statutory deadline.
From this point forward, it seems our trusting ways have
been working against us, because the Colvilles, armed with that
new decision, in 1976 had sought and obtained permission to
amend their claim to include for the first time the Grand
Coulee. Our tribe, having come to terms with the United States
in the 1960's, had no case to amend.
In 1978, the Indian Claims Commission ruled that the United
States' conduct in building Grand Coulee Dam was unfair and
dishonorable. Therefore, they awarded the Colville Tribes over
$3 million for fisheries. In 1992, the Federal Circuit Court of
Appeals ruled that the Colvilles' claim for power values based
on the same standard was not barred. With that leverage, the
Colville's secured a settlement which in 1994 the Congress
approved Public Law 103-436.
Nine years ago, in the context of the Colville settlement,
I came here and testified to you, Congress, on my tribe's
behalf. I asked Congress to include our settlement with the
Colville's or to waive the statute of limitations so we may
also present our case. But rather than providing our requested
relief, Congress again directed the United States to negotiate
a fair settlement. Unfortunately, again Congress' directive
never happened.
Since then, I have participated in virtually all
discussions held between the tribe and the three separate BPA
administrators that had represented the United States. During
the past nine years, we have been forced to confront countless
tactics that run directly counter to Congress' direction and
intent, that our Grand Coulee claim be negotiated in good faith
and on its merits.
For the first several years, we met nothing but delay and
assertion of technical legal defenses. Members of Congress who
had been made aware of these failings admonished the United
States, stating in clear terms that the negotiation must be on
the merits of our claim without consideration of legal
defenses, and that definition negotiations must involve
flexibility.
After 9 years of fruitless negotiations, 9 years of broken
promises and delays, I am back here today requesting that
justice not go unanswered; that the U.S. Government recognize
our contributions and sacrifices to this great Nation. To
compensate one of two tribes devastated by Grand Coulee and not
the other has only compounded the injustice to our people and
prolonged this conflict. We believe it would be unprecedented
for Congress to only provide relief to one tribe and not the
other, when both are so similarly impacted.
We also make two quotes: Acting Associate Solicitor
Aschenbrenner, quote, ``The government overlooked the
prohibition against a guardian seizing property of its own
ward, and then profiting from the seizure.'' Also a quote from
Chief Justice Blackmun, ``Great nations like great men should
honor their word.''
In closing, Mr. Chairman and honorable members of the
committee, I ask that you listen to your hearts. We have no
place to turn, we have no place to go. We ask for our day of
justice. We have waited for this day for over 60 years. One
last comment from the words of the Spokane Tribe and in our
language, that goes [remarks in native tongue], listen to your
hearts what is on your heart.
Thank you.
[Prepared statement of Mr. Seyler appears in appendix.]
Senator Inouye. Thank you very much.
I have been advised that Mr. Funke would like to say a few
words.
Mr. Funke. Thank you Mr. Chairman.
Just a few words. Just to give you a sense of what was
going on in the 1930's on the Spokane Indian Reservation before
Grand Coulee was visited on these people. They were one of the
most isolated tribes in America. They were sitting there on the
shores of the Columbia River and the Spokane River. Their
reservation is bordered by and includes within the description
of the reservation the Columbia River and the Spokane River. It
is very unusual for the United States to do that. They did that
for the specific reason that these people were so tied to those
rivers that they included them within the boundary of the
Spokane Reservation. Very unusual.
Sitting there very isolated, intact Indian communities,
virtually untouched, and in come 7,800 non-Indian workers
plopped right in the middle of that whole operation to build
Grand Coulee. As the United States is moving to build Grand
Coulee as a public works project, and to begin production of
energy, they made promises to the tribe about how they would
protect their interests. They made promises to the tribe that
they would get a share of the power revenues. And then they
went ahead and built Grand Coulee and they have not paid the
tribe anything. They started flooding their lands and people
were being driven out of their homes.
As that was occurring their cemeteries were being buried,
their cultural sites and the best land on that reservation was
being inundated, then Congress saw fit to direct the Secretary
to designate a taking of those lands. It was not a bargain
deal. It was not a sale. It was a taking of Indian lands as
directed by Congress. Go in and designate what you want and
what you need, and then you, Secretary, determine what that is
worth. What he thought it was worth, thousands of acres of
land, cutting off their fish runs, disrupting their culture,
their economy, their health system, their social systems, their
entire life-way, what he thought that was worth was $4,700.
Well, then they turned around and started reaping billions
annually from the value of Grand Coulee. We are not against
people and so-called progress and the generation of value from
hydropower. But this Nation has benefited tremendously from the
generation of hydropower at Grand Coulee. It is called the
``economic engine'' of the Northwest.
I could spend hours telling you the value of Grand Coulee.
It is the keystone in the Federal Columbia River Power System.
It regulates water supply all the way from Canada into the
United States, all the way to the southern end. It regulates
the Transmission Inter-tie. It generates billions of kilowatts.
The only group that I can identify that really does not share
in the value of the generation of this power is the people that
this land was stolen from to build it. They are the only people
that do not benefit from it. Everybody else reaps millions,
billions. They got $4,700. That is atrocious.
Larry Aschenbrenner says that was an act of confiscation by
the guardian from land that belonged to the ward. And then the
United States turned around and converted it to their own use.
That is what the U.S. Associate Solicitor for Indian Affairs
had to say about that activity and about that transfer.
A lot is made about the fact, Senator, that the tribe did
not file Grand Coulee claims on time back in 1951; that the
Colvilles filed in 1951, why didn't the Spokanes? If they could
do it, why didn't you do it? Well, the fact of the matter and
if the truth were really revealed, neither tribe filed in 1951
to beat that statute of limitations. The Colvilles did not and
neither did the Spokane. Neither one of them did because they
were in discussions with the United States. They were being
represented by the United States saying their interests would
be protected. The United States was telling them they would
provide compensation and protect their interests. They were in
negotiation with the United States for management of the Grand
Coulee Reservoir. Nothing was being said about filing claims
through this entire period.
When the United States started asserting legal defenses in
the 1960's and 1970's, well, in 1967 the Spokane Tribe settled
their claims case, a claims case based on land. It did not have
anything to do with hydropower. At that point in the late
1960's and 1970's, neither tribe had filed. Then the United
States started for the first time to assert defenses. Instead
of continued negotiating, they began to both negotiate and
start to erect defenses against the tribes.
In 1975, the Navajo case was decided, which allowed claims
that had not been filed in 1951 by the statute, you could take
those claims and if you could relate them back to a wrong
occurring in 1951, you could add those to claims you did file
in 1951. So the Colvilles had not yet settled their case. They
went into the court and asked the court to amend their petition
to add Grand Coulee claims in 1976, not in 1951, but in 1976.
That is the legal difference between this tribe and the
Colvilles. They had an active case that they could amend in
1976 to relate back to 1951 or they would have been out of luck
probably, too.
So that is the only difference legally between these two
tribes. So one is compensated; the other is told, you did not
put that postage stamp on that envelope back in 1951, so you
are out of luck. We now have a defense against you called
navigational servitude. It does not have anything to do with
fairness. It does not have anything to do with honor. All it
has to do with is, navigational servitude, a defense. Fairness
and honor are not on the table where you are concerned because
you did not make that filing, or you did not have a case to
amend.
So just to illustrate the legal difference between the two
and why one is compensated today and Congress has settled with
one tribe, and the United States has not settled with the
Spokane.
Thank you.
Senator Inouye. Thank you very much, Mr. Funke.
Dr. Pace, would you care to add something to this?
Mr. Pace. Thank you, Mr. Chairman and members of the
committee. I will be very brief.
In terms of the benefits that have been derived, Senator
Cantwell mentioned the contribution in World War II. That was
the aircraft. The electricity that was produced at Grand Coulee
was used to produce the aircraft that turned the tide in the
Pacific. Another thing that the project contributed at that
time was readily available power to build the atomic bomb at
Hanford, so there was a national security contribution there.
I don't know if we have mentioned the Columbia Basin
Project. I have done some estimation. I think the fact that a
full water supply is provided for 500,000 acres has caused an
increase in the valuation of land on the order of $2.5 billion.
There are another 500,000 acres that potentially could have a
full water supply. So there have been significant benefits to
Eastern Washington.
The support the project provides for the electric system
serving the Western United States is unparalleled by any other
asset. There simply is no substitute for Grand Coulee. If Grand
Coulee was not available, the system operators would have far
less flexibility. The system would be far less reliable, much
less efficient, and be much more costly. So those are very
significant national, regional and extra-regional benefits that
are conferred by this project.
At the same time, I have worked for the Spokane Tribe on
their TANF program. I can tell you that the Spokane tribal
government is essentially on life support. They have slashed
millions of dollars out of their budgets between fiscal year
1999 and fiscal year 2002. Over $1.3 million has come out of
those budgets. That has impacted their ability to deliver
services to their tribal membership. It has impacted their
ability to perform a number of other governmental functions.
Their most recent round of budget cuts, looking forward to
fiscal year 2004, have again devastated the tribe, with another
$1.3 million coming out of their general fund just to balance
their budget.
Their health care facility operates on priority one status.
You cannot even get service unless you are essentially dying or
about to die. That is the state of affairs there.
So there are dramatic contributions that Chairman Seyler
and the people that have gone before him have made, and that
the people who come after him will make from the Spokane Tribe.
They have not shared in the substantial benefits of this
project.
Thank you.
Senator Inouye. I thank you very much, Dr. Pace.
Senator Cantwell.
Senator Cantwell. Thank you, Mr. Chairman.
I wondered if I could, Chairman Seyler, go back over a few
things, because I think it is important for people to
understand the damage that actually has been done in the area.
While we are talking about the Colville Federation and the
restitution that was given to them, sometimes we get lost in
all the numbers. Could you provide the committee some detail
about the tribal assets that have been inundated because of the
rising river?
Mr. Seyler. The Spokane Tribe, being historically living
along the river, only naturally started developing through the
years those farms, the orchards, those families as they built
their homes, used the cemeteries that historically lay our
ancestors were all covered over. Every year, that water as it
has fluctuated for the Nation's use opens those graves up,
opens up those village sites, opens up the cultural and
spiritual sites. Within the records, you will see that there
were other hydropower sites that could have been built
benefiting the Spokane Tribe. Those have been covered over.
That is probably some of the most.
Senator Cantwell. Was there any attempt to relocate the
graves during the construction of the dam?
Mr. Seyler. More so for the Colville Tribe because they had
more notice that it was going to happen. A few graves did get
relocated, just on a last minute, maybe 1 week before they were
covered over. But every year, we have people down on the boats
walking the shores, trying to protect those graves. That water
fluctuates on most years 90 feet. If you take 90 feet in a
valley, sometimes you have a 1-mile long beach, for 18 miles,
sometimes narrower, but sometimes 1 mile of beach. The Spokane
River is about 15 miles like that, so it is a constant looking
for those graves, because we do not know where they are at,
because historically we have been there for over 10,000 years.
Senator Cantwell. So compared to the Colvilles, you think
that maybe what, 90 percent of those graves were not moved?
Mr. Seyler. They are still there.
Senator Cantwell. And have been affected and continue to be
affected.
Mr. Seyler. As of last month, I can attest that graves, we
still had to relocate some as we found them coming up open.
Senator Cantwell. And Chairman Seyler, what about the
economic loss from salmon as a mainstay for the tribe?
Mr. Seyler. Both economically and just for life itself,
economically we cannot fish salmon. We have no place to go get
salmon if we wanted. The Colvilles do. They can go to Chief
Joseph and pull those fish out of the river. Other tribes can
go to where the Klamath Falls used to be, where the other
fishing sites used to be, and fish for those salmon. We do not
have that right anymore, unless we buy a State permit. We
should not have to do that.
Senator Cantwell. Prior to the construction of the dam,
though, the mainstay of economic resource for the tribe was
salmon fishing?
Mr. Seyler. Centered around salmon. Prior to the
construction, salmon benefited the tribes not just in
sustenance, but also it was a trading item. When times were
tough, we could take the salmon and trade with other tribes.
The economic value, we never sold the salmon because in our
teachings, you do not take anything more than you can eat. So
it is hard to put an economic value as far as sales of the
salmon because that was not our heritage. We were not allowed
to take something from the river if it was not for our own
provision. That is just our cultural way.
Senator Cantwell. In the 1940 directive by the Secretary of
the Interior on what is just and equitable compensation, I
think they came up with some number.
Mr. Seyler. $4,700.
Senator Cantwell. $4,700. I don't know if under any
scenario $4,700 would have been equitable justification. But
what do you think the number should be as far as payment to the
tribe as it relates to the impact of the Grand Coulee Dam and
the Federal Power Act?
Mr. Seyler. I think fairness would go back to the process
that was developed, and we know that there was also a tie to
the Colville legislation through the years. I have had to deal
with that. We feel that even they were cut short of what they
deserved. The $39.4 million that has been mentioned over the
years by the tribe is fair to us, not that it based on the
Colvilles is probably not enough, but that is something that we
could move forward with.
Over the years, we have had negotiations, and following the
identical discussions that the Colville Tribal Council had with
the U.S. Government, when they came to a loggerhead, the
Colville Tribe had a high, I guess BPA or the Government had a
low figure, and they just cut the baby right in half. That is
where they come up with their $57 million and their $15.25
million annually. There was no formula. They had no formula.
There was a formula created later to work around that number.
That came directly from their economist. My good friend and
chairman at that time, Eddie Pomantier, that came from them
directly and that was the method that was used.
Senator Cantwell. The damage done by Lake Roosevelt, which
has been specified as it related to the Colvilles and their
payments, was similar to the damage done from Lake Roosevelt to
the Spokanes?
Mr. Seyler. Identical, if not worse for the Spokanes,
because of the no-notice. I saw there was a video that was
done, and I cannot recall even what it was. Actually, it was
the first camera that came out of California, a video camera
that was colored. It showed the Colville Tribes taking the time
to remove those graves, taking the time to relocate their homes
and their churches and that. Where the Spokanes as the water
rose, we had to watch ours float down river.
Senator Cantwell. Thank you, Mr. Chairman.
Senator Inouye. Thank you very much.
I gather, Mr. Chairman, that at this moment the
negotiations between BPA and your tribe are not going on.
Mr. Seyler. That is correct.
Senator Inouye. Do you intend to resume these negotiations?
Mr. Seyler. This morning, both BPA and the Spokane Tribe
testified over at the House on this issue, and both parties
were asked that same question. Both parties indicated that they
would like to go back to the negotiating table. My comment to
that is that the tribe has been trying to negotiate this for
the last 60 years and just with one understanding is that
whoever negotiates for the Federal Government on this is that
they really understand what the term ``negotiation'' means.
That is not what we have found in the past, a take-it-or-leave-
it offer, but both parties show willingness at this time.
Senator Inouye. On the payment of the compensation, I
presume part of that will come from the Bonneville Power
Administration and part of it from the Government.
Mr. Seyler. Up until this point, it has been looked at just
from Bonneville. I think just recently they looked at other
forums. The Spokane tribal members do not care where it comes
from. They just feel that things need to be fairly and
honorably addressed. I think there are some real avenues that
could resolve this issue. Part of that answer, because of who
is receiving the rewards, Bonneville is part of that; maybe the
water and land settlement could be used. We have other thoughts
and ideas, but it is getting those onto the table and really
looked at carefully.
Senator Inouye. The bill, as you know, does not establish
the source of compensation payment. I presume that was done to
give you the flexibility to negotiate. If this committee can do
anything to bring this about or to expedite it, we would be
very happy to help.
Mr. Seyler. That is very much appreciated.
Senator Inouye. Do you have further questions?
Senator Cantwell. Mr. Chairman, if I could, to followup on
your comment, I believe that there have been many benefits from
the establishment of the Grand Coulee Dam, and obviously, a
history here that we have had the opportunity to look back on
both from the Colvilles and the experience that the Spokanes
have. So I guess at this point in time I am interested in
looking at restitution to the Spokanes. If that means looking
broader at the Treasury as opposed as to the Bonneville Power
Administration as a source, I am happy to consider a variety of
options.
What I think is important for today's hearing is that we
have had two courses of history here, two entities, sovereign
nations impacted in similar ways. I am not sure if we actually
weighed actual damages, we might have the most damage done
right before us today. And yet, the restitution was not paid.
So not only do we want to see that restitution, we want to look
back on Indian country history and say that there was equitable
access to restitution, equitable results, and not see future
generations viewing the films of a lost opportunity to preserve
the heritage and the history of a culture within the State of
Washington.
So I very much appreciate your attention to this important
issue and to Senator Murray being here as well today.
Senator Inouye. The record of this hearing will be kept
open for 2 weeks just in case you want to supplement your
remarks or to add anything.
Mr. Seyler. Just one last comment. I think it would only be
appropriate that not only everything be expected out of BPA,
because this country, the great country of the United States of
America, has also benefited from what the tribe lost, what we
gave. We gave everything for this country to survive the war,
to help it come out of the Depression and many other things.
Thank you.
Senator Inouye. I thank all of you very much for this most
enlightening hearing. I thank Senator Cantwell. I think this
has been very helpful. You have me very eager to move forward.
Senator Cantwell. Thank you, Mr. Chairman.
Senator Inouye. Thank you very much.
The hearing is adjourned.
Mr. Seyler. Thank you, Mr. Chairman. Thank you, committee.
[Whereupon, at 3 p.m. the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Hon. Maria Cantwell, U.S. Senator from Washington
Thank you, Senator Inouye, I greatly appreciate your willingness to
hold this important hearing and for your cosponsorship of this
legislation. You have been a consistent champion for establishing fair
and equitable settlements agreements that compensate sovereign Indian
nations harmed by actions of the U.S. Government. For this and other
efforts on behalf of Washington State tribes, I thank you.
I would also like to thank my friend and colleague Senator Murray
for her remarks in support of this bill. As you are all aware, Senator
Murray was instrumental in providing the Confederated Colville Tribe
with a fair and equitable settlement in 1994 for nearly identical
impacts to its reservation. I look forward to working with her as we
move this settlement agreement forward.
And of course I would like to thank Warren Seyler and the other
members of the Spokane Tribe and their representatives for coming
today. I know you have been fighting for just compensation for the
damages to your Reservation and way of life since construction of the
Grand Coulee Dam began in 1933. I recognize that it has been an
extremely frustrating process, and I hope this hearing will provide the
necessary catalyst to once and for all resolve the Spokanes claim
against the U.S. Government.
I would also like to take this opportunity to reiterate my
condolences to you and the tribe regarding the death of Bruce Wynne.
Bruce's dedication to his community was legendary, and his loss will be
felt not just in Washington State, but across the country. My thoughts
and prayers are with his family and the tribe at this difficult time. I
know Bruce spent a great deal of time trying to solve this very issue,
so it is my hope that we can act quickly to settle this long-standing
grievance which could serve as a legacy to Bruce's leadership.
Mr. Chairman, my goal for this hearing is to establish for the
record the harm done to the Spokane Tribe following construction of the
Grand Coulee Dam, and the obligation the Federal Government has to
compensate the Spokanes for these damages.
For more than one-half century, the Grand Coulee Project has made
an extraordinary contribution to this Nation. It helped pull the
economy out of the Great Depression. It provided the electricity that
produced aluminum required for airplanes and weapons that ensured our
national security. The Project continues to produce enormous revenues
for the United States, it is a key component of the agricultural
economy in eastern Washington, and plays a pivotal role in the electric
systems serving the entire western United States.
However, these benefits have come at a direct cost to tribal
property that became inundated when the U.S. Government built the Grand
Coulee dam. Before dam construction, the free flowing Columbia and
Spokane Rivers supported robust and plentiful salmon runs and provided
for virtually all of the subsistence needs of the Spokane Tribe. After
construction, the Columbia and Spokane rivers flooded tribal
communities, schools, and roads, and the remaining stagnant water
continues to erode reservation lands today.
The legislation that Senators Inouye, Murray, and I introduced in
July is similar to Senator Murray's 1994 bipartisan bill codified a
settlement and provided perpetual payments to the neighboring
Confederated Colville Tribes. To date, the Colville Tribes have
received over $180 million in payments for their lands inundated by
Lake Roosevelt.
This bill builds on the success of that successful settlement by
providing the Spokane Tribe of Indians' with compensation that is
directly proportional to the settlement afforded the Colville Tribes.
Specifically, the Spokane Tribe would receive 39.4 percent of the past
and future compensation awarded the Colville Tribes pursuant to the
1994 legislation. This percentage is based on the proportion of tribal
lands impacted after the Federal Government built the Grand Coulee
Project. S. 1438 also outlines the facts of the Spokane claim and
describes how the tribe will use any forthcoming compensation funds.
Mr. Chairman, if you will indulge me, I would like to read for the
record the findings forwarded by this legislation:
From 1927 to 1931, at the direction of Congress, the U.S. Army
Corps of Engineers investigated the Columbia River and its tributaries
to determine sites at which power could be produced at low cost.
The Corps of Engineers identified a number of sites, including the
site at which the Grand Coulee Dam is located; and recommended that
power development at those sites be performed by local governmental
authorities or private utilities under the Federal Power Act.
Under section 10(e) of that act, a licensee is required to
compensate an Indian tribe for the use of land under the jurisdiction
of the Indian tribe.
In August 1933, the Columbia Basin Commission, an agency of the
State of Washington, received a preliminary permit from the Federal
Power Commission for waterpower development at the Grand Coulee site.
In the mid-1930's, the Federal Government, which is not subject to
the Federal Power Act, Federalized the Grand Coulee Dam project and
began construction of the Grand Coulee Dam.
At the time at which the Grand Coulee Dam project was Federalized,
the Federal Government recognized that the Spokane Tribe and the
Confederated Tribes of the Colville Reservation had compensable
interests in the Grand Coulee Dam project, including compensation for
the development of hydropower; the extinguishment of a salmon fishery
on which the Spokane Tribe was almost completely financially dependent;
and the inundation of land with loss of potential power sites
previously identified by the Spokane Tribe.
In the act of June 29, 1940, Congress granted to the United States
all rights to Spokane Tribe and Colville Indian Reservations lands that
were required for the Grand Coulee Dam project; and various rights-of-
way over other land under the jurisdiction of Indian tribes that were
required in connection with the project. Additional provisions provided
that compensation for the land and rights-of-way was to be determined
by the Secretary of the Interior in such amounts as the Secretary
determined to be just and equitable.
In response to these provisions, the Secretary of the Interior paid
to the Spokane Tribe $4,700, and $63,000 to the Confederated Tribes of
the Colville Reservation.
In 1994, following 43 years of litigation before the Indian Claims
Commission, the United States Court of Federal Claims, and the United
States Court of Appeals for the Federal Circuit, Congress ratified an
agreement between the Confederated Tribes of the Colville Reservation
and the United States that provided for damages and annual payments of
$15,250,000 in perpetuity, adjusted annually, based on revenues from
the sale of electric power from the Grand Coulee Dam project and
transmission of that power by the Bonneville Power Administration.
In legal opinions issued by the Office of the Solicitor of the
Department of the Interior, a Task Force Study conducted from 1976 to
1980 ordered by the Committee on Appropriations of the Senate, and
hearings before Congress at the time at which the Confederated Tribes
of the Colville Reservation Grand Coulee Dam Settlement Act was
enacted, it has repeatedly been recognized that the Spokane Tribe
suffered damages similar to those suffered by, and had a case legally
comparable to that of, the Confederated Tribes of the Colville
Reservation; but that the 5-year statute of limitations under the act
of August 13, 1946 precluded the Spokane Tribe from bringing a civil
action for damages under that act.
The inability of the Spokane Tribe to bring a civil action before
the Indian Claims Commission can be attributed to a combination of
factors, including the failure of the Bureau of Indian Affairs to
carryout its advisory responsibilities in accordance with that act; and
an attempt by the Commissioner of Indian Affairs to impose improper
requirements on claims attorneys retained by Indian tribes, which
caused delays in retention of counsel and full investigation of the
potential claims of the Spokane Tribe.
As a consequence of construction of the Grand Coulee Dam project,
the Spokane Tribe has suffered the loss of the salmon fishery on which
the Spokane Tribe was dependent; identified hydropower sites that the
Spokane Tribe could have developed; and hydropower revenues that the
Spokane Tribe would have received under the Federal Power Act had the
project not been Federalized; and continues to lose hydropower revenues
that the Federal Government recognized were owed to the Spokane Tribe
at the time at which the project was constructed.
More than 39 percent of the land owned by Indian tribes or members
of Indian tribes that was used for the Grand Coulee Dam project was
land of the Spokane Tribe.
Mr. Chairman, the United States has a trust responsibility to
maintain and protect the integrity of all tribal lands within its
borders. When Federal actions physically or economically impact harm,
our nation has a legal responsibility to address and compensate the
damaged parties. Unfortunately, despite countless efforts, one-half
century has passed without justice to the Spokane people.
The time has come for the Federal Government to finally meet its
fiduciary responsibility for converting the Spokane tribe's resources
to its own benefit. I believe that the legislation we are proposing
today will catalyze the completion of a fair and equitable settlement
and put a closure to these matters. I was pleased to see similar
bipartisan legislation introduced earlier this year in the U.S. House
of Representatives and I am glad to see that the House bill also
received a hearing just this morning.
Again, thank you Mr. Chairman for holding this hearing and support
this important legislation. I look forward to working with you, the
Indian Affairs Committee, our Senate colleagues, and the Spokanes as
endeavor to develop a satisfactory and permanent settlement with all
parties involved.
______
Prepared Statement of Hon. Patty Murray, U.S. Senator from Washington
Good morning, Mr. Chairman, and thank you for this opportunity. I'm
proud to introduce to the committee the distinguished chairman of the
Spokane Tribal Business Council, Chairman Warren Seyler. He's a leading
figure in Washington's tribal communities, and I know his testimony
will be of great value to this committee.
Before I introduce him, I'd like to share a few ideas about S.
1438. Earlier this year, I joined with Senators Cantwell and Inouye in
offering legislation that would finally compensate the Spokane Tribe
for its contribution to the hydropower that is generated by the Grand
Coulee Dam.
Some of you will recall that I introduced similar legislation in
the 106th and 107th Congresses.
The Grand Coulee Dam is the largest electricity producer in the
United States. It provides electricity and water to the Columbia Basin
Project, which is one of the world's largest irrigation projects. For
more than 60 years, the Grand Coulee has been the backbone of the
Northwest's Federal power grid and our agricultural economy.
But for the Native peoples of this region, construction of the
Grand Coulee Dam came at a very high price. For the Spokane Tribe in
particular, it brought an end to a way of life.
The Spokane River was once a free-flowing waterway that supported
plentiful salmon runs. It became a barren stretch of slack water that
now erodes the southern lands of the reservation. In fact, the tribe's
reservation has been flooded on two sides.
Mr. Chairman, S. 1438 is not the first piece of legislation seeking
to compensate a Tribe for losses brought by construction of the Grand
Coulee Dam. In 1994, Congress passed similar settlement legislation to
compensate the neighboring Confederated Colville Tribes.
Since the 1970's, the Congress and Federal agencies have indicated
that both the Colville and Spokane Tribes should be compensated for
their losses. This legislation will provide a long overdue settlement
to the Spokane Tribe.
Mr. Chairman, it is now my pleasure to introduce Chairman Seyler to
the committee. First elected to the Spokane Tribal Business Council in
1990, Chairman Seyler also serves on the board of the Upper Columbia
United Tribes, which is involved in fish and management issues along
the Columbia River. He is also active in management issues at Lake
Roosevelt, a reservoir created when the Grand Coulee Dam was
constructed.
Finally, Mr. Chairman, I'd like to offer my condolences to the
Spokane Tribe. Last week the tribe--and indeed all of Indian country--
suffered a great loss with the passing of former Chairman Bruce Wynne.
Bruce led with his heart and had a remarkable ability to bridge
generations. His leadership, knowledge of history, and warm personality
will be missed, but his legacy continues in leaders like Chairman
Seyler.
Thank you.
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