Hoopa appendix supporting summary judgment - Schlosser Law Files

Mr. Schlosser.
16
STATEMENT OF THOMAS SCHLOSSER
Mr. SCHLOSSER. My name is Thomas Schlosser. I thank the committee
for the opportunity of submitting testimony on the Secretary’s
report.
I have been honored to serve as the litigation counsel for the
Hoopa Valley Tribe for over 20 years. During that time, I have represented
the Tribe in the Short litigation and in the litigation concerning
the Settlement Act.
I have several points I would like to make. First, the Secretary’s
report threatens a return to the situation the tribes were in prior
to passage of the Settlement Act. The Settlement Act was necessitated
by complex litigation among the United States, the Hoopa
Valley Tribe and a large number of individual Indians, most of
whom but not all, have become members of the Yurok Tribe.
The chairman mentioned the Karuk Tribe and there are a few
members of the Karuk Tribe who were involved in the Short litigation
and were held to be Indians of the reservation. It is a very
small fraction of the Karuk Tribe, I would guess less than 10 percent.
Whereas of the people who were held to be Indians of the reservation
who elected to join the Yurok Tribe in 1991, the base roll
of the Yurok Tribe was entirely made up of Indians of the reservation.
There is another large fraction of Indians of the reservation that
Mr. McCaleb referred to who chose to disaffiliate from both tribes,
the so-called lump sum option under section 6(d). The Secretary’s
report mistakes the Settlement Act as having primarily been a
boundary resolution act and instead suggests that the settlement
fund be administered for the mutual benefit of both tribes.
Boundary clarification was only a small part of this act and the
efforts to administer the fund for mutual benefit were dramatically
unsuccessful prior to the Settlement Act. For years, long proceedings
were necessary to get a tribal budget approved. Sometimes the
tribal budget would get approved in the last month of the fiscal
year because of Interior’s inability to adopt standards and to determine
whether things affected the reservation fairly. This led to conflicts
between rulings in the Short case and the Puzz case over
which kinds of expenditures were permissible.
For example, the Short case in 1987 held that money that was
distributed to the tribe for tribal governmental purposes did not
damage the Short plaintiffs, was not an injury to the Indians of the
reservation and did not invade their rights. The Puzz court, a district
court in the Northern District of California, held to the contrary,
that funds used by the Hoopa Valley Tribe did damage the
Indians of the reservation. So there are insufficient standards and
not enough expertise to make that recommendation work well. As
George Santayana said, ‘‘Those who cannot remember the past are
condemned to relive it.’’ There is an error found in Interior’s recommendation.
Under the Settlement Act, there are some benefits potentially
available to the Hoopa Valley and Yurok Tribes. Only 22 Short
plaintiffs were adjudicated to be Indians of the reservation in 1973,
so the court embarked on a long process which actually is still un-