Hoopa appendix supporting summary judgment - Schlosser Law Files

More documents

Recommendations

Info

the Assistant Secretary-Indian Affairs, any power the Special Trustee had must find its source in the Reform Act and the regulations implementing it. 4 The Board notes that 25 C.F.R. pt. 1200 provides it with jurisdiction “over the denial of a tribe’s request under Section 202 of the . . . Reform Act.” 44 IBIA 211. Those regulations are the only legal basis for the Special Trustee’s involvement in this matter. It therefore follows that the Board has jurisdiction here. This appeal involves a disagreement over distribution of tribal trust funds which the Board has jurisdiction over to assure statutory compliance. 25 C.F.R. § 115.806; 25 C.F.R. pt. 1200. The Trust Reform Act of 1994 has four parts. Subchapter I recognizes the United States’ trust responsibility and the duty to account for balances of Indian trust funds. Subchapter II authorizes withdrawals from trust funds programs. Subchapter III creates the position of Special Trustee for American Indians. Subchapter IV authorizes appropriations. The Special Trustee is a creation of Subchapter III of the Reform Act which has as its purposes: more effective management of and accountability for the Secretary’s trust responsibilities to tribes, the goal of reforming and carrying out in a unified manner the trust responsibilities, and overseeing certain reform efforts. See 25 U.S.C. § 4041-43. The Reform Act was adopted six years after the Hoopa-Yurok Settlement Act became law. Consequently, the Settlement Act makes no reference to the Reform Act and it gives no special authority to the Office of Special Trustee which was created after Congress passed the Settlement Act. This does not mean, however, that the Reform Act does not apply. 4 The Comptroller General of the United States in Opinion B-290233, issued October 22, 2002, 2002 U.S. Comp. Gen. LEXIS 265, concluded that the Department of the Interior Associate Deputy Secretary was an “employee” rather than an “officer” either principal or inferior of the Department, and thus was not subject to the Appointment Clause’s PAS or statutory delegation procedures. Accordingly, it is unclear that the Associate Deputy Secretary could ever have exercised the Secretary’s authority under the Hoopa-Yurok Settlement Act here. Hoopa Valley Tribe’s Petition For Reconsideration - 4
As a creature of the Reform Act, the authority and responsibilities of the Special Trustee are defined effective April 21, 2003, by Pt. 109, Chapter 11 of the Departmental Manual. “The Special Trustee exercises Secretarial direction and supervision, pursuant to the 1994 Reform Act, over of the Office of Special Trustee for American Indians.” Id. § 11.3 (emphasis added). The regulations adopted under the Trust Reform Act delineate that authority. The final rule adopting 25 C.F.R. Pt. 1200 notes that “the Act, for the first time, permits American Indian tribes to take tribal funds out of trust status with the Department of the Interior.” 61 Fed. Reg. 67931. The situation is analogous to Estate of Madeline Bone Wells, 15 IBIA 165 (1987). In Wells, the Agency Superintendent proposed to disperse funds from an IIM account for funeral expenses. However, after responsibility for Indian probate shifted to the Office of Hearings and Appeals, the IIM regulations were not updated. The Board held that the Superintendent’s authority had been superseded by the new authority vested in administrative law judges by the Departmental Manual and regulations. Similarly, here the Reform Act governs any action by the Special Trustee to allow withdrawal from old trust funds such as those contained in the Hoopa-Yurok Settlement Fund. Unlike the Secretary himself, or certain other Departmental officials, the Special Trustee only has authority to release Indian trust funds pursuant to Section 202 of the Reform Act and the related regulations. 5 The Hoopa-Yurok Settlement Act reserved to Congress the authority to further distribute resources such as this. 25 U.S.C. § 1300i-11(c). The Reform Act had not yet become law in 1988, but it clearly now does apply to the Special Trustee. The fact that the 5 This limited authority is underscored by the provisions of 25 C.F.R. pt. 115 which govern trust funds for tribes and individual Indians. See 66 Fed. Reg. 7094 (Jan. 22, 2001). 25 C.F.R. § 115.806 provides for BIA review of requests for distribution to assure statutory compliance. Section 115.815 governs requests for access to tribal trust funds and points to the provisions of 25 C.F.R. pt. 1200. Hoopa Valley Tribe’s Petition For Reconsideration - 5
Page 1 and 2:
Electronically Filed April 2, 2008
Page 3 and 4:
Exhibit 12 Notice to Convene Genera
Page 5 and 6:
Exhibit 37 Letter of Special Truste
Page 7 and 8:
2 Account 7153 - Proceeds of Labor,
Page 9 and 10:
App. 4
Page 14 and 15:
3 II 100TH CONGRESS 2D SESSION S. 2
Page 16 and 17:
5 3 1 (4) “Hoopa Valley Tribe”
Page 18 and 19:
7 SEC. 2. RESERVATIONS; PARTITION A
Page 20 and 21:
9 7 1 shall thereafter he held in t
Page 22 and 23:
11 1 SEC. 3. PRESERVATION OF SHORT
Page 24 and 25:
made pursuant to subsections (c) an
Page 26 and 27:
15 13 1 from applicants not include
Page 28 and 29:
1 can meet any of the enrollment cr
Page 30 and 31:
(4) Any person making an election u
Page 32 and 33:
21 19 1 (b) INTERIM CouNcn~EsT~LIsi
Page 34 and 35:
(5) Vacancies on the Interim Counci
Page 36 and 37:
25 1 merge with the Yurok Tribe and
Page 38 and 39:
27 25 1 SEC. 13. LIMITATIONS OF ACT
Page 194 and 195:
United States Department of the Int
Page 196 and 197:
REPORT TO CONGRESS HOOPA-YUROK, Pur
Page 198 and 199:
Subsequent to enactment of the Act,
Page 200 and 201:
IV. That Congress in coordination w
Page 202 and 203:
FINANCIAL INFORMATONA.L SHEET - “
Page 204 and 205:
—2— The balance due vas distrib
Page 206 and 207:
YIJROK TRII3E -- ~ ~ ~ ~ 15900 Hwy
Page 208 and 209:
BACKGROUND April 2, 2001 Page 3 rec
Page 210 and 211:
REPORT TO CONGRESS ON THE HOOPA-YUR
Page 212 and 213:
In 1892, Congress opened the Kiamat
Page 214 and 215:
esource management, and spending of
Page 216 and 217:
The HYSA established procedures for
Page 218 and 219:
Consistent with this reasoning, the
Page 220 and 221:
On April 18, 2000, a sharply divide
Page 222 and 223:
the funds. While the balance ofthe
Page 224 and 225:
DRAFT REPORT OF THE SECRETARY OF TH
Page 226 and 227:
the Kiamath River and Hoopa parcels
Page 228 and 229:
No. C 80 2908 TEH (N.D. Cal.). The
Page 230 and 231:
the Yurok Reservation on December 7
Page 232 and 233:
By memorandum to the Area Director,
Page 234 and 235:
United States, 982 F.2d 1312, 1321
Page 236 and 237:
claims brought pursuant to 25 U.S.C
Page 238 and 239:
secured under the Constitution ofth
Page 240 and 241:
After due consideration, the Secret
Page 242 and 243:
The existing governing documents of
Page 244 and 245:
On February 28, 2001, the Ninth Cir
Page 246 and 247:
S. HRG. 107-648 HOOPA-YUROK SETTLEM
Page 248:
C O N T E N T S Page Statements: Ca
Page 251 and 252:
2 STATEMENT OF HON. BEN NIGHTHORSE
Page 253 and 254:
4 ership and management of the Squa
Page 255 and 256:
6 The U.S. Court of Federal Claims
Page 257 and 258:
8 is not entitled to further distri
Page 259 and 260:
10 Mr. MCCALEB. Senator, I was hopi
Page 261 and 262:
12 never implemented. For example,
Page 263 and 264:
14 nues derived from one reservatio
Page 265 and 266:
Mr. Schlosser. 16 STATEMENT OF THOM
Page 267 and 268:
18 The committee said while it didn
Page 269 and 270:
20 big conference. In some places t
Page 271 and 272:
22 plus in timber revenues projecte
Page 273 and 274:
24 courts have said. No Indian trib
Page 275 and 276:
26 Be that as it may, we pray Congr
Page 278 and 279:
APPENDIX ADDITIONAL MATERIAL SUBMIT
Page 280 and 281:
31 Unfortunately for all concerned,
Page 349 and 350: 100
Page 351 and 352: 102
Page 358 and 359: II 108TH CONGRESS 2D SESSION S. 287
Page 360 and 361: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 362 and 363: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 364 and 365: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 366 and 367: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 368 and 369: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 370 and 371: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 372: 1 2 3 4 5 6 7 8 9 10 11 12 15 18 mo
Page 384 and 385: 43 C.F.R. § 4.318, which allows th
Page 388 and 389: Special Trustee’s letters make no
Page 390 and 391: In Short VI, plaintiffs pointed to
Page 411: CERTIFICATE OF SERVICE I hereby cer
show all

Hoopa appendix supporting summary judgment - Schlosser Law Files

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?