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Document:
Congressional Testimony Regarding the Grand Coulee Settlement Act, 1994,
Eddie Palmanteer, Jr.
August 2, 1994, Tuesday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 2402 words
HEADLINE: TESTIMONY AUGUST 2, 1994 EDDIE PALMANTEER, JR. CHAIRMAN CONFEDERATED TRIBES OF THE COLVILLE RESERVATION HOUE NATURAL RESOURCES/OVERSIGHT AND INVESTIGATIONS COLVILLE RESERVATION SETTLEMENT ACT
BODY:
TESTIMONY OF EDDIE PALMANTEER, JR.
CHAIRMAN
CONFEDERATED TRIBES OF THE COLVILLE RESERVATION
IN SUPPORT OF H.R. 4757
BEFORE
THE HOUSE OF REPRESENTATIVES COMMITTEE
ON NATURAL RESOURCES
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
AUGUST 2,1994
Chairman Miller, members of the Committee, I am Eddie Palmanteer, Jr., Chairman of the Business Council of the Confederated Tribes of the Colville Reservation. On behalf of the Colville Tribes, I would like to thank you for the opportunity to present testimony in support of H.R. 4757, the Confederated Tribes of the Colville Reservation Grand Coulee Dam Settlement Act.
I am particularly pleased to be able to testify in support of this historic settlement together with representatives from the Bonneville Power Administration, the United States Department of Justice, and the United States Department of the Interior, all of whom with different local and national interests support this legislation. We have litigated and negotiated with each other fairly, and have arrived at a settlement we all support. The settlement will end litigation between the Colville Tribes and the United States that has lasted over 40 years. It will, as much as possible, correct an injustice that has continued year after year for more than 50 years.
The Colville Reservation was established by President Grant on July 2, 1872. There are over 8,000 members of the Colville Tribes, a confederation of twelve aboriginal tribes and bands. Our Reservation is bounded on the west by the Okanogan River, and on the south and cast by the Columbia River. The Reservation is approximately 1.3 million acres. The land was chosen because it provided farming, hunting grounds, the Tribes' traditional salmon fisheries on the Columbia River and its tributaries, and abundant hydropower. In 1891 the United States required the Tribes to give up the northern portion of the Reservation, with the best agricultural land. When it did so it made specific commitments that tribal members would "enjoy without let or hindrance the right at all times freely to use all water power and water courses..."
The Grand Coulee dam, which was begun in 1933, was a great boon to the State of Washington and the Northwest, but a disaster to the Colville Tribes. Grand Coulee Dam is built in large part on the Colville Reservation. It irrigated hundreds of thousands of acres, but none on the Colville Reservation. Its construction denied the Colville Tribes the ability to use that site or any other site for its own power development. The Dam destroyed forever the mighty salmon runs that used to migrate to Kettle Falls on the upper Columbia River and to the tributaries on the Reservation.
The Colville people suffered uniquely as a result of the construction of Grand Coulee Dam. Two Colville towns, Inchelium and Keller, were inundated by the backwaters created when Grand Coulee Dam was built. Today they, with their hundreds of years of history, lie under the waters of Lake Roosevelt, as do the graves of many of our ancestors that could not be removed as the waters rose. In short, Grand Coulee Dam changed forever the livelihood and lives of our people and the very nature of the Colville Reservation. For this, the Colville Tribes received sixty three thousand dollars.
But, when Grand Coulee Dam was built, we were promised more. In 1920, Congress had passed the Federal Power Act, which authorizes the development of hydroelectric power in the United States, through the issuance of federal licenses to state or other public or private developers. Under Section 10(e) of the Federal Power Act, any licensee using Indian lands must pay to the Indian Tribe an annual payment for the use of its land.
The Grand Coulee Dam received its first funding and began construction under a Federal Power Commission permit, which would have assured the Colville Indians annual payments for their contribution to power. Later, Harold Ickes, who was both Secretary of Interior and Director of Public Works, took the project over as an exclusively federal project. At that time, a Congressional hearing was held on the Colville Reservation. A Colville representative testified that the United States had taken the Northern Half of the Colville Reservation with all the farming land, and was about to end our salmon fishing. He asked, how were the people to live. He presented letters showing that the Colville Tribes own to the center of the Columbia River, and said he thought the Colville Tribes were entitled to a 10% royalty on the power to be produced.
A few weeks later Harold Ickes, apparently as a direct reply to the Colville request, endorsed a series of letters saying that the Tribes should be paid the same annual payments from power they would have received if the project had remained one licensed under the Federal Power Act. The payments were to be computed in the same fashion as the payments already approved for Warm Springs and Flathead. But, with the completion of the project, and the coming of World War 11, this was never done. Although the Colville Reservation had been devastated, the entire payment to the Colville Tribes for their contribution to Grand Coulee remained sixty three thousand dollars.
The Colville Tribes have sought justice on this claim since the 1940's. In 1951 we brought suit under the Indian Claims Commission Act. Settlement efforts in the 1970's were blocked by disputes between the Department of Interior and the Corps of Engineers over legal defenses. When no settlement was reached, the Colville Tribes went back to court. In April of 1992, the Court of Appeals for the Federal Circuit unanimously held that the navigational servitude relied on by the Corps did not insulate the United States from liability in an Indian Claims Commission Act case. The Court sent the case back for trial, with instructions favorable to the Colville Tribes. At that point negotiations began.
The Settlement you have before you was not reached easily. The negotiations involved the Colville Tribes, which appointed a Committee from its council to participate in all negotiations, the Department of Justice, the Department of the Interior, and the Bonneville Power Administration. The negotiations required numerous meetings between the parties both in Washington D.C. and Washington State. Our lawyers had done extensive historical and legal research in the law suit, which were used in the settlement. The Colville Tribes also employed an economist, who specialized in hydropower, who presented a report showing that fair compensation to the Colville Tribes could be over a billion dollars in back payments and annual payments beginning at $88 million per year. The Bonneville Power Administration brought its considerable resources to the table, and had very different ideas of what would be a fair result.
Negotiations were thorough, with papers exchanged on legal liability, methods of computing compensation, questionable patenting of land at part of the dam site, riverbed ownership, fast land ownership, and comparisons with payments to other Tribes. The discussions were sometimes technical, and at times quite animated. However, the parties, throughout the process, maintained a civility and respect for each other, which in large part was responsible for the success of the negotiations. Always, the parties expressed their various views in good faith, and in an effort to resolve the issues that were advanced throughout the negotiations. In the end, the parties sought a solution that would meet the particular and unique needs of the parties. The final result was based on assessments of success in court, comparisons with payments to other Tribes under the Federal Power Act, a mixture of theories on compensation, and compromise.
We are quite proud to have been party to these negotiations. Early in our discussions, members of Congress suggested that we try to negotiate a settlement before coming to Congress, in the hope that some solution agreeable to all parties could be reached. While we entered those negotiations with some trepidation, it now is clear that that advice was well given, and well taken by the Colville Tribes.
The Settlement Agreement approved by this legislation resolves the claims of the Colville Tribes in Docket 181-D of the Claims Commission, the last Colville Claims under the Indian Claims Commission Act. There are two parts to the Settlement: (1) a judgment to be entered against the United States in the amount of $53 million for past use of the tribal resources and; (2) annual payments to be made by the Bonneville Power Administration starting at $15.25 million to be paid by March t, 1996, for continuing use of tribal resources. Then, before March 1 of each succeeding year, the Bonneville Power Administration is to pay to the Colville Tribes an amount adjusted up or down from the $15.25 millon according to a formula agreed to in the Settlement Agreement. That formula is based on hydroelectric generation at Grand Coulee Dam, the average price BPA receives for the sale of electricity, and the consumer price index.
The Settlement guarantees the Colville Tribes a minimum payment of $15.25 million annually. At the Tribe's option, any underrun produced by the formula is treated as a loan to be deducted from subsequent payments that would otherwise exceed $15.25 million. This element of the Settlement is particularly important to us. It provides a planning base that allows us to allocate funds in the future based upon some assurance that a minimum level of funding will be available. This provision, and the provisions of the formula, represent the kind of good faith respect for each party's needs which was an integral part of the negotiation.
The Settlement provides that the $53,000,000 for the past use of Tribal resources will be paid to the Tribes pursuant to 25 U.S.C. 1401, The Distribution of Judgment Funds Act. That Act requires the Secretary of the Interior to approve a tribal plan for the distribution of the funds. The plan is then submitted to Congress. If no action is taken in Congress, the plan is then implemented by the parties.
Under the Settlement Act, annual payments are received by the Tribes in the same manner as income for the use of any other Tribal resource, such as income from timber sales. This is appropriate because the payment represents compensation for the use of one of the Tribes most valuable natural resource, water power. These funds are budgeted by the Tribes annually, and the budget is approved by the Department of the Interior.
I can not conclude my testimony without spending a moment to describe to you what the Settlement means to the Colville people. I would like to tell you first how the Colville Tribes went about approving the Settlement.
We sent to each adult member a detailed package identifying the Settlement, its terms, and the pros and cons of the Settlement. After that, the Colville Tribes held meetings throughout the Reservation, and throughout Washington State off the reservation, to inform our members and to allow members an opportunity to question Tribal representatives who were involved in the negotiations. Finally, on April 16, the Colville Tribes held a general meeting, which has been our practice with all claims settlements, at Nespelem, the center of our Tribal government, where tribal members were invited to come and vote for, or against, the settlement. As I noted earlier, there are about 8,000 members of the Colville Tribes. Of those, about 5,000 are over eighteen years of age and eligible to vote. Remarkably, 2,353 adult members made the trip to Nespelem to vote. Of that number, 2,191 voted in favor of the Settlement.
To us, that April election day was more than an opportunity to vote on a Settlement. It was like a gathering of nations if you will, of our people, to vote on an issue that all felt was critical to the Colville Tribes. Members traveled from all over the Northwest and from the far corners of the United States to vote.
For our elders who have had to look at Grand coulee Dam since its construction over fifty years ago, the Settlement represented an end to a long ordeal. Each has personal memories of the losses suffered as a result of the Dam. It is for our elders, I believe, that many of our tribal members voted in favor of the Settlement. These elders had just waited too long for compensation to justify continued litigation.
The Settlement puts to rest the litigation, ends the acrimony between the United States and the Tribes over this issue, and provides resources which we and our children need.
Is it full compensation for our loss? The answer has to be no. You have to understand that we have looked at Grand Coulee Dam for a long time. We realize that for the Pacific Northwest the Grand Coulee Dam has made development and prosperity possible. But for us, it has been a disaster. How much is reasonable compensation for the loss of our fishery, our way of life, our towns where our elders lived? How much must be paid for the destruction of our mother's and father's graves? For some of our members no amount of money can fairly compensate the Tribes for this loss.
But is it a fair settlement? We think yes. We have always been a Tribe that seeks the reasonable center course in its negotiations and dealings. The United States can do nothing to resurrect the past or correct the actual harm that it has caused. Thus, we view the Settlement from a slightly different perspective. Yes, it is reasonable to move forward from the harms that occurred in the past. Yes, it provides a chance for the Colville Tribes to advance and to finally get some benefit from the giant structure on its Reservation. When we look at the dam for the first time, it will be something we receive a benefit from. Yes, the Settlement provides some measure of compensation to our elders who have suffered more than anyone else. Yes, it puts an end to litigation which has cost resources and time and kept open wounds festering for so many years.
Yes, the Colville Tribes accepts the Settlement as a reasonable and fair way to end this litigation.
If I can answer any questions, please feel free to ask.