Hoopa Valley Tribe v. United States

United States Court of Appeals for the Federal Circuit
2009-5084

HOOPA VALLEY TRIBE on its own behalf, and in its capacity
as parens patriae on behalf of its members,
OSCAR BILLINGS, BENJAMIN BRANHAM, JR.,
WILLIAM F. CARPENTER, JR., MARGARET MATTZ DICKSON,
FREEDOM JACKSON, WILLIAM J. JARNAGHAN, SR.,
JOSEPH LEMIEUX, CLIFFORD LYLE MARSHALL,
LEONARD MASTEN, JR., DANIELLE VIGIL-MASTEN,
LILA CARPENTER and ELTON BALDY,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant/Third Party Plaintiff-
Appellee,

v.

YUROK TRIBE,

Third Party Defendant-Appellee.

Thomas P. Schlosser, Morisset, Schlosser & Jozwiak, of Seattle, Washington,
argued for plaintiffs-appellants. With him on the brief was Thane D. Somerville.

Mary Gabrielle Sprague, Attorney, Environment & Natural Resources, Appellate
Section, United States Department of Justice, of Washington, DC, argued for
defendant/third party plaintiff-appellee. With her on the brief was John C. Cruden, Acting
Assistant Attorney General.

Jonathan L. Abram, Hogan & Hartson LLP, of Washington, DC, argued for third
party defendant-appellee.

Appealed from: United States Court of Federal Claims

Judge Thomas C. Wheeler
 United States Court of Appeals for the Federal Circuit
2009-5084

HOOPA VALLEY TRIBE on its own behalf, and in its capacity as parens patriae on
behalf of its members, OSCAR BILLINGS, BENJAMIN BRANHAM, JR., WILLIAM F.
CARPENTER, JR., MARGARET MATTZ DICKSON, FREEDOM JACKSON, WILLIAM
J. JARNAGHAN, SR., JOSEPH LEMIEUX, CLIFFORD LYLE MARSHALL, LEONARD
MASTEN, JR., DANIELLE VIGIL-MASTEN, LILA CARPENTER and ELTON BALDY,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant/Third Party Plaintiff-
Appellee,

v.

YUROK TRIBE,

Third Party Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 08-CV-072, Judge Thomas C.
Wheeler.

___________________________

DECIDED: March 9, 2010
___________________________

Before LINN, FRIEDMAN, and MOORE, Circuit Judges.

Opinion for the court filed by Circuit Judge MOORE. Dissenting opinion filed by Circuit
Judge FRIEDMAN.

MOORE, Circuit Judge.

The Hoopa Valley Tribe, on its own behalf and acting as parens patriae, and

twelve members of the Hoopa Valley Tribe (collectively, Hoopa Valley) appeal from a

final decision of the United States Court of Federal Claims. See Hoopa Valley Tribe v.
United States, 86 Fed. Cl. 430 (2009). The Court of Federal Claims held that Hoopa

Valley lacks standing to challenge the distribution of trust funds to the Yurok Tribe, and

the court entered judgment in favor of the government. For the reasons set forth below,

we agree that Hoopa Valley lacks standing but vacate and remand with instructions to

dismiss Hoopa Valley’s complaint without prejudice.

BACKGROUND

This case relates to the government’s distribution of revenue derived from an

Indian reservation. In 1876, President Grant set aside a square tract of land in Northern

California as the Hoopa Valley Indian Reservation, which was inhabited mostly by

Hoopa Valley Indians. President Harrison extended this reservation in 1891 to include

an additional tract of land that was inhabited mostly by Yurok Indians. Both tribes, as

well as other individuals, shared this enlarged reservation (the Joint Reservation), which

was rich in timber resources and produced substantial revenue. The United States,

through the Department of the Interior (DOI), administered this revenue as trustee of the

beneficiaries and began distributing the revenue by 1955. Importantly, DOI distributed

the revenue only to enrolled members of the Hoopa Valley Tribe, which the Hoopa

Valley Indians formed in 1950.

DOI’s discriminatory distribution of revenue prompted what became known as the

Short litigation. In 1963, individual Indians not sharing in the revenue, comprised mostly

of Yurok Indians, sued the United States for breach of fiduciary duty. The United States

Court of Claims ruled in favor of these Indians, holding that the Joint Reservation was

“an enlarged, single reservation incorporating without distinction its added and original

tracts upon which the Indians populating the newly-added lands should reside on an

2009-5084 2
equal footing with the Indians theretofore resident upon it.” Short v. United States, 486

F.2d 561, 567 (Ct. Cl. 1973) (Short I). After Short I, DOI—through its Bureau of Indian

Affairs—distributed 30% of the unallotted revenue to enrolled Hoopa Valley Tribe

members because these members comprised about 30% of all potential “Indians of the

Reservation.” DOI retained the remaining 70% in an escrow fund.

The Short litigation spanned several more years and resulted in numerous

judicial opinions. For example, in 1981, the Court of Claims remanded for a

determination of which plaintiffs constituted “Indians of the Reservation.” See Short v.

United States, 661 F.2d 150, 159 (Ct. Cl. 1981) (Short II). In 1983, we upheld the trial

court’s standards for making this determination, emphasizing that “all we are deciding

are the standards to be applied in determining those plaintiffs who should share as

individuals in the monies from the Hoopa Valley Reservation unlawfully withheld by the

United States from them (from 1957 onward).” Short v. United States, 719 F.2d 1133,

1143 (Fed. Cir. 1983) (Short III). We also clarified that our decision “will obtain only for

the years until final judgment, and for the years to come while the situation in the

Reservation remains the same subject of course to births and deaths.” Id. The United

States Claims Court subsequently concluded that qualified plaintiffs were entitled to “the

share they would have received had the distributions been made in a non-discriminatory

manner.” Short v. United States, 12 Cl. Ct. 36, 41 (1987) (Short IV).

In 1988, in an effort to resolve the dispute relating to the ownership and

management of the Joint Reservation, Congress passed the Hoopa-Yurok Settlement

Act (the Act), Pub. L. No. 100-580, 102 Stat. 2924 (codified as amended at 25 U.S.C.

§ 1300i et seq. (2006)). The Act expressly preserved the entitlements established

2009-5084 3
under, and any final judgment rendered in, the Short cases. 25 U.S.C. § 1300i-2. But

the Act also partitioned the Joint Reservation into the Hoopa Valley Reservation and the

Yurok Reservation. Id. § 1300i-1. The Act conditioned this partition on the Hoopa

Valley Tribe “adopt[ing], and transmit[ting] to the Secretary, a tribal

resolution . . . waiving any claim such tribe may have against the United States arising

out of the provisions of this subchapter.” Id. § 1300i-1(a)(2)(A). Hoopa Valley passed

this resolution on November 28, 1988, and the partition was effected upon publication of

the resolution in the Federal Register on December 7, 1988.

Importantly, the Act established a fund (the Settlement Fund) that included all

undistributed revenue from the Joint Reservation being held in escrow funds and “all

accrued income thereon.” Id. § 1300i-3(a). For purposes of distributing money from the

Settlement Fund, the Act instructed DOI to create a roll (the Settlement Roll) of all

persons that were Indians of the Reservation and “(A) who were born on or prior to, and

living upon, October 31, 1988; (B) who are citizens of the United States; and (C) who

were not, on August 8, 1988, enrolled members of the Hoopa Valley Tribe.” 1 Id.

§ 1300i-4(a)(1). Under § 1300i-5, DOI gave notice to “each person eighteen years or

older on such roll of their right to elect” enrollment in either the Hoopa Valley Tribe or

the Yurok Tribe, subject to the satisfaction of certain criteria. Rather than elect

membership in either tribe, individuals could also elect to receive a lump sum payment

out of the Settlement Fund in the amount of $15,000. Id. § 1300i-5(d).

1
All twelve individual members of the Hoopa Valley Tribe that are named
plaintiffs in this case were enrolled members of the Hoopa Valley Tribe on August 8,
1988.

2009-5084 4
 The Act expressly set forth other mechanisms for distributing money out of the

Settlement Fund. With respect to the Hoopa Valley Tribe, the Act provided as follows:

[T]he Secretary shall immediately pay out of the Settlement Fund
into a trust account for the benefit of the Hoopa Valley Tribe a
percentage of the Settlement Fund which shall be determined by
dividing the number of enrolled members of the Hoopa Valley Tribe
as of the date of the promulgation of the Settlement Roll, including
any persons enrolled pursuant to section 1300i-5 of this title, by the
sum of the number of such enrolled Hoopa Valley tribal members
and the number of persons on the Settlement Roll.

Id. § 1300i-3(c). The Act conditioned payment of the Tribe’s percentage of the

Settlement Fund upon execution of the waiver discussed above. Id. §1300i-1(a)(2)(A)

(requires “waiving any claim such tribe may have against the United States”). After

Hoopa Valley passed the resolution waiving its right to bring suit against the United

States with respect to provisions of the Act, DOI paid the Tribe its allotted amount from

the Settlement Fund—about 40% of the Settlement Fund or about $34 million. The Act

included a similar provision for the Yurok Tribe:

the Secretary shall pay out of the Settlement Fund into a trust account for
the benefit of the Yurok Tribe a percentage of the Settlement Fund which
shall be determined by dividing the number of persons on the Settlement
Roll electing the Yurok Tribal Membership Option pursuant to section
1300-5(c) of this title by the sum of the number of the enrolled Hoopa
Valley tribal members established pursuant to subsection (c) of this
section and the number of persons on the Settlement Roll, less any
amount paid out of the Settlement Fund pursuant to section 1300i-5(c)(3)
of this title.

Id. § 1300i-3(d). Section 1300-5(c)(3) also provided for payment of either $5,000 or

$7,500 out of the Settlement Fund to individuals electing membership in the Yurok

Tribe, depending on the individual’s age. Lastly, under § 1300i-6(a), “[a]ny funds

remaining in the Settlement Fund . . . shall be paid to the Yurok Tribe and shall be held

by the Secretary in trust for such tribe.”

2009-5084 5
 The Act conditioned “apportionment of funds to the Yurok Tribe as provided in

sections 1300i-3 and 1300-i6” on the Yurok Tribe “adopt[ing] a resolution waiving any

claim such tribe may have against the United States arising out of the provisions of this

subchapter.” Id. § 1300i-1(c)(4). The Yurok Tribe adopted a resolution with a waiver

that the United States deemed unsatisfactory, and the Yurok Tribe filed a takings claim

against the United States. The Yurok Tribe ultimately lost its case, see Karuk Tribe of

Cal. v. Ammon, 209 F.3d 1366 (Fed. Cir. 2000), and a substantial amount of money

remained in the Settlement Fund. Hoopa Valley’s suit in this case concerns the

remainder of the money in the Settlement Fund.

In March 2002, DOI submitted a report and testified before the Senate Indian

Affairs Committee regarding what to do with the remainder in the Settlement Fund. See

25 U.S.C. § 1300i-11(c). According to DOI, the Hoopa Valley Tribe “received their [sic]

portion of the benefits as enumerated within the Act” and thus “is not entitled [to] any

further portion of funds or benefits under the existing Act.” J.A. 246. DOI also

concluded that “the Yurok Tribe did not meet the waiver conditions of the Act and is

therefore not entitled to the benefits enumerated within the Act.” Id. at 247.

Nevertheless, DOI recommended that the remainder should not revert to the general

fund of the U.S. Treasury. Id. at 247, 282. Rather, DOI recognized that “substantial

financial and economic needs currently exist within both Tribes and their respective

reservations.” Id. at 282. Accordingly, DOI recommended that “the Settlement Fund

should be administered for the mutual benefit of both Tribes and their respective

reservations, taking into consideration prior distributions to each Tribe from the Fund,”

and that “the monies remaining in the Settlement Fund should . . . be distributed to one

2009-5084 6
or both Tribes in some form.” Id. DOI sought further instruction and/or legislation from

Congress on this issue, but no such legislation was enacted.

In 2007, after reviewing the situation and hearing from both tribes, Ross O.

Swimmer, Special Trustee for American Indians, informed both tribes that DOI would

distribute the remainder in the Settlement Fund to the Yurok Tribe, provided that the

Yurok Tribe submitted a new, satisfactory waiver. The Yurok Tribe complied and

received the remainder in the Settlement Fund, which had grown from about $37 million

to more than $80 million.

Hoopa Valley subsequently sued the United States, alleging breach of fiduciary

duty arising from the distribution of the remainder in the Settlement Fund only to the

Yurok Tribe. According to Hoopa Valley, the Yurok Tribe’s waiver was invalid. Hoopa

Valley moved for summary judgment; the government filed a motion to dismiss, or in the

alternative for summary judgment. The government also filed a third-party complaint

seeking judgment against the Yurok Tribe if the Court of Federal Claims concluded that

the disbursement was improper. The Court of Federal Claims granted the government’s

motion for summary judgment on the basis that Hoopa Valley lacks standing.

Specifically, the court determined that Hoopa Valley cannot show that it suffered an

injury in fact. The Court of Federal Claims entered judgment in favor of the government,

and Hoopa Valley appeals.

DISCUSSION

We have jurisdiction under 28 U.S.C. § 1295(a)(3). We review the Court of

Federal Claims’ grant of summary judgment de novo. Winstar Corp. v. United States,

64 F.3d 1531, 1539 (Fed. Cir. 1995). Also, “[w]hether a plaintiff has standing to bring

2009-5084 7
suit is likewise a question of law, reviewed de novo.” S. Cal. Fed. Sav. & Loan Ass’n v.

United States, 422 F.3d 1319, 1328 (Fed. Cir. 2005). “Standing is a threshold

jurisdictional issue that implicates Article III of the Constitution.” Id. According to the

Supreme Court, “the irreducible constitutional minimum of standing contains three

elements”: injury in fact, causation, and redressability. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560–61 (1992). With respect to the first element, “the plaintiff must have

suffered an injury in fact—an invasion of a legally protected interest which is (a)

concrete and particularized . . . and (b) actual or imminent, not conjectural or

hypothetical.” Id. at 560 (citations omitted) (internal quotation marks omitted). Hoopa

Valley, the party invoking jurisdiction, bears the burden of establishing the elements of

standing. Id. at 561.

Hoopa Valley contends that it is a beneficiary of—i.e., had a legally protected

interest in—the Settlement Fund and that it was injured by DOI’s distribution of the

remainder in the Settlement Fund to the Yurok Tribe. According to Hoopa Valley, it is a

direct beneficiary because the remainder was derived from timber resources taken from

the Hoopa Valley Reservation. Furthermore, Hoopa Valley maintains that its claims

“are mirror images of claims approved by this Court in the Short litigation” and that

“[a]bsent valid distributions complying with the Settlement Act or other statute, the

Secretary was bound to hold, invest, and administer the Settlement Fund as Indian trust

funds for the benefit of all Indians of the Reservation, including the Hoopa Plaintiffs.”

Appellants’ Br. 17–18. The government responds that the Hoopa Valley Tribe was no

longer a beneficiary after it received its share of the Settlement Fund in 1991 and that

individual Hoopa Valley Tribe members were never beneficiaries of the Settlement

2009-5084 8
Fund. These arguments by the government form the basis of the Court of Federal

Claims’ decision. See Hoopa Valley, 86 Fed. Cl. at 435–36.

We agree with the Court of Federal Claims that Hoopa Valley lacks standing

because it cannot show an injury in fact. The Hoopa Valley Tribe waived any claim

against the government arising from the Act, received its share of the Settlement Fund,

and retained no entitlement to the remainder in the Settlement Fund. As such, at the

time DOI distributed the remainder to the Yurok Tribe, the Hoopa Valley Tribe was not a

beneficiary of, and had no legally protected interest in, the Settlement Fund. Moreover,

Hoopa Valley’s reliance on the earlier Short litigation is inapposite because entitlement

to the Settlement Fund is dictated by the provisions of the Act itself, and Hoopa Valley

received all of the money to which it was entitled under the Act. Thus the Hoopa Valley

Tribe cannot show an injury in fact based on DOI’s distribution. Likewise, individual

members of the Hoopa Valley Tribe have no individual entitlement to the Settlement

Fund. The Act recognized only two forms of direct distributions to individuals: (1) those

individuals not electing membership in either the Hoopa Valley Tribe or the Yurok Tribe,

see 25 U.S.C. § 1300i-5(d); and (2) individuals electing membership in the Yurok Tribe,

see id. § 1300i-5(c)(3). Furthermore, the corresponding Senate Report explained that

the Act “should not be considered in any fashion as a precedent for individualization of

tribal communal assets” and should “in no way . . . be construed as any recognition of

individual rights in and to the reservation or the funds in escrow.” S. Rep. No. 100-564,

at 2, 15 (1988). The Court of Federal Claims’ summary is particularly apt: “Simply put,

the Act provides no mechanism for individual Hoopa Valley Tribe members to receive

payment directly from the United States.” Hoopa Valley, 86 Fed. Cl. at 436. Because

2009-5084 9
we conclude that Hoopa Valley lacks standing, we do not address the government’s

alternative arguments, including specifically that even if the twelve members of the

Hoopa Valley Tribe have standing, the Hoopa Valley Tribe lacks standing as parens

patriae on behalf of its members.

Although we agree with the court’s determination that Hoopa Valley lacks

standing, we nevertheless believe that the Court of Federal Claims, which entered

judgment in favor of the government, should have dismissed Hoopa Valley’s complaint

without prejudice. Indeed, the government concedes that dismissal for lack of

jurisdiction is appropriate and requests that we remand for this purpose. Accordingly,

we vacate the Court of Federal Claims’ judgment in favor of the government and

remand with instructions for the court to dismiss Hoopa Valley’s complaint without

prejudice.

VACATED and REMANDED

COSTS

No costs.

2009-5084 10
 United States Court of Appeals for the Federal Circuit

2009-5084

HOOPA VALLEY TRIBE on its own behalf, and in its capacity as parens patriae on
behalf of its members, OSCAR BILLINGS, BENJAMIN BRANHAM, JR., WILLIAM F.
CARPENTER, JR., MARGARET MATTZ DICKSON, FREEDOM JACKSON, WILLIAM
J. JARNAGHAN, SR., JOSEPH LEMIEUX, CLIFFORD LYLE MARSHALL, LEONARD
MASTEN, JR., DANIELLE VIGIL-MASTEN, LILA CARPENTER and ELTON BALDY,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant/Third Party Plaintiff-
Appellee,

v.

YUROK TRIBE,

Third Party Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 08-CV-072, Judge Thomas C.
Wheeler.

FRIEDMAN, Circuit Judge, dissenting.

I would affirm the Court of Federal Claims’ grant of summary judgment for the

United States, thereby dismissing the complaint, but not on the court’s ground that the

appellants lack standing to bring their claims. I would affirm on the alternative ground,

which the record supports, that the appellants have failed to state a claim on which relief

can be granted. We may affirm the judgment of that court on any ground the record

supports, whether or not that court relied upon that ground or whether the parties
asserted that ground. See Granite Mgmt. v. United States, 416 F.3d 1373, 1378 (Fed.

Cir. 2005).

I

The rationale of the Court of Federal Claims’ lack-of-standing ruling is that the

appellants “have already received their full entitlement to the Fund and thus have no

‘injury in fact.’” That court stated:

The Hoopa Valley Tribe ultimately received more than
$34 million from the Fund, the amount determined to be
Hoopa’s entitlement pursuant to the Act.

Thus, Plaintiffs cannot show that an “invasion of a
legally protected interest” occurred in this matter to establish
an “injury in fact.” The Hoopa Valley Tribe already received
its share of the Fund in 1991; only the Yurok were entitled to
monies remaining in the Fund in 2007. In short, Plaintiffs
already have received the amount of the Fund to which they
are entitled, and could not be injured by distribution of
monies to which they have no right.

Hoopa Valley Tribe v. United States, 86 Fed. Cl. 430, 436 (2009) (app. citation omitted).

The appellants, however, do not contend that the distribution to the Yurok Tribe

violated the Hoopa Valley Tribe’s distribution rights under the Settlement Act. They

contend that, under that Act and 25 U.S.C. § 407, the funds distributed to the Yurok

Tribe were being held by the federal government as Indian trust funds, and that the

distribution the Secretary of the Interior made was a breach of that trust because it

violated the Settlement Act. Although the alleged breach of trust was based on an

alleged violation of the Settlement Act, that does not make the present claim any the

less one for breach of trust. As the appellants stated in their brief on the merits, “Hoopa

Plaintiffs seek recovery of damages resulting from a breach of trust committed by the

United States.” The fact that the Hoopa Valley Tribe may have received all it is entitled

2009-5084 2
to under the Settlement Act does not, automatically or necessarily, eliminate the present

independent claim for additional money based on the government’s alleged breach of

trust in distributing the funds to the Yurok Tribe.

At oral argument, it was pointed out to government counsel that if the Hoopa

Valley Tribe has no standing to assert its present breach of trust claim then, even if it

has a valid claim, there could be no way to assert it. Government counsel replied that

this point raises a separation of powers issue, and that if the Secretary had committed a

breach of trust, it was for the President to take appropriate action against the Secretary.

Although such presidential action might assuage the Hoopa Valley Tribe members’

emotional concerns, it would not satisfy their financial ones. It was the latter, not the

former, that presumably led the Hoopa Valley Tribe to file the present suit seeking to

recover damages from the United States for a breach of trust.

II

The Hoopa Valley Tribe’s breach of trust claim rests primarily on its interpretation

of a provision of the Settlement Act that provides:

(4) The—
(A) apportionment of funds to the Yurok Tribe as
provided [in this title] . . . shall not be effective unless and
until the Interim Council of the Yurok Tribe has adopted a
resolution waiving any claim such tribe may have against the
United States arising out of the provisions of this [Act].

25 U.S.C. §§ 1300i-1(c)(4)(A), -1(c)(4)(D).

The Hoopa Valley Tribe contends that, under this provision, the Yurok Tribe’s

right to receive its share of the fund was contingent upon the Yurok Tribe not filing suit

against the United States based upon the Settlement Act, and that it forfeited that right

when it filed its takings claim in 1992. The Hoopa Valley Tribe argues that the United

2009-5084 3
States committed a breach of trust by distributing the Yurok Tribe’s portion of the

settlement fund to the Yurok Tribe in 2007 after the tribe had executed the waiver

following the loss of its takings suit. The Hoopa Valley Tribe stresses that, for many

years, the Interior Department had taken the position that, once the Yurok Tribe filed its

takings claim, the provisions quoted above precluded the tribe from effecting a valid

waiver; and that Interior made the distribution only after it had changed its position on

this issue in 2007 and permitted the Yurok Tribe to execute the waiver and receive the

funds.

The Settlement Act contains a parallel provision dealing with waiver of claims by

the Hoopa Valley Tribe, which states:

(2)(A) The partition of the joint reservation as provided in
this subsection, and the ratification and confirmation as
provided by section 1300i-7 of this title, shall not become
effective unless, within 60 days after October 31, 1988, the
Hoopa Valley Tribe shall adopt, and transmit to the
Secretary, a tribal resolution:
(i) waiving any claim such tribe may have against the
United States arising out of the provisions of this subchapter
....

25 U.S.C. § 1300i-1(a)(2)(A).

There is a critical difference between the waiver provisions covering the two

tribes. The Hoopa Valley Tribe is required to execute its waiver “within 60 days after the

date of the enactment” of the Act. The Yurok waiver provision, however, contains no

time limit but requires only that the waiver be adopted before there is any

“apportionment of funds to the Yurok Tribe.”

Both waiver provisions were designed to protect the government financially by

insuring that, after it had made the Settlement Act distributions to the two tribes, it would

2009-5084 4
not thereafter be subjected to damages for making those payments. The method the

Settlement Act used to accomplish that objective was to require each tribe to waive

such claims before it could receive its payment.

That is precisely what occurred here. The Hoopa Valley and Yurok tribes each

received its share of the Settlement Act fund only after it had executed a waiver of any

claims against the United States based on the Settlement Act. Under this analysis, it is

irrelevant that, although the Hoopa Valley Tribe executed its waiver shortly after the

Settlement Act was enacted, the Yurok Tribe did not do so until years later, after the

latter had unsuccessfully asserted its takings claim against the United States. In both

instances, the United States did not distribute the tribe’s share of the Settlement Fund

until after the tribe had waived any claim it had against the United States based on the

Settlement Act.

The Hoopa Valley Tribe contends, however, that, under the Settlement Act, the

government had no authority to make any distribution to the Yurok Tribe once the latter

had filed its takings suit against the United States. Although the Interior Department

had taken this same position over a considerable period—a fact the Hoopa Valley Tribe

relies on heavily as supporting its statutory argument—Interior reexamined and

changed its position in 2007. It ruled that it would distribute the Yurok Tribe’s portion of

the Settlement Fund if the tribe executed a waiver, which the tribe promptly did.

As Interior explained to the Chairmen of the two tribes:

Neither the Act nor its legislative history specifies
whether proceeding under one provision would preclude the
Yurok Tribe from proceeding under the other, i.e., whether
bringing a takings claim and providing a waiver, actions both
authorized under the Act, were mutually exclusive. For a
number of reasons, we conclude that the takings litigation in

2009-5084 5
 Karuk Tribe did not result in the Yurok Tribe’s forfeiting the
benefits established in the Act. For example, the Act does
not specify a time limitation, like the limited period to bring a
constitutional challenge, on the ability to provide a waiver.
Moreover, the Act’s Yurok waiver provision is not limited
solely to the constitutionally-based property claims
authorized by the Act and litigated by the Yurok Tribe. The
Act did not provide any contingent distribution arrangements
if the Yurok Tribe chose to assert a takings claim.
Fundamentally, nothing in the Act states that the Yurok
Tribe’s choosing to litigate its takings claim would cause the
Tribe to forfeit the benefits under the Act.

Because Congress acted as a trustee in passing the
Act and because the Hoopa Valley Tribe received already all
of its benefits established by the Act, including its designated
share of the Fund, we believe that any ambiguity in the Act
should be read in favor of providing the other beneficiary, the
Yurok Tribe, with its benefits established by the Act.
Because the Act specifically authorized either Tribe to bring
certain claims against the United States yet did not provide
for an alternative distribution of benefits if a Tribe took such
an action, we further believe that an interpretation of the Act
that avoids penalizing a beneficiary for taking an authorized
action and that avoids potentially troublesome constitutional
issues to be necessary here. Thus, we believe that it would
be unreasonable to read the Act to work a forfeiture of the
Yurok’s right to receive the monies from the Fund, and we
decline to do so.

I see no reason to reject Interior’s conclusion. Cf. Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).

The Hoopa Valley Tribe contends that the Yurok Tribe’s waiver was invalid on

the further ground it was given by the permanent Yurok Tribal Council, but that the

Settlement Act authorized only the Yurok “Interim Council” to grant the waiver.

This reference to the “Interim” Tribal Council, however, is an authorization, not a

restriction or limitation. Since the organization of the Yurok Tribe was a complex activity

that might take considerable time, and since the inchoate Yurok Tribe might wish to

2009-5084 6
expedite the waiver to obtain its share of the settlement fund, Congress authorized the

tribe’s temporary governing body, the Interim Tribal Council, to execute the waiver.

Once the Yurok Tribe was organized and its permanent Tribal Council established,

however, the latter succeeded to the Interim Tribal Council’s authority, including the

authority to grant the waiver. As Interior explained in rejecting this argument:

The Act authorized the Yurok Interim Council, an
entity that ceased to exist in 1993, to provide the requisite
waiver under the Act. The Act did not preclude or otherwise
divest power from the permanent Yurok Council also to
waive claims.

Through its breach of trust damages claim in this case, it appears that the Hoopa

Valley Tribe is seeking to recover the approximately $90 million that the government

paid to the Yurok Tribe as the latter’s share of the Settlement Fund. The Hoopa Valley

Tribe does not question that that amount accurately reflected the share of the

Settlement Fund to which the Yurok Tribe was entitled under the Settlement Act. Nor

does the Hoopa Valley Tribe deny that the approximate $34 million it received after

executing its waiver gave it all it was entitled to under the Settlement Act.

In 1973, in the first decision in the Short litigation, the Court of Claims rejected

the claim by the Hoopa Valley Tribe members that they, and they alone, were entitled to

all the proceeds of the timber sales from the portion of the joint reservation they

occupied. Short v. United States, 486 F.2d 561. The court held that the land that both

tribes occupied constitutes a single reservation and that all the “Indians of the

reservation” were entitled to share in the proceeds of the timber revenues from that

land. Id. at 567–68. In subsequent decisions, both the Court of Claims and this court

2009-5084 7
reiterated those principles and standards. Short v. United States, 661 F.2d 1501 (Ct.

Cl. 1981), 719 F.2d 1133 (Fed. Cir. 1983).

The Hoopa Valley Tribe apparently now seeks to obtain, under a breach of trust

claim, the proceeds of the timber sales. This appears to be a repackaging of the tribal

members’ original claim—which the Court of Claims rejected more than thirty-five years

ago—that they alone, and to the exclusion of the Yurok Tribe members, are entitled to

the proceeds of the timber harvested on the portion of the joint reservation the Hoopa

Valley Tribe occupied.

In sum, Interior did not breach any trust obligation it had to the Hoopa Valley

Tribe by paying to the Yurok Tribe, under a reasonable interpretation of the waiver

provision of the Settlement Act, the amount the Yurok Tribe was entitled to receive

under that Act. There are no possible facts that the Hoopa Valley Tribe could show that

would enable the tribe to recover on its breach of trust claim. I would affirm the

judgment of the Court of Federal Claims dismissing this suit.

2009-5084 8