March______, 2004
MEMORANDUM
TO:
Winnemem Wintu Tribe
FROM: Hobbs, Straus, Dean & Walker, LLP
BY:
RE:
Jerry C. Straus
Tribal Rights in the Winnemem Wintu Cemetery
You have asked for our views as to the rights of the Winnemem Wintu Tribe in the
Cemetery where tribal dead were moved in the early 1940s when it became necessary to relocate
the historic tribal cemetery that was flooded by the construction of the Shasta Dam. We
understand that questions have been raised by some federal officials as to whether the Tribe has
title to the Cemetery lands and has the right to continue to use them for cemetery purposes. For
the reasons set forth below, it is our conclusion that, pursuant to Public Law 77-198 (55 Stat
6120), the Winnemem Wintu Tribe obtained trust title to the lands of the subject cemetery in
1941 and that nothing has happened since that date to divest the Tribe of that title. It follows
from this that the Tribe has the right to continue to use the land involved for cemetery purposes.
1. The Historical Background
The Winnemem Wintu have lived along the McCloud River at the base of Mount Shasta
since time immemorial. While they still remain in the area, their traditional life was profoundly
disturbed by the creation of Lake Shasta as a result of the construction of the Shasta Dam. When
the Lake appeared, allotments to tribal member were flooded and ancestral Winnemem Wintu
fishing grounds along the McCloud River were destroyed. The lands of the tribal cemetery,
which had been in existence since some time in the Nineteenth Century, was completely flooded
and the cemetery had to be relocated prior to the rising of the waters of the lake..
The Central Valley project, authorized in 1935, gave the go-ahead to build the Shasta
Dam. The rising waters would affect both Indian and non-Indian residents along the river, living
and dead. Residents were bought out by the Bureau of Reclamation and forced to relocate.
Winnemem Wintu tribal leader Florence Jones was paid $37.85 for the loss of her own allotment
land along the McCloud River. (Attachment 1)
As the Shasta Dam neared completion in 1941, Representative Bertrand “Bud” Gearhart
introduced legislation which would provide for the acquisition of land to be held in trust by the
Bureau of Indian Affairs for members of the Winnemem Wintu Tribe. In his introductory
statement in the Congressional Record on July 21, 1941, Gearhart stated,
“The Secretary of the Interior who is the head of the Indian Bureau and also the
head of the Bureau of Reclamation will make the trade with the Indians and give
them land outside the project and fix the value of the land in the drainage area of
the Friant Dam. This is all the bill amounts to in the last analysis and I do hope the
gentleman will allow the bill to go through at this time.” (Attachment 2)
The bill was treated as an emergency measure and in less than ten days President Roosevelt
signed the bill into law as Public Law 77-198. (55 Stat 6120;Attachment 3)
Section 4 of Public Law 77-198 provided for the removal of any Indian cemeteries from
the path of the rising waters and for relocation in other areas. With respect to any "Indian
cemetery lands required for the project", the Secretary was "authorized, in his discretion, in lieu
of requiring payment therefore, to establish cemeteries on other lands he may select and acquire
for the purpose, and to remove bodies, markers and other appurtenances to the new sites." The
statute goes on to state that “[s]ites of the relocated cemeteries shall be held in trust by the United
States for the appropriate tribe, or family, as the case may be, and shall be nontaxable.”
(Emphasis added;. Attachment 3)
The Bureau of Reclamation identified a Winnemem Wintu cemetery as well as a nonIndian cemetery which needed to be moved. A suitable place not far from the future Lake Shasta
was identified and set aside for the new cemetery. (Attachment 4) At first it was intended to
build a single cemetery for Indians and non-Indians alike, but at the request of several
Winnemem Wintu families (and in accordance with Public Law 77-198) the cemetery was
divided in two and the Indian part was recorded as the United States Shasta Reservoir Indian
Cemetery. The non-Indian half of the cemetery was transferred to Shasta County. The Indian
section of the cemetery was transferred in trust status to the United States and a list of Indians
interred was recorded by the Bureau of Reclamation. (Attachment 5)
In 1958 the Bureau of Reclamation informed Mr. Leonard M. Hill, BIA Area Director for
Sacramento, of the existence of the Winnemem Wintu cemetery and its status as federal trust
land. Bureau of Reclamation Acting Regional Director A. N. Murray informed Hill that “[t]he
Act [PL 77-198] does not specify the agency having trust responsibility but correspondence
would indicate that it has been assumed to be the Indian Service.” Hill went on to say that unless
informed otherwise the Bureau of Reclamation would continue to consider the cemetery to be
held in trust by the Bureau of Indian Affairs. (Attachment 6)
There is no recorded response from the BIA, but members of the Winnemem Wintu Tribe
have continued to bury their dead in the cemetery from that time to the present..
2. Discussion
Under Section 4 of Public Law 77-198 the Secretary of the Interior was given discretion
to relocate Indian cemeteries that were "required" for the project, and move "bodies, markers
and other appurtenances to the new sites.” The statute specifically provided that "“[s]ites of the
relocated cemeteries shall be held in trust by the United States for the appropriate tribe, or family,
as the case may be, and shall be nontaxable.” (Emphasis added)
There can be no doubt that a congressional set aside of land for a tribe for a particular
purpose, with the land to be held in "trust" by the United States for the tribe, creates what is
known as "trust" or beneficial" title for the tribe. As stated in F.COHEN, HANDBOOK OF
FEDERAL INDIAN LAW (1982 ed.)at 476:
Occasionally during the treaty making period and regularly since its end in 1871, tribal
property rights in land have been established by specific acts of congress. These acts vary
from specific grants of fee simple rights to broad designations that a give area shall be
used for the benefit of the Indians or that Indian occupancy of specified areas shall be
respected by third parties.(Footnotes omitted.)
The fact that the Winnemem Wintu Tribe is not specifically mentioned in Public Law 77198, does not in any way detract from a determination that the Tribe obtained trust title to the
new cemetery at the time the Secretary exercised his discretion and relocated it to its present
location. There are numerous instances where determination of the tribal beneficiary or
beneficiaries of a tract set aside for Indians is left to the discretion of the Executive Branch. As
stated in Cohen (Id. ) at 479:
In some statutes the designation of the Indian Beneficiaries of the reservation is delegated
to administrative discretion. Such statutes typically provide that given lands shall be
reserved for the use and occupancy of certain named bands or tribes "and such other
Indians as the Secretary of the Interior may see fit to locate thereon.". ( Emphasis added;
footnotes omitted.)
In the case of the Winnemem Wintu, the facts are undisputed. As set forth in detail above
and in the documents appended to this memorandum, a new cemetery was located for the Tribe
near lake Shasta and the bodies of the Tribe's ancestors were moved to that cemetery.
While for reasons that are obscure, the BIA apparently does not list this property in its records as
trust land belonging to the Tribe, that does not in any way negate the effectiveness of the act of
congress which authorized the setting aside of the land, in trust, for the purpose of relocation of
those buried in the old cemetery and for future burials. There is no doubt that the Winnemem
Wintu is the "appropriate" tribe referred to in Public Law 77-198. All of the bodies moved to the
new cemetery when it was relocated and all of those buried since, were Winnemem Wintu.1
The Tribe's rights in the cemetery lands have been recognized by the Secretary, through the
Bureau of Reclamation, ever since it was established.
Is this statement correct? If not, we need to find some other way to show
that it was not set aside for other tribes as well.
1