[Senate Report 110-505]
[From the U.S. Government Publishing Office]
Calendar No. 1089
110th Congress Report
SENATE
2d Session 110-505
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PROVIDING FOR COMPENSATION TO THE LOWER BRULE AND CROW CREEK SIOUX
TRIBES OF SOUTH DAKOTA FOR DAMAGE TO TRIBAL LAND CAUSED BY PICK-SLOAN
PROJECTS ALONG THE MISSOURI RIVER
_______
September 25 (legislative day September 17), 2008.--Ordered to be
printed
_______
Mr. Dorgan, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 160]
The Committee on Indian Affairs, to which was referred the
bill, S. 160, to provide compensation to the Lower Brule and
Crow Creek Sioux Tribes of South Dakota for damage to tribal
land caused by Pick-Sloan projects along the Missouri River,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill do pass.
Purpose
S. 160 would amend the Lower Brule Sioux Tribe
Infrastructure Development Trust Fund Act to increase from
$39.3 million to $129,822,085 the aggregate amount to be
deposited into the Lower Brule Sioux Tribe Infrastructure
Development Trust Fund by the Secretary of the Treasury to
provide compensation to the Lower Brule Tribe of South Dakota
for damage to tribal land caused by Pick-Sloan projects along
the Missouri River.
S. 160 would also amend the Crow Creek Sioux Tribe
Infrastructure Development Trust Fund Act of 1996 to increase
from $27.5 million to $69,222,084 the aggregate amount to be
deposited into the Crow Creek Sioux Tribe Infrastructure
Development Trust Fund by the Secretary to provide compensation
to the Crow Creek Sioux Tribe of South Dakota for damage to
tribal land caused by Pick-Sloan projects along the Missouri
River.
Background
The Lower Brule Sioux Tribe and the Crow Creek Sioux Tribe
were impacted by the Fort Randall Dam and the Big Bend Dam, two
significant dam construction projects located on the Missouri
River. Construction of the Fort Randall Project began in 1946
and of the Big Bend Project in 1960, and both projects resulted
in the inundation of several thousands of acres of land on the
reservations of these two Indian tribes.
Although Congress attempted to mitigate the impacts of
these two projects on the two reservations and the Indian
people who were living on them by enacting, in 1962, the Big
Bend Recovery Act (P.L. 87-735), the insufficiency of the
Government's mitigation efforts pursuant to that Act eventually
led to the enactment of the Crow Creek Sioux Tribe
Infrastructure Development Trust Fund Act of 1996 (P.L. 104-
223) and, one year later, the Lower Brule Sioux Tribe
Infrastructure Development Trust Fund Act (P.L. 105-132).
P.L. 104-223 and P.L. 105-132 each created an
infrastructure development trust fund for the respective tribe,
the principal balance of which would be derived from a
percentage of receipts deposited into the United States
Treasury from the Pick-Sloan Missouri River basin power
program, and each act authorized payments to the tribe of
interest earned on the principal balance of the fund for use on
specified projects and activities. The principal amount
authorized to be deposited into the Crow Creek Sioux Tribe fund
was $27,500,000, and the principal amount authorized to be
deposited into the Lower Brule Sioux Tribe fund was
$39,300,000.
Section-by-Section Analysis
Section 1. Short title
Section 1 states that this Act may be cited as the ``Lower
Brule and Crow Creek Tribal Compensation Act.''
Section 2. Findings
Section 2 states the findings of Congress that: (1) the
Pick-Sloan Missouri River Basin Program (authorized by section
9 of the Act of December 22, 1944 (commonly known as the
``Flood Control Act of 1944'') (58 Stat. 891)), was approved to
promote the general economic development of the United States;
(2) the Fort Randall and Big Bend dam and reservoir projects in
South Dakota are major components of the Pick-Sloan Missouri
River Basin Program and they contribute to the economy of the
United States; (3) the Fort Randall and Big Bend dams inundated
the fertile bottom land of the Lower Brule and Crow Creek Sioux
Tribes, which greatly damaged the economy and cultural
resources of the Tribes; (4) Congress has provided compensation
to several Indian tribes that border the Missouri River and
suffered injury as a result of 1 or more Pick-Sloan Projects;
(5) the compensation provided to those Indian tribes has not
been consistent; (6) Missouri River Indian tribes that suffered
injury as a result of 1 or more Pick-Sloan Projects should be
adequately compensated for those injuries, and that
compensation should be consistent among the Tribes; and (7) the
Lower Brule Sioux Tribe and the Crow Creek Sioux Tribe are
entitled to receive additional compensation for injuries
described in paragraph (6).
Section 3. Lower Brule Sioux Tribe
Section 3 amends the amount of compensation in the trust
fund amount created by current law for the Lower Brule Sioux
Tribe to $129,822,085.
Section 4. Crow Creek Sioux Tribe
Section 4 amends the amount of compensation in the trust
fund amount created by current law for the Crow Creek Sioux
Tribe to $69,822,084.
Section 5. Treatment as final compensation
Section 5(a) provides that this act is final and full
compensation to the Lower Brule Sioux Tribe and the Crow Creek
Sioux Tribe for damages caused by construction of the Fort
Randall Dam and the Big Bend Dam under the Pick-Sloan Missouri
River Basin Program.
Section 5(b) releases the United States of any further
claim for compensation that the Lower Brule Sioux Tribe or Crow
Creek Sioux Tribe may have for compensation as a result of the
Pick-Sloan Missouri River Basin Program.
Section 5(c) defines the term ``non-Missouri River Basin
Program Indian tribe'' and declares that this act will not
serve as a precedent for any non-Missouri River Basin Program
Indian tribe with respect to any potential claim of such tribe
against the United States.
Legislative History
S. 160 was introduced by Senator Thune on January 4, 2007,
Senator Johnson became a cosponsor on May 14, 2007, and it was
referred to the Committee on Indian Affairs. On June 19, 2008,
S. 160 was approved by the Committee by voice vote and ordered
reported favorably.
In the 109th Congress, similar legislation, S. 374, was
introduced on February 14, 2005, by Senators Thune and Johnson
and was referred to the Committee on Indian Affairs. On June
29, 2005, S. 374 was approved by the Committee by voice vote
and ordered favorably reported. Shortly thereafter, a
representative of the United States Government Accountability
Office (GAO) expressed concern regarding language in the
Findings section of the bill (section 2(7)) stating that a
methodology determined appropriate by the General Accounting
Office entitled the two tribes to additional compensation.
Accordingly, Chairman McCain requested the GAO assess
whether the approach used in developing the amount of
additional compensation in S. 374 followed the approach used in
previous GAO reports for analyzing additional compensation for
other tribes located along the Missouri River. In May 2006, the
GAO issued the report requested by Chairman McCain. See GAO-06-
517, Analysis of the Crow Creek Sioux and Lower Brule Sioux
Tribes Additional Compensation Claims.
On June 14, 2006, the Committee held a hearing during which
the GAO provided testimony on the report, and the tribes and
their consultant provided their views. Briefly, the GAO
testified that its research for the report indicated that the
tribes' consultant deviated in certain respects from the
approach used in the previous GAO reports addressing additional
compensation for other Indian tribes impacted by flood control/
power projects on the Missouri River and concluded that the
GAO's approach does not support the additional compensation
amounts contained in S. 374. The tribes' consultant testified
that his approach deviated in part to account for the inferior
negotiating position of the tribes. He also testified that his
original calculations did contain an error and provided new
estimates for compensation based on his approach.
Based on the testimony provided, Senators Thune and Johnson
prepared a substitute amendment which lowered the compensation
for the Lower Brule Sioux Tribe from $186,822,140 to
$129,822,085, and the compensation for the Crow Creek Sioux
Tribe from $105,917,853 to $69,222,084. The substitute
amendment also added a provision clearly stating that the
compensation provided in this bill is the full and final
compensation for the Lower Brule Sioux Tribe and Crow Creek
Sioux Tribe for claims related to the Pick-Sloan projects which
impacted their reservations.
On August 2, 2006, the Committee, in an open business
meeting, considered S. 374. By a voice vote, the Committee
ordered the bill reported favorably, with an amendment in the
nature of a substitute, to the full Senate.
Similar legislation was also introduced in the 108th
Congress, S. 1530, the Tribal Parity Act, was introduced by
Senator Daschle on July 31, 2003, and referred to the Committee
on Indian Affairs. Senator Johnson joined as a cosponsor on
February 12, 2004. The Committee held a hearing on the bill on
June 15, 2004, and at a business meeting held on July 14, 2004,
approved the bill as amended. On November 19, 2004, S. 1530
passed the Senate with amendments by Unanimous Consent.
Committee Recommendation and Tabulation of Vote
On June 19, 2008, the Committee, in an open business
session, considered S. 160. By a voice vote, the Committee
ordered the bill reported to the full Senate with a
recommendation that the bill do pass.
Cost and Budgetary Considerations
The following cost estimate for S. 160, as provided by the
Congressional Budget Office, is set forth below:
S. 160--Lower Brule and Crow Creek Tribal Compensation Act
Summary: S. 160 would increase the size of two existing
tribal trust funds established by the Lower Brule Sioux Tribe
Infrastructure Development Trust Fund Act and the Crow Creek
Sioux Tribe Infrastructure Development Trust Fund Act of 1996.
The Congress created those funds as compensation for damages to
the tribes caused by the Pick-Sloan Missouri River Basin
project; this bill would constitute a final settlement of
claims by the two tribes against the United States. CBO
estimates that enacting S. 160 would increase direct spending
by $169 million over the 2009-2018 period. Enacting the bill
would not affect revenues.
S. 160 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 160 is shown in the following table. The
costs of this legislation fall within budget function 450
(community and regional development).
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By fiscal years, in millions of dollars--
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2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2009-2018
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CHANGES IN DIRECT SPENDING
Transfers to Lower Brule Fund:
Estimated Budget Authority............................... 0 130 0 0 0 0 0 0 0 0 130
Estimated Outlays........................................ 0 130 0 0 0 0 0 0 0 0 130
Transfers to Crow Creek Fund:
Estimated Budget Authority............................... 69 0 0 0 0 0 0 0 0 0 69
Estimated Outlays........................................ 69 0 0 0 0 0 0 0 0 0 69
Interest on Lower Brule Fund:
Estimated Budget Authority............................... -2 -2 -2 -2 -2 -2 -2 -2 -2 -2 -20
Estimated Outlays........................................ -2 -2 -2 -2 -2 -2 -2 -2 -2 -2 -20
Interest on Crow Creek Fund:
Estimated Budget Authority............................... -1 -1 -1 -1 -1 -1 -1 -1 -1 -1 -10
Estimated Outlays........................................ -1 -1 -1 -1 -1 -1 -1 -1 -1 -1 -10
Total Changes:
Estimated Budget Authority........................... 66 127 -3 -3 -3 -3 -3 -3 -3 -3 169
Estimated Outlays.................................... 66 127 -3 -3 -3 -3 -3 -3 -3 -3 169
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Basis of estimate: CBO estimates that enacting this
legislation would result in a net increase in direct spending
of $169 million over the 2009-2018 period. By increasing the
maximum funding level of two tribal trust funds and
establishing a final settlement of certain tribal claims
against the federal government, CBO estimates that enacting S.
160 would increase direct spending by $199 million over the
2009-2018 period. Partially offsetting those costs, the bill
also would reduce direct spending for interest payments made to
the tribes by $30 million over the 2009-2018 period. For this
estimate, CBO assumes that the bill will be enacted near the
beginning of fiscal year 2009 and that additional transfers to
the trust funds would begin in that year.
Trust fund activity under current law
In 1996 and 1997, the Congress enacted legislation creating
the Crow Creek Sioux Tribe Infrastructure Development Trust
Fund (Crow Creek Fund) and the Lower Brule Sioux Tribe
Infrastructure Development Trust Fund (Lower Brule Fund). Both
acts authorized the Secretary of the Treasury to transfer 25
percent of gross revenues from electricity sales made by the
Western Area Power Administration (WAPA), the agency that
manages the Pick-Sloan project, to each fund. Such transfers
were made annually until the funds reached the maximum
balances--$39 million for Lower Brule Fund and $28 million for
the Crow Creek Fund--set forth in law. Consistent with the
treatment of similar tribal trust funds, both funds are
classified as accounts on the federal budget because all claims
against the federal government for related damages have not
been extinguished. Thus, transfers to the funds made to date
have been considered intragovernmental and have had no net
effect on the federal budget.
Current law also directs the Secretary to transfer any
interest earned by the Crow Creek Fund and the Lower Brule Fund
into separate accounts for the benefit of the tribes. Payments
from the interest accounts may only occur after the trust fund
has reached its maximum funding level. Because both trust funds
are currently at their maximum levels, CBO estimates that such
payments will total $20 million for the Lower Brule Fund and
$10 million for the Crow Creek Fund over the 2009-2018 period.
Trust fund activity under S. 160
S. 160 would increase the maximum size of the Lower Brule
Fund to $130 million and that of the Crow Creek Fund to $69
million. As under current law, each fund would receive deposits
equal to 25 percent of proceeds from the Pick-Sloan project
from the previous year. Annual deposits would continue until
the total balance of the trust fund reaches the new maximum
level. According to information from WAPA, gross revenues from
its sale of electricity from the Pick-Sloan project will be
$356 million in 2008 and average approximately $426 million per
year thereafter. Based on those projections, CBO estimates that
the Crow Creek Fund and the Lower Brule Fund would reach their
new maximum levels in 2009 and 2010, respectively.
Upon full funding of their trust funds, S. 160 would
extinguish future claims against the federal government by the
two tribes. Consistent with the treatment of similar tribal
funds, outlays would be recorded on the budget in the year that
all funds are provided to the tribe and all claims against the
government are released. As a result, CBO estimates that
enacting S. 160 would increase direct spending by $69 million
in 2009 for the Crow Creek Fund and by $130 million in 2010 for
the Lower Brule Fund. Subsequent use of those funds would have
no further impact on the federal budget as tribal trust funds
managed in a fiduciary capacity by the federal government are
treated as nonfederal funds.
In addition, any future interest earnings and payments
would not be considered part of the federal budget after those
funds are transferred. (Additionally, because under the bill
the Lower Brule Fund would be below its maximum funding level
in 2009, no interest payments would be made to the tribe in
that year.) As such, CBO estimates that enacting S. 160 would
reduce direct spending for interest payments to the tribes by
$30 million ($20 million for the Lower Brule Fund and $10
million for the Crow Creek Fund) over the 2009-2018 period.
Intergovernmental and private-sector impact: S. 160
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. The payments authorized by this bill would
benefit the Lower Brule Sioux and Crow Creek Sioux tribes.
Estimate prepared by: Federal Costs: Leigh Angres; Impact
on State, Local, and Tribal Governments: Melissa Merrell;
Impact on the Private Sector: MarDestinee Perez.
Estimate approved by: Peter H. Fontaine, Assistant Director
for Budget Analysis.
Regulatory and Paperwork Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory and paperwork impact that would be
incurred in carrying out the bill. The Committee has concluded
that the regulatory and paperwork impacts of S. 160 will be de
minims.
Executive Commuications
The views of the Administration on S. 160 as introduced are
set forth in the Statement of George Skibine, Deputy Assistant
Secretary for Policy and Economic Development--Indian Affairs,
United States Department of the Interior, dated June 18, 2008,
and are set forth below:
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 160, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new language to be added in italic, existing law to
which no change is proposed is shown in roman):
PUBLIC LAW 105-132; 111 STAT. 2565
* * * * * * *
SEC. 4. ESTABLISHMENT OF LOWER BRULE SIOUX TRIBE INFRASTRUCTURE
DEVELOPMENT TRUST FUND.
* * * * * * *
(b) Funding.--Beginning with fiscal year 1998, and for each
fiscal year thereafter, until such time as the aggregate of the
amounts deposited in the Fund is equal to $129,822,085
[$39,300,000], the Secretary of the Treasury shall deposit into
the Fund an amount equal to 25 percent of the receipts from the
deposits to the Treasury of the United States for the preceding
fiscal year from the Program.
* * * * * * *
PUBLIC LAW 104-223; 110 STAT. 3027
* * * * * * *
SEC. 4. ESTABLISHMENT OF CROW CREEK SIOUX TRIBE INFRASTRUCTURE
DEVELOPMENT TRUST FUND.
* * * * * * *
(b) Funding.--Beginning with fiscal year 1997, and for each
fiscal year thereafter, until such time as the aggregate of the
amounts deposited in the Fund is equal to $69,222,084
[$27,500,000], the Secretary of the Treasury shall deposit into
the Fund an amount equal to 25 percent of the receipts from the
deposits to the Treasury of the United States for the preceding
fiscal year from the Program.
* * * * * * *