[Senate Report 108-151]
[From the U.S. Government Publishing Office]
Calendar No. 285
108th Congress Report
SENATE
1st Session 108-151
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PROVIDING FOR THE USE AND DISTRIBUTION OF THE FUNDS AWARDED TO THE
WESTERN SHOSHONE IDENTIFIABLE GROUP UNDER INDIAN CLAIMS COMMISSION
DOCKET NUMBERS 326-A-1, 326-A-3, 326-K, AND FOR OTHER PURPOSES
_______
September 22, 2003.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 618]
The Committee on Indian Affairs, to which was referred the
bill (S. 618) to provide for the use and distribution of the
funds awarded to the Western Shoshone identifiable group under
Indian Claims Commission Docket Numbers 326-A-1, 326-A-3, 326-
K, and for other purposes, having considered the same, reports
favorably thereon with an amendment in the nature of a
substitute and recommends that the bill (as amended) do pass.
PURPOSE
The purpose of S. 618 is to provide for the distribution of
judgment funds awarded to the Western Shoshone Indians in
Docket Number 326-K before the Indian Claims Commission (Docket
No. 326-K) and Docket Nos. 326-A-1 and 326-A-3 before the
United States Court of Claims, together with all accrued
interest. Funds under Docket No. 326-K are to be awarded on a
per capita basis to eligible Western Shoshones who have at
least \1/4\ degree of Western Shoshone blood, are citizens of
the United States, and are living on the date of enactment of
this legislation; provided, however, that any individual who
has or is eligible to receive a per capita payment from any
other similar judgment fund derived from an aboriginal land
claim shall not be eligible to receive payment under this
legislation. Funds under Docket Nos. 326-A-1 and 326-A-3 are to
be placed in a trust fund to be established in the Treasury of
the United States for the benefit of Western Shoshone members
and to be known as the Western Shoshone Educational Trust Fund
(Educational Trust Fund). Interest income from the Educational
Trust Fund shall be distributed as educational grants to
eligible individual Western Shoshone members and may also be
used to pay the expenses of the Administrative Committee
established to oversee the distribution of such educational
grants and assistance.
BACKGROUND
The Shoshone are an Indian people living mostly in the
Great Basin of western North America. In 1863 the Western Bands
of the Shoshone Nation signed a peace treaty with the United
States at Ruby Valley, in what is now central Nevada.\1\ This
treaty granted the United States certain rights within the area
claimed by these bands, extending from the Snake River Valley
of Idaho through Nevada and Utah to southern California.
Certain individual Western Shoshone Indians filed a claim for
the alleged loss of their lands with the Indian Claims
Commission, Western Shoshone Identifiable Group v. United
States, Docket No. 326-K. The Indian Claims Commission held the
Western Shoshone were ``deprived of their lands'' in the
nineteenth century by ``gradual encroachment of whites,
settlers and others.'' Based on this finding, in 1979 the
United States Court of Claims awarded about $27 million (the
1872 value of the lands allegedly taken, without payment of
prejudgment interest); post-judgment interest on this sum has
been accruing since 1979. Additional funds are derived from the
related proceedings (Docket Nos. 326-A-1 and 326A-3). No
distribution of these funds has yet occurred. As of June 11,
2003, Docket No. 326-K held $142,472,644, and Docket Nos. 326-
A-1 and 326-A-3 (collectively) held $1,386,718.
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\1\ Treaty with the Western Shoshone (also known as the Treaty of
Ruby Valley), 18 Stat. 689 (Oct. 1, 1863; ratified June 26, 1866),
reprinted in II Kappler, Indian Affairs: Laws and Treaties 851-53
(1904).
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LEGISLATIVE HISTORY
S. 618 was introduced on March 13, 2003, by Senator Reid,
for himself and for Senator Ensign, and was referred to the
Committee on Indian Affairs.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
The Committee on Indian Affairs, in an open business
meeting on July 16, 2003, by voice vote approved S. 618, with
an amendment in the nature of a substitute, and ordered the
bill, as amended, to be reported to the Senate.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This Act may be cited as the ``Western Shoshone Claims
Distribution Act''.
Section 2. Distribution of Docket 326-K funds
Section 2 provides for the distribution of the funds
appropriated in satisfaction of the judgment award granted to
the Western Shoshone Indians in docket No. 326-K before the
Indian Claims Commission, including interest earned. The
Secretary of the Interior (Secretary) is directed to establish
a Western Shoshone Judgment Roll consisting of all Western
Shoshones who have at least \1/4\ degree of Western Shoshone
blood, are citizens of the United States, and are living on the
date of enactment of this legislation; provided however, that
any individual found by the Secretary to be eligible to receive
a per capita award from any other judgment fund based on an
aboriginal land claim awarded by the Indian Claims Commission,
the United States Claims Court, or the United States Court of
Federal Claims, funds for which are appropriated before the
date of the enactment of this legislation shall not be eligible
for payment under this legislation. The Secretary is directed
to publish rules and regulations in the Federal Register
governing the establishment of the Western Shoshone Judgment
Roll and to utilize any documents acceptable to the Secretary
in establishing proof of eligibility. The Secretary's
determination on all applications for enrollment shall be
final. The Secretary shall distribute 100 percent of the funds
in Docket No. 326-K on a per capital basis, in equal portions
among persons listed on the Roll. Payments shall be made
directly to living competent adults who have reached the age of
19 years on the date of the distribution, whereas payments
shall be distributed to the heirs and legatees of deceased
eligible individuals in accordance with regulations prescribed
by the Secretary. Payments to legally incompetent individuals
shall be administered pursuant to regulations and procedures
established by theSecretary pursuant to section 3(b)(3) of
Public Law 93-134 (25 U.S.C. Sec. 1403(b)(3)). The shares of minors and
individuals under the age of 19 years on the distribution date shall be
held by the Secretary in supervised individual Indian money accounts,
to be disbursed over a period of 4 years in payments equaling 25
percent of the principal, plus interest earned on that portion of the
per capita share; the first such payment to be disbursed to legally
competent individuals upon reaching the age of 18 and subsequent
payments to be disbursed within 90 days of the individual's following
three birthdays. Per capita shares shall not be subject to Federal or
State income tax and shall not be considered to be income or resources
or be used as a basis for denying financial assistance or other
benefits under the Social Security Act (42 U.S.C. Sec. 301 et seq.) or
any other Federal or Federally assisted program. Per capita shares
unpaid after 6 years, and the interest thereon, together with any other
residual principal and interest funds remaining in Docket No. 326-K
after completion of its distribution shall be added to the principal of
the Western Shoshone Educational Trust Fund established pursuant to
Section 3, except that the 6-year period shall not begin as to the per
capita share of a minor until the minor reaches the age of majority.
Section 3. Distribution of Dockets 326-A-1 and 326-A-3
Section 3 provides that funds awarded in Docket Nos. 326-A-
1 and 326-A-3, together with accrued interest thereon and
certain unclaimed funds from Docket No. 326-K, are to be placed
in a trust fund entitled the ``Western Shoshone Educational
Trust Fund'' (Educational Trust Fund), the assets of which are
to be invested pursuant to 25 U.S.C. 162a. The interest from
the Educational Trust Fund is to be used to provide educational
assistance grants for individual Western Shoshone members
(i.e., eligible individuals who are listed on the Western
Shoshone Judgment Roll and their lineal descendants) as
directed by an Administrative Committee (Committee) consisting
of 1 representative each of the Western Shoshone Te-Moak Tribe,
Duckwater Shoshone Tribe, Yomba Shoshone Tribe, Ely Shoshone
Tribe, Western Shoshone Committee of the Duck Valley
Reservation, the Fallon Band of Western Shoshone, and the ``at
large community.'' The members of the Committee shall be
appointed for 4-year terms. The Secretary shall consult with
the Committee on the management and investment of the assets of
the Educational Trust Fund, and the Committee is authorized to
disburse the income in accordance with the terms of this
legislation. The Committee shall develop written rules and
procedures to govern its actions, subject to approval by the
Secretary, and may pay its operating expenses as provided in
the legislation. The Committee shall employ a certified public
accountant to prepare an annual financial statement and shall
distribute that financial statement, together with a list of
individuals receiving grants or assistance, to organizations
represented on the Committee and, upon request, to individual
Western Shoshone members.
Section 4. Definitions
Section 4 provides definitions for the terms
``Administrative Committee'' or ``Committee,'' ``Secretary,''
``Trust Fund,'' and ``Western Shoshone Members.''
Section 5. Regulations
Section 5 authorizes the Secretary to promulgate
regulations necessary to carry out this legislation.
COST AND BUDGETARY CONSIDERATIONS
The cost estimate of the Congressional Budget Office on S.
618 is as set forth below.
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 19, 2003.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 618, the Western
Shoshone Claims Distribution Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette J.
Walker.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
S. 618--Western Shoshone Claims Distribution Act
S. 618 would establish procedures for the distribution of
about $143 million in judgment awards held in trust funds on
behalf of the members of the Western Shoshone tribes. Under
current law, the funds cannot be spent or distributed by the
tribes until the Congress approves a plan to allocate the
funds.
The tribes were awarded over $26 million in 1979 as
compensation for the federal government's taking of tribal land
in California and Nevada and the removal of minerals from that
land. S. 618 would provide for payments to eligible members of
the Western Shoshone tribes of the $26 million plus interest
earned on that amount--a total of about $143 million.
S. 618 also would allow for the distribution of interest
earnings on about $1.4 million that was awarded by the Court of
Federal Claims to the Western Shoshone for the federal
government's improper accounting of tribal funds. Under the
bill, the interest on that trust fund would be used to make
educational grants or to provide other education assistance to
Western Shoshone members and to pay for the administrative
expenses of the disbursement committee.
Those trust funds are held and managed in a fiduciary
capacity by the federal government on behalf of Indian tribes
and are treated in the budget as nonfederal entities. As a
result, outlays were recorded on the budget when the judgments
were awarded to the tribes and paid into those funds, and there
is no budgetary impact when the money is distributed to the
individual members of the tribes. Therefore, CBO estimates that
enacting S. 618 would have no effect on the federal budget.
S. 618 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Lanette J.
Walker. This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee received written testimony from the Bureau of
Indian Affairs, Department of the Interior, for the hearing
held on an earlier version of the bill on August 2, 2002. The
written testimony from the Administration is as follows:
Statement of Neal A. McCaleb, Assistant Secretary for Indian Affairs,
Department of the Interior
Good morning, Mr. Chairman and Members of the Committee.
Thank you for the opportunity to present the views of the
Department of the Interior on S. 958, a bill entitled ``The
Western Shoshone Claims Distribution Act.''
The distribution of the Western Shoshone judgment funds is
a long-standing issue that needs to be settled. The judgment
funds stem from two claims that were filed by the Te-Moak Bans
of Western Shoshone in the Indian Claims Commission in 1951.
One is an aboriginal land claim that was concluded in 1979 in
Docket 326-K for $26.1 million. The other is an accounting
claim. Several issues in the accounting claim were handled
separately and resulted in two awards. The first award in the
accounting claim was for approximately $823,000, and Congress
appropriated funds to pay the claim in 1992. The second award
was for $29,000, and funds were appropriated in 1995 to pay the
claim. The accounting claims were in Dockets 326-A-1 and 326-A-
3.
Since 1980, numerous attempts have been made on reaching
agreement on the disposition of the Western Shoshone judgment
funds. The most recent attempt began in March 1998, the Western
Shoshone Steering Committee (WSSC), which is composed of
individuals that are tribal members at various reservations in
Nevada. With the approval of the Te-Moak Tribal Council, the
WSSC has worked over the past four years investigating if the
Western Shoshone people were in favor of a judgment fund
distribution.
Since 1980, when the BIA held its first Hearing of Record
on the distribution of the land claims judgment funds, a large
segment of the Western Shoshone people have indicated that they
are in favor of the judgment fund distribution. In the
meantime, it's important to note that the tribunal councils of
the four successor Western Shoshone tribes (Te-Moak, Ely,
Duckwater and Yomba) have mostly opposed the distribution of
the judgment funds because they wanted the Western Shoshone
aboriginal lands returned. Although the tribal governments were
unanimous in their opposition in the early 1990's, since 1997,
three of the four tribal councils have modified their position
to support the distribution of the judgment funds.
The Te-Moak Tribal Council enacted Resolution No. 97-TM-10
on March 6, 1997, adopting a plan for the distribution of these
funds and requested the Department to support it. That
resolution was rescinded by the next tribal council in the
summer of 2000, but the current tribal council rescinded that
action in January of this year and reinstated the 1997
resolution. The Duckwater Shoshone Tribal Council enacted
Resolution No. 09-D-12 on March 18, 1998, supporting the
Western Shoshone claims distribution proposal. On March 10,
1999, they enacted Resolution No. 99-D-07 reaffirming the
earlier resolution supporting the Western Shoshone Claims
distribution proposal. The Ely Tribal Council enacted
Resolution No. 2001-EST-44 on October 9, 2001, supporting S.
958 and H.R. 2851. We have been advised that the Yomba Tribal
Council continues to oppose the distribution. Several other
tribes with enrolled tribal members that would be eligible to
share in the judgment fund distribution under S. 958 have also
enacted resolutions supporting the distribution. Those tribes
are Duck Valley, Fallon and Fort McDermitt. The Shoshone-Paiute
Tribal Business Council of Duck Valley withdrew its support of
S. 958 by Resolution No. 2002-SPR-012, dated November 13, 2001.
However, the Western Shoshones of Duck Valley continue to
support the bill.
We support the enactment of S. 958 because we believe that
it reflects the wishes of the vast majority of the western
Shoshone people. We are also pleased that three of the four
successor tribes have expressed their support of the
distribution, as well as two other tribes with a significant
number of tribal members of Western Shoshone descent.
Section 2 of S. 958 proposes to distribute the Western
Shoshone land claims funds that were awarded in Docket 326-K,
one hundred percent (100%) per capita to approximately 6,500
individuals who have at least one-quarter (1/4) degree of
Western Shoshone Blood. The current balance of this fund,
including interest, is $137,286,774. This section appears to be
in accord with the wishes of the Western Shoshone people.
Section 3 proposes to use the principal portion of the
Western Shoshone accounting claims funds awarded in Dockets
326-A-1 and 326-A-3 for a non-expendable Trust Fund. The
interest and investment income will be available for
educational grants and other forms of educational assistance to
individual Western Shoshone members that are enrolled under
Section 2 of this Act, and to their lineal descendants. The
principal fund totals $754,136. The interest fund totals
$591,845. This section appears to be in accord with the wishes
of the Western Shoshone people.
We understand that many of the beneficiaries of this treaty
continue to believe in their rights under the Treaty of Ruby
Valley and this subsection acts as a savings clause for
whatever rights remain in effect. We are concerned that some
tribes or individuals may believe that Article 5 of the Treaty
(land provisions) remains in effect. To be safe, the clause
should read, ``Receipt of a share of the funds under this
subsection shall not alter any treaty rights, or the final
decisions of the Federal Courts regarding those rights,
pursuant to the `1863 Treaty of Ruby Valley,' inclusive * *
*.''
This concludes my prepared statement. We are submitting a
report to be included into the record that gives a detailed
history of the Western Shoshone claims. I will be happy to
answer any questions the Committee may have.
REGULATORY IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory paperwork impact that would be incurred in
carrying out the bill. The Committee believes that the
regulatory impact of S. 618 will be minimal.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 618 will not result in any changes in existing
law.