[Senate Report 108-355]
[From the U.S. Government Publishing Office]
Calendar No. 710
108th Congress Report
SENATE
2d Session 108-355
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PROVIDING 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 21, 2004.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1530]
The Committee on Indian Affairs to which was referred the
bill (S. 1530) 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(s) and recommends that the bill (an amended) do pass.
Purpose
The purpose of S. 1530 is to amend section 4(b) of the Crow
Creek Sioux Tribe Infrastructure Development Trust Fund Act of
1996 (P.L. 104-223) and section 4(b) of the Lower Brule Sioux
Tribe Infrastructure Development Trust Fund Act (P.L. 105-132)
by increasing the aggregate authorized amounts of deposits from
the Pick-Sloan Missouri River power program into the tribal
trust funds established under those acts.
S. 1530, as amended, would increase the maximum aggregate
deposit in the Lower Brule Sioux infrastructure development
trust fund from $39,300,000 to $186,822,140 and would increase
the maximum aggregate deposit in the Crow Creek Sioux Tribe
infrastructure development trust fund from $27,500,000 to
$105,917,853. These increases are intended to bring the total
amount of compensation provided to these two Indian tribes for
impacts caused by the Pick-Sloan Missouri River program into
parity with the compensation provided by Congress to other
Indian tribes for such impacts.
Background
In 1944, Congress enacted the Flood Control Act, 33 U.S.C.
701-1, et seq., which included the Pick-Sloan Missouri River
Basin Program. The dam construction projects undertaken
pursuant to the Pick-Sloan Program impacted several tribes
whose reservation lands were located within the Missouri River
basin. Two of these tribes, the Crow Creek Sioux Tribe and the
Lower Brule Sioux Tribe, were impacted by two significant dam
construction projects located on the Missouri River--the Fort
Randall Dam and the Big Bend Dam. Construction ofthe Fort
Randall Project began in 1946 and that of the Big Bend Project in 1960.
Both projects resulted in the inundation of several thousands of acres
of land on the reservations of the two Indian tribes.\1\
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\1\ The construction of the Fort Randall and Big Bend Dams
inundated over 15,000 acres of land on the Crow Creek Indian
Reservation and over 22,000 acres of land on the Lower Brule Indian
Reservation. See S. Rept. 104-362 and S. Rept. 105-146.
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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).\2\
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\2\ Overviews of the impacts that the Fort Randall and Big Bend
Dams had on the Indian people living on the Crow Creek and Lower Brule
Indian Reservations are included in the House and Senate committee
reports accompanying the two enactments (H. Rept. 104-765, S. Rept.
104-362, and S. Rept. 105-146).
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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 was to be derived from a
percentage of the annual receipts deposited into the United
States Treasury from the Pick-Sloan Missouri River basin power
program. Each act authorized payments to the tribe of the
interest earned on the principal balance of the trust fund for
expenditure on projects and activities specified in the
legislation. The aggregate principal amount authorized to be
deposited into the Crow Creek Sioux Tribe infrastructure
development trust fund was $27,500,000, and the aggregate
principal amount authorized to be deposited into the Lower
Brule Sioux Tribe infrastructure development trust fund was
$39,300,000.
On June 15, 2004, the Committee held a hearing on S. 1530
and received testimony of several witnesses, including the
bill's sponsor, Senator Daschle, and an expert witness who
stated that the compensation levels authorized by P.L. 104-223
and P.L. 105-132 for the Crow Creek and Lower Brule Sioux
Tribes, respectively, were based on the ``per acre value of the
1992 Fort Berthold/Standing Rock legislation (Public Law 102-
575),'' in contrast to the methodology recommended in a 1991
General Accounting Office (GAO) report that was used to
calculate compensation for other tribes that sustained Pick-
Sloan related damages.\3\
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\3\ See, Indian Issues: Compensation Claims Analyses Overstate
Economic Losses (GAO/RCED-91-77, May 21, 1991).
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The Committee's hearing record includes the testimony and a
report \4\ by Michael L. Lawson, Ph.D., regarding the impacts
of the Pick-Sloan Plan on several tribes within the Missouri
River basin and comparing the compensation levels that have
been provided to date to those tribes, including the Lower
Brule and Crow Creek Sioux Tribes. This testimony and report
analyze the compensation levels of the Lower Brule and Crow
Creek Sioux Tribes for their respective Pick-Sloan Program
damages pursuant to P.L. 87-735, P.L. 104-223 and P.L. 105-132,
compared to the compensation authorized for the Three
Affiliated Tribes of Fort Berthold and the Standing Rock Sioux
in 1992 pursuant to P.L. 102-575 and for the Cheyenne River
Sioux Tribe in 2000 pursuant to title I of P.L. 106-511,\5\ and
concludes that compensation has not been provided to the tribes
in a consistent manner. In supplemental testimony provided to
the Committee, Dr. Lawson points out that before the Cheyenne
River Sioux legislation in 2000, the 1991 GAO formula had not
been applied to any tribe in South Dakota. Using the 1991 GAO
``AAA corporate bond rate formula'' to calculate the additional
amounts due to the Lower Brule and Crow Creek Sioux Tribes
through 2004, Dr. Lawson informed the Committee that the two
tribes' respective development funds should be increased to
$186,822,140.00 (Lower Brule Sioux Tribe) and $105,917,853
(Crow Creek Sioux Tribe).
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\4\ The Lower Brule and Crow Creek Sioux Tribes of South Dakota:
Parity Compensation for Losses from Missouri River Pick-Sloan Dam
Projects, by Michael L. Lawson, Ph.D., June 15, 2004.
\5\ The committee reports for the House and Senate both noted that
the Cheyenne River Sioux legislation enacted in 2000 utilized the 1991
GAO report formula. See, H. Rept. 106-944 and S. Rept. 106-217.
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Summary of Provisions
Section 1 of 5.1530 sets forth the short title, ``Tribal
Parity Act.''
Section 2, the findings section, recognizes that several
tribes along the Missouri River have suffered injury and
received compensation as the result of Pick-Sloan projects--
including the Lower Brule and Crow Creek Sioux Tribes--but that
the compensation provided to the tribes has not been
consistent. The intent of the bill is to bring the compensation
made available to the Lower Brule and Crow Creek Sioux Tribes
into parity with that made available to the other tribes that
have been compensated for impacts caused by Pick-Sloan
Projects.
As amended,\6\ section 3 of S. 1530 would amend section
4(b) of the Lower Brule Sioux Tribe Infrastructure Development
Trust Fund Act (P.L. 105-132) by increasing the aggregate
authorized amount of deposits from the Pick-Sloan Missouri
River power program into that tribe's trust fund from
$39,300,000 to $186,822,140. Section 4 would amend section 4(b)
of the Crow Creek Sioux Tribe Infrastructure Development Trust
Fund Act of 1996 (P.L. 104-223) by increasing the aggregate
authorized amount of such deposits into the Crow Creek Sioux
Tribe's trust fund from $27,500,000 to $105,917,853.
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\6\ At the Committee's business meeting held on July 14, 2004, the
Committee approved the bill with two amendments: section 3 of S. 1530
would be amended to provide for an aggregate deposit of $186,822,140.00
into the Lower Brule Sioux Tribe Infrastructure Development Trust Fund,
and section 4 of S. 1530 would be amended to provide for an aggregate
deposit of $105,917,853.00 into the Crow Creek Sioux Tribe
Infrastructure Development Trust Fund. The bill as introduced stated
compensation levels through the year 2003; the Committee amendments are
intended to provide an additional year's interest under the 1991 GAO
formula.
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Legislative History
S. 1530 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 with
the amendments described above.
Committee Recommendation
The Committee on Indian Affairs, at a business meeting held
on July 14, 2004, approved S. 1530 with the above-described
amendments to the dollar amounts set forth in sections 3 and 4
of the bill and ordered the bill, as amended, to be reported
favorably to the Senate.
Section-by-Section Analysis of S. 1530 (as Amended)
Section 1 of S. 1530 sets forth the short title, ``Tribal
Parity Act.''
Section 2 sets forth the Congressional findings.
Section 3, with the Committee amendment, amends section
4(b) of the Lower Brule Sioux Tribe Infrastructure Development
Trust Fund Act by increasing the maximum aggregate amount of
deposits into the tribe's infrastructure development trust fund
from $39,300,000 to $186,822,140.
Section 4, with the Committee amendment, amends section
4(b) of the Crow Creek Sioux Tribe Infrastructure Development
Trust Fund by increasing the maximum aggregate amount of
deposits into the tribe's infrastructure development trust fund
from $27,500,000 to $105,917,853.
Cost and Budgetary Concerns
The costs estimate for S. 1530, as provided by the
Congressional Budget Office, is set forth below.
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 25, 2004.
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. 1530, the Tribal
Parity Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mike Waters.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
S. 1530--Tribal Parity Act
Summary: S. 1530 would increase the total amounts to be
transferred from the Treasury into two existing Indian tribal
trust funds. Those funds were created to compensate the Crow
Creek Sioux and Lower Brule Sioux tribes for damages caused by
the Pick-Sloan water projects along the Missouri River. CBO
estimates that enacting S. 1530 would increase direct spending
by $226 million over the 2004-2014 period. Enacting the bill
would not affect revenues.
S. 1530 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. 1530 is shown in the table below. The
costs of this legislation fall within budget function 450
(community and regional development).
Basis of Estimate: For this estimate, CBO assumes that the
bill will be enacted this fall and that payments to the two
tribes will begin in fiscal year 2005.
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By fiscal years, in millions of dollars--
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2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
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CHANGES IN DIRECT SPENDING
Payments to Crow Creek Sioux Tribe
Infrastructure Development Trust Fund:
Estimated Budget Authority............ 28 30 20 0 0 0 0 0 0 0
Estimated Outlays..................... 28 30 20 0 0 0 0 0 0 0
Payments to Lower Brule Sioux Tribe
Infrastructure Development Trust Fund:
Estimated Budget Authority............ 28 30 30 30 30 0 0 0 0 0
Estimated Outlays..................... 28 30 30 30 30 0 0 0 0 0
Total Payments to Both Funds
Estimated Budget Authority............ 56 60 50 30 30 0 0 0 0 0
Estimated Outlays..................... 56 60 50 30 30 0 0 0 0 0
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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) were
created by Congress in 1996 and 1997 to compensate the Crow
Creek and Lower Brule Sioux tribes for damages caused by the
Pick-Sloan water projects along the Missouri River. The Crow
Creek Fund was fully capitalized to its authorized size with
one payment of $28 million in 1997. The Lower Brule Fund was
fully capitalized to its authorized size with one payment of
$39 million in 1998.
S. 1530 would increase the maximum size of each fund, with
the additional deposits to be derived from proceeds from the
sale of electric power from the Pick-Sloan Missouri River Basin
project. Each fund would receive an amount equal to 25 percent
of the annual proprietary receipts from that project until
deposits reach the new maximum levels specified in the bill.
Under this bill, the Crow Creek Fund would increase by $78
million (for a new maximum of $106 million), and the Lower
Brule Fund by $148 million (for a new maximum of $187 million).
According to the Western Area Power Administration (WAPA),
the agency that administers the Pick-Sloan project, receipts
from the Pick-Sloan project are likely to total $110 million in
2005 and average about $119 million a year thereafter. That
suggests that up to $30 million would be deposited in each fund
each year until the new ceilings are met. At those levels, CBO
estimates that it would take about three years to reach the new
maximum level for the Crow Creek fund and five years for the
Lower Brule Fund.
Payments to certain trust funds that are held and managed
in a fiduciary capacity by the federal government on behalf of
Indian tribes are treated as payments to a nonfederal entity.
Thus, under this bill, CBO expects that the entire amount
deposited to either fund in any year would be recorded as
budget authority and outlays in that year. Because the trust
funds would be nonbudgetary, the subsequent use of such funds
by the tribe would not affect federal outlays.
Intergovernmental and private-sector impact: S. 1530
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. Enacting this legislation would benefit the
two tribes.
Estimate prepared by: Federal Costs: Mike Waters; Impact on
State, Local, and Tribal Governments: Marjorie Miller; and
Impact on the Private Sector: Selena Caldera.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Executive Communications
The Committee has received no executive communications
relating to S. 1530.
Regulatory and Paperwork 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 and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that the
regulatory and paperwork impacts of S. 1530 will be minimal.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee has determined that
the enactment of S. 1530 will effect the following changes in
existing law:
Section 4(b) of the Lower Brule Sioux Tribe Infrastructure
Development Trust Fund Act ( P.L. 105-132; 111 Stat. 2565):
(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 [$39,300,000]
$186,822,140, 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.
Section 4(b) of the Crow Creek Sioux Tribe Infrastructure
Development Trust Fund Act of 1996 (P.L. 104-223; 110 Stat.
3027):
(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 [$27,500,000]
$105,917,853, 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.