[Senate Report 106-474] [From the U.S. Government Publishing Office] Calendar No. 923 106th Congress Report SENATE 2d Session 106-474 ====================================================================== PROVIDING FOR THE SETTLEMENT OF ISSUES AND CLAIMS RELATED TO THE TRUST LANDS OF THE TORRES-MARTINEZ DESERT CAHUILLA INDIANS, AND FOR OTHER PURPOSES _______ October 3 (legislative day, September 22), 2000.--Ordered to be printed _______ Mr. Campbell, from the Committee on Indian Affairs, submitted the following R E P O R T [To accompany H.R. 4643] The Committee on Indian Affairs, to which was referred the bill (H.R. 4643) to provide for the settlement of issues and claims related to the trust lands of the Torres-Martinez Desert Cahuilla Indians, and for other purposes, having considered the same, reports favorably thereon without amendment and recommends that the bill do pass. purpose The purpose of H.R. 4643 is to provide for the settlement of issues and claims related to the trust lands of the Torres- Martinez Desert Cahuilla Indians of California. background The Torres-Martinez Desert Cahuilla Indians have lived in the Coachella Valley area of Southern California for hundreds of years. The Tribe currently numbers more than 500 members who live on or in the vicinity of the more than 40 separate land parcels that comprise the Torres-Martinez Reservation. The Torres-Martinez Indian Reservation was created in 1876 in the Coachella Valley north of the Salton Sink. In 1891, an Executive Order expanded the original 640-acre reservation by about 12,000 acres. Between 1905 and 1907, flood waters of the Colorado River filled the Salton Sink, creating the Salton Sea and inundating about 2,000 acres of the 1891 reservation lands. In 1909, a Secretarial Order transferred another 12,000 acres of land to the Reservation. About 9,000 acres of these lands were submerged under the Salton Sea; however, it was expected at the time of the transfer that the Salton Sea would recede from these lands within 25 years. Contrary to expectations, the Salton Sea did not recede, in large part due to natural runoff and drainage water flowing into it from the irrigation systems of the Imperial, Coachella, and Mexicali Valleys. This irrigation drainage was facilitated by various actions by the federal government, including construction of the Coachella Canal in the 1940's. Currently, 11,800 acres of the Tribe's 25,000-acre reservation are either under water or are not irrigable due to lack of proper drainage. In 1982, the United States brought an action in trespass in the Federal District Court of Southern California on behalf of the Tribe and its affected allottee landowners against the Imperial Irrigation District and the Coachella Valley Water District. See United States of America, et al. v. The Imperial Irrigation District, et al. (Case No. 82-1790-K (M)). This suit sought damages related to the inundation of Indian lands and injunctive relief against further flooding of those lands. On August 25, 1992, the court entered a final judgment which found the two districts liable for trespass but denied the United States' request for injunctive relief and ejectment. The Court ordered the two districts to pay the Tribe a total of $3,008,602 in past and future damages in lieu of a permanent injunction against continued flooding of the submerged lands. The United States, the two districts and the Tribe appealed the District Court's decision to the Ninth Circuit Court of Appeals. Subsequently, the Interior and Justice Departments entered into negotiations with the Tribe and the two districts in an effort to avoid a lengthy and costly appellate process and to resolve finally the dispute. Another objective of the negotiations was to resolve similar claims brought by the Tribe and affected allottees in a separate lawsuit against the United States and the two districts. To facilitate settlement negotiations, the court stayed action on the appeals as well as initial action on the Tribe's separate suit. In June, 1996, after months of difficult negotiations, representatives of the United States, the Tribe, the Imperial Irrigation District and the Coachella Valley Water District signed a Settlement Agreement that resolves their conflicting claims and provides for dismissal of litigation. Legislation necessary to ratify this Settlement Agreement and to authorize the Federal actions and appropriations necessary for its implementation was introduced in the House of Representatives on June 16, 1996, by Representative Sonny Bono as H.R. 3640. On June 19, 1996, Senators Dianne Feinstein and Barbara Boxer introduced companion legislation in the Senate as S. 1893. The House Committee on Resources subsequently reported H.R. 3640 (H. Report 104-777) and the House passed the bill on September 10, 1996. In the Senate, the Committee on Indian Affairs held a hearing on S. 1863 on July 18, 1996, and reported the bill favorably to the Senate on July 24th (S. Rept. 104-360). However, neither bill was considered by the full Senate before the 104th Congress adjourned sine die. No Torres-Martinez settlement legislation was introduced in the 105th Congress, during which time various legal and legislative efforts were under way in California to clarify state law with respect to gaming. Because the outcome of these efforts would have a direct bearing on key settlement provisions, and because there was a need to address concerns raised by the Cabazon Band of Mission Indians regarding the proximity to their reservation of possible land selections by the Torres-Martinez Tribe for gaming purposes, settlement legislation was held in abeyance. By the time the second session of the 106th Congress convened, the legal status of gaming in California, and Indian gaming in particular, had been clearly established. Consequently, on June 13, 2000, Representative Mary Bono for herself and Representative George Miller introduced H.R. 4643, which was referred to the Committee on Resources. On July 26, 2000, the Committee reported the bill favorably and on September 19, 2000, the House passed H.R. 4643 and sent it to the Senate, where it was referred to the Committee on Indian Affairs. Summary of settlement provisions As passed by the House of Representatives, H.R. 4643 is essentially the same legislation that was introduced in the House and the Senate in the 104th Congress as H.R. 3640 and S. 1863, respectively. The primary difference is new language in the Settlement Agreement and in section 6 of H.R. 4643 that reflects an agreement negotiated by representatives of the Torres-Martinez Tribe and the Cabazon Band of Mission Indians, with involvement by Executive Branch and Congressional representatives, regarding the proximity of possible future land selections by the Torres-Martinez Tribe to lands of the Cabazon Band. H.R. 4643 ratifies the Torres-Martinez Settlement Agreement and provides for its implementation. The bill provides for the establishment of trust accounts in the United States Treasury for the benefit of the Tribe and its affected allottee landowners. It authorizes payment of $10,200,000 in Federal funds--$4.2 million from the Department of Justice Judgment Fund and $6 million in appropriated funds, to be paid into the tribal and allottee trust accounts. The Coachella Valley Water District will pay approximately $338,000 and the Imperial Irrigation District will pay approximately $3,671,000 into these accounts, making the settlement payments total $14,200,000. The Settlement Agreement and H.R. 4643 provide authority for the Interior Department to take into trust status up to 11,800 acres of land (an amount equal to the flooded area of the Torres-Martinez reservation) purchased or otherwise acquired by the Tribe within two separate acquisition areas defined in the Settlement Agreement that are located roughly within the western and eastern boundaries of the Coachella Valley, subject to certain conditions. Trust acquisitions within the secondary area are limited to 640 acres and must be consolidated into not more than two separate parcels. Trust acquisitions in the primary area are limited to 11,800 acres minus the number of acres acquired in the secondary acquisition area. The Settlement Agreement and the Act further provide that the Secretary shall not take into trust status any land acquired by the Tribe within either the primary or the secondary acquisition area if the governing body of a city within whose incorporated area the land is located, or, if the land is unincorporated, the governing body of Riverside County, objects to such trust acquisition. Under the terms of the Settlement Agreement, lands located within either land selection area and situated within two miles of the reservation lands of any other Indian tribe will not be eligible for conveyance into trust absent the consent of the affected Indian tribe. The new language added by the House in section 6 of H.R. 4643 further bars the Secretary from taking into trust for the Tribe under generally applicable Federal statutes or regulations any lands that are both outside the boundaries of the secondary acquisition area and contiguous to any lands within the secondary acquisition area that are taken into trust pursuant to the Settlement Agreement and this Act. The Tribe's right to conduct gaming on lands taken into trust pursuant to the settlement is limited and restricted to one gaming operation on one physical site. Any gaming on these lands must be conducted consistent with the requirements of the Indian Gaming Regulatory Act (25 U.S.C. 2701; 102 Stat. 2467). Lands taken into trust for the Tribe shall be considered as if they were acquired in 1909 except with respect to water rights. Lands acquired by the Tribe will be subject to all valid water rights existing at the time of acquisition, and the Tribe will obtain all valid water rights appurtenant to acquired lands. The settlement also provides that the Tribe and the United States will convey to the water districts a permanent flowage easement over all Indian trust lands (approximately 11,800 acres), and all Federal lands (approximately 110,000 acres) located within and below the minus 200, contour of the Salton Sink. legislative history H.R. 4643 was introduced on June 13, 2000, by Representative Mary Bono and Representative George Miller (D- CA) and referred to the Committee on Resources. On July 26, 2000, the Resources Committee ordered H.R. 4643 reported favorably to the House of Representatives. On September 18, 2000, the House passed H.R. 4643 and on September 19, 2000, the bill was received by the Senate and referred to the Committee on Indian Affairs. committee recommendation and tabulation of vote On September 27, 2000, the Committee on Indian Affairs, in an open business session, considered H.R. 4643 and on a roll call vote of 8 yeas and 2 nays, ordered the bill reported favorably without amendment. section-by-section analysis Section 1. Short title This section cites the short title of H.R. 4643 as the ``Torres-Martinez Desert Cahuilla Indians Claims Settlement Act.'' Section 2. Congressional findings and purpose This section sets forth Congressional findings and purpose. Subsection (a) states findings and declarations that: (1) in 1876, 640 acres north of the Salton Sink in the Coachella Valley, California, were designated as the Torres-Martinez Indian Reservation; in 1891, an Executive Order issued pursuant to the Mission Relief Act of 1891 added another 12,000 acres to the reservation; (2) between 1905 and 1907, Colorado River flood waters filled the Salton Sink, creating the Salton Sea and inundating approximately 2,000 acres of the 1891 reservation lands; (3) in 1909, a Secretarial Order, issued pursuant to a 1907 amendment to the Mission Relief Act, added 12,000 acres of land, 9,000 of which were then submerged under the Salton Sea, to the reservation, with the expectation that the sea would recede from the submerged acreage within 25 years; (4) a majority of the lands added to the reservation in 1909 remain inundated due in part to the flowage of natural runoff and drainage water from irrigation systems of the Imperial, Coachella, and Mexicali Valleys into the Salton Sea; (5) in addition to the inundated lands, other tribal and individual Indian lands located on the perimeter of the Salton Sea are not irrigable due to the lack of proper drainage; (6) in 1982, the United States, in its own right and on behalf of the Tribe and allottees, brought an action in trespass seeking damages and injunctive relief (the United States Suit) against the Imperial Irrigation District (IID) and Coachella Valley Water District (CVWD); (7) in 1992, a Federal court entered judgment in the United States Suit requiring CVWD to pay $212,908 and IID to pay $2,795,694, in past and future damages to the Tribe in lieu of a permanent injunction against continued flooding of submerged lands; (8) the United States, CVWD and IID and the Tribe filed notices of appeal regarding the United States Suit; (9) the Court of Appeals for the Ninth Circuit stayed further action on appeals pending the outcome of settlement negotiations; (10) in 1991, the Tribe, for itself and for an individual allottee in her own right and as class representative of all other affected Indian allottees, brought suit (the Indian Suit) against the two water districts; (11) the Indian Suit was stayed by the court to facilitate settlement negotiations. Subsection (b) provides that the purpose of the bill is to facilitate and implement the Settlement Agreement negotiated and executed by the parties to the United States Suit and the Indian Suit for the purpose of resolving their conflicting claims to their mutual satisfaction and in the public interest. Section 3. Definitions This section provides definitions of the terms ``Tribe''; ``Allottees''; ``Salton Sea''; ``Settlement Agreement''; ``Secretary''; and ``Permanent Flowage Easement''. Section 4. Ratification of settlement agreement This section provides that the United States approves, ratifies and confirms the Settlement Agreement. Section 5. Settlement funds Subsection (a) provides for one tribal and two allottee settlement trust fund accounts to be established in the United States treasury for the Tribe and Allottees, deposits into which shall be available to the Secretary for distribution to the Tribe and Allottees in accordance with subsection 5(c). These accounts shall be known as the ``Torres-Martinez Settlement Account''; the ``Torres-Martinez Allottees Settlement Account I''; and, the Torres-Martinez Settlement Account II''. Subsection (b) provides for CVWD to pay $337,908 and IID to pay $3,670,694 to the United States for the benefit of the Tribe and Allottees; for such payments to be allocated to the three trust fund accounts pursuant to the Settlement Agreement; for the United States to pay $4,200,000 from the Department of Justice Judgment Fund and $6,000,000 to be appropriated by Congress into the three trust fund accounts; for CVWD or IID to pay an additional amount on any delinquent payment; and for CVWD, IID and the United States to be severally, not jointly, liable for its respective obligations to make payments under this subsection (b). Subsection (c) requires the Secretary to administer the three trust fund accounts established under subsection (a) in accordance with the terms and conditions of the Settlement Agreement. Section 6. Trust land acquisition and status Subsection (a) provides that the Secretary shall convey into trust status not more than 11,800 acres of land purchased or otherwise acquired by the Tribe within two geographic areas in accordance with the Settlement Agreement and this Act, and that such lands shall be considered as if they were acquired in 1909 except with respect to water rights. The Tribe may acquire and have conveyed into trust status 11,800 acres of land within a ``primary acquisition area'', as defined in the Settlement Agreement, less the number of acresacquired and conveyed into trust within a ``secondary acquisition area'', as defined in the Settlement Agreement. Not more than 640 acres of land may be acquired in the secondary acquisition area. The Secretary shall not convey into trust any lands located in the primary acquisition area if the governing body of the city within whose incorporated boundaries the subject land lie, or, if the lands are located within an unincorporated area, the governing body of Riverside County, objects to the Tribe's request to convey the lands into trust and notifies the Secretary of such objection within 60 days of receiving the Tribe's request. The Secretary shall not convey into trust any lands located in the secondary acquisition area if the governing body of the city within whose incorporated boundaries the subject lands lie, or, if the lands are located within an unincorporated area, the governing body of Riverside County, objects to the Tribe request to convey the lands into trust and notifies the Secretary of such objection within 60 days of receiving the Tribe's request. The Secretary shall not take into trust for the Tribe under generally applicable Federal statutes or regulations any lands that are both outside the boundaries of the secondary acquisition area and contiguous to any lands within the secondary acquisition area that are taken into trust pursuant to the terms of the Settlement Agreement and this Act. Subsection (b) provides that the Tribe may conduct gaming on only one site within the lands acquired under this section using the acquisition process established under the Settlement Agreement. Subsection (c) provides that all lands acquired by the Tribe shall be subject to: (1) all valid water rights existing at the time of acquisition; (2) the paramount rights of any person who recharges or stores water in a groundwater basin; and (3) all valid water rights appurtenant to the land at the time immediately prior to tribal acquisition. Section 7. Permanent flowage easements This section provides that the United States, as trustee for the Tribe and individual Indian allotment owners, and the Tribe shall convey to the CVWD and to the IID a permanent flowage easement as to all Indian trust lands (approximately 11,800 acres) located within and below the minus 220-foot contour of the Salton Sink. It further provides that the United States, in its own rights, shall convey to CVWD and the IID a permanent flowage easement as to all Federal lands (approximately 110,000 acres), located within and below the minus 220-foot contour of the Salton Sink, in accordance with the terms and conditions of the Settlement Agreement. Section 8. Satisfaction of claims, waivers, and releases Subsection (a) provides that the benefits available to the Tribe and allottees under the Settlement Agreement and this Act shall constitute full and complete satisfaction of all claims by the Tribe and the allottees arising from or related to the inundation and lack of drainage of tribal and allottee lands. Subsection (b) provides that the United States approves and confirms the releases and waivers required by the Settlement Agreement and this Act. Section 9. Miscellaneous provisions Subsection (a) provides that nothing in the Act of the Settlement Agreement shall affect the eligibility of the Tribe or its members for any Federal program or diminish the trust responsibility of the United States to the Tribe and its members. Subsection (b) provides that no payments made pursuant to this Act shall result in the reduction or denial of any Federal services or programs to the Tribe or its members to which they are entitled or eligible because of their status as a Federally recognized Tribe or member thereof. Subsection (c) provides that except for rights specifically waived in the Act or the Settlement Agreement, nothing in this Act shall affect or diminish any right to which the Tribe is entitled under existing law. Subsection (d) provides that the Settlement Agreement may be amended in accordance with its terms and conditions to the extent that such amendments are not inconsistent with the trust land acquisition provisions of the Settlement Agreement as such provisions existed on the date of enactment of this Act in the case of Modifications One and Three, and on September 14, 2000, in case of Modification Four. Section 10. Authorization of appropriations This section authorizes the appropriation of such sums as are necessary to carry out this Act. Section 11. Effective dates Subsection (a) provides that this Act shall become effective on the date of enactment, except as provided in subsection (b). Subsection (b) provides that Sections 4, 5, 6, 7, and 8 shall take effect on the date on which the Secretary determines that the Tribe, CVWD, and IID have agreed to the Settlement Agreement and the provisions of this Act, and that the Tribe has executed the waivers and releases required by the Settlement Agreement and this Act. cost and budgetary consideration The cost and budgetary estimate for H.R. 4643, as provided by the Congressional Budget Office, is set forth below: H.R. 4643--Torres-Martinez Desert Cahuilla Indians Claims Settlement Act Summary: H.R. 4643 would ratify a settlement agreement entered into by the Department of Justice (DOJ), the Imperial Irrigation District, the Coachella Valley Water District, and the Torres-Martinez Desert Cahuilla Indian Tribe. Under the agreement, the tribe would receive a total of $10 million from the federal government to compensate the tribe for the flooding of reservation lands and relief against further inundation of those lands. In addition, the Department of the Interior (DOI) would take into trust up to 11,800 acres of land acquired by the tribe, and the tribe would be permitted to conduct gaming on this land. The legislation would authorize the appropriation of $6 million to the tribe to satisfy the terms of the settlement agreement. CBO estimates that implementing H.R. 4643 would cost $6 million in fiscal year 2001. Under the settlement, an additional $4 million would be paid from the Judgment Fund to the tribe, and would not require appropriation action. Enacting H.R. 4643 would result in direct spending of $4 million in fiscal year 2001. Because the legislation would affect direct spending, pay-as-you-go procedures would apply. The legislation contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA). Any costs resulting from the settlement agreement would be incurred voluntarily by the parties to that agreement. Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 4643 is shown in the following table. This estimate assumes that the amounts authorized will be appropriated and that the legislation will be enacted near the beginning of fiscal year 2001. The costs of this legislation fall within budget function 800 (general government) and 450 (community and regional development). ------------------------------------------------------------------------ By fiscal year, in millions of dollars-- --------------------------------------- 2001 2002 2003 2004 2005 ------------------------------------------------------------------------ CHANGES IN SPENDING SUBJECT TO APPROPRIATION Authorization Level............. 6 0 0 0 0 Estimated Outlays............... 6 0 0 0 0 CHANGES IN DIRECT SPENDING Budget Authority................ 4 0 0 0 0 Estimated Outlays............... 4 0 0 0 0 ------------------------------------------------------------------------ Basis of estimate: H.R. 4643 would authorize DOJ and DOI to make payments to new tribal trust funds, including $4 million from the Judgment Fund and $6 million from appropriated amounts. These funds could be spent on attorney fees, per capita payments, land acquisition, and other activities as provided for in the settlement agreement. Spending subject to appropriation H.R. 4643 would authorize the appropriation of $6 million to the trust funds established by this legislation to satisfy the settlement agreement entered into by the DOJ, the Imperial Irrigation District, the Coachella Valley Water District, and the Torres-Martinez Desert Cahuilla Indian Tribe. The funds deposited into the trust funds would become the tribe's property, so assuming that appropriations of $6 million are provided in 2001, outlays of that amount would be recorded in that year. In addition, H.R. 4643 would authorize DOI to take into trust up to 11,800 acres of land acquired by the tribe. Based on information from the department, CBO estimates that any administrative cost to the federal government to take those lands into trust would not be significant. Direct spending Under the terms of the settlement agreement, the federal government would transfer $4 million into the tribe's trust funds from the Judgment Fund. The funds deposited into thetrust funds would become the tribe's property. Because the settlement agreement requires the approval of the Congress, enacting H.R. 4643 would result in additional direct spending of $4 million in 2001. The tribe does not have a legal claim pending against the federal government, so the Judgment Fund is not available to fund a settlement agreement absent this legislation. This settlement would extinguish any future claim that the tribe may have against the United States, so it is possible that the amount paid to the tribe under the legislation could be offset by a reduction in payments that would be made from the Judgment Fund in future years. However, CBO cannot estimate either the likelihood or the magnitude of such offset because there is no basis for predicting either the outcome of possible litigation against the United States or the amount of compensation, if any. Pay-as-you-go considerations: The Balanced Budget and Emergency Deficit Control Act sets up pay-as-you-go procedures for legislation affecting direct spending or receipts. The following table summarizes the estimated impact of H.R. 4643 on direct spending. ---------------------------------------------------------------------------------------------------------------- By fiscal year, in millions of dollars-- ---------------------------------------------------------------------------- 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 ---------------------------------------------------------------------------------------------------------------- Changes in outlays \1\............. 0 4 0 0 0 0 0 0 0 0 0 Changes in receipts................ Not applicable ---------------------------------------------------------------------------------------------------------------- \1\ This cost could be offset by a reduction in future payments from the Judgment Fund, however, CBO cannot estimate the likelihood or magnitude of such an offset. Intergovernmental and private-sector impact: H.R. 4643 contains no intergovernmental or private-sector mandates as defined in UMRA. Any costs resulting from the settlement agreement would be incurred voluntarily by the parties to that agreement. Under the terms of the agreement, the Coachella Valley Water District and the Imperial Irrigation District would make certain payments for the benefit of the tribe. In return for these payment and other benefits conferred by the agreement, the tribe would give up its claims relating to land flooded by the Salton Sea. Previous CBO cost estimate: On August 17, 2000, CBO transmitted an estimate for H.R. 4643, the Torres-Martinez Desert Cahuilla Indians Claims Settlement Act, as ordered reported by the House Committee on Resources on July 26, 2000. The two versions of the legislation are similar, and our cost estimates are identical. Estimate prepared by: Federal Costs: Lanette J. Keith. Impact on State, Local, and Tribal Governments: Marjorie Miller. Impact on the Private Sector: Lauren Marks. Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. Regulatory impact statement Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires each report accompanying a bill to evaluate the regulatory and paperwork impact that would be incurred in carrying out the bill. The Committee finds that enactment of H.R. 4643 will result in de minimis regulatory and paperwork impact. Executive communications The Committee has received no official communication from the Administration on the provisions of H.R. 4643. changes in existing law The Committee finds that H.R. 4643, if enacted, would make no changes in existing law. A P P E N D I X I ---------- The text of the Agreement of Compromise and Settlement Concerning Claims to Lands of the United States Within and on the Perimeter of the Salton Sea Drainage Reservoir Held in Trust for the Torres-Martinez Indians, together with four Modifications thereto, set forth below:![]()