[Senate Report 109-291]
[From the U.S. Government Publishing Office]
Calendar No. 531
109th Congress Report
SENATE
2d Session 109-291
======================================================================
AMENDING THE SHIVWITS BAND OF THE PAIUTE INDIAN TRIBE OF UTAH WATER
RIGHTS SETTLEMENT ACT TO ESTABLISH AN ACQUISITION FUND FOR THE WATER
RIGHTS AND HABITAT ACQUISITION PROGRAM
_______
July 24, 2006.--Ordered to be printed
_______
Mr. McCain, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 3501]
The Committee on Indian Affairs, to which was referred the
bill (S. 3501) to amend the Shivwits Band of the Paiute Indian
Tribe of Utah Water Rights Settlement Act to establish an
acquisition fund for the water rights and habitat acquisition
program, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
Purpose
The bill to amend the Shivwits Band of the Paiute Indian
Tribe of Utah Water Rights Settlement Act, P.L. 106-263 (114
Stat. 737, August 18, 2000), corrects deficient language in
Section 10(f) of the Settlement Act. Section 10(f) authorized
$3 million to be placed in a trust fund to implement a water
rights and habitat acquisition program for the Santa Clara
river basin in Utah but the language was insufficient to
accomplish the intent of the provision. S. 3501 corrects the
language deficiency, allowing Department of the Interior to
establish the trust fund.
Background
The Shivwits Band of the Paiute Indian Tribe of Utah Water
Rights Settlement Act, P.L. 106-263 (114 Stat. 737, August 18,
2000), ratified a negotiated settlement of the Shivwits Band of
Paiute Indians' claims to water rights in the Santa Clara
River. Section 10(f) of the Act authorized the Secretary of the
Interior to establish a water rights and habitat acquisition
program in the Virgin River Basin primarily for the benefit of
native plant and animal species in the Santa Clara River Basin
listed under the Endangered Species Act and secondarily for the
benefit of listed species in the Virgin River Basin. However,
when the Department of the Interior attempted to implement the
provision in Section 10(f), to deposit and maintain the $3.0
million in an interest bearing account, the Department of
Treasury advised the Department of the Interior that the
language in Section 10(f) was insufficient for this purpose.
The Department of the Interior, based on guidance from the
Department of Treasury, provided proposed legislation to
correct the deficiency in the original statutory language.
The Committee received communication from the Department of
the Interior, dated May 10, 2005, on Senate Bill 536. S. 536,
the Native American Omnibus Act of 2005 contained separate
provisions dealing with a variety of topics related to Indians
or Indian tribes. The Department included a request to
introduce legislation for Shivwits as an additional technical
correction.
Legislative History
S. 3501 was introduced on June 13, 2006, by Senator McCain
and was referred to the Committee on Indian Affairs. On June
22, 2006, S. 3501 was unanimously passed out of the Committee
and ordered reported without amendment.
Committee Recommendation and Tabulation of Vote
On June 22, 2006, the Committee, in an open business
session, considered S. 3501. By a unanimous voice vote, the
Committee ordered the bill reported favorably to the full
Senate with the recommendation that the bill do pass.
Section-by-Section Analysis
Section 1
This section amends section 10(f) of the Shivwits Band of
the Paiute Indian Tribe of Utah Water Rights Settlement Act,
P.L. 106-263 (114 Stat. 737, August 18, 2000). This amendment
adds a new subsection (g) that establishes the Acquisition
Fund, specifies the type of investments that may be made, and
requires any income from the investments be credited to the
Acquisition Fund.
Cost and Budgetary Considerations
The Congressional Budget Office cost estimate for S. 3501
is set forth below:
S. 3501--A bill to amend the Shivwits Band of the Paiute Indian Tribe
of Utah Water Rights Settlement Act to establish an acquisition
fund for the water rights and habitat acquisition program
S. 3501 would amend the Shivwits Band of the Paiute Indian
Tribe of Utah Water Rights Settlement Act to establish a
special fund for the water rights and habitat acquisition
program created by that act. The acquisition program would use
the resources in the special fund for the conservation and
recovery of native plant or animal species in the Santa Clara
River Basin. The bill would appropriate $3 million to the new
special fund. (Under current law, that amount is authorized to
be appropriated to obtain water rights and real property.) As a
result, CBO estimates that S. 3501 would increase direct
spending by $3 million over the 2007-2016 period.
S. 3501 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 Gregory Waring.
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
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 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 impact should be minimal.
Executive Communications
The Committee has not received official executive
communications on S. 3501.
U.S. Department of the Interior,
Office of the Secretary,
Washington, DC., May 10, 2005.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter sets forth the views of the
Department of the Interior on S. 536, a bill ``to make
technical corrections to laws relating to Native Americans, and
for other purposes.'' We support the enactment of S. 536 as
ordered reported by the Senate Committee on Indian Affairs on
March 9, 2005. However, the Department suggests the following
amendments be made to the bill.
Section 101. Indian Financing Act amendments
Section 101 of the bill would amend the Indian Financing
Act of 1974 with the intent of expediting the implementation of
a secondary market for loans guaranteed under the Bureau of
Indian Affairs Loan Guaranty Program. We request the following
amendment be made to this section which will allow Indian and
non-Indian lenders to loan money to Indian-owned businesses.
This will allow the Bureau of Indian Affairs (BIA) to provide
financial assistance to a broader number of American Indians
and Alaska Natives.
We suggest that Section 101(d) be amended to read:
(d) Loans Ineligible for Guaranty or Insurance.--Section
206 of the Indian Financing Act of 1974 (25 U.S.C. 1486) is
amend by inserting ``(not including an eligible Community
Development Finance Institution)'' after ``Government''.
The Administration has some additional concerns regarding
compensation of secondary market fiscal agents and funding for
the cost of administering the secondary market, which we look
forward to discussing with the Committee.
Section 104. Indian Pueblo Land Act amendments
Section 104 provides for the Indian Pueblo Land Act
amendments to clarify criminal jurisdiction with the exterior
boundaries of the Pueblo owned land grants. Criminal
jurisdiction within the Pueblo grants has long been a problem
for many of the Pueblos, the counties and cities in which they
are located, and the U.S. Attorney's office. We support the
legislative attempt to clarify the jurisdictional issues.
However, we suggest sections 20(b) and (c) be amended because
it does not precisely track the allocation of jurisdiction
applicable in Indian country generally under the Indian Civil
Rights Act (ICRA). The ICRA recognizes the inherent
jurisdiction of tribes over any person who is an ``Indian.''
This definition would ensure that Pueblo would have
jurisdiction over certain persons who are not enrolled members
of a tribe, such as minor children who have not yet been
enrolled as a member.
In subsection (b) by adding a ``,'' after Pueblo and by
striking ``of another Indian tribe'' and inserting in lieu
thereof ``non-member Indian''.
In subsection (d) by striking ``a member of an Indian
tribe'' and inserting in lieu thereof ``an Indian''.
Section 105. Prairie Island Land Conveyance
Section 105 would take land including all improvements,
cultural resources, and sites on the land, into trust for the
Prairie Island Indian Community. We suggest striking the words
``all improvements'' from Sec. 105(a) so it reads as follows:
(a) In General.--The Secretary of the Army shall convey all
right, title, and interest of the United States in and to the
land described in subsection (b), including cultural resources,
and sites on the land, subject to the flowage and sloughing
easement described in subsection (d) and to the conditions
stated in subsection (f), to the Secretary, to be--* * *
The Department feels this change is necessary to address
any uncertainty about the Government having a fiduciary
obligation to repair and maintain any acquired improvements.
In addition, section 105 would require a boundary survey to
be conducted no later than 5 years after the date of
conveyance. The boundary survey should be required prior to the
conveyance, to avoid any disputes or the need for corrections
after the conveyance has occurred.
Section 106. Binding arbitration for Gila River Indian Community
reservation contracts
This section would provide the Gila River Indian Community
the authority to enter into binding arbitration agreements for
any lease or contract the tribe may enter into affecting the
tribe's land. We want to make it clear that it is our view that
this section would not require the United States to enter into
binding arbitration or waive the sovereign immunity of the
United States.
Section 111. Indian Arts and Crafts
The Department requests that the amendments to the Indian
Arts and Crafts Act (Act) include a provision authorizing the
Indian Arts and Craft Board (Board) to recommend the Secretary
impose administrative fines for violations of the Act.
Administrative fines would be imposed for those violations that
would not otherwise be serious enough to warrant a full civil
or criminal action being pursued by the United States Attorney
General. Many other federal agencies, including those within
the Department, have the authority to levy administrative
fines. Granting the Board similar authority would allow it to
take action in meritorious cases for which the Attorney General
is unlikely to devote resources.
In addition, the Department requests that any amounts
recovered as a result of an administrative fine or civil
action, after making reimbursements contemplated in this
section, be paid to the Indian Arts and Crafts Board for
statutorily mandated nonenforcement activities such as
trademark protection and the promotion of authentic Indian Arts
and Crafts.
The Department supports extending investigative authority
to other federal law enforcement agencies. To facilitate the
usefulness of that, we suggest the Committee clarify a
potential jurisdictional issue that may arise. Specifically,
BIA law enforcement may not investigate outside of Indian
country. When off reservation, the Officer may only ``observe''
a violation rather than continue his investigation without
contacting the appropriate federal enforcement agency, in most
cases the FBI. The investigating officer should be granted the
authority to be able to cross jurisdictions for the express
purpose of enforcing the Indian Arts and Crafts Act. For
example, BIA law enforcement officers should be granted the
authority to specifically investigate violations of the Indian
Arts and Crafts Act outside of Indian country. The Department
will work with the Department of Justice on this expansion of
jurisdictional authority.
Section 111(b)(7) states in part that the Department shall
promulgate regulations which includes a definition of ``Indian
product'' and ``examples of each Indian product''. The
regulations currently provide such a list. Therefore, this
provision should be deleted. However if this provision remains,
the phrase ``examples of each Indian product'' should be
amended to ``examples of Indian products'' so that the
published list does not become an exclusive list that courts
interpret as precluding action for items that may not be
specifically included on the list. In addition, the Department
is concerned that the amended definitions do not include a
definition for ``product of a particular Indian tribe or Indian
arts and crafts organization.'' Excluding products of a
particular Indian tribe or Indian arts and crafts organization
could potentially remove the right of a tribe to protect their
cultural heritage by using their tribal name in the description
of a particular art or craft work for which their Tribe
specializes in or is particularly known for.
The Department requests an additional conforming amendment
be made to the Indian Arts and Crafts Act. The trademark
provision, section 102 of the Act, permits the Board to
register any trademark owned by the Government in the U.S.
Patent and Trademark Office (USPTO) without charge and assign
it and the goodwill associated with it to an individual Indian
or Indian tribe without charge. The Act, however, does not
permit the board to register trademarks owned by individual
Indian artists, artisans, tribes, and businesses for arts and
crafts marketing purposes. Under the Lanham Act, the party
registering the trademark must also own the mark. Therefore, if
the Board attempted to register a trademark owned, for example,
by a Navajo tribal arts and crafts enterprise, the application
would be denied. Therefore, the word ``government'' should be
struck in order to allow the Board to act as an agent and file
without charge trademark registration applications with the
USPTO for trademarks that are owned by an individual Indian,
Indian tribe, or Indian arts and crafts organization.
Finally, the Department of Justice advises that there may
be constitutional concerns with section 111(b), which would
amend section 6 of the Act by defining the term ``Indian
tribe'' to include ``an Indian group that has been formally
recognized as an Indian tribe by . . . (i) a State legislature;
(ii) a State commission; or (iii) another similar organization
vested with State legislative tribal recognition authority.''
Section 111(c) would add the same definition to 18 U.S.C.
1159(c). Under the Constitution, only the federal government
has authority to recognize Indian tribes. See, e.g., McClanahan
v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973)
(source of Federal authority over Indian matters ``derives from
Federal responsibility for regulating commerce with Indian
tribes and for treaty making''). In the absence of such federal
recognition, the term ``Indian tribe'' might be viewed as a
racial classification subject to strict scrutiny under Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995), rather
than the more deferential review accorded to classifications
based on membership in a federally recognized Indian tribe
under Morton v. Mancari, 417 U.S. 535 (1974). The part of this
definition relating to recognition by state entities should be
deleted.
Section 114. Research and educational activities
Section 114 would add an additional authorized use of funds
(research and educational activities relating to Native
Hawaiian law) to the Education for Native Hawaiians program,
which is administered by the Department of Education. The
Department of Education objects to this amendment. The purpose
of the program should continue to be to strengthen educational
programs and services for Native Hawaiians (pre-K through
postsecondary), in order to raise the educational achievement
of that population. This additional authorized activity,
research on Native Hawaiian law, would be for a different
purpose and thus has the potential to dilute the impact of the
program. Moreover, the Department of Education has already
received earmarked funding, through the fiscal year 2005
omnibus appropriations act, to establish a center of education
in Native Hawaiian law at the University of Hawaii. The
proposed amendment to allow for the support of research and
education in Native Hawaiian law would, in other words, be
enacted after the appropriation of funding for such research
and education (and most likely after the Department of
Education has made a grant for the new center). Therefore, this
provision is unnecessary.
Section 121. Definition of Indian student count
Section 121 amends the definition of ``Indian student
count'' used in the formula by which the Department of
Education calculates awards to tribally-controlled
postsecondary vocational and technical institutions under the
Carl D. Perkins Vocational and Technical Education Act.
Education has advised that it is developing the Indian student
count data needed to calculate the FY 2005 awards, and is
concerned that if the definitional changes were to go into
effect in FY 2005, they would likely delay the FY 2005 grants.
In order to prevent any the disruption of the award of these
grants, Education recommends that section 121 be amended to
clarify that its definition changes would take effect beginning
in FY 2006.
Section 122. Native Nations leadership, management, and policy
Section 122 would amend the Morris K. Udall Scholarship and
Excellence in National Environmental and Native American Public
Policy Act of 1992 (20 U.S.C. 5602). The Department of Justice
advises that there may be constitutional concerns with the
amendment to the Morris K. Udall Scholarship Act of 1992, 20
U.S.C. 5605(a)(1). The amendment to subparagraph (C) would
permit awards to members of state-recognized tribes. As stated
above, Department of Justice is concerned that this may be
viewed as a racial classification subject to strict scrutiny
under Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235
(1995), rather than the more deferential review accorded to
classifications based on membership in a federally recognized
Indian tribe under Morton v. Mancari, 417 U.S. 535 (1974).
Therefore, the Department of Justice recommends that Section
122(c)(C)(iii) be deleted.
Section 132. Border preparedness on Indian land
Section 132 would amend Subtitle D of Title IV of the
Homeland Security Act of 2002 (6 U.S.C. 251 et seq.) by adding
a new Section 447 entitled ``Border Preparedness Pilot Program
on Indian Land.'' The Department of the Interior supports the
amendments outlined in the new Section 447. By specifically
including Indian tribes, it enhances their ability to protect
the border integrity of the United States. However, the
Department of Homeland Security recommends the following
amendments:
Proposed section 447(a)(2): The Department of Homeland
Security believes that the proposed definition of Indian tribe
would preclude the participation of Alaska Native
organizations. Therefore, the Department of Homeland Security
recommends amending the definition to read as follows:
(2) INDIAN TRIBE.--The term `Indian tribe' means all Indian
entities listed in the Federal Register list of Indian entities
recognized as eligible to receive services from the United
States, published pursuant to section 104 of the Federally
Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-l).
Proposed Section 447(b) and (c)(1): The Department of
Homeland Security conducts preparedness programs, such as the
proposed pilot program, through its Office of Domestic
Preparedness. To ensure that the tribes are treated equitably
and provided access to the full range of preparedness programs,
the Department of Homeland Security recommends that the matter
preceding paragraph (1) of subsection (b) be amended by
striking ``Under Secretary for Board and Transportation
Security'' and inserting ``Office of Domestic Preparedness''.
The Department of Homeland Security recommends that a similar
amendment be made to proposed section (c)(1).
Finally, to clarify jurisdiction, the Department of
Homeland Security recommends that proposed section 447 be
amended by redesignating proposed subsection (e) as proposed
subsection (f); and after proposed subsection (d), by inserting
the following new subsection:
``(e) LIMITATION.--Nothing in this section shall be
construed as a grant of statutory authority to an Indian tribe,
tribal organization, or tribal government to exercise any
authority vested in the Secretary of Homeland Security or
enforce any customs, immigration, or maritime law.''
Title II--Other Amendments to Laws Relating to Native Americans
Section 211. Navajo Health Contracting
Section 211 would require that the Navajo Health
Foundation/Sage Memorial Hospital at Ganado, AZ, be considered
a tribal contractor under the Indian Self-Determination and
Education Assistance Act (ISDEAA) for purposes of extending
Federal Tort Claims Act (FTCA) coverage to contract employees,
to provide access to the Federal sources of supply, and to make
patient records eligible for storage by Federal Records Centers
to the same extent and in the same manner as other Department
of Health and Human Services patient records.
If enacted, this section would allow Navajo Nation Health
Foundation (NHF) access to these services and benefits. This
access to benefits and services would continue until such time
as the NHF's current funding is adjusted by Congress to allow
them to fully negotiate a contract under ISDEAA. This provision
would establish a precedent for tribes/tribal organizations
seeking to negotiate an ISDEAA contract to seek legislative
authorization to select certain provisions in the ISDEAA that
would be applied to them until such time as they are able to
complete all requirements required in the ISDEAA.
The Department of Health and Human Services is concerned
that this provision circumvents the contracting requirements of
the ISDEAA and selectively makes provisions applicable to the
Navajo Health Foundation. In addition, the Department of
Justice is concerned with selectively extending FTCA coverage
to entities that do not meet the full set of requirements under
the ISDEAA. For these reasons, the Department of Health and
Human Services and Department of Justice recommend that section
211 be deleted.
Section 221. Probate Reform
The Department recommends some additional amendments be
made to the American Indian Probate Reform Act (AIPRA). We
recommend adding a new subsection (g) to section 221 that would
delete the paragraph in AIPRA regarding Family Cemetery Plots.
The Department does not hold or manage any cemetery plots in
trust status. Therefore, they would not be subject to the
Department's probate procedures. Family cemetery plot probate
issues fall outside the jurisdiction of the federal government.
(g) RULE OF CONSTRUCTION.--subsection (i) of Section 207 of
the Indian Land Consolidation Act (25 U.S.C. 2206) (as amended
by section 3(d) of the American Indian Probate Reform Act of
2004 (Public Law 108-374) is amended by striking paragraph (7).
In addition, we request the following technical amendments
be included in this section:
Under Partition of highly fractionated Indian
lands, section 2204(d)(2)(I)(iii)(IV)(aa) should be amended by
striking ``less'' and inserting in lieu thereof ``more''.
Under Descent and distribution, estate planning--
section 2206(f)(2)(A) should be amended
by striking ``advise''
section 2206(f)(2)(B) should be amended
by striking ``among'' and inserting in lieu thereof
``as authorized by the Secretary for'' general rules
governing probate, section 2206(k)(2)(A)(ii)(I) should
be amended by striking ``date of enactment'' and
inserting in lieu thereof ``effective date''.
Additional amendments
The Department also suggests additional amendments be added
to S. 536. We recommend the following two amendments to the
Shivwits Water Rights Settlement and the Individuals with
Disabilities Education Act be added to the end of Title II. We
also recommend two new titles be added to the bill that would
provide a technical correction to address the decisions in
Youpee v. Babbitt and DuMarce v. Norton and give the Secretary
the authority to address unclaimed property.
Subtitle D--Shivwits water rights settlement
Section 10 of P.L. 106-263 authorizes a water rights and
habitat acquisition program for the Santa Clara and Virgin
Rivers as a safety net to address environmental consequences of
the water settlement agreement that may not have been evident
at the time of enactment. Congress appropriated the $3.0
million authorized to be appropriated by Section 10. When the
Department attempted to implement the provision in Section 10,
which was intended to maintain the $3.0 in an interest bearing
account, the Treasury Department advised that the language in
Section 10 was insufficient for this purpose. Based on guidance
from the Treasury Department, the proposed technical amendment
was developed to correct the deficiency in the original
statutory language.
Section 10 of the Shivwits Band of the Paiute Indian Tribe
of Utah Water Rights Settlement Act of August 18, 2000, Public
Law 106-263 (114 Stat.737), is amended by:
(1) Deleting the second sentence in subsection 10(f) (114
Stat. 744) which reads: ``The Secretary is authorized to
deposit and maintain this appropriation in an interest bearing
account, said interest to be used for the purposes of this
section.''
(2) Adding the following subsection 10(g):
``(g) ESTABLISHMENT OF ACQUISITION FUND.--There is
established in the Treasury of the United States a fund to be
known as the Santa Clara Water Rights and Habitat Acquisition
Fund (hereinafter called the ``Acquisition Fund''). The
Secretary shall deposit into the Acquisition Fund the funds
appropriated pursuant to subsection (f). The Acquisition Fund
principal and any income thereon shall be managed in accordance
with this section 10.''
(3) Adding the following subsection 10(h):
``(h) INVESTMENT OF ACQUISITION FUND.--The Secretary of the
Interior may request the Secretary of the Treasury to invest
such portion of the Acquisition Fund as is not, in the
Secretary of the Interior's judgment, required to meet the
current needs of the fund. Such investments shall be made by
the Secretary of the Treasury in public debt securities with
maturities suitable to the needs of the fund, as determined by
the Secretary of the Interior, and bearing interest at a rate
determined by the Secretary of the Treasury, taking into
consideration current market yields on outstanding marketable
obligations of the United States of comparable maturity.''
Subtitle E--Individuals with Disabilities Education Improvement Act
Section 611(e)(1)(A) of, the Individuals with Disabilities
Education Act (IDEA), as amended by Public Law 108-446, the
Individuals with Disabilities Education Improvement Act of 2004
allows states and outlying areas to reserve money for state
administrative purposes, but omitted language allowing the
Secretary of the Interior to reserve money for state
administrative purposes. While arguably the Department of
Education can permit this use of funds in regulations, the
support for this use would be more clearly supported if it were
included in the statute. The suggested addition to section
611(e)(1)(A) provided below, would clarify that the Secretary
of the Interior is not barred from reserving a portion of the
Special Education, Part B dollars, for administrative costs,
similar to all states and outlying areas that also receive
these dollars.
In addition, section 611(h)(1)(A), now imposes statutory
deadlines as to when the Department of the Interior is to
distribute the IDEA Part B dollars they receive. This provision
is unlike any requirement imposed on any state or outlying
area. This provision requires the Secretary of the Interior to
distribute these dollars without first determining what the
need is at each school, or without looking first to the dollars
appropriated to the Department of the Interior for special
education services. Therefore, the Department of the Interior
will no longer be able to the use the individual need of each
student as the basis for the distribution of the Part B dollars
or ensure that funding given to the schools is being used
properly. Therefore, the Department recommends the deletion of
section 611(h)(1)(A)(i) and (ii), which would allow the
Secretary of the Interior to distribute IDEA Part B dollars
based on student need and removes the distribution dates.
Section 611 of the Individuals with Disabilities Education
Act is amended by:
(1) Adding subsection (iii) to section 611(e)(1)(A):
``(iii) The Secretary of the Interior may reserve for each
fiscal year not more than 5 percent of the amount the
Department of the Interior receives under (h)(1)(A) for the
fiscal year or $800,000 (adjusted in accordance with
subparagraph B), whichever is greater.''
(2) Deleting in section 611(h)(1)(A) the following
sentence: ``Of the amounts described in the preceding
sentence--(i) 80 percent shall be allocated to such schools by
July 1 of that fiscal year; and (ii) 20 percent shall be
allocated to such schools by September 30 of that fiscal
year.''
Youpee and Sisseton-Wahpeton
A new title should be added to S. 536 that would provide a
technical correction to address the decisions in Youpee v.
Babbitt and DuMarce v. Norton. The United States Supreme Court
in Youpee held the escheat provision of the Indian Land
Consolidation Act as unconstitutional. In DuMarce, the District
Court for the District of South Dakota found unconstitutional a
statute under which any interest of less than two and a half
acres would automatically escheat to the Sisseton Wahpeton
Sioux Tribe. As a result of these two decisions, the Department
is faced with having to revest interests that escheated under
both statutes back to the rightful heir. We request that a new
title be added declaring that any interest that escheated
pursuant to these Acts be vested in the tribe to which they
escheated unless they have been revested in the name of the
heirs of the allottee by the Secretary since the escheatment.
The provision should provide that the escheat of those
interests to the tribes involved a taking by the United States
and should provide compensation to the heirs of those escheated
interests.
Unclaimed property
Under state law, a state may sell or auction off certain
personal property that has not been claimed by an owner within
a certain amount of time, usually within 5 years. This is not
the case with inactive Individual Indian Money accounts or real
property interests. Often times the whereabouts of account
owners are unknown to the Department because account holders do
not respond to our requests for address information and our
repeated attempts to locate them have been unsuccessful. This
may be because the small amount in their account does not make
such effort worthwhile. However, the Department must account
for every interest regardless of size and we do not have the
authority to stop administering accounts where whereabouts of
the owner are unknown. We must have the authority to close
these small accounts and restore economic value to the assets
if the owner does not claim their interest within a certain
amount of time. If the owner does not come forward, the revenue
generated from the interest should be held in a general holding
account against which claims could be made in the future if the
owner's whereabouts become known or used to further the
fractionation program.
Conclusion
The Department looks forward to working with the Committee
on addressing the above issues. The Office of Management and
Budget has advised that there is no objection to the
presentation of this report from the standpoint of the
Administration's program.
Sincerely,
Matt Eames,
Director, Office of Congressional and Legislative Affairs.
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. 3501, 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 106-263; 114 STAT. 744
SEC. 10. WATER RIGHTS AND HABITAT ACQUISITION PROGRAM.
* * * * * * *
(f) Authorization.--There is authorized to be appropriated
from the Land and Water Conservation Fund for fiscal years
prior to the fiscal year of 2004, a total of $3,000,000 for the
water rights and habitat acquisition program authorized in this
section. [The Secretary is authorized to deposit and maintain
this appropriation in an interest bearing account, said
interest to be used for the purposes of this section.] The
funds authorized to be appropriated by this section shall not
be in lieu of or supersede any other commitments by Federal,
State, or local agencies. The funds appropriated pursuant to
this section shall be available until expended, and shall not
be expended for the purpose set forth in subsection (a)(2)
until the Secretary has evaluated the effectiveness of the
instream flow required and provided by the Santa Clara Project
Agreement, and has assured that the appropriations authorized
in this section are first made available for the purpose set
forth in subsection (a)(1).
``(g) Acquisition Fund.--
``(1) Establishment.--There is established in the
Treasury of the United States a fund to be known as the
`Santa Clara Water Rights and Habitat Acquisition Fund'
(referred to in this section as the `Acquisition
Fund'), consisting of--
``(A) such amounts as are appropriated to the
Acquisition Fund under paragraph (2); and
``(B) any income earned on investment of
amounts in the Acquisition Fund under paragraph
(4).
``(2) Transfers to acquisition fund.--There are
appropriated to the Acquisition Fund amounts equivalent
to amounts made available under subsection (f).
``(3) Expenditures from acquisition fund.--On request
by the Secretary, the Secretary of the Treasury shall
transfer from the Acquisition Fund to the Secretary
such amounts as the Secretary determines to be
necessary to carry out this section.
``(4) Investment of amounts.--
``(A) In general.--On request by the
Secretary, the Secretary of the Treasury shall
invest such portion of the Acquisition Fund as
is not, in the judgment of the Secretary,
required to meet current withdrawals.
``(B) Obligations.--Investments may be made
only in public debt securities with maturities
suitable to the needs of the Acquisition Fund,
as determined by the Secretary, that bear
interest at a rate determined by the Secretary
of the Treasury, taking into consideration
current market yields on outstanding marketable
obligations of the United States of comparable
maturity.
``(C) Acquisition of obligations.--For the
purpose of investments under subparagraph (A),
obligations may be acquired--
``(i) on original issue at the issue
price; or
``(ii) by purchase of outstanding
obligations at the market price.
``(D) Sale of obligations.--Any obligation
acquired by the Acquisition Fund may be sold by
the Secretary of the Treasury at the market
price.
``(E) Credits to acquisition fund.--The
income on, and the proceeds from the sale or
redemption of, any obligations held in the
Acquisition Fund shall be credited to, and form
a part of, the Acquisition Fund.
``(5) Transfers of amounts.--
``(A) In general.--The amounts required to be
transferred to the Acquisition Fund under this
subsection shall be transferred at least
monthly from the general fund of the Treasury
to the Acquisition Fund on the basis of
estimates made by the Secretary of the
Treasury.
``(B) Adjustments.--Proper adjustment shall
be made in amounts subsequently transferred to
the extent prior estimates were in excess of or
less than the amounts required to be
transferred.
``(6) Management.--The Acquisition Fund (including
the principal of the Acquisition Fund and any interest
generated on that principal) shall be managed in
accordance with this section.''.