[Senate Report 106-367]
[From the U.S. Government Publishing Office]
Calendar No. 744
106th Congress Report
SENATE
2d Session 106-367
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TO PROVIDE FOR THE YANKTON SIOUX TRIBE AND THE SANTEE SIOUX TRIBE OF
NEBRASKA CERTAIN BENEFITS OF THE MISSOURI RIVER BASIN PICK-SLOAN
PROJECT, AND FOR OTHER PURPOSES
_______
August 25, 2000.--Ordered to be printed
Filed under authority of the order of the Senate of July 26, 2000
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1148]
The Committee on Indian Affairs, to which was referred the
bill (S. 1148) to provide for the Yankton Sioux Tribe and the
Santee Sioux Tribe of Nebraska certain benefits of the Missouri
River Basin Pick-Sloan project, 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.
purposes
The purpose of S. 1148, the Yankton Sioux Tribe and Santee
Sioux Tribe Equitable Compensation Act, is to provide
additional compensation to the Yankton and Santee Sioux Tribes
for the acquisition by the United States of 3,240 acres of the
Yankton Sioux Reservation for Fort Randall Dam and Reservoir
and 1,007 acres of the Santee Sioux Reservation for Gavins
Point Dam and Reservoir on the Missouri River.
background
Pursuant to the Treaty of April 19, 1858 (11 Stat. 743) a
430,405-acre reservation was established for the Yankton Sioux
Indian Tribe along the east bank of the Missouri River in
Charles Mix County, South Dakota. Approximately 40,000 acres of
the reservation is currently in tribal or individual Indian
trust status. In 1866, President Andrew Johnson signed an
Executive Order setting aside four townships in northeastern
Nebraska near the mouth of the Niobrara River as a permanent
home for remnants for six Santee Sioux bands driver out of
Minnesota following the so-called ``Sioux Uprising of 1862''.
Although subsequent Executive Orders adjusted the boundaries
and expanded the size of the reservation to 165,195 acres, only
about 7,000 acres of that area remain in tribal or individual
trust status.
Under the Flood Control Act of 1944 (33 U.S.C. 701 et
seq.), the Congress authorized construction of five massive dam
projects on the Missouri River as part of the Pick-Sloan
program, the primary purpose of which was to provide flood
control downstream, as well as improved navigation, hydro-power
generation, improved water supplies, and enhanced recreation.
The U.S. Army Corps of Engineers, which constructed and
operates the dams, estimates that the projects' overall annual
contribution to the national economy averages $1.9 billion.
However, for the Yankton and Santee Sioux Tribes and other
tribes along the Missouri, the human and economic costs of the
projects have far outweighed any benefits received, since the
lands affected by Pick-Sloan were, by and large, Indian lands,
and entire tribal communities and their economies were
destroyed.
Fort Randall Dam and Reservoir project, an integral part of
the Pick-Sloan program, initially flooded 2,851 acres of
Yankton Sioux tribal land and forced the relocation and
resettlement of at least 20 families from the traditional and
self-sustaining community of White Swan, one of four major
settlement areas on the reservation. Unlike communities on
other reservations that were relocated to higher ground to make
way for Pick-Sloan projects, the White Swan community was
completely dissolved and its residents were dispersed. In
addition, since 1953 another 428 acres of trust land have been
lost to erosion from the fluctuating waters in the reservoir,
reducing the size and production of an irrigated tribal farm
and necessitating the relocation of a housing development of
twenty-five homes and the Yankton Sioux tribal office in
Greenwood, South Dakota.\1\
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\1\ ``Historical Analysis of the Impact of Missouri River Pick-
Sloan Dam Projects on the Yankton And Santee Sioux Indian Tribes'' by
Michael Lawson, Ph.D., April, 1999.
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In 1952, the U.S. District Court awarded the Yankton Sioux
$121,210, or about $42 an acre, for the appraised value of the
flooded land in condemnation proceedings in which neither the
Tribe nor its affected members were represented by private
counsel. Significantly, the appraised value of the lands on the
Yankton Reservation was less than half the value that was
established for comparable lands on four other Sioux
reservations appraised in 1951. In 1954, the Congress
appropriated $106,500 for severance damages for Yankton Sioux
tribal members, but by August, 1956, when these funds were
distributed to some, but not all, affected tribal families,
nine years had passed since their land had been condemned and
six years had passed since their families had been forced to
move.
The Gavins Point Dam and Reservoir Project, also an
integral part of the Pick-Sloan program, inundated 593 acres of
Santee Sioux tribal and individual trust land near the main
settlement area of the Indian village of Santee in Knox County,
Nebraska. This lost acreage, comprising about 8.5 percent of
the reservation and considered among the best agricultural land
on the Santee Sioux Reservation, included 380 acres of
pastureland and 200 acres of cropland that was part of a tribal
farm. In addition, the Corps of Engineers acquired Niobrara
Island, a 414.12-acre island near the mouth of the Niobrara
River, which had been part of the original Santee Sioux
Reservation, as part of the Gavins Point project.
On or about January, 1958, the U.S. District Court awarded
the Santee Sioux $52,000, or $87.67 an acre, for the appraised
value of the inundated lands pursuant to a 1955 agreement
between the Tribe and the Corps of Engineers. Records as to the
actual distribution of these funds are not available. As was
the case with the payment to the Yankton Sioux Tribe, the
payment to the Santee Sioux Tribe, made years after the taking
of their land, did not account for the inflation in property
values between the time of the taking and the time of
settlement. Significantly, within months of the award, the U.S.
District Court in South Dakota ruled that the Army lacked
congressional authorization to condemn tribal land for its
Pick-Sloan projects.
In 1984, a joint Federal-Tribal study found that the
compensation that was provided by the United States to tribes
impacted by the Pick-Sloan projects greatly undervalued their
losses. To provide more just compensation, in 1992 the Congress
enacted legislation that established a trust fund of
$149,200,000 for the Three Affiliated Tribes of the Fort
Berthold Reservation related to the loss of 176,000 acres to
the Garrison Dam project, and a trust fund of $90,600,000 for
the Standing Rock Sioux Tribe related to the loss of 56,000
acres to the Oahe Dam project.\2\ In 1996, the Congress
established a $27.5 million Recovery Fund for the Crow Creek
Sioux Tribe and a $39.9 million Recovery Fund for the Crow
Creek Sioux Tribe and a $39.9 million Recovery Fund for the
Lower Brule Sioux Tribe related to the loss of 15,693 and
22,296 acres of land, respectively, to the Fort Randall and Big
Bend Dam projects.\3\ In the 106th Congress, the Senate passed
S.964, which would establish a Recovery Fund of $290 million
for the Cheyenne River Sioux Tribe of South Dakota, which lost
approximately 104,000 acres to the Oahe Dam project. As this
report is written, S. 964 is pending in the House of
Representatives.
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\2\ P.L. 102-575, title XXXV, 106 Stat. 4731 (Oct. 30, 1992).
\3\ P.L. 104-223, 110 Stat. 3026 (Oct. 1, 1996) and P.L. 105-132,
111 Stat 2563 (Dec. 2, 1997).
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The Fort Berthold, Cheyenne River, Standing Rock, Crow
Creek, and Lower Brule Tribes all received initial settlements
from Congress between 1947 and 1962 that included payment for
direct property damages, severance damages (including the cost
of relocation and reestablishment of affected tribal members),
and rehabilitation for the entire reservation. In providing
funds for rehabilitation, Congress recognized that the tribes
as a whole and not just the tribal members within the taking
areas were affected negatively by the loss of the bottomland
environment and reservation infrastructure. Accordingly, the
five settlements provided compensation for severance damages
and rehabilitation that averaged four and a half times more
than was paid for direct damages.
In 1960, a Bureau of Indian Affairs comparative study of
the experience of six reservations impacted by Pick-Sloan dams
found that the average total payment per family within the
taking area at Yankton was $5,605, whereas the payment averaged
$16,680 on the other five reservations (Fort Berthold, Standing
Rock, Cheyenne River, Crow Creek, and Lower Brule). Although
the Yankton Sioux Tribe and the Santee Sioux Tribes received
settlements for the appraised value of their property in
condemnation proceedings and an amount for severance damages,
neither tribe received any payments for direct property damages
nor any funds for rehabilitation, even though alarge number of
tribal members residing outside the taking area on both tribes'
reservations were also impacted by the dam projects.
The Committee recognizes that any attempt to measure the
tangible and intangible values associated with the loss of
tribal life and tradition along a free flowing river in
monetary terms is necessarily subjective. Nevertheless, in view
of the losses experienced by the Yankton Sioux Tribe and the
Santee Sioux Tribe as a result of Pick-Sloan dams and
reservoirs, and the precedents for providing additional
compensation for other Missouri River tribes similarly
affected, the Committee finds that it is appropriate to provide
additional equitable compensation for the Yankton and Santee
Sioux Tribes as would be provided by S. 1148.
s. 1148 summary of provisions
S. 1148 would establish the Yankton Sioux Tribe Development
Trust Fund in the U.S. Treasury. On the first day of the 11th
fiscal year after the date of enactment, $34,323,743, together
with interest accrued from the date of enactment, would be
deposited into the Yankton Sioux Development Trust Fund, and
$8,132,838, together with interest accrued from the date of
enactment, would be deposited into the Santee Sioux Development
Trust Fund. The Secretary of the Treasury is authorized and
directed to invest these funds in interest-bearing obligations
of the United States or in obligations guaranteed as to both
principal and interest by the United States.
Once both funds have been capitalized, the Secretary of the
Treasury is authorized to transfer any accrued interest into
separate accounts for transfer to the Secretary of the
Interior, without fiscal year limitation on the availability of
such funds. In turn, the Secretary of the Interior is
authorized to make payments to the Tribes for use in carrying
out projects and programs that would implement tribal plans for
socio-economic recovery and cultural preservation.
The tribal councils, in consultation with the Secretary of
the Interior and the Secretary of Health and Human Services,
are to prepare the plans, which must set forth a combination of
economic development, infrastructure development, educational,
health, recreation and social welfare objectives. Each council
must permit tribal members to review and comment on the initial
plan, as well as on any proposed revisions to it. Activities
carried out under these plans would be subject to existing
requirements of the Office of Management and Budget for annual
audits, and audit determinations would be required to be
published together with tribal council proceedings. Per capita
payments from the Funds are prohibited.
Payments from the trust funds to either Tribe could not be
used as a basis for reducing or denying any service or program
to which the Tribe or a tribal member is otherwise entitled,
for subjecting the Tribe or a tribal member to any Federal or
State income tax; or for affecting Pick-Sloan Missouri River
power rates. Finally, once the tribal trust funds have been
fully capitalized, S. 1148 would extinguish all Yankton and
Santee Sioux tribal claims against the United States for losses
related to the construction of Fort Randall and Gavins Point
dams and reservoirs.
legislative history
On May 27, 1999, Senator Daschle and Senator Kerrey of
Nebraska introduced S. 1148 as the Yankton Sioux Tribe and
Santee Sioux Tribe of Nebraska Development Trust Fund Act,
which was referred to the Committee on Indian Affairs. Senator
Johnson of South Dakota and Senator Hagel were added as
cosponsors. The Committee held a hearing on S. 1148 on May 17,
2000. The Department of the Interior witness expressed the
Administration's support for the bill if it were amended to
address concerns regarding the manner in which the proposed
trust funds would be funded, per capita payments, and waiver of
claims. Both Tribes testified in strong support of the
legislation.
On June 21, 2000, the Committee on Indian Affairs
considered and adopted an amendment-in-the-nature-of-a-
substitute to S. 1148 on behalf of the bill's sponsors. The
substitute includes changes that (1) provide for capitalizing
the trust funds from the General Fund of the Treasury, with
interest, on the first day after the 11th year after the date
of enactment of this Act; (2) prohibits per capita payments
from the trust funds; (3) extinguishes all tribal claims for
losses related to construction of the two dams once the tribal
trust funds have been fully capitalized; (4) requires the
tribes to consult with the Secretaries of Interior and Health
and Human Services in preparing plans to use the trust funds;
and, (5) includes plan activities under existing requirements
of the Office of Management and Budget for annual audits of
such activities and requires audit determinations to be
published with tribal council proceedings. These changes
address the concerns expressed by the Department of the
Interior in its testimony and the Committee understands that
they are acceptable to the Tribes.
committee recommendation and tabulation of vote
The Committee on Indian Affairs, in an open business
session on June 21, 2000, adopted an amendment-in-the-nature-
of-a-substitute to S. 1148 by voice vote and ordered the bill,
as amended, reported favorably to the Senate.
section-by-section analysis
Section 1--Short title
This section cites the short title of S. 1148 as the
``Yankton Sioux Tribe and Santee Sioux Tribe Equitable
Compensation Act''.
Section 2--Findings
This section sets forth ten Congressional findings:
The first finding is that by enacting the Flood Control Act
of 1944, Congress approved the Pick-Sloan Missouri River Basin
program to promote the general economic development of the
United States, provide for irrigation above Sioux City, Iowa,
protect urban and rural areas from devastating floods of the
Missouri River, and for other purposes;
The second finding is that the water impounded for the Fort
Randall and Gavins Point projects of the Pick-Sloan program
inundated the fertile, wooded bottom lands along the Missouri
River that constituted the most productive agricultural and
pastoral lands of, and the homeland of, the members of the
Yankton Sioux Tribe and the Santee Sioux Tribe.
The third finding is that the Fort Randall project,
including the dam and reservoir, overlies the western boundary
of the Yankton Sioux Reservation and caused the erosion of more
than 400 acres of prime land on the Yankton Sioux Reservation
adjoining the east bank of the Missouri River.
The fourth finding is that the Gavins Point project,
including the dam and reservoir, overlies the eastern boundary
of the Santee Sioux Tribe Reservation.
The fifth finding is that although the Fort Randall and
Gavins Point projects are major components of the Pick-Sloan
program, and contribute to the economy of the United States by
generating a substantial amount of hydropower and impounding a
substantial amount of water, the reservations of the Yankton
Sioux Tribe and the Santee Sioux Tribe remain undeveloped.
The sixth finding is that the United States Army Corps of
Engineers took the Indian lands used for the Fort Randall and
Gavins Point projects by condemnation proceedings.
The seventh finding is that the Federal Government did not
give the Yankton Sioux Tribe and the Santee Sioux Tribe an
opportunity to receive compensation for direct damages from the
Pick-Sloan program, even though the Federal Government gave 5
Indian tribes on reservations upstream from the Yankton and
Santee tribes such an opportunity.
The eighth finding is that the Yankton and Santee Sioux
Tribes did not receive just compensation for the taking through
condemnation of their productive agricultural lands referred to
in the sixth finding.
The ninth finding is that the settlement agreement that the
United States entered into with the Yankton Sioux Tribe and the
Santee Sioux Tribe to provide compensation for the taking by
condemnation referred to in the sixth finding above did not
take into account the increase in property values over the
years between the date of taking and the date of settlement.
The tenth finding states that in addition to the financial
compensation provided under the settlement agreements referred
to in the ninth finding, (A) the Yankton Sioux Tribe should
receive $34,323,743 for the loss value of 2,851.4 acres of land
taken for the Fort Randall Dam and Reservoir and the use value
of 408.4 acres lost as a result of stream bank erosion that has
occurred since 1953, and (B) the Santee Sioux Tribe should
receive $8,132,838 for the loss value of 593.1 acres of land
near the Santee village and 414.12 acres on Niobrara Island
taken for the Gavins Point Dam and Reservoir.
Section 3--Definitions
This section provides definitions for the terms ``Indian
Tribe''; ``Yankton Sioux Tribe''; and Santee Sioux Tribe''.
Section 4--Yankton Sioux Tribe Development Trust Fund
Subsection (a) provides for the establishment in the United
States Treasury a fund to be known as the ``Yankton Sioux Tribe
Development Trust Fund'' (``Fund'') that shall consist of any
amounts deposited into it pursuant to this Act.
Subsection (b) provides that, on the first day of the 11th
fiscal year that begins after the date of enactment of this
Act, the Secretary of the Treasury shall, from the General Fund
of the Treasury, deposit into the Fund established under
subsection (a) $34,323,743, together with an amount which
equals the amount of interest that would have accrued on this
amount if it had been invested in interest-bearing obligations
of the United States, or in obligations guaranteed as to both
principal and interest by the United States, on the first day
of the fiscal year that begins after the date of enactment of
this Act and compounded annually thereafter.
The amount to be deposited into the Fund reflects a two-
part calculation. The first part uses the per-acre amount of
compensation provided to the Lower Brule Sioux Tribe in 1997
for inundated land ($1,763 per acre) multiplied by 2,851.4 (the
number of acres of land flooded by the Fort Randall project),
which equals $5,027,018, multiplied by 458 percent (the average
of the sum paid by Congress for severance damages and
rehabilitation over and above the sums paid for property
damages in five initial tribal settlements between 1948 and
1962), for a total of $23,023,743. The second part of the
calculation represents the value of the loss of the productive
use, since 1953, of 408.4acres of arable reservation land due
to erosion caused by the Fort Randall project. \4\ Valuations were
based on potential use of the land, economic returns that could have
been realized, investment of the economic returns from land use over
the 45 year period, and the present day value of the land. Non-arable
tracts totaling 23.2 acres of eroded land were included in the total
valuation based on their present day value only. Potential returns were
estimated by evaluating receipts from alfalfa cultivation less the cost
of farming, based on primary data provided by the Cooperative Extension
Service of South Dakota State University. Land charges and management
fees were not included, because it was assumed that the Tribe owns the
land and manages crop production. The resulting amount is $11,300,000,
which, added to $23,023,743, totals $34,323,743.
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\4\ See Pacific GeoScience, Missouri River Erosion, 1941-1988,
Yankton Sioux Reservation, Marty, South Dakota (San Anselmo, CA:
Pacific GeoScience, 1992) and Pacific GeoScience, Missouri River
Erosion Update, 1941-1998, p. 2-1).
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Subsection (c) requires the Secretary of the Treasury to
invest that portion of the Fund that in his judgement is not
required to meet current withdrawals. Such investments may be
made only in interest-bearing obligations of the United States
or in obligations guaranteed as to both principal and interest
by the United States. The Secretary of the Treasury shall
deposit interest resulting from such investments into the Fund.
Subsection (d)(1) provides that, beginning on the first day
of the 11th fiscal year after the date of enactment of this
Act, and on the first day of each fiscal year thereafter, the
Secretary of the Treasury shall withdraw the aggregate amount
of interest deposited into the Fund for the fiscal year and
transfer that amount to the Secretary of the Interior for use,
without fiscal year limitation, in accordance with paragraph
(d)(2).
Subsection (d)(2) provides that the Secretary of the
Interior shall use the amounts transferred under subsection
(d)(1) only for the purpose of making payments to the Yankton
Sioux Tribe as such payments are requested by the Tribe by
tribal resolution, but only after the Tribe has adopted a
tribal plan under section 6.
Subsection (e) bars the Secretary of the Treasury from
transferring or withdrawing any amount deposited under
subsection (b) of this section except as provided in
subsections (c) and (d)(1) of this section.
Section 5--Santee Sioux Tribe Development Trust Fund
Subsection (a) provides for the establishment in the United
States Treasury a fund to be known as the ``Santee Sioux Tribe
Development Trust Fund'' (``Fund'') that shall consist of any
amounts deposited into it pursuant to this Act.
Subsection (b) provides that on the first day of the 11th
fiscal year that begins after the date of enactment of this
Act, the Secretary of the Treasury shall, from the General Fund
of the Treasury, deposit into the Fund established under
subsection (a) $8,132,838, together with an amount of interest
that equals the amount of interest that would have accrued on
this amount if such amount had been invested in interest-
bearing obligations of the United States, or in obligations
guaranteed as to both principal and interest by the United
States, on the first day of the first fiscal year that begins
after the date of enactment of this Act and compounded annually
thereafter.
The amount to be deposited into the Fund is calculated by
combining the number of acres of land flooded by the Fort
Randall project (593.1) and the number of acres of Niobrara
Island (414.12) and multiplying the total (1,007.22) by the
per-acre amount of compensation provided to the Lower Brule
Sioux Tribe in 1997 for inundated land ($1,763), which equals
$1,775,729. This amount, multiplied by 458 percent (the average
of sum paid by Congress for severance damages and
rehabilitation over and above sums paid for property damages in
five initial tribal settlements between 1948 and 1962), equals
$8,132,839.
Subsection (c) requires the Secretary of the Treasury to
invest that portion of the Fund that in his judgment is not
required to meet current withdrawals. Such investments may be
made only in interest-bearing obligations of the United States
or in obligations guaranteed as to both principal and interest
by the United States. The Secretary of the Treasury shall
deposit interest resulting from such investments into the Fund.
Subsection (d)(1) provides that, beginning on the first day
of the 11th fiscal year after the date of enactment of this Act
and on the first day of each fiscal year thereafter, the
Secretary of the Treasury shall withdraw the aggregate amount
of interest deposited into the Fund for the fiscal year and
transfer that amount to the Secretary of the Interior for use,
without fiscal year limitation, in accordance with subsection
(d)(2).
Subsection (d)(2) provides that the Secretary of the
Interior shall use the amounts deposited under subsection
(d)(1) only for the purpose of making payments to the Santee
Sioux Tribe as such payments are requested by the Tribe by
tribal resolution, but only after the Tribe has adopted a
tribal plan under section 6.
Subsection (e) bars the Secretary of the Treasury from
transferring or withdrawing any amount deposited into the Fund
under subsection (b) of this section except as provided in
subsections (c) and (d)(1) of this section.
Section 6--Tribal plans
Subsection (a) provides that, not later than 24 months
after the date of enactment of this Act, the tribal councils of
the Yankton Sioux and Santee Sioux Tribes shall each prepare a
plan for the use of the payments made to each tribe under
sections 4(d) or (5)(d) of this Act.
Subsection (b) requires that each tribal plan shall provide
for the manner in which the tribe shall expend payments made to
the tribe under subsection (5)(d) to promote (1) economic
development, (2) infrastructure development, (3) educational,
health,recreational, and social welfare objectives of the tribe
and its members, or (4) any combination of such activities.
Subsection (c)(1) provides that the tribal councils of the
Yankton Sioux and Santee Sioux Tribes shall make copies of
their respective plans available to their members for review
and comment before the tribal plan becomes final, in accordance
with procedures established by the tribal council.
Subsection (c)(2) provides that each tribal council may, on
an annual basis, revise and update its tribal plan. In revising
the tribal plan, the tribal council shall provide the members
of the tribe opportunity to review and comment on any proposed
revision.
Subsection (c)(3) requires each tribal council to consult
with the Secretary of the Interior and the Secretary of Health
and Human Services in preparing its tribal plan and any
revisions to update the plan.
Subsection (c)(4)(A) provides that the activities of the
tribes in carrying out their respective tribal plans shall be
audited as part of the annual single-agency audit that the
tribes are required to prepare pursuant to the Office of
Management and Budget circular numbered A-133.
Subsection (c)(4)(B) requires the auditors to determine
whether funds received by each tribe for the period covered by
the audits were expended to carry out the respective tribal
plans consistent with this section, and to include such
determinations in the written findings of the audits.
Subsection (c)(5)(C) requires that a copy of the written
findings of the audits shall be inserted in the published
minutes of each tribal council's proceedings for the session at
which the audit is presented to the councils.
Subsection (d) prohibits any portion of any payment made
under this Act from being distributed to any member of the
Yankton Sioux Tribe or the Senate Sioux Tribe on a per capita
basis.
Section 7--Eligibility of tribe for certain programs and services
Subsection (a) declares that no payment made to the Yankton
Sioux Tribe or the Santee Sioux Tribe pursuant to this Act
shall result in the reduction or denial of any service or
program to which, pursuant to Federal law, the Yankton Sioux
Tribe or Santee Sioux Tribe is otherwise entitled because of
the status of the tribe as a federally recognized Indian tribe,
or any individual who is a member of either tribe because of
that individual's status as a tribal member.
Subsection (b) provides that no payment made pursuant to
this Act shall be subject to any Federal or State income tax.
Subsection (c) provides that no payment made pursuant to
this Act shall affect Pick-Sloan Missouri River Basin power
rates.
Section 8--Statutory construction
This section provides that nothing in this Act may be
construed as diminishing or affecting any water right of an
Indian tribe, except as specifically provided in another
provision of this Act, any treaty right that is in effect on
the date of enactment of this Act, or any authority of the
Secretary of the Interior or the head of any other Federal
agency under a law in effect on the date of enactment of this
Act.
Section 9--Authorization of appropriations
This section authorizes to be appropriated such sums as are
necessary to carry out this Act, including such sums as may be
necessary for the administration of the Yankton Sioux Tribe
Development Trust Fund under section 4 and the Santee Sioux
Tribe Development Trust Fund under section 5.
Section 10--Extinguishment of claims
This section provides that all monetary claims that the
Yankton Sioux Tribe or the Santee Sioux Tribe has or may have
against the United States for loss of value or use of land
related to lands described in section 2(a)(10) resulting from
the Fort Randall and Gavins Point projects of the Pick-Sloan
Missouri River Basin program shall be extinguished upon the
deposit of funds under sections 4(b) and 5(b) of this Act.
cost and budgetary considerations
The cost estimate for S. 1148, as amended, as provided by
the Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 27, 2000.
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. 1148, the Yankton
Sioux Tribe and Santee Sioux Tribe Equitable Compensation Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Lanette J.
Keith (for the federal costs), and Marjorie Miller (for the
impact on state, local, and tribal governments).
Sincerely,
Robert A. Sunshine
(For Dan L. Crippen, Director).
Enclosure.
S. 1148--Yankton Sioux Tribe and Santee Sioux Tribe Equitable
Compensation Act
Summary: S. 1148 would compensate the Yankton Sioux Tribe
and the Santee Sioux Tribe for the taking of certain tribal
lands by the federal government. CBO estimates that enacting
this bill would have no significant impact on the federal
budget over the 2001-2010 period. Enacting S. 1148 would
increase direct spending by an estimated $75 million, but pay-
as-you-go procedures would not apply because the spending would
not occur until fiscal year 2011.
S. 1148 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Tribal governments might incur some costs as a result of the
bill's enactment, but those costs would be voluntary.
Estimated cost to the Federal Government: CBO estimates
that enacting S. 1148 would result in direct spending outlays
of $75 million in 2011, but would have no significant impact on
the federal budget before then. For this estimate, CBO assumes
that S. 1148 will be enacted by the end of fiscal year 2000.
S. 1148 would provide compensation to the two tribes for
the taking of 4,267 acres of land by the federal government for
various water projects. The bill would establish the Yankton
Sioux Tribe Development Trust Fund and the Santee Sioux Tribe
of Nebraska Development Trust Fund and would direct the
Secretary of the Treasury to deposit a total of $42 million
into interest-bearing accounts to benefit the tribes on the
first day of the 11th fiscal year that begins after the date of
enactment. An additional deposit equal to the amount of
interest that the fund would have earned if the fund had been
capitalized and invested in 2001 would be made at the same
time. CBO estimates that this additional payment would be $33
million,for a total deposit of $75 million in 2011. Once the
Secretary pays these amounts, any monetary claims the tribes may have
against the United States regarding this project would be extinguished.
Starting in 2011, the bill would allow the tribes to spend amounts
equivalent to the annual interest earned on the fund pursuant to a
tribal spending plan.
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.
As a result, CBO expects that the entire amount deposited to
the fund in 2011 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.
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. For the
purposes of enforcing pay-as-you-go procedures, only the
effects in the current year, the budget year, and the
succeeding four years are counted. CBO estimates that enacting
S. 1148 would not affect direct spending or receipts in any of
those years.
Estimated impact on state, local, and tribal governments:
S. 1148 contains no intergovernmental mandates as defined in
UMRA, but it would impose some conditions on the affected
tribes for receipt of federal funds. The bill would require the
tribes to prepare and adopt plans for using payments from the
trust fund and to obtain audits of their expenditures. The
tribes would receive significant benefits from enactment of
this legislation.
Estimated impact on the private sector: This bill contains
no new private-sector mandates as defined in UMRA.
Previous CBO estimate: On July 12, 2000, CBO transmitted a
cost estimate for H.R. 2671, the Yankton Sioux Tribe and Santee
Sioux Tribe of Nebraska Development Trust Fund Act, as ordered
reported by the House Committee on Resources on June 28, 2000.
H.R. 2671 would allow the tribes to spend $2 million to $3
million of annual interest earned from the trust funds
beginning in 2001. Under S. 1148, no deposits to the trust fund
would be made until fiscal year 2011 and there would be no
budgetary impact before then.
Estimate prepared by: Federal Costs: Lanette J. Keith;
Impact on State, Local, and Tribal Governments: Marjorie
Miller; Impact on the Private Sector: Sarah Sitarek.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
executive communications
The views of the Administration on S. 1148 are set forth in
the following testimony of Terry Virden, Director, Office of
Trust Responsibilities, Bureau of Indian Affairs, United States
Department of the Interior, before the Committee's hearing on
May 17, 2000.
Statement of Terry Virden, Director, Office of Trust Responsibilities
Good afternoon, Mr. Chairman and Members of the Committee.
I am pleased to be here today to present the Administration's
views on S. 1148. I want to thank Senator Daschle for
introducing this important bill that addresses impacts to the
Yankton Sioux Tribe and the Santee Sioux Tribe of Nebraska
resulting from the Pick-Sloan Missouri River Basin program and
in particular the development of the Fort Randall and Gavins
Point projects. If enacted, this bill would give the Tribes
much deserved benefits to compensate for those impacts. While
the Administration supports compensating the Tribes, we are
concerned that the compensation figures on a per acre basis are
significantly higher than those awarded previously to other
Tribes that were compensated for losses resulting from the
Pick-Sloan program. We look forward to working with the
Committee to discuss these values and the rationale behind the
amounts awarded under S. 1148.
S. 1148 is a continuation of the United States' honorable
efforts to correct inequities resulting from a regional Federal
project which severely affected Indian tribal homelands along
the Missouri River. In the early 1990's the United States
forthrightly addressed impacts to the Standing Rock Sioux Tribe
and the Three Affiliated Tribes of the Fort Berthold
Reservation. In 1996 and 1997, respectively, it addressed the
impacts to the Crow Creek Sioux Tribe and the Lower Brule Sioux
Tribe. S. 1148 addresses and mitigates the impacts of the
Missouri River Basin Pick-Sloan Project on the remaining two
Tribes.
The history of the Project is relatively well known. In
1944, the United States undertook the challenge to reduce
flooding in the lower Missouri River Basin through the
construction of monumental dams capable of harnessing the
seasonal raging flows of the Missouri River. In addition, these
dams could generate electrical power and needed hundreds of
thousands of acres of land to serve as reservoirs for the
storage of water over time to release as necessary. So great
was the water resource that a whole regional economy grew from
the electric power generated by these dams.
The pre-project tribal economy, however, was based on
working the rich wooded bottom lands along the Missouri River.
These lands were flooded for the reservoir, and the Tribes have
never seen the former economy again. In addition, the
importance of cultural treasures lost to inundation is now
well-known.
In the 1950's the Yankton Sioux Tribe and its affected
tribal members received a total of $227,510 from the government
for damages associated with the Fort Randall Project. Of this
amount $121,210 was awarded them by the U.S. District Court for
direct damages as the result of condemnation proceedings filed
before the federal district court by the Army Corp of
Engineers. Congress authorized the appropriation of an
additional $106,500 in 1954 to be available for relocating the
Yankton Sioux tribal members who resided on tribal and allotted
lands. Unfortunately the Yankton Sioux Tribes did not receive
any additional funding for a rehabilitation program. This bill
proposes to provide them with $34.3 million in additional
compensation for the loss value of 2,851.40 acres of land taken
for the Fort Randall Dam and Reservoir, and for the use value
of 408.40 acres of Indian land on the reservation that the
Tribe lost as a result of stream bank erosion that has occurred
since 1953.
Information concerning the amount paid to the Santee Sioux
condemnation settlement is sketchy because the court docket
records are missing from the records of the U.S. District Court
in the National Archives. It appears that the tribe may have
been paid $52,000 on the basis of the Tribe's 1955 agreement
with the Army Corps of Engineers. We do not know when the
settlement money may have been distributed to the individual
landholders. Like Yankton, the Santee Sioux did not receive any
rehabilitation program funds either. This bill proposes to
provide them with $8.1 million in additional compensation for
the loss value of 593.10 acres of land located near the Santee
village, and for 414.12 acres on Niobrara Island of the Santee
Sioux Tribe Indian Reservation used for the Gavins Point Dam
and Reservoir.
The Administration could support S. 1148 with amendments.
First, the funding mechanisms in section 4(b) for the Yankton
Sioux Tribe Development Trust Fund and in section 5(b) for the
Santee Sioux Tribe of Nebraska Development Trust Fund would be
subject to pay-as-you-go requirements of the Omnibus Budget and
Reconciliation Act of 1990, as amended. The Administration is
concerned that any amounts required to establish the Funds
would need to be offset. As noted in our statement on the
Cheyenne River Sioux Tribe Equitable Compensation Act during
the 105th Congress, this type of financing mechanism appears to
be without cost when in reality it is not free. A more
straightforward approach would be to rely on the authorization/
discretionary appropriations process to establish the Funds. We
are willing to work with the Committee on developing a viable
solution.
Second, we recommend that Section 6 be amended to add a
subsection (d) which would prohibit per capita payments to
tribal members. A similar prohibition was included in the
earlier Pick-Sloan project compensation Acts. The suggested
amendment is as follows:
Section 6(d)--Prohibition on Per Capita Payments.--No
portion of any payment made under this Act may be distributed
to any member of the Yankton Sioux Tribe or the Santee Sioux
Tribe of Nebraska on a per capita basis.
Our final recommendation is to include a new section which
would address any further claims of the Tribe against the
United States. We submit the following:
SEC. 10. EXTINGUISHMENT OF CLAIMS
Upon the deposit of funds under sections 4(b) and 5(b), all
monetary claims that the Tribe has or may have against the
United States for loss of value or use of land related to funds
described in Section 2(a)(10) resulting from the Fort Randall
and Gavins Point projects of the Pick-Sloan Missouri River
Basin program shall be extinguished.
This concludes my testimony on S. 1148. I will be happy to
answer any questions you may have.
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 the regulatory
impact of S. 1148, as amended, will be minimal.
changes in existing law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing laws made by
the bill are required to be set forth in the accompanying
Committee report. The Committee finds that enactment of S. 1148
will not result in any changes in existing law.