[Senate Hearing 110-268]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 110-268
                             MISSOURI RIVER



                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION


                            NOVEMBER 1, 2007


         Printed for the use of the Committee on Indian Affairs

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                      COMMITTEE ON INDIAN AFFAIRS

                BYRON L. DORGAN, North Dakota, Chairman
                 LISA MURKOWSKI, Alaska, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            TOM COBURN, M.D., Oklahoma
DANIEL K. AKAKA, Hawaii              JOHN BARRASSO, Wyoming
TIM JOHNSON, South Dakota            PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington           GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri           RICHARD BURR, North Carolina
                Sara G. Garland, Majority Staff Director
             David A. Mullon, Jr., Minority Staff Director

                            C O N T E N T S

Hearing held on November 1, 2007.................................     1
Statement of Senator Conrad......................................    25
Statement of Senator Dorgan......................................     1
Prepared statement of Senator Johnson............................     3
Statement of Senator Murkowski...................................    21
Statement of Senator Tester......................................     2


Cournoyer, Robert W., Chairman, Yankton Sioux Tribe..............    94
    Prepared statement...........................................    96
His Horse Is Thunder, Ron, Chairman, Standing Rock Sioux Tribe...    25
    Prepared statement with attachments..........................    28
Jandreau, Michael B., Chairman, Lower Brule Sioux Tribe..........    57
    Joint prepared statement with Lester Thompson, Chairman, 
      Lower Brule Sioux Tribe....................................    58
Nazzaro, Robin M., Director, Natural Resources and Environment, 
  Government Accountability Office; accompanied by Jeff Malcolm, 
  Assistant Director.............................................     3
    Prepared statement...........................................     5
Steele, John Yellow Bird, President, Oglala Sioux Tribe..........    98
    Prepared statement...........................................    99
Thune, Hon. John, U.S. Senator from South Dakota.................    22
Trudell, Roger, Chairman, Santee Sioux Nation....................    91
    Prepared statement...........................................    92
Wells, Jr., Marcus, Chairman, Three Affiliated Tribes of the Fort 
  Berthold Reservation...........................................    59
    Prepared statement with attachment...........................    63


Brings Plenty, Joseph, Chairman, Cheyenne River Sioux Tribe, 
  prepared statement.............................................   119
Fool Bear, Archie, Board Member, Standing Rock Sioux Tribe and 
  Upper Missouri River InterTribal Allottees Association, 
  prepared statement with attachments............................   122
Supplementary statements of: Lester Thompson, Michael B. 
  Jandreau, and Duane Big Eagle..................................   196

                             MISSOURI RIVER


                       THURSDAY, NOVEMBER 1, 2007

                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:35 a.m. in room 
628, Senate Dirksen Office Building, Hon. Byron L. Dorgan, 
Chairman of the Committee, presiding.


    The Chairman. The Committee will come to order. This is a 
hearing of the Indian Affairs Committee. We will receive 
testimony today on the history of the Flood Control Act of 1944 
and how it continues to affect Indian tribes along the Missouri 
    The Flood Control Act authorized the Pick-Sloan plan, which 
was a plan to stop flooding along the Missouri River and 
increase irrigation and provide for navigation. A well-
intentioned plan, but there were negative consequences to this 
plan, some significant, and those consequences are still being 
felt today. That plan authorized the building of five mainstem 
dams and reservoirs along the Missouri River, and we will show 
some charts and photographs momentarily.
    The land was forcibly taken from a number of interests, 
especially from Indian tribes and individuals. In some cases, 
the Indians had little notice about being removed. Although the 
tribes were ultimately compensated for the lands, the lands 
were not voluntarily given up by the tribes. And in a number of 
cases, tribes were given payments in the form of what are 
called JTAC payments and others. In some cases this happened 
once, in some cases more than once. There have been pieces of 
legislation introduced to revisit it again.
    My feeling was that we should take a look at the entire set 
of reservoirs and dams and the displacement of all of the 
tribes along the Missouri River as a result of the Pick-Sloan 
plan. We should try to make an evaluation of what has happened 
with respect to all of the tribes affected, and then make some 
judgment and proceed from there.
    The loss of these lands have been devastating to the Indian 
communities. More than 900 Indian families were relocated, but 
the fact is we have had entire communities inundated by water. 
My father, as a young man herded horses on the Indian 
reservation. He stayed in and lived in a city, or community, 
called Elbow Woods. Elbow Woods no longer exists. It has been 
under water for almost 50 years. The town, the hospital, it is 
all under water.
    The reason I know Elbow Woods is because my father used to 
take me to Elbow Woods and say, here is where I herded horses; 
here is where I worked with the Indians and worked on the 
reservations. He was enormously proud of that portion of his 
life. So I know Elbow Woods. This is a picture of the community 
as the water began rising, and of course, the water inundated 
that community.
    I tell you that only to say that entire tribal 
infrastructures and economies were destroyed. Their way of life 
changed dramatically from living on the river bottoms and 
eating fruit and berries and healthful foods on the river 
bottoms, to being relocated. And so there are a lot of 
consequences for that happening.
    I am going to be joined at this hearing by my colleagues 
from South Dakota, Senator Johnson, who has introduced 
legislation affecting some South Dakota tribes, which is very 
important legislation, and my colleague, Senator Tester, from 
Montana, who has had similar interest with respect to Montana 
    I, of course, am very interested in the North Dakota 
interests of tribal governments. So this, I think, will be a 
hearing at which we will gather information, both during and 
after the hearing, to try to get a more global view of what has 
happened along the Missouri River with respect to tribal 
interests. In addition, we look at what kind of recompense was 
offered and received, and what needs to be done to be fair for 
all of these years to those whom land was taken.
    I have just received a call that I have to go to Senator 
Reid's office for an important, but brief, meeting on a couple 
of appropriations bills. I have asked Senator Tester if he 
would chair the hearing in my absence, and I expect to be back 
in about 30 minutes. My apologies for that, but sometimes in 
this business meetings come up at the last moment.
    Let me ask Senator Tester if you want to take the Chair 
here. You and Senator Johnson will want to make statements, and 
then introduce witnesses, and then I will return.

                 STATEMENT OF HON. JON TESTER, 
                   U.S. SENATOR FROM MONTANA

    Senator Tester. [Presiding.] That would be fine. Thank you, 
Mr. Chairman.
    The Chairman. Senator Tester, thank you very much.
    Senator Tester. I think that Senator Dorgan has summarized 
the issue very, very well that we are going to be dealing with 
today. I appreciate his leadership on this Committee, and once 
again on issues that are critically important to Indian 
    I think Senator Johnson has a statement, but he wants it to 
be put into the record. I think that what we will do now is 
just hear from Ms. Robin Nazzaro, Director of Natural Resources 
and Environment from the GAO.
    [The prepared statement of Senator Johnson follows:]

 Prepared Statement of Hon. Tim Johnson, U.S. Senator from South Dakota
    Thank you to Chairman Dorgan, Vice Chairwoman Murkowski, and the 
staff of the Indian Affairs Committee for holding this hearing. I would 
like to welcome the South Dakota tribal leaders, Chairman Jandreau, 
Chairman Cournoyer, President Steele, and Chairman His Horse Is 
Thunder. Chairman Thompson of Crow Creek and Chairman Brings Plenty of 
Cheyenne River could not be here but they are planning to submit 
written testimony. I also would like to welcome my colleague Senator 
Thune, thank you for joining us today.
    The Flood Control Act of 1944 had a tremendous effect on my state. 
It has provided many benefits and numerous problems that are both still 
being felt today. Unfortunately, the South Dakota tribes have not fully 
shared the benefits, but were dealt an unfair share of the costs. The 
impacts of the dams and irrigation districts affected each tribe and 
each part of the state independently. I look forward to hearing the 
testimony on the continuing challenges each tribe faces individually 
due to this act.
    Thank you.

    Senator Tester. Robin, if you want to start out and fire 
away, we can hear some history of what is going on and 
hopefully we will have some questions for you when you are 
done. Robin?


    Ms. Nazzaro. Thank you, Senator Tester. I am pleased to be 
here today to discuss the compensation provided to the seven 
tribes for lands taken by flood control projects on the 
Missouri River.
    As was mentioned, the Federal Government constructed these 
dams that caused damage to seven reservations: Fort Berthold, 
Cheyenne River, Standing Rock, Lower Brule, Crow Creek, Yankton 
and Santee. As was noted, Congress authorized payments to these 
tribes as compensation for the damages, and then again later 
Congress responded by authorizing additional compensation 
through the establishment of development trust funds for tribes 
at each of the seven reservations.
    However, as the Chairman noted earlier, lingering questions 
remain about whether the tribes have been adequately 
compensated for the damages and whether they have been treated 
consistently. Since 1991, we have issued three reports on 
additional compensation for tribes at five of the reservations: 
Fort Berthold, Cheyenne River, Standing Rock, Lower Brule and 
Crow Creek. My statement today is based on these reports and 
summarizes the damages and compensation authorized by the 
    The reservoirs created by the dams on the river permanently 
flooded over 350,000 acres of land on the reservations, ranging 
from over 150,000 acres flooded on the Fort Berthold 
Reservation to less than 600 acres on the Santee. In addition 
to the valuable river bottomland that was lost, the tribes also 
lost the natural resources such as timber, wildlife and native 
plants, and structural improvements such as homes and ranches 
on the land.
    In addition to the direct damages, the tribes also suffered 
indirect or intangible damages for the loss of assets of 
unknown value, including spiritual ties to the lands, tribal 
claims to the homeland, and benefits derived from living along 
the river. The damage that each tribe sustained was unique, 
depending on the land that was lost, the resources and 
structure on that land, and the overall impact to the 
    The tribes at the seven reservations originally received 
compensation for their damages between 1947 and 1962. The Three 
Affiliated Tribes of the Fort Berthold Reservation received 
$12.6 million. Cheyenne River Sioux Tribe received $10.6 
million. Standing Rock Sioux Tribe received $12.3 million. The 
Lower Brule Sioux Tribe received $4.3 million. The Crow Creek 
Sioux Tribe received $5.9 million. The Yankton Sioux Tribe 
received $.2 million, and the Santee Sioux Tribe, $.059 
    For the tribes at the five reservations that we have 
reported on in the past, the original compensation was based on 
detailed assessments by the U.S. Government and the tribes of 
the damages caused by the dams, and in some cases protracted 
settlement negotiations. They were ultimately unable to reach 
settlement agreements and Congress decided the compensation 
amounts. In each case, the original compensation provided was 
less than what the tribes had requested.
    The tribes received additional compensation between 1992 
and 2002. The Three Affiliated Tribes of the Fort Berthold 
Reservation received $149.2 million; the Cheyenne River Sioux 
Tribe, $290.7 million; the Standing Rock Sioux Tribe, $90.6 
million; the Lower Brule Sioux Tribe received $39.3 million; 
the Crow Creek Sioux Tribe, $27.5 million; the Yankton Sioux 
Tribe, $23 million; and the Santee Sioux Tribe, $4.8 million.
    During our prior reviews, we recognized the inherent 
difficulties with trying to perform a new economic analysis on 
the damages the tribes sustained over 50 years after the fact. 
We suggested that if Congress determined that additional 
compensation was warranted, it could determine the amount of 
compensation by calculating the difference between the tribes' 
final settlement proposal and the amount of compensation 
Congress originally authorized.
    We used the inflation rate and an interest rate to adjust 
the difference to reflect a range of current values. Using the 
inflation rate for the lower end of the range and the interest 
rate for the higher end of the range. The three largest 
additional compensation amounts for Fort Berthold, Cheyenne 
River, and Standing Rock Reservations were all within the 
ranges we calculated.
    Congress did not ask us to review the methodologies used to 
calculate the four small additional compensation amounts, which 
were all less than $40 million before enacting the bills. The 
Crow Creek Sioux and Lower Brule Sioux Tribes were authorized 
additional compensation commensurate on a per acre basis, with 
the additional compensation provided to the Standing Rock Sioux 
Tribe in 1992. Similarly, the additional compensation 
authorized in 2002 to the Yankton Sioux and the Santee Sioux 
Tribes was also partially based on a per acre calculation.
    In closing, I would caution against looking solely at the 
acreage loss and the authorized compensation amounts to try and 
determine if the tribes were treated consistently. Such 
comparisons have led to perceived inequities between the 
tribes. Looking at just the total compensation amounts masks 
the outlying differences of each of the compensation bills.
    This concludes my statement and I would be pleased to 
answer any questions you or Senator Johnson have at this time.
    Thank you.
    [The prepared statement of Ms. Nazzaro follows:]


    Senator Tester. Thank you, Robin. I appreciate your 
testimony. I do have a few questions here.
    You provide some more background information as it relates 
to the original compensation amounts to the tribes and how they 
were developed. The original compensation was from the 1950s 
and the 1960s, and your testimony stated that the original 
compensation to the tribes was based on detailed assessment by 
the U.S. Government and the tribes of the damages caused by the 
dams and, in some cases, protracted settlement negotiations. 
Could you describe some of the factors and information that was 
utilized to determine the level of damage caused to the tribes 
during those original settlement negotiations?
    Ms. Nazzaro. Yes. The Corps of Engineers did an initial 
assessment of the direct damages of the flooding. The 
Department of Interior then did an assessment of indirect 
damages. These included pretty extensive inventories of not 
only the lands, but the resources on those lands. For example, 
how many trees were on the lands; what kind of trees; 
livestock, if you will.
    I have seen records of actually counting how many chickens 
were there; what kind of agricultural pursuits had been in the 
area; what kind of resources would be available, even into the 
future. Say they decided to pursue logging with the trees that 
were on the lands.
    There was some attempt made to try to determine not only 
the value of the resources then, but also how these resources 
could have been used in the future.
    Senator Tester. Did the indirect damages include things 
like you are talking about, like spiritual ties and those kind 
of things?
    Ms. Nazzaro. That was indirect costs, correct? Or damages, 
    Senator Tester. I am assuming, other than trees and 
livestock and homes and churches and hospitals, that also the 
value of the land was also included as a baseline.
    Ms. Nazzaro. That was the Corps of Engineers' assessment. 
Yes, the Corps of Engineers did the direct assessment of 
    Senator Tester. Who did the indirect?
    Ms. Nazzaro. The Corps of Engineers.
    Senator Tester. Did both indirect and direct?
    Ms. Nazzaro. No, indirect came from the Department of 
Interior. Yes.
    Senator Tester. Can I ask why? Why was it done that way? Do 
you know why the Army Corps just didn't do them both?
    Ms. Nazzaro. I wouldn't think that they would have that 
expertise to be able to assess the indirect damages.
    If I could bring my expert on this whole issue, who knows 
the history of the tribes very well, Jeff Malcolm?
    Senator Tester. I certainly don't have a problem with that.
    Mr. Malcolm. Jeff Malcolm. I am an Assistant Director with 
GAO's Natural Resources and Environment team.
    The Corps of Engineers felt that in the original 
legislation that authorized compensation for the dams, that 
they were only authorized to pay for the direct damages 
directly caused by the dams. They didn't believe they were 
authorized to pay for other intangibles or indirect damages.
    Senator Tester. I got you. Okay.
    GAO has taken a position that it would be difficult to 
perform new economic analysis on the damage to the tribes 
sustained 50 or 60 years ago. Instead, GAO recommended that 
Congress look to a tribe's final asking price during the 
original negotiations and use that to determine whether a tribe 
should be entitled to additional compensation.
    Can you further describe why we can't just use the 
information we have to perform a new economic analysis on the 
damages faced by the tribes when their lands were originally 
taken? Does that make sense to you?
    Ms. Nazzaro. Well, I think a big part is the time that has 
lapsed. A lot of these people are no longer alive. The lands 
are no longer there to visually inspect them, so you are still 
relying on historical records, which may or may not be 
accurate. So it would be very difficult. That gets to our point 
about the difficulty 50 years after the fact to go in and make 
an assessment.
    Senator Tester. Okay. If the GAO was asked, would they be 
able to develop methodologies for calculating damages based on 
factors other than tribes' final asking price?
    Ms. Nazzaro. I think we would want to stand behind the 
methodology we used before. We really felt that the tribes' 
final asking price was the most complete and realistic estimate 
at the time, and that is why we used that estimate. I know 
there have been questions raised as to why we used that price.
    Senator Tester. Yes.
    Ms. Nazzaro. But as over time, as the negotiations went on, 
data became more enriched, if you will, and so we feel that it 
is better data to use the more recent, or the final asking 
price, rather than to go back to any other ones. As you reach 
through a negotiation, you both start at kind of opposite ends.
    Senator Tester. And work toward the middle.
    Ms. Nazzaro. Doing the worst case, you know, how much are 
you going to pay, and I think you come closer together. So we 
felt that final asking price was probably the best number to 
    Senator Tester. Okay. The GAO has recognized that there 
were problems with the original settlement negotiations, namely 
that the tribes may have been at a disadvantage during the 
negotiations with the Federal Government. What are some of the 
reasons why the tribes may have been at a disadvantage during 
these negotiations?
    Ms. Nazzaro. Well, in one case that I am particularly 
familiar with is the fact the Government was actually 
constructing the dams at this time. We have heard that they 
felt pressured, that this was kind of a one shot deal, either 
come to the table and put forth your estimate, or you may not 
have an opportunity again.
    Jeff might have another perspective.
    Senator Tester. But did this happen in most of the cases, 
that the dams were being built and negotiations were going on 
after the dam had been in progress?
    Mr. Malcolm. I would say in most of the cases that is what 
happened. Again, there were varying degrees of how long the 
construction had been ongoing while the negotiations were 
ongoing. But yes, in some cases the dams had been closed and 
the water had started rising. Certainly, as we refer to in our 
statement, there were protracted negotiations. So the 
negotiations spanned over many years. During that time, some 
people were being relocated without really having compensation.
    Senator Tester. So what you are saying is the dams weren't 
just starting construction. They were done with construction.
    Mr. Malcolm. Done is a relative term as you look at the 
dams. Basically, they report the time the dams were closed, 
which is when they actually walled off the water for the last 
time. After the dams were closed, the construction was 
continuing to go on for a number of years after that. They 
continued to fill in the dams and do various parts of the 
    Senator Tester. Okay. In your testimony, Robin, you stated 
that four of the seven tribes received rehabilitation funds as 
a part of their original settlements, but that GAO believes 
that rehabilitation should be considered separately from any 
comparison for damages because rehabilitation was not directly 
related to the damage caused by the dams.
    Can you address what rehabilitation funds were meant to 
address originally?
    Ms. Nazzaro. Rehabilitation was not a factor in the Fort 
Berthold situation. It didn't happen until later, more in the 
1958 time frame, when they were negotiating with Standing Rock 
that the whole concept of rehabilitation came back in.
    The idea here was to improve the economic and social status 
of the tribes. It had a lot to do with just the history of the 
tribes and how the Federal Government interacted with the 
tribes. This was really a preparation for termination of 
Federal supervision of the tribes, and was in the form of 
business loans, education loans, things like that to actually 
improve the overall welfare of the tribes at the time. It 
wasn't really linked to the flooding of the Missouri River.
    Senator Tester. Okay. All right. Okay. Thank you.
    We have been joined by Senator Murkowski and Senator Thune. 
We welcome them to the Committee. If you folks have any opening 
statements, we could certainly take them at this point in time.

                    U.S. SENATOR FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman.
    I don't have much of an opening statement. I just do want 
to acknowledge, recognizing the history of the Pick-Sloan 
program and the impact of the very sudden relocation of entire 
Native communities. We recognize how complex, how far-reaching 
this really is.
    The Pick-Sloan program also illustrates that if the 
community relocation is unavoidable that the true costs of 
relocation should be very carefully evaluated in advance of the 
relocation, and that the process of the relocation should be 
very carefully planned.
    We have some situations in Alaska, perhaps not much unlike 
what we have seen here. We have several communities, in fact a 
whole handful of communities, that are looking to relocate as a 
consequence of what we are seeing with rising sea levels due to 
climate change, erosion on the coast. We are looking at their 
capacity to adequately cover the losses that are sustained by 
relocating these tribal communities.
    So I am pleased that we are able to have this hearing this 
morning to look specifically to the Pick-Sloan, but also about 
how we can perhaps better anticipate as we move forward in 
matters such as this.
    Thank you, Mr. Chairman.
    Senator Tester. Senator Thune, did you have any opening 

                 STATEMENT OF HON. JOHN THUNE, 

    Senator Thune. Thank you, Mr. Chairman.
    I just want to tell you I appreciate very much, since I am 
not on the Committee, the opportunity to be able to be here 
today along with my colleague, Senator Johnson from South 
Dakota, be able to welcome the Chairmen and Presidents of our 
tribes in South Dakota, to look at the impacts of Pick-Sloan. 
There are lots of positive things that have happened in our 
State, and yours as well, Mr. Chairman, as a result of Pick-
Sloan, but there are also a lot of consequences and impacts 
that have perhaps not been as positive with regard to the lands 
adjacent to and the impacts they have had on the tribes.
    So we are going to hear from some of those tribal leaders 
today and I am very glad to be able to welcome them here, and 
look forward to the insights and the testimony they will be 
able to provide about how this project has affected their 
specific reservations and what fair compensation could do to 
improve them.
    So I want to thank you again for holding the hearing, for 
inviting me, and I look forward to working with my colleagues 
on both sides of the aisle to address and bring some resolution 
to these issues, which are very long-standing and in need of 
some closure.
    So thank you, Mr. Chairman.
    Senator Tester. Thank you, Senator Thune.
    Senator Johnson, did you have any questions for the 
    Senator Johnson. Yes.
    I understand the GAO numbers are all based on final asking 
price. While that may be a good benchmark when parties to 
negotiations are on equal footing, I believe that they can not 
be strictly applied to every historical injustice. Did the 
GAO's analysis examine the conditions under which the parties 
arrived at their final asking price?
    Mr. Malcolm. We looked at the historical record. Again, 
just to say for the record, certainly we worked closely with 
our economists at GAO. The final asking price issue is not 
something that is written in stone. We did look for any 
information to indicate why that would have been, or if that 
would have been an unreasonable number to use. So we looked at 
all of the tribal offers that were made over a period of years 
to try to determine if the final asking price was inconsistent 
with or totally out of line with other offers that had been 
made over time.
    What we determined based on that analysis was that it was a 
reasonable offer. It was consistent with generally the other 
offers that had been made over time. One of our issues that we 
had was again looking at the offers that were made as a 
proposal. The proposal had many different components. As you 
know, in a negotiation, you might be willing to give up 
something in category A if you get more in category B.
    So there are tradeoffs and decisions that are made between 
those, so we think it is kind of important to consistently use 
one offer, as opposed to taking components out of various 
offers that were made over different years. So that was also 
one of the issues we raised in our report.
    Ms. Nazzaro. And those proposals didn't always decrease 
over time. In fact, actually in one case it was actually the 
highest proposal that the tribes came back with, and that was 
the one that was used in our economic analysis.
    Senator Johnson. It seems the tribes must of been at a 
disadvantage in the original negotiations. Are they not also at 
a disadvantage in this GAO formula?
    Mr. Malcolm. The basis of the formula, again, is simply 
recognizing the difficulties with redoing a completely new 
economic analysis. As Robin mentioned, you don't have the 
people to interview today in every case to really determine how 
they valued items 50 years ago. I mean, something might be much 
more valuable to someone today than it was to a different 
person 50 years ago when they were actually there. So not 
having those people to do that type of analysis is difficult.
    So basically, our approach was simply to say, make the 
assumption that you gave essentially 100 percent of what they 
asked for at the time. So 50 years ago, they were willing to 
settle for X amount, and we saw that as their final asking 
price. So our assumption is, let's say if they had come to the 
table as they did 50 years ago, put a proposal across the 
table, and said, we are willing to accept $12 million for this 
land. The Government would have said, we will take that offer; 
let's sign this on the dotted line.
    That didn't happen. The Government and the tribe did not 
reach an agreement. They were at a stalemate. So what we are 
saying is, okay, let's say you had accepted that offer that 
they made 50 years ago. So we calculated how much did they ask 
for then; what did Congress actually provide. So we are 
basically looking at trying to make them whole, if you will, in 
accepting the final offer that was issued at the time.
    Senator Johnson. Are you saying the agreements were at the 
end subjective in nature?
    Mr. Malcolm. Excuse me?
    Ms. Nazzaro. If he is asking that the final offers were 
subjective, the final negotiations, there never was an 
agreement between the Government and the tribes. Congress 
ultimately made the decision on that original compensation and 
it was less than the tribes wanted. So that is why we went back 
and said let's look at the difference, then, between what the 
tribes wanted and what Congress gave them, and use that as the 
basis, that difference.
    And then we applied an interest rate and a bond rate to 
give you a range of what we thought would have been fair had we 
stuck with what the tribes actually were asking for back then. 
It did seem like it was more arbitrary as to what Congress 
decided to give them than what the tribes, because that was 
based on their personal knowledge. So we felt it was fairer to 
go back to what the tribes actually were asking for.
    Senator Johnson. No further questions.
    Senator Tester. Senator Murkowski?
    Senator Murkowski. Thank you, Mr. Chairman.
    I just have one question. In your testimony, you had 
mentioned that in addition to the direct damages, that Congress 
had also recognized that the tribes had suffered damages due to 
social and cultural losses. The question for you this morning 
is whether or not those social costs have been contemplated in 
GAO's calculation of additional compensation for the seven 
Indian tribes? If so, how do you calculate for that? How do you 
provide for that accounting?
    Ms. Nazzaro. It was factored in the final asking price. The 
tribes had included all those various components: direct costs, 
indirect costs, and in some cases rehabilitation costs. The 
only one that did not include rehabilitation was for the 
Affiliated Tribes associated with the Fort Berthold 
    Senator Murkowski. So you are saying that the tribes had 
proposed that number as compensation?
    Ms. Nazzaro. That was part of the component of the 
discussions. That is where Jeff was mentioning that there was a 
tradeoff, that sometimes they would say, well, we will take 
more for the direct, and then we will cut back on the indirect, 
that there was a balancing. But all those components were on 
the table at the time of the original negotiations for 
compensation. So that was a part of that number that, if you 
will, the tribes proposed at the end.
    Senator Murkowski. As you are looking to additional 
compensation, are the culture and the social costs still 
factored in, or have you basically concluded that that was done 
once and so there is no more?
    Mr. Malcolm. It still is factored in, Senator Murkowski. 
Again, as Robin described, we looked at all the different 
components of how much the tribe itself had asked for those 
indirect damages at the time. We looked at again the 
compensation bill that Congress enacted, and again in every 
case they got less than what they had requested. So we did have 
a factor for the indirect damages that we then brought forward 
to current values to see how the amount that they were not 
paid, how much would that be worth today, i.e. how much would 
it take to make them whole based on what they asked for 50 
years ago.
    Senator Murkowski. Thank you, Mr. Chairman.
    Senator Tester. Senator Thune?
    Okay. I want to thank you very much for your testimony and 
your answering of the questions. Thank you very much.
    Mr. Malcolm. Thank you.
    Ms. Nazzaro. Thank you.
    Senator Tester. Our next panel consists of the Honorable 
Ron His Horse Is Thunder, Chairman of the Standing Rock Sioux 
Tribe from Fort Yates, North Dakota; the Honorable Michael B. 
Jandreau--and excuse me if I have pronounced it wrong--Chairman 
of the Lower Brule Sioux Tribe of Lower Brule, South Dakota; 
the Honorable Marcus Wells, Jr., Chairman of the Three 
Affiliated Tribes of Mandan, Hidatsa, and Arikara Nation, New 
Town, North Dakota; the Honorable Roger Trudell, Chairman of 
the Santee Sioux Nation in Nebraska; the Honorable Robert 
Cournoyer, Chairman, Yankton Sioux Tribe in South Dakota; and 
the Honorable John Yellow Bird Steele, President of the Oglala 
Sioux Tribe in South Dakota.
    We will start out with Ron His Horse Is Thunder. You can 
start with your testimony and we will go down the list. Thank 
you for being here.
    We will keep the testimony. If you can make it as concise, 
keep it to five minutes, it would be very much appreciated.
    We are joined by the other good Senator from North Dakota, 
Senator Conrad. Do you have any statement before we get started 
with this panel? We are just starting now.


    Senator Conrad. If I could just for a moment, Mr. Chairman, 
especially welcome Ron His Horse Is Thunder, a very dear friend 
and somebody who has a real vision and a commitment to 
improving the future of his people. I am delighted that he is 
    I welcome all the witnesses, Marcus Wells as well. I didn't 
notice that you were here as well. Good to have you here. 
Marcus is a relatively new tribal Chairman, but somebody who 
has jumped in with both feet to try to improve the future of 
his people as well.
    So we are delighted to have these two distinguished 
witnesses from North Dakota and all the witnesses on this 
    Thank you, Mr. Chairman.
    Senator Tester. Thank you, Senator.
    We will try to keep the comments to five minutes. I 
appreciate it very much if you would. There are six of you here 
and we do have limited time today by the time we get through 
the questions.
    So Ron, you go ahead and fire away.

                          SIOUX TRIBE

    Mr. His Horse Is Thunder. Mr. Chairman, honorable members 
of the Committee, thank you for allowing me the opportunity to 
speak today. I have written remarks, but I am not going to read 
them off to you. I will condense them down into some oral 
testimony here.
    I particularly find interesting the GAO's method of 
accounting for losses that tribes incurred more than 50 years 
ago. Of course, we all, and the street term, if you will, for 
accountants is bean counters. It is really interesting as they 
start talking about how they appraised our land originally, et 
cetera, and the difference between their appraisal and the 
tribe's appraisal, and basically call it an asking price, what 
we originally asked for. I don't know if our tribe ever came up 
with an original asking price. Maybe they did.
    They seemed to say that there is a difference between what 
was given us by Congress then and the asking price. So I would 
be interested in knowing what our asking price originally was 
and what was the difference in terms of percentages that was 
the original asking price and what was in fact given us.
    Standing Rock did lose about 56,000 acres of land and we 
were originally given about $12 million in compensation for 
that loss. Now, I have talked to a number of the elders who 
were alive back then, and I have seen some of the records of 
the price that they were given for their land. Every time you 
talk to them, it brings up much sadness in their hearts.
    They were given about $31 an acre for their land back then, 
is what they were given. There was no negotiation with them. It 
was just, you take this, and that is it. I find it real 
interesting that they didn't understand that there was in fact 
a negotiation process. They didn't understand the fact that 
they could have appealed it, that they could have gotten a 
lawyer and appealed the process, and maybe even gotten more 
    They didn't understand that. Most of them didn't speak 
English very well. The Bureau of Indian Affairs was giving them 
an appraisal notice saying $31 an acre and this is how many 
acres you are going to lose, and this is how much we are going 
to give you for it. And even though many of them said no, they 
refused to sign, they were still forced to take $31 per acre, 
again not understanding that they had a right to get an 
attorney and to challenge it.
    Now, non-Indians, many of them, did challenge it and got up 
towards $60 an acre, more than almost twice the value of what 
Indian land was paid at. So there is a huge discrepancy in the 
amount that Indians got for land and non-Indians got for their 
land, it being the exact same land.
    Standing Rock in its 55,000 acres that was lost, although 
we didn't lose the most amount of acres. I think that Fort 
Berthold lost more acres than we did. Standing Rock did lose 
the most timbered land. Out of all the tribes, we lost more 
timber acreage than any of them.
    As GAO says, you can't really use one appraisal rate and 
apply it to another tribe because the types of land lost were 
different. But the timberland was highly valuable to us in that 
it is where most of our game resided. It is where we acquired 
most of our food from.
    I purposely used the word bean counter when I started this 
because when we start talking about food, that is something 
that wasn't truly accounted for. There is a little field mouse, 
if you will, that lives among the trees, and it collects beans. 
It will run from tree to tree or plant to plant and collect 
little beans, and store them for the wintertime. They dry. They 
create huge mounds of the stuff.
    We used to use that as food. We would go find these little 
mounds, these huge mounds, if you will, where these beans were 
stored and we would trade with those little field mice. We 
would leave corn or we would leave tobacco, and we would take 
half of their beans that they stored for the winter, and that 
was part of our food supply. That is something the GAO, those 
bean counters will never understand in terms of beans. They 
never will. That was our food supply, and of course the grapes 
and the berries and everything else that is associated with the 
forest. That will never be accounted for, and can't be 
accounted for.
    Now, they talk about the difference in asking price. Again, 
I don't think our tribe ever really had an official asking 
price, but maybe it did. We did receive additional compensation 
at the Standing Rock Sioux Tribe. We got in the 1990s an 
additional $90.5 million. But we asked actually for more. We 
didn't receive that higher amount, and when they start talking 
about negotiations, the negotiations change from tribe to 
tribe. If you came in later after Standing Rock and Three 
Affiliated came in, we were the first, if you came in after 
that, the way of appraising your land and what you lost 
changed, and actually got more. I mean, the evaluation go more.
    So if you were to give us what the tribes got after we came 
in, the negotiation process gets better and better. We in fact 
believe that our true loss in 2004 dollars was $611 million. We 
have a study that we would like to leave that accounts for that 
difference. So truly what Standing Rock believes it lost, even 
if you take out the $90.6 million that was paid to us in the 
1990s, is truly an additional loss of $611 million that we 
believe is there.
    Also, there is surplus land that the Corps of Engineers 
when it took, it took a long square boundary line along the 
river. There is what is deemed excess Corps land. We know on 
our reservation there are 19,000 acres that is Corps land that 
could be given back to the tribe. We have asked for it. They 
have given us back only 365 acres thus far and we would like to 
see all that 19,000 acres returned to us.
    I can't actually see the clock, sir.
    Senator Tester. Actually, the clock hasn't been running for 
a while, but you are about out of time. So wrap it up, please.
    Mr. His Horse Is Thunder. So in the end, I really feel for 
our tribal members, and there are still some alive today who 
were the original landowners who only got paid $30 an acre and 
were forced to move from the best land we had up to the top on 
the prairies. Originally, there was, and I have heard it said 
by the GAO, some replacement lands that were available, rehab 
lands they refer to them as, available to these landowners who 
originally lost land.
    Well, those rehab lands, those rehab dollars, we call them 
section five dollars on our reservation. Section five dollars, 
of all the people who lost land on the river bottom, only one 
person ever got section five land ever. Section five land was 
administered by the Bureau of Indian Affairs, and you want to 
know who got section five land? Bureau of Indian Affairs 
employees who did not lose land on our reservation, and did get 
replacement land even though they didn't lose any land. Only 
one person who ever lost land on the river bottoms, one person, 
ever got replacement lands.
    Thank you.
    [The prepared statement of Mr. His Horse Is Thunder 

    The Chairman. [Presiding.] Let me next call on Chairman 
    Let me thank Senator Tester for Chairing. I had to depart 
momentarily for an important appropriations meeting with the 
    Chairman Jandreau, thank you very much for being here. You 
may proceed.


    Mr. Jandreau. Thank you. Thank you, Senator Dorgan, Senator 
Johnson, Senator Conrad, Senator Tester, Senator Murkowski and 
Senator Thune, for allowing me to come today to make a 
presentation in relationship to these losses that have 
    Lower Brule and Crow Creek are in a little bit different 
situation at this point. Chairman Thompson could not be with me 
today. However, I have submitted a statement for the record on 
behalf of Chairman Thompson and myself.
    First of all, Senate bill 160, which affects the Lower 
Brule and Crow Creek, has been changed to meet the concerns 
that have been reflected in the last hearing. First of all, we 
modified it in several ways. One was to reduce the amount of 
money that we were asking for by $57 million, from $186 million 
to $129 million. Second, a new section five made it clear that 
Lower Brule and Crow Creek legislation would declare this as 
full and final compensation for the Missouri River claim in 
relationship to the dams. And thirdly, we asked that this not 
impact any other tribe outside of the Missouri River.
    I listened today with great interest in all of the comments 
that were made by GAO. The idea of final asking price is 
unrealistic. When GAO did the study, they came to our 
reservation. They talked to elders, elders who were alive at 
the time of the taking. They listened to them tell how 
incomplete the taking of these lands made them and their 
ability to survive.
    They told the folks that were there from GAO that they 
believed that adequate compensation had never been made. In 
fact, when we testified before this Committee in 1992, I 
believe it was, the first time, we submitted testimony from our 
elders that reflected that the monies that we received at that 
time were not full compensation for what they believed the 
losses were.
    While we encourage and support our fellow tribesmen in 
having their needs dealt with, we ask that if that is not 
possible in this session of Congress, that this Committee would 
recommend moving forward with our bill. If a bill during this 
Congress can be done comprehensively, we understand that and 
are willing to work with Congress, with our fellow tribesmen, 
to be a part of that.
    However, if ours moves forward before that, we agree that 
we will not ask for any additional compensation than that that 
is Senate bill 160.
    Thank you very much.
    [The joint prepared statement of Mr. Jandreau and Mr. 
Thompson follows:]

Prepared Statement of Michael B. Jandreau, Chairman, Lower Brule Sioux 
      Tribe and Lester Thompson, Chairman, Crow Creek Sioux Tribe
    Chairman Dorgan, Senator Johnson, Members of the Committee, I am 
Chairman Mike Jandreau of the Lower Brule Sioux Tribe. With me is 
Chairman Lester Thompson of the Crow Creek Sioux Tribe. Allow us to 
also recognize Senator Thune, who has introduced The Lower Brule and 
Crow Creek Compensation Act, S.160, with Senator Johnson.
    First, Mr. Chairman, we appreciate that this hearing is on the 
larger question of compensation for all Tribes on the Missouri River 
(the River) that lost land as a result of the Pick-Sloan Missouri River 
Program. We support full and fair compensation for all Tribes on the 
River, not just our two Tribes.
    At the same time, however, we believe we are in a unique position. 
Our legislation was reported by the Committee in the 108th Congress and 
the 109th Congress. The legislation passed the Senate three times in 
the 108th Congress. After the bill was reported in the 109th Congress, 
Chairman McCain asked the GAO for a report on the legislation. A 
mathematical error was discovered and the legislation before you was 
then modified in several ways:

   First, the amount of compensation was reduced. For Lower 
        Brule the amount in the bill was reduced from $186 million to 
        $129 million, or $57 million. The Crow Creek amount was reduced 
        by $36 million, from $105 million to $69 million.

   Second, a new Section 5 was added making it clear that as to 
        Lower Brule and Crow Creek this legislation would be full and 
        final compensation, even if additional legislation were enacted 
        for all other Missouri River Tribes; and, last,

   Section 5 also makes it clear that S. 160 would not be a 
        precedent beyond the Missouri River Basin Program.

    Mr. Chairman, the Flood Control Act of 1944 may have been good for 
the United States, but it has been devastating for River Tribes. I ask 
that our testimony of June 15, 2004 and June 24, 2006 be made a part of 
this hearing record. *
    * The information referred to is printed in the appendix.
    In partial compensation for the damage caused by Pick-Sloan, the 
Congress did enact two Infrastructure Development Trust Funds for Lower 
Brule and for Crow Creek. We have used these funds to the best 
advantage of our Tribes. Meetings were held with our elders and other 
Tribal members to establish priorities and many critical projects have 
been undertaken. But we have only scratched the surface of what needs 
to be done to bring Tribal life and our Tribal economies into the 
mainstream of American life.
    It is very painful to read The World is Flat and to read that the 
United States is outsourcing jobs to China and India when many American 
Indian reservations have an unemployment rate over 80 percent and a 
third world standard of living. When exactly is the United States going 
to establish a comprehensive plan for the Reservations here in the 
United States?
    The Lower Brule and Crow Creek Compensation Act would enable our 
two Tribes to move forward with health care, justice programs, 
education, transportation, broadband, and our many other needs. Let us 
stress, however, we also support moving forward with legislation for 
all other River Tribes when they are ready to do so.
    Our main point today is that it is not fair or right to hold our 
bill up until all other River Tribes are ready. Each year that passes 
we are losing millions of dollars in interest that our people need for 
critical services. We have done our studies, created our internal 
plans, and are ready to move forward. We are prepared therefore to 
accept S. 160 as full and final compensation.
    Finally, let us stress that we are not seeking a hand out based on 
our human needs. This legislation is intended to provide compensation 
for the loss of our land and the costs suffered by our two Tribes. The 
Army Corps of Engineers has estimated that the Pick-Sloan project's 
overall contribution to the U.S. economy is over $1.2 billion per year. 
Tribal compensation must been seen in that context. The United States 
took our best land and our water (under the Winters doctrine) to 
produce electricity. They then sell the electricity and instead of 
sharing the revenue with the Tribes, they charge us for the 
    This is fundamentally wrong! Further, we are not talking about 
injustices that were committed against the Indian people in the 1860's. 
We are talking about this year, 2007. It is time to correct the record 
and enact legislation that compensates all Tribes that have lost their 
land. It is time to fairly compensate River Tribes for their loss and 
their contribution to the American economy. We urge the Committee to 
look at the cost of the legislation in the context of history and the 
revenue the is generated each year by Pick-Sloan.
    We urge the Committee to bring S. 160 to the floor of the United 
States Senate. Thank you.

    The Chairman. Chairman Jandreau, thank you very much.
    Next, we will hear from the Honorable Marcus Wells, Jr, the 
Chairman of the Three Affiliated Mandan, Hidatsa and Arikara 
Nation Tribes in New Town, North Dakota.
    Chairman Wells, thank you very much.


    Mr. Wells. Good morning. My name is Marcus Dominic Wells, 
Jr. [Greeting in native tongue.]
    I would like to thank the Committee and the Chairman for 
inviting me to testify today.
    Over 50 years ago, our lands were flooded to construct the 
Garrison Dam and its reservoir. These lands were our prime 
bottom lands, home to over 90 percent of our tribal members. 
These lands provided us with fertile soil for agriculture. 
These lands were where our tribal ancestors lived and 
prospered. We were self-sufficient.
    In all, we lost 156,000 acres of our best and most fertile 
lands. Our tribal families were forced to move up to the dry, 
windy highlands of the reservation, which our people had 
previously used for grazing of our animals. Now, our people 
must live there.
    The result was not by our own choosing. Our tribe was 
pressured and steam-rolled into signing away our prime bottom 
lands in the 1940s. In May of 1948, Tribal Chairman George 
Gillette traveled here to Washington, D.C. to sign the final 
agreement with the Department of Interior. A photograph of that 
event shows Chairman Gillette weeping as Interior Department 
officials sign away the tribe's lands to make way for Garrison 
Dam's giant reservoir, Lake Sakakawea. Chairman Gillette said, 
``Right now, the future does not look too good for us.''
    I keep that photograph above my desk as a reminder of why I 
and my fellow Council members work so hard to ensure that the 
United States Government fulfills its long-delayed promises and 
commitments to make our people whole once again.
    Chairman Gillette was right. The flooding of our 
bottomlands destroyed our prosperous agriculture base and 
segregated the reservation to six isolated segments. We have 
struggled to be self-sufficient again as our communities became 
separate from one another. Driving from one part of the 
reservation to another can take three hours or more, making it 
very difficult and costly to provide basic governmental 
services such as law enforcement, health care, education, and 
transportation services.
    The payment from the Federal Government to the tribe was 
far too little to compensate for the loss of our bottomlands. 
Our depth of our people's suffering, and the fragmentation of 
our unified tribal government services. Three decades later, 
the Federal Government admitted as much. Secretary of the 
Interior Donald Hodel signed a charter in 1985 creating the 
Garrison Unit Joint Tribal Advisory Committee, or JTAC. The 
JTAC's final report of 1986 stated very clearly that our tribe 
had been forced to accept a highly inequitable payment for the 
flooding of our lands, resulting in catastrophic social and 
economic damage. The JTAC report found that the resources we 
had lost was valued in the range of $170 million and $343 
    In addition to further financial restitution, the JTAC 
report recommended that the Federal Government undertake 
several measures to compensate the tribe for its sustained 
losses. These steps included completion of a reservation-wide 
drinking water system, construction of two major irrigation 
projects, financial assistance for reservation farms, 
development of recreational shoreline opportunities on Lake 
Sakakawea, preferential rights for Garrison power, and 
replacement and refurbishment of critical infrastructure lost 
due to the flooding, such as our health care facility, bridge, 
school dormitories, tribal roads and housing. These 
recommendations were intended to make the tribe whole once 
    These projects have not been fulfilled in accordance with 
the Federal Government's promise. It has been over 50 years 
since the flooding of our lands and we have still not been made 
whole. Each year, the tribe subsidizes the Government's trust 
responsibilities by millions of dollars, to name a few: 
$600,000 toward law enforcement; $500,000 to Indian Health 
Service; $600,000 to the roads; $1 million toward the housing 
    The tribe's drinking water system is far from complete. In 
fact, 90 percent of our tribal households still have no running 
water. Over 300 families truck in water for use in the home, 
making life on the reservation expensive and inconvenient. 
Other families use well water laden with heavy salts and 
minerals. I have seen parents washing their babies in brown 
well water that reeks of heavy and unhealthy minerals such as 
manganese, coal, iron, and lime.
    Our horses and other livestock also drink from the same 
brown water. More than 50 years after the flooding of our land, 
too many of our family homes do not have access to a safe, 
clean water supply.
    The Garrison Reformulation Act of 1986 and the Dakota Water 
Resources Act of 2000 were meant to speed the completion of our 
drinking water system, but annual funding has been too little 
to make substantial progress. There are only a handful of 
elders left who remember the time before the flooding of our 
lands. They deserve to see clean, safe drinking water running 
into their homes in their own lifetimes.
    Contrary to the Federal Government's promises and the 
express terms of the Dakota Water Resources Act, our tribal 
members living in New Town and Parshall are paying extremely 
high water bills and live under the threat that their water 
will be turned off due to the falling water levels in the 
Missouri River. Our tribe has prepared detailed water purchase 
agreements to share the benefits of the Dakota Water Resources 
Act not only with our people, but with all people, Indian and 
non-Indian, living on the Fort Berthold Reservation, whether 
living in towns or in rural areas.
    Although the Dakota Water Resources Act expressly states 
that the water project is to provide municipal as well as rural 
water benefits, the Bureau of Reclamation has so far not agreed 
that appropriations under the Act can be used to help provide 
water benefits to residents in New Town and Parshall. We need 
this Committee's help to change this unwise and unfair policy.
    We also had to bring a lawsuit against the Bureau of 
Reclamation to gain recognition that the tribe's successful 
financing of a small portion of the water project through low-
interest USDA loans could be repaid with the Dakota Water 
Resources Act appropriations. To help us more promptly complete 
this vital municipal, rural and industrial water project, I ask 
for the Committee's support and Congress's prompt passage of 
Senate bill 2200, the Tribal Water Resources Innovative 
Financing Act, which was introduced by Senator Conrad and 
cosponsored by Senators Johnson and Tester.
    Since our lands were first taken from the tribe for the 
Pick-Sloan Project over a half century ago, the tribe has also 
attempted to recover lands that are in excess of those needed 
for the project. The Three Affiliated Tribes and Standing Rock 
Sioux Equitable Compensation Act provided for the return of 
project lands located at or above elevation 1,860 feet mean sea 
level to the tribe and other former landowners, but those 
provisions were repealed in 1994. The new law provided that the 
U.S. Army Corps of Engineers should proceed with the Secretary 
of the Interior to designate excess lands and transfer them. 
The Corps has been studying the potential transfer of the lands 
since 1994, but to date the tribe has not received any of the 
    The tribe seeks the immediate return of these lands that 
are at or above the maximum flood pool elevation, and we have 
advised the Corps that we will agree to reasonable and 
necessary easements for lake access for project purposes. There 
is no question that the Corps has the legal authority to 
transfer these lands immediately to the tribe under the Fort 
Berthold Mineral Restoration Act. The Corps agrees that this 
provision provides legal authority for the Corps to transfer 
the excess lands to the Secretary of the Interior for the 
benefit of the tribe, but we are still waiting for it to be 
    The tribe and the Corps share a mutual interest in 
stewardship over these land along the lakeshore, but in my 
view, the tribe has a greater interest and ability to manage 
these lands. I firmly believe that the tribe would be a better 
steward of the lands than the Corps. We are already managing 
the contiguous tribal lands. Return of the lands would assist 
the tribe in developing tourism, recreation, and economic 
development opportunities. It is long overdue.
    I also remind the Committee of the JTAC promise to replace 
the hospital that was flooded due to the Pick-Sloan Project. We 
have been working diligently with Chairman Dorgan and our North 
Dakota congressional delegation to fulfill this promise, but we 
still have a ways to go. I ask for the support of this 
Committee to finally bring the dream of caring, competent, and 
accessible health care to the Fort Berthold Reservation.
    Finally, individual tribal landowners did not receive 
adequate compensation for their losses caused by the Pick-Sloan 
Project. For example, the Federal Government agreed to move 
some houses up to dry land before the flood, but many of these 
homes were simply moved atop dry bluffs in the middle of 
nowhere. These homes were not livable and have long since been 
abandoned. Many tribal members had to abandon the reservation 
because they could no longer survive in the land of their 
ancestors. Fundamental fairness demands that all individual 
tribal members who were cast out of their homes receive just 
compensation for their losses.
    Again, I thank the Committee for the opportunity to speak 
and look forward to answering any questions you may have. I 
will be submitting my more detailed written testimony shortly.
    Thank you.
    [The prepared statement of Mr. Wells follows:]


    The Chairman. Chairman Wells, thank you very much for your 
    Next, we will hear from the Honorable Roger Trudell, the 
Chairman of the Santee Sioux Nation in Nebraska.
    Chairman Trudell?


    Mr. Trudell. Good morning, Chairman Dorgan and members of 
the Committee, and our two neighboring Senators, Senator 
Johnson and Senator Thune. It is always a pleasure to be 
wherever you are at, and Senator Murkowski, Senator Conrad.
    I am going to limit mine because I did submit a couple page 
testimony, and just briefly say that our lands were taken 
through the condemnation process. There was no negotiation 
process involved in it at all. The lands that were taken were 
probably our richest lands because they were the bottomlands.
    Some of the things I tried to point out in what I was 
presenting was if you just looked at it as a dollar value for 
an acre of land, probably the compensation was just. But if you 
don't take into consideration the long-term effects of the dam 
and what it has on our community, our reservation, you know, we 
are running into repairs that we can't meet because we have no 
resources to meet them. Because the dam and the lake are there, 
we have a lot of hunters that come in. We are a major flyway 
for geese and ducks and bats and mosquitoes and whatever else.
    Nobody takes responsibility for the roads. The State has 
maintenance on the road into the reservation. They maintain it 
to a certain point, but once it ends at the village limits, 
then the village of Santee itself, which is 99.9 percent 
tribal, and has no tax base, and we have to stand the cost of 
repairing roads and other issues related to the hunters and 
stuff that are coming in.
    Off those hunters, we have no income or anything. I think 
the Government are the only people who are able to sell 
waterfowl permits because it is Corps land, and the Corps has 
an agreement with the State of Nebraska, then they have to have 
a State of Nebraska hunting permit, and they don't have to have 
a tribal hunting permit. So we are not able to capture any 
dollars off of those people to do the repairs that need to be 
done on our roads.
    And then one of the other things is that we are losing 
additional lands because of the Gavins Point Dam and Lewis and 
Clark Lake by I call it siltation, and somebody says it is 
actually sedimentation, I guess. The sedimentation is creating 
the rising water table along other lands through the creeks and 
stream beds. Those things I would like maybe to have somehow 
considered and the loss of potential income that we would have 
had if we still had control and access to the lands of the 
river, even down to the hunting rights of our people, because 
the State demands a hunting license from our tribal members, 
although it was formerly our land and it is basically Federal 
land if it was taken for the Corps of Engineers in the dam.
    So the rights of our people are also being limited by what 
has taken place over the last 50 some years, with the creation 
of the Gavins Point Dam and Lewis and Clark Lake.
    I am going to end my testimony at this point for the sake 
of time. Thank you.
    [The prepared statement of Mr. Trudell follows:]


    The Chairman. Chairman Trudell, thank you very much for 
your testimony. We appreciate your traveling to this hearing.
    Next, the Honorable Robert Cournoyer, the Chairman of the 
Yankton Sioux Tribe in Marty, South Dakota.
    Mr. Chairman, you may proceed.


    Mr. Cournoyer. Good morning, Mr. Chairman and members of 
the Indian Affairs Committee.
    I serve as the elected Chairman of the Yankton Sioux Tribe. 
Our tribal lands are located in southeastern South Dakota and 
the Missouri River borders our southern boundary. On behalf of 
the Yankton Sioux Tribal membership, I would like to express my 
appreciation to you and the Committee members for inviting me 
to testify today and for taking up consideration of the impact 
of the Flood Control Act of 1944 on Indian tribes along the 
Missouri River.
    Our reservation was established by the Treaty of 1858, 
which provided our people with 430,405 acres of land along the 
Missouri River. As time passed, our reservation was diminished 
by the Act of August 15, 1894, which opened up our reservation 
to non-Indian settlement. By the 1950s when the Fort Randall 
Dam project was constructed, only 44,938 acres of Indian land 
remained in Federal trust status.
    In 1944, the United States Congress enacted the Flood 
Control Act which authorized the construction of five dams 
along the Missouri River known as the Pick-Sloan Project. The 
primary purpose of the dams and reservoirs was flood control 
downstream. Other stated purposes were navigation, hydropower 
generation, providing water supplies, and recreation.
    The impact of the Pick-Sloan Program was devastating to all 
the Missouri River tribes, including the Yankton Sioux Tribe. 
The Fort Randall Dam and reservoir inundated a large portion of 
the Yankton Sioux Indian Reservation bottomlands and rich 
productive agricultural lands. The Fort Randall project flooded 
2,851 acres of Indian trust land within the reservation and 
required the relocation and resettlement of at least 20 
families which was approximately eight percent of the resident 
tribal population. Over the past 50 years, the tribe has lost 
an additional 408 acres to stream bank erosion.
    The Missouri River bottomlands provided a traditional way 
of life for the Yankton Sioux, and now it is virtually lost. 
The bottomlands provided an abundance of game and plants for 
traditional food, plants for ceremonial and medicinal purposes, 
and plenty of trees for lumber and fuel. In addition to the 
loss of the bottomlands, the tribe lost acres and acres of 
productive agricultural land.
    Inundation of the community of White Swan. The waters of 
the Missouri River completely inundated the traditional and 
self-sustaining community of White Swan, one of the tribe's 
major settlement areas. The White Swan families raised various 
livestock which took shelter in the timbered bottomlands or 
outbuildings. The White Swan families sold surplus milk and 
eggs in the towns of Lake Andes and Wagner. The money received 
was generally used to purchase needed stapes that were not 
cultivated from the rich soil in and around the community of 
White Swan.
    The community was very close-knit and the families helped 
each other in many ways. While it was the practice of the 
United States to relocate flooded Indian communities flooded by 
the Pick-Sloan program to higher ground, the community of White 
Swan was never relocated or reestablished elsewhere. The White 
Swan families were simply dispersed elsewhere and the community 
was never replaced.
    Condemnation proceedings. Neither the Flood Control Act of 
1944 or any subsequent acts of Congress specifically authorized 
the United States Army Corps of Engineers or the Bureau of 
Reclamation to condemn Sioux tribal lands for the Pick-Sloan 
project. Unfortunately, the condemnation of the Yankton Sioux 
tribal lands was not challenged for a host of reasons.
    The condemnation proceedings in the U.S. District Court 
resulted in settlements that did not provide adequate 
compensation to the Yankton Sioux Tribe. The tribe did not 
receive compensation for direct damages, but rather a 
compensation for the appraised value of their property. The 
condemnation proceedings did not take into account the large 
proportion of productive agricultural land.
    Further, the settlement did not account for the inflation 
of property values between the time of the taking and the time 
of settlement, which was several years later. The average 
settlement payment on other Indian reservations whose land was 
taken by the act of Congress was approximately $16,000 per 
family according to the research documents, while the Yankton 
Sioux Tribe received $5,605 per family as a settlement for the 
land taken by the United States.
    The Yankton Sioux Development Trust Fund. We recognize your 
efforts to compensate the Yankton Sioux Tribe in the 107th 
Congress. The Yankton Sioux Tribe Development Trust Fund was 
signed into Public Law 107-331 in December, 2002. The language 
sets up a trust fund for $23,023,743 in compensation for the 
tribal lands lost due to the Flood Control Act of 1944. These 
funds are not available until 2013. We would appreciate the 
Committee examining the possibility of these funds being made 
available prior to 2013.
    In conclusion, many of our tribal elders who experienced 
first-hand the taking of tribal lands and the removal have 
passed on. It has been long enough for a just and equitable 
resolution to the devastating impacts of the Pick-Sloan Act on 
our tribe.
    Thank you for your time in considering this important 
    A couple of things I wanted to add, too, is currently we 
are in court with the Corps of Engineers on the takings areas 
of the White Swan and the North Point. Basically, what had 
happened there is that there was some discovery of remains and 
they were doing construction, because at the time they were 
turning these lands over to the State of South Dakota for 
recreational purposes. If it weren't for Title VI, the Wildlife 
Habitat Restoration Act, those lands rightfully should have 
come to the Yankton Sioux Tribe. Currently, we are asking that 
approximately 1,000 acres of that land be restored to the 
    Traditionally before the Corps took over and returned the 
land to the State of South Dakota, we had access to the river 
above the dam and below the dam in those Corps areas. Now, we 
are restricted from having access to those lands. Title VI was 
created, because a lot of the white landowners came and 
protested to not only the Governor and to their representatives 
in Congress, which said that if that land was given back all 
along the river, to the Tribes the taking areas, that it would 
block the white farmers, landowners, hunters, etc., from having 
access to the river. We believe that not to be true, and that 
is what they have done to us, in fact, is that by turning the 
land over to the State of South Dakota, that it blocked the 
Tribe and Tribal membership access to the river above the dam 
and below the dam in the Corps areas.
    So we are asking currently that approximately 1,000 acres 
be restored back to the Tribe the taking areas.
    Thank you for your time.
    [The prepared statement of Mr. Cournoyer follows:]

  Prepared Statement of Robert W. Cournoyer, Chairman, Yankton Sioux 
    Mr. Chairman and Members of the Indian Affairs Committee, my name 
is Robert Cournoyer, and I serve as the elected tribal Chairman of the 
Yankton Sioux Tribe. Our Tribal lands are located in southeastern South 
Dakota and the Missouri River borders our southern boundary. On behalf 
of the Yankton Sioux tribal membership, I would like to express my 
appreciation to you and the committee Members for inviting me to 
testify today and for taking up consideration of the impact of the 
Flood Control Act of 1944 on Indian Tribes along the Missouri River.
    Our reservation was established by the Treaty of 1858, which 
provided our people with 430,405 acres of land along the Missouri 
River. As time passed, our reservation was diminished by the Act of 
August 15, 1894, which opened up our reservation to non Indian 
settlement. By the 1950s, when the Fort Randall dam was constructed, 
only 44,938 acres of Indian land remained in federal trust status.
    In 1944, the United States Congress enacted the Flood Control Act 
which authorized the construction of five dams along the Missouri River 
known as the Pick-Sloan Program. The primary purpose of the dams and 
reservoirs was flood control downstream. Other stated purposes were 
navigation, hydropower generation, providing water supplies, and 
    The impact of the Pick-Sloan program was devastating to all the 
Missouri River tribes including the Yankton Sioux Tribe. The Fort 
Randall dam and reservoir inundated a large portion of the Yankton 
Sioux reservations bottom lands and rich productive agricultural lands. 
The Fort Randall project flooded 2,851 acres of Indian trust land 
within the Yankton Sioux reservation and required the relocation and 
resettlement of at least 20 families which was approximately 8 percent 
of the resident tribal population. Over the past fifty years, the tribe 
has lost an additional 408 acres to stream bank erosion.
    The Missouri River bottom lands provided a traditional way of life 
for the Yankton Sioux that is now virtually lost. The bottom lands 
provided an abundance of game and plants for traditional food, plants 
for ceremonial and medicinal purposes, and plenty of trees for lumber 
and fuel. In addition to the loss of the bottom lands, the tribe lost 
acres and acres of productive agricultural land.
Inundation of the Community of White Swan
    The waters of the Missouri River completely inundated the 
traditional and self-sustaining community of White Swan, one of the 
tribe's major settlement areas. The White Swan families raised various 
livestock which took shelter in the timbered bottom lands or out 
buildings. The White Swan families sold surplus milk and eggs in the 
towns of Lake Andes or Wagner. The money received was generally used to 
purchase needed staples that were not cultivated from the rich soil in 
and around the community of White Swan. The community was very close 
knit and the families helped each other in many ways.
    While it was the practice of the United States to relocate flooded 
Indian communities flooded by the Pick-Sloan program to higher ground, 
the community of White Swan was not relocated or reestablished 
elsewhere. The White Swan families were simply dispersed elsewhere and 
the community was never replaced.
Condemnation Proceedings
    Neither the Flood Control Act of 1944 nor any subsequent acts of 
congress specifically authorized the U.S. Army Corps of Engineers or 
the Bureau of Reclamation to condemn Sioux tribal land for Pick-Sloan 
projects. Unfortunately, the condemnation of Yankton Sioux tribal land 
was not challenged for a host of reasons.
    The condemnation proceedings in U.S. District Court resulted in 
settlements that did not provide adequate compensation to the Yankton 
Sioux Tribe. The tribe did not receive compensation for direct damages 
but rather a compensation for the appraised value of their property. 
The condemnation proceedings did not take into account the large 
proportion of productive agricultural land. Further, the settlement did 
not account for the inflation of property values between the time of 
taking and the time of settlement which was several years later. The 
average settlement payment on other Indian reservations whose land was 
taken by acts of Congress was approximately $16,680 per family 
according to research documents, while the Yankton Sioux Tribe received 
$5,605 per family as a settlement for the land taken by the United 
Yankton Sioux Tribe Development Trust Fund
    We recognize your effort in compensating the Yankton Sioux Tribe in 
the 107th Congress. The Yankton Sioux Tribe Development Trust Fund was 
signed into Public Law 107-331 December, 2002. The language sets up a 
trust for $23,023,743 in compensation for the Tribal lands lost in the 
Flood Control Act of 1944. These funds are not available until 2013. We 
would appreciate the Committee examining a possibility of these funds 
being made available prior to 2013.
    Many of our tribal elders who experienced first hand the taking of 
tribal land and the removal have passed on. It has been long enough for 
a just and equitable resolution to the devastating impacts of the Pick-
Sloan program on our tribe. Thank you for your time and consideration 
to this important matter. We appreciate Chairman Dorgan and the rest of 
the Committee's attention to the large scope of the issues affecting 
the Pick-Sloan program.

    The Chairman. You are asking the Corps of Engineers at this 
point, right?
    Mr. Cournoyer. Yes, we have a lawsuit with them currently.
    The Chairman. Chairman Cournoyer, thank you very much.
    Finally, we will hear from Chairman John Yellow Bird 
Steele, the President of the Oglala Sioux Tribe in South 
    Mr. Steele, you may proceed.


    Mr. Steele. Thank you very much, Senator Dorgan.
    I would like to thank the members of this Committee for 
allowing me to testify at this hearing. I would say that my 
heart feels very happy to see Senator Johnson there 
representing the Oglala Sioux Tribe. And I thank Senator John 
Thune for his attendance and representing also the Oglala Sioux 
    I think that this is a very important hearing, Senators, 
and I thank you for holding this hearing. We talk about a 
comprehensive bill addressing the impacts of the 1944 Flood 
Control Act and the Pick-Sloan program, but I don't think it is 
as comprehensive as you call it, because it does not include 
the Oglala Sioux Tribe. We have been impacted.
    I would like to say that the impact the Oglala Sioux Tribe 
feels from the 1944 Flood Control Act and the Pick-Sloan 
program, it requires reference to our treaties and the tribal 
land claims that we have filed in the Indian Land Claims 
Commission. I did not hear the GAO make reference to these. 
They only addressed those tribes that are physically situated 
along the Missouri River. The Oglala Sioux Tribe is a river 
tribe. I make reference and say just because we are adjacent to 
the Black Hills physically, that these other tribes are not 
Black Hills tribes. Why do we have to be physically located 
there to feel the physical impacts of the Pick-Sloan Act?
    We are, and I would like to give a little testimony. I gave 
written testimony here. I would like to in my oral testimony 
explain a little on that. But I will say that just a little 
over 100 years ago, the Wounded Knee massacre, the Sand Creek 
massacre, the United States Government physically fought our 
people. Our mothers, our grandmothers, our daughters were there 
fighting the United States Government for a way of life that 
was being destroyed.
    Today, this life is called third world conditions, the most 
impoverished--words, words, words. You physically live the life 
in the middle of these United States. And we are talking about 
some compensation for taking and not justly compensating 
rights. I thank you for that. That is the way we should treat 
one another, I do believe.
    But we are still wary, Senators. Trusting is very hard when 
our lands we consider from our points of view to have been 
stolen, not justly compensated for. I am sorry.
    I got a telephone call last night from a Mr. Sam Waddell, a 
tribal member of the Yankton Sioux Tribe, saying the Army Corps 
of Engineers just got orders from up above to quantify the 
tribe's rights on the river. Who is the Army Corps of Engineers 
to quantify this? And this leaves in my mind some fears, some 
apprehensions that this hearing might also lead to some 
settlement of water rights. It is a fear because, as I say, of 
the way we have been treated in the past, the way we live 
    But I will say my time is getting very short, Senators, so 
I am going to have to wrap it up here, that the 1944 Flood 
Control Act has impacted us because the Corps of Engineers 
operates the Missouri River main stem and the Bureau of 
Reclamation operates the tributaries. This is all associated 
with the 1944 Flood Control Act. Right now, the Angostura Dam 
on the Cheyenne River tributary immediately upstream from the 
Pine Ridge Reservation has devastatingly impacted Pine Ridge.
    Representative Herseth Sandlin has introduced H.R. 833 to 
establish a trust fund for the Oglala Sioux Tribe and restore 
water flow to the Cheyenne River. Senator Johnson will be 
introducing that bill on behalf of the Oglala Sioux Tribe. We 
thank him for that.
    In conclusion, I would like to say, Senators, that Congress 
should develop and enact comprehensive reform of the Pick- 
Sloan program. The tribes upstream need drinking water. It is 
affecting the intakes of the water systems of tribes. The 
stabilization of reservoir levels, and protection of historic 
properties are very important to us.
    I would also like to say that anything dealing with any 
settlement of water rights requires that we settle our 
outstanding land claims with the United States Government. So 
let's sit down, Senators, and let's talk about these in a fair, 
just way. Let us again, if need be, like the old treaties were 
established, talk about these what we might consider to be hard 
subjects and come to some sort of a settlement or agreement.
    Today, us people sitting here testifying before you are the 
same people that were shedding their blood just a little over 
100 years ago. This is a different kind of a war, but we are 
tomorrow's ancestors and we have a responsibility to see that 
our peoples are able to live a little better than we are right 
now in our dealing with yourselves.
    I would like to thank you for this hearing. I really 
appreciate it, and I thank you for allowing me at the last 
minute to give testimony. I think that this hearing is very 
timely, and I look forward to working with this Committee on 
just a little bit of what I have said. I had to put this 
testimony together very quickly just from yesterday, and so we 
will refine it and resubmit it to you, Senators.
    Thank you very much.
    [The prepared statement of Mr. Steele follows:]

Prepared Statement of John Yellow Bird Steele, President, Oglala Sioux 
    Mr. Chairman and members of the Committee on Indian Affairs, my 
name is John Yellow Bird Steele. I serve as President of the Oglala 
Sioux Tribe.
    Let me begin by thanking you for holding this important hearing. 
The Missouri River Basin Pick-Sloan Program has had significant adverse 
impacts on land, water and cultural resources of the Oglala Sioux Tribe 
and Great Sioux Nation. The costs of the Pick-Sloan program have 
disproportionately fallen on the Tribes, while the benefits are enjoyed 
in predominantly non-Indian communities, with little spillover benefits 
on the Indian Reservations.
    The impact of the 1944 Flood Control Act and Pick-Sloan program on 
our Tribe requires reference to our treaties, and the tribal land 
claims filed in the Indian Claims Commission. Our reserved water rights 
to the Missouri River and its tributaries, and to the cultural 
resources along the banks of the Missouri River, have their source in 
our Treaties.
Tribal Treaties
    The Oglala Sioux and other Tribes of the upper Missouri River basin 
are treaty Tribes. As such, we are entitled to special consideration 
with respect to the impacts of federal public works projects, on our 
land and resources.
    The 1868 Ft. Laramie Treaty (11 Stat. 749) recognized title to the 
Teton and Yankton Sioux to 60 million acres of territory west of the 
Missouri River in the States of South Dakota and North Dakota.
    The 1868 Treaty (15 Stat. 635) carved a 26 million acre reservation 
out of our 1851 Treaty territory for the Sioux bands. This reservation, 
called the ``Great Sioux Reservation'' included all of western South 
Dakota west of the low water mark of the east bank of the Missouri 
River. Thus, the 1868 Treaty recognized an undivided ownership interest 
in the entire bed of the Missouri River in the Oglala Sioux Tribe from 
the North Dakota boarder to the Nebraska border.
    The United States maintains that it acquired the western portion of 
the Great Sioux Reservation known as the ``Black Hills'' under the Act 
of February 28, 1877 (19 Stat. 254) even though its confiscation of 
this area violated Article 12 of the 1868 Treaty which provided that no 
part of the reservation could be ceded to the United States without 
three-fourths consent of the adult male Sioux Indians occupying or 
interested in the Great Sioux Reservation.
    The United States also maintains that it acquired an additional 9 
million acres of the Great Sioux Reservation under the Act of March 2, 
1889 (25 Stat. 888). The Act also established five smaller Sioux 
reservations from the remainder of the Great Sioux Reservation 
including the Pine Ridge Indian Reservation.
    Thus, the Pine Ridge Indian Reservation is the current home of the 
Oglala Sioux Tribe, although the Tribe has claimed unextinguished 
rights to our treaty lands including the Missouri River.
Indian Claims Commssion
    I believe that a discussion of the Indian Claims Commission Act 
proceedings is also necessary because I don't believe the Oglala Sioux 
Tribe can quantify its water rights in the Missouri River without first 
settling its outstanding land claims with the United States.
    The Oglala Sioux Tribe filed a land claim in the Indian Claims 
Commission in 1950. This case was designed as ``Docket 74.'' The case 
was divided into two cases in 1960, Docket 74-A and 74-B. Docket 74-A 
involves a claim for 34 million acres of 1851 treaty land located 
outside of the Great Sioux Reservation. It also involved an aboriginal 
title claim that included the east bank of the Missouri River in South 
Dakota from Pierre, S.D. northward into North Dakota.
    There were two acts of fraud perpetuated by the Government upon the 
Sioux tribes regarding Docket 74-A lands. The first Act was when some 
federal official inserted ``relinquishment language'' in Article 2 of 
the 1868 Treaty. The ICC acknowledged that the Sioux bands would not 
have signed the 1868 Treaty, which ended the Powder River War of 1866-
1867, had they known they were giving up any land. Nevertheless, the 
ICC ruled that Article 2 constituted a voluntary cession of 1851 treaty 
    The second was when the U.S. Claims Court rammed a $44 million 
final money judgment down the Sioux tribes' throats in Docket 74-A 
based on a stipulated settlement agreement that the claims lawyers 
signed behind the backs of the Sioux tribes. The claims attorneys also 
stipulated away $3.7 million as an offset to the U.S. without the 
consent of the Sioux tribes.
    The Oglala Sioux Tribe filed a motion for relief from judgment, 
which was denied by the Claims Court. The U.S. Court of Appeals for the 
Federal Circuit affirmed, but Judge Newman wrote the following in her 
dissenting opinion which exposes the collusion between the tribes' 
claims attorneys, government attorneys and the federal courts:

         The entry of judgment is surely not a routine ``evidentiary 
        stipulation'' such as is encountered in day to day trial 
        management: not only because the stipulation disposes of some 
        3.7 million dollars in moneys previously adjudged to be due the 
        Sioux Indians; but because counsel for both sides knew that 
        since at least 1979 tribes representing the majority of Sioux 
        Indians had given instructions contrary to the settlement. The 
        record contains two resolutions of the Oglala Sioux Tribal 
        Council informing counsel that it no longer sought money 
        damages, but wanted to pursue legal and legislative strategies 
        to gain return of ancestral lands. These resolutions also 
        directed counsel to have the Oglala Sioux Tribe dismissed from 
        this litigation.

         A lawyer cannot be authorized by a court to make a settlement 
        and bind the client contrary to the client's wishes. Nor can 
        either the court or the United States ignore the tribes' 
        several attempts to discontinue Mr. Lazarus' representation. 
        The court does not discuss the asserted violation of 25 U.S.C. 

         In light of this extended history, the Claims Court's 
        acceptance of the Stipulation of Facts and the grant of the 
        Joint Motion to Enter Judgment is incongruous; and its denial 
        of appellants' motion for relief (from judgment) under Rule 
        60(b) is in plain error, in light of the undisputed assertion 
        that they were given no prior notice of the settlement. 
        [Emphasis Supplied].

        See Oglala Sioux Tribe and Rosebud Sioux Tribe v. United 
        States, 862 F.2d 275 (Fed. Cir. 1988).

    We can never accept the award for Docket 74-A under these 
circumstances, for to do so would be tantamount to closing our eyes and 
affirming these two acts of fraud perpetuated upon our Tribe by the 
Federal Government. And I don't see how we can quantify our water 
rights to the Missouri River without reaching an agreement with 
Congress to resolve our Docket 74-A land claim.
    Docket 74-B was a claim for the Black Hills Claim. The ICC awarded 
$17.1 million, plus $85 million in simple interest, for the 7.3 million 
acres of Black Hills lands that was confiscated by the United States in 
the Act of February 28, 1877 (19 Stat. 254).
    On appeal, the Court of Claims dismissed the ICC award on the basis 
that it had already ruled on the Black Hills Claim in a 1942 case. The 
Teton Sioux Tribes (except for the Oglala Sioux Tribe) and other 1868 
Treaty signatory tribes got Congress to pass a new Court of Claims 
special jurisdictional act in 1978 that allowed for de novo 
consideration of the claim. The claim was refiled under the Act as 
Docket 148-78, and the Court of Claims which affirmed the ICC award in 
1979 based on the record made in the ICC.
    The Supreme Court affirmed the ICC award on June 30, 1980 on the 
basis that the confiscation of the Black Hills violated the Just 
Compensation Clause of the U.S. Constitution.
    However, the Oglala Sioux Tribe did not renew its contract with its 
claims attorney Arthur Lazarus, Jr. when it expired by its own terms in 
1975. It also never authorized its former claims attorney to refile the 
claim under the 1978 act and did not regard itself as a party to the 
1979 Court of Claims decision and the U.S. Supreme Court decision. It 
therefore filed a quiet title and trespass damages action in U.S. 
District Court for the District of South Dakota in 1980, after the 
Supreme Court made its ruling.
    The U.S. Court of Appeals for the Eighth Circuit, however, ruled 
that the tribe could not sue in the Article III courts of the United 
States because the Indian Claims Commission, which could only award 
money damages for the tribe's treaty lands, was the tribe's exclusive 
remedy and that the tribe was a party to the 1980 Supreme Court case.
    Docket 74-B, like Docket 74-A, needs to be settled in a fair and 
honorable manner by negotiation and the implementation of any 
negotiated settlement through Congressional legislation
The 1944 Flood Control Act
    The U.S. Army Corps of Engineers was placed in charge of 
constructing six dams on the main stem of the Missouri River under the 
Missouri River Pick-Sloan Program that was authorized by the 1944 Flood 
Control Act (58 Stat. 887). The Corps acquired approximately two 
million acres for the dams, and areas flooded by the lakes created by 
the dams. Three lakes, Lake Oahe, Lake Sharpe, Lake Francis Case are 
located within our treaty territory.
    It is common knowledge that a substantial amount of land taken by 
the Federal Government for the main stem dams was located on Indian 
reservations that bordered the Missouri River.
    The Oglala Sioux Tribe was impacted by the 1944 Flood Control Act 
because it has unextinguished rights to the river bed of the Missouri 
River, and to treaty lands located in its 1851 and 1868 Treaty areas, 
as well as the aboriginal title lands located east of the Missouri 
River that were taken by the Government for the main stem dams and 
reservoirs under the Missouri River Pick-Sloan Program. It also has 
cultural resources along the Missouri River that were impacted by the 
Act. The Corps never acquired the Oglala Sioux Tribe's interests in 
these properties when it attempted to extinguish Indian title for the 
dams and reservoirs.
The White River and Cheyenne River Pick-Sloan Projects
    The Flood Control Act authorized two dams on the Pine Ridge 
Reservation at Slim Buttes and Rockyford for irrigation, recreation and 
flood control. The projects were never constructed, however. This 
failure has resulted in the Tribe not being able to develop its 
irrigation potential that would have created economic opportunities for 
the tribe and its members.
The Oglala Sioux Rural Water Supply System
    The western portion of the Pine Ridge Reservation in White Clay 
District (now Oglala District) was suffering from lack of good potable 
water in the 1980s. The Tribe took the initiative to join the West 
River and Lyman Jones rural water projects in developing and getting 
Congress to pass the Mni Wiconi Act (P.L. 100-516) in 1988. The Act 
authorized the construction of a Core pipeline and related facilities 
from the Missouri River at Ft. Pierre to the Pine Ridge Indian 
Reservation, as well as a reservation delivery system. The Core 
pipeline is 95 percent completed and the reservation delivery system is 
40 percent completed. The core pipeline and reservation delivery system 
is held in trust by the United States for the Oglala Sioux Tribe.
    There are now three inter-connecters to the OSRWSS, the West River/
Lyman Jones Rural Water System, the Lower Brule Rural Water System, and 
the Rosebud Rural Water System.
    This OSRWSS is a good project that allows the Tribe to reap some of 
the benefits that it has been denied over the years from its lands 
along the Missouri River, and from the Missouri River itself. It also 
allows us to improve the health and general welfare of our tribal 
members and plan for future water shortages that may be caused by 
global warming.
    We want to thank Congress for the annual appropriations that has 
allowed the OSRWSS and other systems to be constructed, and we look 
forward to the day when the Mni Wiconi Project is completed.
Missouri River Land Transfer Issues Under WRDA
    The Oglala Sioux Tribe presently has a civil action pending in the 
United States District Court for the District of Columbia challenging 
the transfer of title to Corps' lands and recreational areas along the 
Missouri River to the State of South Dakota under Title VI of the Water 
Resources Development Act of 1999, as amended by Title VI of the Water 
Resources Development Act of 2000. See Oglala Sioux Tribe v. U.S. Army 
Corps of Engineers, et al. (Case No.1:01CV02679 (GK)). This case is a 
reservation boundary dispute that seeks to uphold the 1868 Treaty and 
protect historic properties and cultural resources on the lands and 
recreational areas.
There is a Need for Comprehensive Reform of the Pick-Sloan Program
    Comprehensive reform is needed to ensure that the Indian Tribes 
share more equitably in the water supply and hydropower benefits of the 
Pick-Sloan program. Reforms should address at least four areas. First, 
the water management by the Corps of Engineers on the Missouri River 
main stem, and the Bureau of Reclamation on the tributaries to the 
Missouri, must be revised to ensure adequate water supplies for the 
Tribes. Second, reforms should include the authorization to use 
hydropower revenue generated by the Pick-Sloan program, to fund 
development projects on Indian Reservations in the Missouri River 
basin. Third, Congress should address the claims of individual Indian 
Tribes that are directly impacted by a dam project under the Pick-Sloan 
program. Fourth, the historic preservation laws need to be strengthened 
to ensure that cultural resources along the Missouri River are 
protected from erosion and destruction.
1. The Water Management by the Corps of Engineers and Bureau of 
        Reclamation Must be Revised
    The Corps of Engineers operates the dams on the Missouri River 
pursuant to the Missouri River Master Water Control Manual. The Master 
Manual, as revised by the Corps of Engineers in 2004, provides for 
steady seasonal flows from Gavins Point Dam for downstream navigation. 
Daily releases are significant, with 35,000 cfs designated as full 
navigation service for an eight month navigation season. In addition, 
the Corps of Engineers designates water releases for the spring rise 
for habitat restoration, and for hydropower generation, at the various 
times of the year.
    In its Missouri River operations, the Corps of Engineers gives no 
consideration to Tribal water supply needs. This is the case even 
though the Oglala Sioux Tribes operates the water treatment and intake 
facilities on the Missouri River for the Mni Wiconi Project, which 
serves the West River Lyman Jones Water District, Lower Brule Sioux, 
Rosebud Sioux and Oglala Sioux Tribes. The Indian Reservations along 
the Missouri River, such as the Standing Rock Sioux and Cheyenne River 
Sioux Tribes, have suffered diminished drinking water supplies. The 
reservoir levels in the upper Missouri basin diminished substantially, 
as a result of the continuing navigation flows, during the current 
period of severe drought.
    The Corps of Engineers violates our Treaties and our rights under 
the Winters Doctrine, by managing water flows in a manner that causes 
diminished water supplies in the upper Missouri River basin. The water 
releases for downstream navigation and habitat restoration directly 
impact the water supplies that are needed by the Oglala Sioux and our 
fellow Indian Tribes on the upper Missouri River.
    Yet the Corps of Engineers manages the Missouri River water flows 
in a manner that allocates water flows for non-Indian uses in the lower 
Missouri River. The Master Manual must be revised, to decrease 
navigation flows and stabilize water supplies on the upper Missouri 
River, to fulfill the rights of the Tribes.
    The water supplies and rights of our Tribe should not be 
jeopardized by the regional disputes between the upper and lower 
Missouri basin. The Congress should take action requiring the Corps to 
maintain stable reservoir levels on the upper Missouri River, for 
Tribal consumptive and instream water needs.
    The Bureau of Reclamation operates the tributary dams for 
irrigation and recreation. One such project, the USBR Angostura Unit, 
impounds water flows of the Cheyenne River immediately upstream from 
the Pine Ridge Reservation. The USBR completely blocks off Cheyenne 
River water flows, in order to provide water service of 48,000 acre-
feet per year for irrigation of 12,218 acres at the Angostura 
Irrigation District.
    The Bureau of Reclamation released the Final Environmental Impact 
Statement, Angostura Unit, Contract Negotiation and Water Management, 
in August, 2002. Reclamation confirmed the incidence of fish with 
lesions and problems with water quality and riparian vegetation on the 
Pine Ridge Reservation, downstream from Angostura.
    The water management by the Bureau of Reclamation of the Cheyenne 
River at Angostura provides for the diversion of waters subject to the 
water claims of the Oglala Sioux Tribe for the Angostura Irrigation 
District. Water flows have diminished and the environment on the Pine 
Ridge Reservation has been degraded as a direct result of the USBR 
water management.
    As is described below, Representative Herseth-Sandlin has 
introduced H.R. 883, to establish a trust fund for the Oglala Sioux 
Tribe and restores certain water flows in Cheyenne River. This 
legislation addresses the problems caused by water management by the 
Bureau of Reclamation on the Cheyenne River.
2. The Congress Should Authorize the Use of Pick-Sloan Hydropower 
        Revenues for Development Projects on Indian Lands
    The comprehensive reform of the Pick-Sloan program should include 
the authorization for the use of hydropower generated by the Pick-Sloan 
program, to fund development projects on Indian Reservations in the 
Missouri River basin. Hydroelectric revenues of the Western Area Power 
Administration are collected for debt service of the multi-purpose 
functions of the Pick-Sloan program. The re-designation of these funds 
for Tribal development projects would constitute a cost effective 
manner of addressing the historic inequities of the Pick-Sloan program.
    The waters of the Missouri River produce a hydroelectricity system 
estimated by the Corps of Engineers as contributing approximately $800 
million to the national economy each year. The economy on the Pine 
Ridge and other Indian reservations in the upper Missouri River Basin 
remain generally impoverished, however.
    The population of the Pine Ridge Reservation is approximately 
47,000, making the Oglala Sioux one of the largest Tribes in the United 
States. (Bureau of Indian Affairs, Indian Labor Force Report, 2003). 
The 2003 unemployment rate was estimated by the Bureau of Indian 
Affairs at 87 percent. Id. The 2000 Census indicates that per capita 
income in Shannon County, the Reservation's largest county, was $6,286. 
This compares with the per capita income nationwide of $21,587. Median 
household income on the Reservation in 2001 was $20,916, less than one-
half the national average of $41,994.
    The revenue produced by the sale of the hydroelectricity in the 
Pick-Sloan program should be authorized for the use by the Tribes of 
development on our Reservations. This will address the historical 
inequities of in the allocation of the costs and benefits of the Pick-
Sloan program, and address the far-reaching infrastructure and economic 
development needs of the Indian Tribes in the upper Missouri River 
3. There Must Be Redress for Indian Tribes Under Pick-Sloan
    Throughout the upper Missouri River basin, individual components of 
the Pick-Sloan program have adversely affected the lands, waters and 
economic resources of Indian Tribes. Many Tribes retain claims that 
have not been addressed, for the taking of land, relocation of 
communities, destruction of infrastructure, diminished water supplies, 
and degraded environment, from the construction and on-going operation 
of the Pick-Sloan program.
    For example, the Oglala Sioux Tribe has suffered from diminished 
water flows, riparian vegetation, wildlife and degraded water quality, 
due to the impoundment of water and irrigation at the USBR Angostura 
Unit. The Bureau of Reclamation impounds 133,000 acre-feet of water at 
Angostura Reservoir, completely disrupting natural water flows in the 
Cheyenne River on the Pine Ridge Reservation.
    The harm suffered by the Tribe is documented in the Final 
Environmental Impact Statement, Angostura Unit, Contract Negotiation 
and Water Management. Accordingly, Rep. Herseth-Sandlin has introduced 
H.R. 883. This legislation establishes a trust fund for the Oglala 
Sioux Tribe in the amount of $90.5 million, and restores water flows in 
Cheyenne River through efficiency improvements at the Angostura 
Irrigation District. It will provide resources for the Tribe to address 
the environmental impacts of the Angostura Unit, and for much needed 
economic development on the Pine ridge Reservation.
    This legislation is long overdue. The Congress should enact H.R. 
883, and should address the claims of all Tribes which suffered adverse 
impacts from the Pick-Sloan program.
4. Enhanced Protection for Cultural Resources is Needed
    No agency of the Federal Government has destroyed more cultural 
resources or desecrated more Native American human remains than the 
Army Corps of Engineers, in its Missouri River operations. Yet in its 
operations of the Missouri River dams, the Corps of Engineers has 
failed to implement a mitigation or other compliance plan as required 
under the National Historic Preservation Act. (16 U.S.C. Sec. 470a et 
    The National Historic Preservation Act requires the Corps of 
Engineers to evaluate the impact of its ``undertakings'' on historic 
properties along the Missouri River. (NHPA Sec. 106, 16 U.S.C. 
Sec. 470f). The federal courts have determined that wave action caused 
by water releases at the Missouri River dams are ``undertakings'' 
requiring compliance with the NHPA. (Yankton Sioux Tribe v. Army Corps 
of Engineers, 83 F. Supp. 2d 1047 (D.S.D. 2000)).
    A Corps of Engineers Programmatic Agreement with the Advisory 
Council on Historic Preservation, outlining the agreed-upon procedures 
for compliance with section 106 of the NHPA, when wave action of the 
Missouri River impacts cultural sites at the water's edge. However, on 
July 17, 2000, the Advisory Council terminated the agreement, informing 
the Corps:

        The Omaha District's handling of this matter evidences a 
        serious lack of understanding of Federal historic preservation 
        laws and regulations, a lack of commitment to fulfill historic 
        preservation legal responsibilities, and an unwillingness to 
        seek and consider the views and recommendations of State 
        officials, tribal governments, and the Council . . ..

        The PA was intended to allow the Corps greater flexibility in 
        how it met its obligations under Section 106 while fostering 
        better long-term planning for and stewardship of historic 
        properties . . . (T)he Omaha District has disregarded 
        commitments it made in the PA and the resulting (negative) 
        consequences it has had for irreplaceable resources under its 
        care. The Council is forced to conclude that the Corps is 
        unable, or unwilling to carry out the terms of the PA.

        (Letter of Carolyn Buford Slater, Chairperson, Advisory Council 
        on Historic Preservation, to Secretary of the Army, dated July 
        17, 2000).

    The Corps of Engineers has failed in its responsibility of 
stewardship for sacred Native American cultural resources along the 
Missouri River. The Corps disregarded its commitments under the 
Programmatic Agreement, which was consequently terminated by the 
Advisory Council. The Missouri River Master Manual contains no 
provisions for the protection of the identified cultural sites in the 
future, or mitigation of damage that is caused by wave action.
    Native American human remains are entitled to special protection 
under the Native American Graves Protection and Repatriation Act. 
(NAGPRA) (25 U.S.C. Sec. 3001 et seq.). Yet the Corps has completely 
disregarded its obligation to avoid disturbance of existing grave 
sites, and to properly repatriate human remains upon inadvertent 
unearthings due to wave action of the Missouri River.
    These legal requirements are extremely important to our Tribe. 
Under NAGPRA, Indian Tribes enjoy presumptive rights of ownership and 
repatriation of human remains and cultural objects that are unearthed 
within its aboriginal territory, as adjudicated by the Indian Claims 
Commission. (25 U.S.C. Sec. 3002). As stated above, the Oglala Sioux 
Tribe retains treaty and aboriginal claims throughout an extensive 
area, including the bed of the Missouri River and the lands adjacent to 
the Missouri. Consequently, our Tribe enjoys rights of ownership and 
repatriation under NAGPRA on lands along the Missouri River.
    The wave action caused by COE water releases for hydropower 
generation and downstream navigation causes erosion, as well as the 
destruction of cultural resources of Lakota and Arikira origin along 
the Missouri River. This violates the NHPA and NAGPRA. Yet the Corps of 
Engineers continues these actions, and is now finalizing long-term 
plans which fail to address them.
    The failure of the Corps of Engineers to comply with the National 
Historic Preservation Act and Native American Graves Protection and 
Repatriation Act directly and adversely impacts cultural resources and 
human remains of Lakota origin along the Missouri River. The current 
Programmatic Agreement of the Corps of Engineers provides no plan to 
put an end to this destruction caused by wave action from COE water 
releases for navigation.
    In conclusion, no quantification of water rights should occur until 
all tribal land claims are resolved. Moreover, the Congress should 
develop and enact comprehensive reform of the Pick-Sloan program. The 
stabilization of reservoir levels and enhanced protection of historic 
properties must be an important part of the reforms. The need to 
respect the rights of the Oglala Sioux and other Indian Tribes is 
intensified by the climate change we are experiencing, which further 
stresses the water resources of the Missouri River basin.
    This hearing is thus very timely. I look forward to working with 
the Committee on Indian Affairs to develop comprehensive reform of the 
Missouri River Pick-Sloan program, to respect and implement the Treaty 
rights of the Oglala Sioux Tribe.

    The Chairman. Mr. Chairman, thank you very much. We 
appreciate your being here. You have presented to this 
Committee previously, and we appreciate your advice.
    Let me call on the Vice Chair, Senator Murkowski.
    Senator Murkowski. Mr. Chairman, I don't have any questions 
this morning, but I do want to thank all those that have 
traveled from your communities to represent your constituents 
to testify before this Committee on an issue that is clearly of 
great import to you all.
    Again, I thank you.
    The Chairman. Thank you very much.
    Because I was detained, I had to leave briefly, I will ask 
the others to ask questions, and I will ask questions at the 
end. I do want to just say this, however, before calling next 
on Senator Johnson. The issue of compensation is one that we 
need to study with respect to the entire Pick-Sloan plan and 
the reservations that were injured as a result. I have gathered 
together the information about compensation. We have had 
several different areas of compensation, some in 1947, some in 
1958, some in 1962, some in 1992, using different approaches.
    The fact is, I called this hearing because we continually 
hear tribes ask questions about why they have not been 
adequately compensated. They want to present information to 
point out the difficulties they now face and the lack of 
compensation. I would prefer that we address this not in five 
different areas, but that we address this with respect to the 
Pick-Sloan plan and all of those who have been disadvantaged. 
Let us evaluate the compensation up and down the river on that 
plan in a way that makes sense to all of us.
    So that is why we held the hearing of this type, because we 
can't ignore this, nor should we give priority depending on who 
has the loudest voice and says, I demand these issues be 
    All of you have described conditions that really demand the 
issues be addressed. Ron His Horse Is Thunder, the Chairman of 
the Standing Rock Sioux Tribe, in his testimony describes 
something that many of us have seen down there: water 
conditions, the inadequate water supply, inadequate device in 
that reservoir in the river, and what is now I guess, a stream, 
that provides water for the tribe. This is a tribe that has 
experienced having no water for a lengthy period of time, 
running out of water, and having no water come out of that 
    So we understand that water is necessary for a decent life 
and we understand what it means in Standing Rock to lose your 
access to potable water. It is devastating. So there are a lot 
of issues that all of you face, and I appreciate your 
    I will ask questions at the end, but let me call on my 
colleagues as a matter of courtesy.
    Senator Johnson?
    Senator Johnson. Mr. Jandreau, how many times has this 
reform legislation passed the Committee?
    Mr. Jandreau. Our particular bill passed the Committee 
three times and went to the Floor of the Senate, but it has 
never become law.
    Senator Johnson. Are you ready and willing to proceed with 
this legislation at this time?
    Mr. Jandreau. Yes.
    Senator Johnson. Are you reluctant to have compensation 
held up at this time?
    Mr. Jandreau. Yes, I am.
    Senator Johnson. Mr. Chairman, the Crow Creek and Lower 
Brule Tribe are ready and willing to go. They have proceeded to 
present legislation at this time and it is unfair to hold them 
up having been passed out of the Committee three times.
    Mr. His Horse is Thunder, what would you do if you were to 
have the range of compensation? How would it be prioritized?
    Mr. His Horse Is Thunder. Thank you, Senator, for the 
question. I have been asked by a lot of the elders who--let me 
put it this way. Standing Rock has received one compensation 
package for $90.6 million. It was for the tribe's economic loss 
and the money is to be spent for development of the economy on 
the reservation.
    The element that is missing that I am asked by my 
relatives, my elders to bring today is this. It is that some of 
the compensation be used to make whole those people who 
originally lost land. Over half the land that was taken on our 
reservation was lost by individuals themselves.
    Senator Johnson. Are there diminishing numbers of those 
    Mr. His Horse Is Thunder. Absolutely, Senator. Today, I 
know of 18 who are currently alive. This past year, we lost 
three of the people who were original landowners at the time of 
the taking. So the numbers are very much diminishing.
    Senator Johnson. Mr. Wells, how would you use the money?
    Mr. Wells. Senator, what we have been doing, what we have 
done so far as been to use the interest, which is approximately 
$6 million a year. It has been directed toward Federal 
programs, contracts and grants as shortfalls as the contracts 
go from Bureau of Indian Affairs, Indian Health Service, BOR.
    The next priority would be projects, infrastructure, water, 
sewer, building--anything that needed to be upgraded from the 
time of the flood. And then what is remaining is just enough to 
help the elders organization, the Boys and Girls Club.
    So out of the $6 million, it comes back down to basically 
just meeting the Federal shortfalls for projects and programs 
and contracts and infrastructure.
    Senator Johnson. Mixed up with the money that the tribes 
are owed originally.
    Mr. Wells. Well, $350 million would have been probably the 
better number to get us whole. But what happened is it just 
basically made up the shortfall of the Federal trust 
responsibility, Senator.
    Senator Johnson. Mr. Trudell, how would you use the money?
    Mr. Trudell. Senator Johnson, thank you for the question. 
We would probably, you know, because we receive no income off 
the income that goes into the river from waterfowl sales or 
hunting licenses to the States, and there is no development. On 
our front, the development is all east of us.
    So we would probably look at, although we have to stand the 
repairs of all these things that take place, we would probably 
have to use additional income to repair our main thoroughfare 
through the community where the heavy traffic is, and then we 
would have to probably look at replacing individual wells which 
run anywhere from $5,000 to $8,000 because of the sedimentation 
problem that is creating a rising water table on our other 
    Most of the wells are shallow wells at the present time, 
and so we will have to go to a much deeper well to get to pure 
water, non-tainted water. So those average anywhere from over 
$5,000 to $10,000, I think they told me the other day, but 
probably on the average about $8,000 a well.
    We are in the process of trying to develop a reservation-
wide water system which was partially funded by Congress, but 
underfunded, so that study hasn't been completed yet. That is 
in the hands of the Bureau of Reclamation. So water development 
is going to be one of our primary. And then I don't know how we 
would ever look at compensation for lands that are currently 
being lost because of the sedimentation problem.
    Thank you.
    Senator Johnson. Mr. Cournoyer, how would you use the 
    Mr. Cournoyer. I think our plan is like some of the other 
Chairmen stated, and Presidents, is that we would upgrade our 
infrastructure, our community water systems, roads, because we 
all know that the Federal Government that whatever they don't 
fulfill, we have to try to put whatever resources we have 
towards assisting Federal programs.
    And not only that, too, what I would look at and strongly 
recommend is that we put some of that money towards education, 
finishing, completing our school, but not only that, enhance 
our community college and look at providing a little money for 
scholarships so that people can go to school and get that 
education, because once you get an education, you get that 
degree, you are creating economic self-sufficiency, or you are 
sustaining something that they can do all kinds of things to 
you, once you get that degree, they can't take that away from 
you. So you are creating your own economic stability.
    But not only that, too, looking at industry, bringing jobs 
into the reservation because nobody is knocking at most of our 
reservation doors and saying, I have X amount of jobs, so I 
think we have to create economic development for ourselves, and 
if we can do that, I think that we can go out and do anything.
    Senator Johnson. President Steele, welcome to the 
Committee. You had the unique position, and recognized that you 
have the Angostura Project, which is a Pick-Sloan project. 
Apart from that, you have a legitimate claim to being a river 
tribe. How would you use the money as compensation for the 
project? How would use the money?
    Mr. Steele. Like the other tribal Presidents, Senator, I 
would have to address the basic infrastructure that the Federal 
Government--I call it inherent Federal neglect, whereby every 
Federal department had nothing to do with this very large land 
base in the middle of the United States. They said that was 
Bureau of Indian Affairs and Indian Health Service 
responsibility through most of the 1900s.
    They stuck monies in technical assistance into the 
surrounding municipalities and counties and built their 
infrastructure. Well-intended Bureau of Indian Affairs people 
patterned the roads on a very large land base, Pine Ridge, 
directing that dollar directly off-reservation as soon as it 
hits it.
    I need to re-pattern and rebuild those roads. He told me, 
your people need to go shop. You need north-south roads, very 
well intended. But I can't turn that God darn dollar over even 
once because of the very patterning of the roads, basic 
economics 101. How is development to happen on Pine Ridge?
    I, like the rest of these Chairmen, have to address the 
basic infrastructure, the tangible and the intangible. We just 
adopted the Uniform Commercial Code and set up the filing 
system with the State of South Dakota.
    But I have unfunded mandates by the Federal Government on 
solid waste. With a large land base, the disposal according to 
EPA standards, the operational costs are outstanding, Senator. 
It is difficult.
    Thank you.
    The Chairman. Thank you very much.
    Senator Thune?
    Senator Thune. Thank you, Mr. Chairman.
    I do appreciate the testimony. I know it was a very 
insightful hearing from each of our tribal leaders about the 
challenges that they face day to day, providing a better life 
for the people that they serve there, and what some of these 
past projects and Federal actions have done to impair their 
ability to do that. So I appreciate very much all of you being 
here today and sharing your testimony.
    I would echo what my colleague from South Dakota, Senator 
Johnson, said, Mr. Chairman, in that I share your view that 
there is value in seeing these things in a context that allows 
for a comprehensive type approach to it. But absent that 
happening, we do have Senate bill 160, which has cleared this 
Committee and the Senate previously. There were issues that 
were raised at the hearing we had in the last session on this 
that have been tightened up in the legislation, and it is 
queued up and ready to go. So I hope we can figure out a way in 
the context of a broader bill, or if not, some way to bust that 
legislation loose.
    I would like to ask a question of Chairman Jandreau with 
regard to that. There have been some comments and concerns, as 
I said previously, in the past at a hearing we had on this 
about there being no end in sight for Pick-Sloan Project 
compensation. In this particular bill, the Lower Brule and Crow 
Creek Tribe Compensation Act, if it was passed, the bill makes 
clear now that these payments would be treated as full and 
final compensation.
    I guess I would like to get your reaction and thoughts 
about the tribe's view of the finality of this particular bill.
    Mr. Jandreau. That is a very correct statement, Senator. 
After the last hearing and the reaction of some of the 
Senators' concerns, we went home and we did talk to our 
respective tribal councils. We did receive from them the 
authority to state that this would be final compensation on the 
Missouri River claim.
    We were also asked how this would affect pay-go. You know, 
currently our land and our water rights still continue to 
provide $1.2 billion a year to the Federal Government. While it 
probably cannot be looked at exactly as a place to extract pay-
go, we feel that in our unique circumstance that it is the 
appropriate place to extract that.
    So we have agreed to, regardless of whether the settlement 
for the other tribes is higher or not, that we have agreed that 
what we have asked for in S. 160 will be our final request for 
Crow Creek and Lower Brule.
    Thank you.
    Senator Thune. Thank you.
    All of the compensation plans that are currently being 
considered involve the creation of or the payment to a trust 
fund. I guess I would just open this to whoever would like to 
comment on it. It kind of ties back to the question that 
Senator Johnson asked earlier, but could you sort of explain to 
the Committee what sort of projects and economic development 
the tribes might use these trust funds that would be created 
    Mr. Trudell?
    Mr. Trudell. Yes, sir.
    Thank you, Senator.
    I call it money that is not money, because it is just a 
pencil entry and interest, and it is not available to us until 
I think 2013, so we can't do anything with it right now. That 
is one of the primary problems is we have ongoing damage taking 
place all the time with no way to repair that damage. Without 
earlier access to those funds, then our streets and stuff and 
other things are continue to deteriorate.
    We have to take a plan before the people. We had to have 
hearings before our tribal membership on the development of a 
plan, and we did that. We submitted that plan for approval by 
the Department of Interior. The Bureau of Indian Affairs had to 
approve that plan, which I don't understand. And then at a 
later point, we decided to leave our money that is not money 
with the Treasury because they are probably going to be around 
longer than the Bureau of Indian Affairs, but we still need to 
have access to that interest at an earlier date to take care of 
some of the needs that we currently have.
    Thank you.
    Mr. His Horse Is Thunder. Mr. Senator, could I respond to 
that just real briefly?
    The Standing Rock Sioux Tribe and its $90.6 million 
receives about $4 million a year of thereabouts, depending on 
how the interest rate fluctuates, but of the $4 million a year 
that we currently receive, we provide about $500,000 a year in 
scholarships for our students to go on to college.
    We also use at least a good chunk of that $500,000 or 
thereabouts per year to purchase land that either tribal 
members or non-Indians within our reservation boundaries have 
for sale. As we know, the fractionalization of tribal lands is 
a huge problem. We have set money aside to buy land back from 
either tribal members, again, or non-Indians, trying to do away 
with checkerboarding on the reservation.
    We have also put a huge chunk of change into road 
development. We have taken actually a loan out by a bank and 
used our JTAC money as collateral and pay back through JTAC for 
about $28 million to develop our roads on the reservation. We 
probably have now some of the better roads of most of the 
reservations in North and South Dakota because we have done 
    We have set money aside for entrepreneurs. I think we put 
$600,000 in there just this year alone so that for equity 
investment, we call it. They can get 15 percent of a business 
package paid for by the tribe. They would have to go get the 
rest of the money from a bank that would ensure that they had a 
good business proposal developed, otherwise the bank is not 
going to give them the remaining 85 percent of the dollars that 
they need to start businesses. So we put money into 
entrepreneurial development.
    We put money into home ownership that we will pay up to 25 
percent of the costs, up to $100,000, for a house for our 
tribal members who can't. Housing is at a premium, and they 
can't normally go get a bank loan for a house, usually you want 
20 percent down. So we will pay that 20 percent down for the 
tribal member, provided that they live in that house for at 
least a minimum of 10 years.
    So we are putting it into economic development and home 
ownership, land purchase, scholarships, et cetera.
    Mr. Wells. Senator, as I alluded earlier, I am Marcus 
Wells, Jr., Chairman, Three Affiliated Tribes of Mandan, 
Hidatsa and Arikara, but I alluded earlier to the $149.2 
million that is in the principal amount. Basically, we have 
done step one which is to take care of the Federal shortfalls, 
trust responsibilities, and infrastructure, but we have a lot 
more infrastructure to take care of, and no doubt are basically 
our priorities.
    Our priorities would be the water, health care, homes, just 
social impacts that we have had to endure. Employment I think 
is probably--economic development, and somewhere down the line, 
we feel after we get the infrastructure needs taken care of, 
then we can progress further, and that is the approach that we 
have taken. Just get us the basics--water, homes, and the 
health care--and then we will work on economic development as a 
spinoff of that. But right now, those are our priorities, to 
know that elders and our young couples who are having newborns 
are being inundated by health care bills that are not being 
paid for by the Federal Government. As long as the trust and 
treaty responsibilities are there, our elders are the ones. A 
former Chairman of our tribe, Arby Little Soldier, is still 
getting inundated by legal bills, and he is here with me in 
prayer to make sure that I continue that voice forward to 
Senator Conrad and Senator Dorgan and yourself, Senator Thune.
    Thank you.
    Senator Thune. Mr. Chairman, I appreciate again your 
indulgence in allowing me to join the panel today. I was a 
cosponsor of your amendment last week on the Floor to add more 
law enforcement personnel on our reservations. That is an 
issue, in discussing with the leaders of our tribes in South 
Dakota, talking in Standing Rock, 2.2 million acres and seven 
full-time law enforcement personnel, and a lot of times long 
distances to get to a situation. This creates all kinds of 
problems, and security is a big issue as well. So I appreciate 
your efforts on that, and I am glad to join in that.
    But as all of us are aware, because we have traveled out 
there, we have some very serious needs in our communities on 
the reservations. The various legislative solutions that have 
been proposed, and some of which are in the works right now, I 
think would do a lot to help these leaders address those needs.
    So I appreciate again the chance to join the panel today 
and I thank our leaders for their testimony and look forward to 
working with them.
    Thank you, Mr. Chairman.
    The Chairman. Senator Thune, thank you very much.
    In response to your comment and the comment by Senator 
Johnson, this hearing is not called for the purpose of delaying 
anything, but to the extent that we move forward on these 
issues. I would hope that we would have some finality, number 
one, and number two, that we have a methodology that is fair, 
acceptable and one that is explainable. We have different 
interests up and down the river. It is long past the time this 
Federal Government made things right. The question is how do we 
do that. I would hope that we will have some methodology and 
some finality that all of us can feel is the right approach. 
So, that is the purpose of the hearing.
    Senator Conrad?
    Senator Conrad. Thank you, Mr. Chairman.
    As the principal sponsor of the original JTAC legislation 
that led to a settlement of $90.6 million for Standing Rock and 
$140.2 million for Three Affiliated Tribes, I perhaps have a 
special perspective on this because it took me years to get the 
legislation passed. It was the first bill that passed. It 
became the model for all of the other compensation bills that 
passed later.
    I think there is one fact that I really want to draw to the 
attention of my colleagues and to the record. There was a very 
significant difference between the GAO estimates and the 
estimates of the original JTAC Committee on what would 
represent just compensation. Let me just give you on the upper 
end of the ranges the difference.
    On the upper end for Standing Rock, the GAO said equitable 
compensation would be $170 million. The JTAC report prepared by 
former Secretary Hodel in the Reagan Administration said for 
Standing Rock, the top end of the range should be $349 million, 
twice as much as the GAO report. So the range of the two 
reports for Standing Rock was $170 million to $349 million. 
They received $90.6 million. Okay?
    On Three Affiliated Tribes, the GAO said top end of the 
range, $149.2 million. The JTAC Commission under Secretary 
Hodel in the Reagan Administration estimated $411.8 million. 
They received $149.2 million.
    I make this point because I think it is critically 
important to understand there was a dramatic difference between 
the estimates of the General Accounting Office that used one 
methodology, and the JTAC Commission under Secretary Hodel that 
used a different methodology.
    I personally always believed that the more appropriate 
methodology was that done by Secretary Hodel. Why do I believe 
that? Because the GAO approach, which is certainly a defensible 
approach, but I think misses the point. They looked at land 
values, what land was worth at the time. They increased that 
with an inflationary index, and then said this would be a 
buyout amount on the open market. What is wrong with that 
approach? It completely misses, to me, the point that a way of 
life was done enormous damage. This wasn't just a matter of the 
value of land. This was not only the value of land, it was also 
the value of infrastructure, in the case of Three Affiliated 
Tribes, a hospital, bridge, school. They have never been 
compensated for. We did get the bridge. In fairness, we have to 
say we got the bridge. But we have not gotten a hospital. The 
school has never been compensated for.
    In the case of Standing Rock, the $90.6 million, all of 
these were a matter of negotiation. Let's be frank. I was the 
negotiator so I know. I know how this worked. I never believed 
that those numbers were a fair resolution, but it was the first 
settlement legislation. It was something that had never been 
done before, and it was very, very hard to convince colleagues 
to do it. We had to adopt a very creative way to deal with the 
budget process. That is why the money is not available 
immediately. It is available outside the five year budget 
window because it was the only way we could get the legislation 
passed under the budget rules that pertained at the time.
    So Mr. Chairman, first of all, I salute you for having this 
hearing. You are doing exactly the right thing. There ought to 
be a consistency in approach for all of these settlements. It 
shouldn't be somebody comes later, therefore they get more. It 
should be based on a formula that everybody understands and is 
defensible both to taxpayers and to those who are receiving the 
funds in compensation for what was taken. And let there be no 
doubt, an enormous amount was taken.
    In the case of Three Affiliated Tribes, the vast majority 
of tribal members were forced to relocate, and they went from 
the rich bottomlands that supported a very rich way of life, 
and I don't mean rich just in material terms. I mean rich in 
every term.
    Standing Rock was similarly devastated. I mean, that is 
just the truth of the matter. And to just say, well, it is a 
calculation of how much the land was worth, no. That isn't the 
real calculation because what was devastated here was a way of 
life--and economic way of life, a series of social institutions 
that were done enormous damage. So I think any fair minded 
person would have to go back and say that the JTAC calculations 
come much closer to some kind of fair and equitable 
compensation than does the other calculations that were made by 
the General Accounting Office. I don't fault the General 
Accounting Office. They have a perfectly good rationale for the 
way they approached this. I just think it misses the larger 
    So with that, I would say to the witnesses, we thank you 
very much for being here. The issue of how the money would be 
used is going to be critically important. I have been down this 
road before. I know how this issue will arise with my 
colleagues. This has been very difficult with respect to the 
previous JTAC settlements. I think all of us know that.
    I think to the extent that you can say, as Ron you have 
said and Marcus you have said, that the money would be used for 
infrastructure and for education and for entrepreneurial 
development, and of course there are tremendous needs in health 
care, needs in housing. Those are all legitimate claims, making 
up for the shortfall in terms of what the Federal Government 
    I will end there because I have taken more of the 
Committee's time than I should, and I apologize, Mr. Chairman, 
for that, but I did want to just lay out these issues, having 
experienced this over many years, and having been deeply 
involved in the original negotiations. I never thought at the 
time, never believed in my heart, that these final numbers we 
were able to negotiate represented fair and equitable 
compensation. I believed it was the best we could get at the 
    The Chairman. Senator Conrad, thank you very much, and 
thank you for your leadership. In 1992, I was in the U.S. House 
and Senator Conrad invited the leadership here to get started 
and to finish the negotiations and move legislation. I was 
proud to advance that legislation, as well in the House. But 
without Senator Conrad's leadership, we would not have had the 
1992 settlements that existed. He has indicated, and I agree, 
that that was what was achievable at the time, but much has 
happened since then.
    I go back to the--I guess we don't have the photograph here 
of George Gillette--but the photograph of George Gillette at 
the signing, and he says, ``With a few scratches of the pen, we 
will sell the best part of our reservation. We will sell the 
best part of our reservation.''
    Well, the other point I would make is that when we have the 
chart up that shows the Missouri River basin, that is not the 
only issue here. That Missouri River basin had to bear the 
costs, but the benefits went way down to the rest of the 
Country. It went down to the Mississippi, all the way to the 
Gulf, and we had flood control. We had opportunities to store 
water so that when there was less water on the middle 
Mississippi for barging, that that water was available.
    So a lot of other folks got the benefits from this, and we 
bear the costs of a flood that comes and stays. To some it is a 
flood. To others it is a complete inundation of their homeland, 
of their town, of their hospital, of any range of things that 
represented a good life for them.
    So while this hearing and your testimony focuses on the 
Pick-Sloan plan, which essentially is going from Montana down 
to Gavins Point and the mainstem dams that were built, that 
project was not just about geography. The substantial benefits 
from that project flowed well beyond, down to the rest of the 
center part of this Country.
    Now, the question is, were the costs that were imposed on 
the Indian reservations properly compensated? The answer, quite 
clearly, is no. The more difficult question is how does one 
properly compensate? What is the methodology by which we begin 
to address this issue?
    As Senator Conrad has said, this is a circumstance where, 
and I believe Chairman Steele you indicated as well, we have 
people living in third world conditions. Chairman Wells, you 
talked about the number of people hauling water and the 
percentage of the people in your tribe that don't have running 
water. We have people that are horribly disadvantaged, living a 
lifestyle that is gripped with desperate poverty. Well, the 
fact is at least a portion of these people were affected by 
land that was taken and not properly compensated.
    Now, some of the things we have described exist on 
reservations in many parts of the Country, so this is not all 
attributable to this issue. But the proper compensation for 
land that was taken as a part of the Pick-Sloan plan would 
certainly begin to alleviate some of these issues.
    I make one final point. The people of my State and South 
Dakota and the other States on that map, and especially the 
tribes, did not get on a train or a car and come to Washington, 
D.C. to say, can you put together a water plan for us that will 
take our lands? Nobody went to Washington to beg for the Pick-
Sloan plan from our region of the Country because we were going 
to be net losers. And so they came to us. Washington came to 
the tribes and the States and said, here is what we would like 
to do. We understand there are some burdens for you as a result 
of it, and here is what we plan to do for you.
    Well, much of it has never occurred. While we have made 
some progress, I mentioned earlier the years 1947, 1958, 1962, 
1992, there have been various types of settlements with various 
tribes using different methods. But it has never been properly 
addressed, which is why I felt when we started talking about 
this, that we would call all of the affected parties in and 
talk through this to see if we can't reach some finality about 
what would be fair to tribal governments that have been cheated 
in a number of ways by the Federal Government over many, many 
years. I think that term cheated exists as well with respect to 
how they were compensated when they were seeing the taking of 
their lands for the Pick-Sloan plan.
    So many of you have traveled a long distance to come here 
today. You don't come because you like to travel, especially 
these days. Traveling is not easy, but you have provided a very 
compelling story to this Committee about life on your 
reservations, and the consequences of the taking of land.
    Let me ask a couple of questions before we have to 
conclude. All of you have water rights, or virtually all of you 
I believe have water rights from the Missouri River. I think 
nearly all of you have said those water rights have never been 
    Chairman His Horse Is Thunder would you talk about that for 
a moment? I believe all of you have said about the same thing, 
but why don't you proceed.
    Mr. His Horse Is Thunder. We haven't quantified our water 
rights in the past, Senator. We have not. We have a figure 
which we believe would be an adequate appropriation for our 
tribe. Today, we figure that at 1.5 million acre feet I believe 
is where we are at. That would allow us to, and we figured it 
out, to irrigate so many acres of land, as well as serve an 
additional population of 30,000 members for future growth and 
development, as well as our MR&I programs to pump water across 
the whole reservation.
    We figure it would be about 1.5 million acre feet. We have 
not thrown that figure out officially yet, but that is where we 
would look at if we were going to settle. In the past we and 
many others have truly been fearful of appropriations because w 
did not want to, if you will, limit the ability of future 
generations to a particular quantity of water should that water 
not be enough.
    And so we figure about 1.5 million would adequately take 
care of future generations.
    The Chairman. Mr. Chairman, I was on your reservation when 
you ran out of water--was it three years ago, now?
    Mr. His Horse Is Thunder. It would be four years ago this 
    The Chairman. Four years ago Thanksgiving, and you were out 
of water for how many days? Eight to ten days?
    Mr. His Horse Is Thunder. I believe we were out for five 
days, sir.
    The Chairman. Five days. I salute the employees of the 
Bureau of Reclamation working over Thanksgiving weekend, which, 
as you know, is very difficult conditions to try to get 
something done temporarily to get the water supply working 
again. But I recall the discussions we had about the cost of 
fixing it by getting an intake out there that would fix this 
permanently for you.
    The issue was that there is not enough money. It seems to 
me, to find out 40 or 50 years later that a Federal agency says 
it is too much money to have a permanent intake for you, we 
don't have the funds, is irrehensible.
    Somebody ought to have the funds to provide a solution to 
issues caused by this entire plan. I assume you would agree 
that you didn't run out of water before the Pick-Sloan plan, 
did you? I mean, you had access to the river at that point. I 
assume you find it frustrating and probably it makes you angry 
that you face these problems of the need for a permanent 
intake. But people say, there is no money. But they have a 
responsibility to give you permanency with respect to taking 
water out of that reservoir.
    Mr. His Horse Is Thunder. We do find it quite frustrating. 
The temporary solution that we incurred four years ago cost 
about $5 million, and that is just a temporary solution. Of 
that, I believe the tribe still hasn't been reimbursed for 
about $1.5 million of those dollars. So a permanent solution 
would definitely be something we think is just to us. But the 
temporary fix itself presents a whole bunch of problems besides 
the cost of $5 million, that right now, with the drought we are 
having, that we are with a temporary solution and taking a look 
at that water intake being inundated with silt as well.
    And then if we do get rain like we really want, and snow 
pack in the mountains next year and we get a lot of water, that 
if that the water rises above eight feet where it is right now, 
it will, believe it or not, actually blood that intake, and 
make it unworkable, and then we will be back to no water again.
    Right now, the reservoir is down about 28 feet, and so we 
all want it to go back up, but if it comes up just eight feet, 
we are back to no water again on our reservation.
    The Chairman. Well, I want to continue to work with you on 
that. It is another one of those effects of this set of issues 
that needs to be resolved.
    Chairman Wells, your reservation gave up the largest 
quantity of land. Is it 152,000 acres that were lost? What 
percent was that of your reservation?
    Mr. Wells. Of the one million acres, I imagine it would be 
15 percent.
    The Chairman. So it is 15 percent. At that point, it was 
one million acres total?
    Mr. Wells. Yes, sir.
    The Chairman. And you had a settlement in 1992, did you 
    Mr. Wells. The $149.2 million. We certainly appreciate all 
of the work that was done by Senator Conrad, Mr. Chairman, and 
yourself, and Congressman Pomeroy. We have used the money 
conservatively. We have used it for infrastructure. We have 
used it for supplementing the Federal shortfalls, as I said in 
my testimony. I don't think we have ever really got to do any 
services for the tribal programs. We have done the four areas--
economic development, social welfare, and education, and in 
others, but we have never been able to really open that up 
other than one year. I believe that was in fiscal year 1999 and 
2000, maybe two years. But then we found out that it just made 
the shortfall of the Federal trust responsibility.
    So of the $411 million that Senator Conrad spoke of 
earlier, I would certainly see us getting into the conditions 
that Chairman Jandreau just spoke of. I think we would be 
close, because of the housing and the water and health care 
issues. I just had a grandmother in the tribal office and she 
has three of her children living in her home, in a HUD home. 
They have children. And she looked up at that picture of former 
Chairman Gillette and she was explaining the history to her 
daughter. She said, ``And our Chairman now is going up to 
Washington, D.C. to see if he can get some more justification 
for us, to get you a house.'' And that is her very simple words 
to her daughter in front of me. I was smiling, and I said, 
``How did you know that?'' And she said, ``Well, they told me 
you were heading to D.C. That is why I had to come and get you 
before you left.''
    So those are real stories. It is every day, the roads. I 
had friends of my wife come up to her and say, can you talk to 
your husband and see if he can get some gravel on our roads, 
Alvina, the first lady, I guess you would call her. That is how 
I initiated a joint relationship for housing. We both went in 
and got a screener and a crusher and we are putting gravel on 
the roads, home roads and rural roads, because of the 
shortfalls of the BIA. They have no money for gravel.
    So those are the real things that we are doing, Mr. 
    The Chairman. Chairman Wells, thank you very much for 
    All of you have a common cause as Chairmen and leaders of 
your tribe. Let me just say, I appreciate your leadership. 
Leadership is about opportunity and responsibility: the 
opportunity to provide leadership, to move in the right 
direction, seek the right solutions. But obligation, I mean, 
leadership is not easy. Good leadership requires a lot of time, 
effort, energy, and controversy from time to time.
    So I want to thank you for your leadership. I have asked 
all of you to come in to give us a larger perspective of what 
has happened to the tribes with respect to the Pick-Sloan plan. 
I think you have done that today. To our neighbors in South 
Dakota, as I said, we have common purpose. It seems to me, 
tribal governments should take a look at what happened and what 
now, in the year 2007, and beyond should be done to make sure 
we have some final recompense that is fair to the first 
Americans, who were injured as a result of the taking of land, 
a substantial amount of lands in the 1940s.
    So I do have to close the hearing, but I want to thank all 
of you, all six of you, for traveling to Washington, D.C. at 
considerable time for you and providing this information. The 
Committee intends to work with you. You heard testimony. You 
heard commitment from my colleagues today. We intend to work 
with you to try to find ways to reach some solutions on these 
    Thank you very much for being here, and this hearing is 
    [Whereupon, at 11:38 a.m., the Committee was adjourned.]
                            A P P E N D I X

 Prepared Statement of Joseph Brings Plenty, Chairman, Cheyenne River 
                              Sioux Tribe
    I want to thank the Senate Committee on Indian Affairs and Chairman 
Dorgan for the opportunity to provide you with written testimony on the 
losses suffered by the Cheyenne River Sioux Tribe resulting from the 
construction of the Oahe Dam in 1954. My name is Joseph Brings Plenty 
and I am the Chairman of the Cheyenne River Sioux Tribe.
    The Cheyenne River Sioux Tribe has provided this Committee and the 
United States Congress with repeated testimony about the direct losses 
in land, infrastructure and improvements upon land as well as indirect 
damages in loss of timber, wildlife, wildlife products, and destruction 
of the agricultural economy with the loss of 104,420 acres of land 
within the Reservation. That history is found in hearing transcripts 
from numerous prior hearings and Government Accounting Office studies. 
    \1\ Examples: (1) S. Hrg. 106-200, Cheyenne River Sioux Equitable 
Compensation Act, Senate Committee on Indian Affairs Hearing on S. 964 
(August 3, 1999); (2) Pub. L. 83-776, 68 Stat. 1191 et. Seq. (1954); 
(3) S. Hrg. 109-572, Tribal Parity Act, and the Cheyenne River Sioux 
Tribe Equitable Compensation Amendments Act (June 14, 2006); (4) 
Analysis of Economic Loss Resulting From Lands Taken from the Cheyenne 
River Sioux Tribe for the Oahe Dam, Robert McGlaughlin Company, (Solen, 
ND July 1994); and (5) GAO/RCED 98-39: Cheyenne River Sioux Tribe's 
Additional Compensation Claim for the Oahe Dam (August 1998).
    Those older and wiser than I have recounted for you what happened 
when the Oahe Dam was constructed. One account states that, ``by the 
end of the decade, the Tribe would be facing the forced removal of 200 
Indian families from four river settlements and their surrounding 
bottomlands; would be forced to give up its valuable riparian 
cottonwood forest plant, and wildlife habitat bordering the Missouri; 
see the ruination of its cattle raising industry; suffer the loss 
forever of bottomland hunting and fishing for indigenous species found 
there, permanently lose the use of bottomland plant products for 
cultural and spiritual purposes an finally, see its homes destroyed 
along with churches, schools, and its tribal social life. It would see 
the residue of their remaining lands fall to a value only a `small 
fraction of their present value.' The above was not an account of the 
government's taking put forward by the Tribe but the government's own 
account from House Report 2484 (83rd Congress) on the project's 
probable impact on the Cheyenne River Sioux.'' \2\
    \2\ Government Accounting Office Report 98-39 ``Cheyenne River 
Sioux Tribe's Additional Compensation Claim for the Oahe Dam, GAO/RCED 
98-39 (1998), Appendix IV, Statement of Robert McGlaughlin.
    This taking was accomplished by threats and force. By the time the 
United States had come to the Tribe to discuss taking of the land, the 
Oahe Dam was already under construction, making it clear that the lands 
would be flooded. The United States Army Corps of Engineers stated to 
the Tribe on the open public record, ``Neither your Constitution nor 
your treaty rights can stop the taking of your lands according to law 
under the right of eminent domain. The United States is a sovereign 
power and if the Tribe could stop the taking of the land then it would 
be the supreme power even over the United States government and this 
cannot be.'' \3\
    \3\ Id.
    It was this attitude of might makes right which resulted in the 
destruction of lives, resources, and the entire economy here at 
Cheyenne River. To date, the Tribe has not received one cent of 
additional compensation since 1954. Congress has enacted legislation in 
the Cheyenne River Equitable Compensation Act of 2000 establishing a 
Trust Fund of $290,722,958.00 which will be deposited on October 1, 
2011, and the interest from which will become available on that date, 
but until then, Cheyenne River's economy and society continue to suffer 
the effects of the destruction from the Oahe Dam unabated. This 
continues today even though the United States sees the benefit of 1.2 
billion dollars in hydroelectric production from these dams every year, 
Missouri farmers see and have seen since 1954 billions of dollars in 
gains from their crops due to flood control on their bottomlands which 
once lay unprotected from storms that wiped out crops every season, and 
the economies of all Missouri River states including South Dakota 
thrives from tourism in hunting and fishing along the Missouri River.
    While the Nation prospers and South Dakota prospers, Cheyenne River 
watches our people die young from depths of poverty unseen anywhere 
else in the United States; from the theft of our hospital and Indian 
Health Service's refusal to fund the staffing so we have more than two 
doctors for 16,000 people because it was the Corps of Engineers that 
built the hospital in Eagle Butte in 1956 to replace the one they 
flooded and not the Indian Health Service; from drinking water 
contaminated with over a billion tons of mining tailings flowing from 
the Black Hills that pile up at the mouth of the Cheyenne River instead 
of continuing to flow downstream because the Oahe Dam backs that water 
up and drops those tailings right where our only water intake sits. 
This is all attributable to the construction of the Dam. And none of it 
is included in any calculation of damages done to date.
    Cheyenne River has repeatedly sought remedies for the environmental 
contamination compounded by the Oahe Dam to no avail. Title VI of the 
Water Resources Development Act of 2000 includes authorization to the 
Corps of Engineers to address this environmental devastation but has 
the Corps even begun to study the problems let alone seek funding to 
remedy these problems? No. And no amount of discussion has changed 
this. The Tribe and seven federal agencies with the help of the South 
Dakota delegation provided almost 20 million dollars in funds to move 
that water intake over the past 2 years at our own expense. But not 
before our rates of cancer, autoimmune disorders, and deaths from 
unheard of diseases are out of control. We have seven cases of 
pancreatic cancer--there are only 32,000 cases in the entire United 
States. Now, we have authorization in the 2007 Water Resources 
Development Act for another $65 million dollars to build a mainline 
from that intake to Eagle Butte--where the United States relocated the 
tribal headquarters--over 65 miles from the River. If we had not been 
forced to relocate to a non-Indian town for political reasons with the 
flooding and were instead allowed to stay near the River, the Tribe 
would not be in this position of needing this level of funding just to 
have a permanent supply of clean drinking water. The United States 
government did this. Until this main line is built, Cheyenne River will 
not see one new home or business because there is no water pressure. 
Our families will continue to live two to four families per household. 
After the main line is built, the system needs an upgrade to all the 
water lines to reach the families who were scatters over an area the 
size of Connecticut by forced relocation from the flooding. The Banner 
study already submitted to this Committee demonstrates that the total 
cost in 2004 was estimated at $389 million. This makes the Equitable 
Compensation Act Fund for Cheyenne River pale in comparison.
    Meanwhile, our people die from the health disorders caused by that 
contaminated silt stacking up at our border on our Cheyenne River all 
because the dam was built. And Indian Health Service, the Corps of 
Engineers, and the Environmental Protection Agency continue to tell the 
Tribe they have no programs or funds to do anything about it--it's up 
to Congress. And still Cheyenne River waits, and prays for a better 
time to come where there are not at least two funerals a week.
    While we wait, our population is growing exponentially. Half of the 
population at Cheyenne River is under the age of twenty-one years old. 
And the Tribe still has not one cent in funds to address rebuilding 
from the flooding. With this population explosion there is less to go 
around per person. The poverty created by the destruction of our river 
bottoms is like a whirlpool. The original losses keep spiraling and 
expanding exponentially as time goes on and the longer time goes on 
without any funding to rebuild, the larger the costs are to actually 
restore the tribal economy to the same level as its counterparts in 
South Dakota.
    The Tribe has testified before this Committee at length about how 
prepared Cheyenne River is to implement its long term strategic plan 
for poverty reduction--a plan developed in partnership with the 
Northwest Area Foundation and being implemented with $10 million in 
funding from that Foundation and the Tribe. Yet, this plan cannot be 
fully implemented fully until it starts receiving interest income from 
the Cheyenne River Equitable Compensation Act of 2000. Until October 
2011, all we can do is proceed as best we can with the limited funds we 
can gather. We have a sixty bed nursing home under construction right 
now, and struggle to secure the funds to complete construction and 
operate with operations slated to start in 2008. But we are prepared 
for when the Tribe actually begins to receive funds to move forward.
    All studies on the losses at Cheyenne River assume the Tribe's 
original requests in 1954 that were not funded and add a generic 
economic inflation rate over time. These economic inflation rates do 
not calculate the exponential growth of the tribal population or the 
cost of that infrastructure that was destroyed and never replaced. In 
order to place the Tribe on equal footing with all others, the Congress 
would have to account for the cost of replacement of the water system, 
the cost of a new hospital built by Indian Health Service so they would 
actually staff it, the cost in human health harms and lives lost from 
contamination of our water supply. These are just a few of the costs 
not calculated into any Government Accounting Office study to date.
    Even worse, the Corps of Engineers received funding to relocate 
graves and still today, as the water rises and falls, bones are exposed 
from graves that were supposed to be moved. The Missouri River Basin is 
home to over 15,000 known historic sites--this has been documented and 
written about in numerous publications. And yet, funds to protect these 
national treasures which are irreplaceable and are a national 
treasure--not just to the Lakota Nations and our brother and sister 
Nations--but of the United States for all our children, are negligible. 
No calculation of damages for any Tribes to date accounts for what it 
costs to protect these national treasures, or for what it would cost to 
properly relocate those burial sites the Corps of Engineers failed to 
relocate in their haste to see he dams become operational for the 
benefit of Missouri farmers, navigators, and the hydroelectric power 
    When money and power become the basis for destroying the lives of 
our own United States citizens, and the goal of the government offices 
requested to look at the value of the damages becomes to limit what it 
will cost to ``compensate for original losses'', no justice will 
prevail. When I buy insurance and my house is destroyed, I receive what 
it costs to replace that home. This is the principal behind determining 
``just'' compensation--what will it take to make the person whole 
again? Not just what could I sell it for on the open market. This is 
important here--the United States in the reports listed in footnote 1 
of this statement itself has stated that no one would have been a 
willing seller of this land and these assets because the stolen was the 
heart and sole of an entire civilization. It would be akin to trying to 
compensate Palestinians or Israelites for the loss of Jerusalem and 
thinking that money would make the Nation whole.
    The United States needs to sit down and take a good look at what it 
will cost to restore basic infrastructure that the rest of the United 
States has but we have never had. While the rest of the United States 
has enough of an economy to look at infrastructure development and 
economic growth, Cheyenne River spends the majority of its government 
funds on heating assistance for tribal members, food for its members, 
shelter for its members, and health care for its members. With an 
unemployment rate of over 80 percent this year, what else is the 
government to do? Until the basic infrastructure of clean drinking 
water, housing, roads, and economic engines for growth in the tourism 
and agriculture industries are restored, there is little room for 
    As this Tribe has testified to this Committee before, our greatest 
resource is our tribal membership whose skills, talents, determination 
and perseverance are the very reason Cheyenne River continues to 
achieve gains. And this will remain no matter what the Congress does as 
a result of this hearing.
    But I hope, as I must, that I live to see the Cheyenne River 
Equitable Compensation Act of 2000 funds actually received by the Tribe 
and I hope I see the day that our gravesites are all protected and no 
more relatives will be found on the shores of the Missouri River, and I 
hope I see the day when all of our people have clean drinking water and 
adequate health care. And I hope that this Committee, if it chooses to 
look further into what compensation is ``just,'' will acknowledge that 
the Tribes on this River know best how to achieve that economic self-
sufficiency that was once the birth right of the Nations. And that 
justice will be served when that birth right to be economically self-
sufficient is restored to our Nations.
    Thank you again for this opportunity to provide you with my 
thoughts. I welcome any questions you may have regarding this 
  Prepared Statement of Archie Fool Bear, Board Member, Standing Rock 
 Sioux Tribe and Upper Missouri River InterTribal Allottees Association