[Congressional Record Volume 144, Number 143 (Sunday, October 11, 1998)]
[Extensions of Remarks]
[Page E2089]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    MISSISSIPPI SIOUX TRIBES JUDGMENT FUND DISTRIBUTION ACT OF 1998

                                 ______
                                 

                               speech of

                             HON. RICK HILL

                               of montana

                    in the house of representatives

                       Saturday, October 10, 1998

  Mr. HILL. Mr. Speaker, I rise to support S. 391, the ``Mississippi 
Sioux Tribes Judgment Fund Distribution Act of 1998.''
  S. 391, sponsored by Senator Dorgan of North Dakota and cosponsored 
by his colleague from North Dakota and his colleagues from Montana and 
South Dakota, was originally introduced as a companion bill to H.R. 
976. My legislation was brought up in the House under suspension of the 
rules and passed on September 8, 1997.
  After receiving the referral of H.R. 976 the Senate Committee on 
Indian Affairs held a hearing on the measure on October 21, 1997 and 
favorably reported an amendment in the nature of a substitute on 
November 4, 1997. In order to address concerns raised by the 
Administration, the Committee on Indian Affairs held a legislative 
hearing on S. 391 on July 8, 1998. Only July 29, 1998 the committee 
favorably reported S. 391 with an amendment in the nature of a 
substitute. The Senate passed S. 391 on October 9, 1998.
  The major difference between H.R. 976 as passed by the House and S. 
391 as passed by the Senate concerns the amount of the judgment fund to 
be distributed to the three Sisseton and Wahpeton tribes. Under H.R. 
976, these tribes would receive the interest on the undistributed funds 
and the lineal descendants would receive the principal originally 
allocated to them in the 1972 act. Under S. 391, the tribes will 
receive about 28.3 percent of the undistributed funds and the lineal 
descendants will receive about 71.6 percent. This disposition of the 
fund was resulted from extensive consultations by the Senate Committee 
on Indian Affairs both with the tribes and with the Administration. The 
Administration, in turn, consulted with representatives of the lineal 
descendants.
  While in my opinion the tribes should receive the funds provided in 
the House passed measure the allocation funds in S. 391 represents a 
reasonable approach to accommodating the concerns and interests of the 
Administration, the tribes and lineal descendants. The cap S. 391 
places on the amount of funds to be distributed to unaffiliated lineal 
descendants is particularly important. The United States has an 
important government-to-government relationship with these tribes and a 
trust responsibility to them that supports providing to the tribes the 
greatest percentage possible of the judgment fund that is compensation 
for the taking of lands owned by the tribes. Providing the greatest 
percentage possible will improve the desperate economies of these 
tribes while diminishing the amount of the fund that will be 
distributed per capita to unaffiliated lineal descendants to whom the 
United States does not owe the same trust obligation.
  Apart from changing the tribal allocation, much of the remainder of 
S. 391 is the same as or similar to provision contained in H.R. 976. 
There are, however, certain new provisions that make more acceptable 
the reduction in the distribution to the tribes. One is a provision 
that tightens the methods used by the Secretary to verify the Sisseton 
and Wahpeton Mississippi Sioux Tribe lineal ancestry of new applicants 
who seek to participate as lineal descendants. The methods used by the 
Secretary with respect to those already identified as lineal 
descendants resulted in only 65 of those 1,988 individuals tracing 
ancestry to a member of the Sisseton and Wahpeton Mississippi Sioux 
Tribe. Since the judgment fund is compensation for lands taken from 
this aboriginal tribe it stands to reason and the 1972 act says as much 
explicitly, that eligibility to participate as a distributee must be 
based on lineal descendance from the aboriginal tribe. The only way to 
assure this is to have applicants identify a lineal ancestor who was a 
member of the tribe. S. 391 now more emphatically requires this. The 
Secretary, under S. 391, must use certain specified rolls to establish 
that an applicant has a lineal ancestor who was a member of the 
aboriginal tribe. However, it is not sufficient to simply identify an 
ancestor on one of the rolls referred to in S. 391. In addition it is 
necessary to ascertain that, that ancestor was a member of the 
aboriginal Sisseon and Wahpeton Mississippi Sioux Tribe. If the use of 
a particular roll does not permit the Secretary to determine that 
aboriginal tribe membership, then the Secretary must use other rolls, 
closer in time to the existence of the aboriginal tribe, to assure that 
an applicant has identified a ``specific Sisseton and Wahpeton 
Mississippi Sioux Tribe lineal ancestor.''
  Section 8 is another important provision in S. 391. Subsections (a) 
and (f) of this section guarantee that if the lineal descendants bring 
suit challenging the constitutionality of the allocation to the tribes, 
the tribes will have the right to intervene in that suit to challenge 
the constitutionality of the allocation that S. 391 makes to the lineal 
descendants. Most importantly, the tribes will have the right to have 
their constitutional claims heard and determined on the merits. This 
was an important provision requested by the tribes as part of the 
negotiations that resulted in the reduction of the tribal allocation 
from that allowed under H.R. 976. The tribes' constitutional claims 
have never been determined on the merits despite the Federal court in 
Montana and United States Court of Appeals for the Ninth Circuit both 
stating that the tribes' claims merited litigation. These courts 
nevertheless was compelled to dismiss the claims as barred by a statute 
of limitations. A subsequent constitutional challenge by the tribes was 
dismissed on res judicata grounds by the Federal court in the District 
of Columbia. Section 8 of S. 391 will now allow these claims to be 
determined on the merits. In the context of S. 391, which also allows 
the lineal descendants to challenge the distribution made to the 
tribes, it is basic fairness to level the playing field by allowing the 
tribes to challenge the distribution to lineal descendants without the 
impediment of the types of defenses that in the past prevented the 
tribes from securing a merits disposition of their constitutional 
claims.
  Subsection (f)(1) of S. 391 would preclude the tribes, once they 
receive a distribution under this act, from litigating a claim to 
challenge the distribution to lineal descendants arising under the 1972 
act. However, if such a challenge commenced prior to the receipt of a 
distribution, that challenge is not impeded from proceeding. Also 
subsection (f)(2), as mentioned, protect the right of the tribes to 
secure a disposition on the merits of any claim they bring in 
intervention under subsection (a).
  This bill has bipartisan support.
  I urge my colleagues to support this measure.