[Congressional Record Volume 145, Number 114 (Thursday, August 5, 1999)]
[Senate]
[Pages S10424-S10426]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. MURRAY (for herself and Mr. INOUYE):
  S. 1525. A bill to provide for equitable compensation of the Spokane 
Tribe of Indians of the Spokane Reservation in settlement of its claims 
concerning its contribution to the production of hydropower by the 
Grand Coulee Dam, and for other purposes; to the Committee on Indian 
Affairs.


                    THE SPOKANE TRIBE SETTLEMENT ACT

  Mrs. MURRAY. Mr. President, today I am pleased to introduce on behalf 
of myself and the distinguished Senator from Hawaii, Mr. Inouye, ``The 
Spokane Tribe of Indians of the Spokane Reservation Grand Coulee Dam 
Equitable Compensation Act.'' This bill will provide a settlement of 
the claims of the Spokane Tribe for its contribution to the production 
of hydropower by the Grand Coulee Dam.
  The Grand Coulee Dam is the largest concrete dam in the world, the 
largest electricity producer in the United States, and the third 
largest electricity producer in the world. Grand Coulee is one mile in 
width; its spillway is twice the height of Niagara Falls. It provides 
electricity and water to one of the world's largest irrigation 
projects, the one million acre Columbia Basin Project. The Grand Coulee 
is the backbone of the Northwest's federal power grid and agricultural 
economy.
  To the Spokane Tribe, however, the Grand Coulee Dam brought an end to 
a way of life. The dam flooded their reservation on two sides. The 
Spokane River changed from a free flowing waterway that supported 
plentiful salmon runs, to barren slack water that now erodes the 
southern lands of the reservation. The benefits that accrued to the 
nation and the Northwest were made possible by uncompensated injury to 
the Native Americans of the Columbia and Spokane Rivers.
  The legislation I am introducing seeks to compensate the Spokane 
Tribe for its losses. In 1994, Congress enacted similar settlement 
legislation to compensate the neighboring Confederated Colville Tribes. 
That legislation provided a onetime payment of $53 million for past 
damages and approximately $15 million annually from the proceeds from 
the sale of hydropower by the Bonneville Power Administration. The 
Spokane Tribe settlement legislation would provide a settlement 
proportional to that provided to the Colville Tribes, which was based 
on the percentage of lands appropriated from the respective tribes for 
the dam. This translates into 39.4% of the past and future compensation 
awarded the Colville Tribes.
  Let me give my colleagues some of the background surrounding this 
issue. From 1927 to 1931, at the direction of Congress, the U.S. Army 
Corps of Engineers investigated the Columbia River and its tributaries. 
In its report to Congress, the Corps recommended the Grande Coulee site 
for hydroelectric development. In 1933, the Department of Interior 
federalized the project under the National Industrial Recovery Act, and 
in 1935, Congress authorized the project in the Rivers and Harbors Act.
  In 1940, Congress enacted a statute to authorize the Interior 
Department to designate whichever Indian lands it deemed necessary for 
Grand Coulee construction and to receive all rights, title and interest 
the Indians had in them. In return, the Tribes received compensation in 
the amount determined by Interior Department appraisals. However, the 
only land that was appraised and for which Tribes were compensated was 
the newly flooded land, for which the Spokane Tribe received $4700. 
There is no evidence that the Department advised or that Congress knew 
that the Tribes' water rights were not extinguished. Neither was there 
evidence the Department know the Indian title and trust status for the 
Tribal land underlying the river beds had not been extinguished. No 
compensation was included for the power value contributed by the use of 
the Tribal resources or for the loss of the Tribal fisheries or other 
damages to Tribal resources.

  As pointed out in a 1976 Opinion of Lawrence Aschenbrenner, the 
Acting Associate Solicitor, Division of Indian Affairs, Department of 
Interior

       The 1940 act followed seven years of construction during 
     which farm lands, and timber lands were flooded, and a 
     fishery destroyed, and during which Congress was silent as to 
     the Indian interests affected by the construction. Both the 
     Congress and the Department of Interior appeared to proceed 
     with the Grand Coulee project as if there were no Indians 
     involved there. . . . There is no tangible evidence, 
     currently available, to indicate that the Department ever 
     consulted with the Tribes during the 1993-1940 period 
     concerning the ongoing destruction of their land and 
     resources and proposed compensation therefore. . . . It is 
     our conclusion that the location of the dams on tribal land 
     and the use of the water for power production, without 
     compensation, violated the government's fiduciary duty toward 
     the Tribes.

  In 1994, the Colville legislation settled the claims of the Colville 
Tribes to a share of the hydropower revenues from the Grand Coulee Dam. 
This claim was among the claims which the Colville Tribes filed with 
the Indian Claims Commission (ICC) under the Act of August 13, 1946, 
which included a five year statute of limitations. While the Colville 
Tribes had been formally organized for more than 15 years, the Spokane 
Tribe did not formally organize until 16 days prior to the ICC statute 
of limitations deadline. In addition, while the BIA was aware of the 
potential claims of the Spokane Tribe to a portion of the hydropower 
revenues generated by Grand Coulee, there is no evidence that the BIA 
ever advised the Tribe of such claims. The settlement for the Spokane 
Tribes was not included with that for the Colville Tribes in 1994 
because the Colvilles had concerns that the statute of limitations 
would hold up the legislation.
  Since the 1970s, Congress and federal agencies have indicated that 
both the Colville and Spokane Tribes should be compensated. Since 1994, 
when an agreement was reached to compensate the Colville Tribes, 
Congress and federal agencies have expressed interest in providing 
equitable compensation to the Spokane Tribe. This legislation will 
provide for the long overdue settlement to which the Spokane Tribe is 
entitled. I urge my colleagues to support this bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1525

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

[[Page S10425]]

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Spokane Tribe of Indians of 
     the Spokane Reservation Grand Coulee Dam Equitable 
     Compensation Settlement Act''.

     SEC. 2. FINDINGS.

       The Congress find the following:
       (1) From 1927 to 1931, at the direction of Congress, the 
     Corps of Engineers investigated the Columbia River and its 
     tributaries to determine sites where power could be produced 
     at low cost.
       (2) The Corps of Engineers listed a number of sites, 
     including the site where the Grand Coulee Dam is now located, 
     with recommendations that the power development be performed 
     by local governmental authorities or private utilities under 
     the Federal Power Act.
       (3) Under section 10(e) of the Federal Power Act, licensees 
     must pay Indian tribes for the use of reservation lands.
       (4) The Columbia Basin Commission, an agency of the State 
     of Washington, applied for, and in August 1933 received, a 
     preliminary permit from the Federal Power Commission for 
     water power development of the Grand Coulee Site.
       (5) In the mid-1930's, the Federal Government, which is not 
     subject to the Federal Power Act, federalized the Grand 
     Coulee Dam project and began construction of the Grand Coulee 
     Dam.
       (6) At the time the Grand Coulee Dam project was 
     federalized, the Federal Government knew and recognized that 
     the Spokane Tribe and the Confederated Tribes of the Colville 
     Reservation had compensable interests in the Grand Coulee Dam 
     project, including but not limited to development of 
     hydropower, extinguishment of a salmon fishery upon which the 
     Spokane Tribe was almost totally dependent, and inundation of 
     lands with loss of potential power sites previously 
     identified by the Spokane Tribe.
       (7) In an Act dated June 29, 1940 (54 Stat. 703; 16 U.S.C. 
     835d), Congress enacted legislation to grant to the United 
     States all the rights of the Indians in lands of the Spokane 
     Tribe and Colville Indian Reservations required for the Grand 
     Coulee Dam project and various rights-of-way over Indian 
     lands required in connection with the project. The Act 
     provided that compensation for the lands and rights-of-way 
     required shall be determined by the Secretary of the Interior 
     in such amounts as such Secretary determines just and 
     equitable.
       (8) In furtherance of the Act of June 29, 1940, the 
     Secretary of the Interior paid to the Spokane Tribe the total 
     sum of $4,700. The Confederated Tribes of the Colville 
     Reservation received a payment of $63,000.
       (9) In 1994, following 43 years of litigation before the 
     Indian Claims Commission, the United States Court of Federal 
     Claims and the United States Court of Appeals for the Federal 
     Circuit, Congress ratified an agreement between the 
     Confederated Tribes of the Colville Reservation and the 
     United States that provided for past damages and annual 
     payments of $15,250,000 in perpetuity, adjusted annually, 
     based on revenues for the sale of electric power and 
     transmission of such power by the Bonneville Power 
     Administration.
       (10) In legal opinions issued throughout the years by the 
     Department of the Interior Solicitor's Office a Task Force 
     Study conducted from 1976 to 1980 ordered by the Senate 
     Appropriations Committee, and in hearings before the Congress 
     when the Confederated Tribes Act was enacted, it has 
     repeatedly been recognized that the Spokane Tribe suffered 
     similar damages and had a case legally comparable with that 
     of the Confederated Tribes of the Colville Reservation with 
     the sole exception that the 5-year statute of limitations 
     provided in the Indian Claims Commission Act of 1946 
     prevented the Spokane Tribe from bringing its own action 
     for fair and honorable dealings as provided in that Act.
       (11) The failure of the Spokane Tribe to bring an action of 
     its own before the Indian Claims Commission can be attributed 
     to a combination of factors, including the failure of the 
     Bureau of Indian Affairs to carry out its advisory 
     responsibilities as required by the Indian Claims Commission 
     Act (Act of August 13, 1946, ch. 959, 60 Stat. 1050) and an 
     effort of the Commissioner of Indian Affairs to impose 
     improper requirements on claims attorneys retained by Indian 
     tribes which caused delays in retention of counsel and full 
     investigation of the Spokane Tribe's potential claims.
       (12) As a consequence of construction of the Grand Coulee 
     Dam project, the Spokane Tribe has suffered the complete loss 
     of the salmon fishery upon which it was dependent, the loss 
     of identified hydropower sites it could have developed, the 
     loss of hydropower revenues it would have received under the 
     Federal Power Act had the project not been federalized, and 
     it continues to lose hydropower revenues which the Federal 
     Government recognized the Spokane Tribe was due at the time 
     the project was constructed.
       (13) Over 39 percent of the Indian-owned lands used for the 
     Grand Coulee Dam project were Spokane Tribe lands.

     SEC. 3. STATEMENT OF PURPOSE.

       The purpose of this Act is to provide fair and equitable 
     compensation to the Spokane Tribe on a basis that is 
     proportionate to the compensation provided to the 
     Confederated Tribes of the Colville Reservation for the 
     damages and losses suffered as a consequence of construction 
     and operation of the Grand Coulee Dam project.

     SEC. 4. SETTLEMENT FUND ACCOUNT.

       (a) Establishment of Account.--There is hereby established 
     in the Treasury an interest bearing account to be known as 
     the ``Spokane Tribe of Indians Settlement Fund Account''.
       (b) Deposit of Amounts.--
       (1) Initial deposit.--Upon enactment of this Act and 
     appropriation of funds, the Secretary of the Treasury shall 
     deposit into the Fund Account a sum equal to 39.4 percent of 
     the sum paid to the Confederated Tribes of the Colville 
     Reservation in a lump sum pursuant to section 5(a) of the 
     Confederated Tribes Act, adjusted by the consumer price index 
     from the date of that payment of the Confederated Tribes 
     until the date of enactment of this Act, as payment and 
     satisfaction of the Spokane Tribe's claim for use of its 
     lands for generation of hydropower for the period from 1940 
     through November 2, 1994, the date of the enactment of the 
     Confederated Tribes Act.
       (2) Subsequent deposits.--Commencing on September 30 of the 
     first fiscal year following enactment of this Act and on 
     September 30 of each of the 5 fiscal years following such 
     fiscal year, the Administrator of the Bonneville Power 
     Administration shall pay into the Fund Account a sum equal to 
     20 percent of 39.4 percent of the sum authorized to be paid 
     to the Confederated Tribes of the Colville Reservation 
     pursuant to section 5(b) of the Confederated Tribes Act 
     through the end of the fiscal year during which this Act is 
     enacted, adjusted by the consumer price index to maintain the 
     purchasing power the Spokane Tribe would have had if annual 
     payments had been made to the Spokane Tribe on the date 
     annual payments commenced and were subsequently made to the 
     Confederated Tribes of the Colville Reservation pursuant to 
     section 5(b) of the Confederated Tribes Act.
       (e) Annual Payments.--On September 1 of the fiscal year 
     following the enactment of this Act and of each fiscal year 
     thereafter, payments shall be made by the Bonneville Power 
     Administration, or any successor thereto, directly to the 
     Spokane Tribe in an amount which is equal to 39.4 percent of 
     the annual payment authorized to be paid to the Confederated 
     Tribes of the Colville Reservation in the operative and each 
     subsequent fiscal year pursuant to section 5(b) of the 
     Confederated Tribes Act.

     SEC. 5. USE AND TREATMENT OF SETTLEMENT FUNDS.

       (a) Transfer of Funds to Tribe.--The Secretary of the 
     Treasury shall transfer all or any portion of the settlement 
     funds described in section 4(a) to the Spokane Business 
     Council not later than 60 days after such Secretary receives 
     written notice of the adoption by the Spokane Business 
     Council of a resolution requesting that such Secretary 
     execute the transfer of such funds. Subsequent requests may 
     be made and funds transferred if not all of the funds are 
     requested at one time.
       (b) Use of Initial Payment Funds.--
       (1) General discretionary funds.--Twenty-five percent of 
     the settlement funds described in section 4(a) and (b) shall 
     be reserved by the Business Council and used for 
     discretionary purposes of general benefit to all members 
     of the Spokane Tribe.
       (2) Funds for Specific Purposes.--Seventy-five percent of 
     the settlement funds described in section 4(a) and (b) shall 
     be used for the following:
       (A) Resource development program.
       (B) Credit program.
       (C) Scholarship program.
       (D) Reserve, investment, and economic development programs.
       (c) Use of Annual Payment Funds.--Annual payments made to 
     the Spokane Tribe pursuant to section 4(c) may be used or 
     invested by the Spokane Tribe in the same manner as other 
     tribal governmental funds.
       (d) Approval of Secretary Not Required.--Notwithstanding 
     any other provision of law, the approval of the Secretary of 
     the Treasury or the Secretary of the Interior for any 
     payment, distribution, or use of the principal, interest, or 
     income generated by any settlement funds transferred or paid 
     to the Spokane Tribe pursuant to this Act shall not be 
     required and such Secretaries shall have no trust 
     responsibility for the investment, supervision, 
     administration, or expenditure of such funds once such funds 
     are transferred to or paid directly to the Spokane Tribe.
       (c) Treatment of Funds for Certain Purposes.--The payments 
     or distributions of any portion of the principal, interest, 
     and income generated by the settlement funds described in 
     section 4 shall be treated in the same manner as payments or 
     distributions from the Investment Fund described in section 6 
     of Public Law 99-346 (100 Stat. 677).
       (f) Tribal Audit.--The settlement funds described in 
     section 4, once transferred or paid to the Spokane Tribe, 
     shall be considered Spokane Tribe governmental funds and, as 
     other tribal governmental funds, be subject to an annual 
     tribal governmental audit.

     SEC. 6. REPAYMENT CREDIT.

       Beginning in the fiscal year following enactment of this 
     Act and continuing for so long as annual payments are made 
     under this Act, the Administrator of the Bonneville Power 
     Administration shall deduct from the interest payable to the 
     Secretary of the Treasury from net proceeds as defined in 
     section 13 of the Federal Columbia River Transmission System 
     Act, a percentage of the payment made to the Spokane Tribe 
     for the prior fiscal year. The actual percentage

[[Page S10426]]

     of such deduction shall be calculated and adjusted to ensure 
     that the Bonneville Power Administration receives a deduction 
     comparable to that which it receives for payments made to the 
     Confederated Tribes of the Colville Reservation pursuant to 
     the Confederated Tribes Act. Each deduction made under this 
     section shall be credited to the interest payments otherwise 
     payable by the Administrator to the Secretary of the Treasury 
     during the fiscal year in which the deduction is made, and 
     shall be allocated pro rata to all interest payments on debt 
     associated with the generation function of the Federal 
     Columbia River Power System that are due during that fiscal 
     year; except that, if the deduction in any fiscal year is 
     greater than the interest due on debt associated with the 
     generation function for the fiscal year, then the amount of 
     the deduction that exceeds the interest due on debt 
     associated with the general function shall be allocated pro 
     rata to all other interest payments due during that fiscal 
     year. To the extent that the deduction exceeds the total 
     amount of any such interest, the deduction shall be applied 
     as a credit against any other payments that the Administrator 
     makes to the Secretary of the Treasury.

     SEC. 7. SATISFACTION OF CLAIMS.

       Payment under section 4 shall constitute full payment and 
     satisfaction of the Spokane Tribe's claim to a fair share of 
     the annual hydropower revenues generated by the Grand Coulee 
     Dam project from 1940 through the fiscal year prior to the 
     fiscal year during which this Act is enacted and represents 
     the Spokane Tribe's proportional entitlement of hydropower 
     revenues based on the lump sum payment for damages from 1940 
     through 1994 and the annual payments by the Bonneville Power 
     Administration to the Colville Tribes commencing in fiscal 
     year 1995 through the fiscal year that this Act is enacted.

     SEC. 8. DEFINITIONS.

       For the purposes of this Act--
       (1) the term ``Confederated Tribes Act'' means the 
     Confederated Tribes of the Colville Reservation Grand Coulee 
     Dam Settlement Act (P.L. 103-436; 108 Stat. 4577);
       (2) the term ``Fund Account'' means the Spokane Tribe of 
     Indians Settlement Fund Account established under section 
     4(a); and
       (3) the term ``Spokane Tribe'' means the Spokane Tribe of 
     Indians of the Spokane Reservation.

     SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as may be 
     necessary to carry out the purposes of this Act.
                                 ______