[Congressional Record Volume 149, Number 157 (Monday, November 3, 2003)]
[Senate]
[Pages S13784-S13791]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEPARTMENT OF INTERIOR AND RELATED AGENCIES APPROPRIATIONS ACT, 2004--
CONFERENCE REPORT
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to the consideration of the conference report to accompany H.R.
2691, which the clerk will report.
The assistant legislative clerk read as follows:
The committee of conference on the disagreeing votes of the
two houses on the amendment of the Senate to the bill (H.R.
2691) making appropriations for the Department of Interior
and related agencies for the
[[Page S13785]]
fiscal year ending September 30, 2004, and for other
purposes, having met, have agreed that the House recede from
its disagreement to the amendment of the Senate, and agree to
the same with an amendment, and the Senate agree to the same,
signed by a majority of the conferees on the part of the
conference.
(The conference report is printed in the House proceedings of the
Record of October 28, 2003.)
The PRESIDING OFFICER. Who yields time?
Mr. BURNS. Mr. President, it gives me a great deal of pleasure to
bring this conference report to the floor, along with my good friend
from North Dakota, Senator Dorgan. We have spent a lot of hours on this
particular legislation, the appropriations for the Department of the
Interior, also some portions in here for the Department of Energy, the
Forest Service, the Indian Health Service, and several other
independent agencies under the Interior Subcommittee's jurisdiction.
Both the House and Senate bills conformed to the same 302(b)
allocation and our conference allocation is effectively the same. This
means the priorities of both bodies, as expressed in their respective
bills, had to be pared back substantially to bring this bill to the
required level. Nobody should be surprised if they think they did not
get everything they wanted in this bill. There is an old saying, ``I
didn't get everything I wanted, but I wanted everything that I got.''
Nobody did get everything they wanted, including this chairman. But I
can tell you the Members were treated fairly. I think the House and
Senate had a good exchange during the course of our conference
discussions.
That being said, this bill does a number of positive things. It has
been a most difficult year. Generally speaking, we have tried to
protect the core operating programs of the land management agencies,
the Indian Health Service, and the other agencies in this bill. Where
possible, we have provided targeted increases for high priority
programs such as park operations and, of course, forest health.
Beyond that, we have continued our efforts to attack the maintenance
backlog within the land management agencies: The BIA administration of
the school system and the Indian Health Service. In a few cases we have
invested in new facilities, where they are critically needed.
This bill also continues to fund a number of grant programs for a
variety of purposes, from habitat conservation to energy conservation
to the arts and the humanities. Most of these programs have been
continued at around current-year levels. Advocates of these programs
may be disappointed that we did not provide large increases, but the
constraints of our allocation simply would not allow it.
There is a specific issue I would like to mention briefly and that is
the Indian trust reform. The court recently issued an opinion in the
Cobell litigation that would compel the Department of Interior to spend
an estimated $9 billion to $12 billion--that is with a ``b,'' billion--
over the next 3 years, on an exhaustive historical accounting of
individual Indian money accounts, an accounting that may or may not
shed light on the ultimate solution to the trust problem. If there is
one thing with which everybody involved in this issue seems to agree,
it is that we should not spend that kind of money on an incredibly
cumbersome accounting that will do almost nothing to benefit the Indian
people. What we need to be doing is fixing the trust system and
settling this case once and for all. The conference agreement provides
that there is effectively a time out, so Congress can address this
issue in a comprehensive fashion. I sincerely hope Congress will take
advantage of this opportunity to act for the benefit of the Indian
people throughout our country.
Finally, I express my thanks to staffs on both sides of the aisle who
worked so hard on getting this conference report together: Larissa
Sommer, Ginny James, Leif Fonnesbeck, Ryan Thomas, and Bruce Evans on
my own subcommittee on this side. On the committee of course are the
folks on the other side who worked so hard, and the rest of my
committee staff. They have done a great piece of work bringing this
difficult conference to a successful conclusion. Chris Heggem and Ron
Hooper of my personal staff have also contributed a great deal to this
bill on items that are particularly critical to my State of Montana.
I also want to thank Peter Keifhaber and Brooke Livingston of Senator
Dorgan's staff for their cooperation and good humor. Given that Brooke
is to be married Saturday, I think it is safe to say she is glad to get
this item off the floor. We couldn't conclude it quickly enough. I am
glad we can accommodate her on that schedule.
Again, I thank my good friend from North Dakota. We are neighbors.
Our border is very porous. We always stand our ground, though, and
thank goodness there was the Little Missouri River.
I yield to the ranking member of this committee, Senator Dorgan from
North Dakota.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, let me begin where my colleague from
Montana ended. That is, with thanks to a great deal of staff help to
put this subcommittee bill together: Bruce Evans, Virginia James, Leif
Fonnesbeck, Ryan Thomas, Larissa Sommer on his side, and Peter
Keifhaber and Brooke Livingston on our side.
This is a conference report that spends $19-plus billion on a wide
range of issues--the National Park Service, the Bureau of Land
Management, Fish and Wildlife, Bureau of Indian Affairs, a portion of
the Department of Energy, and the Forest Service. As you take a look at
all of these issues--the National Endowment for the Humanities and
Arts, the Smithsonian Institution--this is quite a remarkable
subcommittee and the jurisdiction is broad and very interesting.
Senator Burns and I do share a common border between North Dakota and
Montana. He is a good legislator to work with. We are friends and have
had a good working relationship on this conference report.
I am going to vote for this conference report. There is much in it
that represents progress, as far as I am concerned, in a range of
areas, but I do say--and my colleague, Senator Burns, knows this--that
I have great heartburn about the final provision in this conference
report that deals with Indian trust land. I will talk about that in a
moment. While I vigorously oppose that provision, I, nonetheless, will
vote for the conference report.
Let me say that we have in a range of areas in this conference report
a backlog of work that needs to be done, whether it is dealing with the
infrastructure for repair and maintenance of the Park Service or the
Forest Service, the issues dealing with Indian housing, health and
education, and there are so many areas that it is hard to focus. We
have tried to have a limited amount of resources spread throughout the
obligations here to meet unlimited wants and needs. But that is the
process of trying to get a bill such as this done.
One of the key issues where we made some progress this year is the
area of tribal colleges. The reason I mention that is because we have
been battling for some long while dealing with a range of issues on
Indian reservations. I mentioned previously there is a bone fide crisis
on the issues of Indian health, housing, and education. There is really
a crisis in those areas. It seems to me that one of the ways to give
people an opportunity and some hope for a better future is education.
On Indian reservations, the tribal college system has been a
remarkable tool that has given hope to a lot of people who were not
able to get their education but have now gone back to school to get
their education through a tribal college. We have been able to increase
the funding for that to $48 million. That is not a large part of this
bill. But the President recommended $38 million, which is a cut from
last year. We restored last year, and my colleague, Senator Burns from
Montana, and I got this up to $48 million. It is the most sizable
increase we have seen in the history of this account. We have done it
because it is an investment in the lives of the people who have hope
for a better life because of this. I appreciate the cooperation and the
assistance of my colleague from Montana.
Let me also speak about the provision in the bill that is troublesome
to me; that is, the issue of Indian trust lands. All of us understand
that the Indian trust situation has grown more
[[Page S13786]]
and more difficult. We now have a court order, as a result of the
Cobell v. Norton lawsuit, that apparently, according to experts if
followed to the letter, would require us to hire accountants from Maine
to California and about $9 billion worth of work--that is right, with a
``b,'' $9 billion worth of work--to try to sort out what the accounts
are in the Indian trust funds. If this is a $13 billion fund, or
somewhere in the neighborhood of $13 billion, would the Native
Americans want us to begin a process in which we spend up to $9 billion
to hire accountants and financial folks and others to sift through
these accounts? I think that is just nuts. That doesn't make any sense
at all to anybody.
But what I have difficulty with is resolving this issue. We can't put
it off. We have to resolve it. At the end of this piece of legislation,
the House-Senate conference, over my objections, put language in the
conference report which effectively stays the court's September 25
order for as long as 14 months.
First, I think that is unconstitutional. I think that is a violation
of the separation of powers. It is apparent to me, at least. The
language I am talking about that is in this conference report tells the
court how to construe and apply statutes.
But the question of construction and application is not a function of
the Congress. We passed the statute but how it is construed and applied
is not a legislative function. We don't have any business or ability,
for that matter, to tell the courts how to write their opinions. But I
am afraid we are going to add another issue to the litigation because
of what was put in this bill.
We know that between now and late next summer we have an obligation
in this Congress to try to find a way to resolve this issue and head
off the requirement to spend billions and billions of dollars doing the
accounting necessary to sort out the Indian trust funds. Failure to do
that undermines the legitimate rights of Native Americans in this
country to whom these funds belong.
We have a requirement, in my judgment, to create a solution between
now and the end of next summer in order to avoid in the next
appropriations bill having to spend billions of dollars for an
accounting of these funds. There needs to be a settlement, an
agreement. I hope that will be the case.
But I think what we have done, in effect staying a court order--or
creating a ``timeout''--is going to add a layer of additional problems
rather than begin to solve a problem. I regret that was put in the
conference report.
Having said that, the conference report is an important piece of
legislation. It has taken longer than we would have hoped to get it
done. But it is now going to the House and to the Senate for approval
of the conference report and will go to the President. I assume he will
sign this conference report. I think we will have done pretty good work
in most areas of this report.
I yield the floor. I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Sununu). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I rise today to express admiration for the
hundreds of Nevadans who risked their lives last week to help our
neighbors in California battle the deadly wildfires that swept that
State. Approximately 500 people came from Nevada to California to help
fight the fires. Firefighters from every part of the State--Las Vegas,
Henderson and Pahrump in the south, Reno, Carson City and other
communities in the north--traveled over the border to help fight the
fires. Firefighting units from the Nevada Test Site, the naval air
station at Fallon, and the Lake Mead National Recreation Area were sent
over the border to help Californians. We even sent 240 Nevada forestry
conservation inmates who had been trained to fight fires.
I am very happy and proud that Nevadans responded in this way. We
believe in helping our neighbors in the West. So I wasn't surprised
that we lent a helping hand.
As one firefighter told the Las Vegas Sun newspaper, the decision to
go to California was a no-brainer. He said:
We didn't even have to think twice about it. We wanted to
help our fellow firefighters.
As these Nevada firefighters began returning home over the weekend,
they described the gratitude of the Californians whose houses had been
saved. They believed they contributed to saving those homes.
Unfortunately, they also warned that our State could be next in line
for devastating fires.
The California fires raged through forests that had been decimated by
drought and disease, leaving dead trees that were dry as tinder.
Similar conditions are present in Nevada and other Western States. That
is why I supported the forest management act the Senate passed last
week.
We have heard the grim toll of the California fires: 20 lives loss, 1
firefighter's life lost, almost 3,500 family homes destroyed, as much
as $2 billion in damage. But these fires have also had a direct impact
on air quality and water quality. The forest management act is part of
the solution but it is not the whole solution.
We have to work together with State and local agencies, and with
private groups, to monitor and manage the conditions in our public
forests and rangeland. In our State, we have a great example of this
kind of cooperation, the Eastern Nevada Landscape Coalition.
Hundreds of brave Nevadans did their part to control the deadly fires
in California last week. We must all do our part to prevent similar
fires in the future.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I will vote for the Interior appropriations
conference report because it contains valuable funding for Michigan's
parks, trails, museums, and forests. However, I have reservations about
several aspects of this legislation.
I am disappointed that the conference report does not include the
language I offered with Senator Collins, unanimously adopted by the
Senate, which would have directed the Department of Energy to develop
procedures to ensure the Strategic Petroleum Reserve is filled in a
manner that minimizes the cost to the taxpayer and maximizes the
overall supply of oil in the United States. The amendment expressed the
sense of the Senate that the Department of Energy's current procedures
for filling the SPR are too costly for the taxpayers and have not
improved our overall energy security.
Since early 2002, DOE has been acquiring oil for the SPR without
regard to the price of oil. Prior to that time, DOE sought to acquire
more oil when the price of oil was low, and less oil when the price of
oil was high. In early 2002, however, DOE abandoned this cost-based
approach and instead adopted the current cost-blind approach. Because
over this period the price of oil has been very high--often over $30
per barrel--and the oil markets have been tight, this cost-blind
approach has increased the costs of the program to the taxpayer and put
further pressure on tight oil markets, thereby helping boost oil and
gasoline prices to American consumers and businesses.
The DOE's cost-blind approach has proven to be very expensive without
much benefit to energy security. DOE's staff estimates that in just 2
years, 2000 and 2001, the policy now abandoned by DOE saved the
taxpayer approximately $175 million, and that a continuation of this
policy could have saved the taxpayer additional hundreds of millions of
dollars through 2005. Economists estimate that the DOE's current policy
has increased the cost of crude oil by up to $1.75 per barrel of oil,
and 5 to 7 cents per gallon of gasoline at the pump. DOE's own figures
also show that under the new policy overall energy security--as
determined by the total amount of oil in both governmental and private
storage--has barely increased.
I am very concerned that without the direction provided in the
Senate's version of this bill, the American consumers, businesses, and
the taxpayers
[[Page S13787]]
will continue to pay dearly for the Department of Energy's cost-blind
approach to acquiring oil for the Strategic Petroleum Reserve, with
only minimal, if any, benefit to our energy security.
The Department of Energy does not need new authority, however, to
adopt sound business practices. DOE already has sufficient legislative
authority to improve the cost-effectiveness of the SPR program. The
Department of Energy should try to better spend the taxpayers' dollars
and improve our overall energy security. I urge the Department to
follow the direction unanimously adopted by the Senate and improve its
procedures for filling the SPR.
In addition, I am also concerned about a provision in the bill which
limits the Department of the Interior's ability to perform its legal
and statutory responsibilities with respect to the 1994 American Indian
Trust Management Reform Act. For several years, Native Americans have
come to expect that the Federal Government and, specifically, the
Department of the Interior would rightfully manage and account for the
Native-American trust fund. Unfortunately, because the U.S. Government
has not adequately fulfilled its obligations, Native Americans have had
to use the judicial system to have their rights enforced. A rider on
this Interior Department conference report, which was not included in
the either the House or Senate bill, was added in conference which
abrogates the rights of 500,000 Native Americans. The provision, which
legislates on an appropriations bill, sends the wrong message to Native
Americans that their judicial gains can be changed by an act of
Congress, drafted in a backroom and added by a conference committee
when neither House had approved the language.
A full and appropriate accounting of the Native-American trust fund
is necessary to make sure that the tribes are treated fairly. To
overturn court decisions through undebated legislation is not good
practice, especially when the judicial proceedings are ongoing. The
trust fund contains approximately $176 billion while an appropriate
accounting of the fund would cost an estimated $9 to $12 billion.
There are also antienvironmental provisions in this bill that I do
not support. Language in the conference report will roll back the
moratorium on offshore drilling in Bristol Bay, reduce judicial review
on Tongass timber sales, and waive National Environmental Policy Act,
NEPA, review for expiring grazing permits.
Further, the conference report also drastically reduces funding for
the Land and Water Conservation Fund, LWCF. Lower funding of the LWCF
may result in the inability to purchase and protect land needed for
habitat around the Great Lakes. It also could result in land being
developed which will result in more pollution flowing into the
tributaries and the Great Lakes.
Ms. CANTWELL. Mr. President, while I plan to vote for this bill
because it funds a host of programs critical to our Nation and my home
State of Washington, I rise today to voice my grave concerns over a
provision that would prevent the Department of Interior from conducting
a full accounting of Individual Indian Trust accounts.
On September 25, 2003, in the case of Cobell v. Norton, U.S. District
Judge Royce Lamberth ordered the Department of Interior to account for
all individual Indian assets held in trust since 1887. This accounting
is critical if our government is to meet its federal trust
responsibility and reach an equitable settlement over the funds owed to
over 300,000 American Indians.
My concerns over this funding limitation are threefold. First, it
subverts both the legislative and committee process. Last week, Indian
Affairs Committee Chairman Campbell and Vice-Chairman Inouye introduced
legislation that provided a blueprint on how we can move forward on
this issue. As a member of the Indian Affairs Committee, I feel
strongly that the committee of jurisdiction should deal with this issue
so that we can hear from the multiple stakeholders through the
traditional hearing and legislative drafting process.
Secondly, by forestalling a court order, I am very concerned that
this rider may violate the Constitution's separation of powers
doctrine. With the insertion of this provision, Congress is interfering
with the ability of a federal agency to comply with the ruling of a
Federal judge. It could also be considered a takings, since Indian
account holders are being denied redress to secure just compensation
for the use of their property.
Finally, this provision will delay efforts to settle this lawsuit
because it will remove any incentive the Interior Department might have
to participate in good faith negotiations. I hope that its inclusion
will at least spur the parties to try and reach a mutually acceptable
settlement within the year that this rider will be in effect.
After a century of mismanaging Indian assets, it's time for our
Nation to keep our promises. While I share the concerns of my
colleagues over the potential expense of the accounting process, I
believe that the cost further supports the need for a negotiated
settlement. That is why I am committed to working with the all affected
stakeholders as well as the chairman and vice-chairman of the Indian
Affairs committee to resolve this matter once and for all.
Mr. BENNETT. Mr. President, I rise in support of the Interior
conference report and urge its approval. While there are a number of
important matters addressed through this bill, I would like to make
particular note for the record the absence of any limitation on the
Memorandum of Understanding, MOU, between the State of Utah and
Department of the Interior regarding the use of a process for resolving
R.S. 2477 claims through the Federal Land Policy Management Act, FLPMA
disclaimer of interest authority.
This agreement establishes a process through which the State will
identify State- and county-owned roads that run across public lands and
meet certain criteria. The State will then apply to the Department of
the Interior, DOI, for disclaimers on those roads. Each application
will be examined and determination will be made as to whether each road
meets the strict standards set forth in the MOU. If the road qualifies,
DOI will issue a recordable disclaimer of interest for that road. While
there had been some action in the House to prevent this process form
going forward, I am pleased that effort was rejected and that, upon
approval of the conference report and its approval by the President,
the State of Utah and the Department of the Interior will be free to
pursue this agreement without limitation.
I believe that this bill is an affirmation of the good faith effort
that the parties have made to resolve some of these long standing
questions through the MOU, and affirms limitations imposed by the
parties themselves in the MOU. Those limitations imposed by the parties
ensure that claims in national parks, national wildlife refuges,
congressionally designated wilderness, and wilderness study areas will
not be considered through this MOU. I also believe that it is important
that they move forward with this process and give the counties an
opportunity to have a local transportation system with certainty. The
conclusion reached by the conferees, to allow this MOU to go forward,
will allow the parties to resolve these issues through the recordable
disclaimer authority as designed under FLPMA, rather than through the
court system. This will bring the issue to resolution faster, provide
for public participation, and will be less costly to the taxpayer than
litigation.
Mr. INOUYE. Mr. President, I regret that I must rise to speak in
opposition to certain provisions of the conference report to the
Interior appropriations bill for Fiscal Year 2004 relating to
litigation now pending before the United States District Court for the
District of Columbia in a class action lawsuit entitled Cobell v.
Norton. In the Cobell case, a class of several hundred thousand
individual Indians are seeking an accounting of funds held in trust for
them by the United States.
As early as 1876, a Philadelphia newspaper reported that the
government was unable to account for the funds it held in trust for
individual Indians and Indian tribes. Since that time, the amount of
funds for which the government cannot account has grown exponentially.
The parties to the litigation agree that more than $13 billion have
gone into the individual Indian trust accounts, but in the aggregate,
the outstanding balance in those accounts
[[Page S13788]]
today is little over half a million dollars.
As you know, the United States acts as the trustee for thousands of
individual Indians who did not ask to be removed from their aboriginal
lands, to be forcibly placed on reservations, to have their lands
allotted against their will, or to have this trusteeship imposed on
them. And yet these people who have suffered great deprivation at the
hands of the government seek not to hold the government liable for the
loss of their funds--they seek only to have a proper accounting of the
funds that the United States holds in trust for them.
However, today, with the adoption of this conference report, the
United States Government will again deal the Indians yet another blow--
by denying them the right to seek a simple accounting in a court of law
of the funds that are rightfully theirs. And people in Indian country
are asking, and I think justifiably so, would the Congress single out
any other group of Americans for such treatment?
The relevant language of the conference report seeks to prevent the
provisions of the American Indian Trust Fund Management Reform Act, or
any other statute, or any principle of common law from being construed
or applied to require the Department of the Interior to commence or
continue the conduct of an historical accounting of individual Indian
money accounts until the earlier of the following shall have occurred:
No. 1, Congress shall have amended the American Indian Trust Fund--
Management Reform Act of 1994 to delineate the specific historical
accounting obligations of the Department of the Interior with respect
to the Individual Indian Money Trust; or No. 2, December 31, 2004.
We have consulted with Senate legal counsel on the language and we
are advised that this provision is of questionable constitutionality as
it relates to the separation of powers amongst the three branches of
government. Contrary to the principle established by the U.S. Supreme
Court more than 150 years ago in Marbury. v. Madison, that it is the
exclusive task of the Judicial Branch to determine the application of
the law to a case, this provision of the conference report reaches into
the province of the Article III courts by restricting those courts in
what law they may apply in the Cobell litigation.
On several occasions, I have joined the chairman of the Senate
Indian Affairs Committee in urging the parties to the Cobell litigation
to enter into negotiations that would enable them to reach a fair and
voluntary settlement to this litigation. I deeply regret the fact that
thus far negotiations between the parties have not borne fruit.
Nonetheless, I remain committed to working with the administration, the
Cobell plaintiffs, and our colleagues in the Senate and the House of
Representatives to enact legislation that will provide a process for
reaching a fair and voluntary settlement.
Accordingly, I cannot support this effort to deny to our Nation's
First Americans a right that is guaranteed to all other citizens of the
United States, while providing them with no alternative means of
obtaining full and fair relief.
Mr. NICKLES. Mr. President, I rise in support of the conference
report of the FY 2004 Interior and Related Agencies Appropriations
Bill.
I commend the distinguished chairman and the ranking member for
bringing the Senate a carefully crafted spending bill within the
subcommittee's 302(b) allocation and consistent with the discretionary
spending cap for 2004.
The pending bill provides $19.7 billion in discretionary budget
authority and $19.4 billion in discretionary outlays in FY 2004 for the
Department of the Interior, the Forest Service, energy conservation and
research, the Smithsonian and the National Endowment for the Arts, and
National Endowment for Humanities.
The bill is at the Subcommittee's 302(b) allocation for budget
authority and outlays. The bill provides $185 million or 0.9 percent
more in discretionary budget authority and $1.1 billion or 5.9 percent
more in discretionary outlays than last years bill. The bill provides
$72 million more in discretionary budget authority and $93 million more
in discretionary outlays than the President's budget request.
In addition, this bill provides $400 million in emergency funding for
the Forest Service and the Department of the Interior for wildland fire
suppression activities. These funds were requested by the President.
Mr. President, I ask unanimous consent that a table displaying the
Budget Committee scoring of the bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
H.R. 2691, INTERIOR APPROPRIATIONS, 2004.--SPENDING COMPARISONS--CONFERENCE REPORT
[Fiscal Year 2004, $ millions]
----------------------------------------------------------------------------------------------------------------
General
purpose Conservation Mandatory Total
----------------------------------------------------------------------------------------------------------------
Conference Report:
Budget authority....................................... 19,657 0 64 19,721
Outlays................................................ 19,424 0 70 19,494
Senate 302(b) allocation:
Budget authority....................................... 19,657 0 64 19,721
Outlays................................................ 19,424 0 70 19,494
2003 level:
Budget authority....................................... 19,472 0 64 19,536
Outlays................................................ 18,340 0 73 18,413
President's request:
Budget authority....................................... 19,555 0 64 19,619
Outlays................................................ 19,266 0 70 19,336
House-passed bill:
Budget authority....................................... 19,627 0 64 19,691
Outlays................................................ 19,393 0 70 19,463
Senate-passed bill:
Budget authority....................................... 19,625 0 64 19,689
Outlays................................................ 19,361 0 70 19,431
Conference Report Compared To:
Senate 302(b) allocation:
Budget authority....................................... 0 0 0 0
Outlays................................................ 0 0 0 0
2003 level:
Budget authority....................................... 185 0 0 185
Outlays................................................ 1,084 0 -3 1,081
President's request:
Budget authority....................................... 102 0 0 102
Outlays................................................ 158 0 0 158
House-passed bill:
Budget authority....................................... 30 0 0 30
Outlays................................................ 31 0 0 31
Senate-passed bill:
Budget authority....................................... 32 0 0 32
Outlays................................................ 63 0 0 63
----------------------------------------------------------------------------------------------------------------
Note: Details may not add to totals due to rounding. Totals adjusted for consistency with scorekeeping
conventions.
Mr. CAMPBELL. Mr. President, in 1996, the lawsuit now known as Cobell
v. Norton case was filed. To date we have spent many millions of
dollars on accountants and lawyers, no accounting has been done, and
not one penny
[[Page S13789]]
has been paid to an Indian account holder.
On September 25, the judge in the case, Judge Lamberth, issued a
decision that guarantees more years of litigation and, by all
estimates, billions more dollars spent, and no end in sight to the
lawsuit.
With appeals, congressional squabbling over money and further
lawsuits aimed at securing money damages, the case is just beginning.
The Department claims that pennies on the dollar are owed the
plaintiffs, but without billions more spent on accounting activity, it
cannot say for sure how much is in the accounts.
Cost estimates from the Interior Department suggest that it will cost
$10 to $12 billion to comply with Judge Lamberth's order, money that
will be spent year after year through fiscal year 2008 at least.
I believe this money is better spent on reconstituting the Indian
land base, building a forward-looking, state-of-the-art trust
management system, and providing more dollars to Indian health care and
education, which we know are underfunded.
The plaintiffs claim more than $175 billion dollars should be in
these accounts, a number the Department vigorously contests.
Last Monday night, the Interior Appropriations Committees intervened
in the case by adding a rider that will delay the accounting order by
the judge conceivably until the end of 2004. Because of the enormous
cost of an accounting, I believe the appropriators' intervention will
only get worse in the future.
Two weeks ago, along with Senators Inouye and Domenici, I introduced
S. 1770, the Indian Money Account Claim Satisfaction Act of 2003, to
reach a legislated settlement of the case. A hearing was held on
October 29, 2003.
I do not support the Cobell rider, and I want to make that clear. I
do support a legislated settlement to the case, and I say to those who
have come to the floor: If you are serious about settling this matter,
join me and Senators Inouye and Domenici in our efforts.
At the hearing on the 29th, it appears both the Department and the
plaintiffs are willing to move ahead with mediation of this case, and I
fully support that and will be doing everything in my power to make
sure that happens.
If you are not serious, continue on the current course.
I thank the Chair.
Mr. BAUCUS. Mr. President, I rise today to support the conference
report accompanying H.R. 2691, the Interior Appropriations bill of
2004, because of the $2.5 billion for firefighting, $400 million to pay
back Federal agencies for fire costs in 2003, and $50 million included
for important Montana projects.
These important funds will help care for Montana's public lands,
parks and wildlife and they will help boost our state's economy.
This bill also provides a good step towards establishing a permanent
firefighting fund so Federal agencies don't have to borrow from other
accounts to pay for firefighting costs, which halts important
restoration and salvage projects.
This fire season alone the Forest Service was forced to take $695
million from other accounts, the Department of the Interior $165
million, to fight fires after the agencies' firefighting budgets dried
up for fiscal year 2003.
I must support this conference report to ensure that Montana lands
are conserved for future generations and protected from unnecessarily
high fire threats.
However, my support for this bill is not without reservation. The
historical accounting language included in this conference report
essentially states that the Department of Interior may not comply with
Judge Lamberth's order without consequence for one year.
I am not happy about how this came about though. Riders--especially
on an issue this important--are no way to legislate. Indian trust
accounting must be resolved in a collaborative way, in the light of day
where all parties can come to the table. Eight years ago, Eloise Cobell
started her battle to champion the cause for accountability of Indian
Trust monies. Ultimately she won when Federal District Court ruled that
the United States government had breached its trust obligations to
hundreds of thousands of American Indians and that the government
should be compelled to provide a comprehensive historical accounting.
While indeed the cost of the accounting is expensive, it is crucial to
balance the cost with due respect for the District Court order. This
rider now attempts to modify the court order Eloise Cobell fought so
hard to win. Legislating away the district court decision may only
invite further litigation. Hopefully, there will be a meaningful
settlement in the interim.
I am committed to working together to get this resolved. And in the
coming days and weeks, I will be doing all I can to ensure Montana
tribes are at the table as these talks continue.
Mr. DODD. Mr. President, I rise to express my concerns about language
included in the Interior Appropriations Conference Report that I
believe is unfair to Native Americans--specifically, those Native
Americans who have been waiting years for an accounting from the Tribal
Trust.
While no tribes in Connecticut are directly impacted by this
language, many others throughout Indian Country are. In my view, the
provision contained in this conference report undermines the
expectations of all Americans who believe that the Federal Government
should abide by the rule of law when the Government administers Federal
programs and initiatives.
Since 1996, the Department of the Interior has been engaged in a
legal battle with Native Americans who want the Department to provide a
full accounting of money owed to Indians by the Department. The
conflict grew out of the Department's continuous mismanagement of
Indian oil royalties, grazing fees and the like for more than a
century. As many as half a million Native Americans have been
wrongfully denied monies that are owed to them. It appears that the
Department may have squandered billions of dollars over the course of
the last 116 years. Money that should have gone to Indian education and
housing, healthcare and community development was instead wasted.
Recently, U.S. District Judge Royce Lamberth ordered the Department
to account for all royalties owed to Native Americans. Judge Lamberth
also held the Secretary in contempt of court, because he believed that
the Department had not been completely forthcoming about how the
Department was working to resolve the dispute. The contempt ruling was
overturned on appeal; but needless to say, this conflict has been
heated.
Now, this conference report arrives here before the Senate with
language that would delay a lawful judicial order rendered by Judge
Lamberth and language that would prevent Judge Lamberth from issuing
further contempt orders against the Secretary, regardless of the merits
of any such order.
I am told that the Senate Legal Counsel has expressed concerns about
the constitutionality of the new language because it essentially
legislates a judicial outcome by telling a Federal judge how to
interpret the law.
I am opposed to the inclusion of this provision. It is my hope that
the Senate will take steps to mitigate against the damage that this
language may cause.
Too many Native Americans have already waited too long for justice.
Requiring them to wait longer serves no valid public policy and is
simply wrong.
Mr. REID. Mr. President, is there time still on the bill?
The PRESIDING OFFICER. The majority still controls 24 minutes.
Mr. REID. If the majority is willing to yield back their time, we can
vote.
The PRESIDING OFFICER. Who yields time?
Mr. REID. Senator Burns said he will yield back his time.
The PRESIDING OFFICER. Is all time yielded back? The Senator from
Montana.
Mr. BURNS. Mr. President, I assume that the minority leader----
Mr. REID. He will speak after the vote.
Mr. BURNS. I yield back the remainder of my time and ask for the yeas
and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to the conference report. The clerk will
call the roll.
[[Page S13790]]
The legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Utah (Mr. Hatch), the
Senator from Alaska (Ms. Murkowski), and the Senator from Wyoming (Mr.
Thomas) are necessarily absent.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the
Senator from New Jersey (Mr. Corzine), the Senator from North Carolina
(Mr. Edwards), the Senator from Florida (Mr. Graham), the Senator from
Massachusetts (Mr. Kerry), the Senator from Connecticut (Mr.
Lieberman), the Senator from Georgia (Mr. Miller), and the Senator from
Maryland (Mr. Sarbanes) are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``nay.''
The PRESIDING OFFICER (Mr. Coleman). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 87, nays 2, as follows:
[Rollcall Vote No. 433 Leg.]
YEAS--87
Akaka
Alexander
Allard
Allen
Baucus
Bennett
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carper
Chafee
Chambliss
Clinton
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
Dayton
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Harkin
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Pryor
Reed
Reid
Roberts
Rockefeller
Santorum
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Voinovich
Warner
Wyden
NAYS--2
Bayh
Daschle
NOT VOTING--11
Biden
Corzine
Edwards
Graham (FL)
Hatch
Kerry
Lieberman
Miller
Murkowski
Sarbanes
Thomas
The conference report was agreed to.
Mr. BURNS. Mr. President, I move to reconsider the vote.
Mr. BOND. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BURNS. Mr. President, again, I express my gratitude to all of
those who contributed to this appropriations bill. There are many in
this body, in fact too many to mention. But Senator Dorgan and I
appreciate their cooperation. We think it is a good bill.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DASCHLE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DASCHLE. Mr. President, I come to the floor to express my
objection to a provision in the conference report the Senate just
passed regarding management and accounting of the American Indian trust
fund.
Just over a month ago, on September 25, U.S. District Court Judge
Royce Lamberth ordered the U.S. Department of the Interior to conduct a
full and accurate historical accounting of the assets held in trust by
the Department for hundreds of thousands of individual American Indian
account holders. In his ruling, Judge Lamberth charged that the
Interior Department's handling of the Indian trust funds ``has served
as a gold standard for mismanagement by the federal government for more
than a century.''
The trust fund language inserted into this conference report--behind
closed doors--would stay Judge Lamberth's decision. It would
effectively halt the Cobell v. Norton lawsuit and further delay justice
for 300,000 to as many as a half-million Indian trust fund account
holders. This provision is unconstitutional and, I believe,
unconscionable.
Partly because so many Americans Indians live on remote reservations,
not many Americans understand what the Indian trust fund dispute is
about. This dispute stretches back to the 1880s, when the U.S.
government broke up large tracts of Indian land into small parcels of
80 and 160 acres, which it allotted to individual Indians. The
government, acting as a ``trustee,'' then took control of these lands
and established individual accounts for the land owners. The government
was supposed to manage the lands. Any revenues generated from oil
drilling, mining, grazing, timber harvesting or any other use of the
land was to be distributed to the account holders and their heirs.
The government has never--never--lived up to its trust fund
responsibilities. The Indian trust fund has been so badly mismanaged,
for so long, by administrations of both political parties, that today,
no one knows how much money the trust fund should contain. Estimates of
how much is owed to individual account holders range from a low of $10
billion to more than $100 billion. As Tex Hall, president of the
National Congress of American Indians has said, ``This is the Enron of
Indian Country.'' In fact, it may well be bigger than Enron.
The people who are being denied justice in this case include some of
the most impoverished people in all of America. More than 68,000 are
enrolled members of South Dakota, North Dakota and Nebraska tribes.
Some live in homes that are little more than shacks, with no
electricity and no running water. They are being denied money that is
rightfully theirs--money they need, in many cases, to pay for basic
necessities.
The court has ordered an accounting. This rider will undermine that
order. It will delay resolution and delay justice. What other group of
Americans would we dare to treat this way? I don't know of one, Mr.
President. Why target American Indians? Many account holders are older
people, ``elders'' who have suffered extreme economic deprivation their
entire lives. If this rider staying Judge Lamberth's ruling becomes
law, as I expect it will, many of them may not live long enough to see
justice. This is shameful.
When the Senate debated the Interior appropriations bill, several of
us offered an amendment that would have strengthened accountability for
the Indian trust fund. Instead, unbelievably, the provision in this
conference report would weaken accountability of the trust fund.
Judge Lamberth's decision directed the Secretary of the Interior to
conduct a full and fair historical account of the trust. Such an
accounting is the first, critical step in reaching a fair resolution to
the Indian trust fund dispute.
The mismanagement of the Indian trust fund is a national disgrace. It
stretches back generations and, as I have said on numerous occasions,
administrations of both parties share the blame. In the seven years
since the Cobell lawsuit was filed, Congress has appropriated hundreds
of millions of dollars on litigation-related activities. This is money
that is desperately needed and would have been much better spent
funding health and education and housing programs in Indian Country.
In addition to the gross injustice, there are three additional
aspects of this provision that are deeply troubling.
First, this rider is unconstitutional. By telling the court how it
must construe existing law, Congress would be violating the
constitutional separation of powers. In addition, by denying account
holders a full accounting of their trust fund monies and other assets,
this rider constitutes a taking of property without just compensation
or due process of law.
Second, there has been virtually no public debate or discussion of
this rider. It was drafted without any consultation with tribes, with
plaintiffs in the Cobell Indian trust fund lawsuit or with the
membership of the Congressional committees of jurisdiction. This rider
ignores the government-to-government relationship between tribes and
the Federal Government, and is almost universally opposed in Indian
Country. Since any effective, long-term solution to the trust fund
problem must be based on government-to-government dialogue, this rider
is likely to prove deeply counter-productive.
[[Page S13791]]
Last week, the Senate Indian Affairs Committee held a hearing on a
settlement bill where both parties agreed to mediation. The House
Resources Committee has been holding field hearings on settlement. This
is the way the trust fund dispute should be resolved--not in back-room
deals.
Third and finally, this provision perpetuates a shameful pattern of
neglect of American Indians and tribes and a failure of the Federal
Government to meet its legal and moral obligations to them.
Mr. President, there's another shameful truth about this bill--and
that is what is not in it.
Earlier this month, during Senate debate on the Interior
appropriations bill, Democrats offered an amendment to address a
critical funding shortfall for the Indian Health Service--a shortfall
so acute that Indian people are frequently turned away from IHS clinics
and hospitals unless they are literally in danger of losing a life or
limb. They are denied earlier, less expensive care that might prevent
such a dangerous condition in the first place.
We asked our Republican colleagues to restore the $292 million that
they had promised, during the budget debate, to support. They refused.
The actual shortfall in IHS clinical services is over $2.9 billion. And
our colleagues refused to provide one-tenth of that amount in this
bill. They refused to support one-tenth of what is needed to provide
basic health services to American Indians.
Our Republican colleagues said they agreed on the need for better
health care for Indian people; they said they agreed that much of the
care being denied is truly essential; but they said, we simply can't
afford to do more. Given some of the spending we've seen lately, that
excuse rings pretty hollow to Indian people. And it rings pretty hollow
to me, too.
We spend twice as much on health care for Federal prisoners as we
spend for American Indians. The Indian Health Service has to ration
care because of lack of funding. That is inexcusable.
Despite these deep flaws with the Indian trust fund and the Indian
Health Service, the Senate has approved this rider, in part because
this conference report contains many other programs that are urgently
needed. But this is not the end. This in no way absolves the Interior
Department of its legal and moral obligation to restore integrity to
trust fund management as soon as possible. We will continue to press
for a full and fair accounting of all assets in the Indian trust funds.
And we will continue to push for full funding of Indian health care. It
is long past time that we keep the promises we have made to American
Indians and tribes.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LOTT. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________