[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.

                          ____________________