[Senate Report 104-362]
[From the U.S. Government Publishing Office]
Calendar No. 581
104th Congress Report
SENATE
2d Session 104-362
_______________________________________________________________________
PROVIDING FOR CERTAIN BENEFITS OF THE MISSOURI RIVER BASIN PICK-SLOAN
PROJECT FOR THE CROW CREEK SIOUX TRIBE, AND FOR OTHER PURPOSES
_______
September 9, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. McCain, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1264]
The Committee on Indian Affairs, to which was referred the
bill (S. 1264) to provide for certain benefits of the Missouri
Basic Pick-Sloan project to the Crow Creek Sioux Tribe, and for
other purposes, having considered the same, reports favorably
thereon with an amendment in the nature of a substitute and
recommends that the bill as amended do pass.
purpose
The purpose of S. 1264 is to provide certain benefits to
the Crow Creek Sioux Tribe which were authorized in Public Law
87-735 to provide for the mitigation of the effects of the Fort
Randall and Big Bend Dam projects on the tribe's reservation,
but which the United States failed to provide in whole or in
part.
background
The Crow Creek Sioux Tribe resides on a 258,361 acre
reservation in central South Dakota. The Missouri River
overlies the reservation's western boundary, and its rich
bottomlands for generations provided the tribe with food,
water, wood for shelter and fuel, forage for cattle and
wildlife, and plants used for medicinal purposes. Construction
of Fort Randall and Big Bend Dams, authorized by the Flood
Control Act of 1944, resulted in the inundation of over 15,000
acres of these bottomland resources and the permanent loss of
the subsistence economy based on those resources.
Fort Randall Dam, which the Army Corps of Engineers began
constructing in 1946, flooded 9,154 acres of bottomland, over
one-third of which was forested. It flooded Fort Thompson, the
reservation's largest community, forcing eighty-four families,
constituting 34 percent of the tribal membership, to be
relocated. It caused the Bureau of Indian Affairs (BIA) to
relocate its agency headquarters from that site to Pierre,
South Dakota, fifty miles from the reservation, and the Indian
Health Service (IHS) to move its hospital at Fort Thompson
twenty miles south to Chamberlain, South Dakota. These
facilities were now located over ninety miles from remote parts
of the reservation, creating great hardship on the Crow Creek
Sioux, whose transportation facilities were severely limited.
The Big Bend Dam, which the Corps of Engineers began
constructing in 1960, resulted in the flooding of another 6,179
acres and the relocation of twenty-seven additional families.
These Damages affected 5 percent of the reservation's land base
and 11 percent of its population. Approximately one-fourth of
the tribe's remaining farms and ranches were also flooded. The
government's handling of the Fort Randall relocations was
apparently not well-thought out, because families on both the
Crow Creek and the Lower Brule reservations were relocated on
lands within the projected area of the Big Bend Dam, and as a
result, these families were subsequently forced to undergo the
trauma of yet another move.
The Committee's hearing record includes a detailed history,
developed by the Historical Research Associates, Inc., of the
legal battles over the Corps of Engineers' efforts to take
Indian lands for Missouri River Dam construction by eminent
domain, and the efforts by the Crow Creek Sioux and other Sioux
Tribes affected by the Dams first to stop construction, and,
failing that, to obtain compensation for Damages and relocation
costs. A synopsis of that history is set forth below.
In 1962, in enacting the Big Bend Recovery Act (Public Law
87-735), which provided for the purchase of land for Big Bend
Dam (two years after construction began), the Congress
acknowledged the adverse impacts of the Fort Randall and Big
Bend projects on the Crow Creek people, and directed the Corps
of Engineers to replace lost infrastructure, tribal and Federal
government facilities, schools, hospitals, a community center,
and road and utilities. However, as a result of subsequent
funding decisions by the Corps of Engineers and the lack of
coordination between the Corps and the BIA, these directives
were either carried out inadequately, or not at all.
s. 1264 and substitute amendment
The benefits that S. 1264 would provide the Crow Creek
Sioux Tribe are similar to those provided for in the Three
Affiliated Tribes and Standing Rock Sioux Tribe Equitable
Compensation Act of 1992. That Act established trust funds for
the tribes of the Fort Berthold and Standing Rock Reservations
and funded them with receipts of deposits from the Missouri
River Basin Pick-Sloan program to compensate the tribes for the
inundation of their lands. The amount of compensation was based
on the recommendations of an extensive study by a joint
Federal-tribal advisory committee, known as the Garrision Unit
Joint Tribal Advisory Committee, of the impacts of the
government's taking of over 300,000 acres of tribal lands for
Garrison Dam and Reservoir and Oahe Dam and Reservoir as part
of the Missouri River Basin Pick-Sloan program.
The substitute amendment to S. 1264 establishes a Crow
Creek Sioux Tribe Infrastructure Development Trust Fund in the
U.S. Treasury in which will be deposited, on an annual basis
beginning in fiscal year 1997, an amount equal to 25 percent of
the receipts of the deposits to the Treasury for the preceding
fiscal year made by the integrated programs of the Missouri
River Basin Pick-Sloan program, administered by the Western
Area Power Administration, until the aggregate of the amounts
deposited is equal to $27,500,000. The Secretary of the
Treasury is authorized and directed to invest these amounts in
interest-bearing obligations of the United States or in
obligations guaranteed as to both principal and interest by the
United States.
Once the aggregate amount has been deposited in the Fund,
the Secretary of the Treasury is authorized to transfer any
interest which has accrued on the amounts deposited in the Fund
into a separate account established by the Secretary in the
Treasury, and thereafter, to transfer any funds in that account
to the Secretary of the Interior for purposes authorized in S.
1264, without fiscal year limitation on the availability of
such funds. In turn, the Interior Secretary is authorized to
make payments to the tribe, but the payments can only be used
by the tribe for carrying out projects and programs pursuant to
a plan for socioeconomic recovery and cultural preservation,
and no payments may be distributed to any member of the tribe
on a per capita basis.
The plan is to be developed by the Bureau of Indian
Affairs, the Indian Health Service and the Crow Creek Sioux
Tribe, is subject to the approval of the Crow Creek Tribal
Council, and must be submitted to the Congress no later than
two years following the enactment of S. 1264. The plan must
include the following programs and components: (1) an
educational facility to be located on the tribe's reservation;
(2) a comprehensive inpatient and out-patient health care
facility to provide essential services that are needed and
which are unavailable through existing facilities of the Indian
Health Service on the Crow Creek Reservation; (3) the
construction, operation and maintenance of a municipal, rural
and industrial water system for the reservation; (4)
recreational facilities suitable for high-density recreation at
Lake Sharpe at Big Bend Dam; and (5) other projects and
programs for the educational, social welfare, economic
development, and cultural preservation of the tribe as the
Interior Secretary considers appropriate.
synopsis of historical background \1\
The Pick-Sloan Project, a compromise of the separate water
resource programs developed by Colonel A. Pick of the Corps of
Engineers and William G. Sloan of the Bureau of Reclamation,
concerned the development of flood control measures to protect
the lower Missouri Basin (Pick Plan) and the construction of
irrigation facilities to the upper Missouri Basin (Sloan Plan),
and was developed in response to the urgent demand for federal
action that followed the devastating Missouri River floods of
1942 and 1943.
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\1\ Synopsis of historical background is drawn from a report of the
Historical Research Associates, Inc. prepared for the Crow Creek Sioux
Tribe by Michael L. Lawson, Ph.D., on August 18, 1995, entitled ``An
Analysis of the Impact of the Pick-Sloan Plan on the Crow Creek Sioux
Tribe and of the Need for Federal Legislation to Address These
Impacts.''
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Officially labelled the Missouri River Basin Development
Program, the Pick-Sloan Plan was gradually expanded to include
the construction of 150 multiple-purpose reservoir projects. In
addition to flood control, these dams were designed to provide
the benefits of hydroelectric power, navigation, recreation,
and improved water supplies. The backbone of the Pick-Sloan
Plan was provided by the six massive dams constructed by the
Corps of Engineers on the main stem of the Missouri River; two
of which (Fort Peck and Oahe) rank among the largest earth dams
in the world. Together, these six projects inundated over 550
square miles of Indian land and displaced more than 900 Indian
families.
Many of the problems encountered by the affected tribes and
their tribal members came as a result of the Federal
government's failure to provide an adequate administrative
structure for the Pick-Sloan Plan. In response to the
apparently overwhelming opposition to the creation of a
Missouri Valley Authority, the Truman Administration placed the
program under the rather loose-knit coordination of the
Missouri Basin Inter-Agency Committee (MBIAC), a nonstatutory
body.
The Inter-Agency Committee took a piecemeal approach to
Missouri Basin problems and was preoccupied with engineering
methods that did not allow for adequate consideration of such
important human factors as the condemnation of farms and
ranches and the relocation of families. The Army Corps of
Engineers had little in their training or backgrounds that
prepared them to deal knowledgeably with Native Americans, and
the Federal agency usually charged with that responsibility,
the Bureau of Indian Affairs (BIA), was hampered during this
period by a severely reduced budget and the threat of being
abolished altogether by those in Congress who supported the
``termination'' of the government's trust responsibilities for
Indian lands and resources.
While a more centralized administrative structure, such as
that proposed for the Missouri Valley Authority, might have
received an annual block appropriation for all of its
activities and functions, the numerous agencies involved with
Pick-Sloan had to deal with several separate committees in
Congress for funding of their particular part of the overall
program. This meant that the Army often received generous
amounts for dam construction during years when the Sioux tribes
were not able to receive appropriations for their necessary
relocation nor compensation for their losses. Because of this
lack of coordination, tribal members were systematically denied
most of the important benefits offered by Pick-Sloan and their
efforts at reconstruction fell far short of their needs.
The Sioux Tribes knew little of the Pick-Sloan Plan until
long after it had been approved. Although existing treaty
rights provided that land could not be taken without their
consent, none of the tribes were consulted prior to the
program's enactment. The Bureau of Indian Affairs was fully
informed, yet made no objections to the plan while it was being
debated in Congress in 1944. The Bureau of Indian Affairs did
not inform the tribes of the damages they would suffer until
1947. The Corps of Engineers was so confident that it could
acquire the Indian land it needed through Federal powers of
eminent domain that it began construction on its dams,
including those actually on reservation property, even before
opening formal negotiations with the tribal leaders. The
legislation establishing the Pick-Loan Plan did not address the
Indians' reserved water rights under the Winters Doctrine.
In 1947, the Bureau of Indian Affairs made its first effort
to represent tribal interests within the Missouri Basin Inter-
Agency Committee. To assess fully the damages to Indian land
resulting from Pick-Sloan, the BIA organized the Missouri River
Basin Investigations Project (MRBI) within the structure of its
regional office at Billings, Montana. Initially this agency was
given the task of conducting both extensive reservation surveys
and appraisals to estimate replacement costs as well as social
and economic damages resulting from inundation. Later the MRBI
was also assigned to help tribes gain equitable settlements and
to assist relocation and reconstruction activities.
By the time the first MRBI staff members reached the field,
the Corps of Engineers had spent approximately $28 million on
the preliminary constructions of three of its main-stem
projects, including the Fort Randall Dam. A significant portion
of the reservoir to be developed behind Fort Randall Dam, Like
Francis Case, would flood Crow Creek reservation land and
communities. Initial MRBI findings were not published until
1949, by which time the Corps had spent an additional $37.5
million on construction. Yet, it was not until these early MRBI
appraisals were made available that the Crow Creek Sioux
learned the full effect of Pick-Sloan on their reservation.
Construction of the Fort Randall Dam began in May of 1946.
This project was located downstream of the Crow Creek Indian
Reservation, 100 miles southeast of Crow Creek and just above
the Nebraska line in south-central South Dakota. When it was
completed in 1969, Fort Randall provided a water storage
capacity of 5.7 million acre-feet and a maximum hydroelectric
power output of 320,000 kilowatts. The reservoir behind the dam
stretched over 107 miles. Fort Randall was built with compacted
earth fill, as were other army projects on the Missouri. Like
Garrison and Oahe dams, it featured a relatively high-head dam
(160 feet) and a chute-type spillway designed to release
excessive flows. Although the Corps of Engineers estimated this
project would cost $75 million in 1944, it ultimately cost more
than $200 million.
The Fort Randall Dam flooded 22,091 acres of Sioux land and
dislocated 136 Indian families. Of the tribes affected, the
Crow Creek Sioux were the hardest hit. Its tribal members lost
9,514 acres of precious bottomland, over one-third of which was
forested. Eighty-four families, representing approximately 34
percent of the reservation population, were forced to evacuate
their riverside homes and to accept land ill-suited for houses,
ranches, or farms. For Thompson, the reservation's largest
community, was completely inundated. The BIA agency
headquarters there, which also served the Lower Brule Sioux,
was moved fifty miles from the reservation to Pierre, the
capital city of South Dakota. The Indian Health Service
hospital was moved twenty miles south to Chamberlain. These
facilities were now located over ninety miles from remote parts
of the reservations. Because tribal offices remained on Indian
land, it was no longer possible for the Crow Creek Sioux to
take care of their BIA, public-health, and tribal business
needs on the same day at the same location. For a people whose
transportation facilities were severely limited, this situation
created an immense hardship.
While the Crow Creek Sioux were sustaining major damages
from the Fort Randall project, the Corps of Engineers began
work on the Big Bend Dam in September 1959. This project was
located near the new townsite of Fort Thompson on land
belonging to the Crow Creek and Lower Brule Tribes. The
smallest of the Army's main-stem structures, Big Bend was
developed primarily for hydroelectric power production. Taking
advantage of the long bend in the river for which it named,
engineers built a dam that produced 468,000 kilowatts and was
just ninety-five feet high.
The Big Bend project took an additional 21,026 acres of
Sioux land. Crow Creek tribal members lost 6,417 acres to the
dam project and were forced to move twenty-seven families.
These damages affected 5 percent of the reservation's land base
and 11 percent of its population. Approximately one-fourth of
the tribe's remaining farms and ranches were also flooded. The
government's handling of the Fort Randall relocations was
apparently not well-thought out, because families on both the
Crow Creek and the Lower Brule Reservations were relocated on
lands within the projected area of the Big Bend Dam, and as a
result, these families were subsequently forced to undergo the
trauma of yet another move.
Because their families and most important resources were
concentrated near the Missouri River, resettlement devastated
affected members of the Crow Creek Sioux Tribe. The natural
advantages of their former homes could not be replaced on the
marginal reservation lands that remained after inundation. The
shaded bottomlands had provided an environment with plenty of
wood, game, water, and natural food sources. Livestock grazed
on abundant grasses and took shelter under the trees. The
barren upland regions to which the Crow Creek people were
forced to move were less hospitable, more rigorous, and
presented far greater challenges to their survival.
The bottomlands were critically important to the way of
life of the Crow Creek people. Trees along the river had
provided them with their primary source of fuel and lumber. The
wooded areas also provided protection from the ravages of
winter blizzards and the scorching summer heat. The gathering
and selling of wood helped supplement their small cash income.
The flooding of the forestlands destroyed the vast majority of
timber on their reservation.
The gathering and preserving of wild fruits and vegetables
was a traditional part of the culture of the Crow Creek Sioux.
Traditionally, they were also used for ceremonial and medicinal
purposes. The loss of these and other plants greatly reduced
the Crow Creek's natural food supply.
The wooded bottomlands also served as a shelter and feeding
ground for many kinds of wildlife. Deer, beaver, rabbits, and
raccoons were abundant year-round, and numerous pheasants and
other game birds wintered there each year. The hunting and
trapping of this game provided the Crow Creek Sioux with an
important source of food, income, and recreation. Wild fruit,
including chokecherries, buffalo berries, gooseberries, and
currants were readily available for picking. Destruction of
this environment by the Pick-Sloan dams reduced the wild game
and plant supply on the reservation by 75 percent.
The loss of the bottomland grazing areas seriously crippled
the livestock industry on Crow Creek. Ranching had become the
primary economic activity on the reservation in the years prior
to Pick-Sloan. A substantial number of Indian ranchers were
forced either to liquidate their assets altogether or to
establish smaller operations on the inferior reservation land
that remained.
The upland regions also presented a stiff challenge for
Indian homeowners. The nature of the soil and terrain made
irrigation impractical if not impossible, while the Pick-Sloan
project flooded the most potentially irrigable lands. The Fort
Randall and Big Bend projects, for example, destroyed the
possibility of implementing plans proposed jointly by the BIA
and the Bureau of Reclamation for sizable irrigation projects
on the Crow Creek Reservation.
Initial efforts to achieve settlement of tribal claims
Realizing they were powerless to stop the dams, Sioux
tribal leaders were determined, nevertheless, to negotiate for
payments and benefits which would allow them to fully utilize
their remaining resources. In light of the congressional debate
over the termination of Federal trust responsibilities, they
also sought compensation that might permit them to make
progress toward self-sufficiency, a goal established previously
by the administration of Commissioner John Collier between 1933
and 1945. Thus, tribal negotiators reasoned that a generous
settlement might include the development of new programs and
facilities for health, education, housing, community growth,
and employment. They also hoped for such direct benefits from
the dam projects as low-cost electrical power, irrigation, and
improved water supplies.
The Crow Creek Sioux Tribe was hampered in its initial
efforts to obtain legal counsel, because the Indian
Commissioner, Dillon S. Meyer, refused to grant his necessary
approval of a tribal contract with first one, and then a second
attorney proposed by the tribe. The American Civil Liberties
Union provided funds for lawyers to serve as unofficial tribal
representatives in preliminary negotiations that began in 1952,
but eventually, the tribe felt compelled to find an attorney
who met Commissioner Meyer's approval, settling on M.Q. Sharpe,
a local lawyer previously engaged by the Lower Brule Sioux and
the former governor of South Dakota. As chairman of the
Missouri River States Committee, Sharpe had been a leading
advocate of the Army's main-stem Missouri River projects during
the 1944 congressional debate on the Pick-Sloan Plan.
Recognizing its obligation to ensure that the Sioux tribes
affected by Pick-Sloan received just compensation, in 1950, the
Congress authorized the Corps of Engineers and the BIA to
negotiate separate settlement contracts with representatives of
the Standing Rock and Cheyenne River Sioux Tribes. In addition
to providing payment for all damages, these agencies were
directed to cover the costs of relocating tribal members ``so
that their economic, social, and religious life can be
reestablished and protected.'' Each of the agencies was
required to prepare a detailed analysis of damages, and in the
event that they could not reach a satisfactory agreement in the
field, the Congress was to legislate a final settlement.
The Crow Creek Tribe petitioned in 1951 for prompt
enactment of similar settlement procedures for their
negotiations, but Congress did not act until 1954. In the
meantime the tribes were not idle. Meetings were held on the
reservations to discuss contract terms, negotiating committees
were appointed, and contracts for legal counsel were finally
approved. Damage appraisals were prepared by both the Army and
the BIA; MRBI staff members conducted socioeconomic surveys;
and tribal lands were inspected by Commissioner Meyer.
In 1951, the BIA announced that because of the Fort Randall
project, it planned to move its facilities at Fort Thompson,
which served both the Crow Creek and Lower Brule Tribes, to the
non-Indian community of Chamberlain, South Dakota. It also
proclaimed that all schools on the reservations would be closed
and students would be transferred to nearby public
institutions. Hospital facilities at Fort Thompson had already
been moved to Chamberlain the previous year.
The tribe vehemently opposed those decisions, which it
viewed as an initial step toward termination of Federal trust
services. Tribal leaders protested that the relocation plan
would create undue hardship, especially since they felt
strongly that the citizens of Chamberlain were prejudiced
toward tribal members. In a petition to D'Arcy McNickle of the
BIA's Tribal Affairs office, they asked that the decision be
reconsidered.
In a letter to Herbert Wounded Knee, Crow Creek Tribal
Chairman, Commissioner Meyer denied that an official decision
had been made concerning the Fort Thompson facilities. He
assured the tribal leader that the Bureau of Indian Affairs had
no intention of either ignoring tribal desires or depriving
tribal members of their rights, but in executive conference
with other BIA administrators on February 1, 1952, the
Commissioner reaffirmed the earlier decisions. On July 21,
1952, the gates of Fort Randall Dam were closed, and by the end
of the year portions of the Crow Creek Reservation were under
water, while the tribe still awaited the initiation of
settlement talks. Negotiations were finally opened at Fort
Thompson on March 9, 1953.
The Corps of Engineers offered the Crow Creek negotiators
$375,613 for their land and improvements. This settlement was
based on an appraisal made by the Corps' Real Estate Division,
BIA officials offered $399,313, an amount reached by MRBI
appraisers. When tribal attorney Sharpe asked Corps officials
if they would accept the higher MRBI figures, they refused. The
Corps then threatened to take the land by condemnation if an
agreement could not be reached quickly. Several other meetings
were held during the next few months, but all failed to bring
the parties closer to settlement.
Army attorneys began preparing condemnation suits for the
taking of the Crow Creek land without waiting for further
developments. They claimed that the rising pool level of the
Fort Randall reservoir and the long delay of Congress in
establishing settlement guidelines left them no alternative.
The tribe was assured that 90 percent of the appraised value of
tribal property would be made immediately available to it
through the Federal courts, and that this legal action would in
no way affect the eventual settlement from Congress. On June 1,
1953, a tentative agreement between the Army and the tribe's
attorney was reached which included the tribe's right to use
the land free of charge until a final settlement could be
reached and the retention of all mineral rights within the
reservoir area.
On August 4, 1953, the Army filed suit in the United States
District Court of South Dakota in an attempt to obtain title to
lands on the Crow Creek and Lower Brule reservations. The
action went unchallenged, the Court passed favorably on the
condemnation request, and the Corps of Engineers again
succeeded in circumventing its legal obligations to the
Indians. Despite previous agreements, an amount equal to the
Army's land appraisal rather than that of the BIA was deposited
with the Court, but this money was never distributed to the
tribes. The United States District Attorney's office failed to
file a declaration of taking, which would have given the Army
full title to the land, before the Congress finally passed a
law establishing legal guidelines for the Fort Randall
negotiations in July 1954. This act required Federal
representatives to open new talks with the tribes. When these
negotiations failed to bring about an agreement by 1955, the
Justice Department permitted the Army to proceed with its
original condemnation suits.
The Fort Randall settlement
By 1954, construction of the Fort Randall Dam was 84
percent complete, all non-Indian land needed for the project
had been acquired, and the pool level of the reservoir was
rising rapidly, while Indian property owners still awaited
Congressional action. Legislation providing a settlement for
the Yankton Sioux and establishing contract guidelines for the
Crow Creek and Lower Brule Tribes was approved on June 6, 1954.
Negotiation guidelines established for the Crow Creek Sioux
were similar to those provided for the Cheyenne River and
Standing Rock Tribes in 1950, with some important exceptions.
The growing urgency of the situation caused the Congress to
shorten time limits for further talks; BIA and Army
representatives were given only a year to obtain a contract
agreement. Despite treaty provisions and precedents established
in earlier settlements with the Fort Berthold and Cheyenne
River Tribes, tribal ratification requirements were lowered
from three-fourths of the adult tribal members to a simple
majority. The Interior Department had recommended this action
in order to expedite approval. The retention of tribal mineral
rights was limited to gas and oil.
New talks with the Crow Creek Sioux Tribe were rekindled in
the autumn of 1954 but ended again in deadlock. The BIA raised
its offer for a property settlement to allow for the increase
in land values since 1951, the year of the last MRBI appraisal.
The Corps of Engineers refused to offer any more than the
amount it had previously deposited with the Federal court in
its condemnation suits of 1953. Although the tribes were
increasingly pressured by the impending flood, they were
determined to hold out for better terms. In the meantime tribal
leaders were compelled by circumstances to make plans for the
evacuation of their lands.
Crow Creek families within the Fort Randall taking area
faced the prospect of having their homes inundated during the
spring runoff of 1955, yet they still had no money with which
to move. Condemnation funds deposited with the court were not
available because the Justice Department had not yet filed a
``declaration of taking'' on the land, and the chances for a
timely congressional settlement appeared increasingly dim.
Because it was anticipated that favorable agreements could not
be reached with BIA and Army representatives, Senator Francis
Case and Congressman E.Y. Berry of South Dakota were asked to
introduce settlement legislation for the tribes in the 83d
Congress. These bills, which proposed $5,686,036 for the Crow
Creek Sioux Tribe, were not considered by the Congress. As a
result, the tribe expected that it would have to use its own
meager funds to help families relocate. During the fall of 1954
tribal leaders began planning for this eventuality.
Following the breakdown of negotiations in November 1954,
both the Army and BIA requested that the Justice Department
carry out the condemnation suits filed in 1953. The Corps of
Engineers wanted clear title to the land, and the Bureau of
Indian Affairs wanted some money dispersed to tribal members
before they were forced to move. As a result, an official
declaration of taking was filed on January 20, 1955. The court
allowed the Army to take the Indian land it needed--the
legality of the suit was not questioned. The Corps of Engineers
later claimed that its action was legal because the settlement
guidelines, established by the Congress in the previous year,
had stipulated that negotiations would not be allowed to
interfere with the scheduled construction of the Fort Randall
project. The Army, however, had filed suit before the
legislation was enacted, and the Act did not authorize the
Corps of Engineers to exercise the rights of eminent domain.
On March 22, 1955, Indian landowners on Crow Creek
Reservation received $399,313 from the Court as partial payment
for their property. The Army had been required to deposit an
additional $23,700 in order to bring payments up to the MRBI
appraisal figures. BIA assistance was requested in the
distribution and expenditure of these funds, and a tribal
committee was formed to plan relocation activities.
The Crow Creek Sioux Tribe, like the Standing Rock Sioux,
was compelled for three more years to pursue a legislative
settlement. New legislation incorporating tribal demands was
introduced in the 84th and 85th Congresses; but despite the
obvious urgency of the settlements, the Congress did not act,
and in the meantime, the Fort Randall project, 99 percent
complete according to Army reports, was officially dedicated on
August 11, 1956.
While legislation was being considered in the Congress, in
January of 1958, an injunctive action was filed on behalf of
the Standing Rock Sioux Tribe in Federal district court to halt
further construction of the Oahe Dam project until an adequate
settlement was negotiated with the tribe, arguing that the
Corps of Engineers did not have the legal authority to condemn
Standing Rock property, citing the Sioux treaty of 1868, which
was reaffirmed by acts of Congress in 1877 and 1889. The acts
proclaimed that land could be taken from the tribe only upon
payment of just compensation and the consent of three-fourths
of its adult membership. The action also sought to establish
that even though the Supreme Court had determined that the
Congress had the right of eminent domain over Indian land as
long as just compensation was provided in accordance with the
Fifth Amendment, the Court had also ruled in at least two cases
that this power rested only with the Congress and could not be
extended to other Federal agencies without express
authorization.
The presiding Judge, George T. Mickelson, a former governor
of South Dakota, decided on March 10, 1958 to uphold the
tribe's motion to dismiss the Army's condemnation suit. In
doing so, he ruled that the Congress had not authorized the
Corps to take Indian lands by any legislative act, including
the Flood Control Act of 1944. ``It is clear to this Court,''
he observed, ``that Congress has never provided the requisite
authority to the Secretary of the Army to condemn this tribal
land. Such action is wholly repugnant to the entire history of
Congressional and judicial treatment of the Indians.''
Six months later, settlement legislation for the Crow Creek
Sioux, the Lower Brule and Standing Rock Sioux Tribes, was
enacted into law. The Crow Creek Sioux finally received
$1,395,812 for their property, including their interest in the
riverbed and all damages caused by the Fort Randall project.
Unlike the Standing Rock Sioux, the tribe was denied
rehabilitation money and the right to regain ownership of any
former property found unnecessary for the project.
Although no limit was placed on moving costs, the tribe was
required to pay all relocation expenses out of settlement
funds. The Standing Rock and Cheyenne River legislation had
provided that such costs would be charged to the Corps of
Engineers' project budget. In addition, the Crow Creek Sioux
did not receive protection for livestock hazards as the
Cheyenne River Tribe had or the right to ratify the final
agreement, nor were they permitted the same degree of autonomy
over control and distribution of settlement funds, relocation
of tribal members, or consolidation of their land.
Of all the Sioux Tribes, only the Crow Creek and Lower
Brule had suffered the hardship of having to move two years
before receiving a settlement, and they alone had been denied
funds for rehabilitating their reservations, although their
poverty was relatively greater. They were also the only tribes
that would face the same ordeal again.
The Big Bend settlement
Even as tribal negotiators were in Washington seeking
compensation for Fort Randall damages, Army crews were out
surveying Crow Creek land for the Big Bend project.
Construction of this dam was scheduled to begin in September
1960, thereby making it necessary for the tribe to negotiate a
settlement by that time if it hoped to avoid losing more land
without adequate compensation. The Corps of Engineers, however,
worked ahead of schedule and ground-breaking ceremonies for the
project took place on May 30.
Legislation for the Crow Creek and Lower Brule Tribes was
not introduced in Congress until March 2, 1960. A week later,
the Corps of Engineers again filed suit in Federal district
court to condemn the 867 acres of Indian land needed for the
actual project site, despite the earlier decision handed down
by the same court in the Standing Rock suit in 1958. Congress
had still not specifically delegated its powers of eminent
domain to the Army, yet the Corps of Engineers was allowed to
take title to the reservation land.
The tribe received a final settlement on October 3, 1962.
The Crow Creek Sioux Tribe was granted $355,000 for its direct
damages (including the loss of the riverbed and gravel),
$209,302 for indirect damages, and $3,802,500 for
rehabilitation: a total of $4,366,802. Moving expenses were
limited to $77,550 and negotiating expenses to $75,000.
Requests for shoreline boundary markers, fire protection, and
unrestricted grazing, hunting, and fishing rights were denied.
The tribe received the same salvage and shoreline rights
provided in all previous Pick-Sloan tribal settlements, subject
to Federal regulation, but with the additional right to lease
shoreline grazing areas to non-Indians if the tribe chose. No
provision was given for special tribal funds to be developed
from these revenues as the tribe had hoped, and the Corps of
Engineers was given the authority to regulate the location,
size, and nature of all lands so used.
Reconstruction
With the passage of the Big Bend settlements in 1962, the
Federal government acquired the last tribal lands needed for
the Pick-Sloan main-stem projects. Over the span of fourteen
years and at a cost of over $34 million, the United States had
obtained title to approximately 204,124 acres of Sioux
property, more Indian land than was taken for any other public
works project in the United States. None of the tribes
considered their compensation adequate. As long and arduous as
the process of negotiating final settlement was, it represents
only the first stage of the Pick-Sloan ordeal for the tribes
affected. Once compensation was received, and benefits and
provisions were outlined by law, or even earlier in the case of
the Fort Randall takings, plans had to be implemented for the
relocation of tribal members and their property, the
reconstruction and restoration of reservation facilities and
services, and the rehabilitation of entire Indian communities.
For the Sioux Tribes, the period of reconstruction was the
most difficult phase of the Pick-Sloan experience. The Sioux
Tribes affected by Pick-Sloan often experienced as much
difficulty in obtaining their funds as the government did in
distributing them. The Crow Creek Sioux had a particularly
difficult time in relocating families from the Fort Randall
reservoir area. Because the tribe only received money from the
Army's condemnation settlement at the time they were forced to
move, its relocation program had to be tailored to fit the
funds available rather than the goal of full reestablishment as
contemplated by the Congress. Aimed at immediate results rather
than comprehensive rehabilitation, its programs failed to
provide for such crucial items as development of satisfactory
water supplies, construction of sufficient housing, or
reestablishment of lost sources of income.
Although the Fort Randall project had been announced a full
decade earlier, neither the Army nor the Bureau of Indian
Affairs was prepared to implement an efficient relocation
program when the time came for the Indians to move. Though it
was clearly their responsibility to do so, neither agency had
bothered to survey the reservations for new homesites or to
investigate the actual cost of building materials. They failed
to keep tribal members fully informed about the relocation
plans affecting them. Kept in uncertainty until the last
possible moment, the tribe was compelled to proceed in haste
when the time came to evacuate its lands.
Tribal families were crowded into temporary quarters until
houses could be relocated and restored. In the chaos that
followed, many were assigned to the wrong tracts of land and
eventually had to move a second time. Shacks that should have
qualified only for destruction had to be moved and repaired
simply because there was not enough money for new housing.
The relocation of government facilities generated
controversy over the selection of a new agency site. In most
cases involving the other tribes affected by Pick-Sloan, the
nearest suitable upland area was designated as the new
relocation site. But crucial BIA facilities serving the Crow
Creek Sioux were moved completely off the reservation. Tribal
facilities and individual residences were relocated from the
Fort Thompson townsite to the nearest convenient upland
locations.
Although the Congress carefully prescribed both the
quantity and quality of replacement structures for the new Fort
Thompson townsite in the Big Bend Settlement Act, the BIA and
the Corps of Engineers failed to fulfill the intent of the
statute. In some cases, the tribe did not get its facilities
replaced or restored adequately or at all. The Corps of
Engineers built a new elementary school, which soon proved to
be inadequate and of poor construction, but the high school was
never replaced. The hospital at Fort Thompson was never
replaced and the Indian Heath Service did not bring a facility
back to the reservation until 1980. Homes were not insulated
sufficiently to endure the rigors of harsh Dakota winters and
water lines for the new homes were placed on the roofs, and
subsequently burst.
legislative history
Senator Daschle introduced S. 1264 on September 20, 1995.
The bill was referred to the Committee on Indian Affairs, and
the Committee held a hearing on S. 1264 on April 25, 1996.
committee recommendation and tabulation of vote
On July 18, 1996, the Committee on Indian Affairs, in an
open business session, considered S. 1264 and ordered it
reported with an amendment in the nature of a substitute, with
a recommendation that the bill, as amended, be passed.
section-by-section analysis
Section 1. This section sets forth the short title of the
Act, which is to be cited as the Crow Creek Sioux Tribe
Infrastructure Development Trust Fund Act of 1996.
Section 2. This section sets forth the findings of the
Congress.
Section (a)(1) expresses the findings of the Congress that
the Congress approved the Pick-Sloan Missouri basin program by
passing the Flood Control Act of 1944 to promote the general
economic development of the United States, to provide for
irrigation about Sioux City, Iowa, to protect urban and rural
areas from devastating floods of the Missouri River, and for
other purposes.
Section (a)(2) expressed the finding of the Congress that
the Fort Randall and Big Bend projects are major components of
the Pick-Sloan program, and contribute to the national economy
by generating a substantial amount of hydropower and impounding
a substantial quantity of water.
Section (a)(3) expresses the finding of the Congress that
the Fort Randall and Big Bend project overlie the western
boundary of the Crow Creek Indian Reservation, having inundated
the fertile, wooded bottom lands of the tribe along the
Missouri River that constituted the most productive
agricultural and pastoral lands of the Crow Creek Sioux Tribe
and the homeland of the members of the tribe.
Section (a)(4) sets forth the finding of the Congress the
Public Law 85-916 authorized the acquisition of 9,418 acres of
Indian land on the Crow Creek Indian Reservation for the Fort
Randall project and Public Law 87-735 authorized the
acquisition of 6,179 acres of Indian land on Crow Creek for the
Big Bend project.
Section (a)(5) sets forth the finding of the Congress that
Public Law 87-735 provided for the mitigation of the effects of
the Fort Randall and Big Bend projects on the Crow Creek Indian
Reservation, by directing the Secretary of the Army to: (A)
replace, relocate, or reconstruct any existing essential
governmental and agency facilities on the reservation,
including schools, hospitals, offices of the Public Health
Service and the Bureau of Indian Affairs, service buildings,
and employee quarters, as well as roads, bridges, and
incidental matters or facilities in connection with such
facilities; (B) provide for a townsite adequate for 50 homes,
including streets and utilities (including water, sewage, and
electricity), taking into account the reasonable future growth
of the townsite; and (C) provide for a community center
containing space and facilities for community gatherings,
tribal offices, tribal council chamber, offices of the Bureau
of Indian Affairs, offices and quarters of the Public Health
Service, and a combination gynasium and auditorium.
Section (a)(6) contains the finding of the Congress that
the requirements of Public Law 87-735, with respect to the
mitigation of the effects of the Fort Randall and Big Bend
projects on the Crow Creek Sioux Indian Reservation have not
been fulfilled.
Section (a)(7) expresses the finding of the Congress that
although the national economy has benefitted from the Fort
Randall and Big Bend projects, the economy on the Crow Creek
Sioux Indian Reservation remains underdeveloped, in part as a
result of the failure of the United States to fulfill its
obligations under Public Law 85-916 and Public Law 87-735.
Section (a)(8) contains the finding of the Congress that
the economic and social development and cultural preservation
of the Crow Creek Sioux Tribe will be enhanced by increased
tribal participation in the benefits of the Fort Randall and
Big Bend components of the Pick-Sloan program.
Section (a)(9) expresses the finding of the Congress that
the Crow Creek Sioux Tribe is entitled to additional benefits
of the Pick-Sloan Missouri River basin program.
Section 3. Section 3 of S. 1264 sets forth the definition
of terms used in the bill.
Section (3)(1) provides that the term ``fund'' as used in
the bill, is intended to mean the Crow Creek Sioux Tribe
Infrastructure Development Fund which would be established
under the authority contained in section 4(a) of the bill.
Section (3)(2) provides that the term ``plan'' as used in
the bill, is intended to mean the plan for socioeconomic
recovery and cultural preservation prepared under the authority
of section 5 of the bill.
Section (3)(3) provides that the term ``program'' is
intended to refeer to the power program of the Pick-Sloan
Missouri River basin program that is administered by the
Western Area Power Administration.
Section (3)(4) provides that the term ``Secretary'' is
intended to refer to the Secretary of the U.S. Department of
the Interior.
Section (3)(5) provides that the term ``tribe'' as used in
the bill, means the Crow Creek Sioux Tribe of Indians, a band
of the Great Sioux Nation recognized by the United States.
Section 4. Section 4 of S. 1264 provides for the
establishment of the Crow Creek Sioux Tribe Infrastructure
Development Fund.
Subsection (a) establishes a fund in the U.S. Treasury to
be known as the ``Crow Creek Sioux Tribe Infrastructure
Development Trust Fund.''
Subsection (b) requires the Secretary of the Treasury to
deposit into the Trust Fund 25 percent of the receipts from the
deposits to the Treasury from the power program of the Pick-
Sloan Missouri River basin program until deposits equal
$27,500,000.
Subsection (c) requires the Secretary of the Treasury to
invest the money in the Trust Fund only in interest-bearing
obligations of the United States or in obligations guaranteed
as to both principal and interest by the United States.
Subsection (d) requires the Secretary of the Treasury,
beginning in the fiscal year immediately following the fiscal
year in which the Trust Fund is fully funded, to transfer any
interest earned on Trust Fund into a separate account which
shall be available, without fiscal year limitation, to the
Secretary of the Interior. The Secretary of the Interior may
only withdraw funds from the account to make payments to the
tribe, which can only use the funds to carry out projects and
programs pursuant to the plan prepared under section 5. No per
capita payments may be made to any tribal member.
Subsection (e) bars the Secretary of the Treasury from
making any withdrawals from the Trust Fund except to make
payments to the Secretary of the Interior to make payments to
the tribe.
Section 5. Section 5 of the bill provides authority for the
development of a plan for socioeconomic recovery and cultural
preservation.
Subsection (a) requires the tribe, within two years of
enactment of the bill, to prepare a plan for use of the funds
to be paid to the tribe by the Secretary of the Interior. In
developing the plan, the tribe must consult with the Secretary
of Department of Interior and the Secretary of the Department
of Health and Human Services. The plan shall identify the costs
and benefits of each of its components.
Subsection (b) requires the plan to include (1) an
educational facility; (2) a comprehensive inpatient and
outpatient health care facility to provide essential services
unavailable through existing facilities of the IHS on the
reservation; (3) the construction, operation and maintenance of
a municipal, rural and industrial water system; (4) facilities
suitable for high-density recreation at Lake Sharpe at Big Bend
Dam and at other locations on the reservation; and (5) other
projects and programs for the educational, social welfare,
economic development, and cultural preservation of the tribe as
the tribe considers appropriate.
Section 6. Section 6 of S. 1264 authorizes the
appropriation of such sums as may be necessary to carry out the
provisions of the bill, including funds for administrative
expenses associated with the Trust Fund established under
section 4.
Section 7. Section 7 of S. 1264 addresses the effect of
payments to the Crow Creek Sioux Tribe.
Subsection (a) provides that no payment to the tribe
pursuant to this Act shall result in the reduction or denial of
any service or program to which, pursuant to Federal law, the
tribe is otherwise entitled because of its status as a
Federally recognized Indian tribe, or to which any individual
tribal member is entitled because of that individual's status
as a member of the Tribe.
Subsection (b) provides that no payment made under this Act
shall affect Pick-Sloan Missouri River basin power rates, and
that nothing in this Act may be construed as diminishing or
affecting any right of the tribe that is not otherwise
addressed in this Act, or any treaty obligation of the United
States.
cost and budgetary considerations
The cost estimate for S. 1264, as amended, as calculated by
the Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 9, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1264, the Crow Creek
Sioux Tribe Infrastructure Development Trust Fund Act of 1996.
Enacting S. 1264 would not affect direct spending or
receipts. Therefore, pay-as-you-go procedures would not apply
to the bill.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
Enclosure.
congressional budget office cost estimate
1. Bill number: S. 1264.
2. Bill title: Crow Creek Sioux Tribe Infrastructure
Development Trust Fund Act of 1996.
3. Bill status: As ordered reported by the Senate Committee
on Indian Affairs on July 24, 1996.
4. Bill purpose: S. 1264 would provide for compensation to
the Crow Creek Sioux Tribe for the taking of tribal lands for
the site of the Fort Randall and Big Bend Dam projects. The
bill would establish an economic recovery fund for the tribe
and make interest earned by the fund available to the tribe for
education, health, maintenance of water systems, and other
purposes.
5. Estimated cost to the Federal Government: CBO estimates
that enacting S. 1264 would create new direct spending
authority of about $1.4 million each year, beginning in fiscal
year 1998. We estimate that the resulting outlays would total
about $4 million over the 1997-2002 period, as shown in the
following table.
[By fiscal years, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Estimated budget authority.................... 0 1.5 1.4 1.4 1.4 1.4
Estimated outlays............................. 0 0.2 0.5 0.8 1.1 1.3
----------------------------------------------------------------------------------------------------------------
The costs of this bill fall within budget function 450.
6. Basis of estimate: S. 1264 would establish a Crow Creek
Sioux Tribe Infrastructure Development Trust Fund, into which
would be deposited an amount equal to 25 percent of the
previous year's receipts from the power program of the Pick-
Sloan Missouri River basin program, with a cap of no more than
$27.5 million. Since the power program's receipts for fiscal
year 1996 are estimated to be greater than $200 million, CBO
expects that the fund would be fully capitalized in fiscal year
1997. This transfer would be intragovernmental and there would
be no outlays associated with such principal deposits.
The bill would direct that the principal be invested in
interest-bearing Treasury obligations. The interest would be
transferred to another account, which the tribe would be able
to use for various purposes. S. 1264 states that the interest
would be made available to the Secretary of the Interior to the
tribe the year after the Infrastructure Development Trust Fund
is fully funded. Assuming a transfer to the fund early in
fiscal year 1997, CBO estimates that interest earnings of about
$1.4 million would be made available to the tribe in fiscal
year 1998 and in each subsequent year. These amounts would be
available for spending without appropriations action. Estimated
outlays of this interest by the tribe are based on historical
spending rates for programs with similar goals and activities
as those stated in the bill.
7. Pay-as-you-go considerations: Section 252 of the
Balanced Budget and Emergency Deficit Control Act of 1985 sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts through 1998. CBO estimates that enacting
S. 1264 would affect direct spending in the form of payments to
the Crow Creek Sioux Tribe from the tribe's Infrastructure
Development Trust Fund. Such payments would begin in fiscal
year 1998, but we estimate that outlays would total less than
$500,000 in that year. The following table summarizes the
estimated pay-as-you-go impact of this bill.
[By fiscal years, in millions of dollars]
------------------------------------------------------------------------
1996 1997 1998
------------------------------------------------------------------------
Change in outlays...................... 0 0 0
Change in receipts..................... (\1\) (\1\) (\1\)
------------------------------------------------------------------------
\1\ Not applicable.
8. Estimated impact on State, local, and tribal
governments: S. 1264 contains no intergovernmental mandates as
defined in the Unfunded Mandates Reform Act of 1995 (Public Law
104-4).
Section 5 of the bill would require the Crow Creek Sioux
Tribe to prepare a plan for using payments from the federal
government authorized by section 4 as a condition of receiving
those payments and would specify a number of elements to be
included in the plan. Based on information provided by the
tribe, CBO estimates that the cost of complying with this
requirement would be about $500,000 over two years. The bill
would not authorize any funds for preparing the plan, but the
annual payments received from the federal government would be
used by the tribe to carry out projects included in the plan.
S. 1264 would impose no other costs on state, local, or
tribal governments.
9. Estimated impact on the private sector: This bill would
impose no new private-sector mandates as defined in Public Law
104-4.
10. Previous CBO estimate: None.
11. Estimate prepared by: Federal Cost Estimate: Rachel
Robertson. Impact on State, Local, and Tribal Governments:
Marjorie Miller. Impact on the Private Sector: Amy Downs.
12. Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
regulatory and paperwork impact statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the provisions of the bill.
The Committee believes that the enactment of S. 1264 will
have a minimal regulatory or paperwork impact.
executive communications
The Committee received the following report from the U.S.
Department of the Interior setting forth the position of the
Administration on S. 1264, as introduced. Issues identified in
the Interior Department's report to the Committee have been
addressed in the amendment in the nature of a substitute to S.
1264.
U.S. Department of the Interior,
Office of the Secretary,
Washington, DC, July 17, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am pleased to transmit our report on
the Department of the Interior's views in support of S. 1264, a
bill to provide for certain benefits of the Missouri River
basin Pick-Sloan project to the Crow Creek Sioux Tribe. This
report addresses the issues raised during the Department's
testimony at the joint hearing before your Committee and the
House Subcommittee on Native Americans and Insular Affairs on
April 25, 1996.
We believe the Crow Creek Sioux Infrastructure Development
Act of 1995 is an appropriate vehicle through which the Tribe
can realize the benefits promised them by the Big Bend Act of
1962, which required the replacement of infrastructure lost as
a consequence of dam construction. Moreover, the bill is
consistent with the language and intent of the Missouri River
Pick-Sloan Program, which was authorized as part of the Flood
Control Act of 1944 to provide benefits of the Missouri River
irrigation and power development. We find that the language of
and responsibilities described in these key acts are consistent
with the federal government's trust responsibilities and other
federal law. There is precedent for the bill's approach in the
1992 enactment of the Three Affiliated Tribes and Standing Rock
Sioux Equitable Compensation program (106 Stat. 4731), which we
strongly supported, and the associated General Accounting
office documentation of the impacts of dam construction on the
tribes of the Missouri River basin.
It is within the context of our support for this bill that
we now offer proposed amendments that will strengthen its
implementation and address the issues identified during the
Joint hearing on April 25. The proposed amendments discussed
herein will correct certain definitions and program language;
provide for the remedy of potential appropriations problems;
authorized the Tribe to prepare the Plan, and provide for the
costs for the operation and maintenance of the new school
facility.
Program language and definitions
Certain minor definition and language changes will clarify
the bill, specifically in sections 3 and 4. Section 3(3) should
be revised to read: ``The term `program' means the power
program of the Pick-Sloan Missouri Basin Program (Eastern
Division), as administered by the Western Area Power
Administration. In Section 4(b), language should be added after
the word ``Fund'' on line 13 to reflect that these funds are
nonreimbursable and nonreturnable. This suggested language is
consistent with the language used in the Three Affiliated and
Standing Rock Sioux legislation.
Remedy of potential appropriations problems
In the Administration's testimony before the Committees in
April, a concern was raised referencing potential PAYGO
problems with the interest payment to the tribe generated from
the corpus of the $27.5 million trust fund established under
the legislation. It is our understanding that the
capitalization of the Fund can be achieved in two years, and
does not pose any PAYGO concerns for the Administration.
However, the Office of Management and Budget notes that
Pay-As-You-Go procedures would apply, because the bill makes
the interest on the trust fund available for expenditure. This
would be scored as an increase in outlays of $1.5 million per
year, and could contribute to a sequester if it is not fully
offset. This proposal should be considered in conjunction with
all other proposals that are subject to the PAYGO requirement.
Given the Administration's support for the bill, however,
we have identified a number of options through which to remedy
the potential PAYGO problem, and offer them for your
consideration. First, we believe it is possible to find an
offset for the $1.5 million interest, perhaps by searching for
smaller offsets which amount in total to $1.5 million from
different areas of the budget. As a second option, we believe
it would be possible to permit the tribe to draw upon the
interest after some time period (for example, seven years), as
in the Three Affiliated model. In order to provide the tribe
with planning funds while interest on the Fund accumulates, we
would recommend that a portion of the annual interest generated
on the Fund (for example $250,000) be available annually to the
tribe.
Any of these options could be implemented by amending
Section 4(b) and (d)(2). We would support any or a combination
of the options described above.
Plan development
As stated during the hearing, we suggested that the tribe
rather than the Secretary develop the infrastructure plan.
Given that the Administration strongly supports the concept of
and programs for self governance of American Indians, we
recommend that the Crow Creek Sioux Tribe bear the primary
responsibility for planning tribal development. While we expect
the tribe to coordinate closely with the Secretaries of
Interior and Health and Human Services, we believe the tribe is
fully capable of planning its own infrastructure development.
This can be achieved by amending Sections 5(a), 5(b) and 6 to
provide for the tribe's primary responsibility.
The Office of Management and Budget advises that there is
no objection to the submission of this report from the
standpoint of the Administration's program.
Thank you for the opportunity to submit this report in
support of S. 1264. Should you have further questions, please
contact me.
Sincerely,
Michael J. Anderson
(For Ada E. Deer, Assistant Secretary--Indian Affairs).
changes in existing law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill are required to be set out in the accompanying
Committee report. The Committee states that enactment of S.
1264 will not result in any changes in existing law.