[Senate Report 105-146]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 282
105th Congress                                                   Report
                                 SENATE

 1st Session                                                    105-146
_______________________________________________________________________


 
   PROVIDING CERTAIN BENEFITS OF THE PICK-SLOAN MISSOURI RIVER BASIN 
     PROGRAM TO THE LOWER BRULE SIOUX TRIBE, AND FOR OTHER PURPOSES

                                _______
                                

                November 8, 1997.--Ordered to be printed

_______________________________________________________________________


   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 156]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 156) to provide certain benefits of the Pick-Sloan 
Missouri River Basin Program to the Lower Brule Sioux Tribe, 
and for other purposes, having considered the same, reports 
favorably thereon with amendments and recommends that the bill 
(as amended) do pass.

                                PURPOSE

    The purpose of S. 156 to provide certain benefits to the 
Lower Brule 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 Lower Brule Sioux Tribe (``the Tribe'') resides on a 
230,000 acre reservation in central South Dakota. The Missouri 
River overlies the reservation's eastern boundary, and its rich 
bottomlands provided the Tribe for generations with food, 
water, wood for shelter and fuel, forage for cattle and 
wildlife, and plants used for medicinal purposes. Construction 
of the Fort Randall and Big Bend Dams, authorized by the Flood 
Control Act of 1944, resulted in the inundation of over 22,000 
acres of these bottomland resources and the permanent loss of 
the subsistence economy based on those resources.
    The Fort Randall Dam, which the U.S. Army Corps of 
Engineers (``the Corps'') began constructing in 1946, flooded 
7,997 acres of bottomland, over half of which was sheltered 
pastureland. Thirty-five families, constituting 16 percent of 
the resident tribal membership, were relocated against their 
wishes. Although the town of Lower Brule, the population center 
of the Lower Brule Reservation, was saved, the Tribe was 
greatly affected by the flooding of the community of Fort 
Thompson, on the Crow Creek Reservation directly across the 
Missouri River from Lower Brule. The Bureau of Indian Affairs 
(BIA) agency headquarters at Fort Thompson, which served both 
tribes, and its subagency in the town of Lower Brule, were 
combined and relocated off the reservations in Pierre, South 
Dakota, 60 miles from Lower Brule. Similarly, the Indian Health 
Service (IHS) hospital at Fort Thompson was moved off the 
reservation to Chamberlain, South Dakota, 30 miles from Lower 
Brule, creating great hardship on the Tribe, whose 
transportation facilities were severely limited.
    The Big Bend Dam, which the Corps began constructing in 
1960, resulted in the flooding of another 14,299 acres on the 
Lower Brule Reservation, the relocation of the town of Lower 
Brule, and the displacement of 62 families--approximately 53 
percent of the resident tribal population. The government's 
handling of the Fort Randall relocations was not well-thought 
out, as families on both the Crow Creek and the Lower Brule 
reservations were relocated on lands within the projected area 
of the Big Bend Dam. As a result, the affected families were 
subsequently forced to relocate a second time.
    In 1962, the Congress enacted the Big Bend Recovery Act 
(Public Law 87-735), which provided for the purchase of land 
for the Big Bend Dam two years afterconstruction began. This 
Act acknowledged the adverse impacts of the Fort Randall and Big Bend 
projects on the Lower Brule people, and directed the Corps to replace 
lost infrastructure, tribal and Federal government facilities, schools, 
hospitals, a community center, roads and utilities. However, as a 
result of subsequent funding decisions by the Corps and a lack of 
coordination between the Corps and the BIA, these directives either 
were carried out inadequately, or not at all.
    The benefits that S. 156 would provide to the Tribe are 
similar to those provided for in the Three Affiliated Tribes 
and the Standing Rock Sioux Tribe Equitable Compensation Act of 
1992, Public Law 102-575. That Act established a $149,200,000 
trust fund for the Three Affiliated Tribes of the Fort Berthold 
Reservation and a $90,600,000 trust fund for the Standing Rock 
Sioux Tribe. The trust funds were funded with receipts of 
deposits from the Missouri River Basin Pick-Sloan program. The 
amount of compensation was based on recommendations provided 
after an extensive study by a joint Federal-tribal advisory 
committee, known as the Garrison Unit joint Tribal Advisory 
Committee,which analyzed the impacts of the United States 
government's taking of more than 200,000 acres of tribal lands 
for the Garrison Dam and Reservoir as part of the Missouri 
River Basin Pick-Sloan program.
    The provisions of S. 156 are also similar tithe Crow Creek 
Sioux Tribe Infrastructure Development Trust Fund Act of 1996, 
Public Law 104-223. This Act established a $27,500,000 trust 
fund, also funded with receipts form deposits from the Pick-
Sloan program, for the Crow Creek Sioux Tribe, which suffered 
the loss of more than 15,000 acres that were inundated by the 
Fort Randall and Big Bend dams. In the case of the Crow Creek 
Sioux Tribe, as with the Three Affiliated Tribes and the 
Standing Rock Sioux Tribe, the Congress found that the 
compensation payments and mitigation funds that were expended 
on their behalf were significantly less than the value of the 
actual damages suffered by the tribes and the actual cost of 
replacing the lost facilities that the Untied States had 
promised the tribes.
    S. 156 establishes a Lower Brule Tribe Infrastructure 
Development Trust Fund in the U.S. Treasury in which will be 
deposited, on an annual basis beginning in fiscal year 1998, 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 
(WAPA), until the aggregate of the amounts deposited is equal 
to $39,300,000. The Secretary of the Treasury is authorized and 
directed to invest these amounts in interest-bearing 
obligations of the Untied 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, and to transfer any funds in that 
account to the Secretary of the Interior for purposes 
authorized in S. 156, without fiscal year limitation on the 
availability of such funds. In turn, the Secretary of the 
Interior is authorized to make payments to the Tribe. The Tribe 
can use the fund only for carrying out projects and programs 
pursuant to a plan for socioeconomic recovery and cultural 
preservation. No part of these payments may be distributed to 
any member of the Tribe on a per capita basis.
    The plan is to be developed by the Tribe, in consultation 
with the Secretary of the Interior and the Secretary of Health 
and Human Services, no later than two years after the enactment 
of S. 156. 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 
outpatient health care facility to provide essential services 
that the Secretary of Health and Human Services determines are 
needed and which are unavailable through existing facilities of 
the IHS on the Lower Brule 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 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 to be appropriate. The Committee's hearing 
record includes a detailed history, developed by Historical 
Research Associates, Inc.,\1\ of the impacts of the Fort 
Randall and Big Bend dams on the Lower Brule Sioux people, the 
legal battles over the Corps' efforts to take Indian lands by 
eminent domain for Missouri River dam construction, and the 
efforts by the Lower Brule 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.
---------------------------------------------------------------------------
    \1\ An Analysis of the Impact of Pick-Sloan Dam Projects on the 
Lower Brule Sioux Tribe, by Michael L. Lawson, Ph.D., 1996.
---------------------------------------------------------------------------

                   synopsis of historical background

    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 urgentdemand for 
federal action that followed the devastating Missouri River floods of 
1942 and 1943.
    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 on the main stem of the Missouri River, two of which 
(Fort Peck and Oahe) rank among the largest earthen 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 United States 
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 non-statutory 
body.
    The MBIAC 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 Indian families. The Corps had little in its 
training or background that prepared it to deal knowledgeably 
with Native Americans, and the Federal agency usually charged 
with that responsibility, the 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 responsibility 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 Corps often received generous 
amounts for dam construction during years when the Sioux tribes 
were not able to receive appropriations for their necessary 
relocation or compensation for their losses. Because of this 
lack of coordination, tribal members were denied most of the 
important benefits offered by Pick-Sloan and the 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 BIA was fully informed, yet made no 
objections to the plan while it was being debated in Congress 
in 1944. The BIA did not inform the tribes of the damages they 
would suffer until 1947. The Corps, assuming it could acquire 
the Indian land it needed through Federal powers of eminent 
domain, began construction on its dams, including those 
actually on reservation property, before opening formal 
negotiations with the tribal leaders.
    In 1947, the BIA made its first effort to represent tribal 
interests within the MBIAC. 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 assigned the 
task of helping the tribes gain equitable settlements and to 
assist relocation and reconstruction activities.
    By the time the first MRBI staff members reached the field, 
the Corps had spent approximately $28 million on the 
preliminary construction 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, Lake Francis 
Case, would flood the land and resources of the Lower Brule 
Reservation. 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 Lower Brule 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 Lower Brule Indian 
Reservation, 100 miles southeast of Lower Brule and just above 
the Nebraska line in south-central South Dakota. When it was 
completed in 1949, 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 
extended over 107 miles. Fort Randall was built with compacted 
earth fill, as were other Corps projects on the Missouri River. 
Like the Garrison and Oahe dams, it featured a relatively high-
head dam (160 feet) and a chute-type spillway designed to 
release excessive flows. Although in 1944 the Corps estimated 
this project would cost $75 million, it ultimately cost more 
than $200 million.
    The Fort Randall Dam flooded 22,091 acres of Sioux land and 
dislocated 136 Indian families. The flooding of 7,997 acres of 
the Lower Brule Reservation caused the dislocation of 35 Indian 
families or approximately 16 percent of the resident 
population. Nearly one-half of the lost acreage was sheltered 
pastureland. The Tribal LivestockEnterprise, the reservation's 
primary industry, suffered a serious blow.
    The complete inundation of Fort Thompson, the largest 
community on the Crow Creek Reservation immediately across the 
Missouri from Lower Brule, adversely affected the Lower Brule 
Tribe. The BIA agency headquarters at Fort Thompson, which 
served both the Crow Creek and Lower Brule tribes, and its 
subagency in the town of Lower Brule were combined and 
relocated off the reservations in Pierre, South Dakota, 60 
miles from the town of Lower Brule. Likewise, the Public Health 
Service hospital at Fort Thompson was moved in Chamberlain, 
South Dakota, 30 miles from the town of Lower Brule. With the 
closing of the Indian boarding school at Fort Thompson, 
students from Lower Brule and Crow Creek were also compelled to 
leave the reservations to attend high school. The off-
reservation facilities were now located over 80 miles from 
remote parts of the reservations. Tribal offices remained on 
Indian land but with the removal of BIA facilities it was no 
longer possible for the Lower Brule 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 Lower Brule Sioux were sustaining major damages 
from the Fort Randall project, the Corps 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 Lower 
Brule and Crow Creek tribes. The smallest of the Corps' main-
stem structures, Big Bend Dam was developed primarily for 
hydroelectric power production. Taking advantage of the long 
bend in the river for which it was 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. Of the tribes affected, the Lower Brule suffered 
the most damage. The flooding of 14,299 acres required the 
relocation of the entire community of Lower Brule to a new site 
one mile west of its former location. Sixty-two Indian 
families, comprising 53 percent of the tribal population, were 
displaced. Most of the timber and pastureland not already 
destroyed by the Fort Randall Reservoir and nearly one-half of 
the remaining farms and ranches were inundated. Because the 
Corps wanted to change the original site of the Big Bend 
project and waited until 1957 to select a final alternative 
site, families on both the Lower Brule and the Crow Creek 
reservations were relocated on lands within what became the 
taking area for Big Bend Reservoir. These tribal members were 
thus required 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 Lower Brule 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 Lower Brule 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 Lower Brule 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 90 percent of timber 
on their reservation.
    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 Lower Brule Sioux with an 
important source of food, income, and recreation. The gathering 
and preserving of wild fruits and vegetables was a traditional 
part of the culture of the Lower Brule Sioux. Traditionally, 
they were also used for ceremonial and medicinal purposes. 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 set back 
the livestock industry on the Lower Brule Reservation. Ranching 
had become the primary economic activity on the reservation in 
the years prior to Pick-Sloan. The Tribal Livestock Enterprise 
maintained ranches in four locations with a total of up to 700 
head of cattle. However, the progress made in establishing a 
tribal cattle enterprise was greatly hindered by the reservoir 
projects. A substantial portion of the 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 Lower Brule 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 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 BIA 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.
    Recognizing its obligation to ensure that the Sioux tribes 
affected by Pick-Sloan received just compensation, Congress in 
1950 authorized the Corps 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 would be reestablished and 
protected. Each of the agencies was required to prepare a 
detailed analysis of damages, and in the event that they could 
reach a satisfactory agreement in the field, the Congress was 
to legislate a final settlement.
    The Tribe petitioned in 1951 for prompt enactment of 
similar settlement procedures for their negotiations, but 
Congress did not act on their request 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 Corps and 
the BIA; MRBI staff members conducted socioeconomic surveys; 
tribal lands were inspected by Indian Commissioner Dillon S. 
Meyer; and a contract for legal counsel was finally approved by 
the BIA. The Lower Brule Sioux retained Marcellus Q. Sharpe, a 
former governor of South Dakota, as their attorney. As chairman 
of the Missouri River States Committee, he had been a leading 
advocate of the Corps' main-stem Missouri River projects during 
the 1944 congressional debate on the Pick-Sloan Plan.
    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. While Chamberlain was much closer 
to Lower Brule than Pierre, there was a strong feeling 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 BIA 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 Lower Brule Reservation were under water. Still the Tribe 
awaited the initiation of settlement talks. Negotiations were 
finally opened at Fort Thompson on March 9, 1953.
    The Corps offered the Lower Brule negotiators $233,756 for 
their land and improvements. This settlement was based on an 
appraisal made by the Corps Real Estate Division. BIA officials 
offered $270,611, an amount reached by MRBI appraisers. When 
Attorney Marcellus Q. 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 Lower Brule 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 Court, and that this legal action would in 
no way affect the eventual settlement from Congress. On June 1, 
1953, a tentative agreement between the Corps 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 Corps filed suit in the United 
States District Court of South Dakota in an attempt to obtain 
title to lands on the Lower Brule and Crow Creek reservations. 
The action went unchallenged, the Court passed favorably on 
thecondemnation request, and the Corps again succeeded in circumventing 
its legal obligations to the Indians. Despite previous agreements, an 
amount equal to the Corps' 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 Attorney's office failed to file a 
declaration of taking, which would have given the Corps full title to 
the land, before Congress 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 Corps 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. Finally, legislation providing a 
settlement for the Yankton Sioux and establishing contract 
guidelines for the Lower Brule and Crow Creek Tribes was 
approved on July 6, 1954.
    Negotiation guidelines established for the Lower Brule 
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 Congress to shorten 
time limits for further talks; BIA and Corps 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-fourth 
of the adult tribal members to a simple majority. The Interior 
Department had recommended this action in order to expedite 
approval. In addition, the retention of tribal mineral rights 
was limited to gas and oil.
    New talks with the Lower Brule Sioux Tribe were begun 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 refused to offer any more than the amount it had 
previously deposited with the federal court in its condemnation 
suits of 1953. Although the Tribe was increasingly pressured by 
the impending flood, it was determined to hold out for better 
terms. Lower Brule negotiators, for example, demanded a 
property settlement of $508,493, which was 82 percent higher 
than the best Bureau of Indian Affairs offer. In the meantime 
tribal leaders were compelled by circumstances to make plans 
for the evacuation of their lands.
    Lower Brule 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 Corps representatives, Senator Francis 
Case and Congressman E.Y. Berry of South Dakota were asked to 
introduce settlement legislation for the tribes in the Eighty-
third Congress. These bills, which asked for $6,348,316 for the 
Lower Brule Sioux Tribe, were not given consideration. 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 a breakdown of negotiations in November, 1954, 
both the Corps and the BIA requested the Justice Department to 
carry out the condemnation suits filed in 1953. The Corps 
wanted clear title to the land, and the BIA wanted some money 
dispersed to tribal members before they were forced to move. 
Consequently, an official declaration of taking was filed on 
January 20, 1955. The Court allowed the Corps to take the 
Indian land it needed--the legality of the suite was not 
questioned. The Corps later claimed that its action was legal 
because the settlement guidelines, established by Congress the 
previous year, had stipulated that negotiations would not be 
allowed to interfere with the scheduled construction of the 
Fort Randall project. The Corps, however, had filed suit before 
the legislation was passed, and nothing in the act itself 
specifically authorized the Corps to exercise the right of 
eminent domain.
    On March 22, 1955, Indian landowners on the Lower Brule 
Reservation received $270,611 as partial payment for their 
property. BIA assistance was requested in the distribution and 
expenditure of these funds, and a tribal committee was formed 
to plan relocation activities.
    The Lower Brule 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 was officially 
dedicated on August 11, 1956.
    White 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 did not have the legal authority to condemn Standing Rock 
property, citing the Sioux Treaty of 1868, which provided 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 ofeminent 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 Lower 
Brule Sioux, the Crow Creek Sioux, and Standing Rock Sioux 
Tribes was enacted into law. The Lower Brule Sioux received 
$976,523 for their property, including their interest in the 
riverbed and all damages caused by the Fort Randall project. 
Unlike the Standing Rock Sioux, the Lower Brule 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 its settlement 
funds. The Standing Rock and Cheyenne River legislation had 
provided that such costs would be charged to the Corps' project 
budget. In addition, the Lower Brule 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 Lower Brule and Crow 
Creek suffered the hardship of having to move two years before 
receiving a settlement, and they alone were 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, Corps crews were 
surveying Lower Brule 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, however, worked ahead 
of schedule and ground-breaking ceremonies for the project took 
place on May 30, 1960.
    Legislation for the Crow Creek and Lower Brule Sioux Tribes 
was introduced in Congress on March 2, 1960, just three months 
before the ground-breaking ceremonies for Big Bend Dam. A week 
later, the Corps 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 regard to the Standing Rock suit in 1958. 
Congress had still not specifically delegated its powers of 
eminent domain to the Army, yet the Corps was allowed to take 
title to the reservation land.
    In 1962, fourteen years after construction began on Fort 
Randall Dam and two years after construction began on Big Bend 
Dam, the Congress enacted the Big Bend Recovery Act, Public Law 
87-734, which directed the Corps ``to protect, replace, 
relocate or reconstruct any existing essential governmental and 
agency facilities on the Lower Brule reservation, including 
schools, hospitals, Public Health Service and Bureau of Indian 
Affairs offices, facilities, service buildings, and employees' 
quarters, roads, bridges, and incidental matters or facilities 
in connection therewith''. The Act also directed the Corps to 
construct ``a townsite for the new town of Lower Brule, 
including substitute and replacement streets, utilities, 
including water, sewerage, and electricity, taking into account 
* * * the reasonable future growth of the new town''.
    The Lower Brule Sioux Tribe was granted $825,000 for direct 
damages (including the loss of the riverbed and gravel), 
$400,715 for indirect damages, and $1,968,750 for 
rehabilitation, for a total of $3,194,465. Moving expenses were 
limited to $247,325 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 was 
given the authority to regulate the location, size, and nature 
of all land so used.

                             reconstruction

    With the passage of the Big Bend Recovery Act, 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 finalsettlement was, it was only the first stage of 
the Pick-Sloan ordeal for the tribes affected. Once compensation was 
received, and benefits and provisions were outlined in 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 Lower Brule Sioux had a particularly 
difficult time in relocation families from the Fort Randall 
reservoir area. Because the tribe only received money from the 
Corps' condemnation settlement at the time they were forced to 
move, its relocation program had to be tailored to fit the 
funds available rather to meet the goal of full reestablishment 
as contemplated by the Congress. Aimed at immediate results 
rather than comprehensive rehabilitation, the Corps' efforts 
did not 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 has been announced a full 
decade earlier, neither the Corps nor the BIA 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.
    Despite the Congressional mandate to mitigate the impacts 
of the dam projects, subsequent funding requests for the Corps 
and the BIA to carry out these directives were insufficient for 
that purpose. Some educational and health facilities serving 
the Lower Brule Tribe were either not replaced or restored 
adequately or not restored at all. The new water system was not 
adequate to accommodate ``reasonable future growth''. 
Replacement houses were neither well built nor sufficiently 
insulated. Whether due to underestimating the costs of 
mitigation or other reasons, the school, hospital, townsite and 
other infrastructure replacement guaranteed to the Tribe in the 
1962 Act were not provided as promised. In short, the Federal 
government failed at every turn in making the Tribe whole.

                          legislative history

    Senator Daschle introduced S. 156 for himself and Senator 
Johnson on January 21, 1997. Although initially referred to the 
Committee on Energy and Natural Resources, the bill was 
subsequently discharged from the Committee on Energy and 
Natural Resources and rereferred to the Committee on Indian 
Affairs on May 21, 1997. The Committee held a hearing on S. 156 
on October 20, 1997.

            committee recommendation and tabulation of vote

    On October 23, 1997, the Committee on Indian Affairs, in an 
open business session, considered S. 156 and ordered it 
reported with a technical amendment, with a recommendation that 
the bill, as amended, be passed.

                      section-by-section analysis

    Section 1. This section states the short title of the Act 
as the Lower Brule Sioux Tribe Infrastructure Development Trust 
Fund Act.
    Section 2. This section sets forth the findings of the 
Congress.
    Section 2(1) states 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 above Sioux City, 
Iowa, to protect urban and rural areas from devastating floods 
of the Missouri River, and for other purposes.
    Section 2(2) expresses 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 2(3) expresses the finding of the Congress that the 
Fort Randall and Big Bend projects overlie the eastern boundary 
of the Lower Brule Sioux 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 Lower Brule Sioux Tribe and the homeland 
of the members of the Tribe.
    Section 2(4) states the finding of the Congress that Public 
Law 85-923 authorized the acquisition of 7,997 acres of Indian 
land on the Lower Brule Sioux Indian Reservation for the Fort 
Randall project and Public Law 87-734 authorized the 
acquisition of 14,299 acres of Indian land on the Lower Brule 
Sioux Indian Reservation for the Big Bend project.
    Section 2(5) sets forth the finding of the Congress that 
Public Law 87-734 provided forthe mitigation of the effects of 
the Fort Randall and Big Bend projects on the Lower Brule 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 those 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 gymnasium and 
        auditorium.
    Section 2(6) states that the requirements under Public Law 
87-734 with respect to the mitigation of the effects of the 
Fort Randall and Big Bend projects on the Lower Brule Indian 
Reservation have not been fulfilled.
    Section 2(7) expresses the finding of the Congress that 
although the national economy has benefited from the Fort 
Randall and Big Bend projects, the economy on the Lower Brule 
Indian Reservation remains underdeveloped, in part as a 
consequence of the failure of the United States to fulfill its 
obligations under Public Law 85-916 and Public Law 87-735.
    Section 2(8) contains the finding of the Congress that the 
economic and social development and cultural preservation of 
the Lower Brule 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 2(9) expresses the finding of the Congress that the 
Lower Brule Sioux Tribe is entitled to additional benefits of 
the Pick-Sloan Missouri River Basin program.
    Section 3 provides definitions of five terms used in S. 
156.
    Section 3(1) defines the term ``Fund'' to mean the Lower 
Brule Sioux Tribe Infrastructure Development Trust Fund 
established under section 4(a) of the bill.
    Section 3(2) defines the term ``plan'' to mean the plan for 
socioeconomic recovery and cultural preservation prepared under 
section 5 of the bill.
    Section 3(3) defines the term ``Program'' to mean the power 
program of the Pick-Sloan Missouri River Basin program, 
administered by the Western Area Power Administration.
    Section 3(4) defines the term ``Secretary'' to mean the 
Secretary of the Interior.
    Section 3(5) defines the term ``Tribe'' to mean the Lower 
Brule Sioux Tribe of Indians, a band of the Great Sioux Nation 
recognized by the United States of America.
    Section 4 of S. 156 provides for the establishment of the 
``Lower Brule Sioux Tribe Infrastructure Development Trust 
Fund''.
    Subsection 4(a) establishes in the U.S. Treasury a fund to 
be known as the ``LowerBrule Sioux Tribe Infrastructure 
Development Trust Fund''.
    Subsection 4(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 Pick-Sloan program until such 
deposits total $39,300,000.
    Subsection 4(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 with the fiscal year immediately following the fiscal 
year during which the Trust Fund is fully funded, to transfer 
any interest earned on the 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 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 the Interior and the Secretary 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 Indian Health 
Service on the reservation; (3) the construction, operation and 
maintenance of a municipal, rural and industrial water system; 
(4) recreational 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 of S. 156 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 of S. 156 addresses the effect of payments to the 
Lower Brule 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. 156, as amended, as calculated by 
the Congressional Budget Office, is set forth below:

S. 156--Lower Brule Sioux Tribe Infrastructure Development Trust Fund 
        Act

    Summary: S. 156 would provide compensation to the Lower 
Brule Sioux Tribe for the taking of reservation lands to build 
the Fort Randall and Big Bend dam projects. The bill would set 
up an economic recovery fund for the tribe and make interest 
from the fund available to the tribe for education, social 
welfare, and economic development programs.
    CBO estimates that enacting S. 156 would create new direct 
spending authority of $1.2 million in fiscal year 1999, 2.5 
million in 2000, and $2.6 million for each of fiscal years 2001 
and 2002. We estimate that resulting outlays would total about 
$5.6 million over the 1999-2002 period. Because S. 156 would 
affect direct spending, pay-as-you-go procedures would apply. 
In addition, S. 156 would authorize the appropriation of such 
sums as may be necessary to carry out this act, including funds 
necessary to cover the administrative expenses of the economic 
recovery fund. Based on information from the Bureau of Indian 
Affairs (BIA), CBO estimates that any increase in discretionary 
spending would be negligible. S. 156 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act of 1995 (UMRA).
    Estimated cost to the Federal Government: The costs of this 
legislation fall within budget function 450 (community and 
regional development). The estimated budgetary impact of S. 156 
is shown in the following table.

----------------------------------------------------------------------------------------------------------------
                                                                      By fiscal year, in millions of dollars    
                                                                  --------------------------------------------- 
                                                                     1998     1999     2000     2001     2002   
--------------------------------------------------------------------------------------------------------------- 
                                           CHANGES IN DIRECT SPENDING                                           
                                                                                                                
Estimated budget authority.......................................        0        1        2        3        3  
Estimated outlays................................................        0      (1)        1        2        3  
----------------------------------------------------------------------------------------------------------------
1 Less than $500,000.                                                                                           

    Basis of estimate: S. 156 would establish an economic 
recovery fund for the Lower Brule Sioux Tribe. Beginning with 
fiscal year 1998, the bill would direct the Secretary of the 
Treasury to deposit up to 25 percent of the receipts in the 
preceding fiscal year from the Pick-Sloan Missouri River basin 
program into the Lower Brule Sioux Tribe Infrastructure 
Development Trust Fund in the United States Treasury. Once 
$39.3 million is deposited, no further principal deposits would 
be made. The bill would direct that the fund's principal be 
invested in interest-bearing Treasury securities and that the 
fund's interest earnings be transferred to a separate account 
and be made available to the tribe--without fiscal year 
limitation or the need for further appropriation--beginning in 
the fiscal year after the fund is capitalized.

Direct spending

    Based on information from the Western Area Power 
Administration--which markets electricity produced from the 
Pick-Sloan Missouri River basin--CBO estimates that receipts 
from the Pick-Sloan project for fiscal year 1997 totaled about 
$260 million. Therefore, CBO expects that the fund would be 
fully capitalized in fiscal year 1998 with a deposit of $39.3 
million. the deposit to the trust fund would be an 
intragovernmental transfer and there would be no net outlays 
associated with it.
    S. 156 would make the interest on the amounts in the 
economic recovery fund available to the Lower Brule Sioux Tribe 
for education, social welfare, and economic development. For 
the purpose of this estimate, CBO assumes that S. 156 will be 
enacted in the first quarter of calendar year 1998 and that the 
$39.3 million deposit into the fund will be made by March 31, 
1998; thus, the deposits would earn interest for one-half of 
fiscal year 1998 and interest earnings would first become 
available for spending in fiscal year 1999. We assumethat the 
principal balance in the fund would earn interest at an annual rate of 
about 6.2 percent, which is CBO's baseline projection of the interest 
rate on 10-year Treasury securities. Under S. 156, interest earned on 
the $39.3 million principal would be transferred to a separate Treasury 
account and then made available for spending by the Lower Brule Sioux 
Tribe. Unspent interest in that amount also would earn interest, but at 
a lower (short-term) rate. We assume that balances in the account would 
accrue interest at a rate of about 5 percent.
    As a result, CBO estimates that interest earnings of $1.2 
million would be made available to the tribe in fiscal year 
1999 and interest earnings of between $2.5 million and $2.6 
million would be made available for each of fiscal years 2000 
through 2002. Estimated outlays of this interest are based on 
historical spending rates for programs with similar goals and 
activities as those stated in this bill.

Spending subject to appropriation

    S. 156 would authorize to be appropriated such funds as may 
be necessary to carry out the legislation. CBO estimates that 
any increase in discretionary spending would be negligible. The 
Office of Trust Fund Management within the Department of the 
Interior would be responsible for the creation and maintenance 
of the trust fund created by S. 156. According to BIA, it is 
unlikely that the Office of Trust Fund Management would have to 
hire any additional employees to manage the new fund.
    Pay-as-you-go considerations: The Balanced Budget and 
Emergency Deficit Control Act of 1985 specifies pay-as-you-go 
procedures for legislation affecting direct spending or 
receipts. For purposes of enforcing pay-as-you-go procedures, 
only the effects in the budget year and the succeeding four 
years are counted. CBO estimates that enacting S. 156 would 
have no effect on direct spending in 1998, but would result in 
direct spending of less than $500,000 in 1999, and gradually 
increasing amounts in succeeding years, as indicated in the 
following table.

                               SUMMARY OF EFFECTS ON DIRECT SPENDING AND RECEIPTS                               
----------------------------------------------------------------------------------------------------------------
                                                           By fiscal year, in millions of dollars               
                                           ---------------------------------------------------------------------
                                             1998   1999   2000   2001   2002   2003   2004   2005   2006   2007
----------------------------------------------------------------------------------------------------------------
Changes in outlays........................      0      0      1      2      3      3      3      3      3      3
Changes in receipts.......................                                                                      
(9) Not applicable                                                                                              
----------------------------------------------------------------------------------------------------------------

    Estimated impact on State, local, and tribal governments: 
S. 156 contains no intergovernmental mandates as defined in 
UMRA. As a condition of receiving payments from the federal 
government, section 5 of the bill would require the Lower Brule 
Sioux Tribe to prepare a plan for use of those payments and 
would specify a number of elements to included in the plan. 
Based on information provided by the tribe, CBO estimates that 
the cost of complying with this requirement would be minimal. 
The annual payments received from the federal government would 
be used by the tribe to carry out projects included in the 
plan.
    S. 156 would impose no other costs on state, local, or 
tribal governments.
    Estimated impact on the private sector: The bill would 
impose no new private-sector mandates as defined in UMRA.
    Estimate prepared by: Federal Costs: Kristen Layman; Impact 
on State, Local, and Tribal Governments: Marjorie Miller.
    Estimate approved by: Robert A. Sunshine, Deputy 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. 156 will 
have a minimal regulatory or paperwork impact.

                        EXECUTIVE COMMUNICATIONS

    The Committee received the following testimony from the 
U.S. Department of the Interior setting forth the position of 
the Administration of S. 156. Issues addressed in this 
testimony were resolved prior to the markup of S. 156.

 STATEMENT OF TERRY VIRDEN, DIRECTOR, OFFICE OF TRUST RESPONSIBILITIES 
                    U.S. DEPARTMENT OF THE INTERIOR

    Good morning Mr. Chairman and members of the Committee. I 
am pleased to be here today to present the Department of the 
Interior's views on S. 156, ``the Lower Brule Sioux Tribe 
Infrastructure Development Trust Fund Act of 1997.'' I wish to 
thank Senator Daschle for introducing the bill which addresses 
longstanding problems regarding development in the Missouri 
River Basin and its impacts on Indian tribes residing in the 
region. If enacted, this bill would provide the Lower Brule 
Sioux Tribe with much deserved benefits from the Missouri River 
Basin Pick-Sloan Program.
    S. 156 is a continuation of the United States efforts to 
correct inequities resulting from a regional Federal 
development project which affected several Tribes, many of 
which did not receive any appreciable benefits from that 
development. We view this as a companion to Public Law 104-223, 
the ``Crow Creek Sioux Tribe Infrastructure Development Trust 
Fund Act of 1996,'' which was also sponsored by Senator Daschle 
and addressed many of these same issues for the Crow Creek 
Sioux Tribe.
    The Pick-Sloan Missouri River Basin Program, or Pick-Sloan, 
is a major Federal program that provides for economic 
development, irrigation, and flood control in the Missouri 
River Basin. Two of the primary components of Pick-Sloan are 
the Fort Randall and Big Bend projects. While these two 
projects have resulted in economic benefits for the United 
States in general, and more specifically for the Missouri River 
Basin, they have had a devastating impact on the Lower Brule 
Sioux Tribe, its culture, and its economy.
    Fifty years ago the Big Bend and Fort Randall Dams flooded 
over 22,000 acres of tribal homelands. As a result, over 70 
percent of the Tribe's residents were forced to relocate from 
historical cultural homelands and fertile river lands. These 
lands were taken and permanently sacrificed to provide for the 
general welfare of the United States.
    S.156 provides the Lower Brule Sioux Tribe to be a major 
beneficiary of the Pick-Sloan, for which they sacrificed so 
much, and to share in the economic development it has provided 
over the past fifty years.
    While this legislation is not the final chapter in 
addressing compensation for the sacrifices of all tribes the 
region, it is an important step toward providing much needed 
resources for the Lower Brule Sioux Tribe.
    The Administration could support S. 156 if amended. As 
currently drafted, the bill would be subject to pay-as-you-go 
requirements of the Omnibus Budget and Reconciliation Act of 
1990, as amended and its costs would need to be offset. In 
addition, S. 156 would need to be amended to conform to Federal 
financial management principles that disallow the payment of 
interest on appropriation.
    This concludes my testimony. We would be happy to work with 
the Committee staff to develop amendments. I will be happy to 
respond to any questions you may have. Thank you.

                        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. 156 
will not result in any changes in existing law.

                                
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