[Senate Report 105-379]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 708
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-379
_______________________________________________________________________


 
  THE MISSISSIPPI SIOUX TRIBES JUDGMENT FUND DISTRIBUTION ACT OF 1998

                                _______
                                

  October 7 (legislative day, October 2), 1998.--Ordered to be printed

_______________________________________________________________________


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

                              R E P O R T

                         [To accompany S. 391]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 391) the Mississippi Sioux Tribes Judgment Fund 
Distribution Act of 1998, 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. 391, as amended, is to modify the 
disposition of funds allocated under chapter II of Public Law 
90-352 (82 Stat. 239) to the Sisseton and Wahpeton Tribes of 
Sioux Indians to pay a judgment awarded by the Indian Claims 
Commission in dockets numbered 142 and 359, including interest, 
that, as of the date of enactment of this Act, have not been 
distributed.

                               Background

    In 1862, as a result of encroachment by non-Indian settlers 
and repeated treaty violations, the Sioux Indians participated 
in an uprising known as the ``Minnesota Outbreak'' of 1862. As 
a result, the United States in a military action forced the 
dispersal of the aboriginal Upper Sioux Bands. A majority of 
these persons became members of three modern-day tribes: the 
Devils Lake, now the Spirit Lake Sioux Tribe of North Dakota, 
the Sisseton-Wahpeton Sioux Tribe of South Dakota, and the 
Assiniboine and Sioux Tribes of the Ft. Peck Reservation in 
Montana. Other members of the aboriginal Upper Sioux Bands 
joined tribes on other reservations, some fled to Canada, and 
in some cases some of the dispersed Sioux never tried to 
qualify for membership in any tribe and have not been residents 
of any reservation.
    In 1967 pursuant to the authority of the Indian Claims 
Commission Act, 60 Stat. 1049, 25 U.S.C. Sec. Sec. 70, et seq., 
the Indian Claims Commission approved a settlement between two 
tribes that prosecuted the case, the Spirit Lake Tribe and the 
Sisseton and Wahpeton Sioux Tribe, and the defendant, the 
United States. The settlement added the Sisseton and Wahpeton 
Indians of the Fort Peck Indian Reservation with the following 
caveat: ``nothing in this stipulation shall be construed as 
agreement by the [other two tribes] as to whether the Sisseton 
and Wahpeton Indians of the Fort Peck Reservation are or are 
not, entitled to share in any award . . . that question shall 
be left for final determination by the Secretary of Interior 
and Congress.'' \1\
---------------------------------------------------------------------------
    \1\ Sisseton and Wahpeton Bands or Tribes, et al. v. United States, 
18 Ind. Cl. Comm. 477 (July 25, 1967).
---------------------------------------------------------------------------
    The stipulated judgment against the United States concerned 
nearly 30 million acres of tribal lands in Minnesota, Iowa, and 
South Dakota taken by the U.S. in violation of certain treaty 
commitments made to the Sisseton and Wahpeton Bands or Tribes 
of Sioux Indians in the Treaty of Prairie du Chien (July 15, 
1830) and the Treaty of Traverse des Sioux (July 23, 1851).\2\ 
In 1968, the Congress appropriated $5,874,039.50 to satisfy the 
judgment and deposited the money in a U.S. Treasury account. 
Act of June 19, 1968 (82 Stat. 239).
---------------------------------------------------------------------------
    \2\ Id.
---------------------------------------------------------------------------
    Although the Spirit Lake, Sisseton and Wahpeton, and Fort 
Peck tribes were nearly destitute at this time, a distribution 
of these funds did not occur during the 91st Congress because 
an agreement could not be reached on the allocation of the 
appropriated fund. During the 92nd Congress, a formula was 
developed to distribute the funds. The two tribes that 
prosecuted the case in the Court of Claims and the Assiniboine 
and Sioux Tribes of the Fort Peck Reservation were recognized 
as ethno-historically and politically representative of the 
aggrieved aboriginal bands, and were therefore entitled to the 
award. In addition, based on historical events, the forced 
dispersal of the aboriginal Upper Sioux Bands, the Department 
also recommended the inclusion of Sisseton-Wahpeton lineal 
descendants (hereinafter ``lineal descendants'') who were not 
enrolled members of these successor tribes.\3\
---------------------------------------------------------------------------
    \3\ In reporting the legislation, the Senate Committee on Interior 
and Insular Affairs agreed with the Interior Department stating, 
``While it is clear that these successor tribes exist and are 
representative of the aggrieved aboriginal bands, historical evidence 
confirms that there are additional descendants who are not enrolled 
with these successor tribes, but are entitled to share in the proceeds 
of the award.'' (S. Rept. 92-144, p.2).
---------------------------------------------------------------------------
    The 92nd Congress enacted Public Law 92-555 (Act of October 
25, 1972; 86 Stat. 1168) which provided for an apportionment of 
the funds between the three tribes and the Lineal Descendants. 
The 1972 Act provided for distribution of the award on the 
following basis:

Tribe or group:
                                                     Percentage of Award
    Devils Lake Sioux Tribe of N.D............................   21.6892
    Sisseton-Wahpeton Sioux of S.D............................   42.9730
    Assiniboine and Sioux of Ft. Peck.........................   10.3153
    Lineal Descendants........................................   25.0225

    The Spirit Lake Sioux Tribe, the Sisseton-Wahpeton Sioux 
Tribe and the Assiniboine-Sioux Tribes of Fort Peck have each 
received the full distribution of their respective shares. 
However, the lineal descendants' share of the funds has 
remained undistributed since enactment of the Act. The 
Department of the Interior indicates that the lineal 
descendants' share was originally $1,469,831.50. With accrued 
interest, the current account is valued at $15.2 million. In 
1979, the Department sent 1,935 lineal descendants letters 
acknowledging their eligibility to participate in the award. 
Presently the Department has certified 1,988 lineal descendants 
as eligible to share in the award.

                               Litigation

                               The Tribes

    In 1987, the Tribes filed suite in Federal district court 
challenging the validity of the portions of the 1972 Act that 
provided for the distribution of a portion of the judgment fund 
to the lineal descendants. The district court ruled that the 
six-year statute of limitations in 28 U.S.C. section 2401(a) 
applied to the tribes' claims and because the claims were not 
filed until fifteen years after enactment of the 1972 Act, they 
were barred by the statute of limitations.\4\
---------------------------------------------------------------------------
    \4\ Sisseton-Wahpeton Sioux Tribe v. United States, 686 F.Supp. 831 
(D. Mont. 1988) (Sisseton I).
---------------------------------------------------------------------------
    On appeal, the Court of Appeals for the Ninth Circuit 
affirmed the district court's dismissal of the tribes' lawsuit, 
but noted that the ``tribe's substantive claims appear to have 
some merit.'' \5\ The court pointed out that the tribes have 
known since 1972 that 25% of the fund would be distributed to 
lineal descendants. Thus, their cause of action against this 
allocation could have been brought at that time. Several of the 
arguments raised by the tribes could not be resolved through a 
challenge to the 1972 Act. The court indicated that the tribes 
could return to federal court to assert that none of the 
individuals on the Secretarial roll have a Sisseton-Wahpeton 
Sioux lineal ancestor or that the number of lineal descendants 
was so ``exceptionally small'' that it rendered the 
distribution plan irrational.
---------------------------------------------------------------------------
    \5\ Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588 
(9th Cir., 1990) (Sisseton II).
---------------------------------------------------------------------------
    Although the tribes returned to federal court and asserted 
these claims, the nature of the 1972 Act and the posture of the 
subsequent lawsuit left the tribes' core claim unlitigated. 
Since the tribes litigated the underlying Court of Claims 
lawsuit solely ``for and on behalf of its members and all other 
descendants of the original bands of Sisseton and Wahpeton 
Sioux,'' \6\ it would seem to follow that funds would be 
distributed to either members of the three tribes with Sisseton 
or Wahpeton ancestors or non-members with the same ancestry. 
The court pointed out, however, that the 1972 Act reserved one-
fourth of the proceeds to the lineal descendants. Thus, the 
court ruled that the tribes had no standing to challenge the 
presence of non-lineal ancestors on the Secretarial role, ``no 
matter how many nonmembers are identified.'' \7\ The tribes 
were not allowed to argue that nonmembers were receiving 
judgment funds rightfully belonging to their members. Instead, 
the tribes were limited to arguing that the distribution of 25% 
of the fund to the lineal descendants was so out of proportion 
to the actual number of lineal descendants that the 
distribution scheme was irrational.
---------------------------------------------------------------------------
    \6\ The Sisseton-Wahpeton Sioux Bands et al. v. United States, 10 
Ind. Cl. Comm. 137 (January 12, 1962).
    \7\ Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 
355 (9th Cir., 1996) (Sisseton III), citing Sisseton II at 594.
---------------------------------------------------------------------------
    The gravamen of the subsequent litigation is that Congress 
irrationally allocated one-fourth of a judgment fund to far 
fewer than one-fourth of the total class of combined number of 
people with Sisseton and Wahpeton ancestry. No one appears to 
question that Congress was unaware of the number of lineal 
descendants in 1972. Nevertheless, Congress allocated the 
judgment fund with 75% going to the tribes and their members 
and 25% going to invidualswith Sisseton and Wahpeton ancestry 
who were not enrolled with the tribes. Essentially, the tribes sought 
to prove that because the United States was unaware of the number of 
lineal descendants, it granted a windfall to a few individuals.
    The United States did not dispute the tribal claim that 
only 3.3% of the individuals on the Secretarial roll could 
trace their ancestry to a member of the Sisseton and Wahpeton 
Sioux tribe (65 out of 1,965 individuals). Nonetheless, the 
court did not disturb this allocation because the court 
construed the applicable legislative history as allowing the 
inclusion of individuals who may or may not be able to trace 
their ancestry to a member of the aboriginal tribe. Although 
the court asserts that 1972 Act is ``clear on its face,'' a 
close reading reveals that the court is not talking about the 
inclusion of non-members. Instead, what is clear is ``that the 
Act unambiguously leaves the standard of proof of the 
Secretary's discretion[.]'' The court found nothing on the face 
of the act to require an applicant to demonstrate descent from 
Sisseton or Wahpeton ancestor who was alive before 1862. Thus, 
the court concluded that the Secretary could allow individuals 
to become enrolled by showing that they or an ancestor were on 
rolls dating from 1909 to 1979. (It is also worth mentioning 
that there is every indication that the Secretary would have 
been upheld if he had required proof of a lineal ancestor alive 
before 1862. Evidence was certainly available to support this 
interpretation.\8\)
---------------------------------------------------------------------------
    \8\ Because the court was concerned with whether Congress intended 
for the Secretary to determine the standard of proof for lineal 
descendants, it did not concern itself with Congress' intent with 
respect to the qualifications of lineal descendants. The Committee's 
review of the legislative history of the 1972 Act reveals ample 
evidence that Congress assumed that the Secretary would require a more 
exacting standard. For example, a letter dated May 12, 1971, from the 
Assistant Secretary of the Interior to the Chairman of the Senate 
Committee on Interior and Insular Affairs on S. 1462 (92nd Congress) 
expressed the Department of the Interior's agreement with the 
provisions in the bill requiring that ``the individual, to participate, 
must be able to trace lineal descent from members of the aboriginal 
bands.''
---------------------------------------------------------------------------
    There is arguable support with the legislative history of 
the 1972 Act for the proposition that less than perfect rolls 
might play some part in the process set in motion by the 
Act.\9\ Even accepting that the Secretary was given wide 
latitude to employ such rolls and agreeing that Congress did 
not intend for every lineal descendant to identify a lineal 
ancestor, one is still left with the core tribal issue: whether 
the number of actual lineal descendants was so small that the 
decision to allocate one-fourth of the judgment fund to this 
group was irrational.
---------------------------------------------------------------------------
    \9\ The record is somewhat mixed on this point. The strongest 
evidence is the use of the 1909 McLaughlin Annuity roll to determine 
the inter-tribal and member versus nonmember allocations in the 1972 
Act. Since this was a roll of reservation residents, and not a tribal 
membership roll, it seems to indicate a Congressional willingness to 
base its calculations upon rolls that may have included non-lineal 
descendants. As the Committee reports accompanying the 1972 Act make 
abundantly clear, however, Congress agreed to utilize the formula based 
upon this roll to avoid further conflict over the allocation. As 
discussed in the preceding footnote and the following footnote, much 
better evidence is available that bears directly on Congress' intent 
with respect to the qualifications for lineal descendants.
---------------------------------------------------------------------------
    The court found it unnecessary to address this question 
because it found that Congress and/or the Secretary acting with 
or without congressionally sanctioned deference could adopt a 
standard for enrolling lineal descendants which might result in 
``unqualified'' enrollees.\10\ Based on this conclusion, the 
court simply ruled, after employing an inclusive approach, that 
the allocation of one-fourth of the judgment fund to 1969 
enrollees was not irrational.
---------------------------------------------------------------------------
    \10\ The 1972 Act directed the Secretary to prepare a list of 
persons ``whose names or the name of a lineal ancestor appears on any 
available records and rolls acceptable to the Secretary.'' (citing 25 
U.S.C. Sec. Sec. 1300d-3(b) and 1300d-4(a)). The phrase ``on any rolls 
acceptable to the Secretary'' certainly grants latitude to the 
Department of Interior. But phrases from the Committee Report indicate 
how this discretion was to be employed: ``[The lineal descendants] will 
receive their proportionate share of the funds on proof of lineal 
descendancy with the aboriginal band.'' S. Rep. 92-144, at p.3.
---------------------------------------------------------------------------
    As a matter of statutory interpretation, judicial deference 
to Congress, in the area of Indian affairs, and administrative 
law, it is difficult to find fault with the court's ruling. 
Nevertheless, the tribes have petitioned Congress questioning 
whether it is appropriate for the rationality of the 1972 
allocation to be analyzed in light of what appears to be an 
overly-generous standard for inclusion on the Secretarial 
roll.\11\ Furthermore, the tribes assert that the court's 
approach adds insult to what they already perceive as a serious 
injury. From their point of view, the allocation of a sizeable 
part of the judgment to non-members of the successor tribes was 
troubling. In Sisseton II, this allocation is upheld because 
the number of questionable enrollees inflates the Secretarial 
roll to a large enough number to make the allocation rational.
    In addition, the tribes have questioned whether the 
Secretary's use of an inclusive standard is in fact an attempt 
to comply with a perceived legislative directive, or was 
adopted as a way of accomplishing one of a number of an 
administratively burdensome responsibilities with limited 
resources.
---------------------------------------------------------------------------
    \11\ At the end of its ruling, the United States Court of Appeals 
for the Ninth Circuit states: ``It is time for this litigation to 
end.'' Sisseton III at 356. This statement was in response to the 
tribes' attempt to amend their complaint to add additional claims, 
which the court found to be redundant. Obviously this should not be 
construed to inhibit Congressional consideration of the tribes' claims 
and concerns. Similarly, the fact that the 8th Circuit correctly 
applied the presumption that ``all funds held by the United States for 
Indian tribes are held in trust,'' does not limit Congress' authority 
with respect to these funds. See, Loudner v. United States, 108 F.3d 
896, 900 (1996), citing cases.
---------------------------------------------------------------------------
    In 1996, the Tribes filed a new constitutional challenge to 
the 1972 Act based on a 1995 Supreme Court decision, claiming 
that by retroactively reopening and revising the Indian Claims 
Commission judgment awarded to the tribes, the Act exceeded the 
authority of the Congress in violation of the separation of 
powers doctrine. Once again, the district court dismissed the 
case, ruling that the tribes should have brought this claim as 
part of their original suit in 1987. An appeal is presently 
pending.

                         The Lineal Descendants

    In March of 1997, in an action brought by several of the 
lineal descendants, the 8th Circuit Court of Appeals, in a 
reversal of the holding of the district court, ruled that the 
lineal descendants' claim was not time barred, that the notice 
given by the Federal government of the eligibility for 
receiving funds from the judgment was insufficient and that the 
five month deadline to apply for a share in the judgment fund 
was arbitrary, unreasonably short, and therefore invalid, 
Loudner v. United States, 108 F.3d 896 (8th Cir., 1997). This 
ruling could significantly enlarge the class of lineal 
descendants eligible to share in the distribution of the 
judgment fund because the decision requires the Bureau of 
Indian Affairs (BIA) to reopen the enrollment application 
process for the lineal descendants.

                           Prior Legislation

    In 1986, the Senate Select Committee on Indian Affairs 
favorably reported a bill (S. 2118) eliminating any lineal 
descendancy distribution and directing that the undistributed 
funds be distributed to the three tribes. However, the Senate 
failed to vote on the measure. In 1992, the Congress passed 
legislation (S. 2342) amending the 1972 Act to permit the 
tribes to litigate those causes of action that the district 
court and the Ninth Circuit held were barred by 28 U.S.C. 
section 2401(a) as well as any other claims asserting that the 
1992 Act was unconstitutional or invalid on other grounds. This 
legislation also authorized the Attorney General to settle any 
action that might be brought by the tribes challenging the 
constitutionality of the 1972 Act. However, President Bush 
vetoed this legislation (Presidential Message 102-251) citing, 
among other things, ``the long-standing policy of the executive 
branch * * * against ad hoc statute of limitations waivers and 
similar special relief bills'' and the desirability of avoiding 
additional litigation with the three Tribes on the issues 
barred by the statute of limitations.
    Following the veto in 1992, the Congress passed legislation 
amending the 1972 Act to authorize the Attorney General ``to 
negotiate and settle any action that may be or has been brought 
to contest the constitutionality or validity under law of the 
distribution to all other Sisseton and Wahpeton Sioux provided 
for in section 202 of this Act.'' (25 U.S.C. Sec. 1300d-10, 
Section 17 of Public Law 102-497). Since then, however, the 
Department of Justice has refused to negotiate on the grounds 
that, in the absence of legislation directly amending and 
altering the lineal descendancy distribution plan set forth in 
section 202 of Public Law 92-555, it has no authority to settle 
with the tribes on terms that differ from the distribution 
established in that section of the 1972 Act.

                          Legislative History

    S. 391 was introduced in the Senate on March 4, 1997 by 
Senator Dorgan, for himself and for Senators Conrad, Johnson, 
Daschle, Baucus, and Burns, and was referred to the Committee 
on Indian Affairs. On March 6, 1997, an identical measure, H.R. 
976, was introduced by Congressman Rick Hill, in the House of 
Representatives and referred to the Committee on Resources.
    The Resources Committee of the House of Representatives 
held a hearing on H.R. 976 on June 24, 1997. On July 3, 1997, 
the Committee ordered the bill favorably reported. It was 
reported to the House on September 3, 1998, and brought up 
under suspension of the rules and passed on September 8, 1997. 
On September 9, H.R. 976 was received in the Senate and 
referred to the Committee on Indian Affairs. On October 21, 
1997, the Committee held a legislative hearing on H.R. 976. On 
November 4, 1997, the Committee favorably reported an amendment 
in the nature of a substitute to H.R. 976.
    Following upon the concerns expressed by the Administration 
to H.R. 976, as reported by the Committee, a legislative 
hearing was held by the Committee on S. 391, on July 8, 1998. 
On July 29, 1998, S. 319 was ordered to be reported favorably 
with an amendment in the nature of a substitute.

                        The Need for Legislation

    Evidence adduced at the Committee's hearings strongly 
indicates that the 1972 Act overestimated the number of 
individuals who are, in fact, lineal descendants of a member of 
the Sisseton and AWahpeton Sioux Indian tribe, but who are not 
enrolled with one of the three successor Indian tribes. In 
addition, testimony called into a question whether the process 
employed by the Secretary to determine eligibility to qualify 
as a lineal descendants is consistent with objectives of the 
1972 Act. In addition, the Committee agrees with the principle 
that the tribe itself should generally be provided with a 
capital fund to replace the lost trust assets, especially a 
tribal land-base. Taken together, the Committee does not 
believe these factors should defeat the long-held expectations 
of the 1998 individuals on the Secretarial lineal descendancy 
roll. These factors justify amendments to the 1972 Act to a 
clarify the enrollment process and to ensure that the number of 
people enrolled as lineal descendants does not result in a per 
capita windfall of judgment funds being allocated to 
individuals, when those resources are needed to supply needed 
capital to assist reservation economies.

                       Summary of the Provisions

    As introduced, S. 391 and its House companion, H.R. 976, 
sought to resolve the competing claims of the tribes and the 
lineal descendants by awarding the lineal descendants the 
amount of principal originally awarded to them in 1972 
($1,469,831.50 out of the total judgment fund of 
$5,874,039.50), with the accumulated interest (approximately 
$13.5 million) going tothe three tribes for among other uses, 
economic development purposes.
    As reported by the Committee, S. 391 addresses concerns 
raised by the tribes, the lineal descendants, and the 
Departments of Justice and Interior. The Committee continues to 
be concerned about the length of time this matter has gone 
unresolved. From 1972 to 1987, a period of fifteen years, there 
was no legal impediment to the distribution of all funds. 
Nevertheless, one-fourth of the fund was undistributed.
    In enacting this bill, the Committee has taken several 
steps to ensure that the bill will be considered a final 
resolution of this matter. For example, on November 4, 1997, 
the Committee approved a version of H.R. 976 redistributing 
42.5% of the remaining fund and preserving 57.5% of the fund 
for the presently certified lineal descendants. This figure was 
chosen to equalize the per capita distribution between lineal 
descendants who are also members of the three tribes and those 
that are not. There is every indication that Congress could 
reallocate these funds in this manner, even though the 
certification of any additional lineal descendants, which may 
occur as a result of the 8th Circuit's ruling in Loudner, would 
reduce the amount distributed to these individuals.\12\ Indeed, 
the litigation brought by the tribes to challenge the 1972 Act 
confirms Congress' authority to make such distributions, even 
where ``the possibility of unequal distribution per capita [is] 
obvious.'' Sisseton III, at 355.
---------------------------------------------------------------------------
    \12\ See, e.g., Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 
649 (1976) and United States v. Jim, 409 U.S. 80 (1972).
---------------------------------------------------------------------------
    Percentages allocated.--Out of equitable considerations for 
the certified lineal descendants and an abundance of caution to 
address this matter with finality, the amendment in the nature 
of a substitute to S. 391 reduces the share allocated to the 
three tribes from 42.5%, as reported by the Committee on 
November 4, 1997 (as an amendment to H.R. 976) to 28.3995%. 
This will allow an additional 600 individuals to be certified 
without any reduction to the individuals already listed on the 
Secretarial roll, on a per capita basis. Because it is 
difficult to predict the number of applicants who will 
ultimately be enrolled, the bill also addresses the possibility 
that the new enrollees may number less than 600. If that is the 
case, the tribal share will increase proportionately. The bill 
provides a process for the reduction of the percentage 
allocated for the enrollment of additional lineal descendants 
if there are less than 600 enrolled.\13\
---------------------------------------------------------------------------
    \13\ The formula established by section 8(b) was derived in the 
following manner. The allocation of 71.6005% of the remaining judgment 
fund reserved for lineal descendants will result in per capita parity 
between the amount of the judgment fund divided between the lineal 
descendants and the tribal members with Sisseton and Wahpeton 
ancestors, but only if an additional 600 non-member lineal ancestors 
are certified by the Secretary. If less than 600 applicants are 
certified, the lineal descendants will receive a higher per capita 
distribution than the members of the three tribes, assuming that a full 
per capita distribution had occurred. One of the primary objectives of 
this bill is to eliminate such a result. Thus, the formula for 
adjusting the allocation takes the number of enrolled individuals, 1988 
and adds 600 to get 2,588. By dividing 2,588 into the percentage that 
results in per capita parity, 71.6005%, the per person percentage 
results. In other words, .0277 multiplied by 2,588 lineal descendants 
results in the percentage allocated for lineal descendants, 71.6%. 
Thus, for each person less than 600 certified as a lineal descendant, 
the percentage allocated to this class should be reduced by .0277.
---------------------------------------------------------------------------
    In addition, the bill will hold harmless the 1988 enrolled 
individuals with respect to the modified eligibility criteria.
    In order to ensure that the fund does not languish if a 
challenge is brought against the bill, section 8(e) provides 
the Secretary with directives should a final judgment be 
rendered which would make provisions of the bill inoperable. In 
addition, the one year statute of limitations is established to 
ensure that this matter does not continue without resolution. 
Although the Department of Justice representatives have 
expressed concern with respect to both of these provisions in 
certain fact situations, it has not indicated that they are 
necessarily problematical. After several formal hearings, 
numerous informal meetings with Interior and Justice Department 
employees, and a thorough review of the 27-year record of this 
matter, it is the Committee's view that these provisions are 
much more likely to assist in bringing this matter to fruition. 
Obviously if a final decision is rendered by a court upholding 
the provisions of the bill, including the allocations, the 
Committee expects that the Secretary will immediately 
distribute the tribal shares as directed in section 4 and, if 
applicable, section 7. The Secretary will distribute funds to 
lineal descendants under the appropriate separate process 
provided in section 7.
    Inter-tribal allocation.--A related issue of concern to the 
Committee is the intertribal distribution scheme. Even while 
the Interior Department opposed any reallocation of the 
remaining judgment fund to the tribes, it assiduously 
challenged the allocation proposed by the tribes. Such inter-
tribal judgment fund allocations have proven to be quite 
troublesome in a number of instances and the allocation under 
the 1972 Act was no exception. The 1971 Committee Report 
indicated that the tribes ``arrived at the [formula] after a 
long period of considerable confusion, attempts to reconcile 
their differences, and the discarding of a variety of rolls and 
enrollment and apportionment approaches.'' S. Rep 92-144, p. 6. 
(June 4, 1971). As the Committee explained in 1971, the 
diversity of membership criteria among the tribes during the 
twentieth century makes it difficult to rely on contemporary 
tribal enrollment numbers as a means of allocating these funds. 
Although imperfect, the reliance on the 1909 McLaughlin Annuity 
roll was endorsed by Congress in 1972. The roll determined how 
many individuals resided on each of the three reservations, or 
elsewhere or on other reservations in 1909.
    While the Committee welcomes the Interior Department's 
views and guidance on such allocations, the fact remains that a 
number of competing (and equally equitable) alternatives could 
be proposed. As one member of the Supreme Court observed:

          ``We must acknowledge that there necessarily is a 
        large measure of arbitrariness in distributing an award 
        for a century-old wrong. One could regard the 
        distribution as a windfall for whichever beneficiaries 
        are now favored. In light of the difficulty in 
        determining appropriate standards for the selection of 
        those who are to receive the benefits, I cannot say 
        that the distribution directed by the Congress is 
        unreasonable and constitutionally impermissible. 
        Congress must have a large measure of flexibility in 
        allocating Indian awards[.]'' \14\
---------------------------------------------------------------------------
    \14\ Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 91 
(1997) (Blackmun, J. and Chief Justice concurring).

    Proof of ancestry.--As noted, the bill does not require the 
Interior Department to revisit the list of persons already 
certified as lineal descendants prior to January 1, 1998. The 
Committee is concerned with the Department of the Interior's 
approach to enrollment. As the Ninth Circuit noted, the 
dispersal of the aboriginal tribe presents a difficulty in 
identifying those who are entitled to enrollment. Although the 
Committee does not take issue with the 9th Circuit's finding 
that the 1972 Act left considerable discretion to the 
Secretary, there are competing explanations for why the 1972 
Act sought to be inclusive with respect to the rolls and other 
materials that may be employed to prove ancestry. The Secretary 
appears to believe that Congress sought to be inclusive to 
ensure inclusion of all lineal descendants, even at the cost of 
enrolling a number of individuals who are not, in fact, 
descendants of a member of the aboriginal tribe. An alternative 
interpretation is that inclusiveness with respect to rolls was 
intended to allow individuals to prove their ancestry using any 
document (i.e. roll) that would allow them to trace their 
ancestry to a source indicating that they have a lineal 
ancestor who was a member of the Sisseton and Wahpeton Sioux 
tribe. The approach finally incorporated into the bill seeks to 
eliminate ambiguity, by indicating which rolls the Secretary 
may use.
    Tribal intervention.--At the hearing held on July 8, 1998, 
the Department of the Interior testified that it could not 
support S. 391 unless section 9(d) (Affirmative Defenses 
Waived) was removed. The Committee requested that Interior and 
the tribes reach agreement on this issue. In a letter to the 
Committee, counsel for the tribes subsequently informed the 
Committee that the tribes would agree to the removal of section 
9(d) to give effect to the agreement between Interior and the 
tribes. In doing so, the Committee does not intend its action 
to have any legal ramifications or to effect the determination 
of any issue in litigation.
    The Committee has included provisions ensuring that the 
tribes may participate in any litigation concerning this Act. 
This provision is consistent with the federal policy of 
encouraging tribal self-determination. As the Supreme Court 
explained in 1983, ``Indian[] [tribes] are entitled ``to take 
their place as independent qualified members of the modern body 
politic.'' [citing cases] Accordingly, [tribal] participation 
in litigation critical to their welfare should not be 
discouraged.'' \15\
---------------------------------------------------------------------------
    \15\ Arizona v. California, 460 U.S. 605, 614 (1983).
---------------------------------------------------------------------------

   Section-by-Section Analysis of S. 391 as Reported by the Committee

    Section 1. Short title.--Section 1 cites the short title of 
the bill as the ``Mississippi Sioux Tribes Judgment Fund 
Distribution Act of 1998.''
    Section 2. Definitions.--Section 2 defines the terms 
``covered Indian tribe'', ``fund account'', ``Secretary'', and 
``tribal governing body'' for purposes of this Act.
    Section 3.--Distribution to, and use of certain funds by, 
the Sisseton and Wahpeton Tribes of Sioux Indians.--Section 3 
provides that any funds made available by appropriations under 
chapter II of Public Law 90-352 to the Sisseton and Wahpeton 
Tribes of Sioux Indians to pay a judgment in favor of the 
tribes in Indian Claims Commission dockets 142 and 359, 
including interest, after payment of attorney fees and other 
expenses, that, as of the date of enactment of this Act, have 
not been distributed, shall be distributed and used in 
accordance with this Act.
    Section 4. Distribution of funds to Tribes.--Section 4 
allocates 28.3995% of the remaining judgment funds to the 
governing bodies of the three Tribes and provides the 
percentages that are to be apportioned to the governing bodies 
of the three Tribes. Section 4 also provides that for purposes 
of making distributions of funds pursuant to this Act, the 
Sisseton and Wahpeton Sioux Council of the Assiniboine and 
Sioux Tribes shall act as the governing body of the Assiniboine 
and Sioux Tribes of the Fort Peck Reservation.
    Section 5. Use of distributed funds.--Subsection (a) of 
section 5 prohibits the three tribes from making any per capita 
payments to tribal members from the funds received under this 
Act. Subsection (b) provides that the funds received under this 
Act may only be used for making investments or expenditures 
reasonably related to tribal economic and resource development 
and the development of educational, welfare and other programs 
beneficial to tribal members. Allowance is also made for the 
Tribes to pay attorneys fees out of the proceeds allocated to 
them by the Act. Subsections (c) and (d) reference the American 
Indian Trust Fund Management Reform Act of 1994 with regard to 
management of the tribal funds.
    Section 6. Effect of payments to covered Indian Tribes on 
benefits.--Section 6 provides that for purposes of receiving 
federal benefits and services, payments received by any of the 
three tribes or by any individual under this Act shall not be 
treated as income or resources or be a basis for reducing or 
denying any federal service or program.
    Section 7. Distribution of funds to linealdescendants.--
Section 7 requires that the Secretary shall distribute 71.6005% of the 
remaining judgment funds to the lineal descendants of the Sisseton and 
Wahpeton Mississippi Sioux Tribe. This section supersedes that section 
of Public Law 92-555 which provided for distribution to the lineal 
descendants. Subsection (b) provides that if there are than 2,588 
lineal descendants certified, the Secretary shall reduce the 
distribution proportionately and distribute the difference to the 
tribes. Subsection (c) provides that for any person applying for 
enrollment as a lineal descendant after January 1, 1998, the Secretary 
shall certify that the applicant can trace ancestry to a specific 
Sisseton or Wahpeton Mississippi Sioux lineal ancestor who was a member 
of the Sisseton and Wahpton Mississippi Sioux Tribe. Subsection (d) 
provides conforming amendments to the 1972 Act.
    Section 8. Jurisdiction; Procedure.--Section 8(a) 
authorizes the covered tribes to intervene in any action 
brought by the lineal descendants to challenge the validity or 
constitutionality of this Act. Subsection (b) limits federal 
courts with jurisdiction to hear such a claim to district 
courts for North and South Dakota or, the District of Columbia, 
or the Court of Federal Claims, if appropriate. (This provision 
is not intended and should not be construed to affect the 
jurisdiction of the United States Court of Federal Claims.) 
Subsection (c) requires the Secretary to provide notice of such 
an action to the covered tribes. Subsection (d) establishes a 
one year statute of limitations on asserting any of the claims 
identified in section 8(a). Subsections (e) and (f) provide 
that if the lineal descendants succeed in asserting one of the 
claims identified in 8(a), the Secretary shall allocate the 
remaining judgment funds, including the 28.3995% reserved for 
the covered tribes to the lineal descents. Conversely, if the 
covered tribes are successful, in challenging the allocation of 
judgment funds to the lineal descendants in 1972, the 71.6005% 
reserved for the lineal descendants will go the covered tribes.

            Committee Recommendation and Tabulation of Vote

    On July 29, 1998, the Committee on Indian Affairs, in an 
open business session considered an amendment in the nature of 
a substitute to S. 391. The bill, as amended was ordered 
reported with a recommendation that the bill, as amended, do 
pass.

                    Cost and Budgetary Consideration

    The cost estimate for S. 391, as amended, as calculated by 
the Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 10, 1998.
Hon. Ben Nighthorse Campbell,
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. 391, the Mississippi 
Sioux Tribes Judgment Fund Distribution Act of 1998.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark Hadley 
(for federal costs), and Leo Lex (for the impact on state, 
local, and tribal government).
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

               Congressional Budget Office Cost Estimate

S. 391--Mississippi Sioux Tribes Judgment Fund Distribution Act of 1998

    Summary: S. 391 would direct the Secretary of the Interior 
of Distribute previously appropriated funds, plus accrued 
interest, to certain tribal governing bodies and individuals as 
payment of a judgment in favor of the Mississippi Sioux tribes. 
Various legal challenges make it unlikely that the funds would 
be disbursed within the next several years under current law. 
If S. 391 is enacted and not challenged in court, this bill 
would result in payments being made in the near term that 
otherwise would be made at some point in the future. If S. 391 
is enacted and challenged in court, the expected near-term 
payments would probably be delayed by one to-several years. The 
bill also requires the establishment of trust funds for the 
tribal distributions and prescribes purposes for which those 
funds could be spent. Finally, S. 391 would increase the 
requirement for establishing lineal descent. However, CBO 
estimates that the additional costs of the Bureau of Indian 
Affairs (BIA) for reviewing claims of lineal descent would be 
less than $500,000 in any year, and would be subject to 
appropriation.
    CBO estimates that enacting S. 391 would affect direct 
spending over the 1999-2008 period, but would probably result 
in no net cost to the federal government over that period. We 
estimate that direct spending would increase by a total of 
about $17 million in fiscal year 2000. This spending would be 
more than offset by savings of future payments that would 
otherwise be made in absence of S. 391, but we cannot estimate 
the precise amount or timing of such payments. Because S. 391 
would affect direct spending, pay-as-you-go procedures would 
apply.
    S. 391 contains an intergovernmental mandate as defined in 
the Unfunded Mandates Reform Act (UMRA) that would affect 
tribal governments. CBO estimates that complying with this 
mandate would entail no net costs. Further, this bill would 
confer substantial benefits on tribal governments. S. 391 would 
impose no new private-sector mandates as defined in UMRA.
    Estimated Cost to the Federal Government: For the purposes 
of this estimate, CBO assumes the bill will be enacted near the 
start of fiscal year 1999. CBO estimates that enacting S. 391 
would have no significant impact on discretionary spending and 
no net cost in terms of direct spending over the 1999-2008 
period. The near-term budgetary effects are shown in the 
following table. The costs of this legislation fall within 
budget function 450 (community and regional development).

                                    [By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
                                                                       1999     2000     2001     2002     2003
----------------------------------------------------------------------------------------------------------------
                                           CHANGES IN DIRECT SPENDING
Estimated budget authority.........................................        0       17      \1\      \1\      \1\
Estimated outlays..................................................        0       17      \1\      \1\      \1\
----------------------------------------------------------------------------------------------------------------
\1\ The legislation would trigger direct spending of about $17 million in fiscal year 2000, but these costs
  would be offset by savings in subsequent years from payment that would otherwise be made in the absence of S.
  391. CBO cannot predict the precise amount or timing of payments that would be required is S. 391 is not
  enacted.

    S. 391 would impose a one-year statute of limitations on 
legal actions to challenge the constitutionality of the bill. 
If there are no claims during the year, then the Secretary of 
the Interior would disburse the $1.47 million that was 
appropriated in 1968 for the judgment in favor of the Sisseton 
and Wahpeton Tribe of Sioux Indians and the internet and the 
interest that has accrued on the initial appropriations. S. 391 
would impose a more stringent requirement for proving tribal 
ancestry by lineal descent and would thereby increase the staff 
time necessary for BIA to review claims of lineal descent. 
However, CBO estimates that the additional costs associated 
with reviewing claims of lineal descent would be less than 
$500,000 in any year from appropriated funds.
    This bill would require that 28.4 percent of the settlement 
finds be distributed to the governing bodies of the Spirit Lake 
Sioux Tribe of North Dakota, the Sisseton and Wahpeton Sioux 
Tribe of South Dakota, and the Assiniboine and Sioux Tribes of 
the Fort Peck Reservation in Montana, one year after enactment 
of this bill. Up to 71.6 percent of the settlement funds would 
be distributed to the lineal descendants of the Sisseton and 
Wahpeton Tribe of Sioux Indians. Under S. 391, CBO expects that 
the Secretary would disburse the total of about $17 million in 
fiscal year 2000. This estimate assumes that interest would 
continue to accrue until the final distribution.
    The direct spending in 200 would be offset by a reduction 
in outlays of at least the same amount at some point in the 
future. Based on information provided by BIA and the Department 
of Justice, CBO expects that the two court cases currently 
delaying the payments would not be resolved until sometime 
after fiscal year 1999. Through we have no basis for knowing 
when the court cases will be resolved, we expect that the 
resulting payments would equal the amount that would be paid 
under this legislation plus accrued interest.
    Pay-as-you-go considerations: The Balance Budget and 
Emergency Deficit Control Act specifies pay-as-you-go 
procedures for legislation affecting direct spending or 
receipts. CBO estimates that enacting S.391 would increase 
direct spending by about $17 million in fiscal year 2000, which 
would be more than offset by savings subsequent years from 
payments that would otherwise the made in the absence of S.391.

                                                        [By fiscal year, in millions of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         998      1999     2000     2001     2002     2003     2004     2005     2006     2007     2008
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes in outlays...................................  .......  .......       17    (\1\)    (\1\)    (\1\)    (\1\)    (\1\)    (\1\)    (\1\)    (\1\)
Changes in receipts..................................    (\2\)    (\2\)    (\2\)    (\2\)    (\2\)    (\2\)    (\2\)    (\2\)    (\2\)   (\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The legislation would trigger direct spending of about $17 million in fiscal year 2000, but these outlays would be offset by savings in subsequent
  years from payments that would otherwise be made in the absence of S.391. CBO cannot predict the precise amount or timing of payments that would be
  required if S.391 is not enacted.
\2\ Not applicable.

    Estimated impact on State, local, and tribal governments: 
S.391 contains and intergovernmental mandate as defined in 
UMRA, but CBO estimates that complying with this mandate would 
entail not net costs. The bill would place requirements upon 
the affected tribes specifying how judgment funds must be used. 
Funds would be allocated to the tribes in special trust fund 
accounts. They could not be used to make per capita payments to 
tribal members, but rather would be used for tribal programs. 
Because these requirements are placed on funds awarded as a 
judgment, and not as a condition of federal assistance, they 
would be mandates ad defined by UMRA. However, any costs would 
be more than offset by the funds provided by the bill.
    The most significant impact of this bill on tribal 
governments would be the benefit conferred by the bill's 
proposed distribution of judgment funds. Under current law, the 
Mississippi Sioux Tribes would receive no additional funds 
under these judgments. The funds due to the tribes under the 
distribution plan originally approved by the Congress shave 
already been paid. The remaining funds were to be paid to 
lineal descendants of the Sisseton and Wahpeton Tribes. Under 
the earlier plan, these individuals were to have received about 
$1.47 million. Those funds have not yet been paid because of 
ongoing litigation and, with accrued interest, currently amount 
to about $15.2 million. This bill establish a revised 
distribution plan under which the descendants would receive up 
to 71.6 percent of the funds and the tribes would receive the 
remainder.
    The bill specifies that if its provisions are contested, 
the prevailing party will be entitled to 100 percent of the 
remaining funds. CBO cannot predict the likelihood or outcome 
of such a suit.
    Estimated impact on the private sector: S.391 would impose 
no now private-sector mandates as defined in UMRA.
    Previous CBO estimates: On August 22, 1997, CBO transmitted 
an estimate of H.R. 976, the Mississippi Sioux Tribes Judgment 
Fund Distribution Act of 1997, as ordered reported by the House 
Committee on Resources on July 16, 1997. For H.R. 976, CBO 
assumed the bill would be enacted prior to October 1, 1997; 
therefore, CBO estimated that the accrued interest that would 
be disbursed under the bill would be less than the total under 
S. 391. In addition, H.R. 976 provided that the principal would 
be distributed to the lineal descendants of the Sissetion and 
Wahpeton Tribe of Sioux Indians and that, one year latter, the 
interest would be distributed to the governing bodies of the 
Spirit Lake Sioux Tribe of North Dakota, the Sessetion and 
Wahpeton Sioux Tribe of South Dakota, and the Assiniboine and 
Sioux Tribes of the fort Peck Reservation in Montana.
    Estimates prepared by: Federal cost: Mark Hadley, Impact on 
State, local, and tribal government: Leo Lex.
    Estimate approved by: Robert A. Sunshine, Deputy Assistant 
Director Budget Analysis

                      Regulatory Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill to 
evaluate the regulatory and paperwork impact that would be 
incurred in carrying out the bill. The Committee believes that 
S. 391 will have minimal regulatory or paperwork impact.

                        Executive Communications

    The Committee received two letters each from the Department 
of the Interior and the Department of Justice, which are 
reprinted below, providing the views of the Administration on 
S. 391.

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                                   August 20, 1998.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: In response to your request dated June 
17, 1998, this letter provides the views of the Department of 
Justice on S. 391, the ``Mississippi Sioux Tribes Judgment Fund 
Distribution Act of 1998'', as reported out of the Senate 
Indian Affairs Committee on July 29, 1998.
    The sponsors of S. 391 have stated that their intent is to 
correct a perceived lack of parity between fund allocations to 
three successor Tribes to the Mississippi Sioux and their 
lineal descendants, and to end the long running litigation that 
has ensued over the 1972 Judgment Distribution Act (Pub. L. 92-
555, Oct. 25, 1972, 25 U.S.C. 1300d to 1300d-9), that 
established those allocations. See 143 Cong. Rec. S1925 (March 
4, 1997) (statement of Senator Dorgan). We have analyzed the 
bill with these goals in mind and focus our comments on 
litigation-related concerns raised by the jurisdictional 
provisions contained in Section 8.
    As outlined in our letter of February 6, 1998, the 
Department has successfully defended against two prior 
challenges to the 1972 Judgment Distribution Act by the 
Sisseton and Wahpeton Sioux Tribe, the Spirit Lake Sioux Tribe 
(formerly the Devils Lake Sioux Tribe), and the Assiniboine and 
Sioux Tribes of the Fort Peck Reservation. A challenge by 
individuals claiming that they are eligible lineal descendants 
that did not receive proper notice of the Interior Department's 
process for identifying lineal descendants resulted in an order 
requiring the Secretary to reinitiate the process for 
completing a final roll of eligible lineal descendants. Loudner 
v. United States, 905 F. Supp. 747 (D.S.D. 1995), rev'd, 108 
F.3d 896 (8th Cir. 1997). There is, in addition, another 
constitutional challenge by the Tribes pending in the D.C. 
Circuit. Sisseton-Wahpeton Sioux Tribe, et al. v. United 
States, 686 F. Supp. 831 (D.D.C. 1997), appeal pending, (D.C. 
Cir.).
    Section 8 of S. 391 purports to establish a process to 
handle challenges to the bill by lineal descendants. The 
Department has a number of concerns with section 8. First, the 
section does not provide a clear set of jurisdictional 
instructions for litigants and courts. Subsection (3) of 
section 8 provides that ``[i]f appropriate, the United States 
Court of Federal Claims shall have jurisdiction over an action 
referred to in subsection (a).'' This provision is ambiguous 
and could result in confusion and unnecessary litigation. In 
addition to redrafting subsection (b)(3), we would suggest that 
the Committee consider changing the heading of 8(b) from 
``Jurisdiction'' to ``Venue,'' and including the United States 
district court for the district of Montana in the subsection 
(b)(1) list of appropriate venues. The latter suggestion is 
made because the Assiniboine and Sioux Tribes of the Fort Peck 
Reservation are located in Montana, lineal descendants are 
likely to be located there, and the Tribes' first suit 
challenging the constitutionality and legality of the 1972 
Judgment Distribution Act was adjudicated in that district.
    Second, subsection (b)(2) appears aimed at avoiding 
inconsistent judgments by consolidating lineal challenges in 
one district court. Its language, however, ensures only that a 
district court will retain exclusive jurisdiction over the 
first section 8(a) action filed. If the goal is to consolidate 
all actions in the first district court to exercise 
jurisdiction, we suggest changing the heading from ``Exclusive 
Jurisdiction'' to ``Consolidation of Actions,'' and clarifying 
that all subsequently filed actions shall be consolidated in 
the first district court to exercise jurisdiction over a 
section 8(a) action.
    Third, the bill's 365-day statute of repose for 
constitutional claims by lineal descendants, set forth in 
section 8(d), could raise serious constitutional concerns. That 
provision would bar any claim referred to in section 8(a)--that 
is, to any action by a lineal descendant ``to challenge the 
constitutionality or validity of distributions under this Act 
to any covered Indian tribe''--filed more than 365 days after 
enactment of S. 391. The provision is apparently intended to 
serve as a statute of repose that would set a specific cutoff 
for the filing of constitutional challenges by lineal 
descendants, rather than as statute of limitations, which would 
presumptively be subject to equitable tolling principles. See 
Lauf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 
350, 363 (1991) (three-year statute of repose on actions for 
securities fraud not subject to equitable tolling).
    As applied to any lineal descendants who first learned of 
their potential eligibility to share in the Mississippi Sioux 
fund as a result of the additional notice required by the 
Eighth Circuit's decision in Loudner v. United States, 108 F.3d 
896 (1997), this provision may be subject to constitutional 
challenge. Section 8(d) would not, on its face, erect an 
absolute bar to constitutional challenges by newly notified 
lineal descendants. However, it could require those individuals 
to apprehend S. 391's threat to their interests and to file 
suit raising any constitutional objections to that threat very 
soon after learning of their potential stake in the fund that 
S. 391 would reallocate. (Indeed, depending on the timing and 
structure of the notice and application process that Interior 
provides to potential lineal descendants pursuant to the Eighth 
Circuit's decision, it is possible that the 365-day deadline 
would pass before some lineals learned of their stake in the 
fund.) The Supreme Court has stated that ``[a] serious 
constitutional question * * * would arise if a federal statute 
were construed to deny any judicial forum for a colorable 
constitutional claim.'' Webster v. Doe, 486 U.S. 592, 603 
(1988) (internal quotation marks omitted).
    In addition, the Court has indicated that illusory remedies 
for constitutional claims can themselves be unconstitutional, 
holding that due process forbids a state from reconfiguring its 
remedial scheme for constitutional challenges to state taxes 
``unfairly, in midcourse'' in a manner that deprives taxpayers 
of any effective remedy. Reich v. Collins, 513 U.S. 106, 110 
(1994) (emphasis in the original). In view of this authority, 
we believe that the limitations provisions of section 8(d) 
could be subject to challenge for failure to afford newly 
notified lineal descendants a meaningful opportunity to 
challenge the constitutionality of S. 391's revision of the 
allocations scheme provided by the 1972 Distribution Act.
    Fourth, the ``Special Rule'' outlined in section 8(e), is, 
in our view, ill-conceived, unworkable, and likely to result in 
significant confusion. The rule directs ``all or nothing'' 
relief in the event of either a successful lineal challenge 
(8(e)(1)), or a successful tribal counterclaim (8(e)(2)). Such 
relief does not account for the possibility that either a 
lineal descendant (or descendants), or a covered Tribe (or 
Tribes), could prevail on lesser claims that would not warrant 
the relief dictated by the section. For example, a lineal 
descendant might sue to challenge only one of the Tribes 
getting an additional allocation, or, conceivably, a Tribe 
might challenge the propriety of fund allocations to only a 
subset of lineal descendants. It is also imaginable that an 
action could result in both lineal descendants and the Tribes 
winning in part. Given the universe of potential future claims, 
section 8(e) is likelyto be an untenable set of instructions 
for a court to apply. We therefore recommend deleting section 8(e) from 
the bill.
    Finally, if the goal of S. 391 is to bring closure to this 
matter, Congress might consider a more decisive approach to 
pending and future tribal challenges to the distribution of the 
Mississippi Sioux Fund. In our view, the Tribe's challenges 
have been finally resolved by the litigation outlined above. If 
the intent of Congress is to end further litigation over the 
Mississippi Sioux Fund by reallocating a portion of the Fund 
designated for lineal descendants to the successor Tribes, 
Congress should consider language that would explicitly provide 
that, if the Tribes elect to accept additional fund 
distributions under the bill, they may no longer pursue claims 
arising out of the distribution of the fund. Absent such a 
release of claims, the bill's restrictions on litigation 
disincentives work only against the lineal descendants, leaving 
the Tribes free to pursue their pending suit in the D.C. 
Circuit and to initiate new suits outside the constraints of 
section 8(a), notwithstanding the fact that two previous tribal 
suits on this issue have resulted in denials of certiorari by 
the United States Supreme Court.
    We understand that the Interior Department separately will 
address issues surrounding the bill's methodology for 
calculating a re-allocation of the undistributed portion of the 
fund, as well as the proposed change in standards applicable to 
the Secretary's court-ordered obligation to reopen the process 
for identification of eligible lineal descendants.
    Thank you for the consideration of our views. The Office of 
Management and Budget has advised that there is no objection to 
the submission of this letter from the standpoint of the 
Administration's program.
            Sincerely,
                                          L. Anthony Sutin,
                                 Acting Assistant Attorney General.
                                ------                                

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                  Washington, DC, February 6, 1998.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Department appreciates the 
opportunity to comment on the amendment in the nature of a 
substitute to H.R. 976, the ``Mississippi Sioux Tribes Judgment 
Fund Distribution Act of 1997,'' that was reported out of your 
Committee on November 4, 1997. While we defer to the Interior 
Department's articulation of the Administration's policy-based 
objections to the Committee's substitute bill, we write 
separately to explicate more fully the legal implications of 
the substitute. As we outline below, Section 8(a) and Section 9 
contain ambiguities and conflicts with existing law that could 
result in yet more litigation over the 1972 Congressional 
formula for allocating the Indian Claims Commission's (ICC) 
award in ICC Dockets 142 and 359. \1\ See Pub. L. 92-555, Oct. 
25, 1972, codified at 25 U.S.C. 1300d-1300d-9 (``The 1972 
Judgment Distribution Act'').
---------------------------------------------------------------------------
    \1\ The Sisseton and Wahpeton Sioux Tribe, the Spirit Lake Sioux 
Tribe (formerly the Devils Lake Sioux Tribe), and the Assiniboine and 
Sioux Tribes of the Fort Peck Reservation have brought the following 
suits challenging the Congressional distribution formula set forth in 
25 U.S.C. 1300d, et seq. The first action, Sisseton-Wahpeton Sioux 
Tribe, et al. v. United States, 686 F. Supp. 831 (D. Mont. 1988), aff'd 
895 F.2d 588 (9th Cir.), cert. denied, 498 U.S. 824 (1990), challenged 
its constitutionality. The second suit, Sisseton-Wahpeton Sioux Tribe, 
et al. v. United States, (unpublished amendment memorandum and order 
dated Sept. 28, 1994, D. Mont.), aff'd, 90 F.3d 351 (9th Cir.), cert. 
denied, 117 S. Ct. 516 (1996), challenged the Interior Department's 
implementation of the statute. The most recent action, Sisseton-
Wahpeton Sioux Tribe, et al. v. United States, 686 F. Supp. 831 (D.D.C. 
1997), appeal pending, (D.C. Cir.) again challenges the 
constitutionality of the statute. In addition to the Tribes' suits, 
individuals claiming that they are eligible lineal descendants that did 
not receive proper notice of the Interior Department's process for 
identifying lineal descendants, sued the Secretary in Loudner v. United 
States, 905 F. Supp. 747 (D.S.D. 1995), rev'd, 108 F.3d 896 (8th Cir. 
1997).
---------------------------------------------------------------------------
    As indicated by the Interior Department's letter of 
November 14, 1997, Section 8(a) of the substitute bill presents 
serious practical and legal problems. The Section creates two 
requirements with respect to the timing of fund distributions 
to those lineal descendants eligible to receive monies from the 
undistributed portion of the ICC award. Specifically, the first 
two lines of Section 8(a) require that fund distribution to the 
lineal descendants occur within 180 days of the enactment of 
the substitute bill. The third through fifth lines of Section 
8(a), however, require that fund distribution occur ``in the 
manner prescribed in section 202(c) of Public Law 92-555 (25 
U.S.C. 1300d-4(c)).'' Section 202(c) expressly states that the 
funds allocated to the lineal descendants shall be distributed 
to the ``persons enrolled on the roll prepared by the Secretary 
pursuant to Section 201(b) of this title.'' Thus, Section 8(a) 
requires distribution to occur within 180 days of enactment but 
simultaneously requires distribution to occur after the 
Secretary has completed the roll of lineal descendants. As a 
practical matter, the Secretary will not be able to meet both 
requirements.
    The Secretary's process of finalizing the roll of lineal 
descendants is presently controlled by the Eighth Circuit's 
decision in Loudner v. United States, 108 F.3d 896 (8th Cir. 
1997), rev'g, 905 F.Supp. 747 (D.S.D. 1995). Under Loudner, the 
Secretary is required to undertake a new more comprehensive 
process to notify potential lineal descendants that they may 
apply to the Secretary for a determination of their eligibility 
to receive monies from the remaining funds. Thus, the Secretary 
must reopen the application process for lineal descendants, 
provide adequate notice of the application process, provide an 
adequate application period and identify the eligible lineal 
descendants from the pool of applicants. We understand from the 
Department of the Interior that the agency will not be able to 
accomplish these court-ordered tasks within the 180-day time 
frame set forth in the substitute bill.
    To maintain internal consistency between the substitute 
bill and the existing statutory requirements of the 1972 
Judgment Distribution Act, and to permit the Department of the 
Interior to fulfill the Eighth Circuit's mandate in Loudner, 
any Congressional adjustment of the 1972 distribution scheme 
must account for the fact that the Secretary has not completed 
the roll required by Section 201(b) of Public Law 92-555.
    We have additional concerns about the jurisdictional 
provisions contained in Section 9 of the substitute bill. The 
Section would give exclusive original jurisdiction to the U.S. 
District Court for the District of Columbia to hear challenges 
to ``the constitutionally or validity under law of the 
distributions authorized under this Act,'' with a special 180 
day statute of limitations.
    Our first observation is that it is not clear how this 
Section is intended to operate in relation to the Tucker Act, 
28 U.S.C. 1491(a)(1), the ``Little Tucker Act,'' 28 U.S.C. 
1346(a)(2), and the ``Indian Tucker Act,'' 28 U.S.C. 1505. 
These statutes require that claims against the United States 
arising under the Constitution or other federal laws be brought 
exclusively in the U.S. Court of Federal Claims if the claim is 
$10,000 or more in amount, or, alternatively, in the district 
courts, if under $10,000. The various provisions of the Tucker 
Act permit claims to be brought within six years of accrual. 
Further, Tucker Act remedies are generally restricted to 
monetary relief.
    Although it is not clear whether Section 9 is intended to 
preempt the Tucker Act, the Section is written broadly enough 
to include monetary, equitable and declaratory relief. Thus, 
the Section could be interpreted to eliminate Tucker Act 
remedies for challenges to the judgment distribution scheme of 
the substitute bill, and to bar such challenges after six 
months as opposed to six years. We are concerned that without 
Congressional clarification, the resolution of these 
jurisdictional ambiguities could embroil the courts and the 
parties in further litigation.
    Our second observation about Section 9 is that it 
ambiguously authorizes challenges to ``this Act.'' If ``this 
Act'' were read to include challenges to the original 1972 
Judgment Distribution Act as well as the provisions of the 
substitute that amends it, then the three successor Tribes to 
the Sisseton and Wahpeton Mississippi Sioux could relitigate 
their heretofore unsuccessful efforts to challenge the 
constitutionality of the distribution formula set out in the 
original 1972 Act. The functional effect of this reading would 
be to waive the statute of limitations that three federal court 
determinations, left undisturbed by the Supreme Court, have 
held to bar such tribal litigation. A clarification that 
Section 9 is only intended to permit challenges to the 
amendatory provisions of the substitute bill would avoid 
confusion on this point.
    In sum, assuming that Congress's goal is to bring an end to 
the longstanding litigation over the 1972 Judgment Distribution 
Act, we recommend further refinement of the Committee's 
substitute bill.
    Thank you for your consideration of our views. The Office 
of Management and Budget has advised this Department that there 
is no objection to submission of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                               Andrew Fois,
                                        Assistant Attorney General.
                                ------                                

                   U.S. Department of the Interior,
                                   Office of the Secretary,
                                     Washington, DC, July 29, 1998.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: Thank you for allowing us the 
opportunity to review your proposed amendment to S. 391, a bill 
to provide for the disposition of certain funds appropriated to 
pay judgments in favor of the Mississippi Sioux Indians, and 
for other purposes.
    We cannot support this measure as written, and offer the 
following suggestions to amend to legislation.
    We have reexamined the proposed reallocation of the 
remaining funds currently held in trust for the Mississippi 
Sioux lineal descendants and recommend that the proposed cap of 
600 new enrollees be removed from section 4 of S. 391. It is 
the Department's position that S. 391 should be amended to 
provide that any reallocation of the remaining Mississippi 
Sioux judgment funds should be held in abeyance until the 
lineal descendants' enrollment process is complete. There is a 
strong possibility that parity between the tribes' and lineal 
descendants' fund allocations will be achieved as a result of 
the reopening of the enrollment process that is required under 
the Loudner decision. The Bureau of Indian Affairs has prepared 
additional tables showing that a full pro rata distribution 
will occur between the tribes and the lineal descendants when 
and if there are 1,969 new enrollees.
    As stated earlier in our testimony given on July 8, we 
fully expect at least 10,000 new applications will be filed 
with the Bureau of Indian Affairs as a result of the Loudner 
decision. We estimate that the number of new enrollees may 
exceed 1,000. Currently, we have 2,200 new applications on file 
at the Aberdeen Area Office that were filed by individuals 
associated with the Loudner case. We expect the number of new 
applications will double by this fall after the Bureau conducts 
public information meetings at each of the Sioux reservations 
for the purpose of notifying the public of the reopening of the 
enrollment application period.
    If the Committee does not accept our recommendation and 
decides to reallocate the funds prior to the completion of the 
enrollment process, we recommend that the cap provided for in 
section 4 be raised to 1,000. Raising the cap to 1,000 new 
enrollees would increase the lineal descendants' share of the 
current fund to 80.4396 percent, rather than the proposed 
71.6005 percent.
    If the cap is raised to 1,000 new enrollees, the 
percentages on page 3, line 24; and page 9, line 7 would be 
changed from 71.6005 to 80.4396 percent. On page 9, line 15, 
the number of enrollees would be changed from 2,588 to 2,988.
    The calculations called for under subsection 7(b) are 
difficult to understand and perform. To alleviate this 
situation, we suggest that the calculations used to make the 
adjustment in the event that the number of enrollees is less 
that 2,988 be revised in simpler terms. It will take several 
more years to complete the new enrollment process and the 
remaining funds in section 3 will no longer be viewed as a 
portion of a fund. Instead, it will have again become the 
``remaining fund.''
    Section 7 should be rewritten by deleting everything after 
the word ``shall'' on page 9, line 15, through page 10, line 3. 
The following should be inserted after the word ``shall'' on 
page 9, line 15:

        reduce the remaining funds described in subsection (a) 
        on a pro rata basis.
                  (A) the reduction shall be calculated by,
                          (i) multiplying the remaining funds 
                        in subsection (a) by .033467 percent
                          (ii) multiplying the product obtained 
                        in (i) by the difference between 2,988 
                        and the number of lineal descendants on 
                        the final roll of lineal descendants, 
                        but not to exceed 1,000.
          (2) Distribution.--If the remaining funds described 
        under subsection (a) are reduced under subsection (b), 
        an amount equal to the reduction shall be reallocated 
        to the covered Indian tribes in the same proportion as 
        specified in section 4(a)(2).

    We also have some concerns about subsection 7(c) 
Verification of Ancestry. We believe that the eligibility 
criteria used to qualify the first 1,988 lineal descendants 
should not differ from the eligibility criteria used to qualify 
the new enrollees. Changing the eligibility criteria in 
midstream creates two classes of lineal descendant enrollees. 
The early records on file concerning the Sisseton or Wahpeton 
Mississippi Sioux Indians consist of annuity rolls, census 
rolls, allotment records and probate records. We do not have 
any official tribal membership rolls that date back to the 
1800's, or tribal organic documents that set out the tribal 
enrollment criteria. If enacted, we believe that the 
Verification of Ancestry provision as set forth in 7(c) will 
result in further litigation to settle differences the 
government, the covered Indian tribes, and the lineal 
descendants will have in interpreting it.
    We would also direct your attention to Section 4(d) which 
we suggest be amended to read as follows:

          (d) Tribal Trust Fund Accounts.--The Secretary of the 
        Treasury, at the request of the Secretary of the 
        Interior, acting through the Office of Trust Funds 
        Management within the Department of the Interior, shall 
        establish such accounts as are necessary, in the Fund 
        account, to provide for the distribution of funds under 
        subsection (a)(2).

    We are also concerned with the language in Section 5(d)(2) 
Exemption. As written, funds distributed to covered tribes may 
be managed and invested pursuant to the American Indian Trust 
Fund Management Reform Act, 25 U.S.C. Sec. 4001 et seq. 
However, the language currently written within this section 
exempts tribes wishing to withdraw their funds for outside 
management from submitting a management plan for Secretarial 
approval. Such exemption from development of a management plan 
which is subject to Secretarial review and approval would 
circumvent theprotections Congress evisioned when enacting the 
American Indian Trust Fund Management Reform Act of 1994. There would 
be no way of ensuring that tribal management of the funds will 
reasonably take into consideration all appropriate factors, including 
consideration of whether the individuals or institutions that will 
manage these funds have the requisite capability and experience, and of 
whether such management will protect the funds against substantial 
loss. Congress envisioned that a tribal management plan would have to 
satisfy these concerns, as well as those reflected in 25 CFR Part 1200, 
before dissolution of the trust responsibility will respect to 
withdrawn funds.
    Section 4(a)(2)(B) references a specific contract, whereas 
Section 5(b)(6) references the above section and lists two 
contracts. We fell that this inconsistency need to be 
addressed.
    We also ask that all references to the Office of Trust 
Funds Management include the word ``Funds,'' rather than 
``Fund''.
    The Office of Management and Budget has advised that there 
is no objection to the submission of this legislative report 
from the standpoint of the Administration's program.
            Sincerely,
                                               Kevin Gover,
                               Assistant Secretary--Indian Affairs.
                                ------                                

                   U.S. Department of the Interior,
                                   Office of the Secretary,
                                   Washington, DC October 31, 1997.
Senator Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
Washington, DC.
    Dear Senator Campbell: This letter is response to inquiries 
and from your office regarding the current distribution plan 
for the Mississippi Judgment fund which is currently before the 
Senate and is intended to advise you as to issues currently 
under consideration at the Department of the Interior. It is 
our understanding that several members of the Senate support 
H.R. 976 in its current state, while others are seeking 
alternative approaches to resolution of the distribution 
problems.
    As you aware, from our testimony, the Department opposes 
H.R. 976 in its current form. H.R. 976 as currently written 
eliminates the entire pool of interest earned on the principle 
set aside in 1968 for distribution to non-tribally enrolled 
lineal descendants of the Mississippi Sioux. In enacting the 
1972 Distribution Plan, Congress made specific findings which 
clearly articulate reasons for distribution to lineal 
descendants. The Congressional findings are supported by an 
opinion of the Indian Claims Commission, dated January 12, 
1962, 10 Ind. Cl. Comm. 137. 180. In this opinion, the 
Commission held the following:

          There are two petitioning Indian communities, to wit, 
        the Sisseton and Wahpeton Tribe of Sioux Indians of the 
        Sisseton Reservation in South Dakota, and the Sisseton 
        and Wahpeton Tribe of Sioux Indians of the Forth Totten 
        Reservation in North Dakota, whose membership comprises 
        descendants of the original members of the Sisseton and 
        Wahpeton bands of Mississippi Sioux as they existed 
        during the times pertinent to the claims asserted in 
        Docket 142. As such the petitioning communities are 
        entitled to bring and maintain the claims in Docket 142 
        under the provisions of the Indian Claims Commission 
        Act, for and on behalf of its members and all other 
        descendants of the original bands of Sisseton and 
        Wahpeton Sioux similarly situated. (Italics supplies).

Congress has not found those findings to be in error.
    The portion of funs set aside for lineal descendant 
distribution from the original fund was 25.0225 percent of the 
entire appropriation. This percentage was derived from the 
Department of Interior's estimation of the pool of possible 
beneficiaries. With the passage of 25 years, the size of the 
beneficiary pool is becoming clearer, and 1,988 individuals 
have already been determined to be eligible beneficiaries of 
the fund. The Department is currently in litigation regarding 
new potential applicants and, as a result of the Eighth Circuit 
Court of Appeals decision in Loudner v. United States, we will 
be required to re-open the enrollment process. There are 
approximately 600 individuals who are claiming descendancy a 
this time and 432 ofthose individuals have joined to file a 
Motion for Class Certification in the District Court.
    Since the set aside was intended to be fairly proportionate 
to all descendants of the Mississippi Sioux Tribe, a 
readjustment of the original apportionment scheme would be 
rational in light of our current knowledge of already 
determined beneficiaries and estimate of potential 
beneficiaries under Loudner. Since Loudner is not expected to 
be resolved until new notice procedures have been written and 
published in the Federal Register and implemented by this 
Department, a final formula for reallocation at this time would 
be speculative. The Department does not agree that it would be 
rational to implement a reapportionment at the completion of 
the application review. We are committed to completing the 
enrollment within two years and disposing of current litigation 
in Loudner. However, the Department concurs that distribution 
has been withheld for an excessive amount of time and should be 
expedited. To address this issue we offer the following 
discussion concepts:
    1. An immediate distribution to the tribes of 28.3995 
percent of the principal and interest income from the funds 
currently held to pay the judgment for the Mississippi Sioux 
lineal descendants. The tribal shares could be allocated in 
percentages based upon the actual tribal enrollment figures. 
Using those figures, it would give Sisseton-Wahpeton 14.3854 
percent, Spirit Lake 5.2382 percent, and Ft. Peck 8.7759 
percent of the funds currently held in trust.
    2. The establishment of an escrow account for 600 new 
enrollee lineal descendants. The escrow amount would be 16.5998 
percent of the funds currently held to pay the judgment. If the 
number of new enrollees is less than 600, the excess funds 
could be reallocated to the tribes using the same percentage 
figures described under No. 1.
    3. The remaining funds, or 55.0007 percent of the funds 
held to pay the judgment would remain available for 
distribution to the lineal descendants.
    4. Once the enrollment process is complete, a proportionate 
share of the funds for the new enrollees would be placed back 
into the main pool of funds prior to calculating the individual 
per capita shares.
    Under this approach the lineal descendants' share of the 
total funds originally appropriated would be capped at 17.9162 
percent. The tribal share of the funds would increase from the 
original 75 percent share to 82.0838 percent of the total fund. 
Once the enrollment process necessitated by Loudner is 
complete, the tribal share would increase if the new enrollees 
number less than 600.
    I have enclosed a table which reflects the estimated number 
of eligible non-tribally enrolled lineal descendants in 
comparison with tribally enrolled descendants who have already 
received fund distribution and the appropriate apportionment of 
those numbers.
    The Committee should be aware that only a small number of 
potential new lineal descendants and none of the already-
identified 1988 lineal descendants are represented by counsel 
in these discussions. Accordingly, there can be no assurance of 
support from the unrepresented individuals for any allocation 
scheme.
    The Department thanks you for your continued interest in 
this matter.
            Sincerely,
                                       Michael J. Anderson,
                        Deputy Assistant Secretary--Indian Affairs.

                                                                   BUREAU OF INDIAN AFFAIRS--MISSISSIPPI SIOUX JUDGMENT FUNDS
                                              [Calculations used to arrive at proposed percentages for distribution of current fund held in trust]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                           Proposed
                                                                                                                         Tribal share                                Proportionate    Proposed
                                                                               Tribal/      Tribal/     Proportionate      (current        Group      Group shares      share of     percentage
                                                                 Enrollment  descendants  descendants      share of     principal fund  percentages     based on         funds      distribution
                                                                              enrollment  percentages   principal fund     less new       based on     enrollment      currently     of current
                                                                                                       ($5,874,039.50)   proportionate   enrollment                  held in trust      fund
                                                                                                                            share)                                    (percentage)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sisseton-Wahpeton.............................................        6,006  ...........  ...........  ...............  ..............      50.6536      211,440.82       14.3854   ............
Spirit Lake...................................................        2,187  ...........  ...........  ...............  ..............      18.4448       76,993.19        5.2382   ............
Ft. Peck......................................................        3,664  ...........  ...........  ...............  ..............      30.9016      128,990.87        8.7759   ............
                                                               ---------------------------------------------------------------------------------------------------------------------------------
                                                                     11,857       11,857      82.0838   4,821,632.84    ..............     100.0000      417,424.87       28.3995        28.3995
Lineal Descendants............................................        1,988  ...........  ...........  ...............    1,469,831.53      76.8161      808,417.48       55.0007   ............
Potential New Enrollees.......................................          600        2,588      17,9162   1,052,406.65    (1,052,406.66)      23.1839      243,989.18       16.5998        71.6005
                                                               ---------------------------------------------------------------------------------------------------------------------------------
                                                                      2,588       14,445     100.0000   5,874,039.50        417,424.87     100.0000    1,052,406.66       71.6005       100.0000
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXXVI of the 
Standing Rules of the Senate, the Committee notes the following 
changes in existing law (existing law proposed to be omitted is 
enclosed in black brackets, new matter printed in italic).
    Title 25, Section 1300d-4(a).
    (a) Basis of apportionment
    After deducting the amount authorized in section 1300d of 
this title, the funds derived from the judgment awarded in 
Indian claims Commission docket numbered 142 and the one-half 
remaining from the amount awarded in docket numbered 359, plus 
accrued interest other than funds otherwise distributed to the 
Sisseton and Wahpeton Tribes of Sioux Indians in accordance 
with the Mississippi Sioux Tribes Judgement Fund Distribution 
Act of 1998, shall be apportioned on the basis of reservation 
residence and other residence shown on the 1909 McLaughlin 
annuity roll, as follows:
Tribe or group:
                                                              Percentage
    Devils Lake Sioux of North Dakota.........................   21.6892
    Sisseton-Wahpeton Sioux of South Dakota...................   42.9730
    Assiniboine and Sioux Tribe of the Fort Peck Reservation, 
      Montana.................................................   10.3153
    [All other Sisseton and Wahpeton Sioux....................  25.0225]

    Title 25, Section 1300d-3(b).
    (b) [The] Subject to the Mississippi Sioux Tribes Judgement 
Fund Distribution Act of 1998, the Secretary of the Interior 
shall prepare a roll of lineal descendants of the Sisseton and 
Wahpeton Mississippi Sioux Tribe who were born or prior to and 
are living on October 25, 1972, whose names or the name of a 
lineal ancestor appears on any available records and rolls 
acceptable to the Secretary, and who are not members of any of 
the organized groups listed in subsection (a) of this section. 
Applications for enrollment must be filed with the Area 
Director, Bureau of Indian Affairs, Aberdeen, South Dakota. The 
Secretary's determination on all applications for enrollment 
shall be final.