[Senate Report 106-217]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 407
106th Congress                                                   Report
                                 SENATE
 1st Session                                                    106-217

======================================================================



 
         CHEYENNE RIVER SIOUX TRIBE EQUITABLE COMPENSATION ACT

                                _______
                                

                November 8, 1999.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 964]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 964) to provide for equitable compensation for the 
Cheyenne River Sioux Tribe, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment in the nature of a substitute, and recommends that 
the bill as amended do pass.

                                purpose

    The purpose of S. 964, the Cheyenne River Sioux Tribe 
Equitable Compensation Act, is to provide additional 
compensation to the Cheyenne River Sioux Tribe (CRST) of South 
Dakota for the acquisition by the United States of 104,492 
acres of land of the Tribe for the Oahe Dam and Reservoir on 
the Missouri River.

                               background

    In 1944, Congress enacted the Flood Control Act, 33 U.S.C. 
701-1, et seq., which included the Pick-Sloan Missouri River 
Basin Program to increase economic development and to provide 
an array of benefits to the Missouri River Basin and its 
residents. The Pick-Sloan project was designed to provide low-
cost hydro-power; irrigation; flood control; navigation 
benefits; and recreational opportunities.\1\
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    \1\ See generally ``Cheyenne River Sioux Tribe's Additional 
Compensation Claim for the Oahe Dam'', GAO/RCED-98-39, January, 1998.
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    In 1948, the Army Corps of Engineers (ACE), took possession 
of CRST lands along the river and began construction of the 
Oahe Dam and Reservoir project. By the time Oahe Dam was 
dedicated, in 1962, the accrued impacts of the dam and 
reservoir on the CRST were dramatic; four reservation 
communities had been flooded by the project, 104,492 acres of 
tribal lands had been inundated, and 181 families (30% of the 
tribal population) had been forced to relocate from the fertile 
bottom lands along the river to much less hospitable upland 
prairie.
    The CRST and its members had long used the fertile bottom 
lands of the river basin for agricultural purposes; for cattle 
and livestock; as a source of timber for home construction, 
fuel and construction purposes; and as a ready source of 
potable water. With construction of the dam and creation of the 
reservoir, however, the once-thriving tribal cattle and 
agricultural sectors were devastated, with an average annual 
loss of cattle projected at 500 head. During the winter of 
1996-97, CRST members lost 30,000 head of livestock that in all 
likelihood would not have been lost had they had access to the 
food and shelter previously available in the now-flooded bottom 
lands. These losses can be expected to continue into the 
future. Similarly, the loss of access to traditional hunting, 
gathering and ceremonial grounds is permanent.
    The CRST lost some 90% of its timber as a result of the 
construction of the dam and creation of the reservoir. Timber 
provided a viable source of commercial revenues for the Tribe 
as well as a source of wood for subsistence needs such as home 
fence and corral construction, fuel and heating, and related 
needs. The bottom lands provided the CRST a source of potable 
water, whereas existing water sources are scarce, brackish or 
both.
    The losses suffered by the Tribe were keenly felt, no less 
so for the fact that the Tribe and its members did not receive 
any of the benefits which the Pick-Sloan plan was designed to 
bring to the other residents of the Missouri River Valley. 
Unlike many South Dakota communities that received allocations 
of low-cost hydropower which they were able to turn into a 
source of revenue for their activities, the Tribe's request for 
such allocation was denied. Nor did the Tribe receive any low-
cost power for its own use. Instead, despite the generation of 
large amounts of hydropower from the Pick-Sloan power program, 
the cost of electricity on the CRST reservation has remained 
among the highest in the United States, burdening an already 
impoverished membership and serving as a barrier to economic 
development.
    The Tribe also received no flood control benefits from the 
Pick-Sloan dams, as it had never suffered flooding problems 
from the Missouri River, nor did it benefit from the increased 
navigation made possible by the Project. With respect to 
recreation, rather than providing increased recreational 
opportunities for the Tribe, the Project decreased such 
opportunities by depriving the Tribe access to the river from 
tribal lands. With respect to irrigation, the Tribe receives no 
Project water to irrigate any of the land of the Tribe or its 
members. Thus, the Tribe not only suffered a permanent loss of 
lands and incurred major adverse impacts to its way of life, 
its economy and culture, but also failed to receive the 
benefits which the Project was to provide with citizens and 
communities in the Missouri River Basin.
    It was not until 1954 that the Congress enacted legislation 
to provide compensation to the Tribe in exchange for the 
acquisition of the Tribe's lands. In settlement negotiations 
prior to enactment of this legislation, the CRST requested some 
$23.5 million as a compensation for lands taken and 
rehabilitation of tribal standards of living. However, the 
legislation authorized the payment of only $10.6 million for 
damages, rehabilitation and administrative expenses related to 
the settlement, less than half of what the Tribe requested and 
documented.\2\ This amount did not include any compensation for 
the diminishment of the value of some 800,000 acres of grazing 
lands, which resulted from the loss of access to the bottom 
lands along the river as a result of the creation of the 
reservoir. As a rough indicator of under-compensation to the 
Tribe, non-Indians received an average of $49.22 per acre for 
their agricultural lands, while the Tribe received only $21.49 
per acre.
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    \2\ P.L. 83-776, 68 Stat. 1191 (Sept. 3, 1954).
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    When the Tribe learned that the Congress had passed 
legislation providing less than half of the amount of 
compensation which it had requested, it began a campaign to 
persuade President Eisenhower to veto the bill. However, it was 
dissuaded from doing so by the late Senator Karl Mundt (R-SD), 
who, writing in behalf of the South Dakota Congressional 
delegation, acknowledged that the settlement was less than it 
should have been, but promised to remedy the problem in the 
next session: ``If the Tribe would accept the bill as it is now 
before the President, they would have the assurance that the 
South Dakota Congressional Delegation would cooperate fully to 
see that the necessary amendments to the law are introduced and 
acted upon during the next Congress * * * you may be sure that 
we will all do our level best to finish the job.'' \3\ In the 
years that followed, however, no such amendments were 
introduced or acted upon.
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    \3\ Letter from Karl E. Mundt to CRST Chairman Frank Ducheneaux, 
August 30, 1954.
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    In the early 1980's, other tribes whose reservations on the 
Missouri River had been adversely affected by flooding caused 
by the construction of the Pick-Sloan project dams sought 
additional compensation to rectify what they also considered to 
have been woefully inadequate compensation in view of their 
actual losses. In 1984, the Secretary of the Interior 
established a Joint Tribal-Federal Advisory Committee (JTAC) to 
examine and make recommendations with respect to the effects of 
the impoundment of waters under the Pick-Sloan Missouri River 
Basin Program (Oahe and Garrison Reservoirs) on the Fort 
Berthold and Standing Rock Indian Reservations. The Secretary's 
action implemented a recommendation in the Final Report of the 
Garrison Diversion Unit Commission established pursuant to 
Public Law 98-360, section 207.
    The JTAC study concluded that the compensation that was 
provided to the Tribes in the 1950's indeed was inadequate and 
did not take into account the full extent of the tribes' 
losses. In 1990, the Congress asked the General Accounting 
Office (GAO) to review economic analyses prepared by 
consultants for the Fort Berthold and Standing Rock Tribes that 
documented what the Tribes considered to be the difference 
between the actual losses suffered as a result of the building 
of the Garrison Dam and the amount the Tribes received in 
compensation in 1952. The GAO found numerous problems with 
these analyses and recommended, instead, that the Congress base 
its decision on how much to provide in additional compensation 
on a formula. This formula included a range of additional 
compensation predicated on the present value of the difference 
between the amount originally requested by the tribe and the 
amount received. The high end of the range was established by 
compounding the difference using the corporate interest rate; 
the low end was established by compounding the difference using 
the cost of living rate. The GAO did not consider whether 
additional compensation should be provided, or whether the 
original compensation was adequate.\4\
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    \4\ Indian Issues: Compensation Claims Analyses Overstate Economic 
Losses (GAO/RCED-91-77, May 21, 1991).
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    In view of the JTAC study findings and the GAO review, the 
Congress enacted legislation that acknowledged, first, that the 
U.S. government did not justly compensate the Tribes at Fort 
Berthold and Standing Rock when it acquired their lands and, 
second, that theTribes were entitled to additional 
compensation. Accordingly, the legislation established a $149.2 million 
development trust fund for the Three Affiliated Tribes of the Fort 
Berthold Reservation and a $90.6 million development trust fund for the 
Standing Rock Sioux Tribe.\5\ In arriving at these amounts, the 
Congress adopted the GAO formula using the corporate interest rate 
option. Both of these trust funds were capitalized in the U.S. Treasury 
with receipts deposited from the power program of the Pick-Sloan 
Program. The legislation provides that the Tribes may only spend 
interest earned on these trust funds.
---------------------------------------------------------------------------
    \5\ P.L. 102-575, title XXXV, 106 Stat. 4731 (Oct. 30, 1992).
---------------------------------------------------------------------------
    In 1996, after considering extensive documentation which 
established that the Crow Creek Sioux Tribe had been adversely 
impacted by Pick-Sloan dam construction on the Missouri River 
and that the compensation received by the Tribe also did not 
bear a fair relationship to the adverse consequences suffered 
by the Tribe, the Congress enacted legislation establishing a 
$27.5 million trust fund as additional compensation for the 
Crow Creek Sioux Tribe.\6\ In 1997, on the basis of a similar, 
well-documented historical record, the Congress enacted 
legislation establishing a $39.3 million trust fund for the 
Lower Brule Sioux Tribe.\7\ These trust funds were funded in 
the same manner, and with similar restrictions, as were those 
established for Fort Berthold and Standing Rock.
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    \6\ P.L. 104-223, 110 Stat. 3026 (Oct. 1, 1996).
    \7\ P.L. 105-132, 111 Stat. 2563 (Dec. 2, 1997).
---------------------------------------------------------------------------
    In 1993, the Cheyenne River Siouix Tribal Council 
unanimously passed a resolution stating that the Tribe had not 
received adequate compensation for the damages resulting from 
construction of Oahe Dam and Reservoir. The Tribe hired a 
consultant to prepare a new economic analysis of the damages, 
which was published in July, 1994.\8\ At the request of Senator 
Daschle, the GAO assessed this new economic analysis, which 
concluded that the Tribe should receive additional compensation 
in an amount between $279 million and $300.7 million for 
damages, rehabilitation and administrative expenses. Using the 
1991 formula, the GAO calculated the amount of additional 
compensation to be $290 million. The GAO noted that the amounts 
that comprised the $290 million figure cannot be readily 
compared with the amounts previously paid to the other Tribes, 
first, because the damage to each reservation was unique, 
depending on the acreage lost, the number of tribal members 
living in the takiing area, and the value of the resources 
located in the taking area. Also, the additional amounts for 
Fort Berthold and Standing Rock were based on 1990 values.
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    \8\ Cheyenne River Sioux Tribe's Additional Compensation claim for 
the Oahe Dam (GAO/RCED-98-39, Jan. 1998).
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                         summary of provisions

    S. 964, as amended and reported by the Committee on October 
13, 1999, contains two titles. Title I, the Cheyenne River 
Sioux Tribe Equitable Compensation Act, would provide 
additional compensation for the Cheyenne River Sioux Tribe 
pursuant to the GAO formula in an amount roughly proportionate 
to that provided for the Fort Berthold, Standing Rock, Crow 
Creek and Lower Brule tribes. The bill provides for the 
establishment in the U.S. Treasury of the Cheyenne River Sioux 
Tribal Recovery Trust Fund. On the first day of the 11th fiscal 
year that begins after the enactment of S. 964, the Secretary 
of the Treasury is directed to deposit into the Fund 
$290,722,958 from the General Fund of the Treasury, together 
with an additional amount that equals the amount of interest 
that would have accrued on that deposit had it been invested in 
interest-bearing obligations guaranteed as to both principal 
and interest by the United States, on the first day of the 
first fiscal year that begins after the date of enactment of 
this Act and compounded annually thereafter. The Secretary is 
to invest these funds only in interest-bearing obligations of 
the United States or in obligations guaranteed as to both 
principal and interest by the United States, and to deposit 
interest from such investments in the Fund. Beginning on the 
first day of the eleventh fiscal year after enactment, and on 
the first day of each fiscal year thereafter, the Secretary of 
the Treasury shall transfer the aggregate amount of interest on 
the Fund to the Secretary of the Interior, who shall use the 
money to make payments to the Tribe pursuant to tribal 
resolution. The Tribe could spend the interest earned on the 
Fund to promote its economic and infrastructure development, 
and the educational, health, recreational and social welfare 
objectives of the Tribe and its members. No amount of the 
principal could be withdrawn nor could any of the interest be 
used to make per capita payments to tribal members. Upon the 
deposit of funds, together with interest, into the Fund, S. 964 
would extinguish all monetary claims which the Tribe has or may 
have against the United States for the taking of its land and 
property by the United States for the Oahe Dam and Reservoir 
Project.
    Title II of S. 964, as amended, entitled the ``Bosque 
Redondo Memorial Act.'' This title would authorize $1,000,000 
in fiscal year 2000 and $500,000 for each of fiscal years 2001 
and 2002 for use as matching grants to the State of New Mexico 
to create a memorial to the nearly 9,000 Navajo Indians who 
were detained by the United States in 1863 and forced to march 
350 miles to Bosque Redondo, New Mexico, where they were 
incarerated at Fort Sumner, together with members of the 
Mescalero Apache Tribe. In 1868, the Navajo Nation signed a 
treaty with the United States, and the survivors of the ``Long 
Walk'' were allowed to return to their reservation after 
surviving five years of harsh living conditions. The grants and 
State matching funds would provide for the construction of a 
memorial and visitor/interpretive center at Fort Sumner State 
Monument in New Mexico that would offer all Americans 
opportunities to learn about and appreciate the significance of 
a painful episode in the history of the Navajo and Apache 
peoples' relationship with the United States Government.

                          legislative history

    In the 105th Congress, on April 2, 1998, Senator Daschle 
(D-SD) introduced S. 1905, the Cheyenne River Sioux Tribe 
Equitable Compensation Act, which was referred to the Committee 
on Indian Affairs. The Committee held a hearing on S. 1905 on 
July 8, 1998, and marked up and reported the bill on July 15, 
1998 (S. Rept. 105-363). The Congress adjourned without further 
action being taken on S. 1905.
    On May 5, 1999, Senator Daschle introduced S. 964, which 
included the provisions of S. 1905 as reported by the Committee 
on Indian Affairs in the 105th Congress. On October 13, 1999, 
the Committee held a hearing on S. 964, at which 
representatives of the Tribe and the Administration iterated 
their support for the Cheyenne River Sioux Tribe Equitable 
Compensation Act. The Administration's testimony expressed 
concern regarding the bill's funding provisions. This concern 
is addressed in the amendment-in-the-nature-of-a-substitute to 
S. 964 adopted by the Committee, which provides that the 
principal of the Tribal Recovery Trust Fund, together with 
interest from the date of enactment of S. 964, will not be 
deposited into the Fund until the 11th fiscal year after 
enactment.

            committee recommendation and tabulation of vote

    The Committee on Indian Affairs, in an open business 
session on August 3, 1999, adopted an amendment-in-the-nature-
of-a-substitute to S. 964 by voice vote and ordered the bill, 
as amended, reported favorably to the Senate.

        section-by-section analysis of the substitute amendment

       TITLE I--CHEYENNE RIVER SIOUX TRIBE EQUITABLE COMPENSATION


Section 101--Short title

    This section cites the short title of S. 964 as the 
``Cheyenne River Sioux Tribe Equitable Compensation Act''.

Section 102--Findings and purposes

    Subsection (a) of this section sets forth six Congressional 
findings:
    The first finding is that Congress approved the Pick-Sloan 
Missouri River 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 floods of the 
Missouri River; and for other purposes;
    The second finding is that the Oahe Dam and Reservoir 
project: (A) is a major component of the Pick-Sloan program, 
and contributes to the economy of the United States by 
generating a substantial amount of hydropower and impounding a 
substantial quantity of water; (B) overlies the eastern 
boundary of the Cheyenne River Sioux Indian Reservation; and, 
(C) not only has contributed little to the economy of the 
Cheyenne River Sioux Tribe but also has severely damaged the 
economy of the Tribe by inundating its most productive 
agricultural and pastoral lands;
    The third finding is that the Secretary appointed a Joint 
Tribal Advisory Committee that examined the Oahe Dam and 
Reservoir project and that advisory committee concluded that 
(A) the Federal Government did not justify, or fairly 
compensate the Tribe for, the Oahe Dam and Reservoir project 
when the Federal Government acquired 104,492 acres of land of 
the Tribe for that project; and, (B) the Tribe should be 
adequately compensated for the acquisition described in (A);
    The fourth finding is that the Comptroller General of the 
United States, after applying the same method of analysis used 
for the compensation of similarly situated Indian tribes, 
determined that the appropriate amount of compensation to pay 
the Tribe for the acquisition described in the sixth finding 
would be $290,722,958;
    The fifth finding is that the Tribe is entitled to receive 
additional financial compensation for the acquisition described 
in the third finding in a manner consistent with the 
determination of the Comptroller General referred to in the 
fourth finding; and,
    The sixth finding is that the establishment of a Tribal 
Recovery Trust fund (hereinafter the ``Fund'') with the amounts 
made available to the Tribe under this title is consistent with 
the principles of self-governance and self-determination.
    Subsection (b) of section 2 states the purposes of this 
title as (1) to provide for additional financial compensation 
to the Tribe for the acquisition of 104,492 acres of tribal 
land for the Oahe Dam and Reservoir project in a manner 
consistent with the determination of the Comptroller General of 
the United States described in the fourth finding; and, (2) to 
provide for the establishment of the Cheyenne River Sioux 
Tribal Recovery Trust Fund to be managed by the Secretary of 
the Treasury to make payments to the Tribe to carry out 
projects under a plan prepared by the Tribe.

Section 103--Definitions

    This section defines two terms used in title I: ``Tribe'' 
means the Itazipco, Siha Sapa Minniconjou, and Oohenumpa bands 
of the Great Sioux Nation that reside on the Cheyenne River 
Reservation, located in central South Dakota; and ``Tribal 
Council'' means the governing body of the Tribe.

Subsection 104--Cheyenne River Sioux Tribal Recovery Trust Fund

    Subsection (a) establishes in the Treasury of the United 
States a fund to be known as the ``Cheyenne River Sioux Tribal 
Recovery Trust Fund'', which shall consist of any amounts 
deposited into the Fund under title I.
    Subsection (b) requires the Secretary of the Treasury, on 
the first day of the 11th fiscal year that begins after the 
date of enactment of this Act, to deposit into the Fund, from 
the General Fund of the Treasury, $290,722,958, plus an 
additional amount that equals the amount of interest that would 
have accrued on the initial amount if such amount had been 
invested in interest-bearing obligations of the United States, 
or in obligations guaranteed as to both principal and interest 
by the United States, on the first day of the first fiscal year 
that begins after enactment of this Act and compounded annually 
thereafter.
    Subsection (c) requires the Secretary to invest such 
portion of the Fund as is not, in the Secretary's judgment, 
required to meet current withdrawals. Such investments may be 
made only in interest-bearing obligations of the United States 
or in obligations guaranteed as to both principal and interest 
by the United States. The Secretary of the Treasury shall 
deposit interest resulting from such investments into the Fund.
    Subsection (d)(1) requires the Secretary, beginning on the 
first day of the 11th fiscal year after the date of enactment 
of this Act, and on the first day of each fiscal year 
thereafter, to withdraw the aggregate amount of interest 
deposited into the Fund for that fiscal year and transfer that 
amount to the Secretary of the Interior for use in accordance 
with paragraph (2). Each amount so transferred shall be 
available without fiscal year limitation. Subparagraph (2)(A) 
requires the Secretary of the Interior to use the amounts 
transferred under paragraph (1) only for the purpose of making 
payments to the Tribe, as such payments are requested by the 
Tribe pursuant to tribal resolution. Subparagraph (2)(B) bars 
the Secretary from making any payments under subparagraph 
(2)(A) until after the Tribe has adopted a plan under 
subsection (f). Subparagraph (2)(C) requires the Tribe to use 
the payments made under subparagraph (B) only for carrying out 
projects and programs under the plan prepared under subsection 
(f).
    Subsection (e) provides that the Secretary of the Treasury 
may not transfer or withdraw any amount deposited under 
subsection (b) except as provided in subsections (c) and 
(d)(1).
    Subsection (f)(1) requires that, no later than 18 months 
after the date of enactment of this Act, the governing body of 
the Tribe is to prepare a plan for the use of the payments made 
to the Tribe under subsection (d).
    Subsection (f)(2) requires that the plan developed under 
this subsection provide for the manner in which the Tribe will 
expend the payments it will receive under subsection (d) to 
promote economic development, infrastructure development, 
educational, health, recreational, and social welfare 
objectives of the Tribe and its members, or any combination of 
these activities.
    Subsection (f)(3) requires the Tribal Council to make 
available for review and comment by the members of the Tribe a 
copy of the plan before it becomes final, in accordance with 
procedures established by the Tribal Council. The Tribal 
Council may update the plan annually by revising it in a manner 
that provides the members of the Tribe to review and comment on 
any proposed revision. In preparing the Plan and any revisions 
to update it, the Tribal Council shall consult with the 
Secretary of the Interior and the Secretary of Health and Human 
Services.
    Subsection (f)(4) provides that the activities of the Tribe 
in carrying out the plan under this subsection shall be audited 
as part of the annual single-agency audit that the Tribe is 
required to prepare pursuant to the Office of Management and 
Budget Circular A-133, that the audit shall include written 
findings as to whether the funds received by the Tribe under 
this subsection to carry out the plan were expended in a manner 
consistent with this section, and that a copy of these findings 
shall be inserted in the published minutes of the Tribal 
Council proceedings for the session at which the audit is 
presented to the Tribal Council.
    Subsection (g) prohibits any portion of any payment made 
under this section from being distributed to any member of the 
Tribe on a per capita basis.

Section 105--Eligibility of tribe for certain programs and services

    This section provides that no payment made 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, (1) 
the Tribe is otherwise entitled because of the status of the 
Tribe as a federally recognized Indian Tribe or (2) any 
individual who is a member of the Tribe is entitled because of 
the status of the individual as a member of the Tribe.

Section 106--Authorization of appropriations

    This section authorizes to be appropriated such funds as 
may be necessary to cover the administrative expenses of the 
Trust Fund.

Section 107--Extinguishment of claims

    This section provides that, upon the deposit of funds, 
together with interest, into the Fund under section 104(b), all 
monetary claims that the Tribe has or may have against the 
United States for the taking, by the United States, of the land 
and property of the Tribe for the Oahe Dam and Reservoir 
Project of the Pick-Sloan Missouri River Basin program shall be 
extinguished.

                   TITLE II--BOSQUE REDONDO MEMORIAL


Sec. 201. Short title

    Section (a) of this section sets forth thirteen 
Congressional findings.
    The first finding states that in 1863, the United States 
detained nearly 9,000 Navajo and forced their migration across 
nearly 350 miles of land to Bosque Redondo, a journey know as 
the ``Long Walk''.
    The second finding states that Mescalero Apache people were 
also incarcerated at Bosque Redondo.
    The third finding states that the Navajo and Mescalero 
Apache people labored to plant crops, dig irrigation ditches 
and build housing, but drought, cutworms, hail, and alkaline 
Pecos River water created severe living conditions for the 
captives.
    The fourth finding states that the suffering endured by the 
Navajo and Mescalero people forged a new understanding of their 
strengths as Americans.
    The fifth finding states that the Treaty of 1868, signed by 
the United States and the Navajo Tribes, recognizing the Navajo 
Nation as it exists today.
    The sixth finding states that the State of New Mexico has 
appropriated a total of $123,000 for a planning study and for 
the design of the Bosque Redondo Memorial.
    The seventh finding states that individuals and business in 
DeBaca County donated $6,000 toward the production of a 
brochure relating to the Bosque Redondo Memorial.
    The eighth finding states that the Village of Fort Sumner 
donated 70 acres of land to the State of New Mexico contiguous 
to the existing 50 acres comprising Fort Sumner State Monument, 
contingent on the funding of the Bosque Redondo Memorial.
    The ninth finding states that full architectural plans and 
the exhibit design for the Bosque Redondo Memorial have been 
completed.
    The tenth finding states that the Bosque Redondo Memorial 
project has the encouragement of the President of the Navajo 
Nation and the President of the Mescalero Apache Tribe, who 
have each appointed tribal members to serve as project 
advisors.
    The eleventh finding states that the Navajo Nation, the 
Mescalero Tribe and the National Park Service are collaborating 
to develop a symposium on the Bosque Redondo Long Walk and a 
curriculum for inclusion in the New Mexico school curriculum.
    The twelfth finding states that the interpretive center 
would provide important educational and enrichment 
opportunities for all Americans.
    The thirteenth finding states that Federal financial 
assistance is needed for the construction of a Bosque Redondo 
Memorial.
    Subsection (b) sets forth the purposes of this title as (1) 
to commemorate the people who were interned at Bosque Redondo; 
(2) to pay tribute to the Native populations' ability to 
rebound from suffering and establish strong, living communities 
that have long been a major influence in the State of New 
Mexico and in the United States; (3) to provide Americans of 
all ages a place to learn about the Bosque Redondo experience 
and how it resulted in the establishment of strong American 
Indian Nations from once divergent bands; and, (4) to support 
the construction of the Bosque Redondo Memorial commemorating 
the detention of the Navajo and Mescalero Apache people at 
Bosque Redondo from 1863 to 1868.

Section 203. Definitions

    This section defines two terms used in title II: 
``Memorial'' means the building and grounds known as the Bosque 
Redondo Memorial, and ``Secretary'' means the Secretary of 
Defense.

Section 204. Bosque Redondo Memorial

    Subsection (a) provides that, upon the request of the State 
of New Mexico, the Secretary is authorized to establish a 
Bosque Redondo Memorial within the boundaries of Fort Sumner 
State Monument in New Mexico. No memorial shall be established 
without the consent of the Navajo Nation and the Mescalero 
Apache Tribe.
    Subsection (b) provides that the components of the Memorial 
shall include: (1) exhibit space, a lobby area that represents 
design elements from traditional Mescalero and Navajo 
dwellings, administrative areas that include a resource room, 
library, workrooms and offices, restrooms, parking areas, 
sidewalks, utilities, and other visitor facilities; (2) a venue 
for public education programs; and, (3) a location to 
commemorate the Long Walk of the Navajo people and the healing 
that has taken place since that event.

Section 205. Construction of Memorial

    Subsection (a) provides that the Secretary may award a 
grant to the State of New Mexico to provide up to 50 percent of 
the total cost of construction of the Memorial, and that the 
non-Federal share of construction costs of the Memorial shall 
include funds previously expended by the State for the planning 
and design of the Memorial, and by non-Federal entities for the 
production of a brochure relating to the Memorial.
    Subsection (b) requires the State of New Mexico, to be 
eligible for a grant under this section, (1) to submit to the 
Secretary a proposal that provides assurances that the Memorial 
will comply with all applicable laws, including building codes 
and regulations, and includes such other information and 
assurances as the Secretary may require; and, (2) to enter into 
a Memorandum of Understanding with the Secretary that shall 
include a timetable for the completion of construction and the 
opening of the Memorial; assurances that construction contracts 
will be competitively awarded; assurances that the State or 
Village of Fort Sumner will make sufficient land available for 
the Memorial; the specifications of the Memorial which shall 
comply with all applicable Federal, State, and local building 
codes and laws; arrangements for the operation and maintenance 
of the Memorial upon completion of construction; a description 
of Memorial collections and educational programming; a plan for 
the design of exhibits including the collections to be 
exhibited, security, preservation, environmental controls, and 
presentations in accordance with professional standards; an 
agreement with the Navajo Nation and the Mescalero Tribe 
relative to the design and location of the Memorial; and, a 
financing plan developed by the State that outlines the long-
term management of the Memorial, including the acceptance and 
use of funds developed from public and private sources to 
minimize the use of appropriated or borrowed funds, the payment 
of the operating costs of the Memorial through the assessment 
of fees or other income generated by the Memorial; a strategy 
for achieving financial self-sufficiency with respect to the 
Memorial by not later than 5 years after the date of enactment 
of this Act, and a description of the business activities that 
would be permitted at the Memorial and appropriate vendor 
standards that would apply.

Section 206. Authorization of appropriations

    Subsection (a) authorizes to be appropriated to carry out 
this title $1,000,000 for fiscal year 2000 and $500,000 for 
each of fiscal years 2001 and 2002.
    Subsection (b) provides that any funds made available under 
this section that are unexpended at the end of the fiscal year 
for which those funds are appropriated shall remain available 
for use by the Secretary through September 30, 2002 for the 
purposes for which those funds were made available.

                   cost and budgetary considerations

    The cost estimate for S. 964, as amended, as provided by 
the Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, November 5, 1999.
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. 964, a bill to 
provide for equitable compensation for the Cheyenne River Sioux 
Tribe, and for other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan Carroll 
(for federal costs), and Marjorie Miller (for the impact on 
state, local, and tribal governments).
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

S. 964--A bill to provide for equitable compensation for the Cheyenne 
        River Sioux Tribe, and for other purposes

    Summary: S. 964 would compensate the Cheyenne River Sioux 
Tribe--in 2011--for the taking of certain lands in South Dakota 
and would authorize appropriations for the construction of a 
memorial for the Navajo and Mescalero Apache people who were 
incarcerated at Bosque Redondo, New Mexico, in the 1800s. CBO 
estimates that implementing S. 964 would increase discretionary 
spending by $2 million over the 2000-2004 period, assuming 
appropriation of the specified amounts. Enacting S. 964 also 
would increase direct spending by an estimated $492 million, 
but pay-as-you-go procedures would not apply because the outlay 
would not occur until fiscal year 2011.
    S. 964 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA). 
State, local, and tribal governments might incur some costs as 
a result of the bill's enactment, but these costs would be 
voluntary.
    Estimated cost to the Federal Government: For purposes of 
this estimate, CBO assumes that S. 964 will be enacted early in 
fiscal year 2000 and that the authorized appropriations will be 
provided as specified by the bill. Estimated outlays are based 
on historical spending patterns for similar activities.

Direct spending

    Title I of S. 964 would provide additional compensation to 
the Cheyenne River Sioux Tribe for the taking of 104,492 acres 
of land by the federal government to construct the Oahe Dam and 
Reservoir project. Construction of the dam began in 1948 and 
compensation of about $10 million was paid to the tribute in 
1955. The bill would establish the Cheyenne River Sioux Tribal 
Recovery Trust Fund and would direct the Secretary of the 
Treasury to deposit $291 million in the fund on the first day 
of fiscal year 2011. An additional deposit equal to the amount 
of interest that the fund would have earned if the fund had 
been capitalized and invested in 2001 would be made at the same 
time. CBO estimates that this additional payment would total 
$201 million, for a total deposit of $492 million in 2011. Once 
the Secretary pays these amounts, any monetary claims the tribe 
may have against the United States regarding this project would 
be extinguished. Starting in 2011, the bill would allow the 
tribe to spend amounts equivalent to the annual interest earned 
on the fund pursuant to a tribal spending plan.
    As of the start of fiscal year 2000, the federal budget 
totals exclude trust funds that are held and managed in a 
fiduciary capacity by the federal government on behalf of 
Indian tribes. Hence, deposits to the trust fund established 
under this bill would be treated as payments to a nonfederal 
entity. As a result, CBO expects that the entire amount 
deposited to the fund in 2011 would be recorded as budget 
authority and outlays in that year. Because the trust fund 
would be nonbudgetary, the subsequent use of such funds by the 
tribe would not affect federal outlays.

Spending subject to appropriation

    Title I would authorize the appropriation of such sums as 
may be necessary to cover the administrative costs of the 
Cheyenne River Sioux Tribal Recovery Trust Fund. Based on 
information from the Department of the Interior, CBO estimates 
that these costs would not be significant in any year.
    Title II would authorize the Secretary of Defense, upon the 
request of the state of New Mexico, to establish the Bosque 
Redondo Memorial within the boundaries of Fort Sumner State 
Monument. The bill would authorize appropriations totaling $2 
million over the 2000-2002 period for the Secretary to make 
grants to New Mexico for up to 50 percent of the cost of 
constructing the monument. The bill would require the state to 
match the federal contribution to be eligible for the grants. 
Based on information from the state, CBO expects these matching 
funds to be provided during 2000. Assuming appropriation of the 
specified amounts, CBO estimates that the entire federal share 
of the cost of constructing the monument would be spent during 
the 2000-2004 period.
    Pay-as-you-go considerations: The Balanced Budget and 
Emergency Deficit Control Act sets up pay-as-you-go procedures 
for legislation affecting direct spending or receipts. For the 
purposes of enforcing pay-as-you-go procedures, only the 
effects in the budget year and the succeeding four years are 
counted. Although enacting this legislation would increase 
direct spending by an estimated $492 million, pay-as-you-go 
procedures would not apply to the bill because the outlay would 
occur in fiscal year 2011.
    Estimated impact on state, local, and tribal governments: 
S. 964 contains no intergovernmental mandates as defined in 
UMRA, but it would impose some conditions on the Cheyenne River 
Sioux and on the state of New Mexico for receipt of federal 
funds. Title I would require the tribe to prepare and adopt a 
plan for using payments from the trust fund and to obtain an 
audit of the funded expenditures. Based on information provided 
by tribal officials, CBO does not expect that these 
requirements would result in significant additional costs for 
the tribe. Title II would require New Mexico to contribute 
matching funds equal to 50 percent of the costs of constructing 
the Bosque Redondo Memorial.
    Estimated impact on the private sector: This bill contains 
no new private-sector mandates as defined in UMRA.
    Estimate prepared by: Federal costs: Megan Carroll. Impact 
on state, local, and tribal governments: Marjorie Miller.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                      regulatory 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 bill, S. 964, as amended. The Committee finds 
that the regulatory impact of S. 964, as amended, will be 
minimal.

                        executive communications

    The Committee received the statement of Terry Virden, 
Director, Office of Trust Responsibilities, Bureau of Indian 
Affairs, U.S. Department of the Interior, on August 3, 1999, 
regarding S. 964.

Statement of Terry Virden, Director, Office of Trust Responsibilities, 
          Bureau of Indian Affairs, 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. 964. I want to thank Senator Daschle for 
introducing this important bill that addresses impacts to the 
Cheyenne River Sioux Tribe resulting from the Pick-Sloan 
Missouri River Basin program and in particular the development 
of the Oahe Dam and Reservoir project. If enacted, this bill 
would give the Tribe much deserved benefits to compensate for 
those impacts.
    S. 964 is a continuation of the United States' honorable 
efforts to correct inequities resulting from a regional Federal 
project which severely affected Indian tribal homelands along 
the Missouri River. In the early 1990's the United States 
forthrightly addressed impacts to the Standing Rock Sioux Tribe 
and the Three Affiliated Tribes of the Fort Berthold 
Reservation and in 1996 and 1997, respectively, addressed the 
impacts to the Crow Creek Sioux Tribe and the Lower Brule Sioux 
Tribe.
    In 1944, the United States undertook the challenge to 
reduce flooding in the lower Missouri River Basin through the 
construction of monumental dams capable of harnessing the 
seasonal raging flows of the Missouri River. In addition, these 
dams could generate electrical power and needed hundreds of 
thousands of acres of land to serve as reservoirs for the 
storage of water for timed release. So great was the water 
resource that a whole regional economy grew from the electric 
power generated by these dams.
    The preproject tribal economy, however, was based on 
working the rich wooded bottom lands along the Missouri River. 
These lands were flooded for the reservoir and the Tribe has 
never seen the former economy again. In addition, the 
importance of cultural treasures lost to inundation is now 
well-known. These are impacts that bring special meaning to the 
word ``recovery'' used in Purpose Number 2 of S. 964.
    While this is not the final chapter in addressing 
compensation for all of the river Tribes in the region, a step 
taken for the Cheyenne River Sioux Tribe will bring the United 
States closer to providing full equity to these Missouri River 
Tribes.
    Although we support S. 964, we are still concerned about 
the pay-as-you-go implications concerning the payment scheme to 
be used to arrive at the total figure for the Cheyenne River 
Sioux compensation. Additionally, as noted in testimony on S. 
1905 during the 105th Session, the Administration is concerned 
that this type of off-budget financing approach appears to be 
without cost. A more straightforward approach would be to rely 
on the authorization/discretionary appropriation process. We 
will be happy to work with the Committee on developing a viable 
solution.
    This concludes my testimony in support of S. 964. 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. 964 
will not result in any changes in existing law.

                                  
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