[Senate Report 106-474]
[From the U.S. Government Publishing Office]
Calendar No. 923
106th Congress Report
SENATE
2d Session 106-474
======================================================================
PROVIDING FOR THE SETTLEMENT OF ISSUES AND CLAIMS RELATED TO THE TRUST
LANDS OF THE TORRES-MARTINEZ DESERT CAHUILLA INDIANS, AND FOR OTHER
PURPOSES
_______
October 3 (legislative day, September 22), 2000.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany H.R. 4643]
The Committee on Indian Affairs, to which was referred the
bill (H.R. 4643) to provide for the settlement of issues and
claims related to the trust lands of the Torres-Martinez Desert
Cahuilla Indians, and for other purposes, having considered the
same, reports favorably thereon without amendment and
recommends that the bill do pass.
purpose
The purpose of H.R. 4643 is to provide for the settlement
of issues and claims related to the trust lands of the Torres-
Martinez Desert Cahuilla Indians of California.
background
The Torres-Martinez Desert Cahuilla Indians have lived in
the Coachella Valley area of Southern California for hundreds
of years. The Tribe currently numbers more than 500 members who
live on or in the vicinity of the more than 40 separate land
parcels that comprise the Torres-Martinez Reservation.
The Torres-Martinez Indian Reservation was created in 1876
in the Coachella Valley north of the Salton Sink. In 1891, an
Executive Order expanded the original 640-acre reservation by
about 12,000 acres. Between 1905 and 1907, flood waters of the
Colorado River filled the Salton Sink, creating the Salton Sea
and inundating about 2,000 acres of the 1891 reservation lands.
In 1909, a Secretarial Order transferred another 12,000 acres
of land to the Reservation. About 9,000 acres of these lands
were submerged under the Salton Sea; however, it was expected
at the time of the transfer that the Salton Sea would recede
from these lands within 25 years. Contrary to expectations, the
Salton Sea did not recede, in large part due to natural runoff
and drainage water flowing into it from the irrigation systems
of the Imperial, Coachella, and Mexicali Valleys. This
irrigation drainage was facilitated by various actions by the
federal government, including construction of the Coachella
Canal in the 1940's. Currently, 11,800 acres of the Tribe's
25,000-acre reservation are either under water or are not
irrigable due to lack of proper drainage.
In 1982, the United States brought an action in trespass in
the Federal District Court of Southern California on behalf of
the Tribe and its affected allottee landowners against the
Imperial Irrigation District and the Coachella Valley Water
District. See United States of America, et al. v. The Imperial
Irrigation District, et al. (Case No. 82-1790-K (M)). This suit
sought damages related to the inundation of Indian lands and
injunctive relief against further flooding of those lands. On
August 25, 1992, the court entered a final judgment which found
the two districts liable for trespass but denied the United
States' request for injunctive relief and ejectment. The Court
ordered the two districts to pay the Tribe a total of
$3,008,602 in past and future damages in lieu of a permanent
injunction against continued flooding of the submerged lands.
The United States, the two districts and the Tribe appealed
the District Court's decision to the Ninth Circuit Court of
Appeals. Subsequently, the Interior and Justice Departments
entered into negotiations with the Tribe and the two districts
in an effort to avoid a lengthy and costly appellate process
and to resolve finally the dispute. Another objective of the
negotiations was to resolve similar claims brought by the Tribe
and affected allottees in a separate lawsuit against the United
States and the two districts. To facilitate settlement
negotiations, the court stayed action on the appeals as well as
initial action on the Tribe's separate suit.
In June, 1996, after months of difficult negotiations,
representatives of the United States, the Tribe, the Imperial
Irrigation District and the Coachella Valley Water District
signed a Settlement Agreement that resolves their conflicting
claims and provides for dismissal of litigation. Legislation
necessary to ratify this Settlement Agreement and to authorize
the Federal actions and appropriations necessary for its
implementation was introduced in the House of Representatives
on June 16, 1996, by Representative Sonny Bono as H.R. 3640. On
June 19, 1996, Senators Dianne Feinstein and Barbara Boxer
introduced companion legislation in the Senate as S. 1893. The
House Committee on Resources subsequently reported H.R. 3640
(H. Report 104-777) and the House passed the bill on September
10, 1996. In the Senate, the Committee on Indian Affairs held a
hearing on S. 1863 on July 18, 1996, and reported the bill
favorably to the Senate on July 24th (S. Rept. 104-360).
However, neither bill was considered by the full Senate before
the 104th Congress adjourned sine die.
No Torres-Martinez settlement legislation was introduced in
the 105th Congress, during which time various legal and
legislative efforts were under way in California to clarify
state law with respect to gaming. Because the outcome of these
efforts would have a direct bearing on key settlement
provisions, and because there was a need to address concerns
raised by the Cabazon Band of Mission Indians regarding the
proximity to their reservation of possible land selections by
the Torres-Martinez Tribe for gaming purposes, settlement
legislation was held in abeyance. By the time the second
session of the 106th Congress convened, the legal status of
gaming in California, and Indian gaming in particular, had been
clearly established. Consequently, on June 13, 2000,
Representative Mary Bono for herself and Representative George
Miller introduced H.R. 4643, which was referred to the
Committee on Resources. On July 26, 2000, the Committee
reported the bill favorably and on September 19, 2000, the
House passed H.R. 4643 and sent it to the Senate, where it was
referred to the Committee on Indian Affairs.
Summary of settlement provisions
As passed by the House of Representatives, H.R. 4643 is
essentially the same legislation that was introduced in the
House and the Senate in the 104th Congress as H.R. 3640 and S.
1863, respectively. The primary difference is new language in
the Settlement Agreement and in section 6 of H.R. 4643 that
reflects an agreement negotiated by representatives of the
Torres-Martinez Tribe and the Cabazon Band of Mission Indians,
with involvement by Executive Branch and Congressional
representatives, regarding the proximity of possible future
land selections by the Torres-Martinez Tribe to lands of the
Cabazon Band.
H.R. 4643 ratifies the Torres-Martinez Settlement Agreement
and provides for its implementation. The bill provides for the
establishment of trust accounts in the United States Treasury
for the benefit of the Tribe and its affected allottee
landowners. It authorizes payment of $10,200,000 in Federal
funds--$4.2 million from the Department of Justice Judgment
Fund and $6 million in appropriated funds, to be paid into the
tribal and allottee trust accounts. The Coachella Valley Water
District will pay approximately $338,000 and the Imperial
Irrigation District will pay approximately $3,671,000 into
these accounts, making the settlement payments total
$14,200,000.
The Settlement Agreement and H.R. 4643 provide authority
for the Interior Department to take into trust status up to
11,800 acres of land (an amount equal to the flooded area of
the Torres-Martinez reservation) purchased or otherwise
acquired by the Tribe within two separate acquisition areas
defined in the Settlement Agreement that are located roughly
within the western and eastern boundaries of the Coachella
Valley, subject to certain conditions. Trust acquisitions
within the secondary area are limited to 640 acres and must be
consolidated into not more than two separate parcels. Trust
acquisitions in the primary area are limited to 11,800 acres
minus the number of acres acquired in the secondary acquisition
area.
The Settlement Agreement and the Act further provide that
the Secretary shall not take into trust status any land
acquired by the Tribe within either the primary or the
secondary acquisition area if the governing body of a city
within whose incorporated area the land is located, or, if the
land is unincorporated, the governing body of Riverside County,
objects to such trust acquisition. Under the terms of the
Settlement Agreement, lands located within either land
selection area and situated within two miles of the reservation
lands of any other Indian tribe will not be eligible for
conveyance into trust absent the consent of the affected Indian
tribe.
The new language added by the House in section 6 of H.R.
4643 further bars the Secretary from taking into trust for the
Tribe under generally applicable Federal statutes or
regulations any lands that are both outside the boundaries of
the secondary acquisition area and contiguous to any lands
within the secondary acquisition area that are taken into trust
pursuant to the Settlement Agreement and this Act.
The Tribe's right to conduct gaming on lands taken into
trust pursuant to the settlement is limited and restricted to
one gaming operation on one physical site. Any gaming on these
lands must be conducted consistent with the requirements of the
Indian Gaming Regulatory Act (25 U.S.C. 2701; 102 Stat. 2467).
Lands taken into trust for the Tribe shall be considered as if
they were acquired in 1909 except with respect to water rights.
Lands acquired by the Tribe will be subject to all valid water
rights existing at the time of acquisition, and the Tribe will
obtain all valid water rights appurtenant to acquired lands.
The settlement also provides that the Tribe and the United
States will convey to the water districts a permanent flowage
easement over all Indian trust lands (approximately 11,800
acres), and all Federal lands (approximately 110,000 acres)
located within and below the minus 200, contour of the Salton
Sink.
legislative history
H.R. 4643 was introduced on June 13, 2000, by
Representative Mary Bono and Representative George Miller (D-
CA) and referred to the Committee on Resources. On July 26,
2000, the Resources Committee ordered H.R. 4643 reported
favorably to the House of Representatives. On September 18,
2000, the House passed H.R. 4643 and on September 19, 2000, the
bill was received by the Senate and referred to the Committee
on Indian Affairs.
committee recommendation and tabulation of vote
On September 27, 2000, the Committee on Indian Affairs, in
an open business session, considered H.R. 4643 and on a roll
call vote of 8 yeas and 2 nays, ordered the bill reported
favorably without amendment.
section-by-section analysis
Section 1. Short title
This section cites the short title of H.R. 4643 as the
``Torres-Martinez Desert Cahuilla Indians Claims Settlement
Act.''
Section 2. Congressional findings and purpose
This section sets forth Congressional findings and purpose.
Subsection (a) states findings and declarations that:
(1) in 1876, 640 acres north of the Salton Sink in
the Coachella Valley, California, were designated as
the Torres-Martinez Indian Reservation; in 1891, an
Executive Order issued pursuant to the Mission Relief
Act of 1891 added another 12,000 acres to the
reservation;
(2) between 1905 and 1907, Colorado River flood
waters filled the Salton Sink, creating the Salton Sea
and inundating approximately 2,000 acres of the 1891
reservation lands;
(3) in 1909, a Secretarial Order, issued pursuant to
a 1907 amendment to the Mission Relief Act, added
12,000 acres of land, 9,000 of which were then
submerged under the Salton Sea, to the reservation,
with the expectation that the sea would recede from the
submerged acreage within 25 years;
(4) a majority of the lands added to the reservation
in 1909 remain inundated due in part to the flowage of
natural runoff and drainage water from irrigation
systems of the Imperial, Coachella, and Mexicali
Valleys into the Salton Sea;
(5) in addition to the inundated lands, other tribal
and individual Indian lands located on the perimeter of
the Salton Sea are not irrigable due to the lack of
proper drainage;
(6) in 1982, the United States, in its own right and
on behalf of the Tribe and allottees, brought an action
in trespass seeking damages and injunctive relief (the
United States Suit) against the Imperial Irrigation
District (IID) and Coachella Valley Water District
(CVWD);
(7) in 1992, a Federal court entered judgment in the
United States Suit requiring CVWD to pay $212,908 and
IID to pay $2,795,694, in past and future damages to
the Tribe in lieu of a permanent injunction against
continued flooding of submerged lands;
(8) the United States, CVWD and IID and the Tribe
filed notices of appeal regarding the United States
Suit;
(9) the Court of Appeals for the Ninth Circuit stayed
further action on appeals pending the outcome of
settlement negotiations;
(10) in 1991, the Tribe, for itself and for an
individual allottee in her own right and as class
representative of all other affected Indian allottees,
brought suit (the Indian Suit) against the two water
districts;
(11) the Indian Suit was stayed by the court to
facilitate settlement negotiations.
Subsection (b) provides that the purpose of the bill is to
facilitate and implement the Settlement Agreement negotiated
and executed by the parties to the United States Suit and the
Indian Suit for the purpose of resolving their conflicting
claims to their mutual satisfaction and in the public interest.
Section 3. Definitions
This section provides definitions of the terms ``Tribe'';
``Allottees''; ``Salton Sea''; ``Settlement Agreement'';
``Secretary''; and ``Permanent Flowage Easement''.
Section 4. Ratification of settlement agreement
This section provides that the United States approves,
ratifies and confirms the Settlement Agreement.
Section 5. Settlement funds
Subsection (a) provides for one tribal and two allottee
settlement trust fund accounts to be established in the United
States treasury for the Tribe and Allottees, deposits into
which shall be available to the Secretary for distribution to
the Tribe and Allottees in accordance with subsection 5(c).
These accounts shall be known as the ``Torres-Martinez
Settlement Account''; the ``Torres-Martinez Allottees
Settlement Account I''; and, the Torres-Martinez Settlement
Account II''.
Subsection (b) provides for CVWD to pay $337,908 and IID to
pay $3,670,694 to the United States for the benefit of the
Tribe and Allottees; for such payments to be allocated to the
three trust fund accounts pursuant to the Settlement Agreement;
for the United States to pay $4,200,000 from the Department of
Justice Judgment Fund and $6,000,000 to be appropriated by
Congress into the three trust fund accounts; for CVWD or IID to
pay an additional amount on any delinquent payment; and for
CVWD, IID and the United States to be severally, not jointly,
liable for its respective obligations to make payments under
this subsection (b).
Subsection (c) requires the Secretary to administer the
three trust fund accounts established under subsection (a) in
accordance with the terms and conditions of the Settlement
Agreement.
Section 6. Trust land acquisition and status
Subsection (a) provides that the Secretary shall convey
into trust status not more than 11,800 acres of land purchased
or otherwise acquired by the Tribe within two geographic areas
in accordance with the Settlement Agreement and this Act, and
that such lands shall be considered as if they were acquired in
1909 except with respect to water rights.
The Tribe may acquire and have conveyed into trust status
11,800 acres of land within a ``primary acquisition area'', as
defined in the Settlement Agreement, less the number of
acresacquired and conveyed into trust within a ``secondary acquisition
area'', as defined in the Settlement Agreement. Not more than 640 acres
of land may be acquired in the secondary acquisition area.
The Secretary shall not convey into trust any lands located
in the primary acquisition area if the governing body of the
city within whose incorporated boundaries the subject land lie,
or, if the lands are located within an unincorporated area, the
governing body of Riverside County, objects to the Tribe's
request to convey the lands into trust and notifies the
Secretary of such objection within 60 days of receiving the
Tribe's request.
The Secretary shall not convey into trust any lands located
in the secondary acquisition area if the governing body of the
city within whose incorporated boundaries the subject lands
lie, or, if the lands are located within an unincorporated
area, the governing body of Riverside County, objects to the
Tribe request to convey the lands into trust and notifies the
Secretary of such objection within 60 days of receiving the
Tribe's request.
The Secretary shall not take into trust for the Tribe under
generally applicable Federal statutes or regulations any lands
that are both outside the boundaries of the secondary
acquisition area and contiguous to any lands within the
secondary acquisition area that are taken into trust pursuant
to the terms of the Settlement Agreement and this Act.
Subsection (b) provides that the Tribe may conduct gaming
on only one site within the lands acquired under this section
using the acquisition process established under the Settlement
Agreement.
Subsection (c) provides that all lands acquired by the
Tribe shall be subject to: (1) all valid water rights existing
at the time of acquisition; (2) the paramount rights of any
person who recharges or stores water in a groundwater basin;
and (3) all valid water rights appurtenant to the land at the
time immediately prior to tribal acquisition.
Section 7. Permanent flowage easements
This section provides that the United States, as trustee
for the Tribe and individual Indian allotment owners, and the
Tribe shall convey to the CVWD and to the IID a permanent
flowage easement as to all Indian trust lands (approximately
11,800 acres) located within and below the minus 220-foot
contour of the Salton Sink. It further provides that the United
States, in its own rights, shall convey to CVWD and the IID a
permanent flowage easement as to all Federal lands
(approximately 110,000 acres), located within and below the
minus 220-foot contour of the Salton Sink, in accordance with
the terms and conditions of the Settlement Agreement.
Section 8. Satisfaction of claims, waivers, and releases
Subsection (a) provides that the benefits available to the
Tribe and allottees under the Settlement Agreement and this Act
shall constitute full and complete satisfaction of all claims
by the Tribe and the allottees arising from or related to the
inundation and lack of drainage of tribal and allottee lands.
Subsection (b) provides that the United States approves and
confirms the releases and waivers required by the Settlement
Agreement and this Act.
Section 9. Miscellaneous provisions
Subsection (a) provides that nothing in the Act of the
Settlement Agreement shall affect the eligibility of the Tribe
or its members for any Federal program or diminish the trust
responsibility of the United States to the Tribe and its
members.
Subsection (b) provides that no payments made pursuant to
this Act shall result in the reduction or denial of any Federal
services or programs to the Tribe or its members to which they
are entitled or eligible because of their status as a Federally
recognized Tribe or member thereof.
Subsection (c) provides that except for rights specifically
waived in the Act or the Settlement Agreement, nothing in this
Act shall affect or diminish any right to which the Tribe is
entitled under existing law.
Subsection (d) provides that the Settlement Agreement may
be amended in accordance with its terms and conditions to the
extent that such amendments are not inconsistent with the trust
land acquisition provisions of the Settlement Agreement as such
provisions existed on the date of enactment of this Act in the
case of Modifications One and Three, and on September 14, 2000,
in case of Modification Four.
Section 10. Authorization of appropriations
This section authorizes the appropriation of such sums as
are necessary to carry out this Act.
Section 11. Effective dates
Subsection (a) provides that this Act shall become
effective on the date of enactment, except as provided in
subsection (b).
Subsection (b) provides that Sections 4, 5, 6, 7, and 8
shall take effect on the date on which the Secretary determines
that the Tribe, CVWD, and IID have agreed to the Settlement
Agreement and the provisions of this Act, and that the Tribe
has executed the waivers and releases required by the
Settlement Agreement and this Act.
cost and budgetary consideration
The cost and budgetary estimate for H.R. 4643, as provided
by the Congressional Budget Office, is set forth below:
H.R. 4643--Torres-Martinez Desert Cahuilla Indians Claims Settlement
Act
Summary: H.R. 4643 would ratify a settlement agreement
entered into by the Department of Justice (DOJ), the Imperial
Irrigation District, the Coachella Valley Water District, and
the Torres-Martinez Desert Cahuilla Indian Tribe. Under the
agreement, the tribe would receive a total of $10 million from
the federal government to compensate the tribe for the flooding
of reservation lands and relief against further inundation of
those lands. In addition, the Department of the Interior (DOI)
would take into trust up to 11,800 acres of land acquired by
the tribe, and the tribe would be permitted to conduct gaming
on this land.
The legislation would authorize the appropriation of $6
million to the tribe to satisfy the terms of the settlement
agreement. CBO estimates that implementing H.R. 4643 would cost
$6 million in fiscal year 2001. Under the settlement, an
additional $4 million would be paid from the Judgment Fund to
the tribe, and would not require appropriation action. Enacting
H.R. 4643 would result in direct spending of $4 million in
fiscal year 2001. Because the legislation would affect direct
spending, pay-as-you-go procedures would apply. The legislation
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act (UMRA). Any costs
resulting from the settlement agreement would be incurred
voluntarily by the parties to that agreement.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 4643 is shown in the following table.
This estimate assumes that the amounts authorized will be
appropriated and that the legislation will be enacted near the
beginning of fiscal year 2001. The costs of this legislation
fall within budget function 800 (general government) and 450
(community and regional development).
------------------------------------------------------------------------
By fiscal year, in millions of
dollars--
---------------------------------------
2001 2002 2003 2004 2005
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level............. 6 0 0 0 0
Estimated Outlays............... 6 0 0 0 0
CHANGES IN DIRECT SPENDING
Budget Authority................ 4 0 0 0 0
Estimated Outlays............... 4 0 0 0 0
------------------------------------------------------------------------
Basis of estimate: H.R. 4643 would authorize DOJ and DOI to
make payments to new tribal trust funds, including $4 million
from the Judgment Fund and $6 million from appropriated
amounts. These funds could be spent on attorney fees, per
capita payments, land acquisition, and other activities as
provided for in the settlement agreement.
Spending subject to appropriation
H.R. 4643 would authorize the appropriation of $6 million
to the trust funds established by this legislation to satisfy
the settlement agreement entered into by the DOJ, the Imperial
Irrigation District, the Coachella Valley Water District, and
the Torres-Martinez Desert Cahuilla Indian Tribe. The funds
deposited into the trust funds would become the tribe's
property, so assuming that appropriations of $6 million are
provided in 2001, outlays of that amount would be recorded in
that year.
In addition, H.R. 4643 would authorize DOI to take into
trust up to 11,800 acres of land acquired by the tribe. Based
on information from the department, CBO estimates that any
administrative cost to the federal government to take those
lands into trust would not be significant.
Direct spending
Under the terms of the settlement agreement, the federal
government would transfer $4 million into the tribe's trust
funds from the Judgment Fund. The funds deposited into thetrust
funds would become the tribe's property. Because the settlement
agreement requires the approval of the Congress, enacting H.R. 4643
would result in additional direct spending of $4 million in 2001. The
tribe does not have a legal claim pending against the federal
government, so the Judgment Fund is not available to fund a settlement
agreement absent this legislation.
This settlement would extinguish any future claim that the
tribe may have against the United States, so it is possible
that the amount paid to the tribe under the legislation could
be offset by a reduction in payments that would be made from
the Judgment Fund in future years. However, CBO cannot estimate
either the likelihood or the magnitude of such offset because
there is no basis for predicting either the outcome of possible
litigation against the United States or the amount of
compensation, if any.
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. The
following table summarizes the estimated impact of H.R. 4643 on
direct spending.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
----------------------------------------------------------------------------
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
----------------------------------------------------------------------------------------------------------------
Changes in outlays \1\............. 0 4 0 0 0 0 0 0 0 0 0
Changes in receipts................ Not applicable
----------------------------------------------------------------------------------------------------------------
\1\ This cost could be offset by a reduction in future payments from the Judgment Fund, however, CBO cannot
estimate the likelihood or magnitude of such an offset.
Intergovernmental and private-sector impact: H.R. 4643
contains no intergovernmental or private-sector mandates as
defined in UMRA. Any costs resulting from the settlement
agreement would be incurred voluntarily by the parties to that
agreement. Under the terms of the agreement, the Coachella
Valley Water District and the Imperial Irrigation District
would make certain payments for the benefit of the tribe. In
return for these payment and other benefits conferred by the
agreement, the tribe would give up its claims relating to land
flooded by the Salton Sea.
Previous CBO cost estimate: On August 17, 2000, CBO
transmitted an estimate for H.R. 4643, the Torres-Martinez
Desert Cahuilla Indians Claims Settlement Act, as ordered
reported by the House Committee on Resources on July 26, 2000.
The two versions of the legislation are similar, and our cost
estimates are identical.
Estimate prepared by: Federal Costs: Lanette J. Keith.
Impact on State, Local, and Tribal Governments: Marjorie
Miller. Impact on the Private Sector: Lauren Marks.
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. The Committee finds that enactment of
H.R. 4643 will result in de minimis regulatory and paperwork
impact.
Executive communications
The Committee has received no official communication from
the Administration on the provisions of H.R. 4643.
changes in existing law
The Committee finds that H.R. 4643, if enacted, would make
no changes in existing law.
A P P E N D I X I
----------
The text of the Agreement of Compromise and Settlement
Concerning Claims to Lands of the United States Within and on
the Perimeter of the Salton Sea Drainage Reservoir Held in
Trust for the Torres-Martinez Indians, together with four
Modifications thereto, set forth below: