[Senate Report 108-355]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 710
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-355
======================================================================
 
 PROVIDING COMPENSATION TO THE LOWER BRULE AND CROW CREEK SIOUX TRIBES 
OF SOUTH DAKOTA FOR DAMAGE TO TRIBAL LAND CAUSED BY PICK-SLOAN PROJECTS 
                        ALONG THE MISSOURI RIVER

                                _______
                                

               September 21, 2004.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 1530]

    The Committee on Indian Affairs to which was referred the 
bill (S. 1530) to provide compensation to the Lower Brule and 
Crow Creek Sioux Tribes of South Dakota for damage to tribal 
land caused by Pick-Sloan projects along the Missouri River 
having considered the same, reports favorably thereon with an 
amendment(s) and recommends that the bill (an amended) do pass.

                                Purpose

    The purpose of S. 1530 is to amend section 4(b) of the Crow 
Creek Sioux Tribe Infrastructure Development Trust Fund Act of 
1996 (P.L. 104-223) and section 4(b) of the Lower Brule Sioux 
Tribe Infrastructure Development Trust Fund Act (P.L. 105-132) 
by increasing the aggregate authorized amounts of deposits from 
the Pick-Sloan Missouri River power program into the tribal 
trust funds established under those acts.
    S. 1530, as amended, would increase the maximum aggregate 
deposit in the Lower Brule Sioux infrastructure development 
trust fund from $39,300,000 to $186,822,140 and would increase 
the maximum aggregate deposit in the Crow Creek Sioux Tribe 
infrastructure development trust fund from $27,500,000 to 
$105,917,853. These increases are intended to bring the total 
amount of compensation provided to these two Indian tribes for 
impacts caused by the Pick-Sloan Missouri River program into 
parity with the compensation provided by Congress to other 
Indian tribes for such impacts.

                               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. The dam construction projects undertaken 
pursuant to the Pick-Sloan Program impacted several tribes 
whose reservation lands were located within the Missouri River 
basin. Two of these tribes, the Crow Creek Sioux Tribe and the 
Lower Brule Sioux Tribe, were impacted by two significant dam 
construction projects located on the Missouri River--the Fort 
Randall Dam and the Big Bend Dam. Construction ofthe Fort 
Randall Project began in 1946 and that of the Big Bend Project in 1960. 
Both projects resulted in the inundation of several thousands of acres 
of land on the reservations of the two Indian tribes.\1\
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    \1\ The construction of the Fort Randall and Big Bend Dams 
inundated over 15,000 acres of land on the Crow Creek Indian 
Reservation and over 22,000 acres of land on the Lower Brule Indian 
Reservation. See S. Rept. 104-362 and S. Rept. 105-146.
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    Although Congress attempted to mitigate the impacts of 
these two projects on the two reservations and the Indian 
people who were living on them by enacting, in 1962, the Big 
Bend Recovery Act (P.L. 87-735), the insufficiency of the 
Government's mitigation efforts pursuant to that act eventually 
led to the enactment of the Crow Creek Sioux Tribe 
Infrastructure Development Trust Fund Act of 1996 (P.L. 104-
223) and, one year later, the Lower Brule Sioux Tribe 
Infrastructure Development Trust Fund Act (P.L. 105-132).\2\
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    \2\ Overviews of the impacts that the Fort Randall and Big Bend 
Dams had on the Indian people living on the Crow Creek and Lower Brule 
Indian Reservations are included in the House and Senate committee 
reports accompanying the two enactments (H. Rept. 104-765, S. Rept. 
104-362, and S. Rept. 105-146).
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    P.L. 104-223 and P.L. 105-132 each created an 
infrastructure development trust fund for the respective tribe, 
the principal balance of which was to be derived from a 
percentage of the annual receipts deposited into the United 
States Treasury from the Pick-Sloan Missouri River basin power 
program. Each act authorized payments to the tribe of the 
interest earned on the principal balance of the trust fund for 
expenditure on projects and activities specified in the 
legislation. The aggregate principal amount authorized to be 
deposited into the Crow Creek Sioux Tribe infrastructure 
development trust fund was $27,500,000, and the aggregate 
principal amount authorized to be deposited into the Lower 
Brule Sioux Tribe infrastructure development trust fund was 
$39,300,000.
    On June 15, 2004, the Committee held a hearing on S. 1530 
and received testimony of several witnesses, including the 
bill's sponsor, Senator Daschle, and an expert witness who 
stated that the compensation levels authorized by P.L. 104-223 
and P.L. 105-132 for the Crow Creek and Lower Brule Sioux 
Tribes, respectively, were based on the ``per acre value of the 
1992 Fort Berthold/Standing Rock legislation (Public Law 102-
575),'' in contrast to the methodology recommended in a 1991 
General Accounting Office (GAO) report that was used to 
calculate compensation for other tribes that sustained Pick-
Sloan related damages.\3\
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    \3\ See, Indian Issues: Compensation Claims Analyses Overstate 
Economic Losses (GAO/RCED-91-77, May 21, 1991).
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    The Committee's hearing record includes the testimony and a 
report \4\ by Michael L. Lawson, Ph.D., regarding the impacts 
of the Pick-Sloan Plan on several tribes within the Missouri 
River basin and comparing the compensation levels that have 
been provided to date to those tribes, including the Lower 
Brule and Crow Creek Sioux Tribes. This testimony and report 
analyze the compensation levels of the Lower Brule and Crow 
Creek Sioux Tribes for their respective Pick-Sloan Program 
damages pursuant to P.L. 87-735, P.L. 104-223 and P.L. 105-132, 
compared to the compensation authorized for the Three 
Affiliated Tribes of Fort Berthold and the Standing Rock Sioux 
in 1992 pursuant to P.L. 102-575 and for the Cheyenne River 
Sioux Tribe in 2000 pursuant to title I of P.L. 106-511,\5\ and 
concludes that compensation has not been provided to the tribes 
in a consistent manner. In supplemental testimony provided to 
the Committee, Dr. Lawson points out that before the Cheyenne 
River Sioux legislation in 2000, the 1991 GAO formula had not 
been applied to any tribe in South Dakota. Using the 1991 GAO 
``AAA corporate bond rate formula'' to calculate the additional 
amounts due to the Lower Brule and Crow Creek Sioux Tribes 
through 2004, Dr. Lawson informed the Committee that the two 
tribes' respective development funds should be increased to 
$186,822,140.00 (Lower Brule Sioux Tribe) and $105,917,853 
(Crow Creek Sioux Tribe).
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    \4\ The Lower Brule and Crow Creek Sioux Tribes of South Dakota: 
Parity Compensation for Losses from Missouri River Pick-Sloan Dam 
Projects, by Michael L. Lawson, Ph.D., June 15, 2004.
    \5\ The committee reports for the House and Senate both noted that 
the Cheyenne River Sioux legislation enacted in 2000 utilized the 1991 
GAO report formula. See, H. Rept. 106-944 and S. Rept. 106-217.
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                         Summary of Provisions

    Section 1 of 5.1530 sets forth the short title, ``Tribal 
Parity Act.''
    Section 2, the findings section, recognizes that several 
tribes along the Missouri River have suffered injury and 
received compensation as the result of Pick-Sloan projects--
including the Lower Brule and Crow Creek Sioux Tribes--but that 
the compensation provided to the tribes has not been 
consistent. The intent of the bill is to bring the compensation 
made available to the Lower Brule and Crow Creek Sioux Tribes 
into parity with that made available to the other tribes that 
have been compensated for impacts caused by Pick-Sloan 
Projects.
    As amended,\6\ section 3 of S. 1530 would amend section 
4(b) of the Lower Brule Sioux Tribe Infrastructure Development 
Trust Fund Act (P.L. 105-132) by increasing the aggregate 
authorized amount of deposits from the Pick-Sloan Missouri 
River power program into that tribe's trust fund from 
$39,300,000 to $186,822,140. Section 4 would amend section 4(b) 
of the Crow Creek Sioux Tribe Infrastructure Development Trust 
Fund Act of 1996 (P.L. 104-223) by increasing the aggregate 
authorized amount of such deposits into the Crow Creek Sioux 
Tribe's trust fund from $27,500,000 to $105,917,853.
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    \6\ At the Committee's business meeting held on July 14, 2004, the 
Committee approved the bill with two amendments: section 3 of S. 1530 
would be amended to provide for an aggregate deposit of $186,822,140.00 
into the Lower Brule Sioux Tribe Infrastructure Development Trust Fund, 
and section 4 of S. 1530 would be amended to provide for an aggregate 
deposit of $105,917,853.00 into the Crow Creek Sioux Tribe 
Infrastructure Development Trust Fund. The bill as introduced stated 
compensation levels through the year 2003; the Committee amendments are 
intended to provide an additional year's interest under the 1991 GAO 
formula.
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                          Legislative History

    S. 1530 was introduced by Senator Daschle on July 31, 2003, 
and referred to the Committee on Indian Affairs. Senator 
Johnson joined as a cosponsor on February 12, 2004. The 
Committee held a hearing on the bill on June 15, 2004, and at a 
business meeting held on July 14, 2004, approved the bill with 
the amendments described above.

                        Committee Recommendation

    The Committee on Indian Affairs, at a business meeting held 
on July 14, 2004, approved S. 1530 with the above-described 
amendments to the dollar amounts set forth in sections 3 and 4 
of the bill and ordered the bill, as amended, to be reported 
favorably to the Senate.

          Section-by-Section Analysis of S. 1530 (as Amended)

    Section 1 of S. 1530 sets forth the short title, ``Tribal 
Parity Act.''
    Section 2 sets forth the Congressional findings.
    Section 3, with the Committee amendment, amends section 
4(b) of the Lower Brule Sioux Tribe Infrastructure Development 
Trust Fund Act by increasing the maximum aggregate amount of 
deposits into the tribe's infrastructure development trust fund 
from $39,300,000 to $186,822,140.
    Section 4, with the Committee amendment, amends section 
4(b) of the Crow Creek Sioux Tribe Infrastructure Development 
Trust Fund by increasing the maximum aggregate amount of 
deposits into the tribe's infrastructure development trust fund 
from $27,500,000 to $105,917,853.

                      Cost and Budgetary Concerns

    The costs estimate for S. 1530, as provided by the 
Congressional Budget Office, is set forth below.

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 25, 2004.
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. 1530, the Tribal 
Parity Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mike Waters.
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

S. 1530--Tribal Parity Act

    Summary: S. 1530 would increase the total amounts to be 
transferred from the Treasury into two existing Indian tribal 
trust funds. Those funds were created to compensate the Crow 
Creek Sioux and Lower Brule Sioux tribes for damages caused by 
the Pick-Sloan water projects along the Missouri River. CBO 
estimates that enacting S. 1530 would increase direct spending 
by $226 million over the 2004-2014 period. Enacting the bill 
would not affect revenues.
    S. 1530 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated Cost to the Federal Government: The estimated 
budgetary impact of S. 1530 is shown in the table below. The 
costs of this legislation fall within budget function 450 
(community and regional development).
    Basis of Estimate: For this estimate, CBO assumes that the 
bill will be enacted this fall and that payments to the two 
tribes will begin in fiscal year 2005.

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                                                          By fiscal years, in millions of dollars--
                                           ---------------------------------------------------------------------
                                             2005   2006   2007   2008   2009   2010   2011   2012   2013   2014
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                                           CHANGES IN DIRECT SPENDING
 Payments to Crow Creek Sioux Tribe
 Infrastructure Development Trust Fund:
    Estimated Budget Authority............     28     30     20      0      0      0      0      0      0      0
    Estimated Outlays.....................     28     30     20      0      0      0      0      0      0      0
Payments to Lower Brule Sioux Tribe
 Infrastructure Development Trust Fund:
    Estimated Budget Authority............     28     30     30     30     30      0      0      0      0      0
    Estimated Outlays.....................     28     30     30     30     30      0      0      0      0      0
Total Payments to Both Funds
    Estimated Budget Authority............     56     60     50     30     30      0      0      0      0      0
    Estimated Outlays.....................     56     60     50     30     30      0      0      0      0      0
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    The Crow Creek Sioux Tribe Infrastructure Development Trust 
Fund (Crow Creek Fund) and the Lower Brule Sioux Tribe 
Infrastructure Development Trust Fund (Lower Brule Fund) were 
created by Congress in 1996 and 1997 to compensate the Crow 
Creek and Lower Brule Sioux tribes for damages caused by the 
Pick-Sloan water projects along the Missouri River. The Crow 
Creek Fund was fully capitalized to its authorized size with 
one payment of $28 million in 1997. The Lower Brule Fund was 
fully capitalized to its authorized size with one payment of 
$39 million in 1998.
    S. 1530 would increase the maximum size of each fund, with 
the additional deposits to be derived from proceeds from the 
sale of electric power from the Pick-Sloan Missouri River Basin 
project. Each fund would receive an amount equal to 25 percent 
of the annual proprietary receipts from that project until 
deposits reach the new maximum levels specified in the bill. 
Under this bill, the Crow Creek Fund would increase by $78 
million (for a new maximum of $106 million), and the Lower 
Brule Fund by $148 million (for a new maximum of $187 million).
    According to the Western Area Power Administration (WAPA), 
the agency that administers the Pick-Sloan project, receipts 
from the Pick-Sloan project are likely to total $110 million in 
2005 and average about $119 million a year thereafter. That 
suggests that up to $30 million would be deposited in each fund 
each year until the new ceilings are met. At those levels, CBO 
estimates that it would take about three years to reach the new 
maximum level for the Crow Creek fund and five years for the 
Lower Brule Fund.
    Payments to certain trust funds that are held and managed 
in a fiduciary capacity by the federal government on behalf of 
Indian tribes are treated as payments to a nonfederal entity. 
Thus, under this bill, CBO expects that the entire amount 
deposited to either fund in any year would be recorded as 
budget authority and outlays in that year. Because the trust 
funds would be nonbudgetary, the subsequent use of such funds 
by the tribe would not affect federal outlays.
    Intergovernmental and private-sector impact: S. 1530 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments. Enacting this legislation would benefit the 
two tribes.
    Estimate prepared by: Federal Costs: Mike Waters; Impact on 
State, Local, and Tribal Governments: Marjorie Miller; and 
Impact on the Private Sector: Selena Caldera.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                        Executive Communications

    The Committee has received no executive communications 
relating to S. 1530.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill evaluate 
the regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that the 
regulatory and paperwork impacts of S. 1530 will be minimal.

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee has determined that 
the enactment of S. 1530 will effect the following changes in 
existing law:
    Section 4(b) of the Lower Brule Sioux Tribe Infrastructure 
Development Trust Fund Act ( P.L. 105-132; 111 Stat. 2565):
    (b) Funding.--Beginning with fiscal year 1998, and for each 
fiscal year thereafter, until such time as the aggregate of the 
amounts deposited in the Fund is equal to [$39,300,000] 
$186,822,140, the Secretary of the Treasury shall deposit into 
the Fund an amount equal to 25 percent of the receipts from the 
deposits to the Treasury of the United States for the preceding 
fiscal year from the Program.
    Section 4(b) of the Crow Creek Sioux Tribe Infrastructure 
Development Trust Fund Act of 1996 (P.L. 104-223; 110 Stat. 
3027):
    (b) Funding.--Beginning with fiscal year 1997, and for each 
fiscal year thereafter, until such time as the aggregate of the 
amounts deposited in the Fund is equal to [$27,500,000] 
$105,917,853, the Secretary of the Treasury shall deposit into 
the Fund an amount equal to 25 percent of the receipts from the 
deposits to the Treasury of the United States for the preceding 
fiscal year from the Program.

                                  
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