[Senate Report 110-505]
[From the U.S. Government Publishing Office]



                                                      Calendar No. 1089
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-505

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

 
  PROVIDING FOR 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 25 (legislative day September 17), 2008.--Ordered to be 
                                printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 160]

    The Committee on Indian Affairs, to which was referred the 
bill, S. 160, 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 and recommends that the bill do pass.

                                Purpose

    S. 160 would amend the Lower Brule Sioux Tribe 
Infrastructure Development Trust Fund Act to increase from 
$39.3 million to $129,822,085 the aggregate amount to be 
deposited into the Lower Brule Sioux Tribe Infrastructure 
Development Trust Fund by the Secretary of the Treasury to 
provide compensation to the Lower Brule Tribe of South Dakota 
for damage to tribal land caused by Pick-Sloan projects along 
the Missouri River.
    S. 160 would also amend the Crow Creek Sioux Tribe 
Infrastructure Development Trust Fund Act of 1996 to increase 
from $27.5 million to $69,222,084 the aggregate amount to be 
deposited into the Crow Creek Sioux Tribe Infrastructure 
Development Trust Fund by the Secretary to provide compensation 
to the Crow Creek Sioux Tribe of South Dakota for damage to 
tribal land caused by Pick-Sloan projects along the Missouri 
River.

                               Background

    The Lower Brule Sioux Tribe and the Crow Creek Sioux Tribe 
were impacted by the Fort Randall Dam and the Big Bend Dam, two 
significant dam construction projects located on the Missouri 
River. Construction of the Fort Randall Project began in 1946 
and of the Big Bend Project in 1960, and both projects resulted 
in the inundation of several thousands of acres of land on the 
reservations of these two Indian tribes.
    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).
    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 would be derived from a 
percentage of receipts deposited into the United States 
Treasury from the Pick-Sloan Missouri River basin power 
program, and each act authorized payments to the tribe of 
interest earned on the principal balance of the fund for use on 
specified projects and activities. The principal amount 
authorized to be deposited into the Crow Creek Sioux Tribe fund 
was $27,500,000, and the principal amount authorized to be 
deposited into the Lower Brule Sioux Tribe fund was 
$39,300,000.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 states that this Act may be cited as the ``Lower 
Brule and Crow Creek Tribal Compensation Act.''

Section 2. Findings

    Section 2 states the findings of Congress that: (1) the 
Pick-Sloan Missouri River Basin Program (authorized by section 
9 of the Act of December 22, 1944 (commonly known as the 
``Flood Control Act of 1944'') (58 Stat. 891)), was approved to 
promote the general economic development of the United States; 
(2) the Fort Randall and Big Bend dam and reservoir projects in 
South Dakota are major components of the Pick-Sloan Missouri 
River Basin Program and they contribute to the economy of the 
United States; (3) the Fort Randall and Big Bend dams inundated 
the fertile bottom land of the Lower Brule and Crow Creek Sioux 
Tribes, which greatly damaged the economy and cultural 
resources of the Tribes; (4) Congress has provided compensation 
to several Indian tribes that border the Missouri River and 
suffered injury as a result of 1 or more Pick-Sloan Projects; 
(5) the compensation provided to those Indian tribes has not 
been consistent; (6) Missouri River Indian tribes that suffered 
injury as a result of 1 or more Pick-Sloan Projects should be 
adequately compensated for those injuries, and that 
compensation should be consistent among the Tribes; and (7) the 
Lower Brule Sioux Tribe and the Crow Creek Sioux Tribe are 
entitled to receive additional compensation for injuries 
described in paragraph (6).

Section 3. Lower Brule Sioux Tribe

    Section 3 amends the amount of compensation in the trust 
fund amount created by current law for the Lower Brule Sioux 
Tribe to $129,822,085.

Section 4. Crow Creek Sioux Tribe

    Section 4 amends the amount of compensation in the trust 
fund amount created by current law for the Crow Creek Sioux 
Tribe to $69,822,084.

Section 5. Treatment as final compensation

    Section 5(a) provides that this act is final and full 
compensation to the Lower Brule Sioux Tribe and the Crow Creek 
Sioux Tribe for damages caused by construction of the Fort 
Randall Dam and the Big Bend Dam under the Pick-Sloan Missouri 
River Basin Program.
    Section 5(b) releases the United States of any further 
claim for compensation that the Lower Brule Sioux Tribe or Crow 
Creek Sioux Tribe may have for compensation as a result of the 
Pick-Sloan Missouri River Basin Program.
    Section 5(c) defines the term ``non-Missouri River Basin 
Program Indian tribe'' and declares that this act will not 
serve as a precedent for any non-Missouri River Basin Program 
Indian tribe with respect to any potential claim of such tribe 
against the United States.

                          Legislative History

    S. 160 was introduced by Senator Thune on January 4, 2007, 
Senator Johnson became a cosponsor on May 14, 2007, and it was 
referred to the Committee on Indian Affairs. On June 19, 2008, 
S. 160 was approved by the Committee by voice vote and ordered 
reported favorably.
    In the 109th Congress, similar legislation, S. 374, was 
introduced on February 14, 2005, by Senators Thune and Johnson 
and was referred to the Committee on Indian Affairs. On June 
29, 2005, S. 374 was approved by the Committee by voice vote 
and ordered favorably reported. Shortly thereafter, a 
representative of the United States Government Accountability 
Office (GAO) expressed concern regarding language in the 
Findings section of the bill (section 2(7)) stating that a 
methodology determined appropriate by the General Accounting 
Office entitled the two tribes to additional compensation.
    Accordingly, Chairman McCain requested the GAO assess 
whether the approach used in developing the amount of 
additional compensation in S. 374 followed the approach used in 
previous GAO reports for analyzing additional compensation for 
other tribes located along the Missouri River. In May 2006, the 
GAO issued the report requested by Chairman McCain. See GAO-06-
517, Analysis of the Crow Creek Sioux and Lower Brule Sioux 
Tribes Additional Compensation Claims.
    On June 14, 2006, the Committee held a hearing during which 
the GAO provided testimony on the report, and the tribes and 
their consultant provided their views. Briefly, the GAO 
testified that its research for the report indicated that the 
tribes' consultant deviated in certain respects from the 
approach used in the previous GAO reports addressing additional 
compensation for other Indian tribes impacted by flood control/
power projects on the Missouri River and concluded that the 
GAO's approach does not support the additional compensation 
amounts contained in S. 374. The tribes' consultant testified 
that his approach deviated in part to account for the inferior 
negotiating position of the tribes. He also testified that his 
original calculations did contain an error and provided new 
estimates for compensation based on his approach.
    Based on the testimony provided, Senators Thune and Johnson 
prepared a substitute amendment which lowered the compensation 
for the Lower Brule Sioux Tribe from $186,822,140 to 
$129,822,085, and the compensation for the Crow Creek Sioux 
Tribe from $105,917,853 to $69,222,084. The substitute 
amendment also added a provision clearly stating that the 
compensation provided in this bill is the full and final 
compensation for the Lower Brule Sioux Tribe and Crow Creek 
Sioux Tribe for claims related to the Pick-Sloan projects which 
impacted their reservations.
    On August 2, 2006, the Committee, in an open business 
meeting, considered S. 374. By a voice vote, the Committee 
ordered the bill reported favorably, with an amendment in the 
nature of a substitute, to the full Senate.
    Similar legislation was also introduced in the 108th 
Congress, S. 1530, the Tribal Parity Act, 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 as amended. On November 19, 2004, S. 1530 
passed the Senate with amendments by Unanimous Consent.

            Committee Recommendation and Tabulation of Vote

    On June 19, 2008, the Committee, in an open business 
session, considered S. 160. By a voice vote, the Committee 
ordered the bill reported to the full Senate with a 
recommendation that the bill do pass.

                   Cost and Budgetary Considerations

    The following cost estimate for S. 160, as provided by the 
Congressional Budget Office, is set forth below:

S. 160--Lower Brule and Crow Creek Tribal Compensation Act

    Summary: S. 160 would increase the size of two existing 
tribal trust funds established by the Lower Brule Sioux Tribe 
Infrastructure Development Trust Fund Act and the Crow Creek 
Sioux Tribe Infrastructure Development Trust Fund Act of 1996. 
The Congress created those funds as compensation for damages to 
the tribes caused by the Pick-Sloan Missouri River Basin 
project; this bill would constitute a final settlement of 
claims by the two tribes against the United States. CBO 
estimates that enacting S. 160 would increase direct spending 
by $169 million over the 2009-2018 period. Enacting the bill 
would not affect revenues.
    S. 160 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. 160 is shown in the following table. The 
costs of this legislation fall within budget function 450 
(community and regional development).

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       By fiscal years, in millions of dollars--
                                                              ------------------------------------------------------------------------------------------
                                                                2009    2010    2011    2012    2013    2014    2015    2016    2017    2018   2009-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               CHANGES IN DIRECT SPENDING

Transfers to Lower Brule Fund:
    Estimated Budget Authority...............................       0     130       0       0       0       0       0       0       0       0       130
    Estimated Outlays........................................       0     130       0       0       0       0       0       0       0       0       130
Transfers to Crow Creek Fund:
    Estimated Budget Authority...............................      69       0       0       0       0       0       0       0       0       0        69
    Estimated Outlays........................................      69       0       0       0       0       0       0       0       0       0        69
Interest on Lower Brule Fund:
    Estimated Budget Authority...............................      -2      -2      -2      -2      -2      -2      -2      -2      -2      -2       -20
    Estimated Outlays........................................      -2      -2      -2      -2      -2      -2      -2      -2      -2      -2       -20
Interest on Crow Creek Fund:
    Estimated Budget Authority...............................      -1      -1      -1      -1      -1      -1      -1      -1      -1      -1       -10
    Estimated Outlays........................................      -1      -1      -1      -1      -1      -1      -1      -1      -1      -1       -10
    Total Changes:
        Estimated Budget Authority...........................      66     127      -3      -3      -3      -3      -3      -3      -3      -3       169
        Estimated Outlays....................................      66     127      -3      -3      -3      -3      -3      -3      -3      -3       169
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Basis of estimate: CBO estimates that enacting this 
legislation would result in a net increase in direct spending 
of $169 million over the 2009-2018 period. By increasing the 
maximum funding level of two tribal trust funds and 
establishing a final settlement of certain tribal claims 
against the federal government, CBO estimates that enacting S. 
160 would increase direct spending by $199 million over the 
2009-2018 period. Partially offsetting those costs, the bill 
also would reduce direct spending for interest payments made to 
the tribes by $30 million over the 2009-2018 period. For this 
estimate, CBO assumes that the bill will be enacted near the 
beginning of fiscal year 2009 and that additional transfers to 
the trust funds would begin in that year.

Trust fund activity under current law

    In 1996 and 1997, the Congress enacted legislation creating 
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). Both 
acts authorized the Secretary of the Treasury to transfer 25 
percent of gross revenues from electricity sales made by the 
Western Area Power Administration (WAPA), the agency that 
manages the Pick-Sloan project, to each fund. Such transfers 
were made annually until the funds reached the maximum 
balances--$39 million for Lower Brule Fund and $28 million for 
the Crow Creek Fund--set forth in law. Consistent with the 
treatment of similar tribal trust funds, both funds are 
classified as accounts on the federal budget because all claims 
against the federal government for related damages have not 
been extinguished. Thus, transfers to the funds made to date 
have been considered intragovernmental and have had no net 
effect on the federal budget.
    Current law also directs the Secretary to transfer any 
interest earned by the Crow Creek Fund and the Lower Brule Fund 
into separate accounts for the benefit of the tribes. Payments 
from the interest accounts may only occur after the trust fund 
has reached its maximum funding level. Because both trust funds 
are currently at their maximum levels, CBO estimates that such 
payments will total $20 million for the Lower Brule Fund and 
$10 million for the Crow Creek Fund over the 2009-2018 period.

Trust fund activity under S. 160

    S. 160 would increase the maximum size of the Lower Brule 
Fund to $130 million and that of the Crow Creek Fund to $69 
million. As under current law, each fund would receive deposits 
equal to 25 percent of proceeds from the Pick-Sloan project 
from the previous year. Annual deposits would continue until 
the total balance of the trust fund reaches the new maximum 
level. According to information from WAPA, gross revenues from 
its sale of electricity from the Pick-Sloan project will be 
$356 million in 2008 and average approximately $426 million per 
year thereafter. Based on those projections, CBO estimates that 
the Crow Creek Fund and the Lower Brule Fund would reach their 
new maximum levels in 2009 and 2010, respectively.
    Upon full funding of their trust funds, S. 160 would 
extinguish future claims against the federal government by the 
two tribes. Consistent with the treatment of similar tribal 
funds, outlays would be recorded on the budget in the year that 
all funds are provided to the tribe and all claims against the 
government are released. As a result, CBO estimates that 
enacting S. 160 would increase direct spending by $69 million 
in 2009 for the Crow Creek Fund and by $130 million in 2010 for 
the Lower Brule Fund. Subsequent use of those funds would have 
no further impact on the federal budget as tribal trust funds 
managed in a fiduciary capacity by the federal government are 
treated as nonfederal funds.
    In addition, any future interest earnings and payments 
would not be considered part of the federal budget after those 
funds are transferred. (Additionally, because under the bill 
the Lower Brule Fund would be below its maximum funding level 
in 2009, no interest payments would be made to the tribe in 
that year.) As such, CBO estimates that enacting S. 160 would 
reduce direct spending for interest payments to the tribes by 
$30 million ($20 million for the Lower Brule Fund and $10 
million for the Crow Creek Fund) over the 2009-2018 period.
    Intergovernmental and private-sector impact: S. 160 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments. The payments authorized by this bill would 
benefit the Lower Brule Sioux and Crow Creek Sioux tribes.
    Estimate prepared by: Federal Costs: Leigh Angres; Impact 
on State, Local, and Tribal Governments: Melissa Merrell; 
Impact on the Private Sector: MarDestinee Perez.
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

                   Regulatory and Paperwork Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill to 
evaluate the regulatory and paperwork impact that would be 
incurred in carrying out the bill. The Committee has concluded 
that the regulatory and paperwork impacts of S. 160 will be de 
minims.

                        Executive Commuications

    The views of the Administration on S. 160 as introduced are 
set forth in the Statement of George Skibine, Deputy Assistant 
Secretary for Policy and Economic Development--Indian Affairs, 
United States Department of the Interior, dated June 18, 2008, 
and are set forth below:




                        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 S. 160, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new language to be added in italic, existing law to 
which no change is proposed is shown in roman):

PUBLIC LAW 105-132; 111 STAT. 2565

           *       *       *       *       *       *       *


SEC. 4. ESTABLISHMENT OF LOWER BRULE SIOUX TRIBE INFRASTRUCTURE 
                    DEVELOPMENT TRUST FUND.

           *       *       *       *       *       *       *


    (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 $129,822,085 
[$39,300,000], 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.

           *       *       *       *       *       *       *


PUBLIC LAW 104-223; 110 STAT. 3027

           *       *       *       *       *       *       *


SEC. 4. ESTABLISHMENT OF CROW CREEK SIOUX TRIBE INFRASTRUCTURE 
                    DEVELOPMENT TRUST FUND.

           *       *       *       *       *       *       *


    (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 $69,222,084 
[$27,500,000], 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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