Senate Report 111-118 - AUTHORIZING THE CROW TRIBE OF INDIANS WATER RIGHTS SETTLEMENT, AND FOR OTHER PURPOSES

[Senate Report 111-118]
[From the U.S. Government Publishing Office]

Calendar No. 259
111th Congress Report
SENATE
2d Session 111-118

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AUTHORIZING THE CROW TRIBE OF INDIANS WATER RIGHTS SETTLEMENT, AND FOR
OTHER PURPOSES

_______

January 21, 2010.--Ordered to be printed

_______

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

R E P O R T

[To accompany S. 375]

The Committee on Indian Affairs, to which was referred the
bill, S. 375, to authorize the Crow Tribe of Indians water
rights settlement, 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. 375 is to achieve a fair, equitable and
final settlement of claims to water rights in the State of
Montana by the Crow Tribe and the United States for the benefit
of the Tribe and tribal allottees. The bill would ratify the
Crow Tribe-Montana Water Rights Compact entered into by the
Tribe and the State of Montana on June 22, 1999, direct the
Secretary of the Interior to execute the Crow Tribe-Montana
Water Rights Compact, and authorize the appropriation of funds
necessary for the implementation of the Compact and this bill.

BACKGROUND

The Crow Reservation

The Crow Tribe's Reservation is located in southern Montana
along the Montana-Wyoming border. The Reservation is the
largest of the seven Indian reservations located in Montana and
one of the largest in the United States. The Reservation
encompasses approximately 2.3 million acres. The Reservation
includes three mountain ranges, rolling upland plains and
fertile valleys. Rainfall averages 12 inches per year.
Reservation agriculture production consists mostly of small
grains and hay for livestock. Expansive grasslands support
herds of cattle, horses and buffalo as well as abundant elk,
deer and other wildlife.
The Tribe has two treaties with the United States dealing
with the Tribe's lands. The September 17, 1851 Treaty of Fort
Laramie recognized and acknowledged a land area of about 38
million acres as the territory of the Crow Tribe, which
included within it many valuable water resources including the
Bighorn and Yellowstone Rivers. The May 7, 1868 Fort Laramie
Treaty reduced the Tribe's territory to a reservation of about
8 million acres, with part of the northern boundary being the
mid-channel of the Yellowstone River.
Land cessions in the late 19th and early 20th Centuries
further reduced the Reservation acreage, including removal of
all lands along the Yellowstone River. The 1904 cession removed
approximately the northern third of the existing Reservation.
This land is known as the ``Ceded Strip.'' The size of the
Ceded Strip is approximately 1.1 million acres. On the Ceded
Strip, the Huntley Irrigation Project was developed. The Tribe
was never paid for the sale of the lands for the Huntley
Irrigation Project, nor was the Tribe able to get back unsold
lands, as promised. In 1958 Congress passed another law
restoring tribal ownership over a portion of the Ceded Strip.
This law restored 15,553 acres of surface ownership and 80,423
acres of subsurface mineral ownership to the Tribe.
The tribal land base within the exterior boundary of the
Reservation was also divided by various allotment acts. By
1935, there were 5,507 allotments on the reservation,
consisting of 2,054,055 acres. Many allotments passed into fee
land status and were alienated from the Tribe or individual
Indians to non-Indians. This resulted in non-Indian land
ownership and claims of Montana water rights throughout the
Reservation. Today, Reservation land is held approximately half
in trust and half in fee status.
The primary sources of water on the Reservation are the
Bighorn River, the Little Bighorn River, Pryor Creek and
several smaller streams. The Bighorn and Little Bighorn Rivers
originate in Wyoming and flow north into the Reservation. After
flowing through the Reservation, the Little Bighorn enters the
Bighorn River just outside the Reservation boundary near the
town of Hardin, Montana. The Bighorn River then continues north
to become a tributary of the Yellowstone River.
The Reservation is home to approximately 8,000 of the
11,900 enrolled Tribal members. Close to 40 percent of the
enrolled Tribal members are below the age of 18. The
Reservation has high levels of unemployment and poverty, severe
shortages of housing, and serious needs for health care and
other basic services. The lack of water infrastructure and
opportunities to develop water projects on the Reservation
directly contributes to these problems.
In the 110th Congress, at a Committee hearing on the bill,
the Tribe's Chairman testified to the importance of water to
the Crow people.\1\ He stated that water is vital to the
Tribe's health and a central part of the Tribe's culture and
traditions. The Chairman cited the importance of water in the
Tribe's creation story, where the land is brought up from the
water. He testified that for the Crow people all things of
tangible substance, all things that we can touch, feel, smell,
see and hear come from water. As an example, he noted that in
the Tobacco Dance Crow people repeat the central truth that all
things come from water and with water they go. He also
testified that tribal ceremonies, such as the sweat lodge,
depend upon particular uses of water that are sacred to the
Crow people.
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\1\Hearing on S. 3355, the Crow Tribe Water Rights Settlement Act
of 2008: Senate Committee on Indian Affairs, 110th Congress (Sept. 11,
2008) (testimony of Cedric Black Eagle, Vice-Chairman of the Crow
Tribe); See also, e.g., Robert H. Lowie, The Crow Indians, at 89
(1956); Edward Curtis, The North American Indian, Vol. VI, Johnson
Reprint Co., Ltd., at 8, 54-55, 71 (1970); Edward Curtis, The North
American Indian, Vol. IV, Johnson Reprint Co., Ltd., at 54-56 (1970).
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Yellowtail Dam

The Yellowtail Dam, located on the Bighorn River, was
authorized by Congress in 1944, and construction began in 1961.
Yellowtail Dam reservoir, known as the Bighorn Lake, has a
total storage capacity of 1,328,360 acre-feet and extends south
from the dam, across the Montana-Wyoming state line, and about
20 miles into the State of Wyoming. The dam and reservoir are
operated by the United States Bureau of Reclamation.
Authorization to construct the dam also included authority to
condemn tribal lands necessary for construction of the dam.\2\
Prior to this federal action, the Tribe had sought to maintain
the right to develop its own power and water projects for at
least fifty years.\3\
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\2\Lands submerged by the reservoir and its surrounding area on the
Wyoming side of the state line were condemned as well.
\3\Opening of the Crow (Montana) Indian Reservation: Hearing Before
the S. Comm. on Indian Affairs, Part III, 64th Cong. 22 (1916) (letter
from Crow Tribe Council to S. Comm. on Indian Affairs).
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Section 12 of S. 375 provides the Tribe shall have the
exclusive right to develop and market power generation as a
water development project on the Yellowtail Afterbay Dam. The
Bureau of Reclamation (BOR) generally has the ability, pursuant
to a federal project's authorizing legislation, to enter into a
lease of power privilege agreement with third parties to
develop power on any or all features of a federal project. In
entering into these agreements, BOR normally designates that
the lessee is responsible for an appropriate portion of the
operation and maintenance costs associated with its facilities.
While the authorization set forth in S. 375 is not technically
a lease of power privilege, the Tribe intends to work with BOR
to appropriately allocate the development, operation and
maintenance costs associated with a Tribal power project on the
Yellowtail Afterbay Dam developed pursuant to S. 375.

Municipal, rural, and industrial water system

The Bureau of Indian Affairs currently operates and
maintains an on-reservation water system that is inadequate to
meet the needs of the Reservation. As a result, tribal members
must haul their water from other sources or buy bottled water.
The use of large plastic containers by tribal members to store
drinking water is common on the Reservation. Tribal members
often make trips to haul their water from springs in the
mountains during the summer and buy bottled water in the
winter. Meeting this basic domestic water need can have a
significant impact on an impoverished Reservation
population.\4\
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\4\Approximately 41% of Crow tribal members living on Reservation
live below the poverty line. See, LAO Environmental, Crow Indian
Reservation: Natural, Socio-Economic, And Cultural Resources Assessment
and Conditions Report 31 (2002) included in U.S. Dep't of the Interior,
Bureau of Land Mgmt., Final Statewide Oil and Gas Envtl. Impact
Statement and Proposed Amendment of the Powder River and Billings
Resource Mgmt. Plans (2003).
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Moreover, the limited supply of water that is available is
often not fit for human use. Boiled water orders are a part of
the way of life on the Reservation. There is also high
likelihood that treated water from the Crow Agency water
treatment plant contains a parasite known as cryptosporidium,
which the Environmental Protection Agency (EPA) classifies as a
risk to human health,\5\ and can cause mild to severe diarrhea,
dehydration, stomach cramps, and fevers.\6\
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\5\Office of Science and Tech. & Office of Water, U.S. Envtl. Prot.
Agency, EPA-822-R-01-009, Cryptosporidium: Drinking Water Health
Advisory (2001).
\6\71 Fed. Reg. 654, 660 (Jan. 5, 2006).
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In 2006, EPA promulgated a final Federal rule requiring
public water systems to test for the presence of E. coli in
untreated water from the lake or river that supplies the
system's drinking water.\7\ EPA issued the final rule because
an annual average of 50 colonies of E. coli per 100 milliliters
of untreated water is a strong indicator that a parasite known
as cryptosporidium is also in the untreated water.\8\ EPA
decided to require E. coli testing because these tests are 10%
of the cost of testing for cryptosporidium.\9\
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\7\71 Fed. Reg. 654 (Jan. 5, 2006).
\8\71 Fed. Reg. 654, 657 (Jan. 5, 2006).
\9\Letter from Barbara Burkland, U.S. Evntl. Prot. Agency, Region 8
at 2 (Sept. 17, 2009).
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Under the Federal rule, a public water system like the Crow
Agency water treatment plant must either test the untreated
water twice a month for one year, or once a month for two
years.\10\ The BIA began testing for E. coli in January of 2008
and, in consultation with EPA, decided by July of 2008 to stop
testing the untreated water because, with only half of the data
collected, officials knew the annual average of E. coli
colonies in the water would never be below 50 colonies per 100
milliliters.\11\ The sample with the highest level of E. coli
contained 7,179 colonies of E. coli in 100 milliliters of
water.\12\
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\10\71 Fed. Reg. 654, 664-65 (Jan. 5, 2006).
\11\Letter from Barbara Burkland, U.S. Evntl. Prot. Agency, Region
8 at 2 (Sept. 17, 2009).
\12\Id.
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While the Crow Agency water treatment facility can treat
water infused with the E. coli bacteria, the facility is not
equipped to eliminate cryptosporidium and is in need of
maintenance and repair.\13\ Thus, the Crow Agency water
treatment plant must either institute the next phase under
EPA's rules, which is to test for cryptosporidium, on a monthly
basis for at least a year, or must upgrade their water system
to treat cryptosporidium.\14\ In the meantime, tribal members
living on the Crow Reservation consume and bathe in water that
is likely contaminated with cryptosporidium.
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\13\Id. See also, LAO Environmental, Crow Indian Reservation:
Natural, Socio-Economic, And Cultural Resources Assessment and
Conditions Report 102 (2002) included in U.S. Dep't of the Interior,
Bureau of Land Mgmt., Final Statewide Oil and Gas Envtl. Impact
Statement and Proposed Amendment of the Powder River and Billings
Resource Mgmt. Plans (2003)(noting that ``The quality of water on the
Crow Indian Reservation is concern. The water and wastewater systems at
Crow Agency are severely overworked and in need of maintenance.'').
\14\Letter from Barbara Burkland, U.S. Evntl. Prot. Agency, Region
8 at 2 (Sept. 17, 2009).
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Some tribal members living on the Reservation use wells on
their property as a source of running water for their homes,
but these tribal members do not drink the rancid water. Initial
results from an ongoing study conducted\15\ by Little Big Horn
College of well water within the Reservation found that seventy
to eighty percent of the wells tested were contaminated with
coliform bacteria\16\ at levels that made the water a health
hazard. Of the remaining wells not contaminated with coliform
bacteria, sixty percent contained dissolved solids that made
the water undrinkable.
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\15\This study is funded by the U.S. Evntl. Prot. Agency to
Margaret Eggers, a graduate student at Montana State University, and in
conjunction with the Little Big Horn College. See http://
cfpub2.epa.gov/ncer_abstracts/index.cfm/fuseaction/
display.abstractDetail/abstract/8260 (last visited Sept. 18, 2009), see
also http://bricc.lbhc.edu/?page=research/water-quality (last visited
Sept. 18, 2009).
\16\The presence of coliform in the water is an indicator that an
organism of fecal origin may also be in the water. See http://
www.epa.gov/safewater/contaminants/ecoli.html (last visited Sept. 17,
2009).
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Section 6 of the bill provides authorization for the
construction of a new municipal, residential, and industrial
system (``MR&I System'') to meet this basic need that most take
for granted. Section 6(f) provides that at the request of the
Tribe, the Secretary will enter into an agreement for the
design and construction of the MR&I System. The Committee has
been informed informally that the Tribe and the Secretary of
Interior intend to work cooperatively in the negotiation of
this agreement for construction of the MR&I System to ensure
that the System is constructed in a cost-effective manner. The
Committee has also been informally informed that, as the lead
agency, the BOR will provide oversight over the agreement to
ensure cost efficiency as the MR&I System is constructed.
Finally, pursuant to section 6(g) the components of this system
will pass from the United States to the Tribe upon the
completion of each of the components.

Crow Irrigation Project

The first general authorization for the construction of the
Crow Irrigation Project on the Reservation was in an agreement
between the Tribe and the United States entered into on
December 8, 1890, and ratified by Section 31 of the Indian
Appropriation Act of March 3, 1891, 26 Stat. 989. Subsequent
acts provided for continued construction and development to
date. Nearly all of the irrigation facilities were completed
before 1940. Operation and maintenance of the Crow Irrigation
Project are currently performed by the Bureau of Indian Affairs
Office located in Crow Agency, Montana.
The Project has nine diversion dams, one storage dam with a
capacity of about 23,000 acre-feet, nine canal systems
including roughly 320 miles of canals, five drainage systems
running over 45 miles, and more than 2,300 irrigation
structures. The primary source of water for the Project
originates on tribal lands in the Bighorn Mountains which
border the west side of the Reservation. Essentially all
irrigation is supplied by surface water sources. In 2006, the
Project served approximately 1,118 water users. The primary
irrigated crops are hay and alfalfa, irrigated pasture, sugar
beets and grains.
Engineering studies completed for the rehabilitation of the
Crow Irrigation Project show that the Project's irrigated area
currently consists of 63,365 acres. The Project lands are
located along the Big Horn and the Little Big Horn Rivers,
Pryor Creek, and Lodge Grass Creek, all tributaries to the
Yellowstone River. There are eleven Project-Operated Units in
the Crow Irrigation Project scattered over an area 50 miles
long and 60 miles wide, all within the Reservation. In 1999,
approximately 61 percent of Crow Irrigation Project irrigated
lands were held in trust by the United States for the benefit
of individual Indian landowners and for the Crow Tribe.
The Crow Irrigation Project serves Indian and non-Indian
land owners. Non-Indian landowners in the three irrigation
districts and private ditch companies in the Crow Irrigation
Project are organized under Montana statutes and are legal
entities. The Irrigation District Boards, chartered under state
law, represent only owners of fee lands.
In a 2006 report on Indian Irrigation Projects, the
Government Accountability Office found that Crow Irrigation
Project fees were insufficient to cover the project's
operations as well as maintenance costs. The Bureau of Indian
Affairs reported to GAO that deferred construction and
maintenance costs were more than $54 million. Project financing
problems have been long known. In 1916, Edgar Merritt,
Assistant Commissioner of Indian Affairs, testified before the
United States Senate Committee on Indian Affairs that the
economics of the Crow Irrigation Project had been a ``hopeless
failure.''\17\ In addition to the project falling into
disrepair, upgrades are needed. There is a lack of adequate
water measurement, and there is a need for automated gate
controls at key diversion points, as well as installation of
motorized gate controls.
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\17\Opening of the Crow (Montana) Indian Reservation: Hearing
Before the S. Comm. on Indian Affairs, Part IV, 64th Cong. 22 (1916)
(testimony of Edgar B. Merritt, Commissioner on Indian Affairs).
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Section 5 of S. 375 authorizes the rehabilitation and
betterment of the Crow Irrigation Project so that all Project
lands can be efficiently utilized for farming and irrigation
projects in order to maximize the Tribe's economic development
opportunities. Section 5 provides that BOR shall be the lead
agency for the rehabilitation and betterment of the Crow
Irrigation Project. The Committee was informally informed that
the BOR, in its lead agency capacity intends to assess the Crow
Irrigation Project Betterment Evaluation prepared by HKM
Engineering, dated July 31, 2008, to review the benefits it
provides to allottees.

Crow Tribe water rights

In 1975, the United States, on behalf of the Crow Tribe,
brought suit in U.S. District Court for the District of Montana
to obtain a final determination of the Tribe's water
rights.\18\ In 1979, the State of Montana initiated a general
stream adjudication and created the Montana Reserved Water
Rights Compact Commission to negotiate, on behalf of the
Governor, settlements with Indian Tribes and federal agencies
claiming federal reserved water rights in the state of Montana.
The Compact Commission was established as an alternative to
litigation as part of the state-wide water adjudication and is
charged with concluding compacts ``for the equitable division
and apportionment of waters between the state and its people
and the several Indian tribes'' and the federal government.\19\
Pending the outcome of Compact Commission proceedings, the
litigation in the U.S. District Court was stayed in 1983.\20\
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\18\See, U.S. v. Big Horn Low Line Canal Company, et al., No. CIV-
75-34-BLG (filed April 17, 1975).
\19\Mont. Code Ann. Sec. 85-2-702
\20\See, Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187, 1189 (9th
Cir. 1983).
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The Crow Tribe and the Compact Commission successfully
negotiated a settlement of the Tribe's water rights claims. The
Crow Tribe-Montana Compact was approved by the Montana
legislature in 1999.\21\ Once approved by S. 375, and ratified
by the Tribe's membership, the Compact is the full and final
settlement of the Tribe's water rights within the State of
Montana and the Tribe waives any claims to Montana water rights
not contained in the Compact.
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\21\Mont. Code Ann. Sec. 85-20-901.
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Generally speaking, S. 375 and the Compact provide for a
May 7, 1868 priority date for the tribal water rights, not
including the Bighorn Lake storage allocation portion of the
tribal water rights which is given a priority date of the water
right held by the BOR.\22\ Existing state uses are protected
from the assertion of seniority by the Tribe, and new
development of the tribal water rights will be junior in
priority to existing uses. In every basin except the Bighorn
River Basin, the Tribe may also purchase state water rights.
The State of Montana will issue no new water rights within the
basins of the Compact.
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\22\See, Article III of the Compact for specifics of the priority
dates.
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The Committee was informally informed that one of the
documents being developed for purposes of implementation of the
tribal water rights under Compact is a list of the tribal water
uses developed as of the date the Compact was ratified by the
Montana legislature, June 22, 1999. It was explained to the
Committee that this list is significant for a number of reasons
relating to administration of the tribal water rights. For
example, tribal water uses developed as of June 22, 1999,
include water uses developed by allottees using the tribal
water rights as of that date. The Committee was informally
informed that the United States has an interest in reviewing
this list to confirm that the list includes all such allottee
water uses. The Committee was also informally informed that the
Tribe also acknowledges and agrees that tribal water uses
developed as of June 22, 1999, includes water uses developed by
allottees, and that the United States shall review the list as
developed to confirm that the list includes all such allottee
water uses.
Congressional approval of S. 375 and the Compact is needed
to resolve the claims of the Tribe against the United States
and releases the United States from liability. Without
legislation, the Tribe, the United States, and other parties
would be forced to engage in lengthy and costly water rights
litigation to settle the rights of water users.

LEGISLATIVE HISTORY

In the 110th Congress, Senator Tester introduced a bill to
settle the Crow Tribe's water rights with Senator Baucus as an
original co-sponsor.\23\ The bill was referred to the Committee
on Indian Affairs. On September 11, 2008, the Committee held a
hearing on this bill. At an open business meeting on September
25, 2008, the Committee approved the bill by a voice vote, but
the bill was not reported to the full Senate pending resolution
of Senator Barrasso's concerns. The 110th Congress expired
without the bill being considered on the Senate floor.
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\23\In the 110th Congress the bill was numbered S. 3355.
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In the 111th Congress, Senator Tester introduced S. 375,
the Crow Tribe Water Rights Settlement Act of 2009, on February
4, 2009, and the bill was referred to the Committee. Senator
Baucus is an original cosponsor. S. 375 is substantially
similar to the bill introduced in the 110th Congress. At an
open business meeting on September 10, 2009, the Committee
approved S. 375, with an amendment in the nature of a
substitute.

SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE

Amendments addressing Wyoming concerns

On September 10, 2009, the Committee held a business
meeting on the bill and at that meeting approved a substitute
amendment that addressed a number of issues, including specific
issues raised by stakeholders in the State of Wyoming who were
concerned that the bill, as introduced, might be interpreted to
affect their rights or the interests of the State of Wyoming.
The Committee begins with the observations that the Compact
was negotiated by representatives of the Crow Tribe, the State
of Montana and the United States in the late 1990s and that the
parties to the Compact, once it has been approved by Congress,
will consist of the Crow Tribe, the State of Montana, and the
United States--not the State of Wyoming or water users within
the State of Wyoming. Further, under the terms of the Compact
itself, within 180 days after the Compact has been ratified by
the last of the three parties, the State of Montana, the Tribe,
and the United States must file a joint motion to approve a
proposed decree in a general stream adjudication case that is
pending in the Water Court of the State of Montana. In that
adjudication case, the water court is only adjudicating water
rights located in the State of Montana, and the State of
Wyoming and users of Wyoming water rights are not parties to
the case.
Water users in Wyoming raised concerns about the Compact
because (i) the Bighorn River runs northward out of Wyoming
across the Wyoming-Montana state line and flows directly into
the Crow Indian Reservation in south central Montana, (ii) the
Bighorn River is a significant interstate tributary of another
interstate stream, the Yellowstone River, which is the subject
of the Yellowstone River Compact approved by the States of
Montana, North Dakota and Wyoming on December 8, 1950, pursuant
to the Act of June 2, 1949 (P.L. 81-83), and (iii) the tribal-
state Compact is being ratified through legislation of the
United States Congress. The substitute amendment adopted at the
Committee's business meeting on September 10, 2009, addresses
these concerns.

Amendments to Section 10

Section 10(c)(3) of the bill sets forth a provision whereby
the Tribe reserves certain claims for damages or injuries to
water rights arising outside of the State of Montana. The
substitute amendment strikes this paragraph. The Committee
notes that the waivers and releases authorized in the bill are
all limited to the Tribe's ``water rights within the State of
Montana'' or to events that have occurred in the State of
Montana. Accordingly, a reservation of rights for damages or
injuries arising outside of the State of Montana is
unnecessary.

Amendments to Section 12

The substitute makes an amendment to Section 12(a) of the
bill (by adding a new paragraph to the end of that subsection)
to clarify the meaning and intent of certain provisions of the
``Streamflow and Lake Level Management Plan,'' an instrument
that was negotiated separately among the Tribe, the State of
Montana, and the Bureau of Reclamation (the ``Plan''). Section
1 of the Plan defines the term ``Instream Flow'' for the
purposes of the Plan as ``the water flowing in the Bighorn
River Released from the Yellowtail Afterbay Dam and maintained
throughout the reach'' from that dam to a certain point
downstream ``to maintain the fisheries resource.'' Section 2 of
the Plan includes several provisions that require the Tribe to
``dedicate'' a specified quantity of the tribal water rights to
``Instream Flow'' in the Bighorn River.
The Committee notes that the Streamflow and Lake Level
Management Plan is a plan that was entered into among the
Tribe, the State of Montana, and the Department of the Interior
to achieve a variety of water management objectives. The plan
is not an instrument transferring or creating water rights;
rather, as the amendment to Section 12(a) states--

[A]ny requirement in that plan that the Crow Tribe
dedicate a specified percentage, portion, or number of
acre feet of water per year of the tribal water rights
to instream flow means, and is limited in its meaning
and effect to, an obligation on the part of the Crow
Tribe to withhold from development or otherwise refrain
from diverting or removing from the Bighorn River the
specified quantity of water for the duration, at the
locations, and under the conditions set forth in the
applicable requirement.

Water users in the State of Wyoming raised concerns that,
because the plan is expressly referred to in Section 12 of the
bill and in the Compact, the provisions in the Plan requiring
the Tribe to ``dedicate'' a portion or quantity of the tribal
water rights to instream flow between two points of the Bighorn
River might be interpreted as creating, confirming or ratifying
a water ``use'' which might be interpreted to create a new or
additional water delivery obligation that the State of Wyoming
and/or water users in Wyoming would be obligated to fulfill.
The amendment to Section 12(a) addresses this concern, by
clarifying that the Tribe's ``dedication'' of a quantity of its
tribal water rights to instream flow under the Plan is not a
use or commitment of water that creates any new or additional
upstream or interstate obligations.
This clarification in the amendment to Section 12(a) is
consistent with existing provisions in that subsection of the
bill, in particular paragraph (1) of subsection (a). Section
12(a)(1) of the bill states that ``[n]othing in the Compact or
[the Plan] . . . limits the discretion of the Secretary under
section 4F of that [P]lan''--which sets forth a list of 6
factors or criteria for making decisions relating to instream
flow in the Bighorn River and desired lake levels in the
Bighorn Lake--or ``requires the Secretary to give priority to
any factor described in section 4F of the plan over any other
factor described in that section.''
The purpose of Section 12(a) is to make it clear that,
notwithstanding the Compact or Plan, the Bureau retains its
discretion in balancing the interests of the various
stakeholders--including Montana, Wyoming, and Federal
interests--in managing the lake levels in Bighorn Lake. The
bill, the Compact and the Plan do not alter or limit the
Secretary's authority or discretion in balancing these
interests in its management decisions for Bighorn Lake.

Amendments to Section 13

The substitute also includes amendments to Section 13 that
address, for the most part,\24\ concerns that arise from
provisions in the Compact\25\ that state that, with certain
exceptions, water rights recognized under Montana state law in
the Bighorn River Basin within Montana that have a priority
date before the Compact was ratified by the Montana legislature
in June of 1999 ``are protected from an assertion of senior
priority in the exercise of current uses of the Tribal Water
Right developed as of the date'' of such ratification as well
as from ``new development of the Tribal Water Right after the
date'' of such ratification. Because these protections are part
of a compact that is being ratified by an act of Congress,
water interests in the State of Wyoming have expressed concern
that the protections from the Tribe's senior water right
afforded under the Compact to junior Montana water rights might
be interpreted to cause harm or somehow increase the risk to
upstream water users in the State of Wyoming.
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\24\Some minor or technical amendments were made to Section 13 for
clarification purposes only. The substantive amendments to Section 13
relate to the Compact provisions set forth in footnote 24.
\25\See Article III (A)(6)(a)(1) and (2), (B)(6)(a)(1) and (2),
(E)(6)(a)(1) and (2), and (F)(6)(a)(1) and (2) of the Compact.
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Accordingly, to preclude any such interpretation of the Act
or the Compact, the amendment approved by the Committee would
add a new paragraph to Section 13(f) that states that the
Compact provisions that afford these protections to certain
water rights recognized under the laws of Montana ``do not
limit or otherwise affect existing or future water rights
(including the exercise of any such rights) outside of that
State.''
This particular amendment, added as a new paragraph to the
end of subsection (f), is consistent with other provisions in
subsection (f) of Section 13 which generally relate to the 1950
Yellowstone River Compact between Wyoming, Montana, and North
Dakota. Subsection (f) of Section 13 makes it clear that the
bill, the Compact and the Plan have no effect on the meaning,
interpretation, implementation, application or effect of the
1950 interstate water compact, or on any of the rights,
requirements, obligations, allocations of water, or any present
or future claim, defense or other position asserted in a legal,
administrative or other proceeding relating to that interstate
water compact.
Subsection (f) of Section 13 also makes it clear that the
bill, the Compact and the Plan do not: (i) make an allocation
or apportionment of water between states, (ii) address or imply
whether, how, or to what extent, if any, the tribal water
rights or any portion of the tribal water rights should be
accounted for as part of or otherwise charged against any
allocation of water made to a State under the provisions of the
Yellowstone River Compact; or (iii) whether, how, or to what
extent, if any, the Yellowstone River Compact includes or does
not include the tribal water rights or the water right of any
Indian tribe as part of any allocation or other disposition of
water under that compact.
In short, subsection (f) of Section 13, as amended, was
included in the bill to clarify that the bill and the Compact
that it approves are not intended to tip the balance, directly
or indirectly, that was struck between the signatory states to
the 1950 Yellowstone River Compact or to make an allocation or
apportionment of water between any of those states independent
of the 1950 Yellowstone River Compact.

Other amendments

Amendment to Section 6

The amendment added a new subsection (g) to Section 6,
which conveys title of MR&I System (as defined in S. 375)
facilities to the Tribe after completion of the facility or
section. This amendment was included to address the
Administration's concern. In exchange for taking over title to
the MR&I system and facilities, Section 14(f) was also amended
to include the establishment of the MR&I OM&R Account. The MR&I
OM&R Account will be used to fund a portion of the Federal
trust responsibility for OM&R for this project in the future,
with the balance of such costs to be borne by the Tribe. The
immediate transfer of title from the Federal government to the
Tribe eliminates any future liability for the United States for
this system, and constitutes a form of consideration for the
MR&I OMR Account authorization.

Amendment to Section 11

To address the Administration's concern about the ``early
availability of funds,'' Section 11(e) in S. 375 was amended to
provide that, with the exception of very limited funds
necessary to effectively begin to implement the settlement
($4,776,000 for the Tribal Compact Administration Account),
none of the funds deposited into the Crow Settlement Fund shall
be available to the Tribe until the enforceability date of the
settlement occurs, the conditions for which are set forth in
Section 10(e) of the bill.

Amendments to Section 14

Sections 14(l) & (m) authorizing of imputed interest on
funds placed into the Crow Settlement Fund prior to the
enforceability date of the settlement were deleted. These
changes were in response to Administration concerns that these
provisions created some difficulties for budgeting on a fiscal
year basis. Rather than authorize appropriations for imputed
interest that accrued from enactment through the enforceability
date on funds in the Crow Settlement Fund, the interest was
estimated and added to the six Crow Settlement Fund accounts
(Section 14(c)-(h)) as part of the bill.

SECTION-BY-SECTION ANALYSIS OF S. 375, AS AMENDED

Section 1. Short title

Section 1 provides the short title of S. 375 as the ``Crow
Tribe Water Rights Settlement Act of 2009.''

Section 2. Purposes

This section states that S. 375 achieves a fair, equitable,
and final settlement of claims to water rights in the State of
Montana for the Crow Tribe and the United States for the
benefit of the Tribe and allottees. The section also states
that S. 375 authorizes and ratifies the Crow Tribe-Montana
Water Rights Compact entered into by the Tribe and the State on
June 22, 1999. The section further states that S. 375 will
require the Secretary of the Interior to execute the Compact,
to perform all actions necessary to carry out the Compact, and
to appropriate funds necessary for the implementation of the
Compact and this bill.

Section 3. Definitions

This section defines important terms used in S. 375.

Section 4. Ratification of Compact

This section ratifies the entire Compact, except as
modified by S. 375, and also ratifies any executed amendments
to the Compact that are consistent with S. 375. To the extent
that the Compact does not conflict with S. 375, this section
also directs the Secretary of the Interior to promptly execute
the Compact, including all exhibits to or parts of the Compact
requiring the signature of the Secretary, and to carry out all
Federal compliance necessary to implement the Compact,
including compliance with all applicable environmental acts and
regulations.

Section 5. Rehabilitation and improvement of the Crow Irrigation
Project

This section requires the Secretary, acting through the
Commissioner of Reclamation, to carry out all activities
necessary to improve the water diversion and delivery features
of the Crow Irrigation Project, in accordance with an agreement
to be negotiated between the Secretary and the Tribe. This
section provides that the scope of the Project's improvement
will be as described in the ``Engineering Evaluation of
Existing Conditions, Crow Agency Rehabilitation Study''
prepared by HKM Engineering, Inc. and dated July 2008. This
section also states that the federal government will not seek
reimbursement for costs incurred in support of the Project from
users of the tribal water right.
This section provides that the Secretary's obligation will
not exceed $160,653,000, except that the total amount of
$160,653,000 will be increased or decreased, as appropriate,
based on ordinary fluctuations from May 1, 2008, in
construction cost indices applicable to the types of
construction involved in the rehabilitation and improvement.
This section also states that at the Tribe's request, the
Secretary will enter into an agreement with the Tribe to
implement the provisions of this section by which the Tribe
will plan, design, and construct any or all of the
rehabilitation and improvement required by this section.

Section 6. Design and construction of MR&I System

This section requires the Secretary, acting through the
Commissioner of Reclamation, to carry out such activities as
are necessary to design and construct the water diversion and
delivery features of the MR&I System (as defined in S. 375), in
accordance with an agreement to be negotiated between the
Secretary and the Tribe. The design and construction the MR&I
System will be as described in the ``Crow Indian Reservation
Municipal, Rural and Industrial Water System Engineering
Report'' prepared by HKM Engineering, Inc. and dated July 2008.
This section also states that the federal government will not
seek reimbursement for costs incurred in support of the MR&I
System for costs allocated to the Tribe.
This section provides that the Secretary's obligation will
not exceed $200,840,000, except that the total amount of
$200,840,000 will be increased or decreased, as appropriate,
based on ordinary fluctuations from May 1, 2008, in
construction cost indices applicable to the types of
construction involved in the design and construction.
This section also states that at the Tribe's request, the
Secretary will enter into an agreement with the Tribe to
implement the provisions of this section by which the Tribe
will plan, design, and construct any or all of the design and
construction required by this section.
This section provides that the Secretary shall transfer
title of each MR&I System facility or section to the Tribe upon
completion of the construction each facility or section of the
MR&I System that is operating and delivering water.
This section provides that after title to the MR&I System
is transferred to the Tribe the United States may not be held
liable for any act, omission, or occurrence related to the
land, buildings, or facilities conveyed other than damages
caused by acts of negligence committed by the United States, or
employees or agents of the United States.
After title to the MR&I System is transferred to the Tribe
and amounts are deposited in the MR&I System OM&R account (as
defined in S. 375), this section states that the federal
government is not obligated to pay for the operation,
maintenance and replacement costs of the MR&I System.

Section 7. Tribal water rights

Section 7(a) provides that it is the intent of Congress to
provide each allottee with benefits that are equivalent to or
exceed the benefits allottees currently possess, taking into
account certain considerations. Section 7(b) states that the
tribal water rights are ratified, confirmed, and declared to be
valid, with use of the tribal water rights subject to the
Compact's terms and conditions. Section 7(c) requires that the
tribal water rights will be held in trust by the United States
for the use and benefit of the Tribe and the allottees.
Section 7(d) provides that any entitlement to water of an
allottee will be satisfied from the tribal water rights and
that allottees are entitled to a just and equitable allocation
of water for irrigation purposes. Section 7(d) further states
that the water rights and other benefits granted by this bill
will be considered full satisfaction of any claim of an
allottee waived pursuant to section 10(a)(2).
Section 7(d) also provides that once remedies under the
tribal water code or other applicable tribal law have been
exhausted, an allottee may seek relief under section 7 of the
Act of February 8, 1887, or other applicable law. Section 7(d)
also states that the Secretary has the authority to protect
allottees' rights as provided in this section.
Section 7(e) states that, once the Secretary has approved
the tribal water code pursuant to Section 7(f)(3)(B), and
except as provided in paragraph (2), the Tribe maintains the
sole authority to allocate, distribute, and lease the tribal
water rights in accordance with the Compact. Section 7(e) also
provides that, subject to the tribal water code and applicable
tribal and Federal law, an allottee may, pursuant to the tribal
water code, lease any interest in land held by the allottee,
together with any water right determined to be appurtenant to
the interest in land.
Section 7(f) provides that within three years after the
Crow tribal members ratify the Compact, the Tribe will enact a
tribal water code that provides for the management, regulation
and governance of all uses of the tribal water rights in
accordance with the Compact. The Tribe's water code must be
approved by the Secretary and must recognize allottee interests
in water.

Section 8. Storage allocation from Bighorn Lake

This section directs the Secretary to allocate to the Tribe
300,000 acre-feet per year of water stored in Bighorn Lake and
specifies its usage. As a condition of receiving an allocation
under this section, this section directs the Tribe to enter
into an allocation agreement with the Secretary to establish
the terms and conditions of the allocation. This section also
permits the Tribe to enter into a service contract, lease,
exchange, or other agreement providing for the temporary
delivery, use or transfer of not more than 50,000 acre-feet per
year of water for use off the Reservation.

Section 9. Satisfaction of claims

This section states that the benefits to the Tribe and the
allottees under the Compact and the Act shall be considered to
completely satisfy all claims of the Tribe and the allottees.

Section 10. Waivers and releases of claims

Section 10(a)(1) waives claims for water rights by the
Tribe on behalf of itself and its members (but not its members
in their capacity as allottees) and by the United States on
behalf of the Tribe and its members (but not members in their
capacities as allottees).
Section 10(a)(2) describes the waiver of claims for water
rights by the United States on behalf of the allottees.
Section 10(a)(3) describes the Tribe's waiver and release
of claims against the United States.
Section 10(b) states that the waivers and releases of
claims become effective on the enforceability date, which is
also described in this section.
Section 10(c) describes the rights retained by the Tribe
and the United States.
Subsection 10(d) provides that the Compact and the Act have
no effect on certain federal laws, or on the authority of the
United States to carry out activity as a trustee for any Indian
tribe other than the Tribe, or confers state jurisdiction to
interpret certain federal laws.
Section 10(e)(1) describes the enforceability date. Section
10(e)(1)(B) provides that all of the authorized funds for the
Crow Settlement Fund shall be deposited before the
enforceability date occurs.
Subsection 10(f) describes the process for tolling claims.

Section 11. Crow Settlement Fund

Section 11 establishes the Crow Settlement Fund that will
have the following accounts: the Tribal Compact Administration
account; the Economic Development account; the Water
Development Projects account; the MR&I System OM&R account; the
Yellowtail Dam OM&R account; and the Crow Irrigation Project
OM&R account. This section describes how deposits are made to
the Settlement Fund, and how the Secretary is to manage,
invest, and distribute the monies in the accounts. This section
also describes how the Tribe will withdraw amounts and when
funds are available to be withdrawn.

Section 12. Yellowtail Dam, Montana

Section 12 describes provisions of S. 375 related to
Yellowtail Dam. Section 12(a) discusses the Streamflow and Lake
Level Management Plan referred to in the Tribal-State Compact.
It describes the relationship between the Streamflow and Lake
Level Management Plan, the Tribal-State Compact, and S. 375.
Section 12(b) states that the Tribe shall have the
exclusive right to develop and market power generation as a
water development project on the Yellowtail Afterbay Dam.
Section 12(c) requires the Bureau of Reclamation to consult
with the Tribe on at least a quarterly basis on issues related
to the Bureau's management of Yellowtail Dam.

Section 13. Miscellaneous provisions

This section includes provisions on the limits of claims
and rights not waived in the Compact, S. 375, or other ongoing
matters specified in S. 375. The section also confirms the
status quo of tribal, state, and federal subject matter
jurisdiction and regulatory authority. The section waives the
United States' immunity from suit to enforce the agreement.

Section 14. Authorization of appropriations

This section authorizes $160,653,000 for the Rehabilitation
and Improvement of the Crow Irrigation Project; $200,840,000
for the Design and Construction of the MR&I System; $4,776,000
for Tribal Compact Administration; $47,762,000 for Economic
Development Projects; $44,889,000 for Water Development
Projects; $72,256,000 for MR&I System OM&R; $12,987,000 for
Yellowtail Dam OM&R and $15,207,000 for Crow Irrigation Project
OM&R. This section also authorizes funds for environmental
compliance and the Bureau of Reclamation costs for the Crow
Irrigation Project and MR&I systems. Each amount appropriated
is to be adjusted to reflect changes in appropriate cost
indices during the period beginning on May 1, 2008, and ending
on the date of appropriation.

Section 15. Repeal on failure to meet effective date

This section states that if the Secretary does not publish
a statement of findings by March 31, 2016, the Act is repealed
effective January 1, 2016, with amounts having been
appropriated and made available reverted to the general fund of
the Treasury.

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business meeting on September 10, 2009, the
Committee on Indian Affairs, by voice vote, adopted S. 375 with
an amendment in the nature of a substitute and ordered the bill
reported to the Senate, with the recommendation that the Senate
pass S. 375, as amended by the substitute.

COST AND BUDGETARY CONSIDERATIONS

S. 375--Crow Tribe Water Rights Settlement Act of 2009

Summary: S. 375 would approve a compact between the Crow
Tribe and the state of Montana to settle tribal claims to water
rights in the state. The bill also would authorize the
construction and rehabilitation of systems that deliver water
to tribal lands and would establish a trust fund for the tribe
to operate and maintain those systems. Finally, the bill would
authorize appropriations for the Department of the Interior
(DOI) to develop the water systems.
Based on information from DOI and assuming appropriation of
the necessary amounts, CBO estimates that implementing S. 375
would increase discretionary spending by $193 million over the
2010-2014 period and $510 million after 2014. Enacting the
legislation would not affect direct spending or revenues over
the 2010-2019 period. Enacting the bill would increase direct
spending by $29 million after 2019.
S. 375 contains an intergovernmental mandate as defined in
the Unfunded Mandates Reform Act (UMRA) because it would
require the tribe to enact a tribal water code. CBO estimates
that the cost of complying with the mandate would be small and
well below the threshold established in UMRA ($69 million in
2009, adjusted annually for inflation).
This bill contains no private-sector mandates as defined in
UMRA.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 375 is shown in the following table. The
costs of this legislation fall within budget functions 300
(natural resources and environment) and 450 (community and
regional development).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
------------------------------------------------------------
2010 2011 2012 2013 2014 2010-2014
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION

MR&I Water System:
Estimated Authorization Level.................. 10 15 20 25 25 95
Estimated Outlays.............................. 6 12 17 22 24 81
Crow Irrigation Project:
Estimated Authorization Level.................. 10 15 15 20 20 80
Estimated Outlays.............................. 6 12 14 18 19 69
Crow Settlement Fund:
Estimated Authorization Level.................. 5 0 0 0 0 5
Estimated Outlays.............................. 5 0 0 0 0 5
Administrative Costs for Bureau or Reclamation:
Estimated Authorization Level.................. 8 8 7 7 8 38
Estimated Outlays.............................. 6 8 8 8 8 38
Total Spending Under S. 375
Estimated Authorization Level.............. 33 38 42 52 53 218
Estimated Outlays.......................... 25 32 38 47 51 193
----------------------------------------------------------------------------------------------------------------
Note: MR&I = Municipal, Rural, and Industrial Water System.

Basis of estimate: For this estimate, CBO assumes that S.
375 will be enacted in fiscal year 2010 and that the necessary
amounts will be appropriated in the fiscal years in which those
funds would be spent. Enforcement of the settlement depends on
the completion of several actions by federal, state, local, and
tribal entities. For this estimate, CBO expects that those
actions will be completed in fiscal year 2016. Cost estimates
for the authorized water projects are based on information from
DOI and on historical spending patterns for similar activities.

Spending subject to appropriation

S. 375 would authorize appropriations for a variety of
activities to benefit the Crow Tribe. The Secretary of the
Interior would be authorized to construct and rehabilitate
water infrastructure on tribal lands, operate and maintain that
infrastructure, and sponsor development projects for the tribe.
CBO estimates that implementing the settlement would increase
discretionary spending by $193 million over the 2010-2014
period and $510 million after 2014.
Municipal, Rural, and Industrial (MR&I) Water System.
Section 6 would authorize the appropriation of $201 million,
plus adjustments for increases in construction costs, to build
an MR&I water system that would deliver water to communities
and businesses on tribal lands. Based on information from DOI,
CBO expects that construction of the MR&I water system would
begin in 2010 and take about 10 years to complete. CBO
estimates that implementing this provision would cost $81
million over the 2010-2014 period and $143 million after 2014,
assuming appropriation of the necessary amounts (including
adjustments for inflation).
Crow Irrigation Project. Section 5 would authorize the
appropriation of $161 million, plus adjustments for increases
in construction costs, to rehabilitate and improve the Crow
Irrigation Project, which delivers water to farmland on tribal
lands. Based on information from DOI, CBO expects that
improvements to the Crow Irrigation Project would begin in 2010
and take about 10 years to complete. CBO estimates that
implementing this provision would cost $69 million over the
2010-2014 period and $110 million after 2014, assuming
appropriation of the necessary amounts (including adjustments
for inflation).
Crow Settlement Fund. Section 11 would authorize the
appropriation of about $198 million (including $5 million to
administer the tribal compact), plus adjustments for increases
in construction costs, to be deposited into the Crow Settlement
Fund. Amounts in the fund would be used for economic and water
development projects and for operation and maintenance of the
Crow Irrigation Project, the MR&I system, and the Yellowtail
Dam, in Montana.
Except for amounts appropriated to administer the tribal
compact, which could be spent by the tribe after it ratifies
the compact, amounts in the fund could not be spent by the
tribe until certain conditions are met. Among others, the
Secretary of the Interior would have to publish a statement of
findings in the Federal Register indicating that all parties
have executed the compact; the Montana water court and U.S.
district court would have to issue a judgment and final decree
concerning the compact; $198 million would have to be
appropriated to the Crow Settlement Fund; and Montana would
have to appropriate amounts due to the tribe under the compact.
Should the Secretary not publish the required statement of
findings by March 31, 2016, verifying that all conditions
necessary to execute the agreement have been met, the agreement
would not take effect, and no federal funds could be spent
after that date.
CBO expects that the tribe would ratify the compact in 2010
based on information from the tribe. At that time, the tribe
could spend amounts appropriated to the Crow Settlement Fund to
administer the compact, and the budget would record an
expenditure of $5 million. Based on information from DOI, CBO
expects that all other conditions necessary to execute the
agreement would be met in 2016. At that time, all other amounts
in the fund could be spent by the tribe, and the budget would
record an expenditure of $212 million (including adjustments
for inflation). The Secretary of the Interior would then be
required to invest those amounts in U.S. Treasury obligations.
Payments to certain tribal 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. As a result, CBO expects that the entire amount
deposited into the settlement fund (excluding the amount for
tribal compact administration) would be recorded as an outlay
in 2016 when the funds could be spent by the tribe.
Subsequently, any use of such funds would have no effect on the
federal budget. Because S. 375 would direct the Secretary to
invest amounts in the fund only after those amounts are
available to the tribe, CBO expects that no interest would
accrue on the amounts in the fund until 2016. CBO estimates
that, in total, implementing section 11 would cost $5 million
in 2010 and $212 million in 2016.
DOI Administrative Costs. S. 375 would authorize the
appropriation of such sums as may be necessary for DOI to
conduct certain administrative activities related to the
compact. Based on information from DOI, CBO estimates that DOI
would need about $8 million a year to carry out its
responsibilities under the bill, including $1 million a year
over the 2010-2011 period for environmental compliance
activities related to the compact. In total, CBO estimates that
those administrative activities would cost $38 million over the
2010-2014 period and $45 million after 2014, assuming
appropriation of the necessary amounts.

Direct spending

Section 8 would allocate a portion of the water supply in
Bighorn Lake that was created by the construction of the
Yellowtail Dam to the Crow Tribe. The legislation would require
that any capital costs of the Yellowtail Dam that would be
allocated to the tribe as a result of enacting S. 375 would be
nonreimbursable by the tribe. (Nonreimbursable costs are costs
incurred by the federal government to construct a project that
are not recovered from project beneficiaries.)
Under current law, about one-third of the capital costs of
the Yellowtail Dam will eventually be repaid to the federal
government by private entities that contract for water supplies
from Bighorn Lake. (The remaining two-thirds of those costs
will be repaid by ratepayers who receive electricity from the
dam.) Under the bill, about 90 percent of those capital costs
would become nonreimbursable because most of the water in
Bighorn Lake would be allocated to the tribe. Currently, the
tribe does not purchase water from the lake and, hence, does
not pay for any portion of the capital costs of the dam.
Further, the tribe is not expected to enter into a contract for
water from the dam in the next 10 years. CBO expects that, at
some point after 2019, one or more entities will purchase water
from Bighorn Lake. Those entities would repay a portion of the
capital costs of the dam ($29 million) over several years. Such
collections are classified as offsetting receipts (a credit
against direct spending), are deposited into the Reclamation
Fund, and cannot be spent without further appropriation.
By making a portion of the capital costs of the Yellowtail
Dam nonreimbursable, enacting this legislation would result in
the loss of offsetting receipts totaling about $29 million
sometime after 2019.
Intergovernmental and private-sector impact: S. 375 would
require the Crow tribe to enact policies that would govern
tribal water rights as detailed in the agreement. That
requirement would be an intergovernmental mandate as defined in
UMRA because it would place a statutory requirement on the
tribe that is separate from provisions of the agreement. CBO
estimates that the cost of the mandate would be small and well
below the threshold established in UMRA ($69 million in 2009,
adjusted annually for inflation). Furthermore, amounts
authorized for the Crow Settlement Fund could be used to pay
for any such costs.
This bill contains no private-sector mandates as defined in
UMRA.
Estimate prepared by: Federal costs: Jeff LaFave; Impact on
state, local, and tribal governments: Melissa Merrell; Impact
on the private sector: Marin Randall.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.

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 impact of S. 375 will be minimal.

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 375 will not effect any changes in existing
law.