[Senate Report 111-356]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 664
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-356

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     A BILL TO SETTLE LAND CLAIMS WITHIN THE FORT HALL RESERVATION

                                _______
                                

                December 2, 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. 2802]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 2802) to settle land claims within the Fort Hall 
Reservation, having considered the same, reports favorably 
thereon, and recommends that the bill, as amended, do pass.

                                PURPOSE

    The purpose of S. 2802 is to settle pending land claim 
disputes occurring between the Shoshone-Bannock Indian Tribes 
of the Fort Hall Indian Reservation and certain non-Indian 
landowners.

                               BACKGROUND

    The Fort Hall Reservation was established by Executive 
Order in 1867 and confirmed in the Fort Bridger Treaty of 1868. 
The Blackfoot River was established as the northern boundary of 
the Fort Hall Reservation. The land disputes in question arose 
as a consequence of the realignment of the Blackfoot River by 
the Corps of Engineers in 1964 to address flow and periodic 
flooding issues. Following the realignment, 25 parcels of land 
(approximately 37.04 acres of individually and tribally-owned 
land) ended up on the north side of the river, outside of the 
reservation boundary, and 19 parcels (approximately 31.01 
acres) of non-Indian owned land ended up on the south side of 
the River, within that boundary. Over the years, these parcels 
of land have remained idle due to lack of access.
    In the late 1980s, the Snake River Basin Adjudication began 
decreeing water rights on all streams and rivers within the 
Snake River Basin in Idaho, which includes the Blackfoot River 
basin. Several non-Indian landowners whose lands were affected 
by the realignment of the Blackfoot River asserted claims that 
their place of use was on the Fort Hall Reservation. The 
Shoshone-Bannock Tribes filed objections to those claims which 
resulted in litigation currently pending as part of the Snake 
River Basin Adjudication.

                        NEED FOR THE LEGISLATION

    S. 2802 embodies the terms of a negotiated settlement among 
the parties, including the Shoshone-Bannock Tribes, the non-
Indian litigants, and the State of Idaho. Congressional 
approval of the settlement agreement is required to extinguish 
claims and title to land, to place land into trust and to 
appropriate funds. Further, without legislation the pending 
legal proceedings will resume, resulting in lengthy and costly 
litigation for all affected parties.
    S. 2802 would resolve the land ownership disputes and 
extinguish claims relating to the ownership of lands and water 
rights. These ownership disputes would be resolved by conveying 
title to the lands within the Reservation to the United States 
to hold in trust for the Tribe or Indian allottee, and by 
conveying title to the lands outside the reservation boundaries 
to the Black River Flood Control District No. 7 for re-
conveyance to the non-Indian landowners.
    The legislation would authorize $1 million to compensate 
both the Indian and non-Indian landowners for years of trespass 
and the value of their lands. The compensation would be divided 
as follows: (1) twenty-eight percent to be deposited into a 
tribal trust fund account from which amounts shall be 
distributed to the Tribes for activities related to 
construction of natural resources facilities, water resources 
needs, economic development, and land acquisition; (2) twenty-
five percent to be paid into individual Indian money accounts 
for the allottees; and (3) forty-seven percent to be provided 
to the Blackfoot River Flood Control District No. 7 for 
distribution to the non-Indian landowners on a pro rata, per 
acre basis and for associated administrative expenses.

                          LEGISLATIVE HISTORY

    On November 19, 2009, Senator Crapo, for himself and 
Senator Risch, introduced S. 2802, which was referred to the 
Committee on Indian Affairs. On February 4, 2010, a companion 
bill, H.R. 4613, was introduced in the House by Congressman 
Michael K. Simpson for himself and Congressman Walter Minnick. 
The bill was referred to the House Committee on Natural 
Resources.
    On April 29, 2010, the Committee on Indian Affairs held a 
legislative hearing to consider S. 2802 and other measures. On 
June 10, 2010, the Committee on Indian Affairs convened a 
business meeting to consider S. 2802 and other measures, and 
Senator Crapo offered technical amendments to the original 
bill. The Committee approved the amendment and the bill, by 
voice vote, and ordered the bill reported to the full Senate 
with the recommendation that the bill, as amended, do pass.

                        SUMMARY OF THE AMENDMENT

    The amendment, offered by Senator Crapo, made technical 
changes to the bill to ensure that exhibits and other 
references were correctly stated and referenced, to make 
grammatical corrections, and to accurately reflect the 
confirmation year of the Second Treaty of Fort Bridger.

                SECTION-BY-SECTION OF S. 2802 AS AMENDED

Section 1. Short title

    The short title of the Act is the ``Blackfoot River Land 
Settlement Act of 2009.''

Section 2. Findings; Purposes

    This section sets out the findings that led to the 
introduction of this Act. The findings include references to 
the 1964 Corp of Engineers flood protection project on the 
Blackfoot River, which realigned the River so that certain 
parcels of non-Indian land ended up being located within the 
reservation boundaries and certain Indian lands ended up 
located outside of the reservation boundaries. The findings 
also note that the affected parties have filed claims in the 
Snake River Basin Adjudication seeking water rights based on 
the realignment of the Blackfoot River.
    Section 2 also states that the purpose of the Act is to 
resolve the disputes resulting from the realignment of the 
Blackfoot River by the Corps of Engineers in 1964, and to 
achieve a fair, equitable, and final settlement of all claims 
arising from those disputes.

Section 3. Definitions

    This section defines the key terms in this Act. The defined 
terms are ``Indian land,'' ``non-Indian land,'' ``Realigned 
River,'' ``River,'' ``Reservation,'' ``Non-Indian Landowner,'' 
and ``allottee.''

Section 4. Extinguishment of Claims and Title

    Section 4 provides that all claims, past, present, and 
future will be extinguished on the date on which appropriations 
are distributed in accordance with this Act, unless 
specifically exempted by another section of this Act.

Section 5. Land to be Placed Into Trust for Tribes

    Section 5 states that upon distribution of the funds 
appropriated in this Act, that the non-Indian lands shall be 
held in trust by the United States for the benefit of the 
Tribes.

Section 6. Trust Land to be Converted to Fee Land

    This section provides that upon distribution of the funds 
appropriated in the Act, that the Indian lands, as defined by 
the Act, will be transferred to the Blackfoot River Flood 
Control District No. 7 for conveyance to the non-Indians 
acquiring Indian lands.

Section 7. Tribal trust fund account and allottee trust account

    This section provides for the establishment of a ``tribal 
trust fund account'' in the Treasury of the United States which 
shall be invested for the benefit of the Tribes. The funds in 
the account are to be distributed based upon a budget adopted 
by the Tribes which describes the amounts required and intended 
uses of the funds. The funds may be used for construction of a 
natural resources facility; water resources needs; economic 
development; land acquisition; and other such purposes that the 
Tribes determine to be appropriate. A separate account, the 
``allottee trust account,'' is to be set up in the Treasury of 
the United States, which must be invested by the Secretary of 
the Treasury and deposited into the individual Indian money 
accounts for the affected allottees no later than 60 days after 
which funds are deposited into the allottee trust account.

Section 8. Attorneys fees

    This section states that the Secretary of the Interior 
shall pay the attorneys fees of the Tribes and the non-Indian 
landowners, and the total amount of attorneys fees paid shall 
not exceed two percent of the total amounts distributed to the 
Tribes, allottees, and non-Indian landowners.

Section 9. Effect on original reservation boundary

    This section confirms that nothing in the Act affects the 
original boundaries of the Reservation as established by 
Executive Order in 1867 and confirmed by Treaty in 1868.

Section 10. Effect on Tribal Water Rights

    This section confirms that nothing in the Act extinguishes 
or conveys any water rights of the Tribes as established in the 
``1990 Fort Hall Indian Water Rights Agreement,'' ratified by 
section 4 of the Fort Hall Indian Water Rights Act of 1990 
(Pub. L. 101-602).

Section 11. Disclaimers regarding claims.

    This section confirms that nothing in this Act affects the 
sovereign claim of the State of Idaho to title in and to the 
beds and banks of the Blackfoot River under the equal footing 
doctrine; affects any action by the State of Idaho under the 
Quiet Title Act; affects the ability of the Tribes or the 
United States to claim ownership of the beds and banks of the 
River; or extinguishes or conveys any water rights of non-
Indian landowners or the claims of such landowners to water 
rights in the Snake River Water Basin.

Section 12. Funding

    This section authorizes appropriations in the amount of $1 
million to be distributed among the Tribes, the allottees, and 
the Blackfoot River Flood Control District No. 7 in the 
following manner: (1) twenty-eight percent to be distributed to 
the tribal trust fund account; (2) twenty-five percent to be 
distributed to the allottee trust fund account; and (3) forty-
seven percent to be distributed to the Blackfoot River Flood 
Control District No. 7 for distribution to the non-Indian 
landowners and associated administrative expenses. This section 
also states that funds distributed under this Act shall not be 
used for per capita payments to tribal members.

Section 13. Effective date

    This section makes the Act effective on the date on which 
the appropriations described in Section 12 are appropriated.

                        COMMITTEE RECOMMENDATION

    On June 10, 2010, the Committee on Indian Affairs convened 
a business meeting to consider S. 2802 and other measures. 
Senator Crapo offered technical amendments to the original 
bill. The amendment was approved by the Committee by voice 
vote. The Committee ordered the bill reported to the full 
Senate with the recommendation that the bill, as amended, do 
pass.

                   COST AND BUDGETARY CONSIDERATIONS

    The following cost estimate was prepared for S. 2802, as 
provided by the Congressional Budget Office on September 21, 
2010:

S. 2802--Blackfoot River Land Settlement Act of 2009

    S. 2802 would authorize the appropriation of $1 million to 
settle a land dispute between the Shoshone-Bannock Tribes and 
certain non-Indian landowners in southeastern Idaho. Based on 
information from the Department of the Interior (DOI) and 
assuming the availability of appropriated funds, CBO estimates 
that implementing the legislation would cost $1 million over 
the 2011-2015 period. Enacting the legislation would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    Under the bill, DOI would exchange 37 acres of Indian trust 
land for 31 acres of private land that would be held in trust 
for the Shoshone-Bannock Tribes. The bill also would authorize 
the appropriation of $1 million to settle certain claims made 
against the federal government. Of those amounts, about 
$710,000 would be paid to individual Indian and private 
landowners as compensation for damages resulting from certain 
federal activities. An additional $270,000 would be held in 
trust for the Shoshone-Bannock Tribes by the U.S. Treasury. The 
tribes would have the authority to spend those amounts at their 
own discretion. Finally, up to $20,000 of the authorized 
amounts would be available to pay attorneys' fees for the 
tribes and the non-Indian landowners.
    By requiring the exchange of lands through federal statute, 
S. 2802 would impose both intergovernmental and private-sector 
mandates, as defined in the Unfunded Mandates Reform Act 
(UMRA), on tribal and nontribal land owners. The bill would 
terminate rights to certain parcels of land surrounding the 
Blackfoot River and extinguish any past, present, or future 
claims on that land. The cost of the mandates would be the 
forgone damages that could have been collected through legal 
actions related to the property and the net value of the land 
being exchanged by the federal government. In a market study 
used by DOI, the value of the land is estimated to be less than 
$500,000. Therefore, CBO estimates that the aggregate cost of 
the mandates would fall well below the annual thresholds 
established in UMRA for both intergovernmental and private-
sector mandates ($70 million and $141 million, respectively, in 
2010, adjusted annually for inflation).
    The CBO staff contacts for this estimate are Jeff LaFave 
(for federal costs), Melissa Merrell (for the intergovernmental 
impact), and Marin Randall (for the private-sector impact). The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                        EXECUTIVE COMMUNICATIONS

    The Committee received a letter on August 2, 2010, from the 
Assistant Secretary of the Interior for Indian Affairs, Larry 
Echo Hawk, with the Department of the Interior expressing the 
Department's views on S. 2802. The Committee also received a 
letter on September 2, 2010, from the Shoshone-Bannock Tribes 
in response to the Department's views, which will be kept on 
file with the Committee. The Department of the Interior's 
letter is below:


               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XDXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 2802 will 
have a minimal impact on regulatory or paperwork requirements.

                        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. 2802 will not make any changes in existing law.

                                  
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