[Senate Report 111-357]
[From the U.S. Government Publishing Office]
Calendar No. 680
111th Congress } { Report
2d Session } SENATE { 111-357
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ESTABLISHING A COMMISSION TO CONDUCT A STUDY AND PROVIDE
RECOMMENDATIONS ON A COMPREHENSIVE RESOLUTION OF IMPACTS CAUSED TO
CERTAIN INDIAN TRIBES BY THE PICK-SLOAN PROGRAM
_______
December 8, 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. 3648]
The Committee on Indian Affairs, to which was referred the
bill, S. 3648, to establish a commission to conduct a study and
provide recommendations on a comprehensive resolution of
impacts caused to certain Indian tribes by the Pick-Sloan
Program, having considered the same, reports favorably thereon,
and recommends that the bill, as amended, do pass.
PURPOSE
The purpose of S. 3648 is to establish a commission to
conduct a study and provide recommendations to the President
and the Congress for a comprehensive resolution of impacts to
seven Indian tribes caused by the Pick-Sloan Missouri River
Basin Program (Pick-Sloan Program),\1\ and to authorize all
actions and provide funding necessary for the commission to
perform its duties under this Act.
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\1\Act of December 22, 1944, Sec. 9, 58 Stat. 891 (commonly known
as the ``Flood Control Act of 1944'').
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BACKGROUND
Establishment of Indian reservations along the Missouri River
From 1851 to 1889, the United States entered into treaties
and agreements with the tribes and bands of the Three
Affiliated Tribes of the Fort Berthold Reservation and the
Sioux Nation.\2\ In these treaties and agreements, the United
States recognized the Indians' territories, and the tribes and
bands reserved lands for their permanent homelands. Seven of
these reservations are along the Missouri River in the states
of North Dakota, South Dakota, and Nebraska: the Fort Berthold
Reservation, the Standing Rock Sioux Reservation, Cheyenne
River Sioux Reservation, Lower Brule Sioux Reservation, Crow
Creek Sioux Reservation, Yankton Sioux Reservation, and the
Santee Sioux Reservation.
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\2\See, e.g., Treaty of Fort Laramie, Sept. 17, 1851, 11 Stat. 749;
Treaty with Sioux Indians, April 29, 1868, 15 Stat. 635; Act of March
2, 1889, 25 Stat. 888.
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Although these reservations were significantly smaller than
the tribes' former territories, the seven reservations were
strategically located along the resource rich Missouri River.
The Missouri River's wooded bottomlands provided the tribes'
reservation economies with fertile agricultural lands, timber
for lumber and fuel, coal deposits, seasonal fruits, habitat
for wild game, medicines, shelter for domestic animals, and
plentiful supplies of clean water. These lands were also an
important part of the tribes' social, cultural, and spiritual
lives. Much of the tribes' community infrastructure was located
along the river, including, tribal homes, schools, hospitals,
government buildings, churches, graveyards, and roads.
Plans for dam development
As a part of the Flood Control Act of 1944, Congress
authorized significant dam development on the Missouri River
through the Pick-Sloan Program. The Pick-Sloan Program was a
joint water development program of the Army Corps of Engineers
and the Bureau of Reclamation. The Army Corps of Engineers plan
was primarily concerned with flood control and navigation,
while the Bureau of Reclamation plan was focused on developing
large irrigation projects in the upper basin, and providing for
domestic water supply and hydroelectric power.
The Pick-Sloan Program included development of six mainstem
dams on the Missouri River in Montana, North Dakota, South
Dakota, and Nebraska. Five of these dams flooded the seven
Indian reservations previously established along the Missouri
River: the Garrison, Oahe, Big Bend, Fort Randall, and Gavin's
Point dams. These dams created large reservoirs called Lake
Sakakawea, Lake Oahe, Lake Sharpe, Lake Francis Case, and Lewis
and Clark Lake. Mainstem dam construction began in the mid-
1940's and was completed in 1966.
The Pick-Sloan Program resulted in the flooding of hundreds
of thousands of acres of the tribes' reservation lands,
including rich bottomlands, uplands, as well as in the
displacement of entire tribal communities. Ultimately, the
Pick-Sloan Program dams and reservoirs flooded about 356,254
acres of tribal lands and forced the relocation of more than
900 Indian families.
Impacts to the seven Indian tribes
Although each of the seven tribes suffered severely and in
different ways from the Pick-Sloan Program, the experience of
the Three Affiliated Tribes (Tribes) provides an overview of
the kinds of impacts common to all seven tribes and their
reservations. In 1946, the Army Corps of Engineers entered the
Fort Berthold Reservation, without notice, and began
construction of the 212 foot-high Garrison dam with a storage
capacity of 24.2 million acre feet.\3\ The federal government's
message to the Tribes was that the construction of the dam and
the displacement of the Tribes were inevitable.\4\ The Tribes
offered other sites for the dam, but the Army Corps surveyors
selected the site that would flood the greatest amount of the
Tribes' land.\5\ At the same time, upstream impacts to a non-
Indian city and a federal irrigation project were avoided by
adjustments to the specifications of the project.\6\
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\3\Michael L. Lawson, Dammed Indians: The Pick-Sloan Plan and the
Missouri River Sioux, 1944-1980 59 (1994).
\4\Final Report and Recommendations of the Garrison Unit Joint
Tribal Advisory Committee: Joint Hearing Before the S. Comm. On Indian
Affairs, the S. Comm. On Energy and Natural Resources, and the H. Comm.
On Interior and Insular Affairs, 100th Cong. 11 and 89 (1987)
(statement of Hans Walker Jr., Former Member, Joint Tribal Advisory
Committee, and written statement of Edward Lone Fight, Chairman, Three
Affiliated Tribes).
\5\Michael L. Lawson, Dammed Indians: The Pick-Sloan Plan and the
Missouri River Sioux, 1944-1980 60 (1994).
\6\Id. at 59.
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Once completed, the dam flooded one-fourth of the
reservation, separated the reservation into five segments that
were isolated by the reservoir, and flooded 94 percent of the
Tribes' agricultural lands.\7\ In total, the dam flooded about
156,000 acres of the Tribes' lands and forced the relocation of
480 families, or about 90 percent of the Tribes' membership.\8\
The reservoir also flooded the economic base that had sustained
the Tribes.\9\ The flooded bottomlands included fertile
alluvial soils, natural shelter for livestock, coal deposits,
standing timber, seasonal fruits, juneberries, choke cherries,
habitat for wild game, and clean water supplies.\10\ Community
infrastructure, including homes, a hospital, and churches, were
also flooded.\11\
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\7\Id.
\8\Final Report and Recommendations of the Garrison Unit Joint
Tribal Advisory Committee: Joint Hearing Before the S. Comm. On Indian
Affairs, the S. Comm. On Energy and Natural Resources, and the H. Comm.
On Interior and Insular Affairs, 100th Cong. 88 (1987) (written
statement of Edward Lone Fight, Chairman, Three Affiliated Tribes).
\9\Id. at 89.
\10\Id.
\11\Id.
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By 1947, although the Pick-Sloan Program has already been
authorized and construction of Garrison dam was underway, the
Tribes, which had been given little to no notice of these
actions, did not willingly leave their lands. Instead, though
in a severely disadvantaged position, the Tribes entered into
negotiations with the federal government for a replacement
reservation.\12\ The Tribes initially secured an agreement with
the U.S. for a replacement reservation, but no other
reservation with suitable bottomlands could be found.\13\ With
no opportunity for suitable replacement lands, the Tribes
accepted a Congressional offer of approximately $5 million in
compensation.\14\ The legislation providing this compensation
also allowed the Tribes to pursue further compensation. After
the Tribes' obtained a private appraisal showing a much greater
value for the taken lands, Congress provided approximately $7
million in additional compensation.\15\ While a total of about
$12 million was provided, it was anticipated that this amount
would compensate the Tribes for their flooded lands, fund
relocation and reconstruction expenses, and also be used to
promote the economic recovery of the Tribes.\16\ However, in
the end, most of the funding was needed to meet the basic needs
of tribal members.\17\
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\12\Michael L. Lawson, Dammed Indians: The Pick-Sloan Plan and the
Missouri River Sioux, 1944-1980 60 (1994).
\13\Final Report and Recommendations of the Garrison Unit Joint
Tribal Advisory Committee: Joint Hearing Before the S. Comm. On Indian
Affairs, the S. Comm. On Energy and Natural Resources, and the H. Comm.
On Interior and Insular Affairs, 100th Cong. 90-91 (1987) (written
statement of Edward Lone Fight, Chairman, Three Affiliated Tribes);
Michael L. Lawson, Dammed Indians: The Pick-Sloan Plan and the Missouri
River Sioux, 1944-1980 60 (1994).
\14\Michael L. Lawson, Dammed Indians: The Pick-Sloan Plan and the
Missouri River Sioux, 1944-1980 60 (1994).
\15\Id. at 61.
\16\Id. at 60-61.
\17\Final Report and Recommendations of the Garrison Unit Joint
Tribal Advisory Committee: Joint Hearing Before the S. Comm. On Indian
Affairs, the S. Comm. On Energy and Natural Resources, and the H. Comm.
On Interior and Insular Affairs, 100th Cong. 94-95 (1987) (written
statement of Edward Lone Fight, Chairman, Three Affiliated Tribes).
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Relocated to the upland plains, the Tribes were supposed to
carry on as they had before. However, the remaining reservation
lands were less suitable for sustaining the Tribes' economic
base, including ranching and agriculture, due to poor soil and
water quality, and a lack of infrastructure investments.\18\
The upland plains also provided less shelter from the weather
of the Great Plains. In the bottomlands there was natural
shelter and logs for home construction, but in the uplands
frame homes were exposed to the weather and had electricity
costs ranging from $600 to $800 a month.\19\ Even with these
new high electric costs, promises to compensate the Tribes, in
part, with discounted electricity went unfulfilled.\20\
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\18\Id. at 11 and 93 (statement of Hans Walker Jr., Former Member,
Joint Tribal Advisory Committee, and written statement of Edward Lone
Fight, Chairman, Three Affiliated Tribes).
\19\Id. at 11 (statement of Hans Walker Jr., Former Member, Joint
Tribal Advisory Committee).
\20\Id.
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No plan for just or adequate compensation
The Flood Control Act of 1944 did not set out a plan for
compensating the seven Indian tribes or a process for acquiring
the tribal lands needed to develop the Pick-Sloan Program.
Federal compensation ultimately came in two phases. First, from
the late 1940's to 1962, the tribes individually negotiated
with various representatives of the Federal government and
Congress for compensation from the impacts of the Pick-Sloan
Program.\21\ During this phase, individual Indian landowners
also received some compensation for their lands that were
flooded. However, similar to the tribes, negotiations were
often undertaken after dam construction had already begun, and
compensation varied, was inadequate, or lacked records of
actual disbursement.
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\21\Act of July 31, 1947, Pub. L. No. 80-296, 61 Stat. 686, 690;
H.R.J. Res. 33, Pub L. No. 81-437, 63 Stat. 1026 (1949); Act of July 6,
1954, Pub. L. No. 83-478, 68 Stat. 452; Act of Sept. 3, 1954, Pub. L.
No. 83-776, 68 Stat. 1191; Act of Sept. 2, 1958, Pub. L. No. 85-915, 72
Stat. 1762; Act of Sept. 2, 1958, Pub. L. No. 85-916, 72 Stat. 1766
(1958); Act of Sept. 2, 1958, Pub. L. No. 85-923, 72 Stat. 1773; Act of
Oct. 3, 1962, Pub. L. No. 87-734, 76 Stat. 698; Act of Oct. 3, 1962,
Pub. L. No. 87-735, 76 Stat. 704.
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In the second phase, from 1985 until 2002, the tribes
individually, and sometimes in groups, sought additional
compensation from Congress. Additional compensation was
obtained for a variety of reasons, but the primary reason was
the inadequacy of the original negotiations and compensation.
For example, in most cases, negotiations regarding compensation
for the taking of lands, relocation, reconstruction, and
rehabilitation did not take place until after the Army Corps of
Engineers had already begun construction on the dams.
The second round of compensation began in 1985 with the
establishment of the Joint Tribal Advisory Commission (JTAC).
The JTAC was developed based on the recommendation of the
Garrison Diversion Unit Commission established by the Energy
and Water Development Appropriation Act of 1985.\22\ JTAC was
formed to examine and make recommendations with respect to the
effects of the impoundment of water behind the Garrison and
Oahe Dams on the Three Affiliated Tribes and the Standing Rock
Sioux Tribe. Ultimately, the JTAC recommendations resulted in
Congressional acts providing additional compensation to these
two tribes.\23\ In subsequent years, Congress passed acts
providing additional compensation to the other five tribes
whose lands were flooded by the Pick-Sloan Program.\24\ In
total, fourteen acts of Congress were passed in an attempt to
provide the tribes with adequate compensation over almost 60
years. Unfortunately, each negotiation and act of Congress
varied according to the historical time period, different
valuation methods, and the ability of individual tribes to
obtain legislation or pursue litigation.
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\22\Act of July 16, 1985, Sec. 207, Pub. L. No. 98-360, 98 Stat.
411.
\23\Fort Berthold and Standing Rock Equitable Compensation Program,
North Dakota, Pub. L. No. 102-575, title XXXV, 106 Stat. 4600, 4731
(1992);
\24\Crow Creek Sioux Tribe Infrastructure Development Trust Fund
Act of 1996, Pub. L. No. 104-223, 110 Stat. 3026 (1996); Lower Brule
Sioux Tribe Infrastructure Development Trust Fund Act, Pub. L. No. 105-
132, 111 Stat. 2563 (1997); Cheyenne River Sioux Tribe Equitable
Compensation Act, Pub. L. No. 106-511, title I, 114 Stat. 2365 (2000);
and Yankton Sioux and Santee Sioux Tribes Equitable Compensation Act,
Pub. L. No. 107-331, title II, 116 Stat. 2834, 2838 (2002).
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Comprehensive resolution
Despite efforts to compensate the tribes for the flooding
of their lands by the Pick-Sloan Program, questions remain
about the adequacy, fairness, and completeness of the
compensation.\25\ Some tribes have been compensated at
different per acre rates than other tribes; some tribes
received ``rehabilitation funds'' while others did not; some
tribes assert that their lands were not properly valued; and
some promises of compensation remain unfulfilled.\26\
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\25\Impact of the Flood Control Act of 1944 on Indians Tribes Along
the Missouri River: Hearing Before the S. Comm. On Indian Affairs,
110th Cong. 3-4 (1987) (statement of Robin M. Nazzaro, Director,
Natural Resources and Environment, Government Accountability Office);
See also U.S. Gov't Accountability Office, GAO-08-249T, Damages and
Compensation for Tribes at Seven Reservations Affected by Dams on the
Missouri River (2007).
\26\Id. at 13-14, 17-18 (written statement of Robin M. Nazzaro,
Director, Natural Resources and Environment, Government Accountability
Office).
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In her written testimony provided to the Committee on
November 2007, Robin Nazzaro, Director of Natural Resources and
Environment for the Government Accountability Office, stated
that, ``more than 45 years after the last original compensation
bill was enacted and almost 5 years after the last additional
compensation bill was enacted, lingering questions remain about
various aspects of the tribes' compensation.''\27\ The Pick-
Sloan Tribal Commission Act is intended to resolve these
questions by establishing a Commission to study the past
compensation and make recommendations for full and final
compensation for all seven Indian tribes.
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\27\Id. at 7.
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LEGISLATIVE HISTORY
In the 110th Congress, on November 1, 2007, the Senate
Committee on Indian Affairs held a hearing regarding the
ongoing impacts from the Pick-Sloan Program on the Indian
tribes whose lands were flooded by the Pick-Sloan Program. In
the 111th Congress, on July 26, 2010, Senator Dorgan introduced
S. 3648, the Pick-Sloan Tribal Commission Act of 2010. Senators
Thune, Conrad, and Johnson are original cosponsors. S. 3648 was
referred to the Committee on Indian Affairs. On November 18,
2010, the Committee approved S. 3648 with a substitute
amendment offered by Senator Dorgan.
A companion bill, H.R. 6100, was introduced in the House of
Representatives on August 10, 2010, by Congressman Pomeroy.
Congresswoman Herseth Sandlin is an original cosponsor. H.R.
6100 was referred to the House Committee on Natural Resources.
SUMMARY OF SUBSTITUTE AMENDMENT
During an open business meeting on November 18, 2010, the
Committee considered and approved an amendment in the nature of
a substitute to S. 3648. Like the original bill, the amendment
in the nature of the substitute would establish a commission to
conduct a study and provide recommendations to the President
and the Congress for a comprehensive resolution of impacts to
seven Indian tribes caused by the Pick-Sloan Program on the
Missouri River. As in the original bill, the substitute
amendment outlines the functions and requirements of the
Commission, including: the manner in which Commission members
are to be appointed; the structure of the Commission; the
requirement for individual Commission members to have certain
expertise; the minimum number of hearings the Commission must
hold; the requirement for a Commission website; the issues that
are to be studied by the Commission; the requirements for the
report that the Commission is to issue; the timeframe in which
the report is to be submitted; and the administrative functions
of the Commission.
The substitute amendment includes two new subsections
regarding impacts to individual landowners, clarifications
regarding how the Commission will be funded, and a variety of
technical changes. Technical changes include clarifying that
the Commission may make rules to govern its proceedings,
providing travel reimbursement for witnesses who appear before
the Commission, clarifying the quorum requirements of the
Commission, and renumbering of the bill's sections.
The two new provisions regarding impacts to individual
landowners are sections 4(b)(3) and (b)(5)(B)(ii). These new
provisions would allow the Commission, if it chooses, to study
and make recommendations regarding reservation lands owned by
individual tribal members that were impacted by the Pick-Sloan
Program. Individual landowners were provided compensation
originally, but, similar to the compensation provided to the
tribes, the amounts provided to individuals varied, was
inadequate, or lacked records of actual disbursement. The
Commission is not required to study and make recommendations
regarding individual landowners, because the Commission may
find that these issues need separate study.
The substitute also clarifies how the Commission will be
funded by deleting text in the introduced bill that allowed the
Commission to be funded by ``such sums as are necessary'' and
through transfers of funding from the Secretary of the Interior
and Army. The substitute amendment provides new text for the
funding section that simply allows the Secretary of Interior to
fund the Commission with up to $2.5 million of unobligated
amounts already made available to the Secretary.
SECTION-BY-SECTION ANALYSIS OF S. 3642 AS AMENDED
Section 1. Short title
Section 1 provides the short title of S. 3648 as the
``Pick-Sloan Tribal Commission Act of 2010.''
Section 2. Findings
Section 2 provides ten Congressional findings and provides
historical background to S. 3648. In summary, the ten findings
and background are as follows:
(1) The Pick-Sloan Program was originally authorized by the
Flood Control Act of 1944. It was approved to promote the
general economic development of the United States; to provide
for irrigation above Sioux City, Iowa; to protect urban and
rural areas from devastating floods of the Missouri River; and
for other purposes.
(2) The United States acquired approximately 1,422,000
acres of land in North Dakota, South Dakota, and Nebraska to
build mainstem Missouri River dams at Garrison, Oahe, Big Bend,
Fort Randall, and Gavin's Point, and to create reservoirs
behind the dams named Lake Sakakawea, Lake Oahe, Lake Sharpe,
Lake Francis Case, and Lewis and Clark Lake.
(3) To create the dams and reservoirs described in
paragraph (2), the United States took title to land located on
the reservations of 7 Indian tribes (but did not diminish the
reservations), including the taking of approximately--
(A) 156,000 acres from the Fort Berthold Reservation;
(B) 55,994 acres from the Standing Rock Sioux
Reservation;
(C) 104,420 acres from the Cheyenne River Sioux
Reservation;
(D) 22,955 acres from the Lower Brule Sioux
Reservation;
(E) 15,565 acres from the Crow Creek Sioux
Reservation;
(F) 3,252 acres from the Yankton Sioux Reservation;
and
(G) 1,007 acres from the Santee Sioux Reservation.
(4) The water impounded by the Garrison, Oahe, Big Bend,
Fort Randall, and Gavin's Point dams of the Pick-Sloan Program
flooded the most fertile and wooded bottom land of the 7 Indian
tribes and their reservations. That land constituted the most
productive agricultural, hunting, and collecting land of those
Indian tribes, and the majority of the community infrastructure
of each Indian tribe was also located on the land.
(5) The flooding of the tribes' productive land greatly
damaged the economy and cultural resources of the 7 Indian
tribes.
(6) Although the 7 Indian tribes reside on the Missouri
River, the economic benefits of the Pick-Sloan Program have not
been passed on to those Indian tribes. Instead, the dams have
created disproportionate hardships for the 7 Indian tribes,
including poor water quality; increased trespassing and theft
or damage to cultural resources; artificial sediment deposits
that impact water infrastructure and contain unknown
contaminants; harming fisheries, including loss of reservoir
retention time; damage to riparian habitat; and increased
recreational traffic and impacts, but with few opportunities to
regulate or benefit from recreational uses.
(7) Congress held a number of hearings and promoted studies
of the impacts to the 7 Indian tribes, pursuant to which
representatives of the 7 Indian tribes testified on impacts to
tribal economies, health, and welfare from the flooding of that
land.
(8) Congress has established prior commissions to study and
make recommendations regarding impacts of the Pick-Sloan
Program, including the Garrison Diversion Unit Commission
established under section 207(c)(1) of the Energy and Water
Development Appropriation Act, 1985 (Public Law 98-360; 98
Stat. 411), which recommended that a Joint Tribal Advisory
Committee be formed to examine and make recommendations with
respect to the effects of the impoundment of water behind the
Garrison and Oahe Dams. The Joint Tribal Advisory Committee was
established by the Secretary of the Interior on May 10, 1985,
for the purpose of assessing the impacts of the Garrison and
Oahe Dams on the Three Affiliated Tribes and the Standing Rock
Sioux Tribe. The Committee delivered a final report to the
Secretary on May 23, 1986. In 1992, Congress passed the Three
Affiliated Tribes and Standing Rock Sioux Tribe Equitable
Compensation Act (title XXXV of Public Law 102-575; 106 Stat.
4731) to address certain findings of the Committee. A number of
the findings of the Committee still have not been addressed as
of enactment of this Act.
(9) Before enactment of this Act, Congress provided
compensation to the 7 Indian tribes for the land taken from the
7 Indian tribes over a 55-year period. On 17 different
occasions, as part of 14 different Acts of Congress,
compensation was authorized for the 7 Indian tribes, and at
least 1 of the 7 Indian tribes also received compensation
through a court case.
(10) A single comprehensive bill is needed to resolve and
finally settle the claims of the 7 Indian tribes because past
compensation: was provided at different levels and was based on
different compensation methods, depending on the historical
time period during which the compensation was provided; and
resulted in each of the 7 Indian tribes being compensated
differently.
Section 3. Definitions
Section 3 lists pertinent definitions used throughout the
bill.
Section 4. Pick-Sloan Tribal Commission for Comprehensive Resolution
Section 4(a)(1) establishes the Pick-Sloan Tribal
Commission for Comprehensive Resolution.
Section 4(a)(2) describes the membership of the Commission.
The membership must be composed of 7 members, of whom 1 must be
the Chairperson of the Commission; at least 1 must have
expertise in the field of Indian law and policy; at least 1
must have expertise in the operation and history of Federal
water projects; at least 1 must have expertise in the area of
environmental justice; at least 1 must be an economist; and at
least 1 must be an authority in cultural preservation.
Section 4(a)(2) also provides that of the 7 members
selected for the Commission, at least 3 must be members of
federally recognized Indian tribes. The Chairperson and Vice
Chairperson of the Committee on Indian Affairs of the Senate
and the Chairperson and Ranking Member of the Committee on
Natural Resources of the House of Representatives must select
the 7 Commission members and appoint 1 of the members to serve
as Chairperson of the Commission.
Section 4(a)(2) also provides that the affected Indian
tribes may make recommendations to the Chairperson of the
Committee on Indian Affairs of the Senate and the Chairperson
of the Committee on Natural Resources of the House of
Representatives regarding members of the Commission. All
members of the Commission must be appointed not later than 60
days after the date of enactment of this Act.
Section 4(a)(3) describes the term and vacancy provisions
of the Commission. A member is appointed for the life of the
Commission. A vacancy on the Commission must not affect the
powers of the Commission and must be filled in the same manner
as the original appointment was made.
Section 4(a)(4) provides that no later than 30 days after
the date on which all members of the Commission have been
appointed, the Commission must hold the initial meeting of the
Commission.
Section 4(a)(5) states that the Commission must meet at the
call of the Chairperson.
Section 4(a)(6) provides the quorum requirements for the
Commission. A majority of the members of the Commission
constitute a quorum. A quorum must be necessary for the
Commission to carry out any of the duties or responsibilities
of the Commission under this Act.
Section 4(a)(7) allows the Commission to establish, by
majority vote, rules for the conduct of Commission business, in
accordance with this Act and other applicable law.
Section 4(a)(8) clarifies that the Federal Advisory
Committee Act (5 U.S.C. App.) does not apply to the Commission.
Section 4(b) sets forth the duties of the Commission.
Section 4(b)(1) requires that in carrying out this section, the
Commission must consult with the affected Indian tribes.
Section 4(b)(2) describes a study to be conducted by the
Commission. With respect to the period beginning on the date of
commencement of the Pick-Sloan Program and ending on the date
on which the study is initiated, the study must examine the
impacts on the affected Indian tribes, directly or indirectly,
caused by the Pick-Sloan Program and measures implemented by
the Federal Government to attempt to address those impacts;
other measures that have been proposed to address the impacts
on the affected Indian tribes caused by the Pick-Sloan Program;
the results of any other studies regarding those impacts and
potential solutions to the impacts, including any studies
conducted by the Joint Tribal Advisory Committee relating to
the Pick-Sloan Program; and comparisons involving other
situations in which Federal hydroelectric projects or federally
licensed hydroelectric projects have resulted in the taking or
occupation of Indian land and the compensation, or other
measures, Indian tribes have been or are being provided in
those situations.
Section 4(b)(3) allows the Commission to also study the
impacts caused by the Pick-Sloan Program to land (including
land allotted under any Federal law) that is: owned by members
of an affected Indian tribe (or the heirs of those members);
and is on the reservation of the affected Indian tribe.
Section 4(b)(4) states that in carrying out paragraph
(b)(2) and, if applicable, paragraph (b)(3), the Commission
must hold at least 3 hearings to receive information from
Federal agencies, Indian tribes, and other interested parties
regarding the resolution of Pick-Sloan Program impacts. A
witness requested to appear before the Commission must be paid
the same fees and allowances as are paid to witnesses under
section 1821 of title 28, United States Code. The per diem and
mileage allowances for a witness under clause (i) must be paid
from funds made available to the Commission. A hearing under
this paragraph must be open to the public. For each hearing
under this paragraph, the Commission must compile a record
consisting of transcripts, written testimony, studies, and
other information presented at the hearing and include the
record in the report of the Commission required under paragraph
(b)(6), as an appendix in electronic format.
Section 4(b)(5) provides that based on the results of the
study under paragraph (b)(2), any study under paragraph (b)(3),
and hearings under paragraph (b)(4), the Commission must
develop a proposal to comprehensively resolve the impacts
resulting from the Pick-Sloan Program. The proposal must
include: a comprehensive proposal to provide full and final
compensation to the affected Indian tribes; a description of
the measures referred to in paragraph (2) that have not been
implemented; could be implemented; or should be implemented in
a more effective manner; measures that could be accomplished
administratively; measures that would require legislation to be
implemented; and any other measures necessary to
comprehensively resolve the impacts of the Pick-Sloan Program
on the affected Indian tribes.
Section 4(b)(5) also provides that the proposal may also
include measures to resolve the impacts to land (including land
allotted under any Federal law) that is owned by members of an
affected Indian tribe (or the heirs of those members); and is
on the reservation of the affected Indian tribe.
Section 4(b)(6) provides the deadline and required contents
for the Commission's Report. It states that subject to
subparagraph (b)(6)(B), not later than 18 months after the date
on which the first meeting of the Commission takes place, the
Commission must submit to the President and Congress a report
that contains: (i) a detailed statement of the study findings
and conclusions of the Commission; and (ii) the proposal of the
Commission developed under paragraph (b)(5) for legislation and
administrative actions that the Commission considers to be
appropriate to comprehensively resolve the impacts caused by
the Pick-Sloan Program.
Section 4(b)(6) also provides that this deadline may be
extended for a period of not more than 180 days if the
Commission submits to the Committee on Indian Affairs of the
Senate and the Committee on Natural Resources of the House of
Representatives a request for the extension that is received by
the Committees before the deadline described above and includes
a description of the reasons why the extension is needed.
Section 4(b)(7) requires that the Commission maintain a
website for the period beginning on the date on which the first
meeting of the Commission takes place and ending on the
termination date of the Commission. The Commission must use the
website: (i) to describe the activities of the Commission; (ii)
to provide access to information studied by the Commission;
(iii) to provide notice of, and make available all information
presented at, hearings of the Commission; and (iv) to post the
report (including all appendices to that report) of the
Commission required under paragraph (b)(6). All content on the
website must be collected on compact disk, digital video disk,
or other appropriate digital media; and included in the report
to be submitted under paragraph (b)(6).
Section 4(c) permits the Commission to hold such hearings,
meet and act at such times and places, take such testimony, and
receive such evidence as the Commission considers to be
advisable to carry out this Act. The Commission may also secure
directly from a Federal agency such information as the
Commission considers to be necessary to carry out this Act. On
request of the Chairperson of the Commission, the head of an
applicable Federal agency must provide the information to the
Commission. The Commission may use the United States mails in
the same manner and under the same conditions as other agencies
of the Federal Government. The Commission may accept, use, and
dispose of gifts or donations of services or property.
Section 4(d) describes Commission personnel matters.
Section (d)(1) provides that each member of the Commission be
compensated at a rate equal to the daily equivalent of the
annual rate of basic pay prescribed for level IV of the
Executive Schedule under section 5315 of title 5, United States
Code, for each day (including travel time) during which the
member is engaged in the performance of the duties of the
Commission.
Section 4(d)(2) states that each member of the Commission
must be allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for an employee of an agency
under subchapter I of chapter 57 of title 5, United States
Code, while away from the home or regular place of business of
the member in the performance of the duties of the Commission.
Section 4(d)(3) provides that the Chairperson of the
Commission may, without regard to the civil service laws
(including regulations), appoint and terminate an executive
director and such other additional personnel as are necessary
to enable the Commission to perform the duties of the
Commission. Also, the employment of an executive director must
be subject to confirmation by a quorum of the Commission.
Except as provided in subparagraph (d)(3)(B), the Chairperson
of the Commission may fix the compensation of the executive
director and other personnel without regard to the provisions
of chapter 51 and subchapter III of chapter 53 of title 5,
United States Code, relating to classification of positions and
General Schedule pay rates. The rate of pay for the executive
director and other personnel cannot exceed the rate payable for
level IV of the Executive Schedule under section 5316 of title
5, United States Code. Also, an employee of the Federal
Government may be detailed to serve as staff for the Commission
without reimbursement. The detail of the employee must be
without interruption or loss of civil service status or
privilege.
Section 4(d)(4) allows the Commission to request the
Secretary of Defense to provide, and the Secretary of Defense
must provide, through human resource departments under the
jurisdiction of the Secretary of Defense, on a reimbursable
basis, operational support for activities of the Commission.
Section 4(d)(5) gives the Commission the option, to such
extent and using such amounts as are provided in appropriation
Acts, to enter into contracts to enable the Commission to
discharge the duties of the Commission under this Act.
Section 4(d)(6) notes that notwithstanding section 1342 of
title 31, United States Code, the Commission may accept and use
such voluntary and uncompensated services as the Commission
determines to be necessary.
Section 4(d)(7) allows the Chairperson of the Commission to
procure temporary and intermittent services in accordance with
section 3109(b) of title 5, United States Code, at rates for
individuals that do not exceed the daily equivalent of the
annual rate of basic pay prescribed for level V of the
Executive Schedule under section 5316 of that title.
Section 4(e) requires that the Commission terminate 90 days
after the date on which the Commission submits the report of
the Commission under subsection (b)(6).
Section 5. Funding
Section 5 provides that subject to the approval of the
appropriate committees of Congress, out of any unobligated
amounts made available to the Secretary of the Interior, the
Secretary may use to carry out this Act not more than
$2,500,000.
Section 6. Savings clause
Section 6 provides that nothing in this Act diminishes,
changes, or otherwise affects (1) the water rights of the
affected Indian tribes; (2) any other right (including treaty
rights) of the affected Indian tribes; (3) the status of Indian
reservation land or the boundaries of any reservation of an
Indian tribe; or (4) any Congressional authorization of
appropriations for the benefit of the affected Indian tribes.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
In an open business meeting on November 18, 2010, the
Committee on Indian Affairs, by voice vote, adopted S. 3648,
with an amendment in the nature of a substitute, and ordered
the bill reported to the Senate, with the recommendation that
the Senate do pass S. 3648, as amended.
COST AND BUDGETARY CONSIDERATIONS
S. 3648--Pick-Sloan Tribal Commission Act of 2010
S. 3648 would authorize the Department of the Interior
(DOI) to spend $2.5 million of unobligated balances from funds
already appropriated to the department to establish the Pick-
Sloan Tribal Commission. The commission would recommend actions
to resolve certain disputes between the federal government and
several Indian tribes. Enacting S. 3648 would affect direct
spending; therefore, pay-as-you-go procedures apply. However,
CBO estimates that there would be no net effect on direct
spending over the 2011-2020 period. Enacting the legislation
would not affect revenues.
Because the legislation would authorize the Secretary to
use funds already appropriated for other activities to
establish the commission, CBO estimates that implementing S.
3648 would increase direct spending by $2.5 million over the
2011-2012 period and reduce such spending by that amount in
2015 when those funds would have otherwise been spent. If DOI
still carries out the activities for which those funds were
originally appropriated, implementing the bill would require an
appropriation of $2.5 million in 2015 to replace the funds used
to establish the commission.
S. 3648 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The Statutory Pay-As-You-Go Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting
direct spending or revenues. S. 3648 would increase direct
spending over the 2011-2012 period and decrease it in 2015,
resulting in no net effect on direct spending over the 2011-
2020 period. The net budgetary changes that are subject to pay-
as-you-go procedures are shown in the following table.
CBO ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS FOR S. 3648, THE PICK-SLOAN TRIBAL COMMISSION ACT OF 2010, AS ORDERED REPORTED BY THE SENATE
COMMITTEE ON INDIAN AFFAIRS ON NOVEMBER 18, 2010
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By fiscal year, in millions of dollars--
-------------------------------------------------------------------------------------------
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2011-2015 2011-2020
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NET INCREASE OR DECREASE (-) IN THE DEFICIT
Statutory Pay-As-You-Go Impact.............................. 2 1 0 0 -3 0 0 0 0 0 0 0
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The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee has not received any Executive Communications
regarding S. 3648.
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. 3648 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. 3648 will not make any changes in existing law.