[Senate Report 111-357]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 680
111th Congress  }                                   {            Report
  2d Session    }             SENATE                {           111-357
=======================================================================
 
       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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       By fiscal year, in millions of dollars--
                                                             -------------------------------------------------------------------------------------------
                                                               2011   2012   2013   2014   2015   2016   2017   2018   2019   2020  2011-2015  2011-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       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
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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.

                                  
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