[Senate Report 112-199]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 489
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-199

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



 
         TO SETTLE LAND CLAIMS WITHIN THE FORT HALL RESERVATION

                                _______
                                

                 August 2, 2012.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 1065]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1065) 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. 1065 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 deemed to be 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 problems. Following the realignment, 25 parcels of 
land (approximately 37.04 acres of individually and tribally-
owned land), once on the south side of the river, ended up on 
the north side, outside of the reservation boundary, and 19 
parcels (approximately 31.01 acres) of land owned by non-
Indians, once on the north side of the river, ended up on the 
south side, 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. 1065 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 is required to extinguish claims and 
title to land, place land into trust and appropriate funds. 
Further, without legislation the pending legal proceedings will 
resume, resulting in lengthy and costly litigation for all 
affected parties.
    S. 1065 would resolve the land ownership disputes and 
extinguish claims relating to the ownership of lands and 
associated water rights. These disputes and claims 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 $700,000 to compensate both 
the Indian and non-Indian landowners for years of trespass, the 
value of their lands, and certain expenses that have been 
incurred. Generally, the compensation would be divided as 
follows: (1) $263,406 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) $230,489 to be paid into individual 
Indian money accounts for the allottees; (3) $165,550 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; (4) 
Attorneys' fees to be paid to the attorneys for the tribes and 
the non-Indian landowners in an amount not to exceed $35,000; 
and (5) any remaining funds to be divided equally between the 
tribes and the non-Indian landowners.

                          LEGISLATIVE HISTORY

    Earlier versions of this bill were introduced in the 111th 
Congress (S. 2802, which was approved by the Committee and 
reported with amendments in December of 2010, and H.R. 4613). 
On May 25, 2011, Senator Crapo, for himself and Senator Risch, 
introduced S. 1065, which was referred to the Committee on 
Indian Affairs.
    On December 8, 2011, the Committee on Indian Affairs 
convened a business meeting to consider S. 1065 and other 
measures. The Committee approved the bill, by voice vote, and 
ordered the bill reported to the full Senate with the 
recommendation that the bill, as amended, do pass. However, 
before the bill was reported, the Committee considered it again 
at a business meeting held on June 28, 2012, primarily to 
correct a problem relating to the effective date created by the 
wording of section 13 of the bill as introduced. At that 
business meeting, the Committee approved a substitute amendment 
and again ordered that the bill, as amended, be reported 
favorably to the full Senate.

                        SUMMARY OF THE AMENDMENT

    The substitute amendment offered at the June 28 business 
meeting by Senator Crapo includes technical changes to the bill 
approved in the business meeting of December 8, 2011 (primarily 
to ensure that exhibits and other references in the bill were 
correctly stated and referenced as well as grammatical 
corrections and a change relating to the confirmation year of 
the Second Treaty of Fort Bridger), as well as amendments (1) 
striking section 13 of the bill (relating to the effective 
date), (2) in section 4, making the section effective upon 
payment of the funds appropriated under section 12; (3) 
clarifying the attorneys' fees provisions in section 8; and (4) 
in section 12, clarifying the funding distribution 
requirements.

                SECTION-BY-SECTION OF S. 1065 AS AMENDED

Section 1. Short title

    The short title of the Act is the ``Blackfoot River Land 
Settlement Act of 2012.''

Section 2. Findings; purposes

    This section sets out the findings that led to the 
introduction of this Act. The findings include the policy of 
the United States to promote tribal self-determination and 
encourage the resolution of disputes over settlement claims; a 
background of the Shoshone-Bannock Tribes and the Fort Hall 
Reservation; 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; 
affected parties have filed claims in the Snake River Basin 
Adjudication seeking water rights based on the realignment of 
the Blackfoot River; and that this Act would represent an 
agreement among parties and distribute funds as specified.
    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 ``Allottee,'' ``Indian land,'' ``Non-Indian acquiring 
Indian land,'' ``Non-Indian land,'' ``Non-Indian landowner,'' 
``Realigned River,'' ``Reservation,'' ``River,'' ``Secretary,'' 
and ``Tribes.''

Section 4. Release of claims to certain Indian and Non-Indian owned 
        lands

    Section 4(a) provides that, on the deposit of all amounts 
into the tribal trust fund account and the allottee trust fund 
account under section 7 and the disbursement to non-Indian 
landowners under section 12, all existing and future claims 
with respect to the Indian land and the non-Indian land and all 
right, title, and interest that the Tribes, allottees, non-
Indian acquiring Indian land, and non-Indian landowners may 
have had to that land shall be extinguished; any interest of 
the Tribes, the allottees, or the United States, acting as 
trustee for the Tribes or allottees, in the Indian land shall 
be extinguished under section 2116 of the Revised Statutes 
(commonly known as the ``Indian Trade and Intercourse Act''); 
and the Tribes, allottees, and non-Indian land-owners waive and 
release all claims that the Tribes, allottees, and non-Indian 
landowners may have asserted against the United States arising 
out of any interest in the Indian land or non-Indian owned land 
affected by the realignment of the Blackfoot River by the Corp 
of Engineers.
    To the extent any interest in non-Indian land transferred 
into trust pursuant to section 5 violates section 2116 of the 
Revised Statutes (commonly known as the ``Indian Trade and 
Intercourse Act''), that transfer shall be valid, subject to 
the condition that the transfer is consistent with all other 
applicable Federal Laws.
    Section 4(b) states that on the deposit of all amounts into 
the tribal trust fund account and allottee trust fund account, 
and the disbursement to non-Indian landowners, the Secretary is 
authorized to execute and file any appropriate documents as 
necessary to carry out this act.

Section 5. Land to be placed into trust for tribes

    Section 5 states that effective on the date on which the 
amounts appropriated under section 12 are distributed, the non-
Indian land shall be considered to 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 on the date on which the amounts 
appropriated pursuant to section 12 are distributed in 
accordance with that section to the tribal trust fund account 
and the allottee trust account, the Indian land shall be 
transferred to the Blackfoot River Flood Control District No. 7 
for conveyance to the non-Indians acquiring Indian land.

Section 7. Tribal trust fund account and allottee trust account

    Section 7(a) establishes in the Treasury of the United 
States an account, to be known as the ``tribal trust fund 
account'', consisting of such amounts as are deposited in the 
account under section 12(b)(1). The Secretary of the Treasury 
shall invest amounts in the tribal trust fund account for the 
benefit of the Tribes, in accordance with applicable laws and 
regulations. The Secretary of the Treasury shall distribute 
amounts in the tribal trust fund account to the Tribes pursuant 
to a budget adopted by the Tribes that describes the amounts 
required by the Tribes; and the intended uses of the amounts. 
The Tribes may use amounts in the tribal trust fund account 
(including interest earned on those amounts), without fiscal 
year limitation, for activities related to construction of a 
natural resources facility; water resources needs; economic 
development; land acquisition; and other such purposes as the 
Tribes determine to be appropriate.
    Section 7(b) establishes in the Treasury of the United 
States an account to be known as the ``allottee trust 
account'', consisting of such amounts as are deposited in the 
account under section 12(b)(2). Not later than 60 days after 
the date on which amounts are deposited into the allottee trust 
account, the Secretary of the Treasury shall deposit the 
amounts into individual Indian money accounts for the 
allottees. The Secretary of the Treasury shall invest amounts 
in the individual Indian money accounts under paragraph (2) in 
accordance with applicable laws and regulations.

Section 8. Attorneys' fees

    This section states that the Secretary of the Interior 
shall pay to the attorneys of the Tribes and the non-Indian 
landowners such attorneys' fees as are approved by the Tribes 
and the non-Indian landowners, but the total amount of 
attorneys' fees paid by the Secretary shall not exceed $35,000.

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 the 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 to establish 
that title 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 
adjudication.

Section 12. Funding

    This section authorizes appropriations in the amount of 
$700,000 to be distributed among the Tribes, the allottees, 
attorneys, and the Blackfoot River Flood Control District No. 7 
in the following manner: (1) $263,406 to be deposited into the 
tribal trust fund account; (2) $230,489 to be deposited into 
the allottee trust account; (3) $165,550 to be deposited into 
the Blackfoot River Flood Control District No. 7 for 
distribution to the non-Indian landowners and associated 
administrative expenses; and (4) not more than $35,000 shall be 
made available to the Secretary to distribute to the attorneys 
of the Tribes and the non-Indian landowners for attorneys' 
fees. Any remaining amounts after distributions under 
paragraphs (1) through (4) of subsection (b) of section 12 and 
Section 8 shall be split equally between the Blackfoot River 
Flood Control District No. 7 and the Tribes and used by the 
Blackfoot River Flood Control District No. 7 and the Tribes for 
administrative expenses. This section also states that funds 
distributed under this Act shall not be used for per capita 
payments to tribal members.

                        COMMITTEE RECOMMENDATION

    The bill was considered by the Committee at a business 
meeting held on June 28, 2012. The Committee approved a 
substitute amendment and ordered that the bill, as amended, be 
reported favorably to the full Senate.

                   COST AND BUDGETARY CONSIDERATIONS

    The following cost estimate was prepared for S. 1065 as 
amended, as provided by the Congressional Budget Office on July 
25, 2012:

S. 1065--Blackfoot River Land Settlement Act of 2012

    S. 1065 would authorize the appropriation of $700,000 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 $700,000 over the 
2013-2017 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 $700,000 to settle certain claims made 
against the federal government. Of those amounts, about 
$400,000 would be paid to individual Indian and private 
landowners as compensation for damages resulting from certain 
federal activities that affected use of land. An additional 
$260,000 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 discretion. Finally, up to $35,000 
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. 1065 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 clarifying title to the property and the net 
value of the land being exchanged by the federal government. 
Any foregone damages are not likely to be significant. 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 
threshold established in UMRA for both intergovernmental and 
private-sector mandates ($73 million and $146 million, 
respectively, in 2012, adjusted annually for inflation).
    On January 17, 2012, CBO transmitted a cost estimate for S. 
1065, the Blackfoot River Land Settlement Act of 2011, as 
ordered reported by the Senate Committee on Indian Affairs on 
December 8, 2011. The two versions of the legislation are 
similar and the CBO cost estimates are the same.
    The CBO staff contacts for this estimate are Martin von 
Gnechten (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 has received no executive communications on 
S. 1065. However, the Committee did receive a letter dated 
August 2, 2010, from the Assistant Secretary--Indian Affairs 
regarding the version of this bill introduced in the 111th 
Congress, S. 2802. That letter is described in the Executive 
Communications section of Senate Report 111-356.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI 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. 1065 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. 1065 will not make any changes in existing law.

                                  
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