[Senate Report 115-190]
[From the U.S. Government Publishing Office]
Calendar No. 272
115th Congress } { Report
SENATE
1st Session } { 115-190
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KLAMATH TRIBE JUDGMENT FUND REPEAL ACT
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December 5, 2017.--Ordered to be printed
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Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 1223]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 1223) to repeal the Klamath Tribe Judgment Fund Act,
having considered the same, reports favorably thereon with an
amendment and recommends the bill, as amended, do pass.
Purpose
The bill, S. 1223, repeals Public Law 89-224, commonly
referred to as the Klamath Tribe Judgment Fund Act.\1\ The bill
is intended to promote the Klamath Tribes' ability to exercise
its sovereign authority and discretion over tribal funds. S.
1223 provides greater flexibility for the Tribes to access and
use monies it was awarded following successful litigation
against the United States.
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\1\An Act to provide for the disposition of judgment funds of the
Klamath and Modoc Tribes and Yahooskin Band of Snake Indians, and for
other purposes, Pub. L. No. 89-224, 79 Stat. 897, 897-898 (1965)
(codified at 25 U.S.C. Sec. 565 et seq.).
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Background
On August 13, 1954, Congress passed Public Law 83-587,
otherwise known as the Klamath Termination Act (1954 Act). The
1954 Act established procedures for the sale of a portion of
the reservation land belonging to members of the Klamath and
Modoc Tribes and Yahooskin Band of Snake Indians (collectively,
``Klamath Tribes''), and the termination of the federal
government's trust relationship with the Tribe.\2\
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\2\An Act to provide for the termination of Federal supervision
over the property of the Klamath Tribe of Indians located in the State
of Oregon and the individual members thereof, and for other purposes,
Pub. L. No. 83-587, 68 Stat. 718 (1954) (codified at 25 U.S.C. Sec. 564
et seq.).
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As required by the 1954 Act, six months after passage, the
Tribes submitted to the Secretary of the Interior a final roll
consisting of 2,133 members.\3\ Klamath tribal members on the
final roll were separated into two groups: those who would
receive their share of the tribal estate in cash from a
liquidation of tribal assets (i.e. the ``withdrawing
members''), and those who would hold an undivided interest in
the tribal estate to be managed by a private trustee (i.e. the
``remaining members'').\4\ In addition to transferring rights
in tribal property to the final enrollees, including their
heirs and legatees, the 1954 Act specified that nothing would
``prevent [either remaining or withdrawing members] from
sharing in the proceeds of tribal claims against the United
States.''\5\
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\3\22 Fed. Reg. 9303 (November 21, 1957).
\4\The Long Struggle Home: The Klamath Tribes' Fight to Restore
Their Land, People and Economic Self-Sufficiency, Native American
Rights Fund Legal Review, Vol. 27, No. 1 at 5 (2002).
\5\Id. supra, note 2 (codified at 25 U.S.C. Sec. 564e(c)).
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On August 13, 1946, Congress passed the Indian Claims
Commission Act, creating a special forum in which Indian tribes
could seek damages against the Federal government for, among
other things, the cessation of land for inadequate
compensation.\6\ Prior to the passage of the 1954 Act, the
Klamath Tribes filed a claim with the Commission, the basis of
which was unconscionable consideration paid for lands ceded by
the treaty of October 4, 1864.\7\ Otherwise known as ``Docket
100,'' this claim was settled on January 31, 1964 for $2.5
million.\8\
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\6\An Act to create an Indian Claims Commission, to provide for the
powers, duties, and functions thereof, and for other purposes, Pub. L.
No. 79-726, 60 Stat. 1049 (1946). See generally An Act to authorize
appropriations for the Indian Claims Commission for fiscal year 1977,
and for other purposes, Pub. L. No. 94-465, 90 Stat. 1990 (1976)
(providing for the eventual dissolution of the Indian Claims
Commission).
\7\The Treaty of October 14, 1864, obligated the United States to
pay less than $300,000 for over one million acres of aboriginal land in
southern Oregon and northern California.
\8\Klamath and Modoc Tribes, et al. v. The United States of
America, 13 Ind. Cl. Comm. 41, Docket No. 100 (1964).
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On October 1, 1965, Congress passed Public Law 89-224,
otherwise known as the Klamath Tribe Judgment Fund Act, which
directed the distribution of the Docket 100 settlement funds to
both ``withdrawing'' and ``remaining'' members of the Tribe.\9\
In so doing, Congress required the Secretary of the Interior to
make per-capita distributions to all living individuals listed
on the August 13, 1954 roll. The share of any deceased enrollee
would be paid to his or her heirs and legatees pursuant to the
1954 Act.
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\9\Id. supra, note 1.
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In the years following the settlement of Docket 100, the
Klamath Tribes were awarded three more judgments against the
United States from the Indian Claims Commission for various
claims including the mismanagement of tribal assets and
unconscionable consideration paid for Reservation land.\10\
Like Docket 100, monies from these judgments were distributed
pursuant to the Klamath Tribe Judgment Fund Act.
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\10\Klamath and Modoc Tribes and Yahooskin Band of Snake Indians v.
The United States of America, 21 Ind. Cl. Comm. 343, Docket No. 100-A
(1969) (The Tribe was awarded $4,162,992.80 for unconscionable
consideration paid pursuant to a 1901 land-sale agreement); Klamath and
Modoc Tribes and Yahooskin Band of Snake Indians v. The United States
of America, 37 Ind. Cl. Comm. 2, Docket No. 100-C (1975) (The Tribe was
awarded $785,000 for claims involving grazing and rights-of-way);
Klamath and Modoc Tribes and Yahooskin Band of Snake Indians v. The
United States of America, 39 Ind. Cl. Comm. 262, Docket No. 100-B-1
(1977) (The Tribe was awarded $18,000,000 for mismanagement of tribal
funds and properties, primarily timber and ranch lands).
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Under the Klamath Tribe Judgment Fund Act, distributions
would only occur after the United States deducted litigation
expenses and estimated costs of distribution.\11\ On April 15,
1958, the Klamath Tribal Executive Committee passed a
resolution authorizing the use of a $350,000 reserve fund for
the reimbursement of attorney expenses for presentation of
tribal claims. Any unused portion would remain in the U.S.
Treasury to the credit of the Tribes.\12\
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\11\Id. supra note 1.
\12\Id. See also Disposition of Klamath and Modoc Judgment Funds:
Hearing before the Subcomm. on Indian Affairs of the H. Comm. on
Interior and Insular Affairs, 89th Congress (May 13, 1965). See also
H.R. Rep. No. 89-889, at 1 (1965) (Comm. Rep.).
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On August 27, 1986, the Klamath Tribes' federal trust
relationship with the United States was restored with the
passage of the Klamath Indian Tribe Restoration Act.\13\
Nevertheless, the Klamath Indian Tribe Restoration Act did not
restore the Klamath Tribes' former reservation lands, and
efforts to regain their tribal land base continue to this day.
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\13\The Klamath Indian Tribe Restoration Act, Pub. L. No. 99-398,
100 Stat. 849 (1986).
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Need for Legislation
At present, the Klamath Tribes have no pending claims
against the United States. Any distribution of remaining funds
held in the U.S. Treasury, to the credit of the Tribes, will
occur pursuant to the terms set forth by the Klamath Tribe
Judgment Fund Act wherein the statute, rather than the tribal
governing body, prescribes the distribution and use of the
funds. However, compliance with the distribution terms of the
Klamath Tribe Judgment Fund Act is cumbersome and expensive.
Therefore, in order to ensure that any future distribution of
successful claims against the United States will not encounter
cumbersome bureaucracy, this bill repeals the Klamath Tribe
Judgment Fund Act. Repeal ensures that tribal funds will be
distributed to the Tribes in accordance with traditional
notions of tribal sovereignty, allowing the Tribes to benefit
from those funds and use them on their own terms as needed.
Legislative History
On May 24, 2017, Senator Merkley introduced S. 1223, the
Klamath Tribe Judgment Fund Repeal Act, and the bill was
referred to the Committee. Senator Wyden is an original co-
sponsor. No companion bill has been introduced in the House.
The Committee held a legislative hearing on S. 1223 on July
12, 2017. In testimony before the Committee, Mr. Tony Dearman,
Director of the Bureau of Indian Education, on behalf of the
Department of the Interior, stated that the Department could
not take a position on S. 1223. He further stated that the
Department needed to better understand the manner in which a
blanket repeal of the Klamath Tribe Judgment Fund Act would
affect its trust responsibility to the Tribe.\14\ The Committee
also received testimony from a Senior Attorney from the Native
American Rights Fund, Mr. Donald R. Wharton, on behalf of the
Klamath Tribe, noting the Tribe's full support of S. 1223.\15\
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\14\Legislative Hearing to Receive Testimony on S. 943, S. 1223,
and S. 1285 Before the Senate Comm. on Indian Affairs, 115th Cong. 115-
76 (2017) (statement of Tony Dearman, Director, Bureau of Indian
Education, U.S. Department of the Interior).
\15\Id. (statement of Mr. Donald R. Wharton, Senior Attorney,
Native American Rights Fund).
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Committee Consideration
The Committee considered S. 1223 at a duly called business
meeting on October 25, 2017. Senator Udall, on behalf of
Senator Merkley, filed one amendment to the bill. The
amendment, timely filed and duly considered by the Committee,
would add a third section to the bill to clarify that the
Secretary of the Interior shall disburse the full balance of
any remaining or reserve funds held in the U.S. Treasury to the
Tribes as soon as practicable, after the date of enactment of
S. 1223. The text of the amendment was based on the Department
of the Interior's technical drafting assistance. Following the
business meeting, the Department of the Interior informed the
Committee of its support for S. 1223, as amended.
Section-by-Section Analysis
Section 1. Short title
Section 1 sets forth the short title of this bill as the
``Klamath Tribe Judgment Fund Repeal Act.''
Section 2. Repeal
Section 2 contains a full repeal of Public Law 89-224, the
Klamath Tribe Judgment Fund Act.
Section 3. Disbursement of remaining funds
Section 3 requires the Secretary of the Interior, as soon
as practicable following enactment, to disburse all remaining
funds in trust accounts for legal fees and administrative
expenses, as well as funds in per-capita trust accounts, to the
Tribes.
Cost and Budgetary Considerations
The following cost estimate, as provided by the
Congressional Budget Office, dated November 20, 2017, was
prepared for S. 1223:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 20, 2017.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1223, the Klamath
Tribe Judgment Fund Repeal Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert Reese.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 1223--Klamath Tribe Judgment Fund Repeal Act
S. 1223 would repeal the Klamath Tribe Judgment Fund Act,
which authorizes the Department of the Interior (DOI) to
establish and maintain a fund from which payments may be
disbursed to Klamath Tribe members to satisfy any judgments
obtained by the tribe. The bill also would require any amounts
remaining in the fund upon its closure to be disbursed to the
Klamath Tribe.
According to information provided by DOI, about $600,000
remains in the fund. That money is slated to be paid to almost
200 members of the Klamath Tribe or to their next of kin, none
of whom DOI has been able to locate. Assuming enactment of S.
1223 near the beginning of 2018, CBO estimates that the
$600,000 in the fund would be disbursed directly to the
government of the Klamath Tribe during fiscal year 2018.
Payments to certain tribal trust funds that are held and
managed in a fiduciary capacity by the federal government on
behalf of Indian tribes are treated as payments to a nonfederal
entity. Thus, the balances remaining in the Klamath Tribe
Judgment Fund were previously recorded as budget authority and
outlays at the time those balances were deposited into the
fund, and subsequent disbursement of those funds would have no
effect on the federal budget.
Enacting S. 1223 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 1223 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
S. 1223 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Robert Reese.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires 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. 1223 will
have minimal impact on regulatory or paperwork requirements.
Executive Communications
Except as otherwise noted, the Committee has received no
communications from the Executive Branch regarding S. 1223.
Changes in Existing Law
In accordance with Committee Rules, subsection 12 of rule
XXVI of the Standing Rules of the Senate is waived. In the
opinion of the Committee, it is necessary to dispense with
subsection 12 of rule XXVI of the Standing Rules of the Senate
to expedite the business of the Senate.
[all]