[Senate Report 115-240]
[From the U.S. Government Publishing Office]
Calendar No. 397
115th Congress } { Report
SENATE
2d Session } { 115-240
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TO PROVIDE FOR EQUITABLE COMPENSATION TO THE SPOKANE TRIBE OF INDIANS
OF THE SPOKANE RESERVATION FOR THE USE OF TRIBAL LAND FOR THE
PRODUCTION OF HYDROPOWER BY THE GRAND COULEE DAM, AND FOR OTHER
PURPOSES
_______
May 7, 2018.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 995]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 995) to provide for equitable compensation to the
Spokane Tribe of Indians of the Spokane Reservation for the use
of tribal land for the production of hydropower by the Grand
Coulee Dam, and for other purposes, having considered the same,
reports favorably thereon with amendments and recommends the
bill, as amended, do pass.
PURPOSE
Specifically, S. 995 would provide the Spokane Tribe with
annual payments for the past and continued use of tribal lands,
which are now submerged under the reservoir created by the
Grand Coulee Dam. The annual payments are to be based on
revenues from the sale of electric power from the Grand Coulee
Dam and the transmission of the power by the Bonneville Power
Administration.
BACKGROUND
From 1927 to 1931, the United States Army Corps of
Engineers (Corps), at the direction of Congress, investigated
the Columbia River and its tributaries to identify sites where
dams could be constructed to produce hydroelectric power at low
cost.\1\ During this time, the Corps made a number of site
recommendations for dam construction, including the site where
the Grand Coulee Dam is now located. The site chosen for the
Grand Coulee Dam consisted, in part, of lands held in trust by
the Federal government for the benefit of the Spokane Tribe and
the Confederated Tribes of the Colville Reservation (Colville
Tribes).
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\1\Federal Power Act of 1920 Sec. 4, 16 U.S.C. Sec. 797 (1920).
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The Federal Power Act and its effect on Indian tribes. The
Corps recommended local governments or private utilities, as a
licensee under the authority of the Federal Power Act,\2\
undertake construction of the Grand Coulee Dam. When tribal
lands are involved, licensing procedures require the licensee
to pay an annual payment to Indian tribes who have jurisdiction
over the tribal lands.\3\ In 1933, the Federal Power Commission
issued a preliminary permit to the Columbia Basin Commission to
construct a dam at the recommended Grand Coulee site. During
the mid-1930s, the Federal government federalized the Grand
Coulee Dam project and began construction of the dam. The
Federal government is not subject to the Federal Power Act and
is not obligated to make annual payments to Indian tribes when
tribal lands are used for projects such as the Grand Coulee Dam
project.\4\
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\2\ Id.
\3\Federal Power Act of 1920 Sec. 10, 16 U.S.C. Sec. 803(e) (1920).
\4\ Id.
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Compensation to the Tribes. The Federal government's
decision to federalize the Grand Coulee Dam project affected
the Spokane Tribe and Colville Tribes' interests. The Federal
government acknowledged these effects and determined that both
tribes should receive a share of revenue from the disposition
of power produced by the Grand Coulee Dam. To that end, the Act
of June 29, 1940, directed the Secretary of the Interior to
provide compensation to the Spokane Tribe and Colville Tribes
for the use of tribal lands in an amount determined by the
Secretary to be just and equitable.\5\ Interior paid $4,700 to
the Spokane Tribe and $63,000 to the Colville Tribes.
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\5\Act of June 29, 1940 Sec. 2, 16 U.S.C. Sec. 835d (1940).
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The Indian Claims Commission. Prior to passage of the
Indian Claims Commission Act in 1946, there was no forum for an
Indian tribe's claim for damages against the United States.
Instead, these types of claims would proceed on a case-by-case
basis, with each tribe seeking an individual authorization from
Congress to pursue litigation against the United States.
Dissatisfied with this ad hoc approach, Congress enacted the
Indian Claims Commission Act to establish the Indian Claims
Commission (ICC), a forum where Indian tribes could pursue
historic claims against the United States, so long as those
claims accrued prior to the Act's passage (August 13, 1946).
Under the Act, Congress granted only a five-year statute of
limitations for tribes to file claims with the ICC.
While the ICC's jurisdiction over these claims was broad--
covering everything from claims of a breach of fair and
honorable dealings to violations of the Constitution--the
remedies available to tribes were not. Rather than vest the ICC
with the authority to provide equitable relief, Congress
instead allowed for monetary damages only.
Both the Spokane Tribe and the Colville Tribes filed
separate, unrelated land claims prior to the August 13, 1951,
deadline. During the five-year period to file claims with the
ICC, neither the Spokane nor the Colville Tribes filed claims
for compensation for the use of tribal lands to construct the
Grand Coulee Dam.
The ICC fully adjudicated the Spokane Tribes' land claims
by 1967. By settling the land claims against the Federal
government, the Spokane Tribe had no further mechanism to
litigate claims over the Grand Coulee Dam project in Federal
court due, in part, to the 5-year statute of limitations set in
the Indian Claims Commission Act.
The Colville Settlement Agreement. In 1976, against
objection by the United States because of the cessation of the
ICC, the Colville Tribes successfully amended their ICC land
claim to add the Grand Coulee Dam project, creating an
opportunity for the tribe to seek compensation.
In 1994, to halt litigation pending under the Indian Claims
Commission Act, Congress ratified the Colville Settlement
Agreement (Agreement) requiring a payment of $53 million to the
Colville Tribes for the federal government's past use of tribal
lands.\6\ Under the Agreement, the United States also agreed,
in exchange for the continued use of Colville tribal lands, to
provide the Colville Tribes annual payments of $15,250,000,
adjusted annually based on revenues from the sale of electric
power from the Grand Coulee Dam project and the transmission of
that power by the Bonneville Power Administration.\7\ Unlike
the Colville Tribes, the United States did not compensate the
Spokane Tribes under the Agreement for the continued use of
their tribal lands.
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\6\Act of August 13, 1946, omitted 25 U.S.C. Sec. 70 et seq. in
that the Indian Claims Commissions was terminated on September 30, 1978
by Pub. L. No. 94-465 (1976).
\7\Confederated Tribes of the Colville Reservation Grand Coulee Dam
Settlement Act, Pub. L. No. 103-436, 108 Stat. 4577 (1994).
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NEED FOR LEGISLATION
The bill, S. 995, would provide fair and equitable
compensation to the Spokane Tribe by requiring annual payments
from the Bonneville Power Administration to the Spokane Tribe
for past and continued use of tribal lands in generating
hydropower from the Grand Coulee Dam in the state of
Washington. With no further opportunity to litigate the Spokane
Tribe's lands claims in federal court, legislation is
necessary.
LEGISLATIVE HISTORY
On May 1, 2017, Senator Cantwell and Senator Murray
introduced S. 995, a bill to provide for equitable compensation
to the Spokane Tribe of Indian of the Spokane Reservation for
the use of tribal land, and for the production of hydropower by
the Grand Coulee Dam, and for other purposes (also known as the
Spokane Tribe of Indians of the Spokane Reservation Equitable
Compensation Act). The Committee did not hold a legislative
hearing on this bill. A House companion bill has not been
introduced at this time.
On February 14, 2018, by voice vote, the Committee ordered
the bill, as amended, to be reported favorably to the Senate.
The amendment, offered by Senator Cantwell, removed Section 5,
the ``Spokane Tribe of Indians Recovery Trust Fund'' of the
bill and included conforming, technical amendments. The
amendment eliminated the $53 million upfront payment but
retained the provisions for annual payments.
Prior Congresses
114th Congress. On March 17, 2016, Senator Cantwell and
Senator Murray introduced S. 2739. The Committee did not hold a
legislative hearing on this bill. On May 11, 2016, the
Committee held a duly called business meeting to consider S.
2739. The Committee ordered the bill to be reported favorably
without amendment.
113th Congress. On August 1, 2013, Senators Cantwell and
Murray introduced S. 1448, the Spokane Tribe of Indians of the
Spokane Reservation Equitable Compensation Act. Senator Begich
was added as a cosponsor on February 4, 2014. The Committee
held a legislative hearing on September 10, 2013. The Committee
held a duly called business meeting on January 29, 2014 to
consider S. 1448. The Committee ordered the bill to be reported
favorably with an amendment in the nature of a substitute. No
further action was taken on the bill.\8\ There was no House
companion bill.
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\8\S. Rep. No. 113-202 (2014).
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112th Congress. On July 11, 2011, Senators Cantwell and
Murray introduced S. 1345, the Spokane Tribe of Indians of the
Spokane Reservation Grand Coulee Dam Equitable Compensation
Settlement Act. The Committee held a legislative hearing on
October 20, 2011. The Committee held a duly called business
meeting on September 13, 2012 to consider S. 1345. The
Committee ordered the bill to be reported favorably with an
amendment in the nature of a substitute. No further action was
taken on the bill, S. 1345. There was no House companion bill.
111th Congress. On June 25, 2009, Senators Cantwell and
Murray introduced S. 1388, the Spokane Tribe of Indians of the
Spokane Reservation Grand Coulee Dam Equitable Compensation
Settlement Act. Senator Inouye was added as a cosponsor on July
28, 2009. The Committee held a duly called business meeting on
September 10, 2009 to consider S. 1388. The bill, S. 1388, was
ordered to be reported favorably without amendment. No further
action was taken on the bill, S. 1388.
On June 26, 2009, Representatives Inslee and Dicks
introduced a House companion bill, H.R. 3097, the Spokane Tribe
of Indians of the Spokane Reservation Grand Coulee Dam
Equitable Compensation Settlement Act. Representative Kildee
was added as a cosponsor on October 7, 2009. Representative
Richardson was added as a cosponsor on February 3, 2010. The
House referred the bill, H.R. 3097, to the Committee on Natural
Resources of the House of Representatives where no further
action was taken on the bill.
110th Congress. On December 17, 2007, Senators Cantwell and
Murray introduced S. 2494, the Spokane Tribe of Indians of the
Spokane Reservation Grand Coulee Dam Equitable Compensation
Settlement Act. Senator Inouye was added as a cosponsor on
January 24, 2008. The Committee held a legislative hearing on
May 15, 2008. The Committee held a duly called business meeting
on June 19, 2008 to consider S. 2494. The Committee ordered the
bill, S. 2494, to be reported favorably without amendment.\9\
No further action was taken on the bill.
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\9\S. Rep. No. 110-450 (2008).
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On July 17, 2008, Representatives Inslee and Dicks House
introduced a House companion bill, H.R. 6547, the Spokane Tribe
of Indians of the Spokane Reservation Grand Coulee Dam
Equitable Compensation Settlement Act. Representative Kildee
was added as a cosponsor on July 29, 2008. The House referred
the bill to the Committee on Natural Resources of the House of
Representatives where no further action was taken on the bill.
109th Congress. On April 21, 2005, Senator Cantwell with
Senators Murray, Inouye, and McCain introduced S. 881, the
Spokane Tribe of Indians of the Spokane Reservation Grand
Coulee Dam Equitable Compensation Settlement Act. Senator
Dorgan was added as a cosponsor on May 18, 2005. Senator McCain
withdrew as a cosponsor on April 26, 2005. The Committee did
not hold a legislative hearing on the bill. On June 29, 2005,
the Committee ordered S. 881 to be reported favorably without
amendment. On December 8, 2005, the bill was placed on the
Senate Legislative Calendar under general orders. No further
action was taken on the bill.
On April 21, 2005, Representatives McMorris Rodgers, Dicks
and Kildee introduced a companion bill, H.R. 1797, the Spokane
Tribe of Indians of the Spokane Reservation Grand Coulee Dam
Equitable Compensation Settlement Act. Representative Inslee
was added as a cosponsor on May 11, 2005. The House referred
the bill, H.R. 1797, to the Subcommittee on Water and Power of
the Committee on Resources of the House of Representatives. On
May 18, 2005, the Subcommittee on Water and Power discharged
H.R. 1797 and by unanimous consent ordered the bill to be
reported. On June 23, 2005, the Committee on Resources reported
H.R. 1797 where the bill was placed on the Union Calendar. On
July 25, 2005, Representative McMorris Rodgers moved to suspend
the rules and pass the bill, when the House proceeded with
forty minutes of debate with the motion to suspend the rules
and pass the bill was agreed to by voice vote. On July 26,
2005, the Senate received H.R. 1797. On July 27, 2005, the bill
was read a second time and placed on the Senate Legislative
Calendar under general orders. No further action was taken on
the bill, H.R. 1797.
108th Congress. On July 22, 2003, Senators Cantwell, Murray
and Inouye introduced S. 1438, the Spokane Tribe of Indians of
the Spokane Reservation Grand Coulee Dam Equitable Compensation
Settlement Act. The Committee held a legislative hearing on
October 2, 2003. On September 22, 2004, the Committee held a
duly called business meeting to consider S. 1438 and ordered
the bill to be reported favorably with an amendment in the
nature of a substitute. On October 8, 2004, Senator Campbell
reported the bill with an amendment in the nature of a
substitute and an amendment to the title, where the bill was
placed on Senate Legislative Calendar under general orders.\10\
On November 19, 2004, the Senate passed S. 1438 with an
amendment to the title by unanimous consent. The House received
the bill, S. 1438, on November 20, 2004, and referred to
Committee on Resources of the House of Representatives. On
December 1, 2004, the House subsequently referred the bill to
the Subcommittee on Water and Power of the Committee on
Resources of the House of Representatives. The House took no
further action on the bill, S. 1438.
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\10\S. Rep. No. 108-397 (2004).
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On April 10, 2003, Representatives Nethercutt and Dicks
introduced a House companion bill, H.R. 1753, the Spokane Tribe
of Indians of the Spokane Reservation Grand Coulee Dam
Equitable Compensation Settlement Act. Representative Kildee
was added as a cosponsor on July 17, 2003. The House referred
the bill, H.R. 1753, to the Subcommittee on Water and Power of
the Committee on Resources of the House of Representatives. On
October 2, 2003, the Subcommittee on Water and Power held a
legislative hearing on the bill. The House took no further
action on the bill.
107th Congress. On May 23, 2002, Senators Murray, Cantwell
and Inouye introduced S. 2567, Spokane Tribe of Indians of the
Spokane Reservation Grand Coulee Dam Equitable
Compensation Settlement Act. The Senate referred the bill,
S. 2567, to the Committee. The Senate took no further action on
the bill.
On June 4, 2002, Representative Nethercutt introduced a
House companion bill, H.R. 4859, the Spokane Tribe of Indians
of the Spokane Reservation Grand Coulee Dam Equitable
Compensation Settlement Act. The House referred the bill, H.R.
4859, to the Committee on Resources of the House of
Representatives. The House took no further action on the bill.
106th Congress. On August 5, 1999, Senators Murray and
Inouye introduced S. 1525, the Spokane Tribe of Indians of the
Spokane Reservation Grand Coulee Dam Equitable Compensation
Settlement Act. The Senate referred the bill, S. 1525, to the
Committee. The Senate took no further action on the bill.
On July 30, 1999, Representative Nethercutt introduced a
House companion bill, H.R. 2664, the Spokane Tribe of Indians
of the Spokane Reservation Grand Coulee Dam Equitable
Compensation Settlement Act. Representative Dicks was added as
a cosponsor on August 5, 1999. The House referred the bill,
H.R. 2664, to the Committee on Resources of the House of
Representatives. The House took no further action on the bill.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
The Act may be cited as the ``Spokane Tribe of Indians of
the Spokane Reservation Equitable Compensation Act.''
Section 2. Findings
Section 2 states the findings of Congress that support the
need for the Act.
Section 3. Purpose
Section 3 states the purpose of the Act is to provide fair
and equitable compensation to the Spokane Tribe for use of its
lands for the generation of hydropower by the Grand Coulee Dam.
Section 4. Definitions
Section 4 defines the key terms used throughout the Act.
Section 5. Payments by Administrator
Section 5 provides for annual payments to the Spokane Tribe
for continued use of tribal lands, based on the revenue from
the generation of hydroelectric power by the Grand Coulee Dam.
Section 6. Treatment after amounts are paid
Section 6 describes how the Tribe may use funds provided
under section 5 of the Act, and states that there is no trust
responsibility of the Secretary of the Interior or the
Bonneville Power Administrator for the funds once they are paid
to the Tribe.
Section 7. Repayment credit
Section 7 allows the Administrator of the Bonneville Power
Administration a credit against future interest payments owed
to the Secretary of the Treasury.
Section 8. Extinguishment of claims
Section 8 states that upon the deposit of amounts in the
Fund described in Section 5(a), all monetary claims the Spokane
Tribe has or may have regarding the Grand Coulee Dam against
the United States will be extinguished.
Section 9. Administration
Section 9 states that the Act is not binding or
establishing precedent for other power administrations.
COST AND BUDGETARY CONSIDERATIONS
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 19, 2018.
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. 995 the Spokane
Tribe of Indians of the Spokane Reservation Equitable
Compensation Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Kathleen
Gramp.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 995--Spokane Tribe of Indians of the Spokane Reservation Equitable
Compensation Act
S. 995 would compensate the Spokane Tribe of Indians for
the use of tribal lands in the construction of the Grand Coulee
Dam in Washington State. Beginning in 2020, the bill would
require the federal Bonneville Power Administration (BPA) to
make annual payments to the tribe out of receipts from the sale
of electricity. Starting in 2030, BPA could offset a portion of
those payments by paying less interest to the Department of the
Treasury.
Enacting S. 995 would affect direct spending; therefore,
pay-as-you-go procedures apply. CBO estimates that the net
costs would be insignificant over the 2019-2028 period but,
starting in 2030, would rise to $2.7 million a year. Enacting
the bill would not affect revenues or spending subject to
appropriation.
CBO estimates that enacting S. 995 would not increase net
direct spending by more than $2.5 billion or on-budget deficits
by more than $5 billion in any of the four consecutive 10-year
periods beginning in 2028.
S. 995 would impose an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA) by extinguishing the
monetary claims of the Spokane Tribe of Indians against the
United States for hydropower revenues and for past and
continued use of their land. CBO estimates that the cost of the
mandate would not exceed the annual threshold established in
the act ($78 million in 2017, adjusted annually for inflation).
The bill contains no private-sector mandates as defined in
UMRA.
Estimated cost to the Federal Government: The costs of this
legislation fall within budget function 270 (energy). Because
BPA is a federal entity, its receipts and expenditures are
recorded in the federal budget.
Basis of estimate: Beginning in 2020 and extending through
2029, S. 995 would require BPA to make annual payments to the
Spokane Tribe of Indians equal to 25 percent of the annual
payment that BPA makes under current law to the Confederated
Tribes of the Colville Reservation. Beginning in 2030, the
annual payment to the Spokane Tribe would increase to 32
percent of the amount paid to the Confederated Tribes.
CBO estimates that those payments would total about $6
million annually until 2029 and then increase to $8 million a
year, thereafter. Under the bill, those payments would continue
as long as electricity is generated by the Grand Coulee Dam.
CBO estimates that enacting S. 995 would have no significant
net cost over the 2019-2028 period.
Because BPA's operating costs are driven primarily by
unpredictable market and environmental conditions, CBO expects
that the agency could not offset the costs of the annual
payments to the tribe by reducing operating expenses. Instead,
CBO anticipates, BPA would raise its rates to cover those costs
and, as a result, by 2020, its payments to the tribe would
generally be offset by an equivalent increase in receipts from
its electricity customers. CBO thus estimates that there would
be no net significant effect on the budget through 2029.
Starting in 2030, S. 995 would reduce by $2.7 million the
amount that BPA makes in interest payments to the Treasury each
year. CBO anticipates that BPA would reduce rates to mirror
that cost reduction and thus create a corresponding drop in
BPA's receipts from electricity sales. Because receipts from
those sales offset direct spending, starting in 2030, the bill
would indefinitely increase annually direct spending by $2.7
million, CBO estimates.
Pay-As-You-Go considerations: None.
Mandates: S. 955 would impose an intergovernmental mandate
as defined in UMRA by extinguishing the monetary claims of the
Spokane Tribe of Indians against the United States for
hydropower revenues and for past and continued use of their
land. Eliminating an existing right is a mandate because the
right to seek redress and recover damages beyond that what is
provided in the bill would be lost. Using information from the
tribe, CBO assumes it is unlikely that the tribe would, in the
absence of the provision extinguishing claims, pursue such
claims if the bill were enacted. Therefore, CBO estimates that
the cost of the mandate would not exceed the annual threshold
established in UMRA ($78 million in 2017, adjusted annually for
inflation). Overall, the tribe would benefit from authorized
payments from BPA.
The bill contains no private-sector mandates as defined in
UMRA.
Increase in long-term direct spending and deficits: CBO
estimates that enacting S. 995 would not increase net direct
spending by more than $2.5 billion or on-budget deficits by
more than $5 billion in any of the four consecutive 10-year
periods beginning in 2028.
Estimate prepared by: Federal Costs: Kathleen Gramp;
Mandates: Rachel Austin.
Estimate approved by: H. Samuel Papenfuss; Deputy Assistant
Director for Budget Analysis.
REGULATORY IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory paperwork impact that would be incurred
in implementing the legislation. The Committee has concluded
that enactment of S.995 will create only de minimis regulatory
or paperwork burdens.
EXECUTIVE COMMUNICATIONS
The Committee has received no official communications from
the Administration on the provisions of this bill.
CHANGES IN EXISTING LAW
In compliance with the Standing Rules of the Senate and the
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 in order to expedite the
business of the Senate.
[all]