[Senate Report 115-75]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 94
115th Congress     }                                     {      Report
                                 SENATE
 1st Session       }                                     {      115-75

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



 
TO EXTEND THE FEDERAL RECOGNITION TO THE LITTLE SHELL TRIBE OF CHIPPEWA 
               INDIANS OF MONTANA, AND FOR OTHER PURPOSES

                                _______
                                

                  May 22, 2017.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                          [To accompany S. 39]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 39) to extend the Federal recognition to the Little 
Shell Tribe of Chippewa Indians of Montana, and for other 
purposes, having considered the same, reports favorably 
thereon, without amendment, and recommends that the bill do 
pass.

                                PURPOSE

    The purposes of S. 39 are (1) to extend Federal recognition 
to the Little Shell Tribe of Chippewa Indians of Montana 
(Little Shell), making its members eligible for all services 
and benefits provided by the United States to other federally 
recognized Indian tribes; and (2) to effect the transfer of 200 
acres of land, which the Secretary of the Interior (Secretary) 
shall acquire and place in trust for the benefit of Little 
Shell.

                               BACKGROUND

History of federally recognizing Indian tribes

    The act of federally recognizing an Indian tribe is highly 
significant. It is an affirmation by the United States of the 
existence of a formal government-to-government relationship 
between the United States and the tribe. Once federally 
recognized, a tribe and its members have access to Federal 
benefits and programs, and the tribal government incurs a 
formal responsibility to its members as the primary governing 
body of the community.
    Before Congress ended the practice of treaty-making with 
Indian tribes in 1871, treaties were the usual manner of 
recognizing a government-to-government relationship between the 
United States and an Indian tribe. Since the conclusion of this 
practice, the United States has recognized Indian tribes by 
legislation, executive orders, and administrative decisions. 
Additionally, Federal courts may clarify the status of an 
Indian group.
    In order to provide a uniform and consistent process by 
which an Indian tribe may be federally recognized, the 
Department of the Interior (Department) developed an 
administrative process in 1978 to allow Indian groups to 
petition for formal acknowledgment of a government-to-
government relationship with the United States. Standards and 
procedures for this process were set forth in Part 83 of Title 
25 of the Code of Federal Regulations (Part 83 or the Federal 
acknowledgement process). These regulations, as amended in 
1994, required a petitioner to satisfy seven mandatory 
requirements, including:
    (1) The petitioner ``has been identified as an American 
Indian entity on a substantially continuous basis since 1900'';
    (2) A predominant portion of the petitioning ``group 
comprises a distinct community and has existed as a community 
from historical times until the present'';
    (3) The petitioner has ``maintained political influence or 
authority over its members as an autonomous entity from 
historical times to the present'';
    (4) The group must ``provide a copy of its present 
governing documents and membership criteria'';
    (5) The petitioner's ``membership consists of individuals 
who descend from a historical Indian tribe or from historical 
Indian tribes which combined and functioned as a single 
autonomous political entity'';
    (6) The ``membership of the petitioning group is composed 
principally of persons who are not members of any acknowledged 
North American Indian tribe'' and do not maintain a bilateral 
political relationship with the acknowledge tribe; and
    (7) ``Neither the petitioner nor its members are the 
subject of congressional legislation that has expressly 
terminated or forbidden the Federal relationship''.\1\
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    \1\See 59 Fed. Reg. 94-3934. (February 25, 1994).
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    The Department issued new Part 83 regulations on July 1, 
2015.\2\
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    \2\80 Fed. Reg. 37861 (July 1, 2015).
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History of changes made to the Department's Part 83 regulations

    The Federal acknowledgement process has been criticized as 
``broken'' for decades.\3\ Nonetheless, until the Department's 
recent effort to reform Part 83 (discussed below), there have 
been only a handful of changes made to the Federal 
acknowledgement process since its inception.\4\
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    \3\See 80 Fed. Reg. 37862.
    \4\Examples of changes made to the process prior to recent reform 
efforts include regulations clarifying the evidence needed to support a 
recognition petition, 59 Fed. Reg. 94-3934 (February 25, 1994); a 
notice regarding internal BIA processing of federal acknowledgment 
petitions, 65 Fed. Reg. 7052-53 (February 11, 2000); and a notice 
providing guidance and direction to streamline the process, 73 Fed. 
Reg. 30146 (May 23, 2008).
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    Complaints about the Department's Federal acknowledgement 
process have centered primarily on the high cost of gathering 
documentary evidence to meet the seven mandatory criteria, the 
length of time it takes the Department to review a petition, 
and the Department's inconsistent application of the listed 
criteria.\5\ Of the 567 tribes that have been federally 
recognized, only 18 have been acknowledged through the Part 83 
process.
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    \5\See 80 Fed. Reg. 37861 (July 1, 2015).
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    Since 1970, Congress has passed legislation to federally 
recognize or reaffirm 17 Indian tribes.\6\ To date, the 
Department has issued 50 decisions under the Part 83 process, 
including one decision issued after new Part 83 regulations 
were published in July 2015.\7\
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    \6\See Tonto Apache Tribe of Arizona, Pub. L. 92-470 (1972); Modoc 
Tribe of Oklahoma, Pub. L. 95-281 (1978); Pasqua Yaqui Tribe of 
Arizona, Pub. L. 95-375 (1978); Houlton Band of Maliseet Indians of 
Maine, Pub. L. 96-420 (1980); Cow Creek Band of Umpqua Indians of 
Oregon, Pub. L. 97-391; Kickapoo Traditional Tribe of Texas, Pub. L. 
97-429 (1983); Mashantucket Pequot Tribe of Connecticut, Pub. L. 98-134 
(1983); Ysleta Del Sur Pueblo of Texas, Pub. L. 100-89 (1987); Lac 
Vieux Desert Band of Lake Superior Chippewa Indians of Michigan, Pub. 
L. 100-420 (1988); Coquille Tribe of Oregon, Pub. L. 101-42 (1989); 
Aroostook Band of Micmac Indians of Maine, Pub. L. 102-171 (1991); 
Pokagon Band of Potawatomi Indians of Michigan, Pub. L. 103-323 (1994); 
Little River Band of Ottawa Indians of Michigan, Pub. L. 103-324 
(1994); Little Traverse Band of Odawa Indians of Michigan, Pub. L. 103-
324 (1994); Central Council of the Tlingit & Haida Indian Tribes of 
Alaska, Pub. L. 103-454 (1994); Graton Rancheria of California, Pub. L. 
106-568 (2000); and Loyal Shawnee Tribe of Oklahoma, Pub. L. 106-568 
(2000).
    \7\The Department of the Interior issued a final determination 
recognizing the Pamunkey Indian Tribe. See 80 Fed. Reg. 39144 (July 8, 
2015).
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Recent developments

    On June 21, 2013, the Assistant Secretary--Indian Affairs 
(AS-IA) released a Discussion Draft proposing changes to Part 
83. The related comment period closed on September 30, 2013. On 
May 29, 2014, the AS-IA published a Proposed Rule in the 
Federal Register. The Department received substantial input 
from tribes, state and local governments, and the public, 
during the associated comment period, which closed on September 
30, 2014.\8\
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    \8\See U.S. Department of the Interior, News Release, Department of 
the Interior Announces Final Federal Recognition Process to Acknowledge 
Indian Tribes (June 29, 2015) (stating that more than 2,800 commenters 
provided input on the Discussion Draft, and that there were over 330 
unique comments on the Proposed Rule). The Department also received 
feedback from tribes during consultations and public meetings. Id.
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    Ultimately, the Department published a Final Rule on July 
1, 2015, which took effect on July 31, 2015.\9\ Assistant 
Secretary Washburn also issued a policy statement indicating 
that the Department will rely on the new Part 83 process as the 
``sole administrative avenue'' for Federal acknowledgement for 
tribes.\10\
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    \9\80 Fed. Reg. 37861 (July 1, 2015).
    \10\80 Fed. Reg. 37538-39 (July 1, 2015).
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    According to the Department, the Final Rule preserves the 
existing standard of proof and seven mandatory criteria to 
``maintain[] the substantive rigor and integrity of the [Part 
83] process.''\11\ In order to promote timeliness and 
efficiency, the Final Rule provides for a two-phased review of 
petitions that establishes certain threshold criteria and may 
result in the earlier issuance of final decisions, as well as a 
uniform evaluation period (1900 to present) to satisfy the 
tribal identification, community and political authority 
criteria.\12\ The Final Rule is intended to promote efficiency 
by providing for limited reconsideration of final agency 
determinations.\13\ The Department states that the Final Rule 
promotes fairness and consistency by providing that prior 
decisions finding evidence or methodology sufficient to satisfy 
any particular criterion will also be sufficient for a 
petitioner under the new Part 83 process.\14\ It also states 
that the Final Rule promotes transparency by providing for 
increased public access to petitions for Federal 
acknowledgement and associated public materials and, in the 
case of a negative proposed finding, providing petitioners the 
opportunity for a hearing.\15\
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    \11\80 Fed. Reg. 37861 (July 1, 2015).
    \12\Id.
    \13\Id.
    \14\Id.
    \15\Id.
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    Indian tribes that applied for federal acknowledgment prior 
to publication of the Final Rule on July 1, 2015, are allowed 
to choose to have the Department evaluate their application 
under the previous application process or the new application 
process.\16\
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    \16\Id.
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    Since the Final Rule was published, one Indian tribe has 
been federally recognized.\17\
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    \17\The Department of the Interior issued a final determination 
recognizing the Pamunkey Indian Tribe on July 2, 2015. See 80 Fed. Reg. 
39144 (July 8, 2015).
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History of Little Shell

    The Little Shell has used historical ties to the Pembina 
Band of Chippewa Indians in North Dakota for the Department to 
consider to satisfy criteria five.\18\ The Pembina Band was 
included in the Chippewa--Red Lake and Pembina Bands treaty 
with the United States in an 1863 treaty that was ratified by 
the Senate.\19\ Many of the members of the Pembina Band settled 
on reservations in Minnesota, but the ancestors of the Little 
Shell moved westward, following the buffalo herds. By the late 
1800s, the Little Shell had settled in Montana and in the 
Turtle Mountains of North Dakota.\20\
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    \18\See Little Shell Tribe of Chippewa Indians Restoration Act of 
2011, S. 546, 112th Cong. Sec. 2 (7) (2011).
    \19\Treaty with the Chippewa--Red Lake and Pembina Bands, U.S.-
Chippewa--Red Lake and Pembina Bands, October 2, 1863, 13 Stat. 667.
    \20\Fixing the Federal Acknowledgement Process: Hearing Before the 
S. Comm. on Indian Affairs, 111th Cong. 2, 2-3 (2009) (written 
testimony of John Sinclair, President of the Little Shell Tribe of 
Chippewa Indians of Montana).
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    The Little Shell Band has had numerous dealings with the 
United States. In 1892, a United States Commission was formed 
to negotiate cession of land from the Turtle Mountain Chippewa 
and provide for their removal. Chief Little Shell and his 
followers refused to accept the terms of the agreement and 
walked out on the negotiations. He was followed by a group of 
supporters who would become known as the ``Little Shell 
Band''.\21\
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    \21\Id.
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    Chief Little Shell and the Little Shell Band's refusal to 
cede additional lands to the United States left them without a 
reservation.\22\ Congress appropriated funds in 1908, and from 
1914 through 1925, to establish a land base for the ``homeless 
Indians in the State of Montana.''\23\
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    \22\Id.
    \23\Little Shell Tribe of Chippewa Indians Restoration Act of 2007: 
Hearing on S. 724 Before the S. Comm. on Indian Affairs, 110th Cong. 2, 
13 (2008) (statement of the Hon. John Sinclair, Little Shell Tribe of 
Chippewa Indians of Montana, President); 41 Stat. 1225 (March 3, 1925).
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    In 1935, following the enactment of the Indian 
Reorganization Act (IRA),\24\ the BIA attempted to help the 
Little Shell Tribe form a government and reestablish a 
relationship with the United States. The Little Shell was 
ultimately unable to formally organize under the IRA because 
they lacked a land base.\25\
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    \24\Indian Reorganization Act, 25 U.S.C. Sec. Sec. 5101-5144 
(2017).
    \25\See Little Shell Tribe of Chippewa Indians Restoration Act of 
2011, S. 546, 112th Cong. Sec. 2 (7) (2011).
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    The Little Shell continued its effort to obtain Federal 
recognition through the Department's Federal acknowledgment 
process. In 1978, the year this process was created, Little 
Shell filed a letter of intent to petition for Federal 
acknowledgment. Little Shell spent approximately 14 years 
documenting their petition for acknowledgment, and ultimately 
submitted a petition in 1992.\26\
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    \26\Id.
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    In 1995, the BIA declared the Little Shell's petition was 
complete.\27\ In 2000, the BIA issued a positive proposed 
finding on the petition, stating that Little Shell had met all 
seven mandatory criteria for Federal acknowledgment.\28\ 
However, the BIA Office of Federal Acknowledgement requested 
additional information from the Tribe. In response, Little 
Shell provided nearly 1,000 pages of additional material.
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    \27\Little Shell Tribe of Chippewa Indians Restoration Act of 2013: 
Hearing on S. 161 Before the S. Comm. on Indian Affairs, 113th Cong. 1, 
4 (2013) (written testimony of the Assistant Secretary for Indian 
Affairs, U.S. Department of the Interior).
    \28\65 Fed. Reg. 45394 (July 21, 2000).
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    In 2009, the Department issued a final determination 
against federally acknowledging Little Shell.\29\ The 
Department's final determination stated that Little Shell met 
only four of the seven mandatory criteria for Federal 
acknowledgment.\30\ Little Shell appealed the negative final 
determination to the Interior Board of Indian Appeals.\31\
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    \29\74 Fed Reg. 56861 (November 3, 2009); Little Shell Band of 
Chippewa Indians Restoration Act of 2011: Hearing on S. 546 Before the 
S. Comm. on Indian Affairs, 112th Cong. 1, 30 (2011) (statement of Hon. 
John Sinclair, Little Shell Tribe of Chippewa Indians of Montana, 
President).
    \30\Little Shell Tribe of Chippewa Indians Restoration Act of 2013: 
Hearing on S. 161 Before the S. Comm. on Indian Affairs, 113th Cong. 1, 
20 (2013) (statement of the Assistant Secretary for Indian Affairs, 
U.S. Department of the Interior).
    \31\Id.
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    In 2013, the Secretary referred Little Shell's petition to 
the AS-IA for reconsideration. The Little Shell petition was 
placed on hold.

                          LEGISLATIVE HISTORY

    Montana Senators Jon Tester [D-MT] and Max Baucus [D-MT] 
introduced legislation to federally recognize Little Shell in 
the 110th Congress (S. 724), the 111th Congress (S. 1936), the 
112th Congress (S. 546), and the 113th Congress (S. 161). 
During the 110th Congress, and again in the 112th and 113th 
Congresses, the Committee on Indian Affairs held hearings on 
the legislation. At that time, Little Shell's petition for 
recognition was on active consideration, and the Administration 
testified in support of the Part 83 process.\32\ Montana 
Senators Jon Tester and Steve Daines introduced legislation to 
federally recognize Little Shell in the 114th Congress (S. 35). 
The Committee favorably reported out bills to recognize Little 
Shell in the 112th, 113th, and 114th Congresses.
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    \32\Little Shell Tribe of Chippewa Indians Restoration Act of 2007: 
Hearing on S. 724 Before the S. Comm. on Indian Affairs, 110th Cong. 2, 
1 (2008) (written testimony of Director, R. Lee Fleming, Office of 
Federal Acknowledgment, US Department of the Interior).
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    In the 115th Congress, on January 5, 2017, Senators Jon 
Tester [D-MT] and Steve Daines [R-MT] introduced S. 39 to 
federally recognize Little Shell. The bill was referred to the 
Committee on Indian Affairs, which considered the bill at a 
February 8, 2017 business meeting. During this business 
meeting, the Committee favorably reported S. 39 to the full 
Senate by voice vote, without amendment.
    Although there have been companion bills introduced in the 
House during past Congresses (including the 114th Congress), 
there is currently no companion bill. Additionally, Montana's 
at-large congressional seat is presently vacant.

                      SECTION-BY-SECTION ANALYSIS

Section 1--Short title

    This section states that the short title of the bill is the 
``Little Shell Tribe of Chippewa Indians Restoration Act of 
2017''.

Section 2--Findings

    This section lists Congressional findings.

Section 3--Definitions

    This section defines terms used throughout the Act.

Section 4--Federal recognition

    This section formally extends Federal recognition to Little 
Shell, making all federal laws and regulations of general 
applicability to Indians and Indian tribes, including the IRA, 
applicable to Little Shell and its members.

Section 5--Federal services and benefits

    This section states that, beginning on the date of 
enactment of this Act, the Little Shell and each member shall 
be eligible for all services and benefits provided by the 
United States to Indians and federally recognized Indian 
tribes, without regard to either the existence of a reservation 
for the tribe or the location of the residence of any member on 
or near an Indian reservation. This section also establishes 
Little Shell's service area for service delivery and benefits 
purposes as Blaine, Cascade, Glacier, and Hill Counties in the 
State of Montana.

Section 6--Reaffirmation of rights

    This section makes clear that nothing in this Act 
diminishes any right or privilege of Little Shell, or members 
of Little Shell, that existed prior to the date of enactment. 
The section further states that any legal or equitable claims 
to enforce rights or privileges reserved by or granted to 
Little Shell that were wrongfully denied or taken before 
enactment of this Act are preserved.

Section 7--Membership roll

    This section mandates, as a condition of receiving 
recognition, services, and benefits pursuant to this Act, that 
Little Shell submit to the Secretary a membership roll within 
18 months of enactment of this Act, and maintain such roll. 
This section also requires that tribal membership be determined 
in accordance with Little Shell's constitution dated September 
10, 1977.

Section 8--Transfer of land

    This section directs the Secretary to acquire trust title 
to 200 acres of land within the service area of the Tribe. This 
section also states that the Secretary may acquire additional 
land for the benefit of the Tribe, in accordance with the IRA.

                   COST AND BUDGETARY CONSIDERATIONS

    The following cost estimate, as provided by the 
Congressional Budget Office, dated February 21, 2017.
    Summary: S. 39 would provide federal recognition to the 
Little Shell Tribe of Chippewa Indians of Montana. Federal 
recognition would make the tribe eligible to receive benefits 
from various federal programs.
    CBO estimates that implementing this legislation would cost 
$35 million over the 2018-2022 period, assuming appropriation 
of the necessary amounts. Enacting S. 39 would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    CBO estimates that enacting S. 39 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 39 would impose an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA) by exempting some 
lands from taxation by state and local governments, but CBO 
estimates the cost of the mandate would be small and well below 
the threshold established in that act ($78 million in 2017, 
adjusted annually for inflation).
    S. 39 contains no private-sector mandates as defined in 
UMRA.
    Estimated cost to the Federal Government: The estimated 
budgetary effect of S. 39 is shown in the following table. The 
costs of this legislation fall within budget functions 450 
(community and regional development) and 550 (health).

----------------------------------------------------------------------------------------------------------------
                                                            By fiscal year, in millions of dollars--
                                               -----------------------------------------------------------------
                                                   2018       2019       2020       2021       2022    2018-2022
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                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Department of the Interior:
    Estimated Authorization Level.............          3          3          3          3          3         16
    Estimated Outlays.........................          2          3          3          3          3         15
Indian Health Service:
    Estimated Authorization Level.............          4          4          4          4          5         20
    Estimated Outlays.........................          4          4          4          4          5         20
    Total Changes:
        Estimated Authorization Level.........          7          7          7          7          8         36
        Estimated Outlays.....................          6          7          7          7          8         35
----------------------------------------------------------------------------------------------------------------
Note: Components may not sum to totals because of rounding.

    Basis of estimate: For this estimate, CBO assumes that S. 
39 will be enacted near the end of 2017 and that the amounts 
necessary to implement the bill will be appropriated each year.
    Providing federal recognition to the Little Shell Tribe of 
Chippewa Indians of Montana would allow the tribe and about 
2,600 tribal members to receive benefits from various programs 
administered by the Department of the Interior (DOI) and the 
Indian Health Service (IHS). Based on the average per capita 
expenditures by those agencies for other Indian tribes, CBO 
estimates that implementing S. 39 would cost $35 million over 
the 2018-2022 period.

Department of the Interior

    DOI, primarily through the Bureau of Indian Affairs (BIA), 
provides funding to federally recognized tribes for various 
purposes, including child welfare services, adult care, 
community development, and general assistance. Based on current 
per capita expenditures of around $1,200 for other federally 
recognized tribes located in the central states and accounting 
for anticipated inflation, CBO estimates that providing those 
services to the tribe would cost $15 million over the 2018-2022 
period.

Indian Health Service

    S. 39 also would make members of the tribe eligible to 
receive health benefits. Based on an analysis of information 
from the IHS, CBO estimates that about 55 percent of tribal 
members--or about 1,400 people--would receive benefits each 
year. CBO expects that the per capita cost to serve those 
people would be similar to the costs for current IHS 
beneficiaries--about $2,650 in 2017. Accounting for anticipated 
inflation, CBO estimates that providing benefits for tribal 
members through the IHS would cost $20 million over the 2018-
2022 period.

Other Federal Agencies

    In addition to DOI and IHS funding, certain Indian tribes 
also receive support from other federal programs within the 
Departments of Education, Housing and Urban Development, Labor, 
and Agriculture. Based on their status as a tribe recognized by 
the state of Montana, the tribe is already eligible to receive 
funding from those departments. Thus, CBO estimates that 
enacting S. 39 would not increase costs for that support.
    Pay-As-You-Go considerations: None.
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting S. 39 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    Estimated impact on state, local, and tribal governments: 
S. 39 contains an intergovernmental mandate as defined in UMRA 
because it would authorize the Secretary of Interior to acquire 
and take into trust 200 acres of land for the Little Shell 
Tribe. Because that land would be exempt from state and local 
taxes, the provision would impose an intergovernmental mandate. 
Given the small amount of land to be taken into trust, CBO 
estimates that the forgone tax revenue to state and local 
governments would be small and well below the threshold 
established for intergovernmental mandates ($78 million in 
2017, adjusted annually for inflation).
    Estimated impact on the private sector: S. 39 contains no 
private-sector mandates as defined in UMRA.

               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. 39 will 
have a minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S. 39.

                        CHANGES IN EXISTING LAW

    In accordance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that the 
enactment of S. 39 will not make any changes in existing law.

                                  [all]