[Senate Report 116-4]
[From the U.S. Government Publishing Office]
Calendar No. 34
116th Congress} { Report
SENATE
1st Session } { 116-4
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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
_______
March 7, 2019.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 216]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 216) 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, reports favorably thereon
without amendment, and recommends that the bill do pass.
PURPOSE
The bill, S. 216, would provide fair and equitable
compensation to the Spokane Tribe of Indians of the Spokane
Reservation (Spokane Tribe) for past and continued use of their
tribal lands by the Federal government for the production of
hydroelectric power generation by the Grand Coulee Dam in the
state of Washington.
The bill would provide the Spokane Tribe with annual
payments for the continued use of tribal lands, based on the
sale of hydroelectric power generated by the Grand Coulee Dam.
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 recommended a number of
sites where dams could be constructed, 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 the construction of the Grand Coulee Dam be
undertaken by local governments or private utilities, as a
licensee, under the authority of the Federal Power Act.\2\ 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 Spokane Tribe and Colville
Tribes' interests were affected when the Federal government
federalized the Grand Coulee Dam project. The Federal
government acknowledged the effects and determined that both
tribes should receive a share of revenue from the disposition
of power produced by the Grand Coulee Dam. The Act of June 29,
1940 directed the Secretary of the Interior (Secretary) 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\ The Secretary paid to
the Spokane Tribe, $4,700, and to the Colville Tribes, $63,000.
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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 Congress enacting
the Indian Claims Commission Act in 1946, Indian tribes needed
Congressional action to pursue claims against the Federal
government. The purpose of the 1946 Act was to establish a
forum, the Indian Claims Commission (ICC), for Indian tribes to
pursue historic claims, dating before August 13, 1946, against
the Federal government. The ICC did not have authority to grant
or restore lands to Indian tribes and was only able to award
monetary compensation. Under the 1946 Act, Indian tribes had a
5-year statute of limitations to file claims with the ICC.
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.
Those unrelated land claims of the Spokane Tribe before the
ICC had all been fully adjudicated 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 were successful in amending their ICC
land claim to add the Grand Coulee Dam project, creating an
opportunity for the tribe to seek compensation and leading to
the 1994 Colville Settlement Agreement.
In 1994, to halt this 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 past use of tribal
lands.\6\ Additionally under the Agreement, the Colville Tribes
are provided 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, for the continued use of
Colville tribal lands.\7\ Unlike the Colville Tribes, the
Spokane Tribes were not compensated 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 Spokane Tribe has been affected by the construction and
operation of the Grand Coulee Dam. The bill, S. 216, would
provide fair and equitable compensation to the Spokane Tribe by
requiring payments from the Federal government 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 lands
claims of the Spokane Tribe in Federal court, legislation is
necessary to provide fair and equitable compensation.
LEGISLATIVE HISTORY
On January 24, 2019, Senator Cantwell with Senator Murray
introduced the Spokane Tribe of Indians of the Spokane
Reservation Equitable Compensation Act. On January 29, 2019, by
voice vote, the Senate Committee on Indian Affairs ordered the
bill to be reported favorably to the Senate. A companion bill
has not been introduced in the House of Representatives.
115th Congress. On May 1, 2017, Senators Cantwell and
Murray introduced S. 995, a bill to provide for equitable
compensation to the Spokane Tribe of Indians 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). A legislative hearing
was not held on this bill. A companion bill was not introduced
in the House of Representatives.
On February 14, 2018, by voice vote, the Senate Committee
on Indian Affairs ordered the bill, as amended, to be reported
favorably to the Senate. The amendment, offered by Senator
Cantwell, removed 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. On
October 4, 2018, the Senate passed the bill by voice vote. It
was then referred to the Committee on Natural Resources in the
House of Representatives. No further action was taken.
114th Congress. On March 17, 2016, Senators Cantwell and
Murray introduced S. 2739, a legislative hearing was not held
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. No further
action was taken.
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 companion
bill in the House of Representatives.
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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. A legislative hearing was held 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 companion bill in the House of
Representatives.
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.
The companion bill, H.R. 3097, the Spokane Tribe of Indians
of the Spokane Reservation Grand Coulee Dam Equitable
Compensation Settlement Act, was introduced in the House of
Representatives by Representatives Inslee and Dicks on June 26,
2009. Representative Kildee was added as a cosponsor on October
7, 2009. Representative Richardson was added as a cosponsor on
February 3, 2010. The bill, H.R. 3097, was referred 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 bill, S. 2494, was
ordered 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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The companion bill, H.R. 6547, the Spokane Tribe of Indians
of the Spokane Reservation Grand Coulee Dam Equitable
Compensation Settlement Act, was introduced in the House of
Representatives by Representatives Inslee and Dicks on July 17,
2008. Representative Kildee was added as a cosponsor on July
29, 2008. The bill, H.R. 6547, was referred 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 bill, S. 881,
was referred to the Committee. No legislative hearing was held
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, S.
881.
The companion bill, H.R. 1797, the Spokane Tribe of Indians
of the Spokane Reservation Grand Coulee Dam Equitable
Compensation Settlement Act, was introduced in the House of
Representatives by Representatives McMorris-Rodgers, Dicks, and
Kildee on April 21, 2005. Representative Inslee was added as a
cosponsor on May 11, 2005. The bill, H.R. 1797, was referred 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 Rodgers moved to suspend the rules and pass the
bill, when the House of Representatives proceeded with forty
minutes of debate and then the motion to suspend the rules and
pass the bill was agreed to by voice vote. On July 26, 2005,
H.R. 1797 was received in the Senate. 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, the Committee
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\
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\10\S. Rep. No. 108-397 (2004).
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On November 19, 2004, the Senate passed S. 1438 with an
amendment and an amendment to the title by unanimous consent.
The House of Representatives received the bill, S. 1438, on
November 20, 2004. The bill, S. 1438, was referred to Committee
on Resources of the House of Representatives. On December 1,
2004, the bill, S. 1438, was referred to the Subcommittee on
Water and Power of the Committee on Resources of the House of
Representatives. No further action was taken on the bill, S.
1438.
The companion bill, H.R. 1753, the Spokane Tribe of Indians
of the Spokane Reservation Grand Coulee Dam Equitable
Compensation Settlement Act, was introduced in the House of
Representatives by Representatives Nethercutt and Dicks on
April 10, 2003. Representative Kildee was added as a cosponsor
on July 17, 2003. The bill, H.R. 1753, was referred 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. No further action was taken 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 bill, S. 2567, was referred to the
Committee. No further action was taken on the bill, S. 2567.
The companion bill, H.R. 4859, the Spokane Tribe of Indians
of the Spokane Reservation Grand Coulee Dam Equitable
Compensation Settlement Act, was introduced in the House of
Representatives by Representative Nethercutt on June 4, 2002.
The bill, H.R. 4859, was referred to the Committee on Resources
of the House of Representatives. No further action was taken 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 bill, S. 1525, was referred to the
Committee and no further action was taken on the bill.
The companion bill, H.R. 2664, the Spokane Tribe of Indians
of the Spokane Reservation Grand Coulee Dam Equitable
Compensation Settlement Act, was introduced in the House of
Representatives by Representative Nethercutt on July 30, 1999.
Representative Dicks was added as a cosponsor on August 5,
1999. The bill, H.R. 2664, was referred to the Committee on
Resources of the House of Representatives. No further action
was taken on the bill, H.R. 2664.
SECTION-BY-SECTION ANALYSIS FOR S. 216
Section 1. Short title
This section sets forth the short title as the ``Spokane
Tribe of Indians of the Spokane Reservation Equitable
Compensation Act''.
Section 2. Findings
This section sets forth the findings of Congress that
support the need for the Act.
Section 3. Purpose
This section 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
This section defines the key terms used throughout the Act.
Section 5. Payments by Administrator
This section 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
This section describes how the Spokane Tribe may use funds
provided under sections 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
This section 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
This section states that upon the deposit of amounts in the
Fund described in Section 5, 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
This section 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, February 14, 2019.
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. 216, 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. 216--Spokane Tribe of Indians of the Spokane Reservation Equitable
Compensation Act
S. 216 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 2022, 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 Treasury.
Payments to the tribe would total about $6 million annually
through 2029, CBO estimates. However, the net effect on direct
spending would not be significant because CBO anticipates that
BPA would raise its electricity rates to cover those costs.
Thus, payments to the tribe would generally be offset by an
equivalent increase in receipts from BPA's electricity
customers, which are recorded in the budget as reductions in
direct spending.
Starting in 2030, S. 216 would increase payments to the
tribe to about $8 million annually and would reduce the amount
that BPA makes in interest payments to the Treasury each year
by $2.7 million. CBO anticipates that BPA would reduce rates to
mirror that lower interest payment. Thus, CBO estimates that
the expected reduction in receipts under the bill would
indefinitely increase annual direct spending by $2.7 million
starting in 2030.
S. 216 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. Eliminating an existing right of
action is a mandate because the right to seek redress and
recover damages beyond what is provided in the bill would be
lost. Using information from the tribe, CBO expects that the
tribe would, probably not absent the provision extinguishing
those claims, pursue such claims if the bill were enacted.
Therefore, CBO estimates that the cost, if any, of the mandate
would not exceed the annual threshold established in UMRA ($82
million in 2019, adjusted annually for inflation). Overall, the
tribe would benefit from the payments authorized for the tribe
from the Bonneville Power Administration.
The CBO staff contacts for this estimate are Kathleen Gramp
(for federal costs) and Rachel Austin (for mandates). The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee has received no communication from the
Executive Branch regarding S. 216.
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. 216 will
have minimal impact on regulatory or paperwork requirements.
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.
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