[Senate Hearing 110-268]
[From the U.S. Government Publishing Office]
S. Hrg. 110-268
IMPACT OF THE FLOOD CONTROL ACT OF 1944 ON INDIAN TRIBES ALONG THE
MISSOURI RIVER
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 1, 2007
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota TOM COBURN, M.D., Oklahoma
DANIEL K. AKAKA, Hawaii JOHN BARRASSO, Wyoming
TIM JOHNSON, South Dakota PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri RICHARD BURR, North Carolina
JON TESTER, Montana
Sara G. Garland, Majority Staff Director
David A. Mullon, Jr., Minority Staff Director
C O N T E N T S
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Page
Hearing held on November 1, 2007................................. 1
Statement of Senator Conrad...................................... 25
Statement of Senator Dorgan...................................... 1
Prepared statement of Senator Johnson............................ 3
Statement of Senator Murkowski................................... 21
Statement of Senator Tester...................................... 2
Witnesses
Cournoyer, Robert W., Chairman, Yankton Sioux Tribe.............. 94
Prepared statement........................................... 96
His Horse Is Thunder, Ron, Chairman, Standing Rock Sioux Tribe... 25
Prepared statement with attachments.......................... 28
Jandreau, Michael B., Chairman, Lower Brule Sioux Tribe.......... 57
Joint prepared statement with Lester Thompson, Chairman,
Lower Brule Sioux Tribe.................................... 58
Nazzaro, Robin M., Director, Natural Resources and Environment,
Government Accountability Office; accompanied by Jeff Malcolm,
Assistant Director............................................. 3
Prepared statement........................................... 5
Steele, John Yellow Bird, President, Oglala Sioux Tribe.......... 98
Prepared statement........................................... 99
Thune, Hon. John, U.S. Senator from South Dakota................. 22
Trudell, Roger, Chairman, Santee Sioux Nation.................... 91
Prepared statement........................................... 92
Wells, Jr., Marcus, Chairman, Three Affiliated Tribes of the Fort
Berthold Reservation........................................... 59
Prepared statement with attachment........................... 63
Appendix
Brings Plenty, Joseph, Chairman, Cheyenne River Sioux Tribe,
prepared statement............................................. 119
Fool Bear, Archie, Board Member, Standing Rock Sioux Tribe and
Upper Missouri River InterTribal Allottees Association,
prepared statement with attachments............................ 122
Supplementary statements of: Lester Thompson, Michael B.
Jandreau, and Duane Big Eagle.................................. 196
IMPACT OF THE FLOOD CONTROL ACT OF 1944 ON INDIAN TRIBES ALONG THE
MISSOURI RIVER
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THURSDAY, NOVEMBER 1, 2007
U.S. Senate,
Committee on Indian Affairs,
Washington, D.C.
The Committee met, pursuant to notice, at 9:35 a.m. in room
628, Senate Dirksen Office Building, Hon. Byron L. Dorgan,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. The Committee will come to order. This is a
hearing of the Indian Affairs Committee. We will receive
testimony today on the history of the Flood Control Act of 1944
and how it continues to affect Indian tribes along the Missouri
River.
The Flood Control Act authorized the Pick-Sloan plan, which
was a plan to stop flooding along the Missouri River and
increase irrigation and provide for navigation. A well-
intentioned plan, but there were negative consequences to this
plan, some significant, and those consequences are still being
felt today. That plan authorized the building of five mainstem
dams and reservoirs along the Missouri River, and we will show
some charts and photographs momentarily.
The land was forcibly taken from a number of interests,
especially from Indian tribes and individuals. In some cases,
the Indians had little notice about being removed. Although the
tribes were ultimately compensated for the lands, the lands
were not voluntarily given up by the tribes. And in a number of
cases, tribes were given payments in the form of what are
called JTAC payments and others. In some cases this happened
once, in some cases more than once. There have been pieces of
legislation introduced to revisit it again.
My feeling was that we should take a look at the entire set
of reservoirs and dams and the displacement of all of the
tribes along the Missouri River as a result of the Pick-Sloan
plan. We should try to make an evaluation of what has happened
with respect to all of the tribes affected, and then make some
judgment and proceed from there.
The loss of these lands have been devastating to the Indian
communities. More than 900 Indian families were relocated, but
the fact is we have had entire communities inundated by water.
My father, as a young man herded horses on the Indian
reservation. He stayed in and lived in a city, or community,
called Elbow Woods. Elbow Woods no longer exists. It has been
under water for almost 50 years. The town, the hospital, it is
all under water.
The reason I know Elbow Woods is because my father used to
take me to Elbow Woods and say, here is where I herded horses;
here is where I worked with the Indians and worked on the
reservations. He was enormously proud of that portion of his
life. So I know Elbow Woods. This is a picture of the community
as the water began rising, and of course, the water inundated
that community.
I tell you that only to say that entire tribal
infrastructures and economies were destroyed. Their way of life
changed dramatically from living on the river bottoms and
eating fruit and berries and healthful foods on the river
bottoms, to being relocated. And so there are a lot of
consequences for that happening.
I am going to be joined at this hearing by my colleagues
from South Dakota, Senator Johnson, who has introduced
legislation affecting some South Dakota tribes, which is very
important legislation, and my colleague, Senator Tester, from
Montana, who has had similar interest with respect to Montana
tribes.
I, of course, am very interested in the North Dakota
interests of tribal governments. So this, I think, will be a
hearing at which we will gather information, both during and
after the hearing, to try to get a more global view of what has
happened along the Missouri River with respect to tribal
interests. In addition, we look at what kind of recompense was
offered and received, and what needs to be done to be fair for
all of these years to those whom land was taken.
I have just received a call that I have to go to Senator
Reid's office for an important, but brief, meeting on a couple
of appropriations bills. I have asked Senator Tester if he
would chair the hearing in my absence, and I expect to be back
in about 30 minutes. My apologies for that, but sometimes in
this business meetings come up at the last moment.
Let me ask Senator Tester if you want to take the Chair
here. You and Senator Johnson will want to make statements, and
then introduce witnesses, and then I will return.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. [Presiding.] That would be fine. Thank you,
Mr. Chairman.
The Chairman. Senator Tester, thank you very much.
Senator Tester. I think that Senator Dorgan has summarized
the issue very, very well that we are going to be dealing with
today. I appreciate his leadership on this Committee, and once
again on issues that are critically important to Indian
Country.
I think Senator Johnson has a statement, but he wants it to
be put into the record. I think that what we will do now is
just hear from Ms. Robin Nazzaro, Director of Natural Resources
and Environment from the GAO.
[The prepared statement of Senator Johnson follows:]
Prepared Statement of Hon. Tim Johnson, U.S. Senator from South Dakota
Thank you to Chairman Dorgan, Vice Chairwoman Murkowski, and the
staff of the Indian Affairs Committee for holding this hearing. I would
like to welcome the South Dakota tribal leaders, Chairman Jandreau,
Chairman Cournoyer, President Steele, and Chairman His Horse Is
Thunder. Chairman Thompson of Crow Creek and Chairman Brings Plenty of
Cheyenne River could not be here but they are planning to submit
written testimony. I also would like to welcome my colleague Senator
Thune, thank you for joining us today.
The Flood Control Act of 1944 had a tremendous effect on my state.
It has provided many benefits and numerous problems that are both still
being felt today. Unfortunately, the South Dakota tribes have not fully
shared the benefits, but were dealt an unfair share of the costs. The
impacts of the dams and irrigation districts affected each tribe and
each part of the state independently. I look forward to hearing the
testimony on the continuing challenges each tribe faces individually
due to this act.
Thank you.
Senator Tester. Robin, if you want to start out and fire
away, we can hear some history of what is going on and
hopefully we will have some questions for you when you are
done. Robin?
STATEMENT OF ROBIN M. NAZZARO, DIRECTOR, NATURAL
RESOURCES AND ENVIRONMENT, GOVERNMENT
ACCOUNTABILITY OFFICE; ACCOMPANIED BY JEFF
MALCOLM, ASSISTANT DIRECTOR
Ms. Nazzaro. Thank you, Senator Tester. I am pleased to be
here today to discuss the compensation provided to the seven
tribes for lands taken by flood control projects on the
Missouri River.
As was mentioned, the Federal Government constructed these
dams that caused damage to seven reservations: Fort Berthold,
Cheyenne River, Standing Rock, Lower Brule, Crow Creek, Yankton
and Santee. As was noted, Congress authorized payments to these
tribes as compensation for the damages, and then again later
Congress responded by authorizing additional compensation
through the establishment of development trust funds for tribes
at each of the seven reservations.
However, as the Chairman noted earlier, lingering questions
remain about whether the tribes have been adequately
compensated for the damages and whether they have been treated
consistently. Since 1991, we have issued three reports on
additional compensation for tribes at five of the reservations:
Fort Berthold, Cheyenne River, Standing Rock, Lower Brule and
Crow Creek. My statement today is based on these reports and
summarizes the damages and compensation authorized by the
Congress.
The reservoirs created by the dams on the river permanently
flooded over 350,000 acres of land on the reservations, ranging
from over 150,000 acres flooded on the Fort Berthold
Reservation to less than 600 acres on the Santee. In addition
to the valuable river bottomland that was lost, the tribes also
lost the natural resources such as timber, wildlife and native
plants, and structural improvements such as homes and ranches
on the land.
In addition to the direct damages, the tribes also suffered
indirect or intangible damages for the loss of assets of
unknown value, including spiritual ties to the lands, tribal
claims to the homeland, and benefits derived from living along
the river. The damage that each tribe sustained was unique,
depending on the land that was lost, the resources and
structure on that land, and the overall impact to the
community.
The tribes at the seven reservations originally received
compensation for their damages between 1947 and 1962. The Three
Affiliated Tribes of the Fort Berthold Reservation received
$12.6 million. Cheyenne River Sioux Tribe received $10.6
million. Standing Rock Sioux Tribe received $12.3 million. The
Lower Brule Sioux Tribe received $4.3 million. The Crow Creek
Sioux Tribe received $5.9 million. The Yankton Sioux Tribe
received $.2 million, and the Santee Sioux Tribe, $.059
million.
For the tribes at the five reservations that we have
reported on in the past, the original compensation was based on
detailed assessments by the U.S. Government and the tribes of
the damages caused by the dams, and in some cases protracted
settlement negotiations. They were ultimately unable to reach
settlement agreements and Congress decided the compensation
amounts. In each case, the original compensation provided was
less than what the tribes had requested.
The tribes received additional compensation between 1992
and 2002. The Three Affiliated Tribes of the Fort Berthold
Reservation received $149.2 million; the Cheyenne River Sioux
Tribe, $290.7 million; the Standing Rock Sioux Tribe, $90.6
million; the Lower Brule Sioux Tribe received $39.3 million;
the Crow Creek Sioux Tribe, $27.5 million; the Yankton Sioux
Tribe, $23 million; and the Santee Sioux Tribe, $4.8 million.
During our prior reviews, we recognized the inherent
difficulties with trying to perform a new economic analysis on
the damages the tribes sustained over 50 years after the fact.
We suggested that if Congress determined that additional
compensation was warranted, it could determine the amount of
compensation by calculating the difference between the tribes'
final settlement proposal and the amount of compensation
Congress originally authorized.
We used the inflation rate and an interest rate to adjust
the difference to reflect a range of current values. Using the
inflation rate for the lower end of the range and the interest
rate for the higher end of the range. The three largest
additional compensation amounts for Fort Berthold, Cheyenne
River, and Standing Rock Reservations were all within the
ranges we calculated.
Congress did not ask us to review the methodologies used to
calculate the four small additional compensation amounts, which
were all less than $40 million before enacting the bills. The
Crow Creek Sioux and Lower Brule Sioux Tribes were authorized
additional compensation commensurate on a per acre basis, with
the additional compensation provided to the Standing Rock Sioux
Tribe in 1992. Similarly, the additional compensation
authorized in 2002 to the Yankton Sioux and the Santee Sioux
Tribes was also partially based on a per acre calculation.
In closing, I would caution against looking solely at the
acreage loss and the authorized compensation amounts to try and
determine if the tribes were treated consistently. Such
comparisons have led to perceived inequities between the
tribes. Looking at just the total compensation amounts masks
the outlying differences of each of the compensation bills.
This concludes my statement and I would be pleased to
answer any questions you or Senator Johnson have at this time.
Thank you.
[The prepared statement of Ms. Nazzaro follows:]
Senator Tester. Thank you, Robin. I appreciate your
testimony. I do have a few questions here.
You provide some more background information as it relates
to the original compensation amounts to the tribes and how they
were developed. The original compensation was from the 1950s
and the 1960s, and your testimony stated that the original
compensation to the tribes was based on detailed assessment by
the U.S. Government and the tribes of the damages caused by the
dams and, in some cases, protracted settlement negotiations.
Could you describe some of the factors and information that was
utilized to determine the level of damage caused to the tribes
during those original settlement negotiations?
Ms. Nazzaro. Yes. The Corps of Engineers did an initial
assessment of the direct damages of the flooding. The
Department of Interior then did an assessment of indirect
damages. These included pretty extensive inventories of not
only the lands, but the resources on those lands. For example,
how many trees were on the lands; what kind of trees;
livestock, if you will.
I have seen records of actually counting how many chickens
were there; what kind of agricultural pursuits had been in the
area; what kind of resources would be available, even into the
future. Say they decided to pursue logging with the trees that
were on the lands.
There was some attempt made to try to determine not only
the value of the resources then, but also how these resources
could have been used in the future.
Senator Tester. Did the indirect damages include things
like you are talking about, like spiritual ties and those kind
of things?
Ms. Nazzaro. That was indirect costs, correct? Or damages,
yes.
Senator Tester. I am assuming, other than trees and
livestock and homes and churches and hospitals, that also the
value of the land was also included as a baseline.
Ms. Nazzaro. That was the Corps of Engineers' assessment.
Yes, the Corps of Engineers did the direct assessment of
damages.
Senator Tester. Who did the indirect?
Ms. Nazzaro. The Corps of Engineers.
Senator Tester. Did both indirect and direct?
Ms. Nazzaro. No, indirect came from the Department of
Interior. Yes.
Senator Tester. Can I ask why? Why was it done that way? Do
you know why the Army Corps just didn't do them both?
Ms. Nazzaro. I wouldn't think that they would have that
expertise to be able to assess the indirect damages.
If I could bring my expert on this whole issue, who knows
the history of the tribes very well, Jeff Malcolm?
Senator Tester. I certainly don't have a problem with that.
Jeff?
Mr. Malcolm. Jeff Malcolm. I am an Assistant Director with
GAO's Natural Resources and Environment team.
The Corps of Engineers felt that in the original
legislation that authorized compensation for the dams, that
they were only authorized to pay for the direct damages
directly caused by the dams. They didn't believe they were
authorized to pay for other intangibles or indirect damages.
Senator Tester. I got you. Okay.
GAO has taken a position that it would be difficult to
perform new economic analysis on the damage to the tribes
sustained 50 or 60 years ago. Instead, GAO recommended that
Congress look to a tribe's final asking price during the
original negotiations and use that to determine whether a tribe
should be entitled to additional compensation.
Can you further describe why we can't just use the
information we have to perform a new economic analysis on the
damages faced by the tribes when their lands were originally
taken? Does that make sense to you?
Ms. Nazzaro. Well, I think a big part is the time that has
lapsed. A lot of these people are no longer alive. The lands
are no longer there to visually inspect them, so you are still
relying on historical records, which may or may not be
accurate. So it would be very difficult. That gets to our point
about the difficulty 50 years after the fact to go in and make
an assessment.
Senator Tester. Okay. If the GAO was asked, would they be
able to develop methodologies for calculating damages based on
factors other than tribes' final asking price?
Ms. Nazzaro. I think we would want to stand behind the
methodology we used before. We really felt that the tribes'
final asking price was the most complete and realistic estimate
at the time, and that is why we used that estimate. I know
there have been questions raised as to why we used that price.
Senator Tester. Yes.
Ms. Nazzaro. But as over time, as the negotiations went on,
data became more enriched, if you will, and so we feel that it
is better data to use the more recent, or the final asking
price, rather than to go back to any other ones. As you reach
through a negotiation, you both start at kind of opposite ends.
Senator Tester. And work toward the middle.
Ms. Nazzaro. Doing the worst case, you know, how much are
you going to pay, and I think you come closer together. So we
felt that final asking price was probably the best number to
use.
Senator Tester. Okay. The GAO has recognized that there
were problems with the original settlement negotiations, namely
that the tribes may have been at a disadvantage during the
negotiations with the Federal Government. What are some of the
reasons why the tribes may have been at a disadvantage during
these negotiations?
Ms. Nazzaro. Well, in one case that I am particularly
familiar with is the fact the Government was actually
constructing the dams at this time. We have heard that they
felt pressured, that this was kind of a one shot deal, either
come to the table and put forth your estimate, or you may not
have an opportunity again.
Jeff might have another perspective.
Senator Tester. But did this happen in most of the cases,
that the dams were being built and negotiations were going on
after the dam had been in progress?
Mr. Malcolm. I would say in most of the cases that is what
happened. Again, there were varying degrees of how long the
construction had been ongoing while the negotiations were
ongoing. But yes, in some cases the dams had been closed and
the water had started rising. Certainly, as we refer to in our
statement, there were protracted negotiations. So the
negotiations spanned over many years. During that time, some
people were being relocated without really having compensation.
Senator Tester. So what you are saying is the dams weren't
just starting construction. They were done with construction.
Mr. Malcolm. Done is a relative term as you look at the
dams. Basically, they report the time the dams were closed,
which is when they actually walled off the water for the last
time. After the dams were closed, the construction was
continuing to go on for a number of years after that. They
continued to fill in the dams and do various parts of the
construction.
Senator Tester. Okay. In your testimony, Robin, you stated
that four of the seven tribes received rehabilitation funds as
a part of their original settlements, but that GAO believes
that rehabilitation should be considered separately from any
comparison for damages because rehabilitation was not directly
related to the damage caused by the dams.
Can you address what rehabilitation funds were meant to
address originally?
Ms. Nazzaro. Rehabilitation was not a factor in the Fort
Berthold situation. It didn't happen until later, more in the
1958 time frame, when they were negotiating with Standing Rock
that the whole concept of rehabilitation came back in.
The idea here was to improve the economic and social status
of the tribes. It had a lot to do with just the history of the
tribes and how the Federal Government interacted with the
tribes. This was really a preparation for termination of
Federal supervision of the tribes, and was in the form of
business loans, education loans, things like that to actually
improve the overall welfare of the tribes at the time. It
wasn't really linked to the flooding of the Missouri River.
Senator Tester. Okay. All right. Okay. Thank you.
We have been joined by Senator Murkowski and Senator Thune.
We welcome them to the Committee. If you folks have any opening
statements, we could certainly take them at this point in time.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman.
I don't have much of an opening statement. I just do want
to acknowledge, recognizing the history of the Pick-Sloan
program and the impact of the very sudden relocation of entire
Native communities. We recognize how complex, how far-reaching
this really is.
The Pick-Sloan program also illustrates that if the
community relocation is unavoidable that the true costs of
relocation should be very carefully evaluated in advance of the
relocation, and that the process of the relocation should be
very carefully planned.
We have some situations in Alaska, perhaps not much unlike
what we have seen here. We have several communities, in fact a
whole handful of communities, that are looking to relocate as a
consequence of what we are seeing with rising sea levels due to
climate change, erosion on the coast. We are looking at their
capacity to adequately cover the losses that are sustained by
relocating these tribal communities.
So I am pleased that we are able to have this hearing this
morning to look specifically to the Pick-Sloan, but also about
how we can perhaps better anticipate as we move forward in
matters such as this.
Thank you, Mr. Chairman.
Senator Tester. Senator Thune, did you have any opening
statement?
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Thank you, Mr. Chairman.
I just want to tell you I appreciate very much, since I am
not on the Committee, the opportunity to be able to be here
today along with my colleague, Senator Johnson from South
Dakota, be able to welcome the Chairmen and Presidents of our
tribes in South Dakota, to look at the impacts of Pick-Sloan.
There are lots of positive things that have happened in our
State, and yours as well, Mr. Chairman, as a result of Pick-
Sloan, but there are also a lot of consequences and impacts
that have perhaps not been as positive with regard to the lands
adjacent to and the impacts they have had on the tribes.
So we are going to hear from some of those tribal leaders
today and I am very glad to be able to welcome them here, and
look forward to the insights and the testimony they will be
able to provide about how this project has affected their
specific reservations and what fair compensation could do to
improve them.
So I want to thank you again for holding the hearing, for
inviting me, and I look forward to working with my colleagues
on both sides of the aisle to address and bring some resolution
to these issues, which are very long-standing and in need of
some closure.
So thank you, Mr. Chairman.
Senator Tester. Thank you, Senator Thune.
Senator Johnson, did you have any questions for the
witness?
Senator Johnson. Yes.
I understand the GAO numbers are all based on final asking
price. While that may be a good benchmark when parties to
negotiations are on equal footing, I believe that they can not
be strictly applied to every historical injustice. Did the
GAO's analysis examine the conditions under which the parties
arrived at their final asking price?
Mr. Malcolm. We looked at the historical record. Again,
just to say for the record, certainly we worked closely with
our economists at GAO. The final asking price issue is not
something that is written in stone. We did look for any
information to indicate why that would have been, or if that
would have been an unreasonable number to use. So we looked at
all of the tribal offers that were made over a period of years
to try to determine if the final asking price was inconsistent
with or totally out of line with other offers that had been
made over time.
What we determined based on that analysis was that it was a
reasonable offer. It was consistent with generally the other
offers that had been made over time. One of our issues that we
had was again looking at the offers that were made as a
proposal. The proposal had many different components. As you
know, in a negotiation, you might be willing to give up
something in category A if you get more in category B.
So there are tradeoffs and decisions that are made between
those, so we think it is kind of important to consistently use
one offer, as opposed to taking components out of various
offers that were made over different years. So that was also
one of the issues we raised in our report.
Ms. Nazzaro. And those proposals didn't always decrease
over time. In fact, actually in one case it was actually the
highest proposal that the tribes came back with, and that was
the one that was used in our economic analysis.
Senator Johnson. It seems the tribes must of been at a
disadvantage in the original negotiations. Are they not also at
a disadvantage in this GAO formula?
Mr. Malcolm. The basis of the formula, again, is simply
recognizing the difficulties with redoing a completely new
economic analysis. As Robin mentioned, you don't have the
people to interview today in every case to really determine how
they valued items 50 years ago. I mean, something might be much
more valuable to someone today than it was to a different
person 50 years ago when they were actually there. So not
having those people to do that type of analysis is difficult.
So basically, our approach was simply to say, make the
assumption that you gave essentially 100 percent of what they
asked for at the time. So 50 years ago, they were willing to
settle for X amount, and we saw that as their final asking
price. So our assumption is, let's say if they had come to the
table as they did 50 years ago, put a proposal across the
table, and said, we are willing to accept $12 million for this
land. The Government would have said, we will take that offer;
let's sign this on the dotted line.
That didn't happen. The Government and the tribe did not
reach an agreement. They were at a stalemate. So what we are
saying is, okay, let's say you had accepted that offer that
they made 50 years ago. So we calculated how much did they ask
for then; what did Congress actually provide. So we are
basically looking at trying to make them whole, if you will, in
accepting the final offer that was issued at the time.
Senator Johnson. Are you saying the agreements were at the
end subjective in nature?
Mr. Malcolm. Excuse me?
Ms. Nazzaro. If he is asking that the final offers were
subjective, the final negotiations, there never was an
agreement between the Government and the tribes. Congress
ultimately made the decision on that original compensation and
it was less than the tribes wanted. So that is why we went back
and said let's look at the difference, then, between what the
tribes wanted and what Congress gave them, and use that as the
basis, that difference.
And then we applied an interest rate and a bond rate to
give you a range of what we thought would have been fair had we
stuck with what the tribes actually were asking for back then.
It did seem like it was more arbitrary as to what Congress
decided to give them than what the tribes, because that was
based on their personal knowledge. So we felt it was fairer to
go back to what the tribes actually were asking for.
Senator Johnson. No further questions.
Senator Tester. Senator Murkowski?
Senator Murkowski. Thank you, Mr. Chairman.
I just have one question. In your testimony, you had
mentioned that in addition to the direct damages, that Congress
had also recognized that the tribes had suffered damages due to
social and cultural losses. The question for you this morning
is whether or not those social costs have been contemplated in
GAO's calculation of additional compensation for the seven
Indian tribes? If so, how do you calculate for that? How do you
provide for that accounting?
Ms. Nazzaro. It was factored in the final asking price. The
tribes had included all those various components: direct costs,
indirect costs, and in some cases rehabilitation costs. The
only one that did not include rehabilitation was for the
Affiliated Tribes associated with the Fort Berthold
Reservation.
Senator Murkowski. So you are saying that the tribes had
proposed that number as compensation?
Ms. Nazzaro. That was part of the component of the
discussions. That is where Jeff was mentioning that there was a
tradeoff, that sometimes they would say, well, we will take
more for the direct, and then we will cut back on the indirect,
that there was a balancing. But all those components were on
the table at the time of the original negotiations for
compensation. So that was a part of that number that, if you
will, the tribes proposed at the end.
Senator Murkowski. As you are looking to additional
compensation, are the culture and the social costs still
factored in, or have you basically concluded that that was done
once and so there is no more?
Mr. Malcolm. It still is factored in, Senator Murkowski.
Again, as Robin described, we looked at all the different
components of how much the tribe itself had asked for those
indirect damages at the time. We looked at again the
compensation bill that Congress enacted, and again in every
case they got less than what they had requested. So we did have
a factor for the indirect damages that we then brought forward
to current values to see how the amount that they were not
paid, how much would that be worth today, i.e. how much would
it take to make them whole based on what they asked for 50
years ago.
Senator Murkowski. Thank you, Mr. Chairman.
Senator Tester. Senator Thune?
Okay. I want to thank you very much for your testimony and
your answering of the questions. Thank you very much.
Mr. Malcolm. Thank you.
Ms. Nazzaro. Thank you.
Senator Tester. Our next panel consists of the Honorable
Ron His Horse Is Thunder, Chairman of the Standing Rock Sioux
Tribe from Fort Yates, North Dakota; the Honorable Michael B.
Jandreau--and excuse me if I have pronounced it wrong--Chairman
of the Lower Brule Sioux Tribe of Lower Brule, South Dakota;
the Honorable Marcus Wells, Jr., Chairman of the Three
Affiliated Tribes of Mandan, Hidatsa, and Arikara Nation, New
Town, North Dakota; the Honorable Roger Trudell, Chairman of
the Santee Sioux Nation in Nebraska; the Honorable Robert
Cournoyer, Chairman, Yankton Sioux Tribe in South Dakota; and
the Honorable John Yellow Bird Steele, President of the Oglala
Sioux Tribe in South Dakota.
We will start out with Ron His Horse Is Thunder. You can
start with your testimony and we will go down the list. Thank
you for being here.
We will keep the testimony. If you can make it as concise,
keep it to five minutes, it would be very much appreciated.
We are joined by the other good Senator from North Dakota,
Senator Conrad. Do you have any statement before we get started
with this panel? We are just starting now.
STATEMENT OF HON. KENT CONRAD,
U.S. SENATOR FROM NORTH DAKOTA
Senator Conrad. If I could just for a moment, Mr. Chairman,
especially welcome Ron His Horse Is Thunder, a very dear friend
and somebody who has a real vision and a commitment to
improving the future of his people. I am delighted that he is
here.
I welcome all the witnesses, Marcus Wells as well. I didn't
notice that you were here as well. Good to have you here.
Marcus is a relatively new tribal Chairman, but somebody who
has jumped in with both feet to try to improve the future of
his people as well.
So we are delighted to have these two distinguished
witnesses from North Dakota and all the witnesses on this
panel.
Thank you, Mr. Chairman.
Senator Tester. Thank you, Senator.
We will try to keep the comments to five minutes. I
appreciate it very much if you would. There are six of you here
and we do have limited time today by the time we get through
the questions.
So Ron, you go ahead and fire away.
STATEMENT OF RON HIS HORSE IS THUNDER, CHAIRMAN, STANDING ROCK
SIOUX TRIBE
Mr. His Horse Is Thunder. Mr. Chairman, honorable members
of the Committee, thank you for allowing me the opportunity to
speak today. I have written remarks, but I am not going to read
them off to you. I will condense them down into some oral
testimony here.
I particularly find interesting the GAO's method of
accounting for losses that tribes incurred more than 50 years
ago. Of course, we all, and the street term, if you will, for
accountants is bean counters. It is really interesting as they
start talking about how they appraised our land originally, et
cetera, and the difference between their appraisal and the
tribe's appraisal, and basically call it an asking price, what
we originally asked for. I don't know if our tribe ever came up
with an original asking price. Maybe they did.
They seemed to say that there is a difference between what
was given us by Congress then and the asking price. So I would
be interested in knowing what our asking price originally was
and what was the difference in terms of percentages that was
the original asking price and what was in fact given us.
Standing Rock did lose about 56,000 acres of land and we
were originally given about $12 million in compensation for
that loss. Now, I have talked to a number of the elders who
were alive back then, and I have seen some of the records of
the price that they were given for their land. Every time you
talk to them, it brings up much sadness in their hearts.
They were given about $31 an acre for their land back then,
is what they were given. There was no negotiation with them. It
was just, you take this, and that is it. I find it real
interesting that they didn't understand that there was in fact
a negotiation process. They didn't understand the fact that
they could have appealed it, that they could have gotten a
lawyer and appealed the process, and maybe even gotten more
compensation.
They didn't understand that. Most of them didn't speak
English very well. The Bureau of Indian Affairs was giving them
an appraisal notice saying $31 an acre and this is how many
acres you are going to lose, and this is how much we are going
to give you for it. And even though many of them said no, they
refused to sign, they were still forced to take $31 per acre,
again not understanding that they had a right to get an
attorney and to challenge it.
Now, non-Indians, many of them, did challenge it and got up
towards $60 an acre, more than almost twice the value of what
Indian land was paid at. So there is a huge discrepancy in the
amount that Indians got for land and non-Indians got for their
land, it being the exact same land.
Standing Rock in its 55,000 acres that was lost, although
we didn't lose the most amount of acres. I think that Fort
Berthold lost more acres than we did. Standing Rock did lose
the most timbered land. Out of all the tribes, we lost more
timber acreage than any of them.
As GAO says, you can't really use one appraisal rate and
apply it to another tribe because the types of land lost were
different. But the timberland was highly valuable to us in that
it is where most of our game resided. It is where we acquired
most of our food from.
I purposely used the word bean counter when I started this
because when we start talking about food, that is something
that wasn't truly accounted for. There is a little field mouse,
if you will, that lives among the trees, and it collects beans.
It will run from tree to tree or plant to plant and collect
little beans, and store them for the wintertime. They dry. They
create huge mounds of the stuff.
We used to use that as food. We would go find these little
mounds, these huge mounds, if you will, where these beans were
stored and we would trade with those little field mice. We
would leave corn or we would leave tobacco, and we would take
half of their beans that they stored for the winter, and that
was part of our food supply. That is something the GAO, those
bean counters will never understand in terms of beans. They
never will. That was our food supply, and of course the grapes
and the berries and everything else that is associated with the
forest. That will never be accounted for, and can't be
accounted for.
Now, they talk about the difference in asking price. Again,
I don't think our tribe ever really had an official asking
price, but maybe it did. We did receive additional compensation
at the Standing Rock Sioux Tribe. We got in the 1990s an
additional $90.5 million. But we asked actually for more. We
didn't receive that higher amount, and when they start talking
about negotiations, the negotiations change from tribe to
tribe. If you came in later after Standing Rock and Three
Affiliated came in, we were the first, if you came in after
that, the way of appraising your land and what you lost
changed, and actually got more. I mean, the evaluation go more.
So if you were to give us what the tribes got after we came
in, the negotiation process gets better and better. We in fact
believe that our true loss in 2004 dollars was $611 million. We
have a study that we would like to leave that accounts for that
difference. So truly what Standing Rock believes it lost, even
if you take out the $90.6 million that was paid to us in the
1990s, is truly an additional loss of $611 million that we
believe is there.
Also, there is surplus land that the Corps of Engineers
when it took, it took a long square boundary line along the
river. There is what is deemed excess Corps land. We know on
our reservation there are 19,000 acres that is Corps land that
could be given back to the tribe. We have asked for it. They
have given us back only 365 acres thus far and we would like to
see all that 19,000 acres returned to us.
I can't actually see the clock, sir.
Senator Tester. Actually, the clock hasn't been running for
a while, but you are about out of time. So wrap it up, please.
Mr. His Horse Is Thunder. So in the end, I really feel for
our tribal members, and there are still some alive today who
were the original landowners who only got paid $30 an acre and
were forced to move from the best land we had up to the top on
the prairies. Originally, there was, and I have heard it said
by the GAO, some replacement lands that were available, rehab
lands they refer to them as, available to these landowners who
originally lost land.
Well, those rehab lands, those rehab dollars, we call them
section five dollars on our reservation. Section five dollars,
of all the people who lost land on the river bottom, only one
person ever got section five land ever. Section five land was
administered by the Bureau of Indian Affairs, and you want to
know who got section five land? Bureau of Indian Affairs
employees who did not lose land on our reservation, and did get
replacement land even though they didn't lose any land. Only
one person who ever lost land on the river bottoms, one person,
ever got replacement lands.
Thank you.
[The prepared statement of Mr. His Horse Is Thunder
follows:]
The Chairman. [Presiding.] Let me next call on Chairman
Jandreau.
Let me thank Senator Tester for Chairing. I had to depart
momentarily for an important appropriations meeting with the
Leader.
Chairman Jandreau, thank you very much for being here. You
may proceed.
STATEMENT OF MICHAEL B. JANDREAU, CHAIRMAN, LOWER BRULE SIOUX
TRIBE
Mr. Jandreau. Thank you. Thank you, Senator Dorgan, Senator
Johnson, Senator Conrad, Senator Tester, Senator Murkowski and
Senator Thune, for allowing me to come today to make a
presentation in relationship to these losses that have
occurred.
Lower Brule and Crow Creek are in a little bit different
situation at this point. Chairman Thompson could not be with me
today. However, I have submitted a statement for the record on
behalf of Chairman Thompson and myself.
First of all, Senate bill 160, which affects the Lower
Brule and Crow Creek, has been changed to meet the concerns
that have been reflected in the last hearing. First of all, we
modified it in several ways. One was to reduce the amount of
money that we were asking for by $57 million, from $186 million
to $129 million. Second, a new section five made it clear that
Lower Brule and Crow Creek legislation would declare this as
full and final compensation for the Missouri River claim in
relationship to the dams. And thirdly, we asked that this not
impact any other tribe outside of the Missouri River.
I listened today with great interest in all of the comments
that were made by GAO. The idea of final asking price is
unrealistic. When GAO did the study, they came to our
reservation. They talked to elders, elders who were alive at
the time of the taking. They listened to them tell how
incomplete the taking of these lands made them and their
ability to survive.
They told the folks that were there from GAO that they
believed that adequate compensation had never been made. In
fact, when we testified before this Committee in 1992, I
believe it was, the first time, we submitted testimony from our
elders that reflected that the monies that we received at that
time were not full compensation for what they believed the
losses were.
While we encourage and support our fellow tribesmen in
having their needs dealt with, we ask that if that is not
possible in this session of Congress, that this Committee would
recommend moving forward with our bill. If a bill during this
Congress can be done comprehensively, we understand that and
are willing to work with Congress, with our fellow tribesmen,
to be a part of that.
However, if ours moves forward before that, we agree that
we will not ask for any additional compensation than that that
is Senate bill 160.
Thank you very much.
[The joint prepared statement of Mr. Jandreau and Mr.
Thompson follows:]
Prepared Statement of Michael B. Jandreau, Chairman, Lower Brule Sioux
Tribe and Lester Thompson, Chairman, Crow Creek Sioux Tribe
Chairman Dorgan, Senator Johnson, Members of the Committee, I am
Chairman Mike Jandreau of the Lower Brule Sioux Tribe. With me is
Chairman Lester Thompson of the Crow Creek Sioux Tribe. Allow us to
also recognize Senator Thune, who has introduced The Lower Brule and
Crow Creek Compensation Act, S.160, with Senator Johnson.
First, Mr. Chairman, we appreciate that this hearing is on the
larger question of compensation for all Tribes on the Missouri River
(the River) that lost land as a result of the Pick-Sloan Missouri River
Program. We support full and fair compensation for all Tribes on the
River, not just our two Tribes.
At the same time, however, we believe we are in a unique position.
Our legislation was reported by the Committee in the 108th Congress and
the 109th Congress. The legislation passed the Senate three times in
the 108th Congress. After the bill was reported in the 109th Congress,
Chairman McCain asked the GAO for a report on the legislation. A
mathematical error was discovered and the legislation before you was
then modified in several ways:
First, the amount of compensation was reduced. For Lower
Brule the amount in the bill was reduced from $186 million to
$129 million, or $57 million. The Crow Creek amount was reduced
by $36 million, from $105 million to $69 million.
Second, a new Section 5 was added making it clear that as to
Lower Brule and Crow Creek this legislation would be full and
final compensation, even if additional legislation were enacted
for all other Missouri River Tribes; and, last,
Section 5 also makes it clear that S. 160 would not be a
precedent beyond the Missouri River Basin Program.
Mr. Chairman, the Flood Control Act of 1944 may have been good for
the United States, but it has been devastating for River Tribes. I ask
that our testimony of June 15, 2004 and June 24, 2006 be made a part of
this hearing record. *
---------------------------------------------------------------------------
* The information referred to is printed in the appendix.
---------------------------------------------------------------------------
In partial compensation for the damage caused by Pick-Sloan, the
Congress did enact two Infrastructure Development Trust Funds for Lower
Brule and for Crow Creek. We have used these funds to the best
advantage of our Tribes. Meetings were held with our elders and other
Tribal members to establish priorities and many critical projects have
been undertaken. But we have only scratched the surface of what needs
to be done to bring Tribal life and our Tribal economies into the
mainstream of American life.
It is very painful to read The World is Flat and to read that the
United States is outsourcing jobs to China and India when many American
Indian reservations have an unemployment rate over 80 percent and a
third world standard of living. When exactly is the United States going
to establish a comprehensive plan for the Reservations here in the
United States?
The Lower Brule and Crow Creek Compensation Act would enable our
two Tribes to move forward with health care, justice programs,
education, transportation, broadband, and our many other needs. Let us
stress, however, we also support moving forward with legislation for
all other River Tribes when they are ready to do so.
Our main point today is that it is not fair or right to hold our
bill up until all other River Tribes are ready. Each year that passes
we are losing millions of dollars in interest that our people need for
critical services. We have done our studies, created our internal
plans, and are ready to move forward. We are prepared therefore to
accept S. 160 as full and final compensation.
Finally, let us stress that we are not seeking a hand out based on
our human needs. This legislation is intended to provide compensation
for the loss of our land and the costs suffered by our two Tribes. The
Army Corps of Engineers has estimated that the Pick-Sloan project's
overall contribution to the U.S. economy is over $1.2 billion per year.
Tribal compensation must been seen in that context. The United States
took our best land and our water (under the Winters doctrine) to
produce electricity. They then sell the electricity and instead of
sharing the revenue with the Tribes, they charge us for the
electricity.
This is fundamentally wrong! Further, we are not talking about
injustices that were committed against the Indian people in the 1860's.
We are talking about this year, 2007. It is time to correct the record
and enact legislation that compensates all Tribes that have lost their
land. It is time to fairly compensate River Tribes for their loss and
their contribution to the American economy. We urge the Committee to
look at the cost of the legislation in the context of history and the
revenue the is generated each year by Pick-Sloan.
We urge the Committee to bring S. 160 to the floor of the United
States Senate. Thank you.
The Chairman. Chairman Jandreau, thank you very much.
Next, we will hear from the Honorable Marcus Wells, Jr, the
Chairman of the Three Affiliated Mandan, Hidatsa and Arikara
Nation Tribes in New Town, North Dakota.
Chairman Wells, thank you very much.
STATEMENT OF MARCUS WELLS, JR., CHAIRMAN, THREE AFFILIATED
TRIBES OF THE FORT BERTHOLD RESERVATION
Mr. Wells. Good morning. My name is Marcus Dominic Wells,
Jr. [Greeting in native tongue.]
I would like to thank the Committee and the Chairman for
inviting me to testify today.
Over 50 years ago, our lands were flooded to construct the
Garrison Dam and its reservoir. These lands were our prime
bottom lands, home to over 90 percent of our tribal members.
These lands provided us with fertile soil for agriculture.
These lands were where our tribal ancestors lived and
prospered. We were self-sufficient.
In all, we lost 156,000 acres of our best and most fertile
lands. Our tribal families were forced to move up to the dry,
windy highlands of the reservation, which our people had
previously used for grazing of our animals. Now, our people
must live there.
The result was not by our own choosing. Our tribe was
pressured and steam-rolled into signing away our prime bottom
lands in the 1940s. In May of 1948, Tribal Chairman George
Gillette traveled here to Washington, D.C. to sign the final
agreement with the Department of Interior. A photograph of that
event shows Chairman Gillette weeping as Interior Department
officials sign away the tribe's lands to make way for Garrison
Dam's giant reservoir, Lake Sakakawea. Chairman Gillette said,
``Right now, the future does not look too good for us.''
I keep that photograph above my desk as a reminder of why I
and my fellow Council members work so hard to ensure that the
United States Government fulfills its long-delayed promises and
commitments to make our people whole once again.
Chairman Gillette was right. The flooding of our
bottomlands destroyed our prosperous agriculture base and
segregated the reservation to six isolated segments. We have
struggled to be self-sufficient again as our communities became
separate from one another. Driving from one part of the
reservation to another can take three hours or more, making it
very difficult and costly to provide basic governmental
services such as law enforcement, health care, education, and
transportation services.
The payment from the Federal Government to the tribe was
far too little to compensate for the loss of our bottomlands.
Our depth of our people's suffering, and the fragmentation of
our unified tribal government services. Three decades later,
the Federal Government admitted as much. Secretary of the
Interior Donald Hodel signed a charter in 1985 creating the
Garrison Unit Joint Tribal Advisory Committee, or JTAC. The
JTAC's final report of 1986 stated very clearly that our tribe
had been forced to accept a highly inequitable payment for the
flooding of our lands, resulting in catastrophic social and
economic damage. The JTAC report found that the resources we
had lost was valued in the range of $170 million and $343
million.
In addition to further financial restitution, the JTAC
report recommended that the Federal Government undertake
several measures to compensate the tribe for its sustained
losses. These steps included completion of a reservation-wide
drinking water system, construction of two major irrigation
projects, financial assistance for reservation farms,
development of recreational shoreline opportunities on Lake
Sakakawea, preferential rights for Garrison power, and
replacement and refurbishment of critical infrastructure lost
due to the flooding, such as our health care facility, bridge,
school dormitories, tribal roads and housing. These
recommendations were intended to make the tribe whole once
again.
These projects have not been fulfilled in accordance with
the Federal Government's promise. It has been over 50 years
since the flooding of our lands and we have still not been made
whole. Each year, the tribe subsidizes the Government's trust
responsibilities by millions of dollars, to name a few:
$600,000 toward law enforcement; $500,000 to Indian Health
Service; $600,000 to the roads; $1 million toward the housing
program.
The tribe's drinking water system is far from complete. In
fact, 90 percent of our tribal households still have no running
water. Over 300 families truck in water for use in the home,
making life on the reservation expensive and inconvenient.
Other families use well water laden with heavy salts and
minerals. I have seen parents washing their babies in brown
well water that reeks of heavy and unhealthy minerals such as
manganese, coal, iron, and lime.
Our horses and other livestock also drink from the same
brown water. More than 50 years after the flooding of our land,
too many of our family homes do not have access to a safe,
clean water supply.
The Garrison Reformulation Act of 1986 and the Dakota Water
Resources Act of 2000 were meant to speed the completion of our
drinking water system, but annual funding has been too little
to make substantial progress. There are only a handful of
elders left who remember the time before the flooding of our
lands. They deserve to see clean, safe drinking water running
into their homes in their own lifetimes.
Contrary to the Federal Government's promises and the
express terms of the Dakota Water Resources Act, our tribal
members living in New Town and Parshall are paying extremely
high water bills and live under the threat that their water
will be turned off due to the falling water levels in the
Missouri River. Our tribe has prepared detailed water purchase
agreements to share the benefits of the Dakota Water Resources
Act not only with our people, but with all people, Indian and
non-Indian, living on the Fort Berthold Reservation, whether
living in towns or in rural areas.
Although the Dakota Water Resources Act expressly states
that the water project is to provide municipal as well as rural
water benefits, the Bureau of Reclamation has so far not agreed
that appropriations under the Act can be used to help provide
water benefits to residents in New Town and Parshall. We need
this Committee's help to change this unwise and unfair policy.
We also had to bring a lawsuit against the Bureau of
Reclamation to gain recognition that the tribe's successful
financing of a small portion of the water project through low-
interest USDA loans could be repaid with the Dakota Water
Resources Act appropriations. To help us more promptly complete
this vital municipal, rural and industrial water project, I ask
for the Committee's support and Congress's prompt passage of
Senate bill 2200, the Tribal Water Resources Innovative
Financing Act, which was introduced by Senator Conrad and
cosponsored by Senators Johnson and Tester.
Since our lands were first taken from the tribe for the
Pick-Sloan Project over a half century ago, the tribe has also
attempted to recover lands that are in excess of those needed
for the project. The Three Affiliated Tribes and Standing Rock
Sioux Equitable Compensation Act provided for the return of
project lands located at or above elevation 1,860 feet mean sea
level to the tribe and other former landowners, but those
provisions were repealed in 1994. The new law provided that the
U.S. Army Corps of Engineers should proceed with the Secretary
of the Interior to designate excess lands and transfer them.
The Corps has been studying the potential transfer of the lands
since 1994, but to date the tribe has not received any of the
lands.
The tribe seeks the immediate return of these lands that
are at or above the maximum flood pool elevation, and we have
advised the Corps that we will agree to reasonable and
necessary easements for lake access for project purposes. There
is no question that the Corps has the legal authority to
transfer these lands immediately to the tribe under the Fort
Berthold Mineral Restoration Act. The Corps agrees that this
provision provides legal authority for the Corps to transfer
the excess lands to the Secretary of the Interior for the
benefit of the tribe, but we are still waiting for it to be
done.
The tribe and the Corps share a mutual interest in
stewardship over these land along the lakeshore, but in my
view, the tribe has a greater interest and ability to manage
these lands. I firmly believe that the tribe would be a better
steward of the lands than the Corps. We are already managing
the contiguous tribal lands. Return of the lands would assist
the tribe in developing tourism, recreation, and economic
development opportunities. It is long overdue.
I also remind the Committee of the JTAC promise to replace
the hospital that was flooded due to the Pick-Sloan Project. We
have been working diligently with Chairman Dorgan and our North
Dakota congressional delegation to fulfill this promise, but we
still have a ways to go. I ask for the support of this
Committee to finally bring the dream of caring, competent, and
accessible health care to the Fort Berthold Reservation.
Finally, individual tribal landowners did not receive
adequate compensation for their losses caused by the Pick-Sloan
Project. For example, the Federal Government agreed to move
some houses up to dry land before the flood, but many of these
homes were simply moved atop dry bluffs in the middle of
nowhere. These homes were not livable and have long since been
abandoned. Many tribal members had to abandon the reservation
because they could no longer survive in the land of their
ancestors. Fundamental fairness demands that all individual
tribal members who were cast out of their homes receive just
compensation for their losses.
Again, I thank the Committee for the opportunity to speak
and look forward to answering any questions you may have. I
will be submitting my more detailed written testimony shortly.
Thank you.
[The prepared statement of Mr. Wells follows:]
______
The Chairman. Chairman Wells, thank you very much for your
testimony.
Next, we will hear from the Honorable Roger Trudell, the
Chairman of the Santee Sioux Nation in Nebraska.
Chairman Trudell?
STATEMENT OF ROGER TRUDELL, CHAIRMAN, SANTEE SIOUX NATION
Mr. Trudell. Good morning, Chairman Dorgan and members of
the Committee, and our two neighboring Senators, Senator
Johnson and Senator Thune. It is always a pleasure to be
wherever you are at, and Senator Murkowski, Senator Conrad.
I am going to limit mine because I did submit a couple page
testimony, and just briefly say that our lands were taken
through the condemnation process. There was no negotiation
process involved in it at all. The lands that were taken were
probably our richest lands because they were the bottomlands.
Some of the things I tried to point out in what I was
presenting was if you just looked at it as a dollar value for
an acre of land, probably the compensation was just. But if you
don't take into consideration the long-term effects of the dam
and what it has on our community, our reservation, you know, we
are running into repairs that we can't meet because we have no
resources to meet them. Because the dam and the lake are there,
we have a lot of hunters that come in. We are a major flyway
for geese and ducks and bats and mosquitoes and whatever else.
Nobody takes responsibility for the roads. The State has
maintenance on the road into the reservation. They maintain it
to a certain point, but once it ends at the village limits,
then the village of Santee itself, which is 99.9 percent
tribal, and has no tax base, and we have to stand the cost of
repairing roads and other issues related to the hunters and
stuff that are coming in.
Off those hunters, we have no income or anything. I think
the Government are the only people who are able to sell
waterfowl permits because it is Corps land, and the Corps has
an agreement with the State of Nebraska, then they have to have
a State of Nebraska hunting permit, and they don't have to have
a tribal hunting permit. So we are not able to capture any
dollars off of those people to do the repairs that need to be
done on our roads.
And then one of the other things is that we are losing
additional lands because of the Gavins Point Dam and Lewis and
Clark Lake by I call it siltation, and somebody says it is
actually sedimentation, I guess. The sedimentation is creating
the rising water table along other lands through the creeks and
stream beds. Those things I would like maybe to have somehow
considered and the loss of potential income that we would have
had if we still had control and access to the lands of the
river, even down to the hunting rights of our people, because
the State demands a hunting license from our tribal members,
although it was formerly our land and it is basically Federal
land if it was taken for the Corps of Engineers in the dam.
So the rights of our people are also being limited by what
has taken place over the last 50 some years, with the creation
of the Gavins Point Dam and Lewis and Clark Lake.
I am going to end my testimony at this point for the sake
of time. Thank you.
[The prepared statement of Mr. Trudell follows:]
The Chairman. Chairman Trudell, thank you very much for
your testimony. We appreciate your traveling to this hearing.
Next, the Honorable Robert Cournoyer, the Chairman of the
Yankton Sioux Tribe in Marty, South Dakota.
Mr. Chairman, you may proceed.
STATEMENT OF ROBERT W. COURNOYER, CHAIRMAN, YANKTON SIOUX TRIBE
Mr. Cournoyer. Good morning, Mr. Chairman and members of
the Indian Affairs Committee.
I serve as the elected Chairman of the Yankton Sioux Tribe.
Our tribal lands are located in southeastern South Dakota and
the Missouri River borders our southern boundary. On behalf of
the Yankton Sioux Tribal membership, I would like to express my
appreciation to you and the Committee members for inviting me
to testify today and for taking up consideration of the impact
of the Flood Control Act of 1944 on Indian tribes along the
Missouri River.
Our reservation was established by the Treaty of 1858,
which provided our people with 430,405 acres of land along the
Missouri River. As time passed, our reservation was diminished
by the Act of August 15, 1894, which opened up our reservation
to non-Indian settlement. By the 1950s when the Fort Randall
Dam project was constructed, only 44,938 acres of Indian land
remained in Federal trust status.
In 1944, the United States Congress enacted the Flood
Control Act which authorized the construction of five dams
along the Missouri River known as the Pick-Sloan Project. The
primary purpose of the dams and reservoirs was flood control
downstream. Other stated purposes were navigation, hydropower
generation, providing water supplies, and recreation.
The impact of the Pick-Sloan Program was devastating to all
the Missouri River tribes, including the Yankton Sioux Tribe.
The Fort Randall Dam and reservoir inundated a large portion of
the Yankton Sioux Indian Reservation bottomlands and rich
productive agricultural lands. The Fort Randall project flooded
2,851 acres of Indian trust land within the reservation and
required the relocation and resettlement of at least 20
families which was approximately eight percent of the resident
tribal population. Over the past 50 years, the tribe has lost
an additional 408 acres to stream bank erosion.
The Missouri River bottomlands provided a traditional way
of life for the Yankton Sioux, and now it is virtually lost.
The bottomlands provided an abundance of game and plants for
traditional food, plants for ceremonial and medicinal purposes,
and plenty of trees for lumber and fuel. In addition to the
loss of the bottomlands, the tribe lost acres and acres of
productive agricultural land.
Inundation of the community of White Swan. The waters of
the Missouri River completely inundated the traditional and
self-sustaining community of White Swan, one of the tribe's
major settlement areas. The White Swan families raised various
livestock which took shelter in the timbered bottomlands or
outbuildings. The White Swan families sold surplus milk and
eggs in the towns of Lake Andes and Wagner. The money received
was generally used to purchase needed stapes that were not
cultivated from the rich soil in and around the community of
White Swan.
The community was very close-knit and the families helped
each other in many ways. While it was the practice of the
United States to relocate flooded Indian communities flooded by
the Pick-Sloan program to higher ground, the community of White
Swan was never relocated or reestablished elsewhere. The White
Swan families were simply dispersed elsewhere and the community
was never replaced.
Condemnation proceedings. Neither the Flood Control Act of
1944 or any subsequent acts of Congress specifically authorized
the United States Army Corps of Engineers or the Bureau of
Reclamation to condemn Sioux tribal lands for the Pick-Sloan
project. Unfortunately, the condemnation of the Yankton Sioux
tribal lands was not challenged for a host of reasons.
The condemnation proceedings in the U.S. District Court
resulted in settlements that did not provide adequate
compensation to the Yankton Sioux Tribe. The tribe did not
receive compensation for direct damages, but rather a
compensation for the appraised value of their property. The
condemnation proceedings did not take into account the large
proportion of productive agricultural land.
Further, the settlement did not account for the inflation
of property values between the time of the taking and the time
of settlement, which was several years later. The average
settlement payment on other Indian reservations whose land was
taken by the act of Congress was approximately $16,000 per
family according to the research documents, while the Yankton
Sioux Tribe received $5,605 per family as a settlement for the
land taken by the United States.
The Yankton Sioux Development Trust Fund. We recognize your
efforts to compensate the Yankton Sioux Tribe in the 107th
Congress. The Yankton Sioux Tribe Development Trust Fund was
signed into Public Law 107-331 in December, 2002. The language
sets up a trust fund for $23,023,743 in compensation for the
tribal lands lost due to the Flood Control Act of 1944. These
funds are not available until 2013. We would appreciate the
Committee examining the possibility of these funds being made
available prior to 2013.
In conclusion, many of our tribal elders who experienced
first-hand the taking of tribal lands and the removal have
passed on. It has been long enough for a just and equitable
resolution to the devastating impacts of the Pick-Sloan Act on
our tribe.
Thank you for your time in considering this important
matter.
A couple of things I wanted to add, too, is currently we
are in court with the Corps of Engineers on the takings areas
of the White Swan and the North Point. Basically, what had
happened there is that there was some discovery of remains and
they were doing construction, because at the time they were
turning these lands over to the State of South Dakota for
recreational purposes. If it weren't for Title VI, the Wildlife
Habitat Restoration Act, those lands rightfully should have
come to the Yankton Sioux Tribe. Currently, we are asking that
approximately 1,000 acres of that land be restored to the
tribe.
Traditionally before the Corps took over and returned the
land to the State of South Dakota, we had access to the river
above the dam and below the dam in those Corps areas. Now, we
are restricted from having access to those lands. Title VI was
created, because a lot of the white landowners came and
protested to not only the Governor and to their representatives
in Congress, which said that if that land was given back all
along the river, to the Tribes the taking areas, that it would
block the white farmers, landowners, hunters, etc., from having
access to the river. We believe that not to be true, and that
is what they have done to us, in fact, is that by turning the
land over to the State of South Dakota, that it blocked the
Tribe and Tribal membership access to the river above the dam
and below the dam in the Corps areas.
So we are asking currently that approximately 1,000 acres
be restored back to the Tribe the taking areas.
Thank you for your time.
[The prepared statement of Mr. Cournoyer follows:]
Prepared Statement of Robert W. Cournoyer, Chairman, Yankton Sioux
Tribe
Mr. Chairman and Members of the Indian Affairs Committee, my name
is Robert Cournoyer, and I serve as the elected tribal Chairman of the
Yankton Sioux Tribe. Our Tribal lands are located in southeastern South
Dakota and the Missouri River borders our southern boundary. On behalf
of the Yankton Sioux tribal membership, I would like to express my
appreciation to you and the committee Members for inviting me to
testify today and for taking up consideration of the impact of the
Flood Control Act of 1944 on Indian Tribes along the Missouri River.
Background
Our reservation was established by the Treaty of 1858, which
provided our people with 430,405 acres of land along the Missouri
River. As time passed, our reservation was diminished by the Act of
August 15, 1894, which opened up our reservation to non Indian
settlement. By the 1950s, when the Fort Randall dam was constructed,
only 44,938 acres of Indian land remained in federal trust status.
In 1944, the United States Congress enacted the Flood Control Act
which authorized the construction of five dams along the Missouri River
known as the Pick-Sloan Program. The primary purpose of the dams and
reservoirs was flood control downstream. Other stated purposes were
navigation, hydropower generation, providing water supplies, and
recreation.
The impact of the Pick-Sloan program was devastating to all the
Missouri River tribes including the Yankton Sioux Tribe. The Fort
Randall dam and reservoir inundated a large portion of the Yankton
Sioux reservations bottom lands and rich productive agricultural lands.
The Fort Randall project flooded 2,851 acres of Indian trust land
within the Yankton Sioux reservation and required the relocation and
resettlement of at least 20 families which was approximately 8 percent
of the resident tribal population. Over the past fifty years, the tribe
has lost an additional 408 acres to stream bank erosion.
The Missouri River bottom lands provided a traditional way of life
for the Yankton Sioux that is now virtually lost. The bottom lands
provided an abundance of game and plants for traditional food, plants
for ceremonial and medicinal purposes, and plenty of trees for lumber
and fuel. In addition to the loss of the bottom lands, the tribe lost
acres and acres of productive agricultural land.
Inundation of the Community of White Swan
The waters of the Missouri River completely inundated the
traditional and self-sustaining community of White Swan, one of the
tribe's major settlement areas. The White Swan families raised various
livestock which took shelter in the timbered bottom lands or out
buildings. The White Swan families sold surplus milk and eggs in the
towns of Lake Andes or Wagner. The money received was generally used to
purchase needed staples that were not cultivated from the rich soil in
and around the community of White Swan. The community was very close
knit and the families helped each other in many ways.
While it was the practice of the United States to relocate flooded
Indian communities flooded by the Pick-Sloan program to higher ground,
the community of White Swan was not relocated or reestablished
elsewhere. The White Swan families were simply dispersed elsewhere and
the community was never replaced.
Condemnation Proceedings
Neither the Flood Control Act of 1944 nor any subsequent acts of
congress specifically authorized the U.S. Army Corps of Engineers or
the Bureau of Reclamation to condemn Sioux tribal land for Pick-Sloan
projects. Unfortunately, the condemnation of Yankton Sioux tribal land
was not challenged for a host of reasons.
The condemnation proceedings in U.S. District Court resulted in
settlements that did not provide adequate compensation to the Yankton
Sioux Tribe. The tribe did not receive compensation for direct damages
but rather a compensation for the appraised value of their property.
The condemnation proceedings did not take into account the large
proportion of productive agricultural land. Further, the settlement did
not account for the inflation of property values between the time of
taking and the time of settlement which was several years later. The
average settlement payment on other Indian reservations whose land was
taken by acts of Congress was approximately $16,680 per family
according to research documents, while the Yankton Sioux Tribe received
$5,605 per family as a settlement for the land taken by the United
States.
Yankton Sioux Tribe Development Trust Fund
We recognize your effort in compensating the Yankton Sioux Tribe in
the 107th Congress. The Yankton Sioux Tribe Development Trust Fund was
signed into Public Law 107-331 December, 2002. The language sets up a
trust for $23,023,743 in compensation for the Tribal lands lost in the
Flood Control Act of 1944. These funds are not available until 2013. We
would appreciate the Committee examining a possibility of these funds
being made available prior to 2013.
Conclusion
Many of our tribal elders who experienced first hand the taking of
tribal land and the removal have passed on. It has been long enough for
a just and equitable resolution to the devastating impacts of the Pick-
Sloan program on our tribe. Thank you for your time and consideration
to this important matter. We appreciate Chairman Dorgan and the rest of
the Committee's attention to the large scope of the issues affecting
the Pick-Sloan program.
The Chairman. You are asking the Corps of Engineers at this
point, right?
Mr. Cournoyer. Yes, we have a lawsuit with them currently.
The Chairman. Chairman Cournoyer, thank you very much.
Finally, we will hear from Chairman John Yellow Bird
Steele, the President of the Oglala Sioux Tribe in South
Dakota.
Mr. Steele, you may proceed.
STATEMENT OF JOHN YELLOW BIRD STEELE, PRESIDENT, OGLALA SIOUX
TRIBE
Mr. Steele. Thank you very much, Senator Dorgan.
I would like to thank the members of this Committee for
allowing me to testify at this hearing. I would say that my
heart feels very happy to see Senator Johnson there
representing the Oglala Sioux Tribe. And I thank Senator John
Thune for his attendance and representing also the Oglala Sioux
Tribe.
I think that this is a very important hearing, Senators,
and I thank you for holding this hearing. We talk about a
comprehensive bill addressing the impacts of the 1944 Flood
Control Act and the Pick-Sloan program, but I don't think it is
as comprehensive as you call it, because it does not include
the Oglala Sioux Tribe. We have been impacted.
I would like to say that the impact the Oglala Sioux Tribe
feels from the 1944 Flood Control Act and the Pick-Sloan
program, it requires reference to our treaties and the tribal
land claims that we have filed in the Indian Land Claims
Commission. I did not hear the GAO make reference to these.
They only addressed those tribes that are physically situated
along the Missouri River. The Oglala Sioux Tribe is a river
tribe. I make reference and say just because we are adjacent to
the Black Hills physically, that these other tribes are not
Black Hills tribes. Why do we have to be physically located
there to feel the physical impacts of the Pick-Sloan Act?
We are, and I would like to give a little testimony. I gave
written testimony here. I would like to in my oral testimony
explain a little on that. But I will say that just a little
over 100 years ago, the Wounded Knee massacre, the Sand Creek
massacre, the United States Government physically fought our
people. Our mothers, our grandmothers, our daughters were there
fighting the United States Government for a way of life that
was being destroyed.
Today, this life is called third world conditions, the most
impoverished--words, words, words. You physically live the life
in the middle of these United States. And we are talking about
some compensation for taking and not justly compensating
rights. I thank you for that. That is the way we should treat
one another, I do believe.
But we are still wary, Senators. Trusting is very hard when
our lands we consider from our points of view to have been
stolen, not justly compensated for. I am sorry.
I got a telephone call last night from a Mr. Sam Waddell, a
tribal member of the Yankton Sioux Tribe, saying the Army Corps
of Engineers just got orders from up above to quantify the
tribe's rights on the river. Who is the Army Corps of Engineers
to quantify this? And this leaves in my mind some fears, some
apprehensions that this hearing might also lead to some
settlement of water rights. It is a fear because, as I say, of
the way we have been treated in the past, the way we live
today.
But I will say my time is getting very short, Senators, so
I am going to have to wrap it up here, that the 1944 Flood
Control Act has impacted us because the Corps of Engineers
operates the Missouri River main stem and the Bureau of
Reclamation operates the tributaries. This is all associated
with the 1944 Flood Control Act. Right now, the Angostura Dam
on the Cheyenne River tributary immediately upstream from the
Pine Ridge Reservation has devastatingly impacted Pine Ridge.
Representative Herseth Sandlin has introduced H.R. 833 to
establish a trust fund for the Oglala Sioux Tribe and restore
water flow to the Cheyenne River. Senator Johnson will be
introducing that bill on behalf of the Oglala Sioux Tribe. We
thank him for that.
In conclusion, I would like to say, Senators, that Congress
should develop and enact comprehensive reform of the Pick-
Sloan program. The tribes upstream need drinking water. It is
affecting the intakes of the water systems of tribes. The
stabilization of reservoir levels, and protection of historic
properties are very important to us.
I would also like to say that anything dealing with any
settlement of water rights requires that we settle our
outstanding land claims with the United States Government. So
let's sit down, Senators, and let's talk about these in a fair,
just way. Let us again, if need be, like the old treaties were
established, talk about these what we might consider to be hard
subjects and come to some sort of a settlement or agreement.
Today, us people sitting here testifying before you are the
same people that were shedding their blood just a little over
100 years ago. This is a different kind of a war, but we are
tomorrow's ancestors and we have a responsibility to see that
our peoples are able to live a little better than we are right
now in our dealing with yourselves.
I would like to thank you for this hearing. I really
appreciate it, and I thank you for allowing me at the last
minute to give testimony. I think that this hearing is very
timely, and I look forward to working with this Committee on
just a little bit of what I have said. I had to put this
testimony together very quickly just from yesterday, and so we
will refine it and resubmit it to you, Senators.
Thank you very much.
[The prepared statement of Mr. Steele follows:]
Prepared Statement of John Yellow Bird Steele, President, Oglala Sioux
Tribe
Mr. Chairman and members of the Committee on Indian Affairs, my
name is John Yellow Bird Steele. I serve as President of the Oglala
Sioux Tribe.
Let me begin by thanking you for holding this important hearing.
The Missouri River Basin Pick-Sloan Program has had significant adverse
impacts on land, water and cultural resources of the Oglala Sioux Tribe
and Great Sioux Nation. The costs of the Pick-Sloan program have
disproportionately fallen on the Tribes, while the benefits are enjoyed
in predominantly non-Indian communities, with little spillover benefits
on the Indian Reservations.
The impact of the 1944 Flood Control Act and Pick-Sloan program on
our Tribe requires reference to our treaties, and the tribal land
claims filed in the Indian Claims Commission. Our reserved water rights
to the Missouri River and its tributaries, and to the cultural
resources along the banks of the Missouri River, have their source in
our Treaties.
Tribal Treaties
The Oglala Sioux and other Tribes of the upper Missouri River basin
are treaty Tribes. As such, we are entitled to special consideration
with respect to the impacts of federal public works projects, on our
land and resources.
The 1868 Ft. Laramie Treaty (11 Stat. 749) recognized title to the
Teton and Yankton Sioux to 60 million acres of territory west of the
Missouri River in the States of South Dakota and North Dakota.
The 1868 Treaty (15 Stat. 635) carved a 26 million acre reservation
out of our 1851 Treaty territory for the Sioux bands. This reservation,
called the ``Great Sioux Reservation'' included all of western South
Dakota west of the low water mark of the east bank of the Missouri
River. Thus, the 1868 Treaty recognized an undivided ownership interest
in the entire bed of the Missouri River in the Oglala Sioux Tribe from
the North Dakota boarder to the Nebraska border.
The United States maintains that it acquired the western portion of
the Great Sioux Reservation known as the ``Black Hills'' under the Act
of February 28, 1877 (19 Stat. 254) even though its confiscation of
this area violated Article 12 of the 1868 Treaty which provided that no
part of the reservation could be ceded to the United States without
three-fourths consent of the adult male Sioux Indians occupying or
interested in the Great Sioux Reservation.
The United States also maintains that it acquired an additional 9
million acres of the Great Sioux Reservation under the Act of March 2,
1889 (25 Stat. 888). The Act also established five smaller Sioux
reservations from the remainder of the Great Sioux Reservation
including the Pine Ridge Indian Reservation.
Thus, the Pine Ridge Indian Reservation is the current home of the
Oglala Sioux Tribe, although the Tribe has claimed unextinguished
rights to our treaty lands including the Missouri River.
Indian Claims Commssion
I believe that a discussion of the Indian Claims Commission Act
proceedings is also necessary because I don't believe the Oglala Sioux
Tribe can quantify its water rights in the Missouri River without first
settling its outstanding land claims with the United States.
The Oglala Sioux Tribe filed a land claim in the Indian Claims
Commission in 1950. This case was designed as ``Docket 74.'' The case
was divided into two cases in 1960, Docket 74-A and 74-B. Docket 74-A
involves a claim for 34 million acres of 1851 treaty land located
outside of the Great Sioux Reservation. It also involved an aboriginal
title claim that included the east bank of the Missouri River in South
Dakota from Pierre, S.D. northward into North Dakota.
There were two acts of fraud perpetuated by the Government upon the
Sioux tribes regarding Docket 74-A lands. The first Act was when some
federal official inserted ``relinquishment language'' in Article 2 of
the 1868 Treaty. The ICC acknowledged that the Sioux bands would not
have signed the 1868 Treaty, which ended the Powder River War of 1866-
1867, had they known they were giving up any land. Nevertheless, the
ICC ruled that Article 2 constituted a voluntary cession of 1851 treaty
territory.
The second was when the U.S. Claims Court rammed a $44 million
final money judgment down the Sioux tribes' throats in Docket 74-A
based on a stipulated settlement agreement that the claims lawyers
signed behind the backs of the Sioux tribes. The claims attorneys also
stipulated away $3.7 million as an offset to the U.S. without the
consent of the Sioux tribes.
The Oglala Sioux Tribe filed a motion for relief from judgment,
which was denied by the Claims Court. The U.S. Court of Appeals for the
Federal Circuit affirmed, but Judge Newman wrote the following in her
dissenting opinion which exposes the collusion between the tribes'
claims attorneys, government attorneys and the federal courts:
The entry of judgment is surely not a routine ``evidentiary
stipulation'' such as is encountered in day to day trial
management: not only because the stipulation disposes of some
3.7 million dollars in moneys previously adjudged to be due the
Sioux Indians; but because counsel for both sides knew that
since at least 1979 tribes representing the majority of Sioux
Indians had given instructions contrary to the settlement. The
record contains two resolutions of the Oglala Sioux Tribal
Council informing counsel that it no longer sought money
damages, but wanted to pursue legal and legislative strategies
to gain return of ancestral lands. These resolutions also
directed counsel to have the Oglala Sioux Tribe dismissed from
this litigation.
A lawyer cannot be authorized by a court to make a settlement
and bind the client contrary to the client's wishes. Nor can
either the court or the United States ignore the tribes'
several attempts to discontinue Mr. Lazarus' representation.
The court does not discuss the asserted violation of 25 U.S.C.
81.
In light of this extended history, the Claims Court's
acceptance of the Stipulation of Facts and the grant of the
Joint Motion to Enter Judgment is incongruous; and its denial
of appellants' motion for relief (from judgment) under Rule
60(b) is in plain error, in light of the undisputed assertion
that they were given no prior notice of the settlement.
[Emphasis Supplied].
See Oglala Sioux Tribe and Rosebud Sioux Tribe v. United
States, 862 F.2d 275 (Fed. Cir. 1988).
We can never accept the award for Docket 74-A under these
circumstances, for to do so would be tantamount to closing our eyes and
affirming these two acts of fraud perpetuated upon our Tribe by the
Federal Government. And I don't see how we can quantify our water
rights to the Missouri River without reaching an agreement with
Congress to resolve our Docket 74-A land claim.
Docket 74-B was a claim for the Black Hills Claim. The ICC awarded
$17.1 million, plus $85 million in simple interest, for the 7.3 million
acres of Black Hills lands that was confiscated by the United States in
the Act of February 28, 1877 (19 Stat. 254).
On appeal, the Court of Claims dismissed the ICC award on the basis
that it had already ruled on the Black Hills Claim in a 1942 case. The
Teton Sioux Tribes (except for the Oglala Sioux Tribe) and other 1868
Treaty signatory tribes got Congress to pass a new Court of Claims
special jurisdictional act in 1978 that allowed for de novo
consideration of the claim. The claim was refiled under the Act as
Docket 148-78, and the Court of Claims which affirmed the ICC award in
1979 based on the record made in the ICC.
The Supreme Court affirmed the ICC award on June 30, 1980 on the
basis that the confiscation of the Black Hills violated the Just
Compensation Clause of the U.S. Constitution.
However, the Oglala Sioux Tribe did not renew its contract with its
claims attorney Arthur Lazarus, Jr. when it expired by its own terms in
1975. It also never authorized its former claims attorney to refile the
claim under the 1978 act and did not regard itself as a party to the
1979 Court of Claims decision and the U.S. Supreme Court decision. It
therefore filed a quiet title and trespass damages action in U.S.
District Court for the District of South Dakota in 1980, after the
Supreme Court made its ruling.
The U.S. Court of Appeals for the Eighth Circuit, however, ruled
that the tribe could not sue in the Article III courts of the United
States because the Indian Claims Commission, which could only award
money damages for the tribe's treaty lands, was the tribe's exclusive
remedy and that the tribe was a party to the 1980 Supreme Court case.
Docket 74-B, like Docket 74-A, needs to be settled in a fair and
honorable manner by negotiation and the implementation of any
negotiated settlement through Congressional legislation
The 1944 Flood Control Act
The U.S. Army Corps of Engineers was placed in charge of
constructing six dams on the main stem of the Missouri River under the
Missouri River Pick-Sloan Program that was authorized by the 1944 Flood
Control Act (58 Stat. 887). The Corps acquired approximately two
million acres for the dams, and areas flooded by the lakes created by
the dams. Three lakes, Lake Oahe, Lake Sharpe, Lake Francis Case are
located within our treaty territory.
It is common knowledge that a substantial amount of land taken by
the Federal Government for the main stem dams was located on Indian
reservations that bordered the Missouri River.
The Oglala Sioux Tribe was impacted by the 1944 Flood Control Act
because it has unextinguished rights to the river bed of the Missouri
River, and to treaty lands located in its 1851 and 1868 Treaty areas,
as well as the aboriginal title lands located east of the Missouri
River that were taken by the Government for the main stem dams and
reservoirs under the Missouri River Pick-Sloan Program. It also has
cultural resources along the Missouri River that were impacted by the
Act. The Corps never acquired the Oglala Sioux Tribe's interests in
these properties when it attempted to extinguish Indian title for the
dams and reservoirs.
The White River and Cheyenne River Pick-Sloan Projects
The Flood Control Act authorized two dams on the Pine Ridge
Reservation at Slim Buttes and Rockyford for irrigation, recreation and
flood control. The projects were never constructed, however. This
failure has resulted in the Tribe not being able to develop its
irrigation potential that would have created economic opportunities for
the tribe and its members.
The Oglala Sioux Rural Water Supply System
The western portion of the Pine Ridge Reservation in White Clay
District (now Oglala District) was suffering from lack of good potable
water in the 1980s. The Tribe took the initiative to join the West
River and Lyman Jones rural water projects in developing and getting
Congress to pass the Mni Wiconi Act (P.L. 100-516) in 1988. The Act
authorized the construction of a Core pipeline and related facilities
from the Missouri River at Ft. Pierre to the Pine Ridge Indian
Reservation, as well as a reservation delivery system. The Core
pipeline is 95 percent completed and the reservation delivery system is
40 percent completed. The core pipeline and reservation delivery system
is held in trust by the United States for the Oglala Sioux Tribe.
There are now three inter-connecters to the OSRWSS, the West River/
Lyman Jones Rural Water System, the Lower Brule Rural Water System, and
the Rosebud Rural Water System.
This OSRWSS is a good project that allows the Tribe to reap some of
the benefits that it has been denied over the years from its lands
along the Missouri River, and from the Missouri River itself. It also
allows us to improve the health and general welfare of our tribal
members and plan for future water shortages that may be caused by
global warming.
We want to thank Congress for the annual appropriations that has
allowed the OSRWSS and other systems to be constructed, and we look
forward to the day when the Mni Wiconi Project is completed.
Missouri River Land Transfer Issues Under WRDA
The Oglala Sioux Tribe presently has a civil action pending in the
United States District Court for the District of Columbia challenging
the transfer of title to Corps' lands and recreational areas along the
Missouri River to the State of South Dakota under Title VI of the Water
Resources Development Act of 1999, as amended by Title VI of the Water
Resources Development Act of 2000. See Oglala Sioux Tribe v. U.S. Army
Corps of Engineers, et al. (Case No.1:01CV02679 (GK)). This case is a
reservation boundary dispute that seeks to uphold the 1868 Treaty and
protect historic properties and cultural resources on the lands and
recreational areas.
There is a Need for Comprehensive Reform of the Pick-Sloan Program
Comprehensive reform is needed to ensure that the Indian Tribes
share more equitably in the water supply and hydropower benefits of the
Pick-Sloan program. Reforms should address at least four areas. First,
the water management by the Corps of Engineers on the Missouri River
main stem, and the Bureau of Reclamation on the tributaries to the
Missouri, must be revised to ensure adequate water supplies for the
Tribes. Second, reforms should include the authorization to use
hydropower revenue generated by the Pick-Sloan program, to fund
development projects on Indian Reservations in the Missouri River
basin. Third, Congress should address the claims of individual Indian
Tribes that are directly impacted by a dam project under the Pick-Sloan
program. Fourth, the historic preservation laws need to be strengthened
to ensure that cultural resources along the Missouri River are
protected from erosion and destruction.
1. The Water Management by the Corps of Engineers and Bureau of
Reclamation Must be Revised
The Corps of Engineers operates the dams on the Missouri River
pursuant to the Missouri River Master Water Control Manual. The Master
Manual, as revised by the Corps of Engineers in 2004, provides for
steady seasonal flows from Gavins Point Dam for downstream navigation.
Daily releases are significant, with 35,000 cfs designated as full
navigation service for an eight month navigation season. In addition,
the Corps of Engineers designates water releases for the spring rise
for habitat restoration, and for hydropower generation, at the various
times of the year.
In its Missouri River operations, the Corps of Engineers gives no
consideration to Tribal water supply needs. This is the case even
though the Oglala Sioux Tribes operates the water treatment and intake
facilities on the Missouri River for the Mni Wiconi Project, which
serves the West River Lyman Jones Water District, Lower Brule Sioux,
Rosebud Sioux and Oglala Sioux Tribes. The Indian Reservations along
the Missouri River, such as the Standing Rock Sioux and Cheyenne River
Sioux Tribes, have suffered diminished drinking water supplies. The
reservoir levels in the upper Missouri basin diminished substantially,
as a result of the continuing navigation flows, during the current
period of severe drought.
The Corps of Engineers violates our Treaties and our rights under
the Winters Doctrine, by managing water flows in a manner that causes
diminished water supplies in the upper Missouri River basin. The water
releases for downstream navigation and habitat restoration directly
impact the water supplies that are needed by the Oglala Sioux and our
fellow Indian Tribes on the upper Missouri River.
Yet the Corps of Engineers manages the Missouri River water flows
in a manner that allocates water flows for non-Indian uses in the lower
Missouri River. The Master Manual must be revised, to decrease
navigation flows and stabilize water supplies on the upper Missouri
River, to fulfill the rights of the Tribes.
The water supplies and rights of our Tribe should not be
jeopardized by the regional disputes between the upper and lower
Missouri basin. The Congress should take action requiring the Corps to
maintain stable reservoir levels on the upper Missouri River, for
Tribal consumptive and instream water needs.
The Bureau of Reclamation operates the tributary dams for
irrigation and recreation. One such project, the USBR Angostura Unit,
impounds water flows of the Cheyenne River immediately upstream from
the Pine Ridge Reservation. The USBR completely blocks off Cheyenne
River water flows, in order to provide water service of 48,000 acre-
feet per year for irrigation of 12,218 acres at the Angostura
Irrigation District.
The Bureau of Reclamation released the Final Environmental Impact
Statement, Angostura Unit, Contract Negotiation and Water Management,
in August, 2002. Reclamation confirmed the incidence of fish with
lesions and problems with water quality and riparian vegetation on the
Pine Ridge Reservation, downstream from Angostura.
The water management by the Bureau of Reclamation of the Cheyenne
River at Angostura provides for the diversion of waters subject to the
water claims of the Oglala Sioux Tribe for the Angostura Irrigation
District. Water flows have diminished and the environment on the Pine
Ridge Reservation has been degraded as a direct result of the USBR
water management.
As is described below, Representative Herseth-Sandlin has
introduced H.R. 883, to establish a trust fund for the Oglala Sioux
Tribe and restores certain water flows in Cheyenne River. This
legislation addresses the problems caused by water management by the
Bureau of Reclamation on the Cheyenne River.
2. The Congress Should Authorize the Use of Pick-Sloan Hydropower
Revenues for Development Projects on Indian Lands
The comprehensive reform of the Pick-Sloan program should include
the authorization for the use of hydropower generated by the Pick-Sloan
program, to fund development projects on Indian Reservations in the
Missouri River basin. Hydroelectric revenues of the Western Area Power
Administration are collected for debt service of the multi-purpose
functions of the Pick-Sloan program. The re-designation of these funds
for Tribal development projects would constitute a cost effective
manner of addressing the historic inequities of the Pick-Sloan program.
The waters of the Missouri River produce a hydroelectricity system
estimated by the Corps of Engineers as contributing approximately $800
million to the national economy each year. The economy on the Pine
Ridge and other Indian reservations in the upper Missouri River Basin
remain generally impoverished, however.
The population of the Pine Ridge Reservation is approximately
47,000, making the Oglala Sioux one of the largest Tribes in the United
States. (Bureau of Indian Affairs, Indian Labor Force Report, 2003).
The 2003 unemployment rate was estimated by the Bureau of Indian
Affairs at 87 percent. Id. The 2000 Census indicates that per capita
income in Shannon County, the Reservation's largest county, was $6,286.
This compares with the per capita income nationwide of $21,587. Median
household income on the Reservation in 2001 was $20,916, less than one-
half the national average of $41,994.
The revenue produced by the sale of the hydroelectricity in the
Pick-Sloan program should be authorized for the use by the Tribes of
development on our Reservations. This will address the historical
inequities of in the allocation of the costs and benefits of the Pick-
Sloan program, and address the far-reaching infrastructure and economic
development needs of the Indian Tribes in the upper Missouri River
basin.
3. There Must Be Redress for Indian Tribes Under Pick-Sloan
Throughout the upper Missouri River basin, individual components of
the Pick-Sloan program have adversely affected the lands, waters and
economic resources of Indian Tribes. Many Tribes retain claims that
have not been addressed, for the taking of land, relocation of
communities, destruction of infrastructure, diminished water supplies,
and degraded environment, from the construction and on-going operation
of the Pick-Sloan program.
For example, the Oglala Sioux Tribe has suffered from diminished
water flows, riparian vegetation, wildlife and degraded water quality,
due to the impoundment of water and irrigation at the USBR Angostura
Unit. The Bureau of Reclamation impounds 133,000 acre-feet of water at
Angostura Reservoir, completely disrupting natural water flows in the
Cheyenne River on the Pine Ridge Reservation.
The harm suffered by the Tribe is documented in the Final
Environmental Impact Statement, Angostura Unit, Contract Negotiation
and Water Management. Accordingly, Rep. Herseth-Sandlin has introduced
H.R. 883. This legislation establishes a trust fund for the Oglala
Sioux Tribe in the amount of $90.5 million, and restores water flows in
Cheyenne River through efficiency improvements at the Angostura
Irrigation District. It will provide resources for the Tribe to address
the environmental impacts of the Angostura Unit, and for much needed
economic development on the Pine ridge Reservation.
This legislation is long overdue. The Congress should enact H.R.
883, and should address the claims of all Tribes which suffered adverse
impacts from the Pick-Sloan program.
4. Enhanced Protection for Cultural Resources is Needed
No agency of the Federal Government has destroyed more cultural
resources or desecrated more Native American human remains than the
Army Corps of Engineers, in its Missouri River operations. Yet in its
operations of the Missouri River dams, the Corps of Engineers has
failed to implement a mitigation or other compliance plan as required
under the National Historic Preservation Act. (16 U.S.C. Sec. 470a et
seq.)
The National Historic Preservation Act requires the Corps of
Engineers to evaluate the impact of its ``undertakings'' on historic
properties along the Missouri River. (NHPA Sec. 106, 16 U.S.C.
Sec. 470f). The federal courts have determined that wave action caused
by water releases at the Missouri River dams are ``undertakings''
requiring compliance with the NHPA. (Yankton Sioux Tribe v. Army Corps
of Engineers, 83 F. Supp. 2d 1047 (D.S.D. 2000)).
A Corps of Engineers Programmatic Agreement with the Advisory
Council on Historic Preservation, outlining the agreed-upon procedures
for compliance with section 106 of the NHPA, when wave action of the
Missouri River impacts cultural sites at the water's edge. However, on
July 17, 2000, the Advisory Council terminated the agreement, informing
the Corps:
The Omaha District's handling of this matter evidences a
serious lack of understanding of Federal historic preservation
laws and regulations, a lack of commitment to fulfill historic
preservation legal responsibilities, and an unwillingness to
seek and consider the views and recommendations of State
officials, tribal governments, and the Council . . ..
The PA was intended to allow the Corps greater flexibility in
how it met its obligations under Section 106 while fostering
better long-term planning for and stewardship of historic
properties . . . (T)he Omaha District has disregarded
commitments it made in the PA and the resulting (negative)
consequences it has had for irreplaceable resources under its
care. The Council is forced to conclude that the Corps is
unable, or unwilling to carry out the terms of the PA.
(Letter of Carolyn Buford Slater, Chairperson, Advisory Council
on Historic Preservation, to Secretary of the Army, dated July
17, 2000).
The Corps of Engineers has failed in its responsibility of
stewardship for sacred Native American cultural resources along the
Missouri River. The Corps disregarded its commitments under the
Programmatic Agreement, which was consequently terminated by the
Advisory Council. The Missouri River Master Manual contains no
provisions for the protection of the identified cultural sites in the
future, or mitigation of damage that is caused by wave action.
Native American human remains are entitled to special protection
under the Native American Graves Protection and Repatriation Act.
(NAGPRA) (25 U.S.C. Sec. 3001 et seq.). Yet the Corps has completely
disregarded its obligation to avoid disturbance of existing grave
sites, and to properly repatriate human remains upon inadvertent
unearthings due to wave action of the Missouri River.
These legal requirements are extremely important to our Tribe.
Under NAGPRA, Indian Tribes enjoy presumptive rights of ownership and
repatriation of human remains and cultural objects that are unearthed
within its aboriginal territory, as adjudicated by the Indian Claims
Commission. (25 U.S.C. Sec. 3002). As stated above, the Oglala Sioux
Tribe retains treaty and aboriginal claims throughout an extensive
area, including the bed of the Missouri River and the lands adjacent to
the Missouri. Consequently, our Tribe enjoys rights of ownership and
repatriation under NAGPRA on lands along the Missouri River.
The wave action caused by COE water releases for hydropower
generation and downstream navigation causes erosion, as well as the
destruction of cultural resources of Lakota and Arikira origin along
the Missouri River. This violates the NHPA and NAGPRA. Yet the Corps of
Engineers continues these actions, and is now finalizing long-term
plans which fail to address them.
The failure of the Corps of Engineers to comply with the National
Historic Preservation Act and Native American Graves Protection and
Repatriation Act directly and adversely impacts cultural resources and
human remains of Lakota origin along the Missouri River. The current
Programmatic Agreement of the Corps of Engineers provides no plan to
put an end to this destruction caused by wave action from COE water
releases for navigation.
Conclusion
In conclusion, no quantification of water rights should occur until
all tribal land claims are resolved. Moreover, the Congress should
develop and enact comprehensive reform of the Pick-Sloan program. The
stabilization of reservoir levels and enhanced protection of historic
properties must be an important part of the reforms. The need to
respect the rights of the Oglala Sioux and other Indian Tribes is
intensified by the climate change we are experiencing, which further
stresses the water resources of the Missouri River basin.
This hearing is thus very timely. I look forward to working with
the Committee on Indian Affairs to develop comprehensive reform of the
Missouri River Pick-Sloan program, to respect and implement the Treaty
rights of the Oglala Sioux Tribe.
The Chairman. Mr. Chairman, thank you very much. We
appreciate your being here. You have presented to this
Committee previously, and we appreciate your advice.
Let me call on the Vice Chair, Senator Murkowski.
Senator Murkowski. Mr. Chairman, I don't have any questions
this morning, but I do want to thank all those that have
traveled from your communities to represent your constituents
to testify before this Committee on an issue that is clearly of
great import to you all.
Again, I thank you.
The Chairman. Thank you very much.
Because I was detained, I had to leave briefly, I will ask
the others to ask questions, and I will ask questions at the
end. I do want to just say this, however, before calling next
on Senator Johnson. The issue of compensation is one that we
need to study with respect to the entire Pick-Sloan plan and
the reservations that were injured as a result. I have gathered
together the information about compensation. We have had
several different areas of compensation, some in 1947, some in
1958, some in 1962, some in 1992, using different approaches.
The fact is, I called this hearing because we continually
hear tribes ask questions about why they have not been
adequately compensated. They want to present information to
point out the difficulties they now face and the lack of
compensation. I would prefer that we address this not in five
different areas, but that we address this with respect to the
Pick-Sloan plan and all of those who have been disadvantaged.
Let us evaluate the compensation up and down the river on that
plan in a way that makes sense to all of us.
So that is why we held the hearing of this type, because we
can't ignore this, nor should we give priority depending on who
has the loudest voice and says, I demand these issues be
addressed.
All of you have described conditions that really demand the
issues be addressed. Ron His Horse Is Thunder, the Chairman of
the Standing Rock Sioux Tribe, in his testimony describes
something that many of us have seen down there: water
conditions, the inadequate water supply, inadequate device in
that reservoir in the river, and what is now I guess, a stream,
that provides water for the tribe. This is a tribe that has
experienced having no water for a lengthy period of time,
running out of water, and having no water come out of that
reservoir.
So we understand that water is necessary for a decent life
and we understand what it means in Standing Rock to lose your
access to potable water. It is devastating. So there are a lot
of issues that all of you face, and I appreciate your
testimony.
I will ask questions at the end, but let me call on my
colleagues as a matter of courtesy.
Senator Johnson?
Senator Johnson. Mr. Jandreau, how many times has this
reform legislation passed the Committee?
Mr. Jandreau. Our particular bill passed the Committee
three times and went to the Floor of the Senate, but it has
never become law.
Senator Johnson. Are you ready and willing to proceed with
this legislation at this time?
Mr. Jandreau. Yes.
Senator Johnson. Are you reluctant to have compensation
held up at this time?
Mr. Jandreau. Yes, I am.
Senator Johnson. Mr. Chairman, the Crow Creek and Lower
Brule Tribe are ready and willing to go. They have proceeded to
present legislation at this time and it is unfair to hold them
up having been passed out of the Committee three times.
Mr. His Horse is Thunder, what would you do if you were to
have the range of compensation? How would it be prioritized?
Mr. His Horse Is Thunder. Thank you, Senator, for the
question. I have been asked by a lot of the elders who--let me
put it this way. Standing Rock has received one compensation
package for $90.6 million. It was for the tribe's economic loss
and the money is to be spent for development of the economy on
the reservation.
The element that is missing that I am asked by my
relatives, my elders to bring today is this. It is that some of
the compensation be used to make whole those people who
originally lost land. Over half the land that was taken on our
reservation was lost by individuals themselves.
Senator Johnson. Are there diminishing numbers of those
people?
Mr. His Horse Is Thunder. Absolutely, Senator. Today, I
know of 18 who are currently alive. This past year, we lost
three of the people who were original landowners at the time of
the taking. So the numbers are very much diminishing.
Senator Johnson. Mr. Wells, how would you use the money?
Mr. Wells. Senator, what we have been doing, what we have
done so far as been to use the interest, which is approximately
$6 million a year. It has been directed toward Federal
programs, contracts and grants as shortfalls as the contracts
go from Bureau of Indian Affairs, Indian Health Service, BOR.
The next priority would be projects, infrastructure, water,
sewer, building--anything that needed to be upgraded from the
time of the flood. And then what is remaining is just enough to
help the elders organization, the Boys and Girls Club.
So out of the $6 million, it comes back down to basically
just meeting the Federal shortfalls for projects and programs
and contracts and infrastructure.
Senator Johnson. Mixed up with the money that the tribes
are owed originally.
Mr. Wells. Well, $350 million would have been probably the
better number to get us whole. But what happened is it just
basically made up the shortfall of the Federal trust
responsibility, Senator.
Senator Johnson. Mr. Trudell, how would you use the money?
Mr. Trudell. Senator Johnson, thank you for the question.
We would probably, you know, because we receive no income off
the income that goes into the river from waterfowl sales or
hunting licenses to the States, and there is no development. On
our front, the development is all east of us.
So we would probably look at, although we have to stand the
repairs of all these things that take place, we would probably
have to use additional income to repair our main thoroughfare
through the community where the heavy traffic is, and then we
would have to probably look at replacing individual wells which
run anywhere from $5,000 to $8,000 because of the sedimentation
problem that is creating a rising water table on our other
lands.
Most of the wells are shallow wells at the present time,
and so we will have to go to a much deeper well to get to pure
water, non-tainted water. So those average anywhere from over
$5,000 to $10,000, I think they told me the other day, but
probably on the average about $8,000 a well.
We are in the process of trying to develop a reservation-
wide water system which was partially funded by Congress, but
underfunded, so that study hasn't been completed yet. That is
in the hands of the Bureau of Reclamation. So water development
is going to be one of our primary. And then I don't know how we
would ever look at compensation for lands that are currently
being lost because of the sedimentation problem.
Thank you.
Senator Johnson. Mr. Cournoyer, how would you use the
money?
Mr. Cournoyer. I think our plan is like some of the other
Chairmen stated, and Presidents, is that we would upgrade our
infrastructure, our community water systems, roads, because we
all know that the Federal Government that whatever they don't
fulfill, we have to try to put whatever resources we have
towards assisting Federal programs.
And not only that, too, what I would look at and strongly
recommend is that we put some of that money towards education,
finishing, completing our school, but not only that, enhance
our community college and look at providing a little money for
scholarships so that people can go to school and get that
education, because once you get an education, you get that
degree, you are creating economic self-sufficiency, or you are
sustaining something that they can do all kinds of things to
you, once you get that degree, they can't take that away from
you. So you are creating your own economic stability.
But not only that, too, looking at industry, bringing jobs
into the reservation because nobody is knocking at most of our
reservation doors and saying, I have X amount of jobs, so I
think we have to create economic development for ourselves, and
if we can do that, I think that we can go out and do anything.
Senator Johnson. President Steele, welcome to the
Committee. You had the unique position, and recognized that you
have the Angostura Project, which is a Pick-Sloan project.
Apart from that, you have a legitimate claim to being a river
tribe. How would you use the money as compensation for the
project? How would use the money?
Mr. Steele. Like the other tribal Presidents, Senator, I
would have to address the basic infrastructure that the Federal
Government--I call it inherent Federal neglect, whereby every
Federal department had nothing to do with this very large land
base in the middle of the United States. They said that was
Bureau of Indian Affairs and Indian Health Service
responsibility through most of the 1900s.
They stuck monies in technical assistance into the
surrounding municipalities and counties and built their
infrastructure. Well-intended Bureau of Indian Affairs people
patterned the roads on a very large land base, Pine Ridge,
directing that dollar directly off-reservation as soon as it
hits it.
I need to re-pattern and rebuild those roads. He told me,
your people need to go shop. You need north-south roads, very
well intended. But I can't turn that God darn dollar over even
once because of the very patterning of the roads, basic
economics 101. How is development to happen on Pine Ridge?
I, like the rest of these Chairmen, have to address the
basic infrastructure, the tangible and the intangible. We just
adopted the Uniform Commercial Code and set up the filing
system with the State of South Dakota.
But I have unfunded mandates by the Federal Government on
solid waste. With a large land base, the disposal according to
EPA standards, the operational costs are outstanding, Senator.
It is difficult.
Thank you.
The Chairman. Thank you very much.
Senator Thune?
Senator Thune. Thank you, Mr. Chairman.
I do appreciate the testimony. I know it was a very
insightful hearing from each of our tribal leaders about the
challenges that they face day to day, providing a better life
for the people that they serve there, and what some of these
past projects and Federal actions have done to impair their
ability to do that. So I appreciate very much all of you being
here today and sharing your testimony.
I would echo what my colleague from South Dakota, Senator
Johnson, said, Mr. Chairman, in that I share your view that
there is value in seeing these things in a context that allows
for a comprehensive type approach to it. But absent that
happening, we do have Senate bill 160, which has cleared this
Committee and the Senate previously. There were issues that
were raised at the hearing we had in the last session on this
that have been tightened up in the legislation, and it is
queued up and ready to go. So I hope we can figure out a way in
the context of a broader bill, or if not, some way to bust that
legislation loose.
I would like to ask a question of Chairman Jandreau with
regard to that. There have been some comments and concerns, as
I said previously, in the past at a hearing we had on this
about there being no end in sight for Pick-Sloan Project
compensation. In this particular bill, the Lower Brule and Crow
Creek Tribe Compensation Act, if it was passed, the bill makes
clear now that these payments would be treated as full and
final compensation.
I guess I would like to get your reaction and thoughts
about the tribe's view of the finality of this particular bill.
Mr. Jandreau. That is a very correct statement, Senator.
After the last hearing and the reaction of some of the
Senators' concerns, we went home and we did talk to our
respective tribal councils. We did receive from them the
authority to state that this would be final compensation on the
Missouri River claim.
We were also asked how this would affect pay-go. You know,
currently our land and our water rights still continue to
provide $1.2 billion a year to the Federal Government. While it
probably cannot be looked at exactly as a place to extract pay-
go, we feel that in our unique circumstance that it is the
appropriate place to extract that.
So we have agreed to, regardless of whether the settlement
for the other tribes is higher or not, that we have agreed that
what we have asked for in S. 160 will be our final request for
Crow Creek and Lower Brule.
Thank you.
Senator Thune. Thank you.
All of the compensation plans that are currently being
considered involve the creation of or the payment to a trust
fund. I guess I would just open this to whoever would like to
comment on it. It kind of ties back to the question that
Senator Johnson asked earlier, but could you sort of explain to
the Committee what sort of projects and economic development
the tribes might use these trust funds that would be created
for?
Mr. Trudell?
Mr. Trudell. Yes, sir.
Thank you, Senator.
I call it money that is not money, because it is just a
pencil entry and interest, and it is not available to us until
I think 2013, so we can't do anything with it right now. That
is one of the primary problems is we have ongoing damage taking
place all the time with no way to repair that damage. Without
earlier access to those funds, then our streets and stuff and
other things are continue to deteriorate.
We have to take a plan before the people. We had to have
hearings before our tribal membership on the development of a
plan, and we did that. We submitted that plan for approval by
the Department of Interior. The Bureau of Indian Affairs had to
approve that plan, which I don't understand. And then at a
later point, we decided to leave our money that is not money
with the Treasury because they are probably going to be around
longer than the Bureau of Indian Affairs, but we still need to
have access to that interest at an earlier date to take care of
some of the needs that we currently have.
Thank you.
Mr. His Horse Is Thunder. Mr. Senator, could I respond to
that just real briefly?
The Standing Rock Sioux Tribe and its $90.6 million
receives about $4 million a year of thereabouts, depending on
how the interest rate fluctuates, but of the $4 million a year
that we currently receive, we provide about $500,000 a year in
scholarships for our students to go on to college.
We also use at least a good chunk of that $500,000 or
thereabouts per year to purchase land that either tribal
members or non-Indians within our reservation boundaries have
for sale. As we know, the fractionalization of tribal lands is
a huge problem. We have set money aside to buy land back from
either tribal members, again, or non-Indians, trying to do away
with checkerboarding on the reservation.
We have also put a huge chunk of change into road
development. We have taken actually a loan out by a bank and
used our JTAC money as collateral and pay back through JTAC for
about $28 million to develop our roads on the reservation. We
probably have now some of the better roads of most of the
reservations in North and South Dakota because we have done
that.
We have set money aside for entrepreneurs. I think we put
$600,000 in there just this year alone so that for equity
investment, we call it. They can get 15 percent of a business
package paid for by the tribe. They would have to go get the
rest of the money from a bank that would ensure that they had a
good business proposal developed, otherwise the bank is not
going to give them the remaining 85 percent of the dollars that
they need to start businesses. So we put money into
entrepreneurial development.
We put money into home ownership that we will pay up to 25
percent of the costs, up to $100,000, for a house for our
tribal members who can't. Housing is at a premium, and they
can't normally go get a bank loan for a house, usually you want
20 percent down. So we will pay that 20 percent down for the
tribal member, provided that they live in that house for at
least a minimum of 10 years.
So we are putting it into economic development and home
ownership, land purchase, scholarships, et cetera.
Mr. Wells. Senator, as I alluded earlier, I am Marcus
Wells, Jr., Chairman, Three Affiliated Tribes of Mandan,
Hidatsa and Arikara, but I alluded earlier to the $149.2
million that is in the principal amount. Basically, we have
done step one which is to take care of the Federal shortfalls,
trust responsibilities, and infrastructure, but we have a lot
more infrastructure to take care of, and no doubt are basically
our priorities.
Our priorities would be the water, health care, homes, just
social impacts that we have had to endure. Employment I think
is probably--economic development, and somewhere down the line,
we feel after we get the infrastructure needs taken care of,
then we can progress further, and that is the approach that we
have taken. Just get us the basics--water, homes, and the
health care--and then we will work on economic development as a
spinoff of that. But right now, those are our priorities, to
know that elders and our young couples who are having newborns
are being inundated by health care bills that are not being
paid for by the Federal Government. As long as the trust and
treaty responsibilities are there, our elders are the ones. A
former Chairman of our tribe, Arby Little Soldier, is still
getting inundated by legal bills, and he is here with me in
prayer to make sure that I continue that voice forward to
Senator Conrad and Senator Dorgan and yourself, Senator Thune.
Thank you.
Senator Thune. Mr. Chairman, I appreciate again your
indulgence in allowing me to join the panel today. I was a
cosponsor of your amendment last week on the Floor to add more
law enforcement personnel on our reservations. That is an
issue, in discussing with the leaders of our tribes in South
Dakota, talking in Standing Rock, 2.2 million acres and seven
full-time law enforcement personnel, and a lot of times long
distances to get to a situation. This creates all kinds of
problems, and security is a big issue as well. So I appreciate
your efforts on that, and I am glad to join in that.
But as all of us are aware, because we have traveled out
there, we have some very serious needs in our communities on
the reservations. The various legislative solutions that have
been proposed, and some of which are in the works right now, I
think would do a lot to help these leaders address those needs.
So I appreciate again the chance to join the panel today
and I thank our leaders for their testimony and look forward to
working with them.
Thank you, Mr. Chairman.
The Chairman. Senator Thune, thank you very much.
In response to your comment and the comment by Senator
Johnson, this hearing is not called for the purpose of delaying
anything, but to the extent that we move forward on these
issues. I would hope that we would have some finality, number
one, and number two, that we have a methodology that is fair,
acceptable and one that is explainable. We have different
interests up and down the river. It is long past the time this
Federal Government made things right. The question is how do we
do that. I would hope that we will have some methodology and
some finality that all of us can feel is the right approach.
So, that is the purpose of the hearing.
Senator Conrad?
Senator Conrad. Thank you, Mr. Chairman.
As the principal sponsor of the original JTAC legislation
that led to a settlement of $90.6 million for Standing Rock and
$140.2 million for Three Affiliated Tribes, I perhaps have a
special perspective on this because it took me years to get the
legislation passed. It was the first bill that passed. It
became the model for all of the other compensation bills that
passed later.
I think there is one fact that I really want to draw to the
attention of my colleagues and to the record. There was a very
significant difference between the GAO estimates and the
estimates of the original JTAC Committee on what would
represent just compensation. Let me just give you on the upper
end of the ranges the difference.
On the upper end for Standing Rock, the GAO said equitable
compensation would be $170 million. The JTAC report prepared by
former Secretary Hodel in the Reagan Administration said for
Standing Rock, the top end of the range should be $349 million,
twice as much as the GAO report. So the range of the two
reports for Standing Rock was $170 million to $349 million.
They received $90.6 million. Okay?
On Three Affiliated Tribes, the GAO said top end of the
range, $149.2 million. The JTAC Commission under Secretary
Hodel in the Reagan Administration estimated $411.8 million.
They received $149.2 million.
I make this point because I think it is critically
important to understand there was a dramatic difference between
the estimates of the General Accounting Office that used one
methodology, and the JTAC Commission under Secretary Hodel that
used a different methodology.
I personally always believed that the more appropriate
methodology was that done by Secretary Hodel. Why do I believe
that? Because the GAO approach, which is certainly a defensible
approach, but I think misses the point. They looked at land
values, what land was worth at the time. They increased that
with an inflationary index, and then said this would be a
buyout amount on the open market. What is wrong with that
approach? It completely misses, to me, the point that a way of
life was done enormous damage. This wasn't just a matter of the
value of land. This was not only the value of land, it was also
the value of infrastructure, in the case of Three Affiliated
Tribes, a hospital, bridge, school. They have never been
compensated for. We did get the bridge. In fairness, we have to
say we got the bridge. But we have not gotten a hospital. The
school has never been compensated for.
In the case of Standing Rock, the $90.6 million, all of
these were a matter of negotiation. Let's be frank. I was the
negotiator so I know. I know how this worked. I never believed
that those numbers were a fair resolution, but it was the first
settlement legislation. It was something that had never been
done before, and it was very, very hard to convince colleagues
to do it. We had to adopt a very creative way to deal with the
budget process. That is why the money is not available
immediately. It is available outside the five year budget
window because it was the only way we could get the legislation
passed under the budget rules that pertained at the time.
So Mr. Chairman, first of all, I salute you for having this
hearing. You are doing exactly the right thing. There ought to
be a consistency in approach for all of these settlements. It
shouldn't be somebody comes later, therefore they get more. It
should be based on a formula that everybody understands and is
defensible both to taxpayers and to those who are receiving the
funds in compensation for what was taken. And let there be no
doubt, an enormous amount was taken.
In the case of Three Affiliated Tribes, the vast majority
of tribal members were forced to relocate, and they went from
the rich bottomlands that supported a very rich way of life,
and I don't mean rich just in material terms. I mean rich in
every term.
Standing Rock was similarly devastated. I mean, that is
just the truth of the matter. And to just say, well, it is a
calculation of how much the land was worth, no. That isn't the
real calculation because what was devastated here was a way of
life--and economic way of life, a series of social institutions
that were done enormous damage. So I think any fair minded
person would have to go back and say that the JTAC calculations
come much closer to some kind of fair and equitable
compensation than does the other calculations that were made by
the General Accounting Office. I don't fault the General
Accounting Office. They have a perfectly good rationale for the
way they approached this. I just think it misses the larger
reality.
So with that, I would say to the witnesses, we thank you
very much for being here. The issue of how the money would be
used is going to be critically important. I have been down this
road before. I know how this issue will arise with my
colleagues. This has been very difficult with respect to the
previous JTAC settlements. I think all of us know that.
I think to the extent that you can say, as Ron you have
said and Marcus you have said, that the money would be used for
infrastructure and for education and for entrepreneurial
development, and of course there are tremendous needs in health
care, needs in housing. Those are all legitimate claims, making
up for the shortfall in terms of what the Federal Government
provides.
I will end there because I have taken more of the
Committee's time than I should, and I apologize, Mr. Chairman,
for that, but I did want to just lay out these issues, having
experienced this over many years, and having been deeply
involved in the original negotiations. I never thought at the
time, never believed in my heart, that these final numbers we
were able to negotiate represented fair and equitable
compensation. I believed it was the best we could get at the
time.
The Chairman. Senator Conrad, thank you very much, and
thank you for your leadership. In 1992, I was in the U.S. House
and Senator Conrad invited the leadership here to get started
and to finish the negotiations and move legislation. I was
proud to advance that legislation, as well in the House. But
without Senator Conrad's leadership, we would not have had the
1992 settlements that existed. He has indicated, and I agree,
that that was what was achievable at the time, but much has
happened since then.
I go back to the--I guess we don't have the photograph here
of George Gillette--but the photograph of George Gillette at
the signing, and he says, ``With a few scratches of the pen, we
will sell the best part of our reservation. We will sell the
best part of our reservation.''
Well, the other point I would make is that when we have the
chart up that shows the Missouri River basin, that is not the
only issue here. That Missouri River basin had to bear the
costs, but the benefits went way down to the rest of the
Country. It went down to the Mississippi, all the way to the
Gulf, and we had flood control. We had opportunities to store
water so that when there was less water on the middle
Mississippi for barging, that that water was available.
So a lot of other folks got the benefits from this, and we
bear the costs of a flood that comes and stays. To some it is a
flood. To others it is a complete inundation of their homeland,
of their town, of their hospital, of any range of things that
represented a good life for them.
So while this hearing and your testimony focuses on the
Pick-Sloan plan, which essentially is going from Montana down
to Gavins Point and the mainstem dams that were built, that
project was not just about geography. The substantial benefits
from that project flowed well beyond, down to the rest of the
center part of this Country.
Now, the question is, were the costs that were imposed on
the Indian reservations properly compensated? The answer, quite
clearly, is no. The more difficult question is how does one
properly compensate? What is the methodology by which we begin
to address this issue?
As Senator Conrad has said, this is a circumstance where,
and I believe Chairman Steele you indicated as well, we have
people living in third world conditions. Chairman Wells, you
talked about the number of people hauling water and the
percentage of the people in your tribe that don't have running
water. We have people that are horribly disadvantaged, living a
lifestyle that is gripped with desperate poverty. Well, the
fact is at least a portion of these people were affected by
land that was taken and not properly compensated.
Now, some of the things we have described exist on
reservations in many parts of the Country, so this is not all
attributable to this issue. But the proper compensation for
land that was taken as a part of the Pick-Sloan plan would
certainly begin to alleviate some of these issues.
I make one final point. The people of my State and South
Dakota and the other States on that map, and especially the
tribes, did not get on a train or a car and come to Washington,
D.C. to say, can you put together a water plan for us that will
take our lands? Nobody went to Washington to beg for the Pick-
Sloan plan from our region of the Country because we were going
to be net losers. And so they came to us. Washington came to
the tribes and the States and said, here is what we would like
to do. We understand there are some burdens for you as a result
of it, and here is what we plan to do for you.
Well, much of it has never occurred. While we have made
some progress, I mentioned earlier the years 1947, 1958, 1962,
1992, there have been various types of settlements with various
tribes using different methods. But it has never been properly
addressed, which is why I felt when we started talking about
this, that we would call all of the affected parties in and
talk through this to see if we can't reach some finality about
what would be fair to tribal governments that have been cheated
in a number of ways by the Federal Government over many, many
years. I think that term cheated exists as well with respect to
how they were compensated when they were seeing the taking of
their lands for the Pick-Sloan plan.
So many of you have traveled a long distance to come here
today. You don't come because you like to travel, especially
these days. Traveling is not easy, but you have provided a very
compelling story to this Committee about life on your
reservations, and the consequences of the taking of land.
Let me ask a couple of questions before we have to
conclude. All of you have water rights, or virtually all of you
I believe have water rights from the Missouri River. I think
nearly all of you have said those water rights have never been
quantified.
Chairman His Horse Is Thunder would you talk about that for
a moment? I believe all of you have said about the same thing,
but why don't you proceed.
Mr. His Horse Is Thunder. We haven't quantified our water
rights in the past, Senator. We have not. We have a figure
which we believe would be an adequate appropriation for our
tribe. Today, we figure that at 1.5 million acre feet I believe
is where we are at. That would allow us to, and we figured it
out, to irrigate so many acres of land, as well as serve an
additional population of 30,000 members for future growth and
development, as well as our MR&I programs to pump water across
the whole reservation.
We figure it would be about 1.5 million acre feet. We have
not thrown that figure out officially yet, but that is where we
would look at if we were going to settle. In the past we and
many others have truly been fearful of appropriations because w
did not want to, if you will, limit the ability of future
generations to a particular quantity of water should that water
not be enough.
And so we figure about 1.5 million would adequately take
care of future generations.
The Chairman. Mr. Chairman, I was on your reservation when
you ran out of water--was it three years ago, now?
Mr. His Horse Is Thunder. It would be four years ago this
Thanksgiving.
The Chairman. Four years ago Thanksgiving, and you were out
of water for how many days? Eight to ten days?
Mr. His Horse Is Thunder. I believe we were out for five
days, sir.
The Chairman. Five days. I salute the employees of the
Bureau of Reclamation working over Thanksgiving weekend, which,
as you know, is very difficult conditions to try to get
something done temporarily to get the water supply working
again. But I recall the discussions we had about the cost of
fixing it by getting an intake out there that would fix this
permanently for you.
The issue was that there is not enough money. It seems to
me, to find out 40 or 50 years later that a Federal agency says
it is too much money to have a permanent intake for you, we
don't have the funds, is irrehensible.
Somebody ought to have the funds to provide a solution to
issues caused by this entire plan. I assume you would agree
that you didn't run out of water before the Pick-Sloan plan,
did you? I mean, you had access to the river at that point. I
assume you find it frustrating and probably it makes you angry
that you face these problems of the need for a permanent
intake. But people say, there is no money. But they have a
responsibility to give you permanency with respect to taking
water out of that reservoir.
Mr. His Horse Is Thunder. We do find it quite frustrating.
The temporary solution that we incurred four years ago cost
about $5 million, and that is just a temporary solution. Of
that, I believe the tribe still hasn't been reimbursed for
about $1.5 million of those dollars. So a permanent solution
would definitely be something we think is just to us. But the
temporary fix itself presents a whole bunch of problems besides
the cost of $5 million, that right now, with the drought we are
having, that we are with a temporary solution and taking a look
at that water intake being inundated with silt as well.
And then if we do get rain like we really want, and snow
pack in the mountains next year and we get a lot of water, that
if that the water rises above eight feet where it is right now,
it will, believe it or not, actually blood that intake, and
make it unworkable, and then we will be back to no water again.
Right now, the reservoir is down about 28 feet, and so we
all want it to go back up, but if it comes up just eight feet,
we are back to no water again on our reservation.
The Chairman. Well, I want to continue to work with you on
that. It is another one of those effects of this set of issues
that needs to be resolved.
Chairman Wells, your reservation gave up the largest
quantity of land. Is it 152,000 acres that were lost? What
percent was that of your reservation?
Mr. Wells. Of the one million acres, I imagine it would be
15 percent.
The Chairman. So it is 15 percent. At that point, it was
one million acres total?
Mr. Wells. Yes, sir.
The Chairman. And you had a settlement in 1992, did you
not?
Mr. Wells. The $149.2 million. We certainly appreciate all
of the work that was done by Senator Conrad, Mr. Chairman, and
yourself, and Congressman Pomeroy. We have used the money
conservatively. We have used it for infrastructure. We have
used it for supplementing the Federal shortfalls, as I said in
my testimony. I don't think we have ever really got to do any
services for the tribal programs. We have done the four areas--
economic development, social welfare, and education, and in
others, but we have never been able to really open that up
other than one year. I believe that was in fiscal year 1999 and
2000, maybe two years. But then we found out that it just made
the shortfall of the Federal trust responsibility.
So of the $411 million that Senator Conrad spoke of
earlier, I would certainly see us getting into the conditions
that Chairman Jandreau just spoke of. I think we would be
close, because of the housing and the water and health care
issues. I just had a grandmother in the tribal office and she
has three of her children living in her home, in a HUD home.
They have children. And she looked up at that picture of former
Chairman Gillette and she was explaining the history to her
daughter. She said, ``And our Chairman now is going up to
Washington, D.C. to see if he can get some more justification
for us, to get you a house.'' And that is her very simple words
to her daughter in front of me. I was smiling, and I said,
``How did you know that?'' And she said, ``Well, they told me
you were heading to D.C. That is why I had to come and get you
before you left.''
So those are real stories. It is every day, the roads. I
had friends of my wife come up to her and say, can you talk to
your husband and see if he can get some gravel on our roads,
Alvina, the first lady, I guess you would call her. That is how
I initiated a joint relationship for housing. We both went in
and got a screener and a crusher and we are putting gravel on
the roads, home roads and rural roads, because of the
shortfalls of the BIA. They have no money for gravel.
So those are the real things that we are doing, Mr.
Chairman.
The Chairman. Chairman Wells, thank you very much for
coming.
All of you have a common cause as Chairmen and leaders of
your tribe. Let me just say, I appreciate your leadership.
Leadership is about opportunity and responsibility: the
opportunity to provide leadership, to move in the right
direction, seek the right solutions. But obligation, I mean,
leadership is not easy. Good leadership requires a lot of time,
effort, energy, and controversy from time to time.
So I want to thank you for your leadership. I have asked
all of you to come in to give us a larger perspective of what
has happened to the tribes with respect to the Pick-Sloan plan.
I think you have done that today. To our neighbors in South
Dakota, as I said, we have common purpose. It seems to me,
tribal governments should take a look at what happened and what
now, in the year 2007, and beyond should be done to make sure
we have some final recompense that is fair to the first
Americans, who were injured as a result of the taking of land,
a substantial amount of lands in the 1940s.
So I do have to close the hearing, but I want to thank all
of you, all six of you, for traveling to Washington, D.C. at
considerable time for you and providing this information. The
Committee intends to work with you. You heard testimony. You
heard commitment from my colleagues today. We intend to work
with you to try to find ways to reach some solutions on these
issues.
Thank you very much for being here, and this hearing is
adjourned.
[Whereupon, at 11:38 a.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Joseph Brings Plenty, Chairman, Cheyenne River
Sioux Tribe
I want to thank the Senate Committee on Indian Affairs and Chairman
Dorgan for the opportunity to provide you with written testimony on the
losses suffered by the Cheyenne River Sioux Tribe resulting from the
construction of the Oahe Dam in 1954. My name is Joseph Brings Plenty
and I am the Chairman of the Cheyenne River Sioux Tribe.
The Cheyenne River Sioux Tribe has provided this Committee and the
United States Congress with repeated testimony about the direct losses
in land, infrastructure and improvements upon land as well as indirect
damages in loss of timber, wildlife, wildlife products, and destruction
of the agricultural economy with the loss of 104,420 acres of land
within the Reservation. That history is found in hearing transcripts
from numerous prior hearings and Government Accounting Office studies.
\1\
---------------------------------------------------------------------------
\1\ Examples: (1) S. Hrg. 106-200, Cheyenne River Sioux Equitable
Compensation Act, Senate Committee on Indian Affairs Hearing on S. 964
(August 3, 1999); (2) Pub. L. 83-776, 68 Stat. 1191 et. Seq. (1954);
(3) S. Hrg. 109-572, Tribal Parity Act, and the Cheyenne River Sioux
Tribe Equitable Compensation Amendments Act (June 14, 2006); (4)
Analysis of Economic Loss Resulting From Lands Taken from the Cheyenne
River Sioux Tribe for the Oahe Dam, Robert McGlaughlin Company, (Solen,
ND July 1994); and (5) GAO/RCED 98-39: Cheyenne River Sioux Tribe's
Additional Compensation Claim for the Oahe Dam (August 1998).
---------------------------------------------------------------------------
Those older and wiser than I have recounted for you what happened
when the Oahe Dam was constructed. One account states that, ``by the
end of the decade, the Tribe would be facing the forced removal of 200
Indian families from four river settlements and their surrounding
bottomlands; would be forced to give up its valuable riparian
cottonwood forest plant, and wildlife habitat bordering the Missouri;
see the ruination of its cattle raising industry; suffer the loss
forever of bottomland hunting and fishing for indigenous species found
there, permanently lose the use of bottomland plant products for
cultural and spiritual purposes an finally, see its homes destroyed
along with churches, schools, and its tribal social life. It would see
the residue of their remaining lands fall to a value only a `small
fraction of their present value.' The above was not an account of the
government's taking put forward by the Tribe but the government's own
account from House Report 2484 (83rd Congress) on the project's
probable impact on the Cheyenne River Sioux.'' \2\
---------------------------------------------------------------------------
\2\ Government Accounting Office Report 98-39 ``Cheyenne River
Sioux Tribe's Additional Compensation Claim for the Oahe Dam, GAO/RCED
98-39 (1998), Appendix IV, Statement of Robert McGlaughlin.
---------------------------------------------------------------------------
This taking was accomplished by threats and force. By the time the
United States had come to the Tribe to discuss taking of the land, the
Oahe Dam was already under construction, making it clear that the lands
would be flooded. The United States Army Corps of Engineers stated to
the Tribe on the open public record, ``Neither your Constitution nor
your treaty rights can stop the taking of your lands according to law
under the right of eminent domain. The United States is a sovereign
power and if the Tribe could stop the taking of the land then it would
be the supreme power even over the United States government and this
cannot be.'' \3\
---------------------------------------------------------------------------
\3\ Id.
---------------------------------------------------------------------------
It was this attitude of might makes right which resulted in the
destruction of lives, resources, and the entire economy here at
Cheyenne River. To date, the Tribe has not received one cent of
additional compensation since 1954. Congress has enacted legislation in
the Cheyenne River Equitable Compensation Act of 2000 establishing a
Trust Fund of $290,722,958.00 which will be deposited on October 1,
2011, and the interest from which will become available on that date,
but until then, Cheyenne River's economy and society continue to suffer
the effects of the destruction from the Oahe Dam unabated. This
continues today even though the United States sees the benefit of 1.2
billion dollars in hydroelectric production from these dams every year,
Missouri farmers see and have seen since 1954 billions of dollars in
gains from their crops due to flood control on their bottomlands which
once lay unprotected from storms that wiped out crops every season, and
the economies of all Missouri River states including South Dakota
thrives from tourism in hunting and fishing along the Missouri River.
While the Nation prospers and South Dakota prospers, Cheyenne River
watches our people die young from depths of poverty unseen anywhere
else in the United States; from the theft of our hospital and Indian
Health Service's refusal to fund the staffing so we have more than two
doctors for 16,000 people because it was the Corps of Engineers that
built the hospital in Eagle Butte in 1956 to replace the one they
flooded and not the Indian Health Service; from drinking water
contaminated with over a billion tons of mining tailings flowing from
the Black Hills that pile up at the mouth of the Cheyenne River instead
of continuing to flow downstream because the Oahe Dam backs that water
up and drops those tailings right where our only water intake sits.
This is all attributable to the construction of the Dam. And none of it
is included in any calculation of damages done to date.
Cheyenne River has repeatedly sought remedies for the environmental
contamination compounded by the Oahe Dam to no avail. Title VI of the
Water Resources Development Act of 2000 includes authorization to the
Corps of Engineers to address this environmental devastation but has
the Corps even begun to study the problems let alone seek funding to
remedy these problems? No. And no amount of discussion has changed
this. The Tribe and seven federal agencies with the help of the South
Dakota delegation provided almost 20 million dollars in funds to move
that water intake over the past 2 years at our own expense. But not
before our rates of cancer, autoimmune disorders, and deaths from
unheard of diseases are out of control. We have seven cases of
pancreatic cancer--there are only 32,000 cases in the entire United
States. Now, we have authorization in the 2007 Water Resources
Development Act for another $65 million dollars to build a mainline
from that intake to Eagle Butte--where the United States relocated the
tribal headquarters--over 65 miles from the River. If we had not been
forced to relocate to a non-Indian town for political reasons with the
flooding and were instead allowed to stay near the River, the Tribe
would not be in this position of needing this level of funding just to
have a permanent supply of clean drinking water. The United States
government did this. Until this main line is built, Cheyenne River will
not see one new home or business because there is no water pressure.
Our families will continue to live two to four families per household.
After the main line is built, the system needs an upgrade to all the
water lines to reach the families who were scatters over an area the
size of Connecticut by forced relocation from the flooding. The Banner
study already submitted to this Committee demonstrates that the total
cost in 2004 was estimated at $389 million. This makes the Equitable
Compensation Act Fund for Cheyenne River pale in comparison.
Meanwhile, our people die from the health disorders caused by that
contaminated silt stacking up at our border on our Cheyenne River all
because the dam was built. And Indian Health Service, the Corps of
Engineers, and the Environmental Protection Agency continue to tell the
Tribe they have no programs or funds to do anything about it--it's up
to Congress. And still Cheyenne River waits, and prays for a better
time to come where there are not at least two funerals a week.
While we wait, our population is growing exponentially. Half of the
population at Cheyenne River is under the age of twenty-one years old.
And the Tribe still has not one cent in funds to address rebuilding
from the flooding. With this population explosion there is less to go
around per person. The poverty created by the destruction of our river
bottoms is like a whirlpool. The original losses keep spiraling and
expanding exponentially as time goes on and the longer time goes on
without any funding to rebuild, the larger the costs are to actually
restore the tribal economy to the same level as its counterparts in
South Dakota.
The Tribe has testified before this Committee at length about how
prepared Cheyenne River is to implement its long term strategic plan
for poverty reduction--a plan developed in partnership with the
Northwest Area Foundation and being implemented with $10 million in
funding from that Foundation and the Tribe. Yet, this plan cannot be
fully implemented fully until it starts receiving interest income from
the Cheyenne River Equitable Compensation Act of 2000. Until October
2011, all we can do is proceed as best we can with the limited funds we
can gather. We have a sixty bed nursing home under construction right
now, and struggle to secure the funds to complete construction and
operate with operations slated to start in 2008. But we are prepared
for when the Tribe actually begins to receive funds to move forward.
All studies on the losses at Cheyenne River assume the Tribe's
original requests in 1954 that were not funded and add a generic
economic inflation rate over time. These economic inflation rates do
not calculate the exponential growth of the tribal population or the
cost of that infrastructure that was destroyed and never replaced. In
order to place the Tribe on equal footing with all others, the Congress
would have to account for the cost of replacement of the water system,
the cost of a new hospital built by Indian Health Service so they would
actually staff it, the cost in human health harms and lives lost from
contamination of our water supply. These are just a few of the costs
not calculated into any Government Accounting Office study to date.
Even worse, the Corps of Engineers received funding to relocate
graves and still today, as the water rises and falls, bones are exposed
from graves that were supposed to be moved. The Missouri River Basin is
home to over 15,000 known historic sites--this has been documented and
written about in numerous publications. And yet, funds to protect these
national treasures which are irreplaceable and are a national
treasure--not just to the Lakota Nations and our brother and sister
Nations--but of the United States for all our children, are negligible.
No calculation of damages for any Tribes to date accounts for what it
costs to protect these national treasures, or for what it would cost to
properly relocate those burial sites the Corps of Engineers failed to
relocate in their haste to see he dams become operational for the
benefit of Missouri farmers, navigators, and the hydroelectric power
industry.
When money and power become the basis for destroying the lives of
our own United States citizens, and the goal of the government offices
requested to look at the value of the damages becomes to limit what it
will cost to ``compensate for original losses'', no justice will
prevail. When I buy insurance and my house is destroyed, I receive what
it costs to replace that home. This is the principal behind determining
``just'' compensation--what will it take to make the person whole
again? Not just what could I sell it for on the open market. This is
important here--the United States in the reports listed in footnote 1
of this statement itself has stated that no one would have been a
willing seller of this land and these assets because the stolen was the
heart and sole of an entire civilization. It would be akin to trying to
compensate Palestinians or Israelites for the loss of Jerusalem and
thinking that money would make the Nation whole.
The United States needs to sit down and take a good look at what it
will cost to restore basic infrastructure that the rest of the United
States has but we have never had. While the rest of the United States
has enough of an economy to look at infrastructure development and
economic growth, Cheyenne River spends the majority of its government
funds on heating assistance for tribal members, food for its members,
shelter for its members, and health care for its members. With an
unemployment rate of over 80 percent this year, what else is the
government to do? Until the basic infrastructure of clean drinking
water, housing, roads, and economic engines for growth in the tourism
and agriculture industries are restored, there is little room for
change.
As this Tribe has testified to this Committee before, our greatest
resource is our tribal membership whose skills, talents, determination
and perseverance are the very reason Cheyenne River continues to
achieve gains. And this will remain no matter what the Congress does as
a result of this hearing.
But I hope, as I must, that I live to see the Cheyenne River
Equitable Compensation Act of 2000 funds actually received by the Tribe
and I hope I see the day that our gravesites are all protected and no
more relatives will be found on the shores of the Missouri River, and I
hope I see the day when all of our people have clean drinking water and
adequate health care. And I hope that this Committee, if it chooses to
look further into what compensation is ``just,'' will acknowledge that
the Tribes on this River know best how to achieve that economic self-
sufficiency that was once the birth right of the Nations. And that
justice will be served when that birth right to be economically self-
sufficient is restored to our Nations.
Thank you again for this opportunity to provide you with my
thoughts. I welcome any questions you may have regarding this
testimony.
______
Prepared Statement of Archie Fool Bear, Board Member, Standing Rock
Sioux Tribe and Upper Missouri River InterTribal Allottees Association
Attachments
______