[Senate Report 106-217]
[From the U.S. Government Publishing Office]
Calendar No. 407
106th Congress Report
SENATE
1st Session 106-217
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CHEYENNE RIVER SIOUX TRIBE EQUITABLE COMPENSATION ACT
_______
November 8, 1999.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 964]
The Committee on Indian Affairs, to which was referred the
bill (S. 964) to provide for equitable compensation for the
Cheyenne River Sioux Tribe, and for other purposes, having
considered the same, reports favorably thereon with an
amendment in the nature of a substitute, and recommends that
the bill as amended do pass.
purpose
The purpose of S. 964, the Cheyenne River Sioux Tribe
Equitable Compensation Act, is to provide additional
compensation to the Cheyenne River Sioux Tribe (CRST) of South
Dakota for the acquisition by the United States of 104,492
acres of land of the Tribe for the Oahe Dam and Reservoir on
the Missouri River.
background
In 1944, Congress enacted the Flood Control Act, 33 U.S.C.
701-1, et seq., which included the Pick-Sloan Missouri River
Basin Program to increase economic development and to provide
an array of benefits to the Missouri River Basin and its
residents. The Pick-Sloan project was designed to provide low-
cost hydro-power; irrigation; flood control; navigation
benefits; and recreational opportunities.\1\
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\1\ See generally ``Cheyenne River Sioux Tribe's Additional
Compensation Claim for the Oahe Dam'', GAO/RCED-98-39, January, 1998.
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In 1948, the Army Corps of Engineers (ACE), took possession
of CRST lands along the river and began construction of the
Oahe Dam and Reservoir project. By the time Oahe Dam was
dedicated, in 1962, the accrued impacts of the dam and
reservoir on the CRST were dramatic; four reservation
communities had been flooded by the project, 104,492 acres of
tribal lands had been inundated, and 181 families (30% of the
tribal population) had been forced to relocate from the fertile
bottom lands along the river to much less hospitable upland
prairie.
The CRST and its members had long used the fertile bottom
lands of the river basin for agricultural purposes; for cattle
and livestock; as a source of timber for home construction,
fuel and construction purposes; and as a ready source of
potable water. With construction of the dam and creation of the
reservoir, however, the once-thriving tribal cattle and
agricultural sectors were devastated, with an average annual
loss of cattle projected at 500 head. During the winter of
1996-97, CRST members lost 30,000 head of livestock that in all
likelihood would not have been lost had they had access to the
food and shelter previously available in the now-flooded bottom
lands. These losses can be expected to continue into the
future. Similarly, the loss of access to traditional hunting,
gathering and ceremonial grounds is permanent.
The CRST lost some 90% of its timber as a result of the
construction of the dam and creation of the reservoir. Timber
provided a viable source of commercial revenues for the Tribe
as well as a source of wood for subsistence needs such as home
fence and corral construction, fuel and heating, and related
needs. The bottom lands provided the CRST a source of potable
water, whereas existing water sources are scarce, brackish or
both.
The losses suffered by the Tribe were keenly felt, no less
so for the fact that the Tribe and its members did not receive
any of the benefits which the Pick-Sloan plan was designed to
bring to the other residents of the Missouri River Valley.
Unlike many South Dakota communities that received allocations
of low-cost hydropower which they were able to turn into a
source of revenue for their activities, the Tribe's request for
such allocation was denied. Nor did the Tribe receive any low-
cost power for its own use. Instead, despite the generation of
large amounts of hydropower from the Pick-Sloan power program,
the cost of electricity on the CRST reservation has remained
among the highest in the United States, burdening an already
impoverished membership and serving as a barrier to economic
development.
The Tribe also received no flood control benefits from the
Pick-Sloan dams, as it had never suffered flooding problems
from the Missouri River, nor did it benefit from the increased
navigation made possible by the Project. With respect to
recreation, rather than providing increased recreational
opportunities for the Tribe, the Project decreased such
opportunities by depriving the Tribe access to the river from
tribal lands. With respect to irrigation, the Tribe receives no
Project water to irrigate any of the land of the Tribe or its
members. Thus, the Tribe not only suffered a permanent loss of
lands and incurred major adverse impacts to its way of life,
its economy and culture, but also failed to receive the
benefits which the Project was to provide with citizens and
communities in the Missouri River Basin.
It was not until 1954 that the Congress enacted legislation
to provide compensation to the Tribe in exchange for the
acquisition of the Tribe's lands. In settlement negotiations
prior to enactment of this legislation, the CRST requested some
$23.5 million as a compensation for lands taken and
rehabilitation of tribal standards of living. However, the
legislation authorized the payment of only $10.6 million for
damages, rehabilitation and administrative expenses related to
the settlement, less than half of what the Tribe requested and
documented.\2\ This amount did not include any compensation for
the diminishment of the value of some 800,000 acres of grazing
lands, which resulted from the loss of access to the bottom
lands along the river as a result of the creation of the
reservoir. As a rough indicator of under-compensation to the
Tribe, non-Indians received an average of $49.22 per acre for
their agricultural lands, while the Tribe received only $21.49
per acre.
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\2\ P.L. 83-776, 68 Stat. 1191 (Sept. 3, 1954).
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When the Tribe learned that the Congress had passed
legislation providing less than half of the amount of
compensation which it had requested, it began a campaign to
persuade President Eisenhower to veto the bill. However, it was
dissuaded from doing so by the late Senator Karl Mundt (R-SD),
who, writing in behalf of the South Dakota Congressional
delegation, acknowledged that the settlement was less than it
should have been, but promised to remedy the problem in the
next session: ``If the Tribe would accept the bill as it is now
before the President, they would have the assurance that the
South Dakota Congressional Delegation would cooperate fully to
see that the necessary amendments to the law are introduced and
acted upon during the next Congress * * * you may be sure that
we will all do our level best to finish the job.'' \3\ In the
years that followed, however, no such amendments were
introduced or acted upon.
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\3\ Letter from Karl E. Mundt to CRST Chairman Frank Ducheneaux,
August 30, 1954.
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In the early 1980's, other tribes whose reservations on the
Missouri River had been adversely affected by flooding caused
by the construction of the Pick-Sloan project dams sought
additional compensation to rectify what they also considered to
have been woefully inadequate compensation in view of their
actual losses. In 1984, the Secretary of the Interior
established a Joint Tribal-Federal Advisory Committee (JTAC) to
examine and make recommendations with respect to the effects of
the impoundment of waters under the Pick-Sloan Missouri River
Basin Program (Oahe and Garrison Reservoirs) on the Fort
Berthold and Standing Rock Indian Reservations. The Secretary's
action implemented a recommendation in the Final Report of the
Garrison Diversion Unit Commission established pursuant to
Public Law 98-360, section 207.
The JTAC study concluded that the compensation that was
provided to the Tribes in the 1950's indeed was inadequate and
did not take into account the full extent of the tribes'
losses. In 1990, the Congress asked the General Accounting
Office (GAO) to review economic analyses prepared by
consultants for the Fort Berthold and Standing Rock Tribes that
documented what the Tribes considered to be the difference
between the actual losses suffered as a result of the building
of the Garrison Dam and the amount the Tribes received in
compensation in 1952. The GAO found numerous problems with
these analyses and recommended, instead, that the Congress base
its decision on how much to provide in additional compensation
on a formula. This formula included a range of additional
compensation predicated on the present value of the difference
between the amount originally requested by the tribe and the
amount received. The high end of the range was established by
compounding the difference using the corporate interest rate;
the low end was established by compounding the difference using
the cost of living rate. The GAO did not consider whether
additional compensation should be provided, or whether the
original compensation was adequate.\4\
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\4\ Indian Issues: Compensation Claims Analyses Overstate Economic
Losses (GAO/RCED-91-77, May 21, 1991).
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In view of the JTAC study findings and the GAO review, the
Congress enacted legislation that acknowledged, first, that the
U.S. government did not justly compensate the Tribes at Fort
Berthold and Standing Rock when it acquired their lands and,
second, that theTribes were entitled to additional
compensation. Accordingly, the legislation established a $149.2 million
development trust fund for the Three Affiliated Tribes of the Fort
Berthold Reservation and a $90.6 million development trust fund for the
Standing Rock Sioux Tribe.\5\ In arriving at these amounts, the
Congress adopted the GAO formula using the corporate interest rate
option. Both of these trust funds were capitalized in the U.S. Treasury
with receipts deposited from the power program of the Pick-Sloan
Program. The legislation provides that the Tribes may only spend
interest earned on these trust funds.
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\5\ P.L. 102-575, title XXXV, 106 Stat. 4731 (Oct. 30, 1992).
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In 1996, after considering extensive documentation which
established that the Crow Creek Sioux Tribe had been adversely
impacted by Pick-Sloan dam construction on the Missouri River
and that the compensation received by the Tribe also did not
bear a fair relationship to the adverse consequences suffered
by the Tribe, the Congress enacted legislation establishing a
$27.5 million trust fund as additional compensation for the
Crow Creek Sioux Tribe.\6\ In 1997, on the basis of a similar,
well-documented historical record, the Congress enacted
legislation establishing a $39.3 million trust fund for the
Lower Brule Sioux Tribe.\7\ These trust funds were funded in
the same manner, and with similar restrictions, as were those
established for Fort Berthold and Standing Rock.
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\6\ P.L. 104-223, 110 Stat. 3026 (Oct. 1, 1996).
\7\ P.L. 105-132, 111 Stat. 2563 (Dec. 2, 1997).
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In 1993, the Cheyenne River Siouix Tribal Council
unanimously passed a resolution stating that the Tribe had not
received adequate compensation for the damages resulting from
construction of Oahe Dam and Reservoir. The Tribe hired a
consultant to prepare a new economic analysis of the damages,
which was published in July, 1994.\8\ At the request of Senator
Daschle, the GAO assessed this new economic analysis, which
concluded that the Tribe should receive additional compensation
in an amount between $279 million and $300.7 million for
damages, rehabilitation and administrative expenses. Using the
1991 formula, the GAO calculated the amount of additional
compensation to be $290 million. The GAO noted that the amounts
that comprised the $290 million figure cannot be readily
compared with the amounts previously paid to the other Tribes,
first, because the damage to each reservation was unique,
depending on the acreage lost, the number of tribal members
living in the takiing area, and the value of the resources
located in the taking area. Also, the additional amounts for
Fort Berthold and Standing Rock were based on 1990 values.
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\8\ Cheyenne River Sioux Tribe's Additional Compensation claim for
the Oahe Dam (GAO/RCED-98-39, Jan. 1998).
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summary of provisions
S. 964, as amended and reported by the Committee on October
13, 1999, contains two titles. Title I, the Cheyenne River
Sioux Tribe Equitable Compensation Act, would provide
additional compensation for the Cheyenne River Sioux Tribe
pursuant to the GAO formula in an amount roughly proportionate
to that provided for the Fort Berthold, Standing Rock, Crow
Creek and Lower Brule tribes. The bill provides for the
establishment in the U.S. Treasury of the Cheyenne River Sioux
Tribal Recovery Trust Fund. On the first day of the 11th fiscal
year that begins after the enactment of S. 964, the Secretary
of the Treasury is directed to deposit into the Fund
$290,722,958 from the General Fund of the Treasury, together
with an additional amount that equals the amount of interest
that would have accrued on that deposit had it been invested in
interest-bearing obligations guaranteed as to both principal
and interest by the United States, on the first day of the
first fiscal year that begins after the date of enactment of
this Act and compounded annually thereafter. The Secretary is
to invest these funds only in interest-bearing obligations of
the United States or in obligations guaranteed as to both
principal and interest by the United States, and to deposit
interest from such investments in the Fund. Beginning on the
first day of the eleventh fiscal year after enactment, and on
the first day of each fiscal year thereafter, the Secretary of
the Treasury shall transfer the aggregate amount of interest on
the Fund to the Secretary of the Interior, who shall use the
money to make payments to the Tribe pursuant to tribal
resolution. The Tribe could spend the interest earned on the
Fund to promote its economic and infrastructure development,
and the educational, health, recreational and social welfare
objectives of the Tribe and its members. No amount of the
principal could be withdrawn nor could any of the interest be
used to make per capita payments to tribal members. Upon the
deposit of funds, together with interest, into the Fund, S. 964
would extinguish all monetary claims which the Tribe has or may
have against the United States for the taking of its land and
property by the United States for the Oahe Dam and Reservoir
Project.
Title II of S. 964, as amended, entitled the ``Bosque
Redondo Memorial Act.'' This title would authorize $1,000,000
in fiscal year 2000 and $500,000 for each of fiscal years 2001
and 2002 for use as matching grants to the State of New Mexico
to create a memorial to the nearly 9,000 Navajo Indians who
were detained by the United States in 1863 and forced to march
350 miles to Bosque Redondo, New Mexico, where they were
incarerated at Fort Sumner, together with members of the
Mescalero Apache Tribe. In 1868, the Navajo Nation signed a
treaty with the United States, and the survivors of the ``Long
Walk'' were allowed to return to their reservation after
surviving five years of harsh living conditions. The grants and
State matching funds would provide for the construction of a
memorial and visitor/interpretive center at Fort Sumner State
Monument in New Mexico that would offer all Americans
opportunities to learn about and appreciate the significance of
a painful episode in the history of the Navajo and Apache
peoples' relationship with the United States Government.
legislative history
In the 105th Congress, on April 2, 1998, Senator Daschle
(D-SD) introduced S. 1905, the Cheyenne River Sioux Tribe
Equitable Compensation Act, which was referred to the Committee
on Indian Affairs. The Committee held a hearing on S. 1905 on
July 8, 1998, and marked up and reported the bill on July 15,
1998 (S. Rept. 105-363). The Congress adjourned without further
action being taken on S. 1905.
On May 5, 1999, Senator Daschle introduced S. 964, which
included the provisions of S. 1905 as reported by the Committee
on Indian Affairs in the 105th Congress. On October 13, 1999,
the Committee held a hearing on S. 964, at which
representatives of the Tribe and the Administration iterated
their support for the Cheyenne River Sioux Tribe Equitable
Compensation Act. The Administration's testimony expressed
concern regarding the bill's funding provisions. This concern
is addressed in the amendment-in-the-nature-of-a-substitute to
S. 964 adopted by the Committee, which provides that the
principal of the Tribal Recovery Trust Fund, together with
interest from the date of enactment of S. 964, will not be
deposited into the Fund until the 11th fiscal year after
enactment.
committee recommendation and tabulation of vote
The Committee on Indian Affairs, in an open business
session on August 3, 1999, adopted an amendment-in-the-nature-
of-a-substitute to S. 964 by voice vote and ordered the bill,
as amended, reported favorably to the Senate.
section-by-section analysis of the substitute amendment
TITLE I--CHEYENNE RIVER SIOUX TRIBE EQUITABLE COMPENSATION
Section 101--Short title
This section cites the short title of S. 964 as the
``Cheyenne River Sioux Tribe Equitable Compensation Act''.
Section 102--Findings and purposes
Subsection (a) of this section sets forth six Congressional
findings:
The first finding is that Congress approved the Pick-Sloan
Missouri River Basin program by passing the Flood Control Act
of 1944 to promote the general economic development of the
United States; to provide for irrigation above Sioux City,
Iowa; to protect urban and rural areas from floods of the
Missouri River; and for other purposes;
The second finding is that the Oahe Dam and Reservoir
project: (A) is a major component of the Pick-Sloan program,
and contributes to the economy of the United States by
generating a substantial amount of hydropower and impounding a
substantial quantity of water; (B) overlies the eastern
boundary of the Cheyenne River Sioux Indian Reservation; and,
(C) not only has contributed little to the economy of the
Cheyenne River Sioux Tribe but also has severely damaged the
economy of the Tribe by inundating its most productive
agricultural and pastoral lands;
The third finding is that the Secretary appointed a Joint
Tribal Advisory Committee that examined the Oahe Dam and
Reservoir project and that advisory committee concluded that
(A) the Federal Government did not justify, or fairly
compensate the Tribe for, the Oahe Dam and Reservoir project
when the Federal Government acquired 104,492 acres of land of
the Tribe for that project; and, (B) the Tribe should be
adequately compensated for the acquisition described in (A);
The fourth finding is that the Comptroller General of the
United States, after applying the same method of analysis used
for the compensation of similarly situated Indian tribes,
determined that the appropriate amount of compensation to pay
the Tribe for the acquisition described in the sixth finding
would be $290,722,958;
The fifth finding is that the Tribe is entitled to receive
additional financial compensation for the acquisition described
in the third finding in a manner consistent with the
determination of the Comptroller General referred to in the
fourth finding; and,
The sixth finding is that the establishment of a Tribal
Recovery Trust fund (hereinafter the ``Fund'') with the amounts
made available to the Tribe under this title is consistent with
the principles of self-governance and self-determination.
Subsection (b) of section 2 states the purposes of this
title as (1) to provide for additional financial compensation
to the Tribe for the acquisition of 104,492 acres of tribal
land for the Oahe Dam and Reservoir project in a manner
consistent with the determination of the Comptroller General of
the United States described in the fourth finding; and, (2) to
provide for the establishment of the Cheyenne River Sioux
Tribal Recovery Trust Fund to be managed by the Secretary of
the Treasury to make payments to the Tribe to carry out
projects under a plan prepared by the Tribe.
Section 103--Definitions
This section defines two terms used in title I: ``Tribe''
means the Itazipco, Siha Sapa Minniconjou, and Oohenumpa bands
of the Great Sioux Nation that reside on the Cheyenne River
Reservation, located in central South Dakota; and ``Tribal
Council'' means the governing body of the Tribe.
Subsection 104--Cheyenne River Sioux Tribal Recovery Trust Fund
Subsection (a) establishes in the Treasury of the United
States a fund to be known as the ``Cheyenne River Sioux Tribal
Recovery Trust Fund'', which shall consist of any amounts
deposited into the Fund under title I.
Subsection (b) requires the Secretary of the Treasury, on
the first day of the 11th fiscal year that begins after the
date of enactment of this Act, to deposit into the Fund, from
the General Fund of the Treasury, $290,722,958, plus an
additional amount that equals the amount of interest that would
have accrued on the initial amount if such amount had been
invested in interest-bearing obligations of the United States,
or in obligations guaranteed as to both principal and interest
by the United States, on the first day of the first fiscal year
that begins after enactment of this Act and compounded annually
thereafter.
Subsection (c) requires the Secretary to invest such
portion of the Fund as is not, in the Secretary's judgment,
required to meet current withdrawals. Such investments may be
made only in interest-bearing obligations of the United States
or in obligations guaranteed as to both principal and interest
by the United States. The Secretary of the Treasury shall
deposit interest resulting from such investments into the Fund.
Subsection (d)(1) requires the Secretary, beginning on the
first day of the 11th fiscal year after the date of enactment
of this Act, and on the first day of each fiscal year
thereafter, to withdraw the aggregate amount of interest
deposited into the Fund for that fiscal year and transfer that
amount to the Secretary of the Interior for use in accordance
with paragraph (2). Each amount so transferred shall be
available without fiscal year limitation. Subparagraph (2)(A)
requires the Secretary of the Interior to use the amounts
transferred under paragraph (1) only for the purpose of making
payments to the Tribe, as such payments are requested by the
Tribe pursuant to tribal resolution. Subparagraph (2)(B) bars
the Secretary from making any payments under subparagraph
(2)(A) until after the Tribe has adopted a plan under
subsection (f). Subparagraph (2)(C) requires the Tribe to use
the payments made under subparagraph (B) only for carrying out
projects and programs under the plan prepared under subsection
(f).
Subsection (e) provides that the Secretary of the Treasury
may not transfer or withdraw any amount deposited under
subsection (b) except as provided in subsections (c) and
(d)(1).
Subsection (f)(1) requires that, no later than 18 months
after the date of enactment of this Act, the governing body of
the Tribe is to prepare a plan for the use of the payments made
to the Tribe under subsection (d).
Subsection (f)(2) requires that the plan developed under
this subsection provide for the manner in which the Tribe will
expend the payments it will receive under subsection (d) to
promote economic development, infrastructure development,
educational, health, recreational, and social welfare
objectives of the Tribe and its members, or any combination of
these activities.
Subsection (f)(3) requires the Tribal Council to make
available for review and comment by the members of the Tribe a
copy of the plan before it becomes final, in accordance with
procedures established by the Tribal Council. The Tribal
Council may update the plan annually by revising it in a manner
that provides the members of the Tribe to review and comment on
any proposed revision. In preparing the Plan and any revisions
to update it, the Tribal Council shall consult with the
Secretary of the Interior and the Secretary of Health and Human
Services.
Subsection (f)(4) provides that the activities of the Tribe
in carrying out the plan under this subsection shall be audited
as part of the annual single-agency audit that the Tribe is
required to prepare pursuant to the Office of Management and
Budget Circular A-133, that the audit shall include written
findings as to whether the funds received by the Tribe under
this subsection to carry out the plan were expended in a manner
consistent with this section, and that a copy of these findings
shall be inserted in the published minutes of the Tribal
Council proceedings for the session at which the audit is
presented to the Tribal Council.
Subsection (g) prohibits any portion of any payment made
under this section from being distributed to any member of the
Tribe on a per capita basis.
Section 105--Eligibility of tribe for certain programs and services
This section provides that no payment made to the Tribe
pursuant to this Act shall result in the reduction or denial of
any service or program to which, pursuant to Federal law, (1)
the Tribe is otherwise entitled because of the status of the
Tribe as a federally recognized Indian Tribe or (2) any
individual who is a member of the Tribe is entitled because of
the status of the individual as a member of the Tribe.
Section 106--Authorization of appropriations
This section authorizes to be appropriated such funds as
may be necessary to cover the administrative expenses of the
Trust Fund.
Section 107--Extinguishment of claims
This section provides that, upon the deposit of funds,
together with interest, into the Fund under section 104(b), all
monetary claims that the Tribe has or may have against the
United States for the taking, by the United States, of the land
and property of the Tribe for the Oahe Dam and Reservoir
Project of the Pick-Sloan Missouri River Basin program shall be
extinguished.
TITLE II--BOSQUE REDONDO MEMORIAL
Sec. 201. Short title
Section (a) of this section sets forth thirteen
Congressional findings.
The first finding states that in 1863, the United States
detained nearly 9,000 Navajo and forced their migration across
nearly 350 miles of land to Bosque Redondo, a journey know as
the ``Long Walk''.
The second finding states that Mescalero Apache people were
also incarcerated at Bosque Redondo.
The third finding states that the Navajo and Mescalero
Apache people labored to plant crops, dig irrigation ditches
and build housing, but drought, cutworms, hail, and alkaline
Pecos River water created severe living conditions for the
captives.
The fourth finding states that the suffering endured by the
Navajo and Mescalero people forged a new understanding of their
strengths as Americans.
The fifth finding states that the Treaty of 1868, signed by
the United States and the Navajo Tribes, recognizing the Navajo
Nation as it exists today.
The sixth finding states that the State of New Mexico has
appropriated a total of $123,000 for a planning study and for
the design of the Bosque Redondo Memorial.
The seventh finding states that individuals and business in
DeBaca County donated $6,000 toward the production of a
brochure relating to the Bosque Redondo Memorial.
The eighth finding states that the Village of Fort Sumner
donated 70 acres of land to the State of New Mexico contiguous
to the existing 50 acres comprising Fort Sumner State Monument,
contingent on the funding of the Bosque Redondo Memorial.
The ninth finding states that full architectural plans and
the exhibit design for the Bosque Redondo Memorial have been
completed.
The tenth finding states that the Bosque Redondo Memorial
project has the encouragement of the President of the Navajo
Nation and the President of the Mescalero Apache Tribe, who
have each appointed tribal members to serve as project
advisors.
The eleventh finding states that the Navajo Nation, the
Mescalero Tribe and the National Park Service are collaborating
to develop a symposium on the Bosque Redondo Long Walk and a
curriculum for inclusion in the New Mexico school curriculum.
The twelfth finding states that the interpretive center
would provide important educational and enrichment
opportunities for all Americans.
The thirteenth finding states that Federal financial
assistance is needed for the construction of a Bosque Redondo
Memorial.
Subsection (b) sets forth the purposes of this title as (1)
to commemorate the people who were interned at Bosque Redondo;
(2) to pay tribute to the Native populations' ability to
rebound from suffering and establish strong, living communities
that have long been a major influence in the State of New
Mexico and in the United States; (3) to provide Americans of
all ages a place to learn about the Bosque Redondo experience
and how it resulted in the establishment of strong American
Indian Nations from once divergent bands; and, (4) to support
the construction of the Bosque Redondo Memorial commemorating
the detention of the Navajo and Mescalero Apache people at
Bosque Redondo from 1863 to 1868.
Section 203. Definitions
This section defines two terms used in title II:
``Memorial'' means the building and grounds known as the Bosque
Redondo Memorial, and ``Secretary'' means the Secretary of
Defense.
Section 204. Bosque Redondo Memorial
Subsection (a) provides that, upon the request of the State
of New Mexico, the Secretary is authorized to establish a
Bosque Redondo Memorial within the boundaries of Fort Sumner
State Monument in New Mexico. No memorial shall be established
without the consent of the Navajo Nation and the Mescalero
Apache Tribe.
Subsection (b) provides that the components of the Memorial
shall include: (1) exhibit space, a lobby area that represents
design elements from traditional Mescalero and Navajo
dwellings, administrative areas that include a resource room,
library, workrooms and offices, restrooms, parking areas,
sidewalks, utilities, and other visitor facilities; (2) a venue
for public education programs; and, (3) a location to
commemorate the Long Walk of the Navajo people and the healing
that has taken place since that event.
Section 205. Construction of Memorial
Subsection (a) provides that the Secretary may award a
grant to the State of New Mexico to provide up to 50 percent of
the total cost of construction of the Memorial, and that the
non-Federal share of construction costs of the Memorial shall
include funds previously expended by the State for the planning
and design of the Memorial, and by non-Federal entities for the
production of a brochure relating to the Memorial.
Subsection (b) requires the State of New Mexico, to be
eligible for a grant under this section, (1) to submit to the
Secretary a proposal that provides assurances that the Memorial
will comply with all applicable laws, including building codes
and regulations, and includes such other information and
assurances as the Secretary may require; and, (2) to enter into
a Memorandum of Understanding with the Secretary that shall
include a timetable for the completion of construction and the
opening of the Memorial; assurances that construction contracts
will be competitively awarded; assurances that the State or
Village of Fort Sumner will make sufficient land available for
the Memorial; the specifications of the Memorial which shall
comply with all applicable Federal, State, and local building
codes and laws; arrangements for the operation and maintenance
of the Memorial upon completion of construction; a description
of Memorial collections and educational programming; a plan for
the design of exhibits including the collections to be
exhibited, security, preservation, environmental controls, and
presentations in accordance with professional standards; an
agreement with the Navajo Nation and the Mescalero Tribe
relative to the design and location of the Memorial; and, a
financing plan developed by the State that outlines the long-
term management of the Memorial, including the acceptance and
use of funds developed from public and private sources to
minimize the use of appropriated or borrowed funds, the payment
of the operating costs of the Memorial through the assessment
of fees or other income generated by the Memorial; a strategy
for achieving financial self-sufficiency with respect to the
Memorial by not later than 5 years after the date of enactment
of this Act, and a description of the business activities that
would be permitted at the Memorial and appropriate vendor
standards that would apply.
Section 206. Authorization of appropriations
Subsection (a) authorizes to be appropriated to carry out
this title $1,000,000 for fiscal year 2000 and $500,000 for
each of fiscal years 2001 and 2002.
Subsection (b) provides that any funds made available under
this section that are unexpended at the end of the fiscal year
for which those funds are appropriated shall remain available
for use by the Secretary through September 30, 2002 for the
purposes for which those funds were made available.
cost and budgetary considerations
The cost estimate for S. 964, as amended, as provided by
the Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 5, 1999.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 964, a bill to
provide for equitable compensation for the Cheyenne River Sioux
Tribe, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan Carroll
(for federal costs), and Marjorie Miller (for the impact on
state, local, and tribal governments).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 964--A bill to provide for equitable compensation for the Cheyenne
River Sioux Tribe, and for other purposes
Summary: S. 964 would compensate the Cheyenne River Sioux
Tribe--in 2011--for the taking of certain lands in South Dakota
and would authorize appropriations for the construction of a
memorial for the Navajo and Mescalero Apache people who were
incarcerated at Bosque Redondo, New Mexico, in the 1800s. CBO
estimates that implementing S. 964 would increase discretionary
spending by $2 million over the 2000-2004 period, assuming
appropriation of the specified amounts. Enacting S. 964 also
would increase direct spending by an estimated $492 million,
but pay-as-you-go procedures would not apply because the outlay
would not occur until fiscal year 2011.
S. 964 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
State, local, and tribal governments might incur some costs as
a result of the bill's enactment, but these costs would be
voluntary.
Estimated cost to the Federal Government: For purposes of
this estimate, CBO assumes that S. 964 will be enacted early in
fiscal year 2000 and that the authorized appropriations will be
provided as specified by the bill. Estimated outlays are based
on historical spending patterns for similar activities.
Direct spending
Title I of S. 964 would provide additional compensation to
the Cheyenne River Sioux Tribe for the taking of 104,492 acres
of land by the federal government to construct the Oahe Dam and
Reservoir project. Construction of the dam began in 1948 and
compensation of about $10 million was paid to the tribute in
1955. The bill would establish the Cheyenne River Sioux Tribal
Recovery Trust Fund and would direct the Secretary of the
Treasury to deposit $291 million in the fund on the first day
of fiscal year 2011. An additional deposit equal to the amount
of interest that the fund would have earned if the fund had
been capitalized and invested in 2001 would be made at the same
time. CBO estimates that this additional payment would total
$201 million, for a total deposit of $492 million in 2011. Once
the Secretary pays these amounts, any monetary claims the tribe
may have against the United States regarding this project would
be extinguished. Starting in 2011, the bill would allow the
tribe to spend amounts equivalent to the annual interest earned
on the fund pursuant to a tribal spending plan.
As of the start of fiscal year 2000, the federal budget
totals exclude trust funds that are held and managed in a
fiduciary capacity by the federal government on behalf of
Indian tribes. Hence, deposits to the trust fund established
under this bill would be treated as payments to a nonfederal
entity. As a result, CBO expects that the entire amount
deposited to the fund in 2011 would be recorded as budget
authority and outlays in that year. Because the trust fund
would be nonbudgetary, the subsequent use of such funds by the
tribe would not affect federal outlays.
Spending subject to appropriation
Title I would authorize the appropriation of such sums as
may be necessary to cover the administrative costs of the
Cheyenne River Sioux Tribal Recovery Trust Fund. Based on
information from the Department of the Interior, CBO estimates
that these costs would not be significant in any year.
Title II would authorize the Secretary of Defense, upon the
request of the state of New Mexico, to establish the Bosque
Redondo Memorial within the boundaries of Fort Sumner State
Monument. The bill would authorize appropriations totaling $2
million over the 2000-2002 period for the Secretary to make
grants to New Mexico for up to 50 percent of the cost of
constructing the monument. The bill would require the state to
match the federal contribution to be eligible for the grants.
Based on information from the state, CBO expects these matching
funds to be provided during 2000. Assuming appropriation of the
specified amounts, CBO estimates that the entire federal share
of the cost of constructing the monument would be spent during
the 2000-2004 period.
Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act sets up pay-as-you-go procedures
for legislation affecting direct spending or receipts. For the
purposes of enforcing pay-as-you-go procedures, only the
effects in the budget year and the succeeding four years are
counted. Although enacting this legislation would increase
direct spending by an estimated $492 million, pay-as-you-go
procedures would not apply to the bill because the outlay would
occur in fiscal year 2011.
Estimated impact on state, local, and tribal governments:
S. 964 contains no intergovernmental mandates as defined in
UMRA, but it would impose some conditions on the Cheyenne River
Sioux and on the state of New Mexico for receipt of federal
funds. Title I would require the tribe to prepare and adopt a
plan for using payments from the trust fund and to obtain an
audit of the funded expenditures. Based on information provided
by tribal officials, CBO does not expect that these
requirements would result in significant additional costs for
the tribe. Title II would require New Mexico to contribute
matching funds equal to 50 percent of the costs of constructing
the Bosque Redondo Memorial.
Estimated impact on the private sector: This bill contains
no new private-sector mandates as defined in UMRA.
Estimate prepared by: Federal costs: Megan Carroll. Impact
on state, local, and tribal governments: Marjorie Miller.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
regulatory impact statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill, S. 964, as amended. The Committee finds
that the regulatory impact of S. 964, as amended, will be
minimal.
executive communications
The Committee received the statement of Terry Virden,
Director, Office of Trust Responsibilities, Bureau of Indian
Affairs, U.S. Department of the Interior, on August 3, 1999,
regarding S. 964.
Statement of Terry Virden, Director, Office of Trust Responsibilities,
Bureau of Indian Affairs, Department of the Interior
Good morning Mr. Chairman and members of the Committee. I
am pleased to be here today to present the Department of the
Interior's views on S. 964. I want to thank Senator Daschle for
introducing this important bill that addresses impacts to the
Cheyenne River Sioux Tribe resulting from the Pick-Sloan
Missouri River Basin program and in particular the development
of the Oahe Dam and Reservoir project. If enacted, this bill
would give the Tribe much deserved benefits to compensate for
those impacts.
S. 964 is a continuation of the United States' honorable
efforts to correct inequities resulting from a regional Federal
project which severely affected Indian tribal homelands along
the Missouri River. In the early 1990's the United States
forthrightly addressed impacts to the Standing Rock Sioux Tribe
and the Three Affiliated Tribes of the Fort Berthold
Reservation and in 1996 and 1997, respectively, addressed the
impacts to the Crow Creek Sioux Tribe and the Lower Brule Sioux
Tribe.
In 1944, the United States undertook the challenge to
reduce flooding in the lower Missouri River Basin through the
construction of monumental dams capable of harnessing the
seasonal raging flows of the Missouri River. In addition, these
dams could generate electrical power and needed hundreds of
thousands of acres of land to serve as reservoirs for the
storage of water for timed release. So great was the water
resource that a whole regional economy grew from the electric
power generated by these dams.
The preproject tribal economy, however, was based on
working the rich wooded bottom lands along the Missouri River.
These lands were flooded for the reservoir and the Tribe has
never seen the former economy again. In addition, the
importance of cultural treasures lost to inundation is now
well-known. These are impacts that bring special meaning to the
word ``recovery'' used in Purpose Number 2 of S. 964.
While this is not the final chapter in addressing
compensation for all of the river Tribes in the region, a step
taken for the Cheyenne River Sioux Tribe will bring the United
States closer to providing full equity to these Missouri River
Tribes.
Although we support S. 964, we are still concerned about
the pay-as-you-go implications concerning the payment scheme to
be used to arrive at the total figure for the Cheyenne River
Sioux compensation. Additionally, as noted in testimony on S.
1905 during the 105th Session, the Administration is concerned
that this type of off-budget financing approach appears to be
without cost. A more straightforward approach would be to rely
on the authorization/discretionary appropriation process. We
will be happy to work with the Committee on developing a viable
solution.
This concludes my testimony in support of S. 964. I will be
happy to respond to any questions you may have. Thank you.
changes in existing law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill are required to be set out in the accompanying
Committee report. The Committee states that enactment of S. 964
will not result in any changes in existing law.