```

[Senate Report 115-190]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 272
115th Congress      }                                   {       Report
                                 SENATE
 1st Session        }                                   {      115-190

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

 
                 KLAMATH TRIBE JUDGMENT FUND REPEAL ACT

                                _______
                                

                December 5, 2017.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 1223]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1223) to repeal the Klamath Tribe Judgment Fund Act, 
having considered the same, reports favorably thereon with an 
amendment and recommends the bill, as amended, do pass.

                                Purpose

    The bill, S. 1223, repeals Public Law 89-224, commonly 
referred to as the Klamath Tribe Judgment Fund Act.\1\ The bill 
is intended to promote the Klamath Tribes' ability to exercise 
its sovereign authority and discretion over tribal funds. S. 
1223 provides greater flexibility for the Tribes to access and 
use monies it was awarded following successful litigation 
against the United States.
---------------------------------------------------------------------------
    \1\An Act to provide for the disposition of judgment funds of the 
Klamath and Modoc Tribes and Yahooskin Band of Snake Indians, and for 
other purposes, Pub. L. No. 89-224, 79 Stat. 897, 897-898 (1965) 
(codified at 25 U.S.C. Sec. 565 et seq.).
---------------------------------------------------------------------------

                               Background

    On August 13, 1954, Congress passed Public Law 83-587, 
otherwise known as the Klamath Termination Act (1954 Act). The 
1954 Act established procedures for the sale of a portion of 
the reservation land belonging to members of the Klamath and 
Modoc Tribes and Yahooskin Band of Snake Indians (collectively, 
``Klamath Tribes''), and the termination of the federal 
government's trust relationship with the Tribe.\2\
---------------------------------------------------------------------------
    \2\An Act to provide for the termination of Federal supervision 
over the property of the Klamath Tribe of Indians located in the State 
of Oregon and the individual members thereof, and for other purposes, 
Pub. L. No. 83-587, 68 Stat. 718 (1954) (codified at 25 U.S.C. Sec. 564 
et seq.).
---------------------------------------------------------------------------
    As required by the 1954 Act, six months after passage, the 
Tribes submitted to the Secretary of the Interior a final roll 
consisting of 2,133 members.\3\ Klamath tribal members on the 
final roll were separated into two groups: those who would 
receive their share of the tribal estate in cash from a 
liquidation of tribal assets (i.e. the ``withdrawing 
members''), and those who would hold an undivided interest in 
the tribal estate to be managed by a private trustee (i.e. the 
``remaining members'').\4\ In addition to transferring rights 
in tribal property to the final enrollees, including their 
heirs and legatees, the 1954 Act specified that nothing would 
``prevent [either remaining or withdrawing members] from 
sharing in the proceeds of tribal claims against the United 
States.''\5\
---------------------------------------------------------------------------
    \3\22 Fed. Reg. 9303 (November 21, 1957).
    \4\The Long Struggle Home: The Klamath Tribes' Fight to Restore 
Their Land, People and Economic Self-Sufficiency, Native American 
Rights Fund Legal Review, Vol. 27, No. 1 at 5 (2002).
    \5\Id. supra, note 2 (codified at 25 U.S.C. Sec. 564e(c)).
---------------------------------------------------------------------------
    On August 13, 1946, Congress passed the Indian Claims 
Commission Act, creating a special forum in which Indian tribes 
could seek damages against the Federal government for, among 
other things, the cessation of land for inadequate 
compensation.\6\ Prior to the passage of the 1954 Act, the 
Klamath Tribes filed a claim with the Commission, the basis of 
which was unconscionable consideration paid for lands ceded by 
the treaty of October 4, 1864.\7\ Otherwise known as ``Docket 
100,'' this claim was settled on January 31, 1964 for $2.5 
million.\8\
---------------------------------------------------------------------------
    \6\An Act to create an Indian Claims Commission, to provide for the 
powers, duties, and functions thereof, and for other purposes, Pub. L. 
No. 79-726, 60 Stat. 1049 (1946). See generally An Act to authorize 
appropriations for the Indian Claims Commission for fiscal year 1977, 
and for other purposes, Pub. L. No. 94-465, 90 Stat. 1990 (1976) 
(providing for the eventual dissolution of the Indian Claims 
Commission).
    \7\The Treaty of October 14, 1864, obligated the United States to 
pay less than $300,000 for over one million acres of aboriginal land in 
southern Oregon and northern California.
    \8\Klamath and Modoc Tribes, et al. v. The United States of 
America, 13 Ind. Cl. Comm. 41, Docket No. 100 (1964).
---------------------------------------------------------------------------
    On October 1, 1965, Congress passed Public Law 89-224, 
otherwise known as the Klamath Tribe Judgment Fund Act, which 
directed the distribution of the Docket 100 settlement funds to 
both ``withdrawing'' and ``remaining'' members of the Tribe.\9\ 
In so doing, Congress required the Secretary of the Interior to 
make per-capita distributions to all living individuals listed 
on the August 13, 1954 roll. The share of any deceased enrollee 
would be paid to his or her heirs and legatees pursuant to the 
1954 Act.
---------------------------------------------------------------------------
    \9\Id. supra, note 1.
---------------------------------------------------------------------------
    In the years following the settlement of Docket 100, the 
Klamath Tribes were awarded three more judgments against the 
United States from the Indian Claims Commission for various 
claims including the mismanagement of tribal assets and 
unconscionable consideration paid for Reservation land.\10\ 
Like Docket 100, monies from these judgments were distributed 
pursuant to the Klamath Tribe Judgment Fund Act.
---------------------------------------------------------------------------
    \10\Klamath and Modoc Tribes and Yahooskin Band of Snake Indians v. 
The United States of America, 21 Ind. Cl. Comm. 343, Docket No. 100-A 
(1969) (The Tribe was awarded $4,162,992.80 for unconscionable 
consideration paid pursuant to a 1901 land-sale agreement); Klamath and 
Modoc Tribes and Yahooskin Band of Snake Indians v. The United States 
of America, 37 Ind. Cl. Comm. 2, Docket No. 100-C (1975) (The Tribe was 
awarded $785,000 for claims involving grazing and rights-of-way); 
Klamath and Modoc Tribes and Yahooskin Band of Snake Indians v. The 
United States of America, 39 Ind. Cl. Comm. 262, Docket No. 100-B-1 
(1977) (The Tribe was awarded $18,000,000 for mismanagement of tribal 
funds and properties, primarily timber and ranch lands).
---------------------------------------------------------------------------
    Under the Klamath Tribe Judgment Fund Act, distributions 
would only occur after the United States deducted litigation 
expenses and estimated costs of distribution.\11\ On April 15, 
1958, the Klamath Tribal Executive Committee passed a 
resolution authorizing the use of a $350,000 reserve fund for 
the reimbursement of attorney expenses for presentation of 
tribal claims. Any unused portion would remain in the U.S. 
Treasury to the credit of the Tribes.\12\
---------------------------------------------------------------------------
    \11\Id. supra note 1.
    \12\Id. See also Disposition of Klamath and Modoc Judgment Funds: 
Hearing before the Subcomm. on Indian Affairs of the H. Comm. on 
Interior and Insular Affairs, 89th Congress (May 13, 1965). See also 
H.R. Rep. No. 89-889, at 1 (1965) (Comm. Rep.).
---------------------------------------------------------------------------
    On August 27, 1986, the Klamath Tribes' federal trust 
relationship with the United States was restored with the 
passage of the Klamath Indian Tribe Restoration Act.\13\ 
Nevertheless, the Klamath Indian Tribe Restoration Act did not 
restore the Klamath Tribes' former reservation lands, and 
efforts to regain their tribal land base continue to this day.
---------------------------------------------------------------------------
    \13\The Klamath Indian Tribe Restoration Act, Pub. L. No. 99-398, 
100 Stat. 849 (1986).
---------------------------------------------------------------------------

                          Need for Legislation

    At present, the Klamath Tribes have no pending claims 
against the United States. Any distribution of remaining funds 
held in the U.S. Treasury, to the credit of the Tribes, will 
occur pursuant to the terms set forth by the Klamath Tribe 
Judgment Fund Act wherein the statute, rather than the tribal 
governing body, prescribes the distribution and use of the 
funds. However, compliance with the distribution terms of the 
Klamath Tribe Judgment Fund Act is cumbersome and expensive. 
Therefore, in order to ensure that any future distribution of 
successful claims against the United States will not encounter 
cumbersome bureaucracy, this bill repeals the Klamath Tribe 
Judgment Fund Act. Repeal ensures that tribal funds will be 
distributed to the Tribes in accordance with traditional 
notions of tribal sovereignty, allowing the Tribes to benefit 
from those funds and use them on their own terms as needed.

                          Legislative History

    On May 24, 2017, Senator Merkley introduced S. 1223, the 
Klamath Tribe Judgment Fund Repeal Act, and the bill was 
referred to the Committee. Senator Wyden is an original co-
sponsor. No companion bill has been introduced in the House.
    The Committee held a legislative hearing on S. 1223 on July 
12, 2017. In testimony before the Committee, Mr. Tony Dearman, 
Director of the Bureau of Indian Education, on behalf of the 
Department of the Interior, stated that the Department could 
not take a position on S. 1223. He further stated that the 
Department needed to better understand the manner in which a 
blanket repeal of the Klamath Tribe Judgment Fund Act would 
affect its trust responsibility to the Tribe.\14\ The Committee 
also received testimony from a Senior Attorney from the Native 
American Rights Fund, Mr. Donald R. Wharton, on behalf of the 
Klamath Tribe, noting the Tribe's full support of S. 1223.\15\
---------------------------------------------------------------------------
    \14\Legislative Hearing to Receive Testimony on S. 943, S. 1223, 
and S. 1285 Before the Senate Comm. on Indian Affairs, 115th Cong. 115-
76 (2017) (statement of Tony Dearman, Director, Bureau of Indian 
Education, U.S. Department of the Interior).
    \15\Id. (statement of Mr. Donald R. Wharton, Senior Attorney, 
Native American Rights Fund).
---------------------------------------------------------------------------

                        Committee Consideration

    The Committee considered S. 1223 at a duly called business 
meeting on October 25, 2017. Senator Udall, on behalf of 
Senator Merkley, filed one amendment to the bill. The 
amendment, timely filed and duly considered by the Committee, 
would add a third section to the bill to clarify that the 
Secretary of the Interior shall disburse the full balance of 
any remaining or reserve funds held in the U.S. Treasury to the 
Tribes as soon as practicable, after the date of enactment of 
S. 1223. The text of the amendment was based on the Department 
of the Interior's technical drafting assistance. Following the 
business meeting, the Department of the Interior informed the 
Committee of its support for S. 1223, as amended.

                      Section-by-Section Analysis

Section 1. Short title

    Section 1 sets forth the short title of this bill as the 
``Klamath Tribe Judgment Fund Repeal Act.''

Section 2. Repeal

    Section 2 contains a full repeal of Public Law 89-224, the 
Klamath Tribe Judgment Fund Act.

Section 3. Disbursement of remaining funds

    Section 3 requires the Secretary of the Interior, as soon 
as practicable following enactment, to disburse all remaining 
funds in trust accounts for legal fees and administrative 
expenses, as well as funds in per-capita trust accounts, to the 
Tribes.

                   Cost and Budgetary Considerations

    The following cost estimate, as provided by the 
Congressional Budget Office, dated November 20, 2017, was 
prepared for S. 1223:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 20, 2017.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1223, the Klamath 
Tribe Judgment Fund Repeal Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Robert Reese.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 1223--Klamath Tribe Judgment Fund Repeal Act

    S. 1223 would repeal the Klamath Tribe Judgment Fund Act, 
which authorizes the Department of the Interior (DOI) to 
establish and maintain a fund from which payments may be 
disbursed to Klamath Tribe members to satisfy any judgments 
obtained by the tribe. The bill also would require any amounts 
remaining in the fund upon its closure to be disbursed to the 
Klamath Tribe.
    According to information provided by DOI, about $600,000 
remains in the fund. That money is slated to be paid to almost 
200 members of the Klamath Tribe or to their next of kin, none 
of whom DOI has been able to locate. Assuming enactment of S. 
1223 near the beginning of 2018, CBO estimates that the 
$600,000 in the fund would be disbursed directly to the 
government of the Klamath Tribe during fiscal year 2018. 
Payments to certain tribal trust funds that are held and 
managed in a fiduciary capacity by the federal government on 
behalf of Indian tribes are treated as payments to a nonfederal 
entity. Thus, the balances remaining in the Klamath Tribe 
Judgment Fund were previously recorded as budget authority and 
outlays at the time those balances were deposited into the 
fund, and subsequent disbursement of those funds would have no 
effect on the federal budget.
    Enacting S. 1223 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting S. 1223 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 1223 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Robert Reese. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 1223 will 
have minimal impact on regulatory or paperwork requirements.

                        Executive Communications

    Except as otherwise noted, the Committee has received no 
communications from the Executive Branch regarding S. 1223.

                        Changes in Existing Law

    In accordance with Committee Rules, subsection 12 of rule 
XXVI of the Standing Rules of the Senate is waived. In the 
opinion of the Committee, it is necessary to dispense with 
subsection 12 of rule XXVI of the Standing Rules of the Senate 
to expedite the business of the Senate.

                                  [all]
```