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[Senate Report 114-381]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 685
114th Congress     }                                    {       Report
                                 SENATE
 2d Session        }                                    {      114-381

======================================================================
 
   A BILL TO IMPROVE THE IMPLEMENTATION OF THE SETTLEMENT AGREEMENT 
 REACHED BETWEEN THE PUEBLO DE COCHITI OF NEW MEXICO AND THE CORPS OF 
                   ENGINEERS, AND FOR OTHER PURPOSES

                                _______
                                

               November 17, 2016.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 2643]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 2643) to improve the implementation of the settlement 
agreement reached between the Pueblo de Cochiti of New Mexico 
and the Corps of Engineers, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill, as amended, do pass.

                                Purpose

    The purpose of S. 2643 is to amend Public Law No. 102-358, 
which authorized a Settlement Agreement between the Pueblo de 
Cochiti, the United States Department of the Interior, and the 
United States Army Corps of Engineers. The bill would, among 
other purposes, authorize the transfer of responsibility for 
the Cochiti Dam drainage system to the Pueblo de Cochiti and 
release the United States from liability associated with that 
drainage system.

                          Need for Legislation

    This legislation is needed to amend the negotiated 
settlement entered into between the Pueblo and the United 
States for damages to the Pueblo's agricultural lands caused by 
seepage from the construction of the Cochiti Dam. The 
settlement agreement, which resulted in the construction of a 
drainage system by the United States on behalf of the Pueblo, 
is being amended to transfer responsibility for the operation 
and maintenance of the Cochiti Dam Drainage System to the 
Pueblo and to release the United States from liability 
associated with the drainage system. Other provisions of S. 
2643 authorize the use of accumulated reserve funds for the 
acquisition of ancestral lands (the Caada de Cochiti).

                               Background

    Congress authorized the construction of the Cochiti Dam in 
the Flood Control Act of 1960. This Act authorized the 
construction of the Cochiti Lake and dam by the United States. 
The dam was completed in 1970. Seepage caused by the 
construction of the dam resulted in damage to the agricultural 
lands for members of the Pueblo. The Pueblo brought suit 
against the federal government to remedy the seepage problems.
    The U.S. Army Corps of Engineers, Department of Interior 
(DOI), and the Department of Justice settled that lawsuit in 
the early 1990s by agreeing to install a drainage system in the 
dam to divert seepage away from Cochiti agricultural areas. 
Congress ratified the settlement terms in Pub. L. No. 102-358.
    The Operation and Maintenance Fund (O&M Fund) was 
established within the DOI in 1993 for the operation and 
maintenance of this drainage system. In April, 1994, 
approximately $4.5 million was transferred to the Bureau of 
Indian Affairs (BIA) to administer the drainage system O&M 
Fund. The Pueblo has administered, operated and maintained the 
Cochiti Dam drainage system for three decades pursuant to 
agreements under the Indian Self-Determination and Education 
Assistance Act of 1975, Pub. L. No. 93-638.
    When interest rates were high, the O&M Fund generated more 
interest each year than was expended on O&M activities. The O&M 
Fund agreement was amended by the parties in 2001 to authorize 
the use of some O&M fund reserves for an agricultural 
restoration program. That amendment was ratified by Congress in 
2004 by Pub. L. No. 108-204. Currently, the O&M Fund balance is 
still approximately $7 million.
    The Pueblo's ancestral villages and numerous sacred sites 
are located in the Canada de Cochiti, a parcel of ancestral 
lands adjacent to its current reservation. For 75 years, the 
Pueblo has sought to restore these historically and culturally 
significant lands to its reservation.
    In October 2015, the Pueblo, U.S. Army Corp of Engineers, 
and the DOI executed an amendment to the settlement. As part of 
this amendment the parties agreed to grant the Pueblo access to 
withdraw funds from the O&M Fund to purchase the Canada de 
Cochiti parcel.

                          Legislative History

    On March 7, 2016, Senator Udall introduced S. 2643 with 
Senator Heinrich as a cosponsor. The bill was referred to the 
Committee on Indian Affairs. On April 13, 2016, the Committee 
held a legislative hearing on the bill in which Nicholas 
Garcia, Governor of the Pueblo de Cochiti, testified in favor 
of the bill. The administration provided testimony in support 
of the bill. One amendment was offered by Senator Udall to 
prohibit gaming on any land acquired through the use of the O&M 
Fund. On February 4, 2015, the Committee met at a duly called 
business meeting to consider the bill and amendment. The 
Committee approved the amendment and the bill, as amended. The 
Committee then ordered the bill, as amended, to be reported 
favorably to the Senate by voice vote.

        Section-by-Section Analysis of Bill as Ordered Reported

Section 1--Short title

    Section 1 sets forth the short title of this Act as the 
Pueblo de Cochiti Self-Governance Act.

Section 2--Amendments

    Section 2 of the Act authorizes amendments to the 
implementation of the Pueblo de Cochiti Wetlands Settlement 
ratified in Pub. L. No. 102-358.
    The amendments modifying the settlement would transfer 
responsibility for the operation and maintenance of the Cochiti 
Dam Drainage System to the Pueblo, release the United States 
government from liability for the drainage system, and 
authorize the use of Accumulated Reserve Funds for the 
acquisition of the Canada de Cochiti ancestral lands.
    The section would also prohibit the Pueblo from conducting 
gaming on any lands acquired in the future through the use of 
these settlement funds.

                   Cost and Budgetary Considerations

    The following cost estimate, as provided by the 
Congressional Budget Office, dated October 27, 2016, was 
prepared for S. 2643:

                                                  October 27, 2016.
Hon. John Barrasso,
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. 2643, the Pueblo de 
Cochiti Self-Governance 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.
    Enclosure.

S. 2643--Pueblo de Cochiti Self-Governance Act

    Summary: S. 2643 would ratify a settlement agreement 
between the Pueblo de Cochiti of New Mexico (the pueblo) and 
the Army Corps of Engineers (Corps). The agreement would 
transfer responsibility for managing the Cochiti Dam drainage 
system from the Corps to the pueblo and would transfer all 
funds in the system's operation and maintenance fund to a 
tribal fund held in trust for the pueblo. The bill would 
prohibit certain types of gaming on any lands acquired by the 
pueblo using those funds.
    CBO estimates that enacting S. 2643 would increase direct 
spending by $5 million over the 2017-2026 period. Pay-as-you-go 
procedures apply because enacting S. 2643 would increase direct 
spending. Enacting the bill would not affect revenues.
    CBO estimates that enacting the legislation would not 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2027.
    S. 2643 contains no intergovernmental or private sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would benefit the pueblo. Any costs to the tribal 
government would be incurred voluntarily as a result of 
entering into the settlement agreement as ratified in the bill.
    Estimated cost to the Federal Government: The estimated 
budgetary effect of S. 2643 is shown in the following table. 
The costs of this legislation fall within budget function 450 
(community and regional development).

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  By fiscal year, in millions of dollars--
                                                   -----------------------------------------------------------------------------------------------------
                                                     2017    2018    2019    2020    2021    2022    2023    2024    2025    2026   2017-2021  2017-2026
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      INCREASES OR DECREASES (-) IN DIRECT SPENDING
 
Estimated Budget Authority........................       0       0       0       0       0       0       0       0       0       0         0          0
Estimated Outlays.................................       7       *       *       *       *       *       *       *       *       *         6          5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * = about -$200,000.

    Basis of estimate: For this estimate, CBO assumes that S. 
2643 will be enacted near the start 2017. The legislation would 
implement a settlement agreement between the Pueblo de Cochiti 
of New Mexico and the Corps and would transfer approximately $7 
million in federal funds to a tribal trust fund. The fund would 
be held in trust for the pueblo by the Office of the Special 
Trustee for American Indians.
    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. As a result, CBO expects that the entire amount 
transferred to this trust fund would be recorded as an outlay 
at the time of the transfer. The Secretary of the Interior 
would be required to invest the funds in government securities 
until those funds are expended by the tribe. (Any interest 
credited to this fund would be considered a means of financing 
and thus would not be recorded as an outlay on the budget.)
    S. 2643 also would transfer responsibility for the 
operation, maintenance, repair, and replacement of the Cochiti 
dam drainage system from the Corps to the pueblo. According to 
the Department of the Interior, approximately $200,000 is spent 
for operating and maintaining the system annually; those 
expenditures are not subject to annual appropriation. Because 
the operation and maintenance fund is currently considered a 
federal fund and is not the property of the tribe, expenditures 
from the fund are recorded as federal outlays. Therefore, CBO 
estimates that transferring operation and maintenance 
responsibilities to the pueblo would reduce direct spending by 
about $2 million over the 2017-2026 period.)
    Pay-As-You-Go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. The net changes in outlays that are subject to those 
pay-as-you-go procedures are shown in the following table.

           CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR S. 2643, AS ORDERED REPORTED BY THE SENATE COMMITTEE ON INDIAN AFFAIRS ON APRIL 27, 2016
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  By fiscal year, in millions of dollars--
                                                   -----------------------------------------------------------------------------------------------------
                                                     2017    2018    2019    2020    2021    2022    2023    2024    2025    2026   2017-2021  2017-2026
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       NET INCREASE OR DECREASE (-) IN THE DEFICIT
 
Statutory Pay-As-You-Go...........................       7       0       0       0       0       0       0       0       0       0         6          5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Components do not sum to totals because of rounding.

    Increase in long term direct spending and deficits: CBO 
estimates that enacting the legislation would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    Intergovernmental and private sector impact: S. 2643 
contains no intergovernmental or private sector mandates as 
defined in UMRA and would benefit the Pueblo de Cochiti of New 
Mexico. Any costs to the tribal government would be incurred 
voluntarily as a result of entering into the settlement 
agreement as ratified in the bill.
    Estimate prepared by: Federal Costs: Robert Reese; Impact 
on State, Local, and Tribal Governments: Rachel Austin; Impact 
on the Private Sector: Amy Petz.
    Estimate 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. 2643 will 
have a minimal impact on regulatory or paperwork requirements.

                        Executive Communications

    The Committee has received no communications from the 
Executive Branch regarding S.2643.

                 Changes in Existing Law (Cordon Rule)

    In accordance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 2643, as ordered reported, are shown as follows (existing 
law proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic):

 ACT of August 26, 1992 (To authorize funds for the implementation of 
the settlement agreement reached between the Pueblo de Cochiti and the 
United States Army Corps of Engineers under the authority of Public Law 
100-202, 25 USC 461 note. (Native American Technical Corrections Act of 
                                 2004)

SECTION 1. GENERAL AUTHORIZATION.

    [The Secretary](a) In General._The Secretary of the 
Interior and the Secretary of the Army are authorized and 
directed to implement the settlement. [implement--
          [(1) the settlement agreement, and
          [(2) the modifications regarding the use of the 
        settlement funds as described in the agreement known as 
        the `First Amendment to Operation and Maintenance 
        Agreement for Implementation of Cochiti Wetlands 
        Solution', executed--
                  [(A) on October 22, 2001, by the Army Corps 
                of Engineers;
                  [(B) on October 25, 2001, by the Pueblo de 
                Cochiti of New Mexico; and
                  [(C) on November 8, 2001, by the Secretary of 
                the Interior.]
    (b) Ratification.--Congress ratifies and approves the 
modifications regarding the use of the settlement funds and 
transfer of responsibility for the drainage system, as 
described in the agreement known as `Amendment to the 
Settlement Agreement for Implementation of Cochiti Wetfields 
Solution', executed on--
          (1) October 15, 2015, by the Department of the 
        Interior;
          (2) October 21, 2015, by the Corps of Engineers; and
          (3) October 27, 2015, by the Pueblo de Cochiti of New 
        Mexico.

[SEC. 2. DUTIES OF THE SECRETARY OF THE INTERIOR.

    [In accordance with the settlement agreement and pursuant 
to the trust relationship between the United States Government 
and the Pueblo de Cochiti of New Mexico, upon completion of 
construction of the drainage system, the Secretary of the 
Interior, acting through the Bureau of Indian Affairs, shall be 
responsible for its maintenance, repair, and replacement, as 
provided in the settlement agreement.]

SEC. 2. DUTIES OF THE SECRETARY OF THE INTERIOR.

    (a) In General.--In accordance with the settlement 
agreement and pursuant to the government-to-government 
relationship between the United States and the Pueblo de 
Cochiti of New Mexico and the modifications to the settlement 
agreement under section 1(b), the Pueblo de Cochiti of New 
Mexico, as an exercise of self-determination, assumes any and 
all legal and financial responsibility for the operation, 
maintenance, repair, and replacement of the drainage system.
    (b) No Responsibility for Drainage System.--The United 
States shall have no further legal or financial responsibility 
for the operation, maintenance, repair, or replacement of the 
drainage system.
    (c) Release From Liability.--Effective beginning on the 
date on which the Pueblo de Cochiti of New Mexico assumes all 
legal and financial responsibility for the operation, 
maintenance, repair, and replacement of the drainage system 
under subsection (a), the Pueblo de Cochiti of New Mexico, on 
behalf of the Pueblo de Cochiti of New Mexico and the members 
of the Pueblo de Cochiti of New Mexico, waives and releases the 
United States from all past, present, and future liability for 
any claim relating to the operation, maintenance, repair, or 
replacement of the drainage system.
    (d) Prohibition on Gaming.--Notwithstanding any other 
provision of law, no class I gaming, class II gaming, or class 
III gaming (as those terms are defined in section 4 of the 
Indian Gaming Regulatory Act (25 U.S.C. 2703)) may be carried 
out on any land acquired through the use of the settlement 
funds, as described in the agreement entitled `Amendment to the 
Settlement Agreement for Implementation of Cochiti Wetfields 
Solution'.

                                  [all]
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