69–010 

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 proviVerDate Sep 11 2014 05:51 Nov 23, 2016 Jkt 069010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR381.XXX SR381

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sions 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 Can ̃ ada 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 Can ̃ ada 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 


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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 Can ̃ ada 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. 


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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. 


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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. 

øThe Secretary¿(a) IN GENERAL.—The Secretary of the Interior 

and the Secretary of the Army are authorized and directed to implement the settlement. øimplement— 

ø(1) the settlement agreement, and 

ø(2) the modifications regarding the use of the settlement 

funds as described in the agreement known as the ‘First 


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Amendment to Operation and Maintenance Agreement for Implementation of Cochiti Wetlands Solution’, executed— 

ø(A) on October 22, 2001, by the Army Corps of Engineers; 

ø(B) on October 25, 2001, by the Pueblo de Cochiti of 

New Mexico; and 

ø(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. 

øSEC. 2. DUTIES OF THE SECRETARY OF THE INTERIOR. 

øIn 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 


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agreement entitled ‘Amendment to the Settlement Agreement for Implementation of Cochiti Wetfields Solution’. 

Æ 


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