29–010 

Calendar No. 710 

108TH CONGRESS REPORT " ! SENATE 2d Session 108–355 

PROVIDING COMPENSATION TO THE LOWER BRULE AND CROW CREEK 

SIOUX TRIBES OF SOUTH DAKOTA FOR DAMAGE TO TRIBAL LAND 

CAUSED BY PICK-SLOAN PROJECTS ALONG THE MISSOURI RIVER 

SEPTEMBER 21, 2004.—Ordered to be printed 

Mr. CAMPBELL, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 1530] 

The Committee on Indian Affairs to which was referred the bill 

(S. 1530) to provide compensation to the Lower Brule and Crow 

Creek Sioux Tribes of South Dakota for damage to tribal land 

caused by Pick-Sloan projects along the Missouri River having considered the same, reports favorably thereon with an amendment(s) 

and recommends that the bill (an amended) do pass. 

PURPOSE

The purpose of S. 1530 is to amend section 4(b) of the Crow 

Creek Sioux Tribe Infrastructure Development Trust Fund Act of 

1996 (P.L. 104–223) and section 4(b) of the Lower Brule Sioux 

Tribe Infrastructure Development Trust Fund Act (P.L. 105–132) 

by increasing the aggregate authorized amounts of deposits from 

the Pick-Sloan Missouri River power program into the tribal trust 

funds established under those acts. 

S. 1530, as amended, would increase the maximum aggregate deposit in the Lower Brule Sioux infrastructure development trust 

fund from $39,300,000 to $186,822,140 and would increase the 

maximum aggregate deposit in the Crow Creek Sioux Tribe infrastructure development trust fund from $27,500,000 to 

$105,917,853. These increases are intended to bring the total 

amount of compensation provided to these two Indian tribes for impacts caused by the Pick-Sloan Missouri River program into parity 

with the compensation provided by Congress to other Indian tribes 

for such impacts. 

2 

1The construction of the Fort Randall and Big Bend Dams inundated over 15,000 acres of 

land on the Crow Creek Indian Reservation and over 22,000 acres of land on the Lower Brule 

Indian Reservation. See S. Rept. 104–362 and S. Rept. 105–146. 2Overviews of the impacts that the Fort Randall and Big Bend Dams had on the Indian people living on the Crow Creek and Lower Brule Indian Reservations are included in the House 

and Senate committee reports accompanying the two enactments (H. Rept. 104–765, S. Rept. 

104–362, and S. Rept. 105–146). 3See, Indian Issues: Compensation Claims Analyses Overstate Economic Losses (GAO/RCED– 

91–77, May 21, 1991). 

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. The dam construction projects undertaken pursuant to the 

Pick-Sloan Program impacted several tribes whose reservation 

lands were located within the Missouri River basin. Two of these 

tribes, the Crow Creek Sioux Tribe and the Lower Brule Sioux 

Tribe, were impacted by two significant dam construction projects 

located on the Missouri River—the Fort Randall Dam and the Big 

Bend Dam. Construction of the Fort Randall Project began in 1946 

and that of the Big Bend Project in 1960. Both projects resulted in 

the inundation of several thousands of acres of land on the reservations of the two Indian tribes.1

Although Congress attempted to mitigate the impacts of these 

two projects on the two reservations and the Indian people who 

were living on them by enacting, in 1962, the Big Bend Recovery 

Act (P.L. 87–735), the insufficiency of the Government’s mitigation 

efforts pursuant to that act eventually led to the enactment of the 

Crow Creek Sioux Tribe Infrastructure Development Trust Fund 

Act of 1996 (P.L. 104–223) and, one year later, the Lower Brule 

Sioux Tribe Infrastructure Development Trust Fund Act (P.L. 105– 

132).2

P.L. 104–223 and P.L. 105–132 each created an infrastructure 

development trust fund for the respective tribe, the principal balance of which was to be derived from a percentage of the annual 

receipts deposited into the United States Treasury from the PickSloan Missouri River basin power program. Each act authorized 

payments to the tribe of the interest earned on the principal balance of the trust fund for expenditure on projects and activities 

specified in the legislation. The aggregate principal amount authorized to be deposited into the Crow Creek Sioux Tribe infrastructure 

development trust fund was $27,500,000, and the aggregate principal amount authorized to be deposited into the Lower Brule Sioux 

Tribe infrastructure development trust fund was $39,300,000. 

On June 15, 2004, the Committee held a hearing on S. 1530 and 

received testimony of several witnesses, including the bill’s sponsor, 

Senator Daschle, and an expert witness who stated that the compensation levels authorized by P.L. 104–223 and P.L. 105–132 for 

the Crow Creek and Lower Brule Sioux Tribes, respectively, were 

based on the ‘‘per acre value of the 1992 Fort Berthold/Standing 

Rock legislation (Public Law 102–575),’’ in contrast to the methodology recommended in a 1991 General Accounting Office (GAO) report that was used to calculate compensation for other tribes that 

sustained Pick-Sloan related damages.3

3 

4The Lower Brule and Crow Creek Sioux Tribes of South Dakota: Parity Compensation for 

Losses from Missouri River Pick-Sloan Dam Projects, by Michael L. Lawson, Ph.D., June 15, 

2004. 5The committee reports for the House and Senate both noted that the Cheyenne River Sioux 

legislation enacted in 2000 utilized the 1991 GAO report formula. See, H. Rept. 106–944 and 

S. Rept. 106–217. 

The Committee’s hearing record includes the testimony and a report 4 by Michael L. Lawson, Ph.D., regarding the impacts of the 

Pick-Sloan Plan on several tribes within the Missouri River basin 

and comparing the compensation levels that have been provided to 

date to those tribes, including the Lower Brule and Crow Creek 

Sioux Tribes. This testimony and report analyze the compensation 

levels of the Lower Brule and Crow Creek Sioux Tribes for their 

respective Pick-Sloan Program damages pursuant to P.L. 87–735, 

P.L. 104–223 and P.L. 105–132, compared to the compensation authorized for the Three Affiliated Tribes of Fort Berthold and the 

Standing Rock Sioux in 1992 pursuant to P.L. 102–575 and for the 

Cheyenne River Sioux Tribe in 2000 pursuant to title I of P.L. 106– 

511,5 and concludes that compensation has not been provided to 

the tribes in a consistent manner. In supplemental testimony provided to the Committee, Dr. Lawson points out that before the 

Cheyenne River Sioux legislation in 2000, the 1991 GAO formula 

had not been applied to any tribe in South Dakota. Using the 1991 

GAO ‘‘AAA corporate bond rate formula’’ to calculate the additional 

amounts due to the Lower Brule and Crow Creek Sioux Tribes 

through 2004, Dr. Lawson informed the Committee that the two 

tribes’ respective development funds should be increased to 

$186,822,140.00 (Lower Brule Sioux Tribe) and $105,917,853 (Crow 

Creek Sioux Tribe). 

SUMMARY OF PROVISIONS

Section 1 of 5.1530 sets forth the short title, ‘‘Tribal Parity Act.’’ 

Section 2, the findings section, recognizes that several tribes 

along the Missouri River have suffered injury and received compensation as the result of Pick-Sloan projects—including the Lower 

Brule and Crow Creek Sioux Tribes—but that the compensation 

provided to the tribes has not been consistent. The intent of the bill 

is to bring the compensation made available to the Lower Brule 

and Crow Creek Sioux Tribes into parity with that made available 

to the other tribes that have been compensated for impacts caused 

by Pick-Sloan Projects. 

4 

6 At the Committee’s business meeting held on July 14, 2004, the Committee approved the 

bill with two amendments: section 3 of S. 1530 would be amended to provide for an aggregate 

deposit of $186,822,140.00 into the Lower Brule Sioux Tribe Infrastructure Development Trust 

Fund, and section 4 of S. 1530 would be amended to provide for an aggregate deposit of 

$105,917,853.00 into the Crow Creek Sioux Tribe Infrastructure Development Trust Fund. The 

bill as introduced stated compensation levels through the year 2003; the Committee amendments are intended to provide an additional year’s interest under the 1991 GAO formula. 

As amended,6 section 3 of S. 1530 would amend section 4(b) of 

the Lower Brule Sioux Tribe Infrastructure Development Trust 

Fund Act (P.L. 105–132) by increasing the aggregate authorized 

amount of deposits from the Pick-Sloan Missouri River power program into that tribe’s trust fund from $39,300,000 to $186,822,140. 

Section 4 would amend section 4(b) of the Crow Creek Sioux Tribe 

Infrastructure Development Trust Fund Act of 1996 (P.L. 104–223) 

by increasing the aggregate authorized amount of such deposits 

into the Crow Creek Sioux Tribe’s trust fund from $27,500,000 to 

$105,917,853. 

LEGISLATIVE HISTORY

S. 1530 was introduced by Senator Daschle on July 31, 2003, and 

referred to the Committee on Indian Affairs. Senator Johnson 

joined as a cosponsor on February 12, 2004. The Committee held 

a hearing on the bill on June 15, 2004, and at a business meeting 

held on July 14, 2004, approved the bill with the amendments described above. 

COMMITTEE RECOMMENDATION

The Committee on Indian Affairs, at a business meeting held on 

July 14, 2004, approved S. 1530 with the above-described amendments to the dollar amounts set forth in sections 3 and 4 of the 

bill and ordered the bill, as amended, to be reported favorably to 

the Senate. 

SECTION-BY-SECTION ANALYSIS OF S. 1530 (AS AMENDED) 

Section 1 of S. 1530 sets forth the short title, ‘‘Tribal Parity Act.’’ 

Section 2 sets forth the Congressional findings. 

Section 3, with the Committee amendment, amends section 4(b) 

of the Lower Brule Sioux Tribe Infrastructure Development Trust 

Fund Act by increasing the maximum aggregate amount of deposits 

into the tribe’s infrastructure development trust fund from 

$39,300,000 to $186,822,140. 

Section 4, with the Committee amendment, amends section 4(b) 

of the Crow Creek Sioux Tribe Infrastructure Development Trust 

Fund by increasing the maximum aggregate amount of deposits 

into the tribe’s infrastructure development trust fund from 

$27,500,000 to $105,917,853. 

COST AND BUDGETARY CONCERNS

The costs estimate for S. 1530, as provided by the Congressional 

Budget Office, is set forth below. 

5 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, August 25, 2004. 

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. 1530, the Tribal Parity Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mike Waters. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN, 

Director. 

Enclosure. 

S. 1530—Tribal Parity Act 

Summary: S. 1530 would increase the total amounts to be transferred from the Treasury into two existing Indian tribal trust 

funds. Those funds were created to compensate the Crow Creek 

Sioux and Lower Brule Sioux tribes for damages caused by the 

Pick-Sloan water projects along the Missouri River. CBO estimates 

that enacting S. 1530 would increase direct spending by $226 million over the 2004–2014 period. Enacting the bill would not affect 

revenues. 

S. 1530 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would impose no costs on state, local, or tribal governments. 

Estimated Cost to the Federal Government: The estimated budgetary impact of S. 1530 is shown in the table below. The costs of 

this legislation fall within budget function 450 (community and regional development). 

Basis of Estimate: For this estimate, CBO assumes that the bill 

will be enacted this fall and that payments to the two tribes will 

begin in fiscal year 2005. 

6 

By fiscal years, in millions of dollars— 

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 

CHANGES IN DIRECT SPENDING 

Payments to Crow Creek Sioux Tribe Infrastructure Development Trust Fund: 

Estimated Budget Authority ....................................... 28 30 20 0 0 0 0 0 0 0 

Estimated Outlays ...................................................... 28 30 20 0 0 0 0 0 0 0 

Payments to Lower Brule Sioux Tribe Infrastructure Development Trust Fund: 

Estimated Budget Authority ....................................... 28 30 30 30 30 0 0 0 0 0 

Estimated Outlays ...................................................... 28 30 30 30 30 0 0 0 0 0 

Total Payments to Both Funds 

Estimated Budget Authority ....................................... 56 60 50 30 30 0 0 0 0 0 

Estimated Outlays ...................................................... 56 60 50 30 30 0 0 0 0 0 

The Crow Creek Sioux Tribe Infrastructure Development Trust 

Fund (Crow Creek Fund) and the Lower Brule Sioux Tribe Infrastructure Development Trust Fund (Lower Brule Fund) were created by Congress in 1996 and 1997 to compensate the Crow Creek 

and Lower Brule Sioux tribes for damages caused by the PickSloan water projects along the Missouri River. The Crow Creek 

Fund was fully capitalized to its authorized size with one payment 

of $28 million in 1997. The Lower Brule Fund was fully capitalized 

to its authorized size with one payment of $39 million in 1998. 

S. 1530 would increase the maximum size of each fund, with the 

additional deposits to be derived from proceeds from the sale of 

electric power from the Pick-Sloan Missouri River Basin project. 

Each fund would receive an amount equal to 25 percent of the annual proprietary receipts from that project until deposits reach the 

new maximum levels specified in the bill. Under this bill, the Crow 

Creek Fund would increase by $78 million (for a new maximum of 

$106 million), and the Lower Brule Fund by $148 million (for a 

new maximum of $187 million). 

According to the Western Area Power Administration (WAPA), 

the agency that administers the Pick-Sloan project, receipts from 

the Pick-Sloan project are likely to total $110 million in 2005 and 

average about $119 million a year thereafter. That suggests that 

up to $30 million would be deposited in each fund each year until 

the new ceilings are met. At those levels, CBO estimates that it 

would take about three years to reach the new maximum level for 

the Crow Creek fund and five years for the Lower Brule Fund. 

Payments to certain 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, under 

this bill, CBO expects that the entire amount deposited to either 

fund in any year would be recorded as budget authority and outlays in that year. Because the trust funds would be nonbudgetary, 

the subsequent use of such funds by the tribe would not affect federal outlays. 

Intergovernmental and private-sector impact: S. 1530 contains no 

intergovernmental or private-sector mandates as defined in UMRA 

and would impose no costs on state, local, or tribal governments. 

Enacting this legislation would benefit the two tribes. 

Estimate prepared by: Federal Costs: Mike Waters; Impact on 

State, Local, and Tribal Governments: Marjorie Miller; and Impact 

on the Private Sector: Selena Caldera. 

7 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

EXECUTIVE COMMUNICATIONS

The Committee has received no executive communications relating to S. 1530. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires that each report accompanying a bill evaluate the regulatory and paperwork impact that would be incurred in carrying 

out the bill. The Committee believes that the regulatory and paperwork impacts of S. 1530 will be minimal. 

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee has determined that the enactment of S. 1530 will effect the following changes in existing law: 

Section 4(b) of the Lower Brule Sioux Tribe Infrastructure Development Trust Fund Act ( P.L. 105–132; 111 Stat. 2565): 

(b) FUNDING.—Beginning with fiscal year 1998, and for each fiscal year thereafter, until such time as the aggregate of the 

amounts deposited in the Fund is equal to ø$39,300,000¿ 

$186,822,140, the Secretary of the Treasury shall deposit into the 

Fund an amount equal to 25 percent of the receipts from the deposits to the Treasury of the United States for the preceding fiscal 

year from the Program. 

Section 4(b) of the Crow Creek Sioux Tribe Infrastructure Development Trust Fund Act of 1996 (P.L. 104–223; 110 Stat. 3027): 

(b) FUNDING.—Beginning with fiscal year 1997, and for each fiscal year thereafter, until such time as the aggregate of the 

amounts deposited in the Fund is equal to ø$27,500,000¿ 

$105,917,853, the Secretary of the Treasury shall deposit into the 

Fund an amount equal to 25 percent of the receipts from the deposits to the Treasury of the United States for the preceding fiscal 

year from the Program. 

Æ