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S. HRG. 108–620

TRIBAL PARITY ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

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

JUNE 15, 2004

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 1530, text of ......................................................................................................... 3

Statements:

Big Eagle, Sr., Duane, chairman, Crow Creek Sioux Tribe .......................... 10

Daschle, Hon. Tom, U.S. Senator from South Dakota .................................. 6

Jandreau, Michael, chairman, Lower Brule Sioux Tribe .............................. 10

Johnson, Hon. Tim, U.S. Senator from South Dakota .................................. 1

Lawson, Michael L., senior associate, Morgan, Angel and Associates, Public Policy Consultants ................................................................................... 8

Mooney, Ross, acting director of Trust Services, BIA, Department of

the Interior .................................................................................................... 7

APPENDIX

Prepared statements:

Big Eagle, Sr., Duane ....................................................................................... 19

Jandreau, Michael ............................................................................................ 21

Lawson, Michael L. (with attachments) ......................................................... 25

Mooney, Ross .................................................................................................... 113

Additional material submitted for the record:

Letter from M. Michaels Rounds, Governor, State of South Dakota ........... 114

(1)

TRIBAL PARITY ACT

TUESDAY, JUNE 15, 2004

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC.

The committee met, pursuant to notice, at 11:08 a.m. in room

485, Senate Russell Building, Hon. Tim Johnson, (acting chairman

of the committee), presiding.

Present: Senator Johnson.

STATEMENT OF HON. TIM JOHNSON, U.S. SENATOR FROM

SOUTH DAKOTA

Senator JOHNSON. I will bring the Senate Committee on Indian

Affairs to order.

Today, the Committee on Indian Affairs will conduct a hearing

regarding S. 1530, a bill 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.

Before we begin, I want to thank Chairman Campbell and Vice

Chairman Inouye for permitting this hearing to take place. I also

want to thank their staffs for their assistance in making this happen.

I want to especially thank Senator Daschle for his leadership on

Missouri River issues in general. Senator Daschle was instrumental in getting the Crow Creek Sioux Tribe and Lower Brule Sioux

Tribe Infrastructure Development Trust Fund Acts passed to begin

with. Senator Daschle’s leadership on Indian issues is a blessing to

our tribes throughout South Dakota, and truly our tribes have no

better friend in Washington than my friend and colleague, Senator

Tom Daschle.

I want to welcome our South Dakota witnesses to the committee.

Chairman Jandreau of the Lower Brule Tribe is truly the Dean of

our tribal leaders. As a tribal leader for over 30 years, I rely on

his experience and perspective and I appreciate the wisdom that he

has so kindly provided my office throughout the years.

I also want to extend a big welcome to Chairman Big Eagle of

the Crow Creek Tribe. This past year has presented Duane with

many challenges. Chairman Big Eagle has been a tireless advocate

for the children of Crow Creek, whether it has been advocating for

better educational facilities or for real solutions for the youth suicide crisis on his reservation. During these challenging times, I appreciate the leadership that Chairman Big Eagle has dem-
2

onstrated. Thank you for your friendship and I am pleased that

Diane could join you here for the hearing today.

I want to welcome Norm Thompson and Crystal Kirkie of the

Crow Creek Tribal Council, as well as Chairman Frazier of the

Cheyenne River Sioux Tribe to this committee, and thank them for

being part of this important hearing, and for all that they do for

their constituents, for their people.

The Lower Brule Sioux Tribe and the Crow Creek Tribe were

both impacted by two significant dam projects located on the Missouri River, the Fort Randall Dam and the Big Bend Dam. Both

projects resulted in the inundation of several thousands of acres of

land on the reservations of these two Indian tribes. In 1962, 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 the Big Bend Recovery Act. This Act was insufficient. Thus, Congress felt it was necessary to enact the Crow Creek

Sioux Tribe Infrastructure Development Trust Fund Act of 1996,

and then one year later, the Lower Brule Sioux Tribe Infrastructure Development Trust Fund Act.

Both these Acts created an infrastructure development trust fund

for the respective tribes. Last year, Senator Daschle sponsored, and

I cosponsored, S. 1530. This bill recognizes the need to amend the

Acts, compensating these tribes at a more appropriate level. It is

with great pleasure that I recognize first Leader Daschle, followed

by four witnesses, Ross Mooney, Chairman Michael Jandreau,

Chairman Duane Big Eagle, and Dr. Mike Lawson.

[Text of S. 1530 folows:]
3

1

II

108TH CONGRESS

1ST SESSION 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.

IN THE SENATE OF THE UNITED STATES

JULY 31 (legislative day, JULY 21), 2003

Mr. DASCHLE introduced the following bill; which was read twice and referred

to the Committee on Indian Affairs

A BILL

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Tribal Parity Act’’.

5 SEC. 2. FINDINGS.

6 Congress finds that—

7 (1) the Pick-Sloan Missouri River Basin Pro8 gram (authorized by section 9 of the Act of Decem9 ber 22, 1944 (commonly known as the ‘‘Flood Con-
4

2

•S 1530 IS

1 trol Act of 1944’’) (58 Stat. 891)), was approved to

2 promote the general economic development of the

3 United States;

4 (2) the Fort Randall and Big Bend dam and

5 reservoir projects in South Dakota—

6 (A) are major components of the Pick7 Sloan Missouri River Basin Program; and

8 (B) contribute to the national economy;

9 (3) the Fort Randall and Big Bend projects in10 undated the fertile bottom land of the Lower Brule

11 and Crow Creek Sioux Tribes, which greatly dam12 aged the economy and cultural resources of the

13 Tribes;

14 (4) Congress has provided compensation to sev15 eral Indian tribes, including the Lower Brule and

16 Crow Creek Sioux Tribes, that border the Missouri

17 River and suffered injury as a result of 1 or more

18 Pick-Sloan Projects;

19 (5) the compensation provided to those Indian

20 tribes has not been consistent;

21 (6) Missouri River Indian tribes that suffered

22 injury as a result of 1 or more Pick-Sloan Projects

23 should be adequately compensated for those injuries,

24 and that compensation should be consistent among

25 the Tribes; and
5

3

•S 1530 IS

1 (7) the Lower Brule Sioux Tribe and the Crow

2 Creek Sioux Tribe, based on methodology deter3 mined appropriate by the General Accounting Office,

4 are entitled to receive additional compensation for

5 injuries described in paragraph (6), so as to provide

6 parity among compensation received by all Missouri

7 River Indian tribes.

8 SEC. 3. LOWER BRULE SIOUX TRIBE.

9 Section 4(b) of the Lower Brule Sioux Tribe Infra10 structure Development Trust Fund Act (Public Law 105–

11 132; 111 Stat. 2565) is amended by striking

12 ‘‘$39,300,000’’ and inserting ‘‘$176,398,012’’.

13 SEC. 4. CROW CREEK SIOUX TRIBE.

14 Section 4(b) of the Crow Creek Sioux Tribe Infra15 structure Development Trust Fund Act of 1996 (Public

16 Law 104–223; 110 Stat. 3027) is amended by striking

17 ‘‘$27,500,000’’ and inserting ‘‘$100,244,040’’.

Æ
6

Senator JOHNSON. I know that we are anticipating a vote sometime around 12:10 this afternoon so I am going to do what I can

to expedite the testimony here. Before we go to the first panel, I

defer to South Dakota’s Senior Senator, the Democratic Leader,

Senator Tom Daschle.

Welcome, Tom.

STATEMENT OF HON. THOMAS A. DASCHLE, U.S. SENATOR

FROM SOUTH DAKOTA

Senator DASCHLE. Thank you very much, Tim, first for chairing

this important hearing and for cosponsoring S. 1530. Your leadership and commitment to Native Americans and the incredible work

that you invest on a daily basis on their behalf is widely recognized. Once again, your presence here this morning is yet the latest

illustration of your commitment to these issues.

I, like you, would like to thank Chairman Campbell and Vice

Chairman Inouye and their remarkable staffs for their cooperation

and the effort that they have made to allow us to have this hearing

today. Like you, I also want to welcome our chairs, Mike Jandreau

and Duane Big Eagle, remarkable chairs that have done so much

on behalf of their people; and recognize as well Chairman Harold

Frazier of Cheyenne River who certainly knows the consequences

of damming the Missouri River as well as anybody in our State.

Because of the interest that you noted in finishing our hearing

within an hour, I want to be very brief this morning. Let me simply

say that the consequences of the dams and the construction of

those dams was devastating for people who lived and generated

their livelihoods all along the Missouri River. Land, homes, local

economies, entire communities were actually destroyed. Families

who lived along the river were forced into housing, oftentimes inadequate and poorly constructed. Many lost their whole way of life.

The compensation from the Federal Government could never possibly be sufficient to deal with the loss that many of these people

experienced. We can never erase the damage that has been done.

But if we have an obligation, we have an obligation to do the best

we can to rebuild what some have lost in the best way we know

how. That really is what the Joint Tribal-Federal Advisory Committee, or so-called JTAC legislation passed over the last few years

has been designed to do.

Chairmen Jandreau and Big Eagle can tell you how they have

used that compensation for the benefit of their people. But in the

various JTAC bills, different methodologies for calculating compensation have now been used. S. 1530 is an attempt to level the

playing field for all the affected tribes. Knowing there is confusion

about what truly constitutes parity, it is a complicated equation

and I am very pleased that Mike Lawson, who is a real expert, can

be here to explain how we might define it in policy terms, hoping

this hearing will move us one step forward and closer to achieving

a final and most importantly the just compensation to all tribes

that were so devastated by the Pick-Sloan flooding and all of the

experiences that came as a result of it.

So Mr. Chairman, I thank you again for your commitment to this

legislation. I thank our tribal leaders for their willingness to come

to express again the need for early passage of this bill. My hope
7

is that once and for all we can make the commitment on behalf of

the Federal Government that needs to be made in support of the

many, many thousands of Native Americans who lost so much with

the construction of the dams, now some 50 years ago.

I thank you for your chairing this hearing this morning, and I

will turn the dais over to my colleagues from South Dakota.

Senator JOHNSON. Thank you, Senator Daschle, for your extraordinary leadership. I think it is fair to say that Congress would not

even be to the point of debating this issue were it not for your leadership and your guidance on this matter.

I appreciate that you have ongoing obligations on the floor, and

certainly understand if you felt a need to return to the Capitol.

Thank you again for your statement this morning, and I look forward to working very closely with you and with our tribal leaders

in South Dakota on this issue.

Senator DASCHLE. Thank you, Mr. Chairman.

Senator JOHNSON. Our first panel this morning consists of Ross

Mooney who is acting director of Trust Services, Bureau of Indian

Affairs [BIA], Department of the Interior here in Washington, DC.

Welcome, Mr. Mooney. Your entire written statement will be received in the record, so if you so choose to summarize in an oral

fashion, that is very acceptable to the Chair.

STATEMENT OF ROSS MOONEY, ACTING DEPUTY DIRECTOR,

OFFICE OF TRUST SERVICES, BIA, DEPARTMENT OF THE

INTERIOR.

Mr. MOONEY. Thank you.

Good morning, Mr. Chairman and members of the committee. I

am pleased to be here today to present the views of the Administration on S. 1530, the Tribal Parity Act.

If enacted, S. 1530 would increase the compensation to the Lower

Brule and Crow Creek Tribes for their loss of lands and cultural

resources as a result of the Pick-Sloan project. The intent of this

legislation is to put the compensation on par with that provided to

similarly situated tribes in the region that have already received

compensation for losses resulting from Pick-Sloan.

Section 2 of S. 1530 references a methodology determined appropriate by the General Accounting Office. We are under the assumption the sponsors are referring to the GAO reports of May 1991

concerning the Fort Berthold and Standing Rock Sioux Tribes; and

January 1998 concerning the Cheyenne River Sioux, in which questions were raised about the calculations used to determine the

amounts of the compensation provided.

Within appendix 3 of the January 1998 GAO report, there is a

table which states in the footnotes that dollar amounts shown are

not comparable. The original payments authorized and the additional compensation authorized are not comparable across the five

reservations or with each other. In 1991, testimony provided on behalf of GAO stated the question of whether additional compensation should be provided to the tribes is a policy decision for the

Congress.

To summarize, the Department is not in a position to comment

on whether these two tribes were equitably compensated that at

this time. However, we will be happy to work with the sponsor of
8

the bill, this committee, and the tribes to determine if, in fact,

there was an inequitable calculation regarding the original principal amounts.

This concludes my testimony and I will be happy to respond to

any questions you may have.

Thank you.

[Prepared statement of Mr. Mooney appears in appendix.]

Senator JOHNSON. Thank you for your testimony today, Mr.

Mooney. We on the committee, I think it is fair to say, recognize

that this is a policy determination that ultimately needs to be

made. On the other hand, it is important that that determination

not be made on some random basis and that there be a sense of

fairness and uniformity to however it is we do approach the resolution of the compensation package.

I would simply say, I would hope that, as you indicated in your

statement, that you would be willing to work with us in a constructive fashion to create an equitable compensation package for the

Lower Brule and the Crow Creek Tribes.

Mr. MOONEY. Surely.

Senator JOHNSON. We very much appreciate that and we recognize your expertise in this area, and we will be working closely

with you, Mr. Mooney. Thank you for your testimony.

Mr. MOONEY. Thank you.

Senator JOHNSON. The second panel this morning consists of Michael Lawson, Ph.D., senior associate, Morgan, Angel and Associates, Public Policy Consultants of Washington, DC; also Michael

Jandreau, chairman, Lower Brule Sioux Tribe of Lower Brule, SD;

and Duane Big Eagle, Sr., chairman, Crow Creek Sioux Tribe of

Fort Thompson, SD.

Would you please join us at the witness table?

Mr. Lawson, welcome to the hearing this morning. We will begin

this panel with your testimony. As I indicated earlier, your full

statement is received for the record. If you choose to summarize in

oral fashion, that is acceptable to the committee.

STATEMENT OF MICHAEL L. LAWSON, SENIOR ASSOCIATE,

MORGAN, ANGEL AND ASSOCIATES, PUBLIC POLICY CONSULTANTS

Mr. LAWSON. Thank you.

Mr. Chairman and members of the committee, I am Mike

Lawson, a historian with Morgan, Angel and Associates, a public

policy consulting firm here in Washington. I am grateful to have

the opportunity to testify today in regard to S. 1530, the Tribal

Parity Act. With your permission, Mr. Chairman, I would like to

provide my written statement for the hearing record, along with

my report entitled, Parity Compensation for Losses from Missouri

River Pick-Sloan Dam Projects, and then summarize my findings.

Senator JOHNSON. Without objection, these documents are received into the record.

[Referenced documents appears in appendix.]

Mr. LAWSON. I was asked to review the proposed Tribal Parity

Act in light of previous compensation that Congress has provided

to tribes impacted by the Pick-Sloan Dam projects, based on a

methodology approved by the General Accounting Office. The bot-
9

tom line, Mr. Chairman, is that both the Lower Brule Sioux Tribe

and the Crow Creek Sioux Tribe are due additional compensation

from the United States if parity is to be maintained among the

Missouri River tribes.

Please allow me to elaborate. On two prior occasions, Congress

has provided final settlements to Missouri River tribes based on a

methodology for determining fair compensation recommended by

the GAO in 1991. The 102d Congress enacted Public Law 575 in

1992 which authorized the establishment of a recovery trust fund

capitalized at $149.2 million for the Three Affiliated Tribes of the

Fort Berthold Reservation in North Dakota. The 106th Congress

approved Public Law 511 in 2000, which appropriated $290.7 million for the establishment of a recovery trust fund for the Cheyenne

River Sioux Tribe of South Dakota.

The method for determining additional compensation approved

by Congress in these two prior statutes was based on a calculation

of the difference between the amounts determined by the tribes to

be warranted at the time of taking, and the amounts that Congress

eventually provided to them as compensation. The compensation

recommended by the GAO in 1991 and reiterated in a 1998-GAO

report on the Cheyenne River compensation, was to take the difference between the amounts requested by the tribes and the

amounts appropriated by Congress and add to that difference the

average annual rate of interest that would have accrued over time

had the amount of difference been invested in AAA-rated corporate

bonds. AAA is the highest grade of corporate bonds as determined

by bond rating services such as Moody’s Investment Services.

In accordance with this method of determining fair compensation, the Lower Brule Sioux Tribe is entitled to a parity payment

and additional final compensation of $147,082,140, and the Crow

Creek Sioux Tribe to $78,417,853, for their Pick-Sloan damages.

The calculations on which these amounts are based are summarized in the table I have provided to the committee entitled, Basis

for Parity Compensation. I would be happy to walk the committee

through these numbers, either now or at any time in the future.

The damages suffered by the Lower Brule and Crow Creek Sioux

Tribes as a result of the Fort Randall and Big Bend Dam projects

are comparable to the impacts of the Garrison Dam on the Three

Affiliated Tribes at Fort Berthold and of the Oahe Dam on the

Cheyenne River Sioux Tribe. This is especially true in regard to the

loss of natural resources and reservation infrastructure, and the

forced relocation of tribal members.

I have concluded based on my review that additional compensation for the Lower Brule and Crow Creek Sioux Tribes is warranted and required if the United States is to treat all of the Missouri tribes equally. I therefore support S. 1530 as being a consistent, accurate and a fair method by which the Federal Government

can provide parity to all of the Missouri River Tribes.

This concludes my remarks. I would be happy to answer any

questions that you may have.

[Prepared statement of Mr. Lawson appears in appendix.]

Senator JOHNSON. Thank you, Dr. Lawson. I think what we will

do is conclude the testimony of this panel and then reserve questions for after that testimony has been provided.
10

The committee also welcomes Marshall Matz to the table as well,

a highly respected counsel here in Washington on these kinds of

issues.

Second on our panel today we will turn to Chairman Jandreau

for your statement, and again your full statement is received for

the record.

STATEMENT OF MICHAEL JANDREAU, CHAIRMAN, LOWER

BRULE SIOUX TRIBE

Mr. JANDREAU. First I would like to thank the committee. I

would like to thank Senator Daschle and yourself for cosponsoring

this bill.

I would like to state that the amount of dollars that are to be

received have been a long time coming. We are very grateful for the

initial trust fund that was given to us. We have been able to accomplish a tremendous amount on our reservation with that. We

are grateful also to you and to Senator Daschle and to Congress for

allowing us that opportunity.

However, in spite of the fact that we have used these dollars to

impact positively the growth and development of our tribe, we still

suffer the same issues of poverty, of joblessness, not to as large an

extent as it was previously, but we have a long way to go for the

entire development. We need to be able to leverage more with private industry to make our dollars effectively work for our tribes.

We need this opportunity and I guess I feel a little ill at ease because the last time I was here I had the elders of our tribe, many

of them, here supporting this actively. We could not afford to do it

this time. However, they are in support of the expansion of this.

I thank you for the opportunity to come and testify before you

today.

[Prepared statement of Mr. Jandreau appears in appendix.]

Senator JOHNSON. Thank you, Mr. Chairman, for your testimony,

and most of all for your longstanding extraordinary leadership of

the Lower Brule Tribe.

Last on this panel, Chairman Duane Big Eagle, Sr. Duane, welcome to the committee and again, as with the others, your full

statement is received for the record.

STATEMENT OF DUANE BIG EAGLE, SR., CHAIRMAN, CROW

CREEK SIOUX TRIBE

Mr. BIG EAGLE. Thank you.

Mr. Chairman and members of the committee, I am Duane Big

Eagle, chairman of the Crow Creek Sioux Tribe. I thank you very

much for the opportunity to testify in support of the Tribal Parity

Act, S. 1530.

I would like to thank Senator Daschle for the introduction of legislation and you, Senator Johnson, for cosponsoring. The legislation

before you this morning is of great importance to the Crow Creek

Sioux Tribe. We support it and urge its favorable consideration by

the committee and the Congress.

The Crow Creek Sioux Tribe, like Lower Brule, is a Band of the

Great Sioux Nation and a signatory of the Fort Laramie Treaty of

1851 and the Fort Sully Treaty of 1865. The Missouri River established our western boundaries directly across the river from Lower
11

Brule. The Big Bend Dam connects our two reservations and its

construction affected our two reservations in a similar manner. It

flooded our best bottomlands and required us to relocate our town.

For us, that is Fort Thompson. In 1996, the Congress enacted Public Law 104–223, creating the Crow Creek Sioux Tribe Infrastructure Development Trust Fund Act. It established a trust fund of

$27.5 million for the benefit of the tribe. The legislation before you

today, S. 1530, the Tribal Parity Act, would complement that earlier law.

We are not seeking any advantage over any other tribe, just parity. The additional compensation called for in the Tribal Parity Act

was computed by Dr. Lawson based on methodology used by the

GAO for our other tribes. The amount included in the legislation

was not computed by either the Crow Creek Sioux Tribe or the

Lower Brule Sioux Tribe. It is the amount that Dr. Lawson has

computed. It would bring us up to the standard used by the Congress for the Cheyenne River.

Candidly, Mr. Chairman, our tribe needs every dollar that is fairly owed to us. Our unemployment rate is high. Our health problems are a significant barrier to progress, and our education and

infrastructure systems are in need of great improvement. With the

interest on the trust fund, we could much more effectively meet the

challenges we face on our reservation, and these challenges cannot

be overstated. We are a small tribe with great human needs. The

Tribal Parity Act is vital to the progress and the future of the Crow

Creek Sioux Tribe.

Mr. Chairman, we all know painfully the history of the reservations in the United States and the history of the Great Sioux Nation tribes in particular. We are not near any major population centers. We have a casino, as does Lower Brule, that will never be a

major source of income. For us to stand a chance, we must at a

minimum be fairly compensated for the land that was taken by the

Pick–Sloan. The $78 million in the parity bill for Crow Creek, if

added to our current trust fund, would give us a trust fund of $105

million. The interest on this trust fund would provide Crow Creek

with resources necessary to make a significant difference in the

lives of our people, in the lives of our children and grandchildren.

It would, in short, give our tribe a second chance.

Thank you for your consideration. I would be pleased to answer

any questions.

[Prepared statement of Mr. Big Eagle appears in appendix.]

Senator JOHNSON. Thank you, Mr. Chairman.

Let me begin some questions for Dr. Lawson. As I understand

from your testimony, the Cheyenne River and the Three Affiliated

settlements which were approved by Congress were based on the

damages claimed by the tribes at the time of taking. Is that a correct observation?

Mr. LAWSON. That is correct.

Senator JOHNSON. By comparison, the Lower Brule and Crow

Creek trust funds were not based on the damages claimed by the

tribes at the time, but were based on a per-acre calculation. Is it

fair to say that that discrepancy is at the heart of this debate and

of the parity bill?
12

Mr. LAWSON. Yes; what this legislation seeks to do is to resolve

this discrepancy between two different methodologies of determining the fair compensation.

Senator JOHNSON. As a historian, it would be interesting to me

and to the committee to go back just a few years. Why wasn’t the

Fort Berthold, Standing Rock, and Cheyenne River Sioux formula

used in 1996?

Mr. LAWSON. We have not completely found all the documentation on that, but it seems to be that these two tribes were not

aware of that formula in 1996 and 1997, and surprisingly neither

the GAO nor the Congress made them aware that this methodology

had been applied in the previous legislation.

Senator JOHNSON. The amount called for in your testimony today

is somewhat higher than the parity bill as it was originally introduced. I gather that this is simply the effect of additional interest

in the intervening years. Is that correct?

Mr. LAWSON. Yes; that is correct. The original bill as introduced

reflected the calculation of interest through calendar year 2002.

The revised numbers reflect the calculation that includes the interest through calendar year 2003.

Senator JOHNSON. If you could put together a written analysis of

the difference between the Fort Berthold, Standing Rock, Cheyenne

River formula versus the 1996 approach, that would be very helpful. We could put that in the record.

Mr. LAWSON. I would be happy to do that.

Senator JOHNSON. That would be very helpful. Thank you.

I appreciate that the final assessment about whether the reconciliation process is complete or not is a question that only the

members of the Lower Brule and the Crow Creek Tribes themselves can answer. But from your perspective, would this parity in

approach be a significant step toward reconciliation between the

Indian and non-Indian communities along the Missouri River?

Mr. LAWSON. From my perspective, I view this legislation as

being a final settlement for all of the damages that these tribes

have suffered as a result of the Pick-Sloan dam projects.

Senator JOHNSON. Very good.

For Chairmen Jandreau and Big Eagle, again I thank you both

for your testimony and for coming all the way to Washington to

testify on this important legislation. I wonder if you could summarize for me in a brief fashion what the existing trust funds that you

have under current law have allowed you to do on your respective

reservations. Chairman Jandreau, what has that money been used

for?

Mr. JANDREAU. The dollars that received through the trust fund

have been leveraged to develop approximately $15 million worth of

buildings that were sorely needed, a new tribal headquarters, a

community center, a new office for the Wildlife Department. It contributed to the expansion of our rural water storage facilities. It

helped us and solely was used for the construction of an ambulance

office and garage.

It has also been used to set up a fund for burial of our people

that meets standards that are much higher than were allowed before. It has allowed us to provide a substantial increase in our educational dollars for the youth. It has allowed us to do some things
13

with economic development, and as far as it was able, to expand

a loan program on the reservation for individual members of the

tribe.

Totally, those dollars have been a significant part of helping to

reduce and level the employment processes on the reservation.

Those things roughly are what we have done up to this point.

Senator JOHNSON. As you know, thanks to your hospitality, I

have had an opportunity to tour those facilities on the Lower Brule.

I can attest myself to what a wonderful improvement in the quality

of life and the public health and safety and welfare of the people

these projects have created. I am appreciative of your leadership in

very innovatively using the dollars available in a way that maximizes their impact.

Can you imagine any way that these projects would have been

built, completed, or these programs put underway, without the resources from the trust fund?

Mr. JANDREAU. I guess knowing South Dakota and the inability

to access with the limited resources that we had prior to this, it

may have been able to be done, but it would have taken a long,

long time to make it happen.

Senator JOHNSON. The revenue from the trust fund, that is going

to be required for some years to come now to pay off this indebtedness. So there is not a lot of additional room for still new initiatives

or projects, given the revenue that you have. Is that correct?

Mr. JANDREAU. Yes; many of the plans that we laid out, or many

of the developments that we have laid out in our plan are not going

to be able to be accomplished for a long time, even under the old

trust fund. With the new trust fund, should it be capitalized efficiently, will allow us the opportunity to meet the plan that we submitted to Congress.

Senator JOHNSON. Can you give us some examples of things that

you would be able to do if we were able to pass this legislation and

improve the size of the trust fund?

Mr. JANDREAU. I sincerely believe that we would be able to complete our detention facility, holistically, that we are now in the

process of constructing; that we could in all probability reduce unemployment to zero simply because of the outlaying plans that

there are to employ not only adults, but youth; that we would expand our educational opportunity capital by at least 50 percent to

75 percent greater than we are providing today; that we could develop some of the economic opportunities such as tourism development and other activities that would stabilize the long-term growth

of the reservation more effectively. We have the plans, but not the

dollars.

Senator JOHNSON. Thank you for that.

On the Lower Brule, is there broad support for this legislation

among the people on the Council with the Elders?

Mr. JANDREAU. I guess, you know, you have been around reservations for a long time, Senator.

Senator JOHNSON. Unanimity is never possible, but a large consensus.

Mr. JANDREAU. If there is anything that there is any unanimity

on, it would be in support of this.

Senator JOHNSON. Very good.
14

I would note as well that the Lower Brule sits astride very historic land related to the Lewis and Clark trip up the Missouri

River.

Chairman Big Eagle, I would ask you the same questions that

I did to Mike. Could you give us a general picture of how have you

used the resources from your existing trust fund up until now?

Mr. BIG EAGLE. Senator, after a series of meetings with the three

districts that we have on the Crow Creek Reservation and much

consultation with the Elders and the tribal members asking them

what they felt their wants and needs are, in our Big Bend District

we purchased a school building that now provides educational facilities for over 40 children and 16 Head Start children. In our Fort

Thompson and Crow Creek Districts, we have put up community

buildings; the Crow Creek District in particular, with a gymnasium, so that children that are out there literally in the middle

of nowhere can now have recreational activities in the evenings,

which offsets what we like to feel is the ongoing suicide rate in our

teenagers on the reservation.

Senator JOHNSON. Share with us, have you had a recent spate

of youth suicide?

Mr. BIG EAGLE. Yes; we have. I believe it was addressed to me

by one of Senator Daschle’s staff at one point in time that a township of 2,200 people had an average of 22 suicide attempts or successes a month.

Senator JOHNSON. A month.

Mr. BIG EAGLE. A month.

Senator JOHNSON. That is remarkable.

Mr. BIG EAGLE. We have also purchased a tract of land at the

insistence of a local rancher that would refuse to sell his land to

anybody else but the tribe, that sits adjacent to the substation or

the grid that is located north of Fort Thompson there, and have

been working with South Dakota public utilities and other outside

investment firms on developing wind energy. I believe in last

week’s Sioux Falls Argus Leader, Senator Daschle commented that

South Dakota could produce 276,000 megawatts with wind energy.

We are at present hoping that we will someday establish at least

150 wind turbines on that tract of land for a start.

Senator JOHNSON. You have the circumstance where you are located in an area where there is a lot of wind potential, but also you

are next to the Big Bend Dam and the electricity grid that runs

through there. So both you and Lower Brule have some potential

in that regard, I would think.

Mr. BIG EAGLE. We have set aside $100,000 annually for a student scholarship program for those that want to continue school

and further their education. Like Lower Brule, I think Chairman

Jandreau has kind of summed up a lot of the other useful purposes

that the infrastructure has provided, the doorways that it has

opened. We are grateful for that at this time.

Senator JOHNSON. If you were to have a significantly enhanced

trust fund, any thoughts about the kinds of things that you would

use that revenue for?

Mr. BIG EAGLE. At the present time, some of the issues that I

work on, as you are aware of, is our educational facilities that are

collapsing as we speak. I meet with the elderly who live in an out-
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dated 1969 elderly center and have asked the tribe for help in setting up some kind of assisted living quarters because the houses

that they live in have so many other relatives living in them.

We have a large variety of contact with the elderly people in our

community and they provide a lot of support in things that we

want to do. So other than major road repair, probably we had to

pass up the opportunity to work with a company out of Colorado

that had contracts with the military to develop decontamination devices in this state of terrorism that we go through. We would have

liked to have been able to put up a building that would have been

suitable for such a factory and probably would have created somewhere in the area of 50 to whatever jobs.

Senator JOHNSON. I have had an opportunity to tour the school

at Stefan. In fact, Kevin Gover was with us those years ago. It was

in deplorable condition then. Since then, things have only become

worse. Thanks to your work and working with Senator Daschle, we

have made some improvements on the gymnasium there, but there

is much that remains to be done.

Let me ask both the Chairmen here, either one of you can take

this, to describe the planning process in place on your reservations

that will assure the committee that the trust funds will be utilized

in accordance with the wishes of the tribal people themselves; that

there is a thoughtful public and organized utilization of the money.

That this is not just free cash lying around someplace; that there

is in fact a very systematic way of utilizing the trust fund.

Mr. JANDREAU. Senator, at Lower Brule presently we have an Infrastructure Development Committee that consists of approximately 16 people who are in various parts of the tribe, program directors, individuals of the community. Also in addition to that, we

have representatives from the Bureau of Indian Affairs and from

Indian Health Service who we utilized in an ongoing process to

deal with any way that these dollars are programmed to be funded;

any way that they will affect a plan into the future. Those activities after hearing by this particular committee, after being vetted

to the public, are then provided to the Tribal Council for enactment. That is how we move this process forward at Lower Brule.

Senator JOHNSON. Does the BIA have a role in this?

Mr. JANDREAU. Yes; their role is primarily advisory, the same

way with Indian Health Service. Their role is primarily advisory.

But the strength of personality that is there, if it is something that

is not being conducted in a proper way, they are there to help with

a guiding hand also.

Senator JOHNSON. And there is an audit process that is involved?

Mr. JANDREAU. We have a yearly audit that is accomplished on

all funds that are received by our tribe.

Senator JOHNSON. Chairman Big Eagle, what is the process on

your reservation?

Mr. BIG EAGLE. Although we lack a committee, we meet with the

people in our Tribal Council chambers and listen to their ideas and

suggestions as to what they want done. We try to do this in a manner that we include all three districts. Like I say, we get a lot of

advice from our tribal membership, our elderly and our young, and

we try to follow at any point their direction. As I say, if anybody

knows best what they need, it is them.
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So at some point in time, based on the unemployment ratio on

the Crow Creek Reservation——

Senator JOHNSON. What would you estimate that to be?

Mr. BIG EAGLE. I would probably guess at this point somewhere

in the high 80’s, 85 percent.

Senator JOHNSON. High 80’s of unemployment?

Mr. BIG EAGLE. Yes, sir; people have the opportunity to work on

farms and ranches and travel to surrounding towns to commute for

work. We try to employ as many as we can on a full-time or parttime basis. The Corps of Engineers recently now has started employing tribal members from both Lower Brule and Crow Creek,

which has been very helpful.

So I think whether it is a committee or whether it is just a general community meeting with the people, we both look at going in

the same direction. That is what is best for the benefit of our

tribes.

Senator JOHNSON. Again, as I asked Chairman Jandreau, in your

view there is pretty broad-based support on your Council and

among your people for this legislation?

Mr. BIG EAGLE. Yes; at our last Tuesday council meeting, we had

a large turnout of different Bands of our people and the Districts.

And on this day, I think that they are all offering up prayer at this

point in time for the success of our trip.

Senator JOHNSON. Thank you, and I know that neither of you are

particularly fond of a lot of travel back and forth from South Dakota to Washington, but your presence here is critically important,

and your insights are very valuable to the committee.

We of course will share this with the committee and staff, and

as was noted at the outset that the goal here is not simply to augment the trust fund for the sake of augmenting the trust fund.

What is at work here is trying to arrive at a systematic, equitable,

fair way of determining what a fair trust fund compensation

amount might be. That is what we are attempting to do here.

It would be interesting to know a little more about the dynamic

of why some trust funds are arrived at in a far different fashion

than these trust funds were, but in any event these are two tribes

with enormously urgent needs, high levels of unemployment and

poverty. Great progress has been made thanks to the leadership of

these two Chair, but much, much more needs to be done.

It seems critically important to me if we are going to draw this

whole debate to a closure that all the tribes up and down the Missouri River who have been negatively impacted by the flooding of

their historic land base should know that they have been treated

fairly and equitably. Otherwise, there can never be very much satisfaction about any of this.

So thank you for your leadership, what you have done here. Dr.

Lawson, thank you for your insights. We look forward to some written response to that one point that we raised with you.

Mr. LAWSON. Mr. Chairman, I wonder if I might add a personal

note for the record?

Senator JOHNSON. Certainly.

Mr. LAWSON. This whole endeavor of studying the impact of the

Pick-Sloan dams on the Missouri River tribes began for me more

than 30 years ago when I needed to find a subject to write a doc-
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toral dissertation about. Okay? Over the years, all of the tribes

that received additional compensation have used in part or in

whole my research. I just wanted to say what an enormous good

feeling it gives to me that these Indian people have received a very

practical application of that research and that they have been able

to enjoy the additional compensation that Congress has provided

them over the years.

Senator JOHNSON. We are very appreciative of your work. I think

it is fair to say that it is rare that academic work has such very

real-life applications as yours has. We have more work to do here,

but we will fall back on your study and your examination in large

measure in the course of doing this.

Keep it in mind again that the revenue for the creation of these

trust funds is not out of the general fund, but rather comes from

the electricity production on these earthen dams that in fact flooded these tribes. So there is a certain justice at the end of the day

in that regard as well.

Thank you for your testimony. We will have ongoing communications with all of you as we move this legislation forward in a constructive bipartisan fashion. I most simply say thank you for your

presence here today. I think the fact that the Chairman and the

Ranking Member were very willing to allow us to go forward with

this hearing today is a good omen. I am confident that we will

reach a point where we can draw a close to this whole debate about

Missouri River flooding compensation.

Thank you again.

With that, this hearing is adjourned.

[Whereupon, at 12:18 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

(19)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF DUANE BIG EAGLE, CHAIRMAN, CROW CREEK SIOUX TRIBE

Mr. Chairman, Members of the Committee, I am Duane Big Eagle, Chairman of

the Crow Creek Sioux Tribe. Thank you very much for the opportunity to testify

in support of the Tribal Parity Act, S. 1530.

First, I would also like to thank Senator Daschle for the introduction of the legislation, and Senator Johnson for cosponsoring. The legislation before you this morning is of great importance to the Crow Creek Sioux Tribe. We support it and urge

its favorable consideration by the Committee and the Congress.

The Crow Creek Sioux Tribe is, like Lower Brule, a constituent band of the Great

Sioux Nation and a signatory of the Fort Laramie Treaty of 1851 and the Fort Sully

Treaty of 1865. The Missouri River establishes our western boundary, directly

across the river from Lower Brule. The Big Bend Dam connects our two reservations

and its construction effected our two reservations in a similar manner. It flooded

our best bottomlands and required us to relocate our town; for us that is Fort

Thompson.

In 1996, the Congress enacted Public Law 104–223 creating the Crow Creek Sioux

Tribe Infrastructure Development Trust Fund Act. It established a Trust Fund of

$37,500,000 for the benefit of the tribe. The legislation before you today, S. 1530,

the Tribal Parity Act, would compliment that earlier law.

We are not seeking any advantage over any other tribe, just parity. The additional

compensation called for in the Tribal Parity Act was computed by Dr. Lawson based

on methodology used by the GAO for other tribes. The amount included in the legislation, was not computed by either the Crow Creek Sioux Tribe or the Lower Brule

Sioux Tribe. It is the amount that Dr. Lawson has computed would bring us up to

the standard used by the Congress for Cheyenne River.

Candidly, Mr. Chairman, our tribe needs ever dollar that is fairly owed to us. Our

unemployment rate is too high, our health problems are a significant barrier to

progress, and our education and infrastructure systems are in need on great improvement.

With the interest on the trust fund, we could much more effectively meet the challenges we face on the reservation, and these challenges can not be overstated. We

are a small tribe with great human needs. The Tribal Parity Act is vital to the

progress and future of the Crow Creek Sioux Tribe.
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Mr. Chairman, we all know—painfully—the history of the reservations in the

United States and the history of the Great Sioux Nation Tribes, in particular. We

are not near any major population center. We have a casino, as does Lower Brule,

but that will never be a major source of income. For us to stand a chance, we must,

at aminimum, be fairly compensated for the land that was taken by the Pick-Sloan.

The $78 million in the Parity bill for Crow Creek, if added to our current trust fund,

would give us a trust fund of $105 million. The interest on this trust fund would

provide Crow Creek with the resources necessary to make a significant difference

in the lives of our people and the lives of our children and grandchildren. It would,

in short, give our tribe a second chance. Thank you for your consideration. I would

be pleased to answer any questions.
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