69–010 

Calendar No. 1089 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–505 

PROVIDING FOR 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 25 (legislative day SEPTEMBER 17), 2008.—Ordered to be printed 

Mr. DORGAN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 160] 

The Committee on Indian Affairs, to which was referred the bill, 

S. 160, 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 

and recommends that the bill do pass. 

PURPOSE

S. 160 would amend the Lower Brule Sioux Tribe Infrastructure 

Development Trust Fund Act to increase from $39.3 million to 

$129,822,085 the aggregate amount to be deposited into the Lower 

Brule Sioux Tribe Infrastructure Development Trust Fund by the 

Secretary of the Treasury to provide compensation to the Lower 

Brule Tribe of South Dakota for damage to tribal land caused by 

Pick-Sloan projects along the Missouri River. 

S. 160 would also amend the Crow Creek Sioux Tribe Infrastructure Development Trust Fund Act of 1996 to increase from $27.5 

million to $69,222,084 the aggregate amount to be deposited into 

the Crow Creek Sioux Tribe Infrastructure Development Trust 

Fund by the Secretary to provide compensation to the Crow Creek 

Sioux Tribe of South Dakota for damage to tribal land caused by 

Pick-Sloan projects along the Missouri River. 

BACKGROUND

The Lower Brule Sioux Tribe and the Crow Creek Sioux Tribe 

were impacted by the Fort Randall Dam and the Big Bend Dam, 

two significant dam construction projects located on the Missouri 


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River. Construction of the Fort Randall Project began in 1946 and 

of the Big Bend Project in 1960, and both projects resulted in the 

inundation of several thousands of acres of land on the reservations 

of these two Indian tribes. 

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). 

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 would be derived from a percentage of receipts deposited into the United States Treasury from the Pick-Sloan Missouri 

River basin power program, and each act authorized payments to 

the tribe of interest earned on the principal balance of the fund for 

use on specified projects and activities. The principal amount authorized to be deposited into the Crow Creek Sioux Tribe fund was 

$27,500,000, and the principal amount authorized to be deposited 

into the Lower Brule Sioux Tribe fund was $39,300,000. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 states that this Act may be cited as the ‘‘Lower Brule 

and Crow Creek Tribal Compensation Act.’’ 

Section 2. Findings 

Section 2 states the findings of Congress that: (1) the Pick-Sloan 

Missouri River Basin Program (authorized by section 9 of the Act 

of December 22, 1944 (commonly known as the ‘‘Flood Control Act 

of 1944’’) (58 Stat. 891)), was approved to promote the general economic development of the United States; (2) the Fort Randall and 

Big Bend dam and reservoir projects in South Dakota are major 

components of the Pick-Sloan Missouri River Basin Program and 

they contribute to the economy of the United States; (3) the Fort 

Randall and Big Bend dams inundated the fertile bottom land of 

the Lower Brule and Crow Creek Sioux Tribes, which greatly damaged the economy and cultural resources of the Tribes; (4) Congress 

has provided compensation to several Indian tribes that border the 

Missouri River and suffered injury as a result of 1 or more PickSloan Projects; (5) the compensation provided to those Indian tribes 

has not been consistent; (6) Missouri River Indian tribes that suffered injury as a result of 1 or more Pick-Sloan Projects should be 

adequately compensated for those injuries, and that compensation 

should be consistent among the Tribes; and (7) the Lower Brule 

Sioux Tribe and the Crow Creek Sioux Tribe are entitled to receive 

additional compensation for injuries described in paragraph (6). 


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Section 3. Lower Brule Sioux Tribe 

Section 3 amends the amount of compensation in the trust fund 

amount created by current law for the Lower Brule Sioux Tribe to 

$129,822,085. 

Section 4. Crow Creek Sioux Tribe 

Section 4 amends the amount of compensation in the trust fund 

amount created by current law for the Crow Creek Sioux Tribe to 

$69,822,084. 

Section 5. Treatment as final compensation 

Section 5(a) provides that this act is final and full compensation 

to the Lower Brule Sioux Tribe and the Crow Creek Sioux Tribe 

for damages caused by construction of the Fort Randall Dam and 

the Big Bend Dam under the Pick-Sloan Missouri River Basin Program. 

Section 5(b) releases the United States of any further claim for 

compensation that the Lower Brule Sioux Tribe or Crow Creek 

Sioux Tribe may have for compensation as a result of the PickSloan Missouri River Basin Program. 

Section 5(c) defines the term ‘‘non-Missouri River Basin Program 

Indian tribe’’ and declares that this act will not serve as a precedent for any non-Missouri River Basin Program Indian tribe with 

respect to any potential claim of such tribe against the United 

States. 

LEGISLATIVE HISTORY

S. 160 was introduced by Senator Thune on January 4, 2007, 

Senator Johnson became a cosponsor on May 14, 2007, and it was 

referred to the Committee on Indian Affairs. On June 19, 2008, S. 

160 was approved by the Committee by voice vote and ordered reported favorably. 

In the 109th Congress, similar legislation, S. 374, was introduced 

on February 14, 2005, by Senators Thune and Johnson and was referred to the Committee on Indian Affairs. On June 29, 2005, S. 

374 was approved by the Committee by voice vote and ordered favorably reported. Shortly thereafter, a representative of the United 

States Government Accountability Office (GAO) expressed concern 

regarding language in the Findings section of the bill (section 2(7)) 

stating that a methodology determined appropriate by the General 

Accounting Office entitled the two tribes to additional compensation. 

Accordingly, Chairman McCain requested the GAO assess whether the approach used in developing the amount of additional compensation in S. 374 followed the approach used in previous GAO 

reports for analyzing additional compensation for other tribes located along the Missouri River. In May 2006, the GAO issued the 

report requested by Chairman McCain. See GAO–06–517, Analysis 

of the Crow Creek Sioux and Lower Brule Sioux Tribes Additional 

Compensation Claims. 

On June 14, 2006, the Committee held a hearing during which 

the GAO provided testimony on the report, and the tribes and their 

consultant provided their views. Briefly, the GAO testified that its 

research for the report indicated that the tribes’ consultant deviVerDate Aug 31 2005 06:37 Sep 29, 2008 Jkt 069010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR505.XXX SR505

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ated in certain respects from the approach used in the previous 

GAO reports addressing additional compensation for other Indian 

tribes impacted by flood control/power projects on the Missouri 

River and concluded that the GAO’s approach does not support the 

additional compensation amounts contained in S. 374. The tribes’ 

consultant testified that his approach deviated in part to account 

for the inferior negotiating position of the tribes. He also testified 

that his original calculations did contain an error and provided new 

estimates for compensation based on his approach. 

Based on the testimony provided, Senators Thune and Johnson 

prepared a substitute amendment which lowered the compensation 

for the Lower Brule Sioux Tribe from $186,822,140 to 

$129,822,085, and the compensation for the Crow Creek Sioux 

Tribe from $105,917,853 to $69,222,084. The substitute amendment 

also added a provision clearly stating that the compensation provided in this bill is the full and final compensation for the Lower 

Brule Sioux Tribe and Crow Creek Sioux Tribe for claims related 

to the Pick-Sloan projects which impacted their reservations. 

On August 2, 2006, the Committee, in an open business meeting, 

considered S. 374. By a voice vote, the Committee ordered the bill 

reported favorably, with an amendment in the nature of a substitute, to the full Senate. 

Similar legislation was also introduced in the 108th Congress, S. 

1530, the Tribal Parity Act, 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 as 

amended. On November 19, 2004, S. 1530 passed the Senate with 

amendments by Unanimous Consent. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

On June 19, 2008, the Committee, in an open business session, 

considered S. 160. By a voice vote, the Committee ordered the bill 

reported to the full Senate with a recommendation that the bill do 

pass. 

COST AND BUDGETARY CONSIDERATIONS

The following cost estimate for S. 160, as provided by the Congressional Budget Office, is set forth below: 

S. 160—Lower Brule and Crow Creek Tribal Compensation Act 

Summary: S. 160 would increase the size of two existing tribal 

trust funds established by the Lower Brule Sioux Tribe Infrastructure Development Trust Fund Act and the Crow Creek Sioux Tribe 

Infrastructure Development Trust Fund Act of 1996. The Congress 

created those funds as compensation for damages to the tribes 

caused by the Pick-Sloan Missouri River Basin project; this bill 

would constitute a final settlement of claims by the two tribes 

against the United States. CBO estimates that enacting S. 160 

would increase direct spending by $169 million over the 2009–2018 

period. Enacting the bill would not affect revenues. 


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S. 160 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. 160 is shown in the following table. The costs 

of this legislation fall within budget function 450 (community and 

regional development). 

By fiscal years, in millions of dollars— 

2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2009– 

2018 

CHANGES IN DIRECT SPENDING 

Transfers to Lower Brule 

Fund: 

Estimated Budget 

Authority ............ 0 130 0 0 0 0 0 0 0 0 130 

Estimated Outlays 0 130 0 0 0 0 0 0 0 0 130 

Transfers to Crow Creek 

Fund: 

Estimated Budget 

Authority ............ 69 0 0 0 0 0 0 0 0 0 69 

Estimated Outlays 69 0 0 0 0 0 0 0 0 0 69 

Interest on Lower Brule 

Fund: 

Estimated Budget 

Authority ............ ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥20 

Estimated Outlays ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥20 

Interest on Crow Creek 

Fund: 

Estimated Budget 

Authority ............ ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥10 

Estimated Outlays ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥10 

Total Changes: 

Estimated 

Budget Authority ....... 66 127 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 169 

Estimated 

Outlays ..... 66 127 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 169 

Basis of estimate: CBO estimates that enacting this legislation 

would result in a net increase in direct spending of $169 million 

over the 2009–2018 period. By increasing the maximum funding 

level of two tribal trust funds and establishing a final settlement 

of certain tribal claims against the federal government, CBO estimates that enacting S. 160 would increase direct spending by $199 

million over the 2009–2018 period. Partially offsetting those costs, 

the bill also would reduce direct spending for interest payments 

made to the tribes by $30 million over the 2009–2018 period. For 

this estimate, CBO assumes that the bill will be enacted near the 

beginning of fiscal year 2009 and that additional transfers to the 

trust funds would begin in that year. 

Trust fund activity under current law 

In 1996 and 1997, the Congress enacted legislation creating 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). Both acts authorized 

the Secretary of the Treasury to transfer 25 percent of gross revenues from electricity sales made by the Western Area Power Administration (WAPA), the agency that manages the Pick-Sloan 


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project, to each fund. Such transfers were made annually until the 

funds reached the maximum balances—$39 million for Lower Brule 

Fund and $28 million for the Crow Creek Fund—set forth in law. 

Consistent with the treatment of similar tribal trust funds, both 

funds are classified as accounts on the federal budget because all 

claims against the federal government for related damages have 

not been extinguished. Thus, transfers to the funds made to date 

have been considered intragovernmental and have had no net effect 

on the federal budget. 

Current law also directs the Secretary to transfer any interest 

earned by the Crow Creek Fund and the Lower Brule Fund into 

separate accounts for the benefit of the tribes. Payments from the 

interest accounts may only occur after the trust fund has reached 

its maximum funding level. Because both trust funds are currently 

at their maximum levels, CBO estimates that such payments will 

total $20 million for the Lower Brule Fund and $10 million for the 

Crow Creek Fund over the 2009–2018 period. 

Trust fund activity under S. 160 

S. 160 would increase the maximum size of the Lower Brule 

Fund to $130 million and that of the Crow Creek Fund to $69 million. As under current law, each fund would receive deposits equal 

to 25 percent of proceeds from the Pick-Sloan project from the previous year. Annual deposits would continue until the total balance 

of the trust fund reaches the new maximum level. According to information from WAPA, gross revenues from its sale of electricity 

from the Pick-Sloan project will be $356 million in 2008 and average approximately $426 million per year thereafter. Based on those 

projections, CBO estimates that the Crow Creek Fund and the 

Lower Brule Fund would reach their new maximum levels in 2009 

and 2010, respectively. 

Upon full funding of their trust funds, S. 160 would extinguish 

future claims against the federal government by the two tribes. 

Consistent with the treatment of similar tribal funds, outlays 

would be recorded on the budget in the year that all funds are provided to the tribe and all claims against the government are released. As a result, CBO estimates that enacting S. 160 would increase direct spending by $69 million in 2009 for the Crow Creek 

Fund and by $130 million in 2010 for the Lower Brule Fund. Subsequent use of those funds would have no further impact on the 

federal budget as tribal trust funds managed in a fiduciary capacity by the federal government are treated as nonfederal funds. 

In addition, any future interest earnings and payments would 

not be considered part of the federal budget after those funds are 

transferred. (Additionally, because under the bill the Lower Brule 

Fund would be below its maximum funding level in 2009, no interest payments would be made to the tribe in that year.) As such, 

CBO estimates that enacting S. 160 would reduce direct spending 

for interest payments to the tribes by $30 million ($20 million for 

the Lower Brule Fund and $10 million for the Crow Creek Fund) 

over the 2009–2018 period. 

Intergovernmental and private-sector impact: S. 160 contains no 

intergovernmental or private-sector mandates as defined in UMRA 

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


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The payments authorized by this bill would benefit the Lower 

Brule Sioux and Crow Creek Sioux tribes. 

Estimate prepared by: Federal Costs: Leigh Angres; Impact on 

State, Local, and Tribal Governments: Melissa Merrell; Impact on 

the Private Sector: MarDestinee Perez. 

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

Budget Analysis. 

REGULATORY AND PAPERWORK STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires that each report accompanying a bill to evaluate the 

regulatory and paperwork impact that would be incurred in carrying out the bill. The Committee has concluded that the regulatory and paperwork impacts of S. 160 will be de minims. 

EXECUTIVE COMMUICATIONS

The views of the Administration on S. 160 as introduced are set 

forth in the Statement of George Skibine, Deputy Assistant Secretary for Policy and Economic Development—Indian Affairs, 

United States Department of the Interior, dated June 18, 2008, and 

are set forth below: 


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(10) 

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill S. 

160, as ordered reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new language to 

be added in italic, existing law to which no change is proposed is 

shown in roman): 

PUBLIC LAW 105–132; 111 STAT. 2565 

* * * * * * * 

SEC. 4. ESTABLISHMENT OF LOWER BRULE SIOUX TRIBE INFRASTRUCTURE DEVELOPMENT TRUST FUND. 

* * * * * * * 

(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 $129,822,085 

[$39,300,000], 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. 

* * * * * * * 

PUBLIC LAW 104–223; 110 STAT. 3027 

* * * * * * * 

SEC. 4. ESTABLISHMENT OF CROW CREEK SIOUX TRIBE INFRASTRUCTURE DEVELOPMENT TRUST FUND. 

* * * * * * * 

(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 $69,222,084 

[$27,500,000], 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 


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