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[Senate Report 106-367]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 744
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-367

======================================================================

 
TO PROVIDE FOR THE YANKTON SIOUX TRIBE AND THE SANTEE SIOUX TRIBE OF 
  NEBRASKA CERTAIN BENEFITS OF THE MISSOURI RIVER BASIN PICK-SLOAN 
  PROJECT, AND FOR OTHER PURPOSES

                                _______
                                

                August 25, 2000.--Ordered to be printed

   Filed under authority of the order of the Senate of July 26, 2000

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 1148]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1148) to provide for the Yankton Sioux Tribe and the 
Santee Sioux Tribe of Nebraska certain benefits of the Missouri 
River Basin Pick-Sloan project, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment in the nature of a substitute and recommends that the 
bill (as amended) do pass.

                                purposes

    The purpose of S. 1148, the Yankton Sioux Tribe and Santee 
Sioux Tribe Equitable Compensation Act, is to provide 
additional compensation to the Yankton and Santee Sioux Tribes 
for the acquisition by the United States of 3,240 acres of the 
Yankton Sioux Reservation for Fort Randall Dam and Reservoir 
and 1,007 acres of the Santee Sioux Reservation for Gavins 
Point Dam and Reservoir on the Missouri River.

                               background

    Pursuant to the Treaty of April 19, 1858 (11 Stat. 743) a 
430,405-acre reservation was established for the Yankton Sioux 
Indian Tribe along the east bank of the Missouri River in 
Charles Mix County, South Dakota. Approximately 40,000 acres of 
the reservation is currently in tribal or individual Indian 
trust status. In 1866, President Andrew Johnson signed an 
Executive Order setting aside four townships in northeastern 
Nebraska near the mouth of the Niobrara River as a permanent 
home for remnants for six Santee Sioux bands driver out of 
Minnesota following the so-called ``Sioux Uprising of 1862''. 
Although subsequent Executive Orders adjusted the boundaries 
and expanded the size of the reservation to 165,195 acres, only 
about 7,000 acres of that area remain in tribal or individual 
trust status.
    Under the Flood Control Act of 1944 (33 U.S.C. 701 et 
seq.), the Congress authorized construction of five massive dam 
projects on the Missouri River as part of the Pick-Sloan 
program, the primary purpose of which was to provide flood 
control downstream, as well as improved navigation, hydro-power 
generation, improved water supplies, and enhanced recreation. 
The U.S. Army Corps of Engineers, which constructed and 
operates the dams, estimates that the projects' overall annual 
contribution to the national economy averages $1.9 billion. 
However, for the Yankton and Santee Sioux Tribes and other 
tribes along the Missouri, the human and economic costs of the 
projects have far outweighed any benefits received, since the 
lands affected by Pick-Sloan were, by and large, Indian lands, 
and entire tribal communities and their economies were 
destroyed.
    Fort Randall Dam and Reservoir project, an integral part of 
the Pick-Sloan program, initially flooded 2,851 acres of 
Yankton Sioux tribal land and forced the relocation and 
resettlement of at least 20 families from the traditional and 
self-sustaining community of White Swan, one of four major 
settlement areas on the reservation. Unlike communities on 
other reservations that were relocated to higher ground to make 
way for Pick-Sloan projects, the White Swan community was 
completely dissolved and its residents were dispersed. In 
addition, since 1953 another 428 acres of trust land have been 
lost to erosion from the fluctuating waters in the reservoir, 
reducing the size and production of an irrigated tribal farm 
and necessitating the relocation of a housing development of 
twenty-five homes and the Yankton Sioux tribal office in 
Greenwood, South Dakota.\1\
---------------------------------------------------------------------------
    \1\ ``Historical Analysis of the Impact of Missouri River Pick-
Sloan Dam Projects on the Yankton And Santee Sioux Indian Tribes'' by 
Michael Lawson, Ph.D., April, 1999.
---------------------------------------------------------------------------
    In 1952, the U.S. District Court awarded the Yankton Sioux 
$121,210, or about $42 an acre, for the appraised value of the 
flooded land in condemnation proceedings in which neither the 
Tribe nor its affected members were represented by private 
counsel. Significantly, the appraised value of the lands on the 
Yankton Reservation was less than half the value that was 
established for comparable lands on four other Sioux 
reservations appraised in 1951. In 1954, the Congress 
appropriated $106,500 for severance damages for Yankton Sioux 
tribal members, but by August, 1956, when these funds were 
distributed to some, but not all, affected tribal families, 
nine years had passed since their land had been condemned and 
six years had passed since their families had been forced to 
move.
    The Gavins Point Dam and Reservoir Project, also an 
integral part of the Pick-Sloan program, inundated 593 acres of 
Santee Sioux tribal and individual trust land near the main 
settlement area of the Indian village of Santee in Knox County, 
Nebraska. This lost acreage, comprising about 8.5 percent of 
the reservation and considered among the best agricultural land 
on the Santee Sioux Reservation, included 380 acres of 
pastureland and 200 acres of cropland that was part of a tribal 
farm. In addition, the Corps of Engineers acquired Niobrara 
Island, a 414.12-acre island near the mouth of the Niobrara 
River, which had been part of the original Santee Sioux 
Reservation, as part of the Gavins Point project.
    On or about January, 1958, the U.S. District Court awarded 
the Santee Sioux $52,000, or $87.67 an acre, for the appraised 
value of the inundated lands pursuant to a 1955 agreement 
between the Tribe and the Corps of Engineers. Records as to the 
actual distribution of these funds are not available. As was 
the case with the payment to the Yankton Sioux Tribe, the 
payment to the Santee Sioux Tribe, made years after the taking 
of their land, did not account for the inflation in property 
values between the time of the taking and the time of 
settlement. Significantly, within months of the award, the U.S. 
District Court in South Dakota ruled that the Army lacked 
congressional authorization to condemn tribal land for its 
Pick-Sloan projects.
    In 1984, a joint Federal-Tribal study found that the 
compensation that was provided by the United States to tribes 
impacted by the Pick-Sloan projects greatly undervalued their 
losses. To provide more just compensation, in 1992 the Congress 
enacted legislation that established a trust fund of 
$149,200,000 for the Three Affiliated Tribes of the Fort 
Berthold Reservation related to the loss of 176,000 acres to 
the Garrison Dam project, and a trust fund of $90,600,000 for 
the Standing Rock Sioux Tribe related to the loss of 56,000 
acres to the Oahe Dam project.\2\ In 1996, the Congress 
established a $27.5 million Recovery Fund for the Crow Creek 
Sioux Tribe and a $39.9 million Recovery Fund for the Crow 
Creek Sioux Tribe and a $39.9 million Recovery Fund for the 
Lower Brule Sioux Tribe related to the loss of 15,693 and 
22,296 acres of land, respectively, to the Fort Randall and Big 
Bend Dam projects.\3\ In the 106th Congress, the Senate passed 
S.964, which would establish a Recovery Fund of $290 million 
for the Cheyenne River Sioux Tribe of South Dakota, which lost 
approximately 104,000 acres to the Oahe Dam project. As this 
report is written, S. 964 is pending in the House of 
Representatives.
---------------------------------------------------------------------------
    \2\ P.L. 102-575, title XXXV, 106 Stat. 4731 (Oct. 30, 1992).
    \3\ P.L. 104-223, 110 Stat. 3026 (Oct. 1, 1996) and P.L. 105-132, 
111 Stat 2563 (Dec. 2, 1997).
---------------------------------------------------------------------------
    The Fort Berthold, Cheyenne River, Standing Rock, Crow 
Creek, and Lower Brule Tribes all received initial settlements 
from Congress between 1947 and 1962 that included payment for 
direct property damages, severance damages (including the cost 
of relocation and reestablishment of affected tribal members), 
and rehabilitation for the entire reservation. In providing 
funds for rehabilitation, Congress recognized that the tribes 
as a whole and not just the tribal members within the taking 
areas were affected negatively by the loss of the bottomland 
environment and reservation infrastructure. Accordingly, the 
five settlements provided compensation for severance damages 
and rehabilitation that averaged four and a half times more 
than was paid for direct damages.
    In 1960, a Bureau of Indian Affairs comparative study of 
the experience of six reservations impacted by Pick-Sloan dams 
found that the average total payment per family within the 
taking area at Yankton was $5,605, whereas the payment averaged 
$16,680 on the other five reservations (Fort Berthold, Standing 
Rock, Cheyenne River, Crow Creek, and Lower Brule). Although 
the Yankton Sioux Tribe and the Santee Sioux Tribes received 
settlements for the appraised value of their property in 
condemnation proceedings and an amount for severance damages, 
neither tribe received any payments for direct property damages 
nor any funds for rehabilitation, even though alarge number of 
tribal members residing outside the taking area on both tribes' 
reservations were also impacted by the dam projects.
    The Committee recognizes that any attempt to measure the 
tangible and intangible values associated with the loss of 
tribal life and tradition along a free flowing river in 
monetary terms is necessarily subjective. Nevertheless, in view 
of the losses experienced by the Yankton Sioux Tribe and the 
Santee Sioux Tribe as a result of Pick-Sloan dams and 
reservoirs, and the precedents for providing additional 
compensation for other Missouri River tribes similarly 
affected, the Committee finds that it is appropriate to provide 
additional equitable compensation for the Yankton and Santee 
Sioux Tribes as would be provided by S. 1148.

                     s. 1148 summary of provisions

    S. 1148 would establish the Yankton Sioux Tribe Development 
Trust Fund in the U.S. Treasury. On the first day of the 11th 
fiscal year after the date of enactment, $34,323,743, together 
with interest accrued from the date of enactment, would be 
deposited into the Yankton Sioux Development Trust Fund, and 
$8,132,838, together with interest accrued from the date of 
enactment, would be deposited into the Santee Sioux Development 
Trust Fund. The Secretary of the Treasury is authorized and 
directed to invest these funds in interest-bearing obligations 
of the United States or in obligations guaranteed as to both 
principal and interest by the United States.
    Once both funds have been capitalized, the Secretary of the 
Treasury is authorized to transfer any accrued interest into 
separate accounts for transfer to the Secretary of the 
Interior, without fiscal year limitation on the availability of 
such funds. In turn, the Secretary of the Interior is 
authorized to make payments to the Tribes for use in carrying 
out projects and programs that would implement tribal plans for 
socio-economic recovery and cultural preservation.
    The tribal councils, in consultation with the Secretary of 
the Interior and the Secretary of Health and Human Services, 
are to prepare the plans, which must set forth a combination of 
economic development, infrastructure development, educational, 
health, recreation and social welfare objectives. Each council 
must permit tribal members to review and comment on the initial 
plan, as well as on any proposed revisions to it. Activities 
carried out under these plans would be subject to existing 
requirements of the Office of Management and Budget for annual 
audits, and audit determinations would be required to be 
published together with tribal council proceedings. Per capita 
payments from the Funds are prohibited.
    Payments from the trust funds to either Tribe could not be 
used as a basis for reducing or denying any service or program 
to which the Tribe or a tribal member is otherwise entitled, 
for subjecting the Tribe or a tribal member to any Federal or 
State income tax; or for affecting Pick-Sloan Missouri River 
power rates. Finally, once the tribal trust funds have been 
fully capitalized, S. 1148 would extinguish all Yankton and 
Santee Sioux tribal claims against the United States for losses 
related to the construction of Fort Randall and Gavins Point 
dams and reservoirs.

                          legislative history

    On May 27, 1999, Senator Daschle and Senator Kerrey of 
Nebraska introduced S. 1148 as the Yankton Sioux Tribe and 
Santee Sioux Tribe of Nebraska Development Trust Fund Act, 
which was referred to the Committee on Indian Affairs. Senator 
Johnson of South Dakota and Senator Hagel were added as 
cosponsors. The Committee held a hearing on S. 1148 on May 17, 
2000. The Department of the Interior witness expressed the 
Administration's support for the bill if it were amended to 
address concerns regarding the manner in which the proposed 
trust funds would be funded, per capita payments, and waiver of 
claims. Both Tribes testified in strong support of the 
legislation.
    On June 21, 2000, the Committee on Indian Affairs 
considered and adopted an amendment-in-the-nature-of-a-
substitute to S. 1148 on behalf of the bill's sponsors. The 
substitute includes changes that (1) provide for capitalizing 
the trust funds from the General Fund of the Treasury, with 
interest, on the first day after the 11th year after the date 
of enactment of this Act; (2) prohibits per capita payments 
from the trust funds; (3) extinguishes all tribal claims for 
losses related to construction of the two dams once the tribal 
trust funds have been fully capitalized; (4) requires the 
tribes to consult with the Secretaries of Interior and Health 
and Human Services in preparing plans to use the trust funds; 
and, (5) includes plan activities under existing requirements 
of the Office of Management and Budget for annual audits of 
such activities and requires audit determinations to be 
published with tribal council proceedings. These changes 
address the concerns expressed by the Department of the 
Interior in its testimony and the Committee understands that 
they are acceptable to the Tribes.

            committee recommendation and tabulation of vote

    The Committee on Indian Affairs, in an open business 
session on June 21, 2000, adopted an amendment-in-the-nature-
of-a-substitute to S. 1148 by voice vote and ordered the bill, 
as amended, reported favorably to the Senate.

                      section-by-section analysis

Section 1--Short title

    This section cites the short title of S. 1148 as the 
``Yankton Sioux Tribe and Santee Sioux Tribe Equitable 
Compensation Act''.

Section 2--Findings

    This section sets forth ten Congressional findings:
    The first finding is that by enacting the Flood Control Act 
of 1944, Congress approved the Pick-Sloan Missouri River Basin 
program to promote the general economic development of the 
United States, provide for irrigation above Sioux City, Iowa, 
protect urban and rural areas from devastating floods of the 
Missouri River, and for other purposes;
    The second finding is that the water impounded for the Fort 
Randall and Gavins Point projects of the Pick-Sloan program 
inundated the fertile, wooded bottom lands along the Missouri 
River that constituted the most productive agricultural and 
pastoral lands of, and the homeland of, the members of the 
Yankton Sioux Tribe and the Santee Sioux Tribe.
    The third finding is that the Fort Randall project, 
including the dam and reservoir, overlies the western boundary 
of the Yankton Sioux Reservation and caused the erosion of more 
than 400 acres of prime land on the Yankton Sioux Reservation 
adjoining the east bank of the Missouri River.
    The fourth finding is that the Gavins Point project, 
including the dam and reservoir, overlies the eastern boundary 
of the Santee Sioux Tribe Reservation.
    The fifth finding is that although the Fort Randall and 
Gavins Point projects are major components of the Pick-Sloan 
program, and contribute to the economy of the United States by 
generating a substantial amount of hydropower and impounding a 
substantial amount of water, the reservations of the Yankton 
Sioux Tribe and the Santee Sioux Tribe remain undeveloped.
    The sixth finding is that the United States Army Corps of 
Engineers took the Indian lands used for the Fort Randall and 
Gavins Point projects by condemnation proceedings.
    The seventh finding is that the Federal Government did not 
give the Yankton Sioux Tribe and the Santee Sioux Tribe an 
opportunity to receive compensation for direct damages from the 
Pick-Sloan program, even though the Federal Government gave 5 
Indian tribes on reservations upstream from the Yankton and 
Santee tribes such an opportunity.
    The eighth finding is that the Yankton and Santee Sioux 
Tribes did not receive just compensation for the taking through 
condemnation of their productive agricultural lands referred to 
in the sixth finding.
    The ninth finding is that the settlement agreement that the 
United States entered into with the Yankton Sioux Tribe and the 
Santee Sioux Tribe to provide compensation for the taking by 
condemnation referred to in the sixth finding above did not 
take into account the increase in property values over the 
years between the date of taking and the date of settlement.
    The tenth finding states that in addition to the financial 
compensation provided under the settlement agreements referred 
to in the ninth finding, (A) the Yankton Sioux Tribe should 
receive $34,323,743 for the loss value of 2,851.4 acres of land 
taken for the Fort Randall Dam and Reservoir and the use value 
of 408.4 acres lost as a result of stream bank erosion that has 
occurred since 1953, and (B) the Santee Sioux Tribe should 
receive $8,132,838 for the loss value of 593.1 acres of land 
near the Santee village and 414.12 acres on Niobrara Island 
taken for the Gavins Point Dam and Reservoir.

Section 3--Definitions

    This section provides definitions for the terms ``Indian 
Tribe''; ``Yankton Sioux Tribe''; and Santee Sioux Tribe''.

Section 4--Yankton Sioux Tribe Development Trust Fund

    Subsection (a) provides for the establishment in the United 
States Treasury a fund to be known as the ``Yankton Sioux Tribe 
Development Trust Fund'' (``Fund'') that shall consist of any 
amounts deposited into it pursuant to this Act.
    Subsection (b) provides that, on the first day of the 11th 
fiscal year that begins after the date of enactment of this 
Act, the Secretary of the Treasury shall, from the General Fund 
of the Treasury, deposit into the Fund established under 
subsection (a) $34,323,743, together with an amount which 
equals the amount of interest that would have accrued on this 
amount if it had been invested in interest-bearing obligations 
of the United States, or in obligations guaranteed as to both 
principal and interest by the United States, on the first day 
of the fiscal year that begins after the date of enactment of 
this Act and compounded annually thereafter.
    The amount to be deposited into the Fund reflects a two-
part calculation. The first part uses the per-acre amount of 
compensation provided to the Lower Brule Sioux Tribe in 1997 
for inundated land ($1,763 per acre) multiplied by 2,851.4 (the 
number of acres of land flooded by the Fort Randall project), 
which equals $5,027,018, multiplied by 458 percent (the average 
of the sum paid by Congress for severance damages and 
rehabilitation over and above the sums paid for property 
damages in five initial tribal settlements between 1948 and 
1962), for a total of $23,023,743. The second part of the 
calculation represents the value of the loss of the productive 
use, since 1953, of 408.4acres of arable reservation land due 
to erosion caused by the Fort Randall project. \4\ Valuations were 
based on potential use of the land, economic returns that could have 
been realized, investment of the economic returns from land use over 
the 45 year period, and the present day value of the land. Non-arable 
tracts totaling 23.2 acres of eroded land were included in the total 
valuation based on their present day value only. Potential returns were 
estimated by evaluating receipts from alfalfa cultivation less the cost 
of farming, based on primary data provided by the Cooperative Extension 
Service of South Dakota State University. Land charges and management 
fees were not included, because it was assumed that the Tribe owns the 
land and manages crop production. The resulting amount is $11,300,000, 
which, added to $23,023,743, totals $34,323,743.
---------------------------------------------------------------------------
    \4\ See Pacific GeoScience, Missouri River Erosion, 1941-1988, 
Yankton Sioux Reservation, Marty, South Dakota (San Anselmo, CA: 
Pacific GeoScience, 1992) and Pacific GeoScience, Missouri River 
Erosion Update, 1941-1998, p. 2-1).
---------------------------------------------------------------------------
    Subsection (c) requires the Secretary of the Treasury to 
invest that portion of the Fund that in his judgement is not 
required to meet current withdrawals. Such investments may be 
made only in interest-bearing obligations of the United States 
or in obligations guaranteed as to both principal and interest 
by the United States. The Secretary of the Treasury shall 
deposit interest resulting from such investments into the Fund.
    Subsection (d)(1) provides that, beginning on the first day 
of the 11th fiscal year after the date of enactment of this 
Act, and on the first day of each fiscal year thereafter, the 
Secretary of the Treasury shall withdraw the aggregate amount 
of interest deposited into the Fund for the fiscal year and 
transfer that amount to the Secretary of the Interior for use, 
without fiscal year limitation, in accordance with paragraph 
(d)(2).
    Subsection (d)(2) provides that the Secretary of the 
Interior shall use the amounts transferred under subsection 
(d)(1) only for the purpose of making payments to the Yankton 
Sioux Tribe as such payments are requested by the Tribe by 
tribal resolution, but only after the Tribe has adopted a 
tribal plan under section 6.
    Subsection (e) bars the Secretary of the Treasury from 
transferring or withdrawing any amount deposited under 
subsection (b) of this section except as provided in 
subsections (c) and (d)(1) of this section.

Section 5--Santee Sioux Tribe Development Trust Fund

    Subsection (a) provides for the establishment in the United 
States Treasury a fund to be known as the ``Santee Sioux Tribe 
Development Trust Fund'' (``Fund'') that shall consist of any 
amounts deposited into it pursuant to this Act.
    Subsection (b) provides that on the first day of the 11th 
fiscal year that begins after the date of enactment of this 
Act, the Secretary of the Treasury shall, from the General Fund 
of the Treasury, deposit into the Fund established under 
subsection (a) $8,132,838, together with an amount of interest 
that equals the amount of interest that would have accrued on 
this amount if such amount had been invested in interest-
bearing obligations of the United States, or in obligations 
guaranteed as to both principal and interest by the United 
States, on the first day of the first fiscal year that begins 
after the date of enactment of this Act and compounded annually 
thereafter.
    The amount to be deposited into the Fund is calculated by 
combining the number of acres of land flooded by the Fort 
Randall project (593.1) and the number of acres of Niobrara 
Island (414.12) and multiplying the total (1,007.22) by the 
per-acre amount of compensation provided to the Lower Brule 
Sioux Tribe in 1997 for inundated land ($1,763), which equals 
$1,775,729. This amount, multiplied by 458 percent (the average 
of sum paid by Congress for severance damages and 
rehabilitation over and above sums paid for property damages in 
five initial tribal settlements between 1948 and 1962), equals 
$8,132,839.
    Subsection (c) requires the Secretary of the Treasury to 
invest that portion of the Fund that in his judgment is not 
required to meet current withdrawals. Such investments may be 
made only in interest-bearing obligations of the United States 
or in obligations guaranteed as to both principal and interest 
by the United States. The Secretary of the Treasury shall 
deposit interest resulting from such investments into the Fund.
    Subsection (d)(1) provides that, beginning on the first day 
of the 11th fiscal year after the date of enactment of this Act 
and on the first day of each fiscal year thereafter, the 
Secretary of the Treasury shall withdraw the aggregate amount 
of interest deposited into the Fund for the fiscal year and 
transfer that amount to the Secretary of the Interior for use, 
without fiscal year limitation, in accordance with subsection 
(d)(2).
    Subsection (d)(2) provides that the Secretary of the 
Interior shall use the amounts deposited under subsection 
(d)(1) only for the purpose of making payments to the Santee 
Sioux Tribe as such payments are requested by the Tribe by 
tribal resolution, but only after the Tribe has adopted a 
tribal plan under section 6.
    Subsection (e) bars the Secretary of the Treasury from 
transferring or withdrawing any amount deposited into the Fund 
under subsection (b) of this section except as provided in 
subsections (c) and (d)(1) of this section.

Section 6--Tribal plans

    Subsection (a) provides that, not later than 24 months 
after the date of enactment of this Act, the tribal councils of 
the Yankton Sioux and Santee Sioux Tribes shall each prepare a 
plan for the use of the payments made to each tribe under 
sections 4(d) or (5)(d) of this Act.
    Subsection (b) requires that each tribal plan shall provide 
for the manner in which the tribe shall expend payments made to 
the tribe under subsection (5)(d) to promote (1) economic 
development, (2) infrastructure development, (3) educational, 
health,recreational, and social welfare objectives of the tribe 
and its members, or (4) any combination of such activities.
    Subsection (c)(1) provides that the tribal councils of the 
Yankton Sioux and Santee Sioux Tribes shall make copies of 
their respective plans available to their members for review 
and comment before the tribal plan becomes final, in accordance 
with procedures established by the tribal council.
    Subsection (c)(2) provides that each tribal council may, on 
an annual basis, revise and update its tribal plan. In revising 
the tribal plan, the tribal council shall provide the members 
of the tribe opportunity to review and comment on any proposed 
revision.
    Subsection (c)(3) requires each tribal council to consult 
with the Secretary of the Interior and the Secretary of Health 
and Human Services in preparing its tribal plan and any 
revisions to update the plan.
    Subsection (c)(4)(A) provides that the activities of the 
tribes in carrying out their respective tribal plans shall be 
audited as part of the annual single-agency audit that the 
tribes are required to prepare pursuant to the Office of 
Management and Budget circular numbered A-133.
    Subsection (c)(4)(B) requires the auditors to determine 
whether funds received by each tribe for the period covered by 
the audits were expended to carry out the respective tribal 
plans consistent with this section, and to include such 
determinations in the written findings of the audits.
    Subsection (c)(5)(C) requires that a copy of the written 
findings of the audits shall be inserted in the published 
minutes of each tribal council's proceedings for the session at 
which the audit is presented to the councils.
    Subsection (d) prohibits any portion of any payment made 
under this Act from being distributed to any member of the 
Yankton Sioux Tribe or the Senate Sioux Tribe on a per capita 
basis.

Section 7--Eligibility of tribe for certain programs and services

    Subsection (a) declares that no payment made to the Yankton 
Sioux Tribe or the Santee Sioux Tribe pursuant to this Act 
shall result in the reduction or denial of any service or 
program to which, pursuant to Federal law, the Yankton Sioux 
Tribe or Santee Sioux Tribe is otherwise entitled because of 
the status of the tribe as a federally recognized Indian tribe, 
or any individual who is a member of either tribe because of 
that individual's status as a tribal member.
    Subsection (b) provides that no payment made pursuant to 
this Act shall be subject to any Federal or State income tax.
    Subsection (c) provides that no payment made pursuant to 
this Act shall affect Pick-Sloan Missouri River Basin power 
rates.

Section 8--Statutory construction

    This section provides that nothing in this Act may be 
construed as diminishing or affecting any water right of an 
Indian tribe, except as specifically provided in another 
provision of this Act, any treaty right that is in effect on 
the date of enactment of this Act, or any authority of the 
Secretary of the Interior or the head of any other Federal 
agency under a law in effect on the date of enactment of this 
Act.

Section 9--Authorization of appropriations

    This section authorizes to be appropriated such sums as are 
necessary to carry out this Act, including such sums as may be 
necessary for the administration of the Yankton Sioux Tribe 
Development Trust Fund under section 4 and the Santee Sioux 
Tribe Development Trust Fund under section 5.

Section 10--Extinguishment of claims

    This section provides that all monetary claims that the 
Yankton Sioux Tribe or the Santee Sioux Tribe has or may have 
against the United States for loss of value or use of land 
related to lands described in section 2(a)(10) resulting from 
the Fort Randall and Gavins Point projects of the Pick-Sloan 
Missouri River Basin program shall be extinguished upon the 
deposit of funds under sections 4(b) and 5(b) of this Act.

                   cost and budgetary considerations

    The cost estimate for S. 1148, as amended, as provided by 
the Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 27, 2000.
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. 1148, the Yankton 
Sioux Tribe and Santee Sioux Tribe Equitable Compensation Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Lanette J. 
Keith (for the federal costs), and Marjorie Miller (for the 
impact on state, local, and tribal governments).
            Sincerely,
                                         Robert A. Sunshine
                                    (For Dan L. Crippen, Director).
    Enclosure.

S. 1148--Yankton Sioux Tribe and Santee Sioux Tribe Equitable 
        Compensation Act

    Summary: S. 1148 would compensate the Yankton Sioux Tribe 
and the Santee Sioux Tribe for the taking of certain tribal 
lands by the federal government. CBO estimates that enacting 
this bill would have no significant impact on the federal 
budget over the 2001-2010 period. Enacting S. 1148 would 
increase direct spending by an estimated $75 million, but pay-
as-you-go procedures would not apply because the spending would 
not occur until fiscal year 2011.
    S. 1148 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA). 
Tribal governments might incur some costs as a result of the 
bill's enactment, but those costs would be voluntary.
    Estimated cost to the Federal Government: CBO estimates 
that enacting S. 1148 would result in direct spending outlays 
of $75 million in 2011, but would have no significant impact on 
the federal budget before then. For this estimate, CBO assumes 
that S. 1148 will be enacted by the end of fiscal year 2000.
    S. 1148 would provide compensation to the two tribes for 
the taking of 4,267 acres of land by the federal government for 
various water projects. The bill would establish the Yankton 
Sioux Tribe Development Trust Fund and the Santee Sioux Tribe 
of Nebraska Development Trust Fund and would direct the 
Secretary of the Treasury to deposit a total of $42 million 
into interest-bearing accounts to benefit the tribes on the 
first day of the 11th fiscal year that begins after the date of 
enactment. An additional deposit equal to the amount of 
interest that the fund would have earned if the fund had been 
capitalized and invested in 2001 would be made at the same 
time. CBO estimates that this additional payment would be $33 
million,for a total deposit of $75 million in 2011. Once the 
Secretary pays these amounts, any monetary claims the tribes may have 
against the United States regarding this project would be extinguished. 
Starting in 2011, the bill would allow the tribes to spend amounts 
equivalent to the annual interest earned on the fund pursuant to a 
tribal spending plan.
    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. 
As a result, CBO expects that the entire amount deposited to 
the fund in 2011 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.
    Pay-as-you-go considerations: The Balanced Budget and 
Emergency Deficit Control Act sets up pay-as-you-go procedures 
for legislation affecting direct spending or receipts. For the 
purposes of enforcing pay-as-you-go procedures, only the 
effects in the current year, the budget year, and the 
succeeding four years are counted. CBO estimates that enacting 
S. 1148 would not affect direct spending or receipts in any of 
those years.
    Estimated impact on state, local, and tribal governments: 
S. 1148 contains no intergovernmental mandates as defined in 
UMRA, but it would impose some conditions on the affected 
tribes for receipt of federal funds. The bill would require the 
tribes to prepare and adopt plans for using payments from the 
trust fund and to obtain audits of their expenditures. The 
tribes would receive significant benefits from enactment of 
this legislation.
    Estimated impact on the private sector: This bill contains 
no new private-sector mandates as defined in UMRA.
    Previous CBO estimate: On July 12, 2000, CBO transmitted a 
cost estimate for H.R. 2671, the Yankton Sioux Tribe and Santee 
Sioux Tribe of Nebraska Development Trust Fund Act, as ordered 
reported by the House Committee on Resources on June 28, 2000. 
H.R. 2671 would allow the tribes to spend $2 million to $3 
million of annual interest earned from the trust funds 
beginning in 2001. Under S. 1148, no deposits to the trust fund 
would be made until fiscal year 2011 and there would be no 
budgetary impact before then.
    Estimate prepared by: Federal Costs: Lanette J. Keith; 
Impact on State, Local, and Tribal Governments: Marjorie 
Miller; Impact on the Private Sector: Sarah Sitarek.
    Estimate approved by: Robert A. Sunshine, Assistant 
Director for Budget Analysis.

                        executive communications

    The views of the Administration on S. 1148 are set forth in 
the following testimony of Terry Virden, Director, Office of 
Trust Responsibilities, Bureau of Indian Affairs, United States 
Department of the Interior, before the Committee's hearing on 
May 17, 2000.

 Statement of Terry Virden, Director, Office of Trust Responsibilities

    Good afternoon, Mr. Chairman and Members of the Committee. 
I am pleased to be here today to present the Administration's 
views on S. 1148. I want to thank Senator Daschle for 
introducing this important bill that addresses impacts to the 
Yankton Sioux Tribe and the Santee Sioux Tribe of Nebraska 
resulting from the Pick-Sloan Missouri River Basin program and 
in particular the development of the Fort Randall and Gavins 
Point projects. If enacted, this bill would give the Tribes 
much deserved benefits to compensate for those impacts. While 
the Administration supports compensating the Tribes, we are 
concerned that the compensation figures on a per acre basis are 
significantly higher than those awarded previously to other 
Tribes that were compensated for losses resulting from the 
Pick-Sloan program. We look forward to working with the 
Committee to discuss these values and the rationale behind the 
amounts awarded under S. 1148.
    S. 1148 is a continuation of the United States' honorable 
efforts to correct inequities resulting from a regional Federal 
project which severely affected Indian tribal homelands along 
the Missouri River. In the early 1990's the United States 
forthrightly addressed impacts to the Standing Rock Sioux Tribe 
and the Three Affiliated Tribes of the Fort Berthold 
Reservation. In 1996 and 1997, respectively, it addressed the 
impacts to the Crow Creek Sioux Tribe and the Lower Brule Sioux 
Tribe. S. 1148 addresses and mitigates the impacts of the 
Missouri River Basin Pick-Sloan Project on the remaining two 
Tribes.
    The history of the Project is relatively well known. In 
1944, the United States undertook the challenge to reduce 
flooding in the lower Missouri River Basin through the 
construction of monumental dams capable of harnessing the 
seasonal raging flows of the Missouri River. In addition, these 
dams could generate electrical power and needed hundreds of 
thousands of acres of land to serve as reservoirs for the 
storage of water over time to release as necessary. So great 
was the water resource that a whole regional economy grew from 
the electric power generated by these dams.
    The pre-project tribal economy, however, was based on 
working the rich wooded bottom lands along the Missouri River. 
These lands were flooded for the reservoir, and the Tribes have 
never seen the former economy again. In addition, the 
importance of cultural treasures lost to inundation is now 
well-known.
    In the 1950's the Yankton Sioux Tribe and its affected 
tribal members received a total of $227,510 from the government 
for damages associated with the Fort Randall Project. Of this 
amount $121,210 was awarded them by the U.S. District Court for 
direct damages as the result of condemnation proceedings filed 
before the federal district court by the Army Corp of 
Engineers. Congress authorized the appropriation of an 
additional $106,500 in 1954 to be available for relocating the 
Yankton Sioux tribal members who resided on tribal and allotted 
lands. Unfortunately the Yankton Sioux Tribes did not receive 
any additional funding for a rehabilitation program. This bill 
proposes to provide them with $34.3 million in additional 
compensation for the loss value of 2,851.40 acres of land taken 
for the Fort Randall Dam and Reservoir, and for the use value 
of 408.40 acres of Indian land on the reservation that the 
Tribe lost as a result of stream bank erosion that has occurred 
since 1953.
    Information concerning the amount paid to the Santee Sioux 
condemnation settlement is sketchy because the court docket 
records are missing from the records of the U.S. District Court 
in the National Archives. It appears that the tribe may have 
been paid $52,000 on the basis of the Tribe's 1955 agreement 
with the Army Corps of Engineers. We do not know when the 
settlement money may have been distributed to the individual 
landholders. Like Yankton, the Santee Sioux did not receive any 
rehabilitation program funds either. This bill proposes to 
provide them with $8.1 million in additional compensation for 
the loss value of 593.10 acres of land located near the Santee 
village, and for 414.12 acres on Niobrara Island of the Santee 
Sioux Tribe Indian Reservation used for the Gavins Point Dam 
and Reservoir.
    The Administration could support S. 1148 with amendments. 
First, the funding mechanisms in section 4(b) for the Yankton 
Sioux Tribe Development Trust Fund and in section 5(b) for the 
Santee Sioux Tribe of Nebraska Development Trust Fund would be 
subject to pay-as-you-go requirements of the Omnibus Budget and 
Reconciliation Act of 1990, as amended. The Administration is 
concerned that any amounts required to establish the Funds 
would need to be offset. As noted in our statement on the 
Cheyenne River Sioux Tribe Equitable Compensation Act during 
the 105th Congress, this type of financing mechanism appears to 
be without cost when in reality it is not free. A more 
straightforward approach would be to rely on the authorization/
discretionary appropriations process to establish the Funds. We 
are willing to work with the Committee on developing a viable 
solution.
    Second, we recommend that Section 6 be amended to add a 
subsection (d) which would prohibit per capita payments to 
tribal members. A similar prohibition was included in the 
earlier Pick-Sloan project compensation Acts. The suggested 
amendment is as follows:

    Section 6(d)--Prohibition on Per Capita Payments.--No 
portion of any payment made under this Act may be distributed 
to any member of the Yankton Sioux Tribe or the Santee Sioux 
Tribe of Nebraska on a per capita basis.

    Our final recommendation is to include a new section which 
would address any further claims of the Tribe against the 
United States. We submit the following:

SEC. 10. EXTINGUISHMENT OF CLAIMS

    Upon the deposit of funds under sections 4(b) and 5(b), all 
monetary claims that the Tribe has or may have against the 
United States for loss of value or use of land related to funds 
described in Section 2(a)(10) resulting from the Fort Randall 
and Gavins Point projects of the Pick-Sloan Missouri River 
Basin program shall be extinguished.

    This concludes my testimony on S. 1148. I will be happy to 
answer any questions you may have.

                      regulatory 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 finds that the regulatory 
impact of S. 1148, as amended, will be minimal.

                        changes in existing law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing laws made by 
the bill are required to be set forth in the accompanying 
Committee report. The Committee finds that enactment of S. 1148 
will not result in any changes in existing law.

                                  
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