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[Senate Report 108-151]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 285
108th Congress                                                   Report
                                 SENATE
 1st Session                                                    108-151
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  PROVIDING FOR THE USE AND DISTRIBUTION OF THE FUNDS AWARDED TO THE 
  WESTERN SHOSHONE IDENTIFIABLE GROUP UNDER INDIAN CLAIMS COMMISSION 
     DOCKET NUMBERS 326-A-1, 326-A-3, 326-K, AND FOR OTHER PURPOSES

                                _______
                                

               September 22, 2003.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 618]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 618) to provide for the use and distribution of the 
funds awarded to the Western Shoshone identifiable group under 
Indian Claims Commission Docket Numbers 326-A-1, 326-A-3, 326-
K, 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.

                                PURPOSE

    The purpose of S. 618 is to provide for the distribution of 
judgment funds awarded to the Western Shoshone Indians in 
Docket Number 326-K before the Indian Claims Commission (Docket 
No. 326-K) and Docket Nos. 326-A-1 and 326-A-3 before the 
United States Court of Claims, together with all accrued 
interest. Funds under Docket No. 326-K are to be awarded on a 
per capita basis to eligible Western Shoshones who have at 
least \1/4\ degree of Western Shoshone blood, are citizens of 
the United States, and are living on the date of enactment of 
this legislation; provided, however, that any individual who 
has or is eligible to receive a per capita payment from any 
other similar judgment fund derived from an aboriginal land 
claim shall not be eligible to receive payment under this 
legislation. Funds under Docket Nos. 326-A-1 and 326-A-3 are to 
be placed in a trust fund to be established in the Treasury of 
the United States for the benefit of Western Shoshone members 
and to be known as the Western Shoshone Educational Trust Fund 
(Educational Trust Fund). Interest income from the Educational 
Trust Fund shall be distributed as educational grants to 
eligible individual Western Shoshone members and may also be 
used to pay the expenses of the Administrative Committee 
established to oversee the distribution of such educational 
grants and assistance.

                               BACKGROUND

    The Shoshone are an Indian people living mostly in the 
Great Basin of western North America. In 1863 the Western Bands 
of the Shoshone Nation signed a peace treaty with the United 
States at Ruby Valley, in what is now central Nevada.\1\ This 
treaty granted the United States certain rights within the area 
claimed by these bands, extending from the Snake River Valley 
of Idaho through Nevada and Utah to southern California. 
Certain individual Western Shoshone Indians filed a claim for 
the alleged loss of their lands with the Indian Claims 
Commission, Western Shoshone Identifiable Group v. United 
States, Docket No. 326-K. The Indian Claims Commission held the 
Western Shoshone were ``deprived of their lands'' in the 
nineteenth century by ``gradual encroachment of whites, 
settlers and others.'' Based on this finding, in 1979 the 
United States Court of Claims awarded about $27 million (the 
1872 value of the lands allegedly taken, without payment of 
prejudgment interest); post-judgment interest on this sum has 
been accruing since 1979. Additional funds are derived from the 
related proceedings (Docket Nos. 326-A-1 and 326A-3). No 
distribution of these funds has yet occurred. As of June 11, 
2003, Docket No. 326-K held $142,472,644, and Docket Nos. 326-
A-1 and 326-A-3 (collectively) held $1,386,718.
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    \1\ Treaty with the Western Shoshone (also known as the Treaty of 
Ruby Valley), 18 Stat. 689 (Oct. 1, 1863; ratified June 26, 1866), 
reprinted in II Kappler, Indian Affairs: Laws and Treaties 851-53 
(1904).
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                          LEGISLATIVE HISTORY

    S. 618 was introduced on March 13, 2003, by Senator Reid, 
for himself and for Senator Ensign, and was referred to the 
Committee on Indian Affairs.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    The Committee on Indian Affairs, in an open business 
meeting on July 16, 2003, by voice vote approved S. 618, with 
an amendment in the nature of a substitute, and ordered the 
bill, as amended, to be reported to the Senate.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    This Act may be cited as the ``Western Shoshone Claims 
Distribution Act''.

Section 2. Distribution of Docket 326-K funds

    Section 2 provides for the distribution of the funds 
appropriated in satisfaction of the judgment award granted to 
the Western Shoshone Indians in docket No. 326-K before the 
Indian Claims Commission, including interest earned. The 
Secretary of the Interior (Secretary) is directed to establish 
a Western Shoshone Judgment Roll consisting of all Western 
Shoshones who have at least \1/4\ degree of Western Shoshone 
blood, are citizens of the United States, and are living on the 
date of enactment of this legislation; provided however, that 
any individual found by the Secretary to be eligible to receive 
a per capita award from any other judgment fund based on an 
aboriginal land claim awarded by the Indian Claims Commission, 
the United States Claims Court, or the United States Court of 
Federal Claims, funds for which are appropriated before the 
date of the enactment of this legislation shall not be eligible 
for payment under this legislation. The Secretary is directed 
to publish rules and regulations in the Federal Register 
governing the establishment of the Western Shoshone Judgment 
Roll and to utilize any documents acceptable to the Secretary 
in establishing proof of eligibility. The Secretary's 
determination on all applications for enrollment shall be 
final. The Secretary shall distribute 100 percent of the funds 
in Docket No. 326-K on a per capital basis, in equal portions 
among persons listed on the Roll. Payments shall be made 
directly to living competent adults who have reached the age of 
19 years on the date of the distribution, whereas payments 
shall be distributed to the heirs and legatees of deceased 
eligible individuals in accordance with regulations prescribed 
by the Secretary. Payments to legally incompetent individuals 
shall be administered pursuant to regulations and procedures 
established by theSecretary pursuant to section 3(b)(3) of 
Public Law 93-134 (25 U.S.C. Sec. 1403(b)(3)). The shares of minors and 
individuals under the age of 19 years on the distribution date shall be 
held by the Secretary in supervised individual Indian money accounts, 
to be disbursed over a period of 4 years in payments equaling 25 
percent of the principal, plus interest earned on that portion of the 
per capita share; the first such payment to be disbursed to legally 
competent individuals upon reaching the age of 18 and subsequent 
payments to be disbursed within 90 days of the individual's following 
three birthdays. Per capita shares shall not be subject to Federal or 
State income tax and shall not be considered to be income or resources 
or be used as a basis for denying financial assistance or other 
benefits under the Social Security Act (42 U.S.C. Sec. 301 et seq.) or 
any other Federal or Federally assisted program. Per capita shares 
unpaid after 6 years, and the interest thereon, together with any other 
residual principal and interest funds remaining in Docket No. 326-K 
after completion of its distribution shall be added to the principal of 
the Western Shoshone Educational Trust Fund established pursuant to 
Section 3, except that the 6-year period shall not begin as to the per 
capita share of a minor until the minor reaches the age of majority.

Section 3. Distribution of Dockets 326-A-1 and 326-A-3

    Section 3 provides that funds awarded in Docket Nos. 326-A-
1 and 326-A-3, together with accrued interest thereon and 
certain unclaimed funds from Docket No. 326-K, are to be placed 
in a trust fund entitled the ``Western Shoshone Educational 
Trust Fund'' (Educational Trust Fund), the assets of which are 
to be invested pursuant to 25 U.S.C. 162a. The interest from 
the Educational Trust Fund is to be used to provide educational 
assistance grants for individual Western Shoshone members 
(i.e., eligible individuals who are listed on the Western 
Shoshone Judgment Roll and their lineal descendants) as 
directed by an Administrative Committee (Committee) consisting 
of 1 representative each of the Western Shoshone Te-Moak Tribe, 
Duckwater Shoshone Tribe, Yomba Shoshone Tribe, Ely Shoshone 
Tribe, Western Shoshone Committee of the Duck Valley 
Reservation, the Fallon Band of Western Shoshone, and the ``at 
large community.'' The members of the Committee shall be 
appointed for 4-year terms. The Secretary shall consult with 
the Committee on the management and investment of the assets of 
the Educational Trust Fund, and the Committee is authorized to 
disburse the income in accordance with the terms of this 
legislation. The Committee shall develop written rules and 
procedures to govern its actions, subject to approval by the 
Secretary, and may pay its operating expenses as provided in 
the legislation. The Committee shall employ a certified public 
accountant to prepare an annual financial statement and shall 
distribute that financial statement, together with a list of 
individuals receiving grants or assistance, to organizations 
represented on the Committee and, upon request, to individual 
Western Shoshone members.

Section 4. Definitions

    Section 4 provides definitions for the terms 
``Administrative Committee'' or ``Committee,'' ``Secretary,'' 
``Trust Fund,'' and ``Western Shoshone Members.''

Section 5. Regulations

    Section 5 authorizes the Secretary to promulgate 
regulations necessary to carry out this legislation.

                   COST AND BUDGETARY CONSIDERATIONS

    The cost estimate of the Congressional Budget Office on S. 
618 is as set forth below.

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 19, 2003.
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. 618, the Western 
Shoshone Claims Distribution Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lanette J. 
Walker.
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

S. 618--Western Shoshone Claims Distribution Act

    S. 618 would establish procedures for the distribution of 
about $143 million in judgment awards held in trust funds on 
behalf of the members of the Western Shoshone tribes. Under 
current law, the funds cannot be spent or distributed by the 
tribes until the Congress approves a plan to allocate the 
funds.
    The tribes were awarded over $26 million in 1979 as 
compensation for the federal government's taking of tribal land 
in California and Nevada and the removal of minerals from that 
land. S. 618 would provide for payments to eligible members of 
the Western Shoshone tribes of the $26 million plus interest 
earned on that amount--a total of about $143 million.
    S. 618 also would allow for the distribution of interest 
earnings on about $1.4 million that was awarded by the Court of 
Federal Claims to the Western Shoshone for the federal 
government's improper accounting of tribal funds. Under the 
bill, the interest on that trust fund would be used to make 
educational grants or to provide other education assistance to 
Western Shoshone members and to pay for the administrative 
expenses of the disbursement committee.
    Those trust funds are held and managed in a fiduciary 
capacity by the federal government on behalf of Indian tribes 
and are treated in the budget as nonfederal entities. As a 
result, outlays were recorded on the budget when the judgments 
were awarded to the tribes and paid into those funds, and there 
is no budgetary impact when the money is distributed to the 
individual members of the tribes. Therefore, CBO estimates that 
enacting S. 618 would have no effect on the federal budget.
    S. 618 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Lanette J. 
Walker. This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                        EXECUTIVE COMMUNICATIONS

    The Committee received written testimony from the Bureau of 
Indian Affairs, Department of the Interior, for the hearing 
held on an earlier version of the bill on August 2, 2002. The 
written testimony from the Administration is as follows:

 Statement of Neal A. McCaleb, Assistant Secretary for Indian Affairs, 
                       Department of the Interior

    Good morning, Mr. Chairman and Members of the Committee. 
Thank you for the opportunity to present the views of the 
Department of the Interior on S. 958, a bill entitled ``The 
Western Shoshone Claims Distribution Act.''
    The distribution of the Western Shoshone judgment funds is 
a long-standing issue that needs to be settled. The judgment 
funds stem from two claims that were filed by the Te-Moak Bans 
of Western Shoshone in the Indian Claims Commission in 1951. 
One is an aboriginal land claim that was concluded in 1979 in 
Docket 326-K for $26.1 million. The other is an accounting 
claim. Several issues in the accounting claim were handled 
separately and resulted in two awards. The first award in the 
accounting claim was for approximately $823,000, and Congress 
appropriated funds to pay the claim in 1992. The second award 
was for $29,000, and funds were appropriated in 1995 to pay the 
claim. The accounting claims were in Dockets 326-A-1 and 326-A-
3.
    Since 1980, numerous attempts have been made on reaching 
agreement on the disposition of the Western Shoshone judgment 
funds. The most recent attempt began in March 1998, the Western 
Shoshone Steering Committee (WSSC), which is composed of 
individuals that are tribal members at various reservations in 
Nevada. With the approval of the Te-Moak Tribal Council, the 
WSSC has worked over the past four years investigating if the 
Western Shoshone people were in favor of a judgment fund 
distribution.
    Since 1980, when the BIA held its first Hearing of Record 
on the distribution of the land claims judgment funds, a large 
segment of the Western Shoshone people have indicated that they 
are in favor of the judgment fund distribution. In the 
meantime, it's important to note that the tribunal councils of 
the four successor Western Shoshone tribes (Te-Moak, Ely, 
Duckwater and Yomba) have mostly opposed the distribution of 
the judgment funds because they wanted the Western Shoshone 
aboriginal lands returned. Although the tribal governments were 
unanimous in their opposition in the early 1990's, since 1997, 
three of the four tribal councils have modified their position 
to support the distribution of the judgment funds.
    The Te-Moak Tribal Council enacted Resolution No. 97-TM-10 
on March 6, 1997, adopting a plan for the distribution of these 
funds and requested the Department to support it. That 
resolution was rescinded by the next tribal council in the 
summer of 2000, but the current tribal council rescinded that 
action in January of this year and reinstated the 1997 
resolution. The Duckwater Shoshone Tribal Council enacted 
Resolution No. 09-D-12 on March 18, 1998, supporting the 
Western Shoshone claims distribution proposal. On March 10, 
1999, they enacted Resolution No. 99-D-07 reaffirming the 
earlier resolution supporting the Western Shoshone Claims 
distribution proposal. The Ely Tribal Council enacted 
Resolution No. 2001-EST-44 on October 9, 2001, supporting S. 
958 and H.R. 2851. We have been advised that the Yomba Tribal 
Council continues to oppose the distribution. Several other 
tribes with enrolled tribal members that would be eligible to 
share in the judgment fund distribution under S. 958 have also 
enacted resolutions supporting the distribution. Those tribes 
are Duck Valley, Fallon and Fort McDermitt. The Shoshone-Paiute 
Tribal Business Council of Duck Valley withdrew its support of 
S. 958 by Resolution No. 2002-SPR-012, dated November 13, 2001. 
However, the Western Shoshones of Duck Valley continue to 
support the bill.
    We support the enactment of S. 958 because we believe that 
it reflects the wishes of the vast majority of the western 
Shoshone people. We are also pleased that three of the four 
successor tribes have expressed their support of the 
distribution, as well as two other tribes with a significant 
number of tribal members of Western Shoshone descent.
    Section 2 of S. 958 proposes to distribute the Western 
Shoshone land claims funds that were awarded in Docket 326-K, 
one hundred percent (100%) per capita to approximately 6,500 
individuals who have at least one-quarter (1/4) degree of 
Western Shoshone Blood. The current balance of this fund, 
including interest, is $137,286,774. This section appears to be 
in accord with the wishes of the Western Shoshone people.
    Section 3 proposes to use the principal portion of the 
Western Shoshone accounting claims funds awarded in Dockets 
326-A-1 and 326-A-3 for a non-expendable Trust Fund. The 
interest and investment income will be available for 
educational grants and other forms of educational assistance to 
individual Western Shoshone members that are enrolled under 
Section 2 of this Act, and to their lineal descendants. The 
principal fund totals $754,136. The interest fund totals 
$591,845. This section appears to be in accord with the wishes 
of the Western Shoshone people.
    We understand that many of the beneficiaries of this treaty 
continue to believe in their rights under the Treaty of Ruby 
Valley and this subsection acts as a savings clause for 
whatever rights remain in effect. We are concerned that some 
tribes or individuals may believe that Article 5 of the Treaty 
(land provisions) remains in effect. To be safe, the clause 
should read, ``Receipt of a share of the funds under this 
subsection shall not alter any treaty rights, or the final 
decisions of the Federal Courts regarding those rights, 
pursuant to the `1863 Treaty of Ruby Valley,' inclusive * * 
*.''
    This concludes my prepared statement. We are submitting a 
report to be included into the record that gives a detailed 
history of the Western Shoshone claims. I will be happy to 
answer any questions the Committee may have.

                      REGULATORY IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill evaluate 
the regulatory paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that the 
regulatory impact of S. 618 will be minimal.

                        CHANGES IN EXISTING LAW

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that the 
enactment of S. 618 will not result in any changes in existing 
law.

                                
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