49–010 

Calendar No. 531 

109TH CONGRESS REPORT " ! SENATE 2d Session 109–291 

AMENDING THE SHIVWITS BAND OF THE PAIUTE INDIAN TRIBE OF UTAH 

WATER RIGHTS SETTLEMENT ACT TO ESTABLISH AN ACQUISITION 

FUND FOR THE WATER RIGHTS AND HABITAT ACQUISITION PROGRAM 

JULY 24, 2006.—Ordered to be printed 

Mr. MCCAIN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 3501] 

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

(S. 3501) to amend the Shivwits Band of the Paiute Indian Tribe 

of Utah Water Rights Settlement Act to establish an acquisition 

fund for the water rights and habitat acquisition program, having 

considered the same, reports favorably thereon without amendment 

and recommends that the bill do pass. 

PURPOSE

The bill to amend the Shivwits Band of the Paiute Indian Tribe 

of Utah Water Rights Settlement Act, P.L. 106–263 (114 Stat. 737, 

August 18, 2000), corrects deficient language in Section 10(f) of the 

Settlement Act. Section 10(f) authorized $3 million to be placed in 

a trust fund to implement a water rights and habitat acquisition 

program for the Santa Clara river basin in Utah but the language 

was insufficient to accomplish the intent of the provision. S. 3501 

corrects the language deficiency, allowing Department of the Interior to establish the trust fund. 

BACKGROUND

The Shivwits Band of the Paiute Indian Tribe of Utah Water 

Rights Settlement Act, P.L. 106–263 (114 Stat. 737, August 18, 

2000), ratified a negotiated settlement of the Shivwits Band of Paiute Indians’ claims to water rights in the Santa Clara River. Section 10(f) of the Act authorized the Secretary of the Interior to establish a water rights and habitat acquisition program in the Virgin River Basin primarily for the benefit of native plant and animal species in the Santa Clara River Basin listed under the EndanVerDate Aug 31 2005 02:18 Jul 30, 2006 Jkt 049010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR291.XXX SR291

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gered Species Act and secondarily for the benefit of listed species 

in the Virgin River Basin. However, when the Department of the 

Interior attempted to implement the provision in Section 10(f), to 

deposit and maintain the $3.0 million in an interest bearing account, the Department of Treasury advised the Department of the 

Interior that the language in Section 10(f) was insufficient for this 

purpose. The Department of the Interior, based on guidance from 

the Department of Treasury, provided proposed legislation to correct the deficiency in the original statutory language. 

The Committee received communication from the Department of 

the Interior, dated May 10, 2005, on Senate Bill 536. S. 536, the 

Native American Omnibus Act of 2005 contained separate provisions dealing with a variety of topics related to Indians or Indian 

tribes. The Department included a request to introduce legislation 

for Shivwits as an additional technical correction. 

LEGISLATIVE HISTORY

S. 3501 was introduced on June 13, 2006, by Senator McCain 

and was referred to the Committee on Indian Affairs. On June 22, 

2006, S. 3501 was unanimously passed out of the Committee and 

ordered reported without amendment. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

On June 22, 2006, the Committee, in an open business session, 

considered S. 3501. By a unanimous voice vote, the Committee ordered the bill reported favorably to the full Senate with the recommendation that the bill do pass. 

SECTION-BY-SECTION ANALYSIS

Section 1 

This section amends section 10(f) of the Shivwits Band of the 

Paiute Indian Tribe of Utah Water Rights Settlement Act, P.L. 

106–263 (114 Stat. 737, August 18, 2000). This amendment adds 

a new subsection (g) that establishes the Acquisition Fund, specifies the type of investments that may be made, and requires any 

income from the investments be credited to the Acquisition Fund. 

COST AND BUDGETARY CONSIDERATIONS

The Congressional Budget Office cost estimate for S. 3501 is set 

forth below: 

S. 3501—A bill to amend the Shivwits Band of the Paiute Indian 

Tribe of Utah Water Rights Settlement Act to establish an acquisition fund for the water rights and habitat acquisition program 

S. 3501 would amend the Shivwits Band of the Paiute Indian 

Tribe of Utah Water Rights Settlement Act to establish a special 

fund for the water rights and habitat acquisition program created 

by that act. The acquisition program would use the resources in the 

special fund for the conservation and recovery of native plant or 

animal species in the Santa Clara River Basin. The bill would appropriate $3 million to the new special fund. (Under current law, 

that amount is authorized to be appropriated to obtain water rights 


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and real property.) As a result, CBO estimates that S. 3501 would 

increase direct spending by $3 million over the 2007–2016 period. 

S. 3501 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 Gregory Waring. This 

estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires that each report accompanying a bill 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 impact should be minimal. 

EXECUTIVE COMMUNICATIONS

The Committee has not received official executive communications on S. 3501. 

U.S. DEPARTMENT OF THE INTERIOR, 

OFFICE OF THE SECRETARY, 

Washington, DC., May 10, 2005. 

Hon. JOHN MCCAIN, Chairman, Committee on Indian Affairs, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: This letter sets forth the views of the Department of the Interior on S. 536, a bill ‘‘to make technical corrections to laws relating to Native Americans, and for other purposes.’’

We support the enactment of S. 536 as ordered reported by the 

Senate Committee on Indian Affairs on March 9, 2005. However, 

the Department suggests the following amendments be made to the 

bill. 

Section 101. Indian Financing Act amendments 

Section 101 of the bill would amend the Indian Financing Act of 

1974 with the intent of expediting the implementation of a secondary market for loans guaranteed under the Bureau of Indian 

Affairs Loan Guaranty Program. We request the following amendment be made to this section which will allow Indian and non-Indian lenders to loan money to Indian-owned businesses. This will 

allow the Bureau of Indian Affairs (BIA) to provide financial assistance to a broader number of American Indians and Alaska Natives. 

We suggest that Section 101(d) be amended to read: 

(d) Loans Ineligible for Guaranty or Insurance.—Section 206 of 

the Indian Financing Act of 1974 (25 U.S.C. 1486) is amend by inserting ‘‘(not including an eligible Community Development Finance Institution)’’ after ‘‘Government’’. 

The Administration has some additional concerns regarding compensation of secondary market fiscal agents and funding for the 

cost of administering the secondary market, which we look forward 

to discussing with the Committee. 


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Section 104. Indian Pueblo Land Act amendments 

Section 104 provides for the Indian Pueblo Land Act amendments to clarify criminal jurisdiction with the exterior boundaries 

of the Pueblo owned land grants. Criminal jurisdiction within the 

Pueblo grants has long been a problem for many of the Pueblos, the 

counties and cities in which they are located, and the U.S. Attorney’s office. We support the legislative attempt to clarify the jurisdictional issues. However, we suggest sections 20(b) and (c) be 

amended because it does not precisely track the allocation of jurisdiction applicable in Indian country generally under the Indian 

Civil Rights Act (ICRA). The ICRA recognizes the inherent jurisdiction of tribes over any person who is an ‘‘Indian.’’ This definition 

would ensure that Pueblo would have jurisdiction over certain persons who are not enrolled members of a tribe, such as minor children who have not yet been enrolled as a member. 

In subsection (b) by adding a ‘‘,’’ after Pueblo and by striking ‘‘of 

another Indian tribe’’ and inserting in lieu thereof ‘‘non-member Indian’’. In subsection (d) by striking ‘‘a member of an Indian tribe’’ and 

inserting in lieu thereof ‘‘an Indian’’. 

Section 105. Prairie Island Land Conveyance 

Section 105 would take land including all improvements, cultural 

resources, and sites on the land, into trust for the Prairie Island 

Indian Community. We suggest striking the words ‘‘all improvements’’ from Sec. 105(a) so it reads as follows: 

(a) In General.—The Secretary of the Army shall convey all 

right, title, and interest of the United States in and to the land described in subsection (b), including cultural resources, and sites on 

the land, subject to the flowage and sloughing easement described 

in subsection (d) and to the conditions stated in subsection (f), to 

the Secretary, to be—* * * 

The Department feels this change is necessary to address any 

uncertainty about the Government having a fiduciary obligation to 

repair and maintain any acquired improvements. 

In addition, section 105 would require a boundary survey to be 

conducted no later than 5 years after the date of conveyance. The 

boundary survey should be required prior to the conveyance, to 

avoid any disputes or the need for corrections after the conveyance 

has occurred. 

Section 106. Binding arbitration for Gila River Indian Community 

reservation contracts 

This section would provide the Gila River Indian Community the 

authority to enter into binding arbitration agreements for any lease 

or contract the tribe may enter into affecting the tribe’s land. We 

want to make it clear that it is our view that this section would 

not require the United States to enter into binding arbitration or 

waive the sovereign immunity of the United States. 

Section 111. Indian Arts and Crafts 

The Department requests that the amendments to the Indian 

Arts and Crafts Act (Act) include a provision authorizing the Indian Arts and Craft Board (Board) to recommend the Secretary impose administrative fines for violations of the Act. Administrative 


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fines would be imposed for those violations that would not otherwise be serious enough to warrant a full civil or criminal action 

being pursued by the United States Attorney General. Many other 

federal agencies, including those within the Department, have the 

authority to levy administrative fines. Granting the Board similar 

authority would allow it to take action in meritorious cases for 

which the Attorney General is unlikely to devote resources. 

In addition, the Department requests that any amounts recovered as a result of an administrative fine or civil action, after making reimbursements contemplated in this section, be paid to the Indian Arts and Crafts Board for statutorily mandated nonenforcement activities such as trademark protection and the promotion of 

authentic Indian Arts and Crafts. 

The Department supports extending investigative authority to 

other federal law enforcement agencies. To facilitate the usefulness 

of that, we suggest the Committee clarify a potential jurisdictional 

issue that may arise. Specifically, BIA law enforcement may not investigate outside of Indian country. When off reservation, the Officer may only ‘‘observe’’ a violation rather than continue his investigation without contacting the appropriate federal enforcement 

agency, in most cases the FBI. The investigating officer should be 

granted the authority to be able to cross jurisdictions for the express purpose of enforcing the Indian Arts and Crafts Act. For example, BIA law enforcement officers should be granted the authority to specifically investigate violations of the Indian Arts and 

Crafts Act outside of Indian country. The Department will work 

with the Department of Justice on this expansion of jurisdictional 

authority. 

Section 111(b)(7) states in part that the Department shall promulgate regulations which includes a definition of ‘‘Indian product’’ and ‘‘examples of each Indian product’’. The regulations currently 

provide such a list. Therefore, this provision should be deleted. 

However if this provision remains, the phrase ‘‘examples of each 

Indian product’’ should be amended to ‘‘examples of Indian products’’ so that the published list does not become an exclusive list 

that courts interpret as precluding action for items that may not 

be specifically included on the list. In addition, the Department is 

concerned that the amended definitions do not include a definition 

for ‘‘product of a particular Indian tribe or Indian arts and crafts 

organization.’’ Excluding products of a particular Indian tribe or Indian arts and crafts organization could potentially remove the right 

of a tribe to protect their cultural heritage by using their tribal 

name in the description of a particular art or craft work for which 

their Tribe specializes in or is particularly known for. 

The Department requests an additional conforming amendment 

be made to the Indian Arts and Crafts Act. The trademark provision, section 102 of the Act, permits the Board to register any 

trademark owned by the Government in the U.S. Patent and 

Trademark Office (USPTO) without charge and assign it and the 

goodwill associated with it to an individual Indian or Indian tribe 

without charge. The Act, however, does not permit the board to 

register trademarks owned by individual Indian artists, artisans, 

tribes, and businesses for arts and crafts marketing purposes. 

Under the Lanham Act, the party registering the trademark must 

also own the mark. Therefore, if the Board attempted to register 


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a trademark owned, for example, by a Navajo tribal arts and crafts 

enterprise, the application would be denied. Therefore, the word 

‘‘government’’ should be struck in order to allow the Board to act 

as an agent and file without charge trademark registration applications with the USPTO for trademarks that are owned by an individual Indian, Indian tribe, or Indian arts and crafts organization. 

Finally, the Department of Justice advises that there may be 

constitutional concerns with section 111(b), which would amend 

section 6 of the Act by defining the term ‘‘Indian tribe’’ to include ‘‘an Indian group that has been formally recognized as an Indian 

tribe by . . . (i) a State legislature; (ii) a State commission; or (iii) 

another similar organization vested with State legislative tribal 

recognition authority.’’ Section 111(c) would add the same definition to 18 U.S.C. 1159(c). Under the Constitution, only the federal 

government has authority to recognize Indian tribes. See, e.g., 

McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 172 n.7 

(1973) (source of Federal authority over Indian matters ‘‘derives 

from Federal responsibility for regulating commerce with Indian 

tribes and for treaty making’’). In the absence of such federal recognition, the term ‘‘Indian tribe’’ might be viewed as a racial classification subject to strict scrutiny under Adarand Constructors, Inc. 

v. Pena, 515 U.S. 200, 235 (1995), rather than the more deferential 

review accorded to classifications based on membership in a federally recognized Indian tribe under Morton v. Mancari, 417 U.S. 535 

(1974). The part of this definition relating to recognition by state 

entities should be deleted. 

Section 114. Research and educational activities 

Section 114 would add an additional authorized use of funds (research and educational activities relating to Native Hawaiian law) 

to the Education for Native Hawaiians program, which is administered by the Department of Education. The Department of Education objects to this amendment. The purpose of the program 

should continue to be to strengthen educational programs and services for Native Hawaiians (pre-K through postsecondary), in order 

to raise the educational achievement of that population. This additional authorized activity, research on Native Hawaiian law, would 

be for a different purpose and thus has the potential to dilute the 

impact of the program. Moreover, the Department of Education has 

already received earmarked funding, through the fiscal year 2005 

omnibus appropriations act, to establish a center of education in 

Native Hawaiian law at the University of Hawaii. The proposed 

amendment to allow for the support of research and education in 

Native Hawaiian law would, in other words, be enacted after the 

appropriation of funding for such research and education (and most 

likely after the Department of Education has made a grant for the 

new center). Therefore, this provision is unnecessary. 

Section 121. Definition of Indian student count 

Section 121 amends the definition of ‘‘Indian student count’’ used 

in the formula by which the Department of Education calculates 

awards to tribally-controlled postsecondary vocational and technical 

institutions under the Carl D. Perkins Vocational and Technical 

Education Act. Education has advised that it is developing the Indian student count data needed to calculate the FY 2005 awards, 


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and is concerned that if the definitional changes were to go into effect in FY 2005, they would likely delay the FY 2005 grants. In 

order to prevent any the disruption of the award of these grants, 

Education recommends that section 121 be amended to clarify that 

its definition changes would take effect beginning in FY 2006. 

Section 122. Native Nations leadership, management, and policy 

Section 122 would amend the Morris K. Udall Scholarship and 

Excellence in National Environmental and Native American Public 

Policy Act of 1992 (20 U.S.C. 5602). The Department of Justice advises that there may be constitutional concerns with the amendment to the Morris K. Udall Scholarship Act of 1992, 20 U.S.C. 

5605(a)(1). The amendment to subparagraph (C) would permit 

awards to members of state-recognized tribes. As stated above, Department of Justice is concerned that this may be viewed as a racial classification subject to strict scrutiny under Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995), rather than the 

more deferential review accorded to classifications based on membership in a federally recognized Indian tribe under Morton v. 

Mancari, 417 U.S. 535 (1974). Therefore, the Department of Justice 

recommends that Section 122(c)(C)(iii) be deleted. 

Section 132. Border preparedness on indian land 

Section 132 would amend Subtitle D of Title IV of the Homeland 

Security Act of 2002 (6 U.S.C. 251 et seq.) by adding a new Section 

447 entitled ‘‘Border Preparedness Pilot Program on Indian Land.’’ The Department of the Interior supports the amendments outlined 

in the new Section 447. By specifically including Indian tribes, it 

enhances their ability to protect the border integrity of the United 

States. However, the Department of Homeland Security recommends the following amendments: 

Proposed section 447(a)(2): The Department of Homeland Security believes that the proposed definition of Indian tribe would preclude the participation of Alaska Native organizations. Therefore, 

the Department of Homeland Security recommends amending the 

definition to read as follows: 

(2) INDIAN TRIBE.—The term ‘Indian tribe’ means all Indian 

entities listed in the Federal Register list of Indian entities recognized as eligible to receive services from the United States, published pursuant to section 104 of the Federally Recognized Indian 

Tribe List Act of 1994 (25 U.S.C. 479a–l). 

Proposed Section 447(b) and (c)(1): The Department of Homeland 

Security conducts preparedness programs, such as the proposed 

pilot program, through its Office of Domestic Preparedness. To ensure that the tribes are treated equitably and provided access to 

the full range of preparedness programs, the Department of Homeland Security recommends that the matter preceding paragraph (1) 

of subsection (b) be amended by striking ‘‘Under Secretary for 

Board and Transportation Security’’ and inserting ‘‘Office of Domestic Preparedness’’. The Department of Homeland Security recommends that a similar amendment be made to proposed section 

(c)(1). 

Finally, to clarify jurisdiction, the Department of Homeland Security recommends that proposed section 447 be amended by redesignating proposed subsection (e) as proposed subsection (f); and 


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after proposed subsection (d), by inserting the following new subsection: 

‘‘(e) LIMITATION.—Nothing in this section shall be construed as 

a grant of statutory authority to an Indian tribe, tribal organization, or tribal government to exercise any authority vested in the 

Secretary of Homeland Security or enforce any customs, immigration, or maritime law.’’

TITLE II—OTHER AMENDMENTS TO LAWS RELATING TO NATIVE

AMERICANS

Section 211. Navajo Health Contracting 

Section 211 would require that the Navajo Health Foundation/ 

Sage Memorial Hospital at Ganado, AZ, be considered a tribal contractor under the Indian Self-Determination and Education Assistance Act (ISDEAA) for purposes of extending Federal Tort Claims 

Act (FTCA) coverage to contract employees, to provide access to the 

Federal sources of supply, and to make patient records eligible for 

storage by Federal Records Centers to the same extent and in the 

same manner as other Department of Health and Human Services 

patient records. 

If enacted, this section would allow Navajo Nation Health Foundation (NHF) access to these services and benefits. This access to 

benefits and services would continue until such time as the NHF’s 

current funding is adjusted by Congress to allow them to fully negotiate a contract under ISDEAA. This provision would establish a 

precedent for tribes/tribal organizations seeking to negotiate an 

ISDEAA contract to seek legislative authorization to select certain 

provisions in the ISDEAA that would be applied to them until such 

time as they are able to complete all requirements required in the 

ISDEAA. 

The Department of Health and Human Services is concerned 

that this provision circumvents the contracting requirements of the 

ISDEAA and selectively makes provisions applicable to the Navajo 

Health Foundation. In addition, the Department of Justice is concerned with selectively extending FTCA coverage to entities that do 

not meet the full set of requirements under the ISDEAA. For these 

reasons, the Department of Health and Human Services and Department of Justice recommend that section 211 be deleted. 

Section 221. Probate Reform 

The Department recommends some additional amendments be 

made to the American Indian Probate Reform Act (AIPRA). We recommend adding a new subsection (g) to section 221 that would delete the paragraph in AIPRA regarding Family Cemetery Plots. 

The Department does not hold or manage any cemetery plots in 

trust status. Therefore, they would not be subject to the Department’s probate procedures. Family cemetery plot probate issues fall 

outside the jurisdiction of the federal government. 

(g) RULE OF CONSTRUCTION.—subsection (i) of Section 207 of 

the Indian Land Consolidation Act (25 U.S.C. 2206) (as amended 

by section 3(d) of the American Indian Probate Reform Act of 2004 

(Public Law 108–374) is amended by striking paragraph (7). 

In addition, we request the following technical amendments be 

included in this section: 


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• Under Partition of highly fractionated Indian lands, section 

2204(d)(2)(I)(iii)(IV)(aa) should be amended by striking ‘‘less’’ and 

inserting in lieu thereof ‘‘more’’. • Under Descent and distribution, estate planning— » section 2206(f)(2)(A) should be amended by striking ‘‘advise’’

» section 2206(f)(2)(B) should be amended by striking ‘‘among’’ and inserting in lieu thereof ‘‘as authorized by the 

Secretary for’’ general rules governing probate, section 

2206(k)(2)(A)(ii)(I) should be amended by striking ‘‘date of enactment’’ and inserting in lieu thereof ‘‘effective date’’. 

Additional amendments 

The Department also suggests additional amendments be added 

to S. 536. We recommend the following two amendments to the 

Shivwits Water Rights Settlement and the Individuals with Disabilities Education Act be added to the end of Title II. We also recommend two new titles be added to the bill that would provide a 

technical correction to address the decisions in Youpee v. Babbitt 

and DuMarce v. Norton and give the Secretary the authority to address unclaimed property. 

Subtitle D—Shivwits water rights settlement 

Section 10 of P.L. 106–263 authorizes a water rights and habitat 

acquisition program for the Santa Clara and Virgin Rivers as a 

safety net to address environmental consequences of the water settlement agreement that may not have been evident at the time of 

enactment. Congress appropriated the $3.0 million authorized to be 

appropriated by Section 10. When the Department attempted to 

implement the provision in Section 10, which was intended to 

maintain the $3.0 in an interest bearing account, the Treasury Department advised that the language in Section 10 was insufficient 

for this purpose. Based on guidance from the Treasury Department, the proposed technical amendment was developed to correct 

the deficiency in the original statutory language. 

Section 10 of the Shivwits Band of the Paiute Indian Tribe of 

Utah Water Rights Settlement Act of August 18, 2000, Public Law 

106–263 (114 Stat.737), is amended by: 

(1) Deleting the second sentence in subsection 10(f) (114 Stat. 

744) which reads: ‘‘The Secretary is authorized to deposit and 

maintain this appropriation in an interest bearing account, said interest to be used for the purposes of this section.’’

(2) Adding the following subsection 10(g): 

‘‘(g) ESTABLISHMENT OF ACQUISITION FUND.—There is established in the Treasury of the United States a fund to be known 

as the Santa Clara Water Rights and Habitat Acquisition Fund 

(hereinafter called the ‘‘Acquisition Fund’’). The Secretary shall deposit into the Acquisition Fund the funds appropriated pursuant to 

subsection (f). The Acquisition Fund principal and any income 

thereon shall be managed in accordance with this section 10.’’

(3) Adding the following subsection 10(h): 

‘‘(h) INVESTMENT OF ACQUISITION FUND.—The Secretary of 

the Interior may request the Secretary of the Treasury to invest 

such portion of the Acquisition Fund as is not, in the Secretary of 

the Interior’s judgment, required to meet the current needs of the 


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fund. Such investments shall be made by the Secretary of the 

Treasury in public debt securities with maturities suitable to the 

needs of the fund, as determined by the Secretary of the Interior, 

and bearing interest at a rate determined by the Secretary of the 

Treasury, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable 

maturity.’’

Subtitle E—Individuals with Disabilities Education Improvement 

Act 

Section 611(e)(1)(A) of, the Individuals with Disabilities Education Act (IDEA), as amended by Public Law 108–446, the Individuals with Disabilities Education Improvement Act of 2004 allows 

states and outlying areas to reserve money for state administrative 

purposes, but omitted language allowing the Secretary of the Interior to reserve money for state administrative purposes. While arguably the Department of Education can permit this use of funds 

in regulations, the support for this use would be more clearly supported if it were included in the statute. The suggested addition to 

section 611(e)(1)(A) provided below, would clarify that the Secretary of the Interior is not barred from reserving a portion of the 

Special Education, Part B dollars, for administrative costs, similar 

to all states and outlying areas that also receive these dollars. 

In addition, section 611(h)(1)(A), now imposes statutory deadlines 

as to when the Department of the Interior is to distribute the IDEA 

Part B dollars they receive. This provision is unlike any requirement imposed on any state or outlying area. This provision requires the Secretary of the Interior to distribute these dollars without first determining what the need is at each school, or without 

looking first to the dollars appropriated to the Department of the 

Interior for special education services. Therefore, the Department 

of the Interior will no longer be able to the use the individual need 

of each student as the basis for the distribution of the Part B dollars or ensure that funding given to the schools is being used properly. Therefore, the Department recommends the deletion of section 

611(h)(1)(A)(i) and (ii), which would allow the Secretary of the Interior to distribute IDEA Part B dollars based on student need and 

removes the distribution dates. 

Section 611 of the Individuals with Disabilities Education Act is 

amended by: 

(1) Adding subsection (iii) to section 611(e)(1)(A): 

‘‘(iii) The Secretary of the Interior may reserve for each fiscal 

year not more than 5 percent of the amount the Department of the 

Interior receives under (h)(1)(A) for the fiscal year or $800,000 (adjusted in accordance with subparagraph B), whichever is greater.’’

(2) Deleting in section 611(h)(1)(A) the following sentence: ‘‘Of 

the amounts described in the preceding sentence—(i) 80 percent 

shall be allocated to such schools by July 1 of that fiscal year; and 

(ii) 20 percent shall be allocated to such schools by September 30 

of that fiscal year.’’

Youpee and Sisseton-Wahpeton 

A new title should be added to S. 536 that would provide a technical correction to address the decisions in Youpee v. Babbitt and 

DuMarce v. Norton. The United States Supreme Court in Youpee 


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held the escheat provision of the Indian Land Consolidation Act as 

unconstitutional. In DuMarce, the District Court for the District of 

South Dakota found unconstitutional a statute under which any interest of less than two and a half acres would automatically escheat to the Sisseton Wahpeton Sioux Tribe. As a result of these 

two decisions, the Department is faced with having to revest interests that escheated under both statutes back to the rightful heir. 

We request that a new title be added declaring that any interest 

that escheated pursuant to these Acts be vested in the tribe to 

which they escheated unless they have been revested in the name 

of the heirs of the allottee by the Secretary since the escheatment. 

The provision should provide that the escheat of those interests to 

the tribes involved a taking by the United States and should provide compensation to the heirs of those escheated interests. 

Unclaimed property 

Under state law, a state may sell or auction off certain personal 

property that has not been claimed by an owner within a certain 

amount of time, usually within 5 years. This is not the case with 

inactive Individual Indian Money accounts or real property interests. Often times the whereabouts of account owners are unknown 

to the Department because account holders do not respond to our 

requests for address information and our repeated attempts to locate them have been unsuccessful. This may be because the small 

amount in their account does not make such effort worthwhile. 

However, the Department must account for every interest regardless of size and we do not have the authority to stop administering 

accounts where whereabouts of the owner are unknown. We must 

have the authority to close these small accounts and restore economic value to the assets if the owner does not claim their interest 

within a certain amount of time. If the owner does not come forward, the revenue generated from the interest should be held in a 

general holding account against which claims could be made in the 

future if the owner’s whereabouts become known or used to further 

the fractionation program. 

Conclusion 

The Department looks forward to working with the Committee 

on addressing the above issues. The Office of Management and 

Budget has advised that there is no objection to the presentation 

of this report from the standpoint of the Administration’s program. 

Sincerely, 

MATT EAMES, Director, Office of Congressional and Legislative Affairs. 

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. 

3501, 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): 


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PUBLIC LAW 106–263; 114 STAT. 744

Sec.10 Water Rights and Habitat Acquisition Program. 

* * * * * * * 

(f) AUTHORIZATION.—There is authorized to be appropriated from 

the Land and Water Conservation Fund for fiscal years prior to the 

fiscal year of 2004, a total of $3,000,000 for the water rights and 

habitat acquisition program authorized in this section. øThe Secretary is authorized to deposit and maintain this appropriation in 

an interest bearing account, said interest to be used for the purposes of this section.¿ The funds authorized to be appropriated by 

this section shall not be in lieu of or supersede any other commitments by Federal, State, or local agencies. The funds appropriated 

pursuant to this section shall be available until expended, and 

shall not be expended for the purpose set forth in subsection (a)(2) 

until the Secretary has evaluated the effectiveness of the instream 

flow required and provided by the Santa Clara Project Agreement, 

and has assured that the appropriations authorized in this section 

are first made available for the purpose set forth in subsection 

(a)(1). 

‘1(g) ACQUISITION FUND.—

1‘(1) ESTABLISHMENT.—There is established in the Treasury 

of the United States a fund to be known as the ‘Santa Clara 

Water Rights and Habitat Acquisition Fund’ (referred to in this 

section as the ‘Acquisition Fund’), consisting of—

‘‘(A) such amounts as are appropriated to the Acquisition 

Fund under paragraph (2); and 

‘‘(B) any income earned on investment of amounts in the 

Acquisition Fund under paragraph (4). 

‘‘(2) TRANSFERS TO ACQUISITION FUND.—There are appropriated to the Acquisition Fund amounts equivalent to amounts 

made available under subsection (f). 

‘‘(3) EXPENDITURES FROM ACQUISITION FUND.—On request by 

the Secretary, the Secretary of the Treasury shall transfer from 

the Acquisition Fund to the Secretary such amounts as the Secretary determines to be necessary to carry out this section. 

‘‘(4) INVESTMENT OF AMOUNTS.—

‘‘(A) IN GENERAL.—On request by the Secretary, the Secretary of the Treasury shall invest such portion of the Acquisition Fund as is not, in the judgment of the Secretary, 

required to meet current withdrawals. 

‘‘(B) OBLIGATIONS—.Investments may be made only in 

public debt securities with maturities suitable to the needs 

of the Acquisition Fund, as determined by the Secretary, 

that bear interest at a rate determined by the Secretary of 

the Treasury, taking into consideration current market 

yields on outstanding marketable obligations of the United 

States of comparable maturity. 

‘‘(C) ACQUISITION OF OBLIGATIONS.—For the purpose of 

investments under subparagraph (A), obligations may be 

acquired—

‘‘(i) on original issue at the issue price; or 

‘‘(ii) by purchase of outstanding obligations at the 

market price. 


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‘‘(D) SALE OF OBLIGATIONS.—Any obligation acquired by 

the Acquisition Fund may be sold by the Secretary of the 

Treasury at the market price. ‘‘(E) CREDITS TO ACQUISITION FUND.—The income on, 

and the proceeds from the sale or redemption of, any obligations held in the Acquisition Fund shall be credited to, 

and form a part of, the Acquisition Fund. ‘‘(5) TRANSFERS OF AMOUNTS.— ‘‘(A) IN GENERAL.—The amounts required to be transferred to the Acquisition Fund under this subsection shall 

be transferred at least monthly from the general fund of the 

Treasury to the Acquisition Fund on the basis of estimates 

made by the Secretary of the Treasury. ‘‘(B) ADJUSTMENTS.—Proper adjustment shall be made in 

amounts subsequently transferred to the extent prior estimates were in excess of or less than the amounts required 

to be transferred. 

‘‘(6) MANAGEMENT.—The Acquisition Fund (including the 

principal of the Acquisition Fund and any interest generated on 

that principal) shall be managed in accordance with this section.’’. 

Æ 


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