49–010 

Calendar No. 624 

109TH CONGRESS REPORT " ! SENATE 2d Session 109–344 

TRIBAL PARITY ACT 

SEPTEMBER 20, 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. 374] 

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

S. 374 to provide compensation to the Lower Brule and Crow Creek 

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

Pick-Sloan projects along the Missouri River, having considered the 

same, reports favorably thereon with an amendment and recommends that the bill (as amended) do pass. 

PURPOSE

S. 374 amends the Lower Brule Sioux Tribe Infrastructure Development Trust Fund Act to increase from $39.3 million to 

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

Brule Sioux Tribe Infrastructure Development Trust Fund by the 

Secretary of the Treasury to provide compensation to the Lower 

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

Pick-Sloan projects along the Missouri River. 

S. 374 also amends the Crow Creek Sioux Tribe Infrastructure 

Development Trust Fund Act of 1996 to increase from $27.5 million 

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

Creek Sioux Tribe Infrastructure Development Trust Fund by the 

Secretary to provide compensation to the Crow Creek Sioux Tribe 

of South Dakota for damage to tribal land caused by Pick-Sloan 

projects along the Missouri River. 

BACKGROUND

The Lower Brule Sioux Tribe and the Crow Creek Sioux Tribe 

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

two significant dam construction projects located on the Missouri 


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

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

inundation of several thousands of acres of land on the reservations 

of these two Indian tribes. 

Although Congress attempted to mitigate the impacts of these 

two projects on the two reservations and the Indian people who 

were living on them by enacting, in 1962, the Big Bend Recovery 

Act (P.L. 87–735), the insufficiency of the Government’s mitigation 

efforts pursuant to that Act eventually led to the enactment of the 

Crow Creek Sioux Tribe Infrastructure Development Trust Fund 

Act of 1996 (P.L. 104–223) and, one year later, the Lower Brule 

Sioux Tribe Infrastructure Development Trust Fund Act (P.L. 105– 132). 

P.L. 104–223 and P.L. 105–132 each created an infrastructure 

development trust fund for the respective tribe, the principal balance of which would be derived from a percentage of receipts deposited into the United States Treasury from the Pick-Sloan Missouri 

River basin power program, and each act authorized payments to 

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

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

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

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

OVERVIEW OF S. 374 

S. 374 was introduced by Senator Thune on February 14, 2005, 

for himself and for Senator Johnson, and referred to the Committee 

on Indian Affairs. S. 374 would amend section 4(b) of the Lower 

Brule Sioux Tribe Infrastructure Development Trust Fund Act 

(P.L. 105–132) by increasing the aggregate authorized amount of 

deposits from the Pick-Sloan power program into that tribe’s trust 

fund from $39,300,000 to $186,822,140. It would also amend section 4(b) of the Crow Creek Sioux Tribe Infrastructure Development Trust Fund Act of 1996 (P.L. 104–223) by increasing the aggregate authorized amount of such deposits into the Crow Creek 

Sioux Tribe’s trust fund from $27,500,000 to $105,917,853. 

S. 374 was ordered to be reported without amendment favorably 

by the Committee on June 29, 2005. Shortly thereafter, a representative of the United States Government Accountability Office 

(GAO) expressed concern regarding language in the Findings section of the bill (section 2(7)) stating that a methodology determined 

appropriate by the General Accounting Office entitled the two 

tribes to additional compensation. 

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

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

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

of the Crow Creek Sioux and Lower Brule Sioux Tribes Additional 

Compensation Claims, attached to this report as Exhibit 1. 

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

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

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

research for the report indicated that the tribes’ consultant deviVerDate Aug 31 2005 22:54 Sep 22, 2006 Jkt 049010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR344.XXX SR344

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ated in certain respects from the approach used in the previous 

GAO reports addressing additional compensation for other Indian 

tribes impacted by flood control/power projects on the Missouri 

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

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

consultant testified that his approach deviated in part to account 

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

that his original calculations did contain an error and provided new 

estimates for compensation based on his approach. 

Based on the testimony provided, Senators Thune and Johnson 

prepared a substitute amendment which lowered the compensation 

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

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

Tribe from $105,917,853 to $69,222,084. This substitute amendment was offered at the August 2, 2006, business meeting of the 

Committee and was approved by voice vote. The substitute amendment also added a provision clearly stating that the compensation 

provided in this bill is the full and final compensation for the 

Lower Brule Sioux Tribe and Crow Creek Sioux Tribe for claims related to the Pick-Sloan projects which impacted their reservations. 

LEGISLATIVE HISTORY

S. 374 was introduced on February 14, 2005, by Senators Thune 

and Johnson and was referred to the Committee on Indian Affairs. 

On June 29, 2005, S. 374 was approved by the Committee by voice 

vote and ordered reported favorably; however, the bill was not reported to the full Senate. On June 14, 2006, a hearing was held 

by the Committee on the bill. On August 2, 2006, S. 374 was approved by the Committee, with an amendment in the nature of a 

substitute, and ordered reported favorably to the full Senate. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

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

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

reported favorably, with an amendment in the nature of a substitute, to the full Senate with a recommendation that the bill do 

pass. 

SECTION-BY-SECTION ANALYSIS OF THE SUBSTITUTE AMENDMENT

Section 1. Short title 

Section 1 of the substitute amendment amends the title of S. 374 

to the Lower Brule and Crow Creek Tribal Compensation Act. 

Section 2. Findings 

Section 2 of the substitute amendment amends the findings of 

S. 374 as introduced to strike the language ‘‘based on a methodology determined appropriate by the General Accounting Office’’

and ‘‘so as to provide parity among compensation received by all 

Missouri River Indian tribes.’’

Section 3. Lower Brule Sioux Tribe 

Section 3 of the substitute amendment amends the amount of 

compensation in S. 374 as introduced that would amend the trust 


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fund amount created by current law. For the Lower Brule Sioux 

Tribe the substitute amendment reduces this amount from 

$186,822,140 in S. 374 to $129,822,085. 

Section 4. Crow Creek Sioux Tribe 

Section 4 of the substitute amendment amends the amount of 

compensation in S. 374 as introduced that would amend the trust 

fund amount created by current law. For the Crow Creek Sioux 

Tribe the substitute amendment reduces this amount from 

$105,917,853 in S. 374 to $69,822,084. 

Section 5. Treatment as Final Compensation 

Section 5 of the substitute amendment adds a provision to S. 374 

as introduced to treat this act as final and full compensation to the 

Lower Brule Sioux Tribe and the Crow Creek Sioux Tribe for damages caused by construction of the Fort Randall Dam and the Big 

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

COST AND BUDGETARY CONSIDERATIONS

The Congressional Budget Office cost estimate for S. 374 is set 

forth below: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, August 25, 2006. 

Hon. JOHN MCCAIN, 

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. 374, the Lower Brule and 

Crow Creek Tribal Compensation Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Daniel Hoople. 

Sincerely, 

ROBERT P. MURPHY

(For Donald B. Marron, Acting Director). 

Enclosure. 

S. 374—Lower Brule and Crow Creek Tribal Compensation Act 

Summary: S. 374 would increase the size of two existing tribal 

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

Infrastructure Development Trust Fund Act of 1996. Congress created those funds as compensation for damages to the tribes caused 

by the Pick-Sloan Missouri River Basin project; this bill would constitute a final settlement of claims by the two tribes against the 

United States. CBO estimates that enacting S. 374 would increase 

direct spending by $66 million in 2007 and $169 million over the 

2007–2016 period. Enacting the bill would not affect revenues. 

S. 374 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act (UMRA) and 

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

payments authorized by this bill would benefit the Lower Brule 

Sioux and Crow Creek Sioux tribes. 


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Estimated cost to the Federal Government: The estimated budgetary impact of S. 374 is shown in the table below. The costs of this 

legislation fall within budget function 450 (community and regional 

development). 

By fiscal years, in millions of dollars— 

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 

CHANGES IN DIRECT SPENDING 

Lower Brule and Crow Creek Funds Spending 

Under Current Law: 

Interest on Lower Brule Fund: 

Estimated Budget Authority ................... 2 2 2 2 2 2 2 2 2 2 

Estimated Outlays .................................. 2 2 2 2 2 2 2 2 2 2 

Interest on Crow Creek Fund: 

Estimated Budget Authority ................... 1 1 1 1 1 1 1 1 1 1 

Estimated Outlays .................................. 1 1 1 1 1 1 1 1 1 1 

Proposed Changes: 

Transfers to Lower Brule Fund: 

Estimated Budget Authority ................... 0 130 0 0 0 0 0 0 0 0 

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

Transfers to Crow Creek Fund: 

Estimated Budget Authority ................... 69 0 0 0 0 0 0 0 0 0 

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

Interest on Lower Brule Fund: 

Estimated Budget Authority ................... ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 

Estimated Outlays .................................. ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 ¥2 

Interest on Crow Creek Fund: 

Estimated Budget Authority ................... ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 

Estimated Outlays .................................. ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 

Total Changes: 

Estimated Budget Authority ...... 66 127 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 

Estimated Outlays ..................... 66 127 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 ¥3 

Lower Brule and Crow Creek Tribal Funds 

Spending Under S. 374: 

Estimated Budget Authority ................... 69 130 0 0 0 0 0 0 0 0 

Estimated Outlays .................................. 69 130 0 0 0 0 0 0 0 0 

Basis of estimate: CBO estimates that enacting this legislation would result in a net increase in direct spending of $66 million in 

2007 and $169 million over the 2007–2016 period. By increasing 

the maximum funding level of two tribal trust funds and establishing a final settlement of certain tribal claims against the federal government, CBO estimates that enacting S. 374 would increase direct spending by $199 million over the 2007–2016 period. 

The bill also would reduce direct spending for interest payments 

made to the tribes by $30 million over the 2007–2016 period. For 

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

beginning of fiscal year 2007 and that additional transfers to the 

trust funds would begin in that year. 

Trust fund activity under current law 

In 1996 and 1997, the Congress enacted legislation creating the 

Crow Creek Sioux Tribe Infrastructure Development Trust Fund 

(Crow Creek Fund) and the Lower Brule Sioux Tribe Infrastructure 

Development Trust Fund (Lower Brule Fund). Both acts authorized 

the Secretary of the Treasury to transfer certain proceeds from 

electricity sales made by the Western Area Power Administration 

(WAPA), the agency that manage the Pick-Sloan project, to each 

fund. Such transfers were made annually until the funds reached 

the maximum balances set forth in law. Consistent with the treatment of similar tribal trust funds, both funds are classified as 


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budgetary accounts because all claims against the federal government for related damages have not been extinguished. Thus, transfers to the funds made to date have been considered 

intragovernmental and have had no net effect on the federal budget. 

Current law directs the Secretary to transfer any interest earned 

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

accounts for the benefit of the tribes. Payments from these interest 

accounts may only occur after the trust fund has reached its maximum funding level. Given that both trust funds are currently at 

their maximum levels, CB0 estimates that such payments will total 

$3 million in 2007—$2 million from the Lower Brule Fund and $1 

million from the Crow Creek Fund—and $30 million over the 

2007–2016 period. 

Trust fund activity under S. 374 

S. 374 would increase the size of the Lower Brule Fund by $91 million (for a new maximum of $130 million), and the Crow Creek 

Fund by $42 million (for a new maximum of $69 million). Each 

fund would receive deposits equal to 25 percent of the gross revenues from the Pick-Sloan project from the previous year. Those annual deposit would continue until the total balance of the trust 

fund reaches the new maximum level. Based on information from 

WAPA, CBO estimates that gross electricity sales revenues from 

the Pick-Sloan project will be $318 million in 2006 and average approximately $34 million per year thereafter. Thus, CBO estimates 

that deposits to the Crow Creek Fund would reach its new maximum level in 2007, and the Lower Brule Fund would reach its 

new maximum level in 2008. 

S. 374 would extinguish any future claims against the federal 

government by the two tribes upon full funding of their trust funds. 

Consistent with the treatment of similar tribal funds, the balances 

would thereafter be considered under tribal ownership. The federal 

budget excludes trust funds that are held and managed in a fiduciary capacity by the federal government on behalf of Indian tribes, 

so CBO expects that the trust fund will be reclassified as nonbudgetary and the transfer of funds to the tribes would be recorded on 

the budget as new direct spending equal to the full balance of the 

trust fund. As a result, CBO estimates that enacting S. 374 would 

increase direct spending by $69 million in 2007 for the Crow Creek 

Fund, and by $130 million in 2008 for the Lower Brule Fund. 

After those funds are transferred, any future interest earnings 

and payments would not be considered part of the federal budget. 

Additionally, because under the bill the Lower Brule Fund would 

fall below its maximum funding level in 2007, no interest payments 

would be made to the tribe in that year. As such, CBO estimates 

that enacting S. 3174 would reduce direct spending for interest 

payments to the tribes by $3 million in 2007 and $30 million over 

the 2007–2016 period. 

Previous CBO estimate: On July 7, 2005, CBO transmitted a cost 

estimate for S. 374, the Tribal Parity Act, as ordered reported by 

the Senate Committee on Indian Affairs on June 29, 2005. That 

version of the legislation also would have increased deposits (by different amounts) to the Lower Brule Fund and the Crow Creek 

Fund. The July 7, 2005 version of the legislation however, would 


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not have extinguished all related claims against the federal governments directed in the August 2006 version of the legislation. CBO’s 

current cost estimate reflects those differences. 

Intergovernmental and private-sector impact: S. 374 contains no 

intergovernmental or private-sector mandates as defined in UMRA 

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

Enacting this legislation would benefit the two tribes. 

Estimate prepared by: Federal Costs: Daniel Hoople. Impact on 

State, Local, and Tribal Governments: Marjorie Miller. Impact on 

the Private Sector: Carla-Marie Ulerie. 

Estimate approved by: Jeffrey M. Holland, Chief, Projections 

Unit. 

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 impacts of S. 374 will be de minimis. 

EXECUTIVE COMMUNICATIONS

The Committee has received no official executive communications 

on S. 374. 


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EXHIBIT 1 

Report to the Chairman, Committee on Indian Affairs, U.S. Senate 

United States Government Accountability Office 

ANALYSIS OF THE CROW CREEK SIOUX AND LOWER BRULE 

SIOUX TRIBES’ ADDITIONAL COMPENSATION CLAIMS 

May 2006 


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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. 

1535, 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): 

LOWER BRULE AND CROW CREEK COMPENSATION ACT 

PUBLIC LAW 105–132; 111 STAT. 2565 

* * * * * * * 

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

* * * * * * * 

(b) FUNDING.—Beginning with fiscal year 1998, and for each fiscal year thereafter, until such time as the aggregate of the 

amounts deposited in the Fund is equal to $129,822,085 

ø$39,300,000¿, the Secretary of the Treasury shall deposit into the 

Fund an amount equal to 25 percent of the receipts from the deposits to the Treasury of the United States for the preceding fiscal 

year from the Program. 

PUBLIC LAW 104–223; 110 STAT. 3027 

* * * * * * * 

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

* * * * * * * 

(b) FUNDING.—Beginning with fiscal year 1997, and for each fiscal year thereafter, until such time as the aggregate of the 

amounts deposited in the Fund is equal to $69,222,084 

ø$27,500,000¿, the Secretary of the Treasury shall deposit into the 

Fund an amount equal to 25 percent of the receipts from the deposits to the Treasury of the United States for the preceding fiscal 

year from the Program. 

Æ 


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