II

105TH CONGRESS

1ST SESSION S. 1341

To provide for mitigation of terrestrial wildlife habitat lost as a result of

the construction and operation of the Pick-Sloan Missouri River Basin

program in the State of South Dakota, and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 29, 1997

Mr. DASCHLE (for himself and Mr. JOHNSON) introduced the following bill;

which was read twice and referred to the Committee on Environment and

Public Works

A BILL

To provide for mitigation of terrestrial wildlife habitat lost

as a result of the construction and operation of the

Pick-Sloan Missouri River Basin program in the State

of South Dakota, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Cheyenne River Sioux

5 Tribe, Lower Brule Sioux Tribe, and State of South Da6 kota Terrestrial Wildlife Habitat Mitigation Act of 1997’’.

7 SEC. 2. FINDINGS; PURPOSES.

8 (a) FINDINGS.—Congress finds that—
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1 (1) under the Act of December 22, 1944 (com2 monly known as the ‘‘Flood Control Act of 1944’’)

3 (58 Stat. 887, chapter 665; 33 U.S.C. 701–1 et

4 seq.), Congress approved the Pick-Sloan Missouri

5 River Basin program—

6 (A) to promote the general economic devel7 opment of the United States;

8 (B) to provide for irrigation above Sioux

9 City, Iowa;

10 (C) to protect urban and rural areas from

11 devastating floods of the Missouri River; and

12 (D) for other purposes;

13 (2) the Big Bend and Oahe projects are major

14 components of the Pick-Sloan Missouri River Basin

15 program that contribute to the national economy by

16 generating a substantial amount of hydropower and

17 impounding a substantial quantity of water to pro18 vide flood control and other benefits for all States

19 and tribes in the Missouri River Basin;

20 (3) to carry out the Pick-Sloan Missouri River

21 Basin program, the Secretary of the Army acquired

22 approximately 500,000 acres of land from the State

23 of South Dakota, 4 Indian tribes, and private indi24 viduals;
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1 (4) as of the date of enactment of this Act, of

2 the acreage referred to in paragraph (3), approxi3 mately 200,000 acres remain at an elevation above

4 that of the top of the exclusive flood pool of the

5 projects of the program;

6 (5) of the approximately 200,000 acres of dry

7 land referred to in paragraph (4), approximately

8 80,000 acres are located within the exterior bound9 aries of the Cheyenne River Reservation, Crow

10 Creek Reservation, Lower Brule Reservation, and

11 Standing Rock Reservation;

12 (6) as a result of the inundation from the con13 struction of the Big Bend and Oahe projects, the

14 State of South Dakota and the 4 Indian reservations

15 referred to in paragraph (5) lost approximately

16 250,000 acres of fertile, wooded bottom land along

17 the Missouri River;

18 (7) the lost acreage constituted some of the

19 most productive, unique, and irreplaceable acres of

20 wildlife habitat in the State of South Dakota, includ21 ing habitat for game and nongame species (including

22 species that are listed as endangered or threatened

23 species under Federal or State law);

24 (8) the Federal Government has never applied

25 the Fish and Wildlife Coordination Act (16 U.S.C.
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1 661 et seq.) in such a manner as to adequately miti2 gate the loss of habitat in the State of South Dakota

3 and on affected Indian reservations within the State;

4 (9) an insufficient quantity of Federal land

5 within the boundaries of projects of the Pick-Sloan

6 Missouri River Basin program is available in the

7 State of South Dakota to provide adequate mitiga8 tion of the loss of habitat;

9 (10) because of complicated land ownership pat10 terns along the Missouri River, there have been

11 many jurisdictional disputes over the control of the

12 land along the river, including disputes concerning—

13 (A) the jurisdiction of tribal or State

14 courts over hunting and fishing activities—

15 (i) on land of the Pick-Sloan Missouri

16 River Basin program projects located with17 in an Indian reservation; or

18 (ii) on the Missouri River;

19 (B) the establishment and enforcement of

20 hunting and fishing seasons and limits; and

21 (C) hunting and fishing license require22 ments;

23 (11) the jurisdictional disputes referred to in

24 paragraph (10)—
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1 (A) have been, and continue to be, adju2 dicated in Federal courts; and

3 (B) have resulted in great costs to the

4 Federal Government, the State of South Da5 kota, and the Indian tribes;

6 (12) as of the date of enactment of this Act,

7 policies of the Army Corps of Engineers encourage

8 the leasing of public recreation facilities to, and the

9 management of certain land by, State and local

10 sponsors, if feasible;

11 (13) the State of South Dakota has dem12 onstrated its ability to manage public recreation

13 areas and wildlife resources along the Missouri

14 River;

15 (14) the Indian tribes have demonstrated an

16 ability to manage wildlife resources on land located

17 within the respective reservations of those Indian

18 tribes;

19 (15) the transfer of administrative jurisdiction

20 over certain land acquired for the purposes of the

21 Pick-Sloan Missouri River Basin program from the

22 Secretary of the Army to the Secretary of the Inte23 rior is in the best interest of the United States, the

24 State of South Dakota, and the Indian tribes; and
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1 (16) the Federal Government has a trust rela2 tionship and a fiduciary responsibility to Indian

3 tribes.

4 (b) PURPOSES.—The purposes of this Act are—

5 (1) to mitigate the loss of terrestrial wildlife

6 habitat that occurred as a result of construction

7 projects carried out under the Pick-Sloan Missouri

8 River Basin program;

9 (2) to settle longstanding jurisdictional disputes

10 over land and water within the Pick-Sloan Missouri

11 River Basin program projects;

12 (3) to protect, and provide public access to, the

13 remaining wildlife habitat in the State of South Da14 kota; and

15 (4) to transfer to the Department of the Inte16 rior to be held in trust for the Indian tribes of South

17 Dakota land acquired for the Pick-Sloan Missouri

18 River Basin program within existing exterior res19 ervation boundaries, without altering any boundary

20 of a reservation of an Indian tribe established by a

21 treaty with the United States.

22 SEC. 3. DEFINITIONS.

23 In this Act:

24 (1) INDIAN TRIBE.—The term ‘‘Indian tribe’’

25 means—
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1 (A) the Cheyenne River Sioux Tribe; and

2 (B) the Lower Brule Sioux Tribe.

3 (2) MEMBER.—The term ‘‘member’’ means an

4 individual who is an enrolled member of an Indian

5 tribe.

6 (3) NON-INDIAN.—The term ‘‘non-Indian’’

7 means an individual who is not an enrolled member

8 of an Indian tribe.

9 (4) SECRETARY OF THE ARMY.—The term

10 ‘‘Secretary of the Army’’ means the Secretary of the

11 Army, acting through the Chief of Engineers.

12 (5) TERRESTRIAL WILDLIFE HABITAT.—The

13 term ‘‘terrestrial wildlife habitat’’ means a habitat

14 for a wildlife species (including game and nongame

15 species) that existed or exists on an upland habitat

16 (including a prairie grassland, woodland, bottom

17 land forest, scrub, or shrub) or an emergent wetland

18 habitat.

19 SEC. 4. LEASE OF CORPS OF ENGINEERS RECREATION

20 LAND TO THE STATE OF SOUTH DAKOTA.

21 (a) IN GENERAL.—At the request of the State of

22 South Dakota, the Secretary of the Army shall lease to

23 the State of South Dakota the land described in subsection

24 (b) for a term not less than 50 years, with an option for

25 renewal.
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1 (b) LAND LEASED.—The land described in this sub2 section is any other land within the projects of the Pick3 Sloan Missouri River Basin program in the State of South

4 Dakota that—

5 (1) is located outside the external boundaries of

6 a reservation of an Indian tribe; and

7 (2) the Secretary of the Army determines at the

8 time of the transfer is designated as a recreation

9 area in the current Project Master Plans.

10 (c) LEASE CONDITIONS.—The Secretary of the Army

11 shall lease the land described in subsection (b) to the State

12 of South Dakota on the following conditions:

13 (1) RESPONSIBILITY FOR DAMAGE.—The Sec14 retary of the Army shall not be responsible for any

15 damage to the land leased under this section caused

16 by sloughing, erosion, or other changes to the land

17 caused by the operation of any project of the Pick18 Sloan Missouri River Basin program.

19 (2) FLOWAGE EASEMENT.—The Secretary of

20 the Army shall retain a flowage easement on the

21 land leased under this section, and the lease shall

22 not interrupt the ability of the Army Corps of Engi23 neers to operate the projects in accordance with the

24 Act of December 22, 1944 (58 Stat. 887, chapter

25 665; 33 U.S.C. 701–1 et seq.).
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1 (3) MANAGEMENT OF RECREATION AREAS.—To

2 the extent consistent with other Federal law, the

3 Secretary of the Army shall not unreasonably im4 pede or restrict the ability of the State of South Da5 kota to freely manage the recreation areas included

6 in the lease.

7 (4) AGREEMENT BY THE STATE.—The State of

8 South Dakota shall agree—

9 (A) to carry out the duties of the State

10 under this Act, including, managing, operating,

11 and maintaining the recreation areas leased to

12 the State under this Act;

13 (B) to take such action as may be nec14 essary to ensure that the hunting and fishing

15 rights and privileges of Indian tribes described

16 in section 5 are recognized and enforced; and

17 (C) not to assess a fee for sport or recre18 ation hunting or fishing on the Missouri River

19 by a member within the boundaries of an In20 dian reservation.

21 (5) EASEMENTS, RIGHTS-OF-WAY, LEASES, AND

22 COST-SHARING AGREEMENTS.—The State of South

23 Dakota shall maintain all existing easements, rights24 of-way, leases, and cost-sharing agreements that are
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1 in effect as of the date of execution of a lease under

2 this section.

3 (6) COMPLIANCE WITH FEDERAL LAWS.—The

4 State of South Dakota shall ensure that the leased

5 land described in subsection (b) are used in accord6 ance with—

7 (A) the Endangered Species Act of 1973

8 (16 U.S.C. 1531 et seq.);

9 (B) the Migratory Bird Treaty Act (16

10 U.S.C. 703 et seq.);

11 (C) the Act entitled ‘‘An Act for the pro12 tection of the bald eagle’’, approved June 8,

13 1940 (16 U.S.C. 668 et seq.);

14 (D) the Native American Graves Protec15 tion and Repatriation Act (25 U.S.C. 3001 et

16 seq.); and

17 (E) the National Historic Preservation Act

18 (16 U.S.C. 470 et seq.).

19 (d) MANAGEMENT TRANSITION.—The Secretary of

20 the Army shall continue to fund and implement, until such

21 time as funds are available for use from the South Dakota

22 Wildlife Habitat Mitigation Trust Fund under section

23 7(d)(3)(A)(i), the terrestrial wildlife habitat mitigation

24 plans under section 6(a).
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1 SEC. 5. TRANSFER OF ARMY CORPS OF ENGINEERS LAND

2 FOR INDIAN TRIBES.

3 (a) IN GENERAL.—

4 (1) TRANSFER.—The Secretary of the Army

5 shall transfer to the Secretary of the Interior the

6 land described in subsection (b).

7 (2) TRUST.—The Secretary of the Interior shall

8 hold in trust for each Indian tribe the land trans9 ferred under this section that are located within the

10 external boundaries of the reservation of the Indian

11 tribe.

12 (b) LAND TRANSFERRED.—The land described in

13 this subsection is land that—

14 (1) is located above the top of the exclusive

15 flood pool of the projects of the Pick-Sloan Missouri

16 River Basin program;

17 (2) was acquired by the Secretary of the Army

18 for the implementation of the Pick-Sloan Missouri

19 River Basin program; and

20 (3) is located within the external boundaries of

21 a reservation of an Indian tribe.

22 (c) MAP.—The Secretary of the Army, in cooperation

23 with the governing bodies of the Indian tribes, shall pre24 pare a map of the land transferred under this section. The

25 map shall be on file in the appropriate offices of the Sec26 retary of the Army.
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1 (d) TRANSFER CONDITIONS.—The land described in

2 subsection (b) that was acquired for the Pick-Sloan Mis3 souri River Basin program shall be transferred to, and

4 held in trust by, the Secretary of the Interior on the fol5 lowing conditions:

6 (1) RESPONSIBILITY FOR DAMAGE.—The Sec7 retary of the Army shall not be responsible for any

8 damage to the land transferred under this section

9 caused by sloughing, erosion, or other changes to the

10 land caused by the operation of any project of the

11 Pick-Sloan Missouri River Basin program (except as

12 otherwise provided by Federal law).

13 (2) FLOWAGE EASEMENT.—The Secretary of

14 the Army shall retain a flowage easement on the

15 land transferred under this section and the transfer

16 shall not interrupt the ability of the Army Corps of

17 Engineers to operate the projects in accordance with

18 the Act of December 22, 1944 (58 Stat. 887, chap19 ter 665; 33 U.S.C. 701–1 et seq.).

20 (3) ACCESS BY ORIGINAL OWNERS.—An origi21 nal owner of land (including an heir or assignee)

22 shall be allowed access to the land in accordance

23 with subsection (e) for the purposes described in

24 that subsection.
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1 (4) ACCESS BY THE STATE.—Each Indian tribe

2 agrees to provide free and unencumbered access to

3 the State of South Dakota, for purposes of fish and

4 wildlife management, to each reservoir of the Mis5 souri River that is located on or adjacent to the res6 ervation of the Indian tribe.

7 (5) MANAGEMENT BY INDIAN TRIBES.—Each

8 Indian tribe agrees, with respect to land held in

9 trust for the Indian tribe, to manage, operate, and

10 maintain any recreation area transferred to the In11 dian tribe under this section.

12 (6) REGULATION OF HUNTING, FISHING, AND

13 RECREATION WITHIN EXTERIOR RESERVATION

14 BOUNDARIES.—

15 (A) APPLICABILITY.—The conditions de16 scribed in this paragraph shall apply—

17 (i) to the extent not inconsistent with

18 other law;

19 (ii) except as otherwise provided in

20 this section; and

21 (iii) with respect to—

22 (I) the water of the Missouri

23 River within the exterior boundaries

24 of a reservation of an Indian tribe;

25 and
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1 (II) land and water within the

2 exterior boundaries of a reservation of

3 an Indian tribe that is above the wa4 ter’s edge of the Missouri River,

5 which land and water consists of allot6 ted land and tribal trust land.

7 (B) LICENSE REQUIREMENTS.—

8 (i) IN GENERAL.—Each Indian tribe

9 shall allow any non-Indian to purchase a li10 cense from the Indian tribe to hunt on al11 lotted land and trust land of the Indian

12 tribe without being required to purchase a

13 hunting license from the State of South

14 Dakota.

15 (ii) ALLOTTED LAND.—Hunting and

16 fishing on allotted land shall require the

17 permission of the allottee or a designated

18 agent of the allottee.

19 (iii) MIGRATORY WATERFOWL.—A

20 non-Indian shall not hunt migratory water21 fowl on trust land unless the non-Indian is

22 in possession of a Federal migratory-bird

23 hunting and conservation stamp (known as

24 a ‘‘Duck Stamp’’) issued under the Act of
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1 March 16, 1934 (48 Stat. 451, chapter 71;

2 16 U.S.C. 718 et seq.).

3 (iv) STATE GAME LICENSES.—Each

4 Indian tribe shall honor big game and

5 small game licenses issued by the State of

6 South Dakota on non-Indian private deed7 ed land and public land and water within

8 the exterior boundaries of the reservation

9 of the Indian tribe described in subpara10 graph (A)(iii) (referred to in this para11 graph as the ‘‘reservation boundaries’’)

12 without requiring a State licensee to pur13 chase a hunting license or permit from the

14 Indian tribe.

15 (v) NON-INDIAN LAND.—A non-Indian

16 landowner who resides within the reserva17 tion boundaries of an Indian tribe may

18 hunt on the non-Indian’s land without se19 curing a license from the Indian tribe.

20 (vi) DEEDED LAND.—Hunting on

21 non-Indian and member private deeded

22 land within the reservation boundaries of

23 an Indian tribe shall be contingent on ob24 taining permission from the owner or les25 see.
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1 (vii) MEMBERS.—A member of an In2 dian tribe may hunt and fish on allotted or

3 tribal trust land within the reservation

4 boundaries of the Indian tribe with only a

5 license from the Indian tribe, if such a li6 cense is required.

7 (C) ESTABLISHMENT OF WILDLIFE MAN8 AGEMENT RULES.—

9 (i) RULES FOR MEMBERS.—Each In10 dian tribe shall establish such regulations,

11 seasons, and bag limits for hunting or fish12 ing by a member on allotted land and trust

13 land of the Indian tribe as the wildlife

14 management agency of the Indian tribe de15 termines appropriate.

16 (ii) RULES FOR NON-INDIANS.—Each

17 Indian tribe shall establish such regula18 tions, seasons, and bag limits for hunting

19 or fishing by non-Indians on allotted land

20 and trust land of the Indian tribe as the

21 wildlife management agency of the Indian

22 tribe determines appropriate.

23 (iii) FISHING RULES.—Each Indian

24 tribe shall adopt and enforce rules that af25 fect fishing on the water of the Missouri
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1 River within the reservation boundaries of

2 the Indian tribe that are agreed to by the

3 State and affected tribe.

4 (D) PROHIBITIONS.—

5 (i) IN GENERAL.—Each Indian tribe

6 shall—

7 (I) prohibit the use of gill or

8 trammel nets and snagging of fish,

9 other than when used in a fishery

10 management effort by a certified trib11 al or State game, fish, and parks offi12 cer or employee;

13 (II) require the use of nontoxic

14 shot in the hunting of migratory wa15 terfowl; and

16 (III) prohibit the sale, trade, or

17 barter of fish or terrestrial wildlife or

18 other such practices that are det19 rimental to game and fish resources.

20 (ii) ENFORCEMENT.—Each Indian

21 tribe and the State of South Dakota shall

22 actively enforce the prohibitions described

23 in clause (i) against members and non-In24 dians without discrimination.

25 (E) ENFORCEMENT OF RULES.—
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1 (i) EXECUTION OF CROSS-DEPUTIZA2 TION AGREEMENTS.—

3 (I) IN GENERAL.—Each Indian

4 tribe shall enter into a cross-deputiza5 tion agreement with the State of

6 South Dakota under which tribal offi7 cers, on certification by the Law En8 forcement Training and Standards

9 Commission or after receiving equiva10 lent Federal training, are granted the

11 credentials of a State of South Da12 kota Deputy Conservation officer ef13 fective only within the reservation

14 boundaries of the Indian tribe.

15 (II) PROVISION OF TRIBAL EN16 FORCEMENT CREDENTIALS.—Each

17 Indian tribe shall provide tribal en18 forcement credentials to State of

19 South Dakota Conservation officers

20 on proof to the tribe that the officers

21 are certified as conservation officers

22 under Federal, tribal, or State law, ef23 fective only within the reservation

24 boundaries of the Indian tribe.

25 (ii) ARRESTS.—
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1 (I) COORDINATION.—Any arrest

2 made under the authority of a cross3 deputization agreement shall be co4 ordinated through the officer of the

5 government that has prosecutorial ju6 risdiction for the arrest.

7 (II) AVAILABILITY TO TES8 TIFY.—The officer who arrests or

9 causes the arrest of a person under

10 the authority of a cross-deputization

11 agreement shall be reasonably avail12 able to testify in the appropriate trib13 al, Federal, or State court.

14 (F) PROSECUTION.—

15 (i) ALLOTTED LAND AND TRIBAL

16 TRUST LAND.—

17 (I) NON-INDIANS.—A non-Indian

18 violator of a regulation that affects a

19 hunting, fishing, or recreational activ20 ity on the allotted land or tribal trust

21 land of an Indian tribe shall be pros22 ecuted in Federal court or a court of

23 the Indian tribe, whichever is appro24 priate.
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1 (II) MEMBERS.—A member vio2 lator of a regulation that affects a

3 hunting, fishing, or recreational activ4 ity on the allotted land or tribal trust

5 land of an Indian tribe shall be pros6 ecuted in a court of the Indian tribe.

7 (ii) MISSOURI RIVER.—

8 (I) NON-INDIANS.—A non-Indian

9 violator of a regulation that affects a

10 hunting, fishing, or recreational activ11 ity on the water of the Missouri River

12 shall be prosecuted in a Federal or

13 State court, whichever is appropriate.

14 (II) MEMBERS.—A member vio15 lator of a regulation that affects a

16 hunting, fishing, or recreational activ17 ity on the water of the Missouri River

18 within the reservation boundaries of

19 an Indian tribe shall be prosecuted in

20 the court of the Indian tribe.

21 (G) PENALTIES.—The penalties for viola22 tions of regulations that affect a hunting, fish23 ing, or recreational activity on the water of the

24 Missouri River shall be identical for members

25 and non-Indians.
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1 (7) OTHER INDIAN TRIBE REQUIREMENTS.—

2 Each Indian tribe shall agree to meet the require3 ments applicable to the Indian tribe under this Act.

4 (8) BOATING SAFETY; TEMPORARY LAND5 INGS.—Each Indian tribe shall grant any person

6 who operates a vessel the right of access, without

7 charge, to land under the jurisdiction of the Indian

8 tribe located along the shore of the Missouri River

9 or the reservoirs of the Pick-Sloan Missouri River

10 Basin program projects for the purposes of—

11 (A) ensuring safety under adverse weather

12 conditions (including storms and high winds);

13 (B) otherwise making a landing that—

14 (i) is for a purpose other than hunt15 ing, fishing, or removing objects, including

16 Indian cultural or archaeological materials;

17 (ii) is of a duration of not more than

18 24 hours; and

19 (iii) is consistent with the protection

20 of natural resources and the environment.

21 (C) carrying out any subsequent co-man22 agement agreement that may be negotiated be23 tween the State of South Dakota and the In24 dian tribe relating to hunting, fishing, or rec25 reational use; and
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1 (D) making an unarmed retrieval of water2 fowl (as determined under the law of the State

3 of South Dakota).

4 (9) EASEMENTS, RIGHTS-OF-WAY, LEASES, AND

5 COST-SHARING AGREEMENTS.—

6 (A) MAINTENANCE.—The Secretary of the

7 Interior shall maintain all existing easements,

8 rights-of-way, leases, and cost-sharing agree9 ments that are in effect as of the date of the

10 transfer.

11 (B) PAYMENTS TO COUNTY.—The Sec12 retary of the Interior shall pay the affected

13 county 100 percent of the receipts from the

14 easements, rights-of-way, leases, and cost-shar15 ing agreements described in subparagraph (A).

16 (e) ACCESS BY ORIGINAL OWNERS.—

17 (1) IN GENERAL.—An original owner of land

18 transferred under this section (including an Indian

19 allottee), and any other person who has been as20 signed or has inherited land from an original land21 owner (or Indian allottee), who maintains base prop22 erty in the vicinity of the land, shall be guaranteed

23 access to and a right to lease, for agricultural pur24 poses (including grazing), the land acquired from
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1 the original owner by the Secretary of the Army for

2 the Pick-Sloan Missouri River Basin program.

3 (2) EASEMENTS AND RIGHTS-OF-WAY.—An In4 dian tribe shall honor past easements and rights-of5 way and provide reasonable future easements and

6 rights-of-way to ensure access for use of the land.

7 (3) FENCING.—Any agency or Indian tribe that

8 requires the land to be fenced shall be responsible

9 for building and maintaining the fencing required.

10 (4) FEES.—An Indian tribe that leases land to

11 an original owner or other person described in para12 graph (1) may charge a grazing fee at a rate that

13 does not exceed the rate charged by the Indian tribe

14 for grazing on comparable land within the external

15 boundaries of the reservation of the Indian tribe.

16 (5) ELIGIBILITY TO LEASE LAND FOR AGRICUL17 TURAL PURPOSES.—Not later than 1 year after the

18 date of enactment of this Act, the Secretary of the

19 Interior shall determine which original owners, heirs,

20 and assignees (including Indian allottees) meet the

21 eligibility criteria to lease land for agricultural pur22 poses under this section.

23 SEC. 6. TERRESTRIAL WILDLIFE HABITAT MITIGATION.

24 (a) TERRESTRIAL WILDLIFE HABITAT MITIGATION

25 PLANS.—
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1 (1) IN GENERAL.—In accordance with this sub2 section and with the assistance of the Secretary of

3 the Army and the Secretary of the Interior, the

4 State of South Dakota and each Indian tribe shall,

5 as a condition of the receipt of funds under this Act,

6 develop a plan for the mitigation of terrestrial wild7 life habitat loss that occurred as a result of flooding

8 related to projects carried out as part of the Pick9 Sloan Missouri River Basin program.

10 (2) FUNDING FOR CARRYING OUT PLANS.—

11 (A) STATE.—The Secretary of the Treas12 ury shall make available to the State of South

13 Dakota funds from the South Dakota Wildlife

14 Habitat Mitigation Trust Fund established by

15 section 7, to be used to carry out the plan.

16 (B) INDIAN TRIBES.—The Secretary of the

17 Interior shall make available to each Indian

18 tribe funds from the Native American Wildlife

19 Habitat Mitigation Trust Fund established by

20 section 8, to be used to carry out the plan.

21 (b) PROGRAMS FOR THE PURCHASE OF WILDLIFE

22 HABITAT LEASES.—

23 (1) IN GENERAL.—The State of South Dakota

24 may use payments received under section

25 7(d)(3)(A)(ii), and each Indian tribe may use pay-
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1 ments received under section 8(d)(3)(A)(ii), to de2 velop or expand a program for the purchase of wild3 life habitat leases that meets the requirements of

4 this subsection.

5 (2) DEVELOPMENT OF PLAN.—

6 (A) IN GENERAL.—If the State of South

7 Dakota, or an Indian tribe, conducts a program

8 in accordance with this subsection, the State of

9 South Dakota, or the Indian tribe, in consulta10 tion with the United States Fish and Wildlife

11 Service and with opportunity for public com12 ment, shall develop a plan to lease land for the

13 protection and development of wildlife habitat,

14 including habitat for threatened and endan15 gered species associated with the Missouri River

16 ecosystem.

17 (B) USE FOR PROGRAM.—The plan shall

18 be used by the State of South Dakota, or the

19 Indian tribe, in carrying out the program devel20 oped under paragraph (1).

21 (3) CONDITIONS OF LEASES.—Each lease cov22 ered under a program under paragraph (1) shall

23 specify that the owner of the property that is subject

24 to the lease shall provide—
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1 (A) public access for sportsmen during

2 hunting seasons; and

3 (B) other outdoor uses covered under the

4 lease, as negotiated by the landowner and the

5 State of South Dakota or Indian tribe.

6 (4) USE OF ASSISTANCE.—

7 (A) STATE OF SOUTH DAKOTA.—If the

8 State of South Dakota conducts a program in

9 accordance with this subsection, the State may

10 use payments received under section

11 7(d)(3)(A)(ii) to—

12 (i) acquire easements, rights-of-way,

13 or leases for management of wildlife habi14 tat, including habitat for threatened and

15 endangered species, and public access to

16 wildlife on private land in the State of

17 South Dakota;

18 (ii) create public access to Federal or

19 State land through the purchase of ease20 ments or rights-of-way that traverse pri21 vate property; or

22 (iii) lease land for the creation or res23 toration of a wetland on tribal or private

24 land in the State of South Dakota.
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1 (B) INDIAN TRIBES.—If an Indian tribe

2 conducts a program in accordance with this

3 subsection, the Indian tribe may use payments

4 received under section 7(d)(3)(A)(ii) for the

5 purposes described in subparagraph (A).

6 (c) DEAUTHORIZATION OF BLUNT RESERVOIR

7 PROJECT.—

8 (1) IN GENERAL.—The Blunt Reservoir and

9 Pierre Canal features of the Oahe Unit, adminis10 tered by the Bureau of Reclamation in the State of

11 South Dakota, are not authorized after the date of

12 enactment of this Act.

13 (2) TRANSFER OF LAND.—Land associated

14 with the Blunt Reservoir and Pierre Canal features

15 of the Oahe Unit that is administered by the Bureau

16 of Reclamation is transferred in fee title to the State

17 of South Dakota to be used for the purpose of ter18 restrial wildlife habitat mitigation.

19 SEC. 7. SOUTH DAKOTA WILDLIFE HABITAT MITIGATION

20 TRUST FUND.

21 (a) ESTABLISHMENT.—There is established in the

22 Treasury of the United States a fund to be known as the

23 ‘‘South Dakota Wildlife Habitat Mitigation Trust Fund’’

24 (referred to in this section as the ‘‘Fund’’).
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1 (b) FUNDING.—For the fiscal year following the fis2 cal year during which the aggregate of the amounts depos3 ited in the Lower Brule Sioux Tribe Infrastructure Devel4 opment Trust Fund is equal to the amount specified in

5 section 4(b) of the Lower Brule Sioux Tribe Infrastruc6 ture Development Trust Fund Act of 1997, and for each

7 fiscal year thereafter until such time as the aggregate of

8 the amounts deposited in the Fund under this subsection,

9 is equal to $108,000,000, the Secretary of the Treasury

10 shall deposit in the Fund an amount equal to 15 percent

11 of the receipts from the deposits in the Treasury of the

12 United States for the preceding fiscal year from the power

13 program of the Pick-Sloan Missouri River Basin program,

14 administered by the Western Area Power Administration.

15 (c) INVESTMENTS.—The Secretary of the Treasury

16 shall invest the amounts deposited under subsection (b)

17 only in interest-bearing obligations of the United States

18 or in obligations guaranteed as to both principal and inter19 est by the United States.

20 (d) PAYMENTS.—

21 (1) IN GENERAL.—All amounts credited as in22 terest under subsection (c) shall be available, with23 out fiscal year limitation, to the State of South Da24 kota for use in accordance with paragraph (3).
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1 (2) WITHDRAWAL AND TRANSFER OF FUNDS.—

2 The Secretary of the Treasury shall withdraw

3 amounts credited as interest under paragraph (1)

4 and transfer the amounts to the State of South Da5 kota for use in accordance with paragraph (3). The

6 Secretary of the Treasury may not withdraw the

7 amounts for any other purpose.

8 (3) USE OF TRANSFERRED FUNDS.—

9 (A) IN GENERAL.—Subject to subpara10 graphs (B) and (C), the State of South Dakota

11 shall use the amounts transferred under para12 graph (2) only to carry out the following activi13 ties:

14 (i) The implementation and adminis15 tration of a terrestrial wildlife habitat miti16 gation plan under section 6(a).

17 (ii) The purchase and administration

18 of wildlife habitat leases under section 6(b)

19 and other activities described in that sec20 tion.

21 (iii) The management, operation, ad22 ministration, maintenance, and develop23 ment, in accordance with this Act, of all

24 recreation areas that are leased to the
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1 State of South Dakota by the Army Corps

2 of Engineers.

3 (iv) The development and mainte4 nance of public access to, and protection

5 of, wildlife habitat and recreation areas

6 along the Missouri River.

7 (B) ALLOCATION FOR PLAN.—The State of

8 South Dakota shall use the amounts trans9 ferred under paragraph (2) to fully implement

10 the terrestrial wildlife habitat mitigation plan of

11 the State under section 6(a).

12 (C) PROHIBITION.—The amounts trans13 ferred under paragraph (2) shall not be used

14 for the purchase of land in fee title.

15 (e) TRANSFERS AND WITHDRAWALS.—Except as

16 provided in subsection (d), the Secretary of the Treasury

17 may not transfer or withdraw any amount deposited under

18 subsection (b).

19 (f) ADMINISTRATIVE EXPENSES.—There are author20 ized to be appropriated to the Secretary of the Treasury

21 such sums as are necessary to pay the administrative ex22 penses of the Fund.
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1 SEC. 8. NATIVE AMERICAN WILDLIFE HABITAT MITIGATION

2 TRUST FUND.

3 (a) ESTABLISHMENT.—There is established in the

4 Treasury of the United States a fund to be known as the

5 ‘‘Native American Wildlife Habitat Mitigation Trust

6 Fund’’ (referred to in this section as the ‘‘Fund’’).

7 (b) FUNDING.—For the fiscal year following the fis8 cal year during which the aggregate of the amounts depos9 ited in the Lower Brule Sioux Tribe Infrastructure Devel10 opment Trust Fund is equal to the amount specified in

11 section 4(b) of the Lower Brule Sioux Tribe Infrastruc12 ture Development Trust Fund Act of 1997, and for each

13 fiscal year thereafter until such time as the aggregate of

14 the amounts deposited in the Fund under this subsection,

15 is equal to $47,400,000, the Secretary of the Treasury

16 shall deposit in the Fund an amount equal to 10 percent

17 of the receipts from the deposits in the Treasury of the

18 United States for the preceding fiscal year from the power

19 program of the Pick-Sloan Missouri River Basin program,

20 administered by the Western Area Power Administration.

21 (c) INVESTMENTS.—The Secretary of the Treasury

22 shall invest the amounts deposited under subsection (b)

23 only in interest-bearing obligations of the United States

24 or in obligations guaranteed as to both principal and inter25 est by the United States.

26 (d) PAYMENTS.—
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1 (1) IN GENERAL.—All amounts credited as in2 terest under subsection (c) shall be available, with3 out fiscal year limitation, to the Secretary of the In4 terior for use in accordance with paragraphs (3) and

5 (4).

6 (2) WITHDRAWAL AND TRANSFER OF FUNDS.—

7 At the request of the Secretary of the Interior, the

8 Secretary of the Treasury shall withdraw amounts

9 credited as interest under paragraph (1) and trans10 fer the amounts to the Secretary of the Interior for

11 use in accordance with paragraphs (3) and (4). The

12 Secretary of the Treasury may not withdraw the

13 amounts for any other purpose.

14 (3) USE OF TRANSFERRED FUNDS.—

15 (A) IN GENERAL.—Subject to subpara16 graphs (B) and (C) and paragraph (4), the Sec17 retary of the Interior shall use the amounts

18 transferred under paragraph (2) only for the

19 purpose of making payments to Indian tribes to

20 carry out the following activities:

21 (i) The implementation and adminis22 tration of a terrestrial wildlife habitat miti23 gation plan under section 6(a), which pay24 ment shall be made at such time as the

25 Secretary of the Army approves a terres-
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1 trial wildlife habitat mitigation plan devel2 oped by the Indian tribe under that sec3 tion.

4 (ii) The purchase and administration

5 of wildlife habitat leases under section 6(b)

6 and other activities described in that sec7 tion.

8 (iii) The management, operation, ad9 ministration, maintenance, and develop10 ment, in accordance with this Act, of recre11 ation areas held in trust for the Indian

12 tribes.

13 (iv) The development and mainte14 nance of public access to, and protection

15 of, wildlife habitat and recreation areas

16 along the Missouri River.

17 (v) The preservation of Native Amer18 ican cultural sites located on the trans19 ferred land.

20 (B) ALLOCATION FOR PLAN.—Each Indian

21 tribe shall use the amounts transferred under

22 paragraph (2) and paid to the Indian tribe to

23 fully implement the terrestrial wildlife habitat

24 mitigation plan of the Indian tribe under sec25 tion 6(a).
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1 (C) PROHIBITION.—The amounts trans2 ferred under paragraph (2) and paid to an In3 dian tribe shall not be used for the purchase of

4 land in fee title.

5 (4) PRO RATA SHARE OF PAYMENTS.—In mak6 ing payments from the interest generated under the

7 Fund, the Secretary of the Interior shall ensure that

8 the total amount of payments received by the Indian

9 tribes under paragraph (3) is distributed as follows:

10 (A) 79 percent shall be available to the

11 Cheyenne River Sioux Tribe.

12 (B) 21 percent shall be available to the

13 Lower Brule Sioux Tribe.

14 (e) TRANSFERS AND WITHDRAWALS.—Except as

15 provided in subsection (d), the Secretary of the Treasury

16 may not transfer or withdraw any amount deposited under

17 subsection (b).

18 (f) ADMINISTRATIVE EXPENSES.—There are author19 ized to be appropriated to the Secretary of the Treasury

20 such sums as are necessary to pay the administrative ex21 penses of the Fund.

22 SEC. 9. AUTHORIZATION OF ADMINISTRATIVE COSTS OF

23 THE ARMY CORPS OF ENGINEERS.

24 There are authorized to be appropriated to the Sec25 retary of the Army such sums as are necessary—
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1 (1) to pay administrative expenses incurred in

2 carrying out this Act; and

3 (2) to fund the implementation of terrestrial

4 wildlife habitat mitigation plans under section 6(a)

5 until such time as funds are available for use under

6 sections 7(d)(3)(A)(i) and 8(d)(3)(A)(i).

7 SEC. 10. RULE OF CONSTRUCTION; PROHIBITION.

8 (a) STATUTORY CONSTRUCTION.—Nothing in this

9 Act diminishes or affects—

10 (1) any water right of an Indian tribe;

11 (2) any other right of an Indian tribe, except as

12 specifically provided in another provision of this Act;

13 (3) any valid, existing treaty right that is in ef14 fect on the date of enactment of this Act;

15 (4) the external boundaries of any reservation

16 of an Indian tribe;

17 (5) any authority of the State of South Dakota

18 that relates to the protection, regulation, or manage19 ment of fish and terrestrial wildlife resources, except

20 as specifically provided in another provision of this

21 Act;

22 (6) any authority or responsibility of the Sec23 retary of the Army or the Secretary of the Interior

24 under a law in existence on the date of enactment

25 of this Act, including—
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•S 1341 IS

1 (A) the Endangered Species Act of 1973

2 (16 U.S.C. 1531 et seq.);

3 (B) the Migratory Bird Treaty Act (16

4 U.S.C. 703 et seq.);

5 (C) the Act entitled ‘‘An Act for the pro6 tection of the bald eagle’’, approved June 8,

7 1940 (16 U.S.C. 668 et seq.);

8 (D) the Native American Graves Protec9 tion and Repatriation Act (25 U.S.C. 3001 et

10 seq.); and

11 (E) the National Historic Preservation Act

12 (16 U.S.C. 470 et seq.); or

13 (7) the ability of an Indian tribe to use the

14 trust land transferred to the Indian tribe under this

15 Act in a manner that is consistent with the use of

16 other Indian trust land, except as otherwise specifi17 cally provided in this Act.

18 (b) POWER RATES.—No payment made under this

19 Act shall affect any power rate under the Pick-Sloan Mis20 souri River Basin program.

21 SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

22 There are authorized to be appropriated to the De23 partment of the Interior such sums as are necessary to

24 carry out this Act.

Æ