II 

111TH CONGRESS 

2D SESSION S. 3648 

To establish a commission to conduct a study and provide recommendations 

on a comprehensive resolution of impacts caused to certain Indian tribes 

by the Pick-Sloan Program. 

IN THE SENATE OF THE UNITED STATES 

JULY 26, 2010 

Mr. DORGAN (for himself, Mr. THUNE, Mr. CONRAD, and Mr. JOHNSON) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs 

A BILL 

To establish a commission to conduct a study and provide 

recommendations on a comprehensive resolution of impacts caused to certain Indian tribes by the Pick-Sloan 

Program. 

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 ‘‘Pick-Sloan Tribal 

5 Commission Act of 2010’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 


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1 (1) the Pick-Sloan Missouri River Basin Pro2 gram (known as the ‘‘Pick-Sloan Program’’) author3 ized by section 9 of the Act of December 22, 1944 

4 (commonly known as the ‘‘Flood Control Act of 

5 1944’’) (58 Stat. 891), was approved— 

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 United States acquired 1,422,000 acres 

14 of land in the States of North Dakota, South Da15 kota, and Nebraska for— 

16 (A) the building of mainstem Missouri 

17 River dams at Garrison, Oahe, Big Bend, Fort 

18 Randall, and Gavin’s Point; and 

19 (B) the creation of reservoirs behind the 

20 dams named Lake Sakakawea, Lake Oahe, 

21 Lake Sharpe, Lake Francis Case, and Lake 

22 Gavin, respectively; 

23 (3) the construction of the dams and creation 

24 of the reservoirs described in paragraph (2) included 

25 the taking of title to land located on the reservations 


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1 of 7 Indian tribes (but did not diminish the reserva2 tions), including the taking of— 

3 (A) 156,000 acres from the Fort Berthold 

4 reservation; 

5 (B) 55,994 acres from the Standing Rock 

6 reservation; 

7 (C) 104,420 acres from the Cheyenne 

8 River reservation; 

9 (D) 22,955 acres from the Lower Brule 

10 reservation; 

11 (E) 15,565 acres from the Crow Creek res12 ervation; 

13 (F) 3,252 acres from the Yankton reserva14 tion; and 

15 (G) 1,703 acres from the Santee reserva16 tion; 

17 (4)(A) the water impounded by the Garrison, 

18 Oahe, Big Bend, Fort Randall, and Gavin’s Point 

19 projects of the Pick-Sloan Program flooded the most 

20 fertile and wooded bottom land of the 7 Indian 

21 tribes referred to in paragraph (3) along the Mis22 souri River; 

23 (B) that land constituted the most productive 

24 agricultural, hunting, and collecting land of those 

25 Indian tribes; and 


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1 (C) the majority of the community infrastruc2 ture of each tribe was also located on the land; 

3 (5) the flooding of the productive land described 

4 in paragraph (4) greatly damaged the economy and 

5 cultural resources of the 7 Indian tribes; 

6 (6)(A) although those Indian tribes reside on 

7 the Missouri River, the economic benefits of the 

8 Pick-Sloan Program have not been passed on to the 

9 affected Indian tribes; rather 

10 (B) the operation of the dams creates dis11 proportionate hardships for the Indian tribes, includ12 ing— 

13 (i) poor water quality; 

14 (ii) increased trespassing and theft or 

15 damage to cultural resources; 

16 (iii) artificial sediment deposits that im17 pact water infrastructure and contain unknown 

18 contaminants; 

19 (iv) harming fisheries, including loss of 

20 reservoir retention time; 

21 (v) damage to riparian habitat; and 

22 (vi) increased recreational traffic and im23 pacts, but with few opportunities to regulate or 

24 benefit from recreational uses; 


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1 (7) Congress held a number of hearings and 

2 promoted studies of the impacts to those tribes, pur3 suant to which representatives of the tribes testified 

4 on impacts to tribal economies, health, and welfare 

5 from the flooding of that land; 

6 (8)(A) Congress has established prior commis7 sions to study and make recommendations regarding 

8 impacts of the Pick-Sloan Program, including the 

9 Garrison Diversion Unit Commission established 

10 under section 207(c)(1) of the Energy and Water 

11 Development Appropriation Act, 1985 (Public Law 

12 98–360; 98 Stat. 411), which recommended that a 

13 Joint Tribal Advisory Committee be formed to exam14 ine and make recommendations with respect to the 

15 effects of the impoundment of water behind the Gar16 rison and Oahe Dams; 

17 (B) the Joint Tribal Advisory Committee was 

18 established by the Secretary of the Interior on May 

19 10, 1985, for the purpose of assessing the impacts 

20 of the Garrison and Oahe Dams on the Three Affili21 ated Tribes and the Standing Rock Sioux Tribe; 

22 (C) the Committee delivered a final report to 

23 the Secretary on May 23, 1986; 

24 (D) in 1992, Congress passed the Three Affili25 ated Tribes and Standing Rock Sioux Tribe EquiVerDate Mar 15 2010 02:40 Jul 27, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3648.IS S3648

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1 table Compensation Act (title XXXV of Public Law 

2 102–575; 106 Stat. 4731) to address certain find3 ings of the Committee; and 

4 (E) a number of the findings of the Committee 

5 still have not been addressed as of the date of enact6 ment of this Act; 

7 (9)(A) before the date of enactment of this Act, 

8 Congress provided compensation to the 7 affected 

9 Indian tribes for the land taken from the tribes over 

10 a 55-year period; 

11 (B) on 17 different occasions, as part of 14 dif12 ferent Acts of Congress, compensation was author13 ized for the 7 affected Indian tribes; and 

14 (C) 1 tribe also received compensation through 

15 a court case; and 

16 (10) a single comprehensive bill is needed to re17 solve and finally settle the claims of the affected In18 dian tribes because past compensation— 

19 (A) was provided at different levels and 

20 based on different compensation methods, de21 pending on the historical time period during 

22 which the compensation was provided; and 

23 (B) resulted in each of the 7 Indian tribes 

24 being compensated differently. 


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1 SEC. 3. DEFINITIONS. 

2 In this Act: 

3 (1) AFFECTED INDIAN TRIBE.—The term ‘‘af4 fected Indian tribe’’ means any of— 

5 (A) the Cheyenne River Sioux Tribe; 

6 (B) the Crow Creek Sioux Tribe; 

7 (C) the Lower Brule Sioux Tribe; 

8 (D) the Santee Sioux Tribe; 

9 (E) the Standing Rock Sioux Tribe; 

10 (F) the Three Affiliated Tribes; and 

11 (G) the Yankton Sioux Tribe. 

12 (2) COMMISSION.—The term ‘‘Commission’’ 

13 means the Pick-Sloan Tribal Commission for Com14 prehensive Resolution established by section 4(a)(1). 

15 (3) PICK-SLOAN PROGRAM.—The term ‘‘Pick16 Sloan Program’’ means the Pick-Sloan Missouri 

17 River Basin Program authorized by section 9 of the 

18 Act of December 22, 1944 (commonly known as the 

19 ‘‘Flood Control Act of 1944’’) (58 Stat. 891). 

20 SEC. 4. PICK-SLOAN TRIBAL COMMISSION FOR COM21 PREHENSIVE RESOLUTION. 

22 (a) ESTABLISHMENT OF COMMISSION.— 

23 (1) ESTABLISHMENT.—There is established a 

24 commission to be known as the ‘‘Pick-Sloan Tribal 

25 Commission for Comprehensive Resolution’’. 

26 (2) MEMBERSHIP.— 


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1 (A) IN GENERAL.—The Commission shall 

2 be composed of 7 members, of whom— 

3 (i) 1 shall be the Chairperson of the 

4 Commission; 

5 (ii) at least 1 shall have expertise in 

6 the field of Indian law and policy; 

7 (iii) at least 1 shall have expertise in 

8 the operation and history of Federal water 

9 projects; 

10 (iv) 1 shall have expertise in the area 

11 of environmental justice; 

12 (v) 1 shall be an economist; and 

13 (vi) at least 1 shall be an authority in 

14 cultural preservation. 

15 (B) TRIBAL MEMBERSHIP.—Of the 7 

16 members selected for the Commission, at least 

17 3 shall be members of federally recognized In18 dian tribes. 

19 (C) SELECTION OF COMMISSION.— 

20 (i) IN GENERAL.—The Chairperson 

21 and Vice Chairperson of the Committee on 

22 Indian Affairs of the Senate and the 

23 Chairperson and Ranking Member of the 

24 Committee on Natural Resources of the 

25 House of Representatives shall— 


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1 (I) select the 7 Commission 

2 members; and 

3 (II) appoint 1 of the members to 

4 serve as Chairperson of the Commis5 sion. 

6 (ii) RECOMMENDATIONS.—The af7 fected Indian tribes may make rec8 ommendations to the Chairperson of the 

9 Committee on Indian Affairs of the Senate 

10 and the Chairperson of the Committee on 

11 Natural Resources of the House of Rep12 resentatives regarding members of the 

13 Commission. 

14 (D) DEADLINE FOR APPOINTMENT.—All 

15 members of the Commission shall be appointed 

16 not later than 60 days after the date of enact17 ment of this Act. 

18 (3) TERM; VACANCIES.— 

19 (A) TERM.—A member shall be appointed 

20 for the life of the Commission. 

21 (B) VACANCIES.—A vacancy on the Com22 mission— 

23 (i) shall not affect the powers of the 

24 Commission; and 


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1 (ii) shall be filled in the same manner 

2 as the original appointment was made. 

3 (4) INITIAL MEETING.—Not later than 30 days 

4 after the date on which all members of the Commis5 sion have been appointed, the Commission shall hold 

6 the initial meeting of the Commission. 

7 (5) MEETINGS.—The Commission shall meet at 

8 the call of the Chairperson. 

9 (6) QUORUM.—A majority of the members of 

10 the Commission shall constitute a quorum, but a 

11 lesser number of members may hold hearings. 

12 (7) NONAPPLICABILITY OF FACA.—The Federal 

13 Advisory Committee Act (5 U.S.C. App.) shall not 

14 apply to the Commission. 

15 (b) DUTIES.— 

16 (1) IN GENERAL.—In carrying out this section, 

17 the Commission shall consult with the affected In18 dian tribes. 

19 (2) STUDY.—The Commission shall conduct a 

20 study of— 

21 (A) with respect to the period beginning on 

22 the date of commencement of the Pick-Sloan 

23 Program and ending on the date on which the 

24 study is initiated— 


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1 (i) the impacts on the affected Indian 

2 tribes, directly or indirectly, caused by the 

3 Pick-Sloan Program; and 

4 (ii) measures implemented by the 

5 Federal Government to attempt to address 

6 those impacts; 

7 (B) other measures that have been pro8 posed to address the impacts on the affected In9 dian tribes caused by the Pick-Sloan Program; 

10 (C) the results of any other studies regard11 ing those impacts and potential solutions to the 

12 impacts, including any studies conducted by the 

13 Joint Tribal Advisory Committee relating to the 

14 Pick-Sloan Program; and 

15 (D) comparisons involving other situations 

16 in which Federal hydroelectric projects or feder17 ally licensed hydroelectric projects have resulted 

18 in the taking or occupation of Indian land and 

19 the compensation, or other measures, Indian 

20 tribes have been or are being provided in those 

21 situations. 

22 (3) HEARINGS.— 

23 (A) IN GENERAL.—In carrying out para24 graph (2), the Commission shall hold at least 3 

25 hearings to receive information from Federal 


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1 agencies, Indian tribes, and other interested 

2 parties regarding the resolution of Pick-Sloan 

3 Program impacts. 

4 (B) PUBLIC PARTICIPATION.—A hearing 

5 under this paragraph shall be open to the pub6 lic. 

7 (C) RECORDS.—For each hearing under 

8 this paragraph, the Commission shall— 

9 (i) compile a record consisting of tran10 scripts, written testimony, studies, and 

11 other information presented at the hearing; 

12 and 

13 (ii) include the record in the report of 

14 the Commission required under paragraph 

15 (5), as an appendix in electronic format. 

16 (4) COMPREHENSIVE RESOLUTION.— 

17 (A) IN GENERAL.—Based on the results of 

18 the study under paragraph (2), and hearings 

19 under paragraph (3), the Commission shall de20 velop a proposal to comprehensively resolve the 

21 impacts to the affected Indian tribes resulting 

22 from the Pick-Sloan Program. 

23 (B) INCLUSIONS.—The proposal under 

24 subparagraph (A) shall include— 


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1 (i) a comprehensive proposal for a 

2 program to provide full and final com3 pensation to the affected Indian tribes; 

4 (ii) a description of the measures re5 ferred to in paragraph (2) that— 

6 (I) have not been implemented; 

7 (II) could be implemented; or 

8 (III) should be implemented in a 

9 more effective manner; 

10 (iii) relevant measures that could be 

11 accomplished administratively; 

12 (iv) relevant measures that would re13 quire legislation to be implemented; and 

14 (v) any other measures necessary to 

15 comprehensively resolve the impacts of the 

16 Pick-Sloan Program on the affected Indian 

17 tribes. 

18 (5) REPORT.— 

19 (A) IN GENERAL.—Subject to subpara20 graph (B), not later than 18 months after the 

21 date on which the first meeting of the Commis22 sion takes place, the Commission shall submit 

23 to the President and Congress a report that 

24 contains— 


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1 (i) a detailed statement of the study 

2 findings and conclusions of the Commis3 sion; and 

4 (ii) the proposal of the Commission 

5 for such legislation and administrative ac6 tions as the Commission considers to be 

7 appropriate to resolve the impacts on the 

8 affected Indian tribes caused by the Pick9 Sloan Program. 

10 (B) EXTENSION.—The deadline described 

11 in subparagraph (A) may be extended for a pe12 riod of not more than 180 days if the Commis13 sion submits to the Committee on Indian Af14 fairs of the Senate and the Committee on Nat15 ural Resources of the House of Representatives 

16 a request for the extension that— 

17 (i) is received by the Committees be18 fore the deadline described in subpara19 graph (A); and 

20 (ii) includes a description of the rea21 sons why the extension is needed. 

22 (6) WEBSITE.— 

23 (A) IN GENERAL.—The Commission shall 

24 maintain a website for the period beginning on 

25 the date on which the first meeting of the ComVerDate Mar 15 2010 02:40 Jul 27, 2010 Jkt 089200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S3648.IS S3648

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1 mission takes place and ending on the date that 

2 is 180 days after the date of termination of the 

3 Commission. 

4 (B) REQUIREMENTS.—The Commission 

5 shall use the website— 

6 (i) to describe the activities of the 

7 Commission; 

8 (ii) to provide access to information 

9 studied by the Commission; 

10 (iii) to provide notice of, and make 

11 available all information presented at, 

12 hearings of the Commission; and 

13 (iv) to post the report (including all 

14 appendices to that report) of the Commis15 sion required under paragraph (5). 

16 (C) ARCHIVING OF WEBSITE CONTENT.— 

17 At the time at which the website of the Com18 mission is terminated, all content on the 

19 website shall be— 

20 (i) collected on compact disk, digital 

21 video disk, or other appropriate digital 

22 media; and 

23 (ii) included in the report to be sub24 mitted under paragraph (5). 

25 (c) POWERS.— 


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1 (1) HEARINGS.—The Commission may hold 

2 such hearings, meet and act at such times and 

3 places, take such testimony, and receive such evi4 dence as the Commission considers to be advisable 

5 to carry out this Act. 

6 (2) INFORMATION FROM FEDERAL AGENCIES.— 

7 (A) IN GENERAL.—The Commission may 

8 secure directly from a Federal agency such in9 formation as the Commission considers to be 

10 necessary to carry out this Act. 

11 (B) PROVISION OF INFORMATION.—On re12 quest of the Chairperson of the Commission, 

13 the head of an applicable Federal agency shall 

14 provide the information to the Commission. 

15 (3) POSTAL SERVICES.—The Commission may 

16 use the United States mails in the same manner and 

17 under the same conditions as other agencies of the 

18 Federal Government. 

19 (4) GIFTS.—The Commission may accept, use, 

20 and dispose of gifts or donations of services or prop21 erty. 

22 (d) COMMISSION PERSONNEL MATTERS.— 

23 (1) COMPENSATION OF MEMBERS.—Each mem24 ber of the Commission shall be compensated at a 

25 rate equal to the daily equivalent of the annual rate 


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1 of basic pay prescribed for level IV of the Executive 

2 Schedule under section 5315 of title 5, United 

3 States Code, for each day (including travel time) 

4 during which the member is engaged in the perform5 ance of the duties of the Commission. 

6 (2) TRAVEL EXPENSES.—Each member of the 

7 Commission shall be allowed travel expenses, includ8 ing per diem in lieu of subsistence, at rates author9 ized for an employee of an agency under subchapter 

10 I of chapter 57 of title 5, United States Code, while 

11 away from the home or regular place of business of 

12 the member in the performance of the duties of the 

13 Commission. 

14 (3) STAFF.— 

15 (A) IN GENERAL.—The Chairperson of the 

16 Commission may, without regard to the civil 

17 service laws (including regulations), appoint 

18 and terminate an executive director and such 

19 other additional personnel as are necessary to 

20 enable the Commission to perform the duties of 

21 the Commission. 

22 (B) CONFIRMATION OF EXECUTIVE DIREC23 TOR.—The employment of an executive director 

24 shall be subject to confirmation by the Commis25 sion. 


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1 (C) COMPENSATION.— 

2 (i) IN GENERAL.—Except as provided 

3 in subparagraph (B), the Chairperson of 

4 the Commission may fix the compensation 

5 of the executive director and other per6 sonnel without regard to the provisions of 

7 chapter 51 and subchapter III of chapter 

8 53 of title 5, United States Code, relating 

9 to classification of positions and General 

10 Schedule pay rates. 

11 (ii) MAXIMUM RATE OF PAY.—The 

12 rate of pay for the executive director and 

13 other personnel shall not exceed the rate 

14 payable for level IV of the Executive 

15 Schedule under section 5316 of title 5, 

16 United States Code. 

17 (D) DETAIL OF FEDERAL GOVERNMENT

18 EMPLOYEES.— 

19 (i) IN GENERAL.—An employee of the 

20 Federal Government may be detailed to 

21 serve as staff for the Commission without 

22 reimbursement. 

23 (ii) CIVIL SERVICE STATUS.—The de24 tail of the employee shall be without interVerDate Mar 15 2010 02:40 Jul 27, 2010 Jkt 089200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S3648.IS S3648

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1 ruption or loss of civil service status or 

2 privilege. 

3 (4) HUMAN RESOURCES SUPPORT.—The Com4 mission may request the Secretary of Defense to 

5 provide, and the Secretary of Defense shall provide, 

6 through human resource departments under the ju7 risdiction of the Secretary of Defense, on a reim8 bursable basis, operational support for activities of 

9 the Commission. 

10 (5) CONTRACT AUTHORITY.—The Commission 

11 may, to such extent and using such amounts as are 

12 provided in appropriation Acts, enter into contracts 

13 to enable the Commission to discharge the duties of 

14 the Commission under this Act. 

15 (6) VOLUNTEER SERVICES.—Notwithstanding 

16 section 1342 of title 31, United States Code, the 

17 Commission may accept and use such voluntary and 

18 uncompensated services as the Commission deter19 mines to be necessary. 

20 (7) PROCUREMENT OF TEMPORARY AND INTER21 MITTENT SERVICES.—The Chairperson of the Com22 mission may procure temporary and intermittent 

23 services in accordance with section 3109(b) of title 

24 5, United States Code, at rates for individuals that 

25 do not exceed the daily equivalent of the annual rate 


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1 of basic pay prescribed for level V of the Executive 

2 Schedule under section 5316 of that title. 

3 (e) TERMINATION OF COMMISSION.—The Commis4 sion shall terminate 90 days after the date on which the 

5 Commission submits the report of the Commission under 

6 subsection (b)(5). 

7 SEC. 5. FUNDING. 

8 (a) AUTHORIZATION OF APPROPRIATIONS.—There 

9 are authorized to be appropriated such sums as are nec10 essary to carry out this Act for each of fiscal years 2010 

11 and 2011, to remain available until expended. 

12 (b) TRANSFER OF FUNDS IN LIEU OF APPROPRIA13 TION.— 

14 (1) IN GENERAL.—For any fiscal year, or at 

15 any time during a fiscal year, in which insufficient 

16 amounts are available to fund activities of the Com17 mission, the Secretary of the Interior or the Sec18 retary of the Army may transfer to the Commission 

19 such unobligated amounts as are available to the 

20 Secretary of the Interior or the Secretary of the 

21 Army for use by the Commission in carrying out this 

22 Act. 

23 (2) AVAILABILITY.—Amounts transferred to the 

24 Commission under paragraph (1) shall remain avail25 able until the earlier of— 


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1 (A) the date of termination of the Commis2 sion; or 

3 (B) the date on which amounts that are 

4 sufficient to carry out this Act are made avail5 able. 

6 SEC. 6. SAVINGS CLAUSE. 

7 Nothing in this Act diminishes, changes, or otherwise 

8 affects— 

9 (1) the water rights of the affected Indian 

10 tribes; 

11 (2) any other right (including treaty rights) of 

12 the affected Indian tribes; 

13 (3) the status of Indian reservation land or the 

14 boundaries of any reservation of an Indian tribe; or 

15 (4) any Congressional authorization of appro16 priations for the benefit of the affected Indian 

17 tribes. 

Æ 


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