[Senate Report 112-199]
[From the U.S. Government Publishing Office]
Calendar No. 489
112th Congress Report
SENATE
2d Session 112-199
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TO SETTLE LAND CLAIMS WITHIN THE FORT HALL RESERVATION
_______
August 2, 2012.--Ordered to be printed
_______
Mr. Akaka, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1065]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 1065) to settle land claims within the Fort Hall
Reservation, having considered the same, reports favorably
thereon, and recommends that the bill, as amended, do pass.
PURPOSE
The purpose of S. 1065 is to settle pending land claim
disputes occurring between the Shoshone-Bannock Indian Tribes
of the Fort Hall Indian Reservation and certain non-Indian
landowners.
BACKGROUND
The Fort Hall Reservation was established by Executive
Order in 1867 and confirmed in the Fort Bridger Treaty of 1868.
The Blackfoot River was deemed to be the northern boundary of
the Fort Hall Reservation. The land disputes in question arose
as a consequence of the realignment of the Blackfoot River by
the Corps of Engineers in 1964 to address flow and periodic
flooding problems. Following the realignment, 25 parcels of
land (approximately 37.04 acres of individually and tribally-
owned land), once on the south side of the river, ended up on
the north side, outside of the reservation boundary, and 19
parcels (approximately 31.01 acres) of land owned by non-
Indians, once on the north side of the river, ended up on the
south side, within that boundary. Over the years, these parcels
of land have remained idle due to lack of access.
In the late 1980s, the Snake River Basin Adjudication began
decreeing water rights on all streams and rivers within the
Snake River Basin in Idaho, which includes the Blackfoot River
basin. Several non-Indian landowners whose lands were affected
by the realignment of the Blackfoot River asserted claims that
their place of use was on the Fort Hall Reservation. The
Shoshone-Bannock Tribes filed objections to those claims which
resulted in litigation currently pending as part of the Snake
River Basin Adjudication.
NEED FOR THE LEGISLATION
S. 1065 embodies the terms of a negotiated settlement among
the parties, including the Shoshone-Bannock Tribes, the non-
Indian litigants, and the State of Idaho. Congressional
approval of the settlement is required to extinguish claims and
title to land, place land into trust and appropriate funds.
Further, without legislation the pending legal proceedings will
resume, resulting in lengthy and costly litigation for all
affected parties.
S. 1065 would resolve the land ownership disputes and
extinguish claims relating to the ownership of lands and
associated water rights. These disputes and claims would be
resolved by conveying title to the lands within the Reservation
to the United States to hold in trust for the Tribe or Indian
allottee, and by conveying title to the lands outside the
reservation boundaries to the Black River Flood Control
District No. 7 for re-conveyance to the non-Indian landowners.
The legislation would authorize $700,000 to compensate both
the Indian and non-Indian landowners for years of trespass, the
value of their lands, and certain expenses that have been
incurred. Generally, the compensation would be divided as
follows: (1) $263,406 to be deposited into a tribal trust fund
account from which amounts shall be distributed to the Tribes
for activities related to construction of natural resources
facilities, water resources needs, economic development, and
land acquisition; (2) $230,489 to be paid into individual
Indian money accounts for the allottees; (3) $165,550 to be
provided to the Blackfoot River Flood Control District No. 7
for distribution to the non-Indian landowners on a pro rata,
per acre basis and for associated administrative expenses; (4)
Attorneys' fees to be paid to the attorneys for the tribes and
the non-Indian landowners in an amount not to exceed $35,000;
and (5) any remaining funds to be divided equally between the
tribes and the non-Indian landowners.
LEGISLATIVE HISTORY
Earlier versions of this bill were introduced in the 111th
Congress (S. 2802, which was approved by the Committee and
reported with amendments in December of 2010, and H.R. 4613).
On May 25, 2011, Senator Crapo, for himself and Senator Risch,
introduced S. 1065, which was referred to the Committee on
Indian Affairs.
On December 8, 2011, the Committee on Indian Affairs
convened a business meeting to consider S. 1065 and other
measures. The Committee approved the bill, by voice vote, and
ordered the bill reported to the full Senate with the
recommendation that the bill, as amended, do pass. However,
before the bill was reported, the Committee considered it again
at a business meeting held on June 28, 2012, primarily to
correct a problem relating to the effective date created by the
wording of section 13 of the bill as introduced. At that
business meeting, the Committee approved a substitute amendment
and again ordered that the bill, as amended, be reported
favorably to the full Senate.
SUMMARY OF THE AMENDMENT
The substitute amendment offered at the June 28 business
meeting by Senator Crapo includes technical changes to the bill
approved in the business meeting of December 8, 2011 (primarily
to ensure that exhibits and other references in the bill were
correctly stated and referenced as well as grammatical
corrections and a change relating to the confirmation year of
the Second Treaty of Fort Bridger), as well as amendments (1)
striking section 13 of the bill (relating to the effective
date), (2) in section 4, making the section effective upon
payment of the funds appropriated under section 12; (3)
clarifying the attorneys' fees provisions in section 8; and (4)
in section 12, clarifying the funding distribution
requirements.
SECTION-BY-SECTION OF S. 1065 AS AMENDED
Section 1. Short title
The short title of the Act is the ``Blackfoot River Land
Settlement Act of 2012.''
Section 2. Findings; purposes
This section sets out the findings that led to the
introduction of this Act. The findings include the policy of
the United States to promote tribal self-determination and
encourage the resolution of disputes over settlement claims; a
background of the Shoshone-Bannock Tribes and the Fort Hall
Reservation; references to the 1964 Corp of Engineers flood
protection project on the Blackfoot River, which realigned the
River so that certain parcels of non-Indian land ended up being
located within the reservation boundaries and certain Indian
lands ended up located outside of the reservation boundaries;
affected parties have filed claims in the Snake River Basin
Adjudication seeking water rights based on the realignment of
the Blackfoot River; and that this Act would represent an
agreement among parties and distribute funds as specified.
Section 2 also states that the purpose of the Act is to
resolve the disputes resulting from the realignment of the
Blackfoot River by the Corps of Engineers in 1964, and to
achieve a fair, equitable, and final settlement of all claims
arising from those disputes.
Section 3. Definitions
This section defines the key terms in this Act. The defined
terms are ``Allottee,'' ``Indian land,'' ``Non-Indian acquiring
Indian land,'' ``Non-Indian land,'' ``Non-Indian landowner,''
``Realigned River,'' ``Reservation,'' ``River,'' ``Secretary,''
and ``Tribes.''
Section 4. Release of claims to certain Indian and Non-Indian owned
lands
Section 4(a) provides that, on the deposit of all amounts
into the tribal trust fund account and the allottee trust fund
account under section 7 and the disbursement to non-Indian
landowners under section 12, all existing and future claims
with respect to the Indian land and the non-Indian land and all
right, title, and interest that the Tribes, allottees, non-
Indian acquiring Indian land, and non-Indian landowners may
have had to that land shall be extinguished; any interest of
the Tribes, the allottees, or the United States, acting as
trustee for the Tribes or allottees, in the Indian land shall
be extinguished under section 2116 of the Revised Statutes
(commonly known as the ``Indian Trade and Intercourse Act'');
and the Tribes, allottees, and non-Indian land-owners waive and
release all claims that the Tribes, allottees, and non-Indian
landowners may have asserted against the United States arising
out of any interest in the Indian land or non-Indian owned land
affected by the realignment of the Blackfoot River by the Corp
of Engineers.
To the extent any interest in non-Indian land transferred
into trust pursuant to section 5 violates section 2116 of the
Revised Statutes (commonly known as the ``Indian Trade and
Intercourse Act''), that transfer shall be valid, subject to
the condition that the transfer is consistent with all other
applicable Federal Laws.
Section 4(b) states that on the deposit of all amounts into
the tribal trust fund account and allottee trust fund account,
and the disbursement to non-Indian landowners, the Secretary is
authorized to execute and file any appropriate documents as
necessary to carry out this act.
Section 5. Land to be placed into trust for tribes
Section 5 states that effective on the date on which the
amounts appropriated under section 12 are distributed, the non-
Indian land shall be considered to be held in trust by the
United States for the benefit of the Tribes.
Section 6. Trust land to be converted to fee land
This section provides that on the date on which the amounts
appropriated pursuant to section 12 are distributed in
accordance with that section to the tribal trust fund account
and the allottee trust account, the Indian land shall be
transferred to the Blackfoot River Flood Control District No. 7
for conveyance to the non-Indians acquiring Indian land.
Section 7. Tribal trust fund account and allottee trust account
Section 7(a) establishes in the Treasury of the United
States an account, to be known as the ``tribal trust fund
account'', consisting of such amounts as are deposited in the
account under section 12(b)(1). The Secretary of the Treasury
shall invest amounts in the tribal trust fund account for the
benefit of the Tribes, in accordance with applicable laws and
regulations. The Secretary of the Treasury shall distribute
amounts in the tribal trust fund account to the Tribes pursuant
to a budget adopted by the Tribes that describes the amounts
required by the Tribes; and the intended uses of the amounts.
The Tribes may use amounts in the tribal trust fund account
(including interest earned on those amounts), without fiscal
year limitation, for activities related to construction of a
natural resources facility; water resources needs; economic
development; land acquisition; and other such purposes as the
Tribes determine to be appropriate.
Section 7(b) establishes in the Treasury of the United
States an account to be known as the ``allottee trust
account'', consisting of such amounts as are deposited in the
account under section 12(b)(2). Not later than 60 days after
the date on which amounts are deposited into the allottee trust
account, the Secretary of the Treasury shall deposit the
amounts into individual Indian money accounts for the
allottees. The Secretary of the Treasury shall invest amounts
in the individual Indian money accounts under paragraph (2) in
accordance with applicable laws and regulations.
Section 8. Attorneys' fees
This section states that the Secretary of the Interior
shall pay to the attorneys of the Tribes and the non-Indian
landowners such attorneys' fees as are approved by the Tribes
and the non-Indian landowners, but the total amount of
attorneys' fees paid by the Secretary shall not exceed $35,000.
Section 9. Effect on original reservation boundary
This section confirms that nothing in the Act affects the
original boundaries of the Reservation as established by
Executive Order in 1867 and confirmed by Treaty in 1868.
Section 10. Effect on Tribal Water Rights
This section confirms that nothing in the Act extinguishes
or conveys any water rights of the Tribes as established in the
``1990 Fort Hall Indian Water Rights Agreement,'' ratified by
section 4 of the Fort Hall Indian Water Rights Act of 1990
(Pub. L. 101-602).
Section 11. Disclaimers regarding claims
This section confirms that nothing in the Act affects the
sovereign claim of the State of Idaho to title in and to the
beds and banks of the Blackfoot River under the equal footing
doctrine; affects any action by the State of Idaho to establish
that title under the Quiet Title Act; affects the ability of
the Tribes or the United States to claim ownership of the beds
and banks of the River; or extinguishes or conveys any water
rights of non-Indian landowners or the claims of such
landowners to water rights in the Snake River Water Basin
adjudication.
Section 12. Funding
This section authorizes appropriations in the amount of
$700,000 to be distributed among the Tribes, the allottees,
attorneys, and the Blackfoot River Flood Control District No. 7
in the following manner: (1) $263,406 to be deposited into the
tribal trust fund account; (2) $230,489 to be deposited into
the allottee trust account; (3) $165,550 to be deposited into
the Blackfoot River Flood Control District No. 7 for
distribution to the non-Indian landowners and associated
administrative expenses; and (4) not more than $35,000 shall be
made available to the Secretary to distribute to the attorneys
of the Tribes and the non-Indian landowners for attorneys'
fees. Any remaining amounts after distributions under
paragraphs (1) through (4) of subsection (b) of section 12 and
Section 8 shall be split equally between the Blackfoot River
Flood Control District No. 7 and the Tribes and used by the
Blackfoot River Flood Control District No. 7 and the Tribes for
administrative expenses. This section also states that funds
distributed under this Act shall not be used for per capita
payments to tribal members.
COMMITTEE RECOMMENDATION
The bill was considered by the Committee at a business
meeting held on June 28, 2012. The Committee approved a
substitute amendment and ordered that the bill, as amended, be
reported favorably to the full Senate.
COST AND BUDGETARY CONSIDERATIONS
The following cost estimate was prepared for S. 1065 as
amended, as provided by the Congressional Budget Office on July
25, 2012:
S. 1065--Blackfoot River Land Settlement Act of 2012
S. 1065 would authorize the appropriation of $700,000 to
settle a land dispute between the Shoshone-Bannock Tribes and
certain non-Indian landowners in southeastern Idaho. Based on
information from the Department of the Interior (DOI) and
assuming the availability of appropriated funds, CBO estimates
that implementing the legislation would cost $700,000 over the
2013-2017 period. Enacting the legislation would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
Under the bill, DOI would exchange 37 acres of Indian trust
land for 31 acres of private land that would be held in trust
for the Shoshone-Bannock Tribes. The bill also would authorize
the appropriation of $700,000 to settle certain claims made
against the federal government. Of those amounts, about
$400,000 would be paid to individual Indian and private
landowners as compensation for damages resulting from certain
federal activities that affected use of land. An additional
$260,000 would be held in trust for the Shoshone-Bannock Tribes
by the U.S. Treasury. The tribes would have the authority to
spend those amounts at their discretion. Finally, up to $35,000
of the authorized amounts would be available to pay attorneys'
fees for the tribes and the non-Indian landowners.
By requiring the exchange of lands through federal statute,
S. 1065 would impose both intergovernmental and private-sector
mandates, as defined in the Unfunded Mandates Reform Act
(UMRA), on tribal and nontribal land owners. The bill would
terminate rights to certain parcels of land surrounding the
Blackfoot River, and extinguish any past, present, or future
claims on that land. The cost of the mandates would be the
forgone damages that could have been collected through legal
actions related to clarifying title to the property and the net
value of the land being exchanged by the federal government.
Any foregone damages are not likely to be significant. In a
market study used by DOI, the value of the land is estimated to
be less than $500,000. Therefore, CBO estimates that the
aggregate cost of the mandates would fall well below the annual
threshold established in UMRA for both intergovernmental and
private-sector mandates ($73 million and $146 million,
respectively, in 2012, adjusted annually for inflation).
On January 17, 2012, CBO transmitted a cost estimate for S.
1065, the Blackfoot River Land Settlement Act of 2011, as
ordered reported by the Senate Committee on Indian Affairs on
December 8, 2011. The two versions of the legislation are
similar and the CBO cost estimates are the same.
The CBO staff contacts for this estimate are Martin von
Gnechten (for federal costs), Melissa Merrell (for the
intergovernmental impact), and Marin Randall (for the private-
sector impact). The estimate was approved by Theresa Gullo,
Deputy Assistant Director for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee has received no executive communications on
S. 1065. However, the Committee did receive a letter dated
August 2, 2010, from the Assistant Secretary--Indian Affairs
regarding the version of this bill introduced in the 111th
Congress, S. 2802. That letter is described in the Executive
Communications section of Senate Report 111-356.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 1065 will
have a minimal impact on regulatory or paperwork requirements.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 1065 will not make any changes in existing law.