[Senate Report 115-75]
[From the U.S. Government Publishing Office]
Calendar No. 94
115th Congress } { Report
SENATE
1st Session } { 115-75
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TO EXTEND THE FEDERAL RECOGNITION TO THE LITTLE SHELL TRIBE OF CHIPPEWA
INDIANS OF MONTANA, AND FOR OTHER PURPOSES
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May 22, 2017.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 39]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 39) to extend the Federal recognition to the Little
Shell Tribe of Chippewa Indians of Montana, and for other
purposes, having considered the same, reports favorably
thereon, without amendment, and recommends that the bill do
pass.
PURPOSE
The purposes of S. 39 are (1) to extend Federal recognition
to the Little Shell Tribe of Chippewa Indians of Montana
(Little Shell), making its members eligible for all services
and benefits provided by the United States to other federally
recognized Indian tribes; and (2) to effect the transfer of 200
acres of land, which the Secretary of the Interior (Secretary)
shall acquire and place in trust for the benefit of Little
Shell.
BACKGROUND
History of federally recognizing Indian tribes
The act of federally recognizing an Indian tribe is highly
significant. It is an affirmation by the United States of the
existence of a formal government-to-government relationship
between the United States and the tribe. Once federally
recognized, a tribe and its members have access to Federal
benefits and programs, and the tribal government incurs a
formal responsibility to its members as the primary governing
body of the community.
Before Congress ended the practice of treaty-making with
Indian tribes in 1871, treaties were the usual manner of
recognizing a government-to-government relationship between the
United States and an Indian tribe. Since the conclusion of this
practice, the United States has recognized Indian tribes by
legislation, executive orders, and administrative decisions.
Additionally, Federal courts may clarify the status of an
Indian group.
In order to provide a uniform and consistent process by
which an Indian tribe may be federally recognized, the
Department of the Interior (Department) developed an
administrative process in 1978 to allow Indian groups to
petition for formal acknowledgment of a government-to-
government relationship with the United States. Standards and
procedures for this process were set forth in Part 83 of Title
25 of the Code of Federal Regulations (Part 83 or the Federal
acknowledgement process). These regulations, as amended in
1994, required a petitioner to satisfy seven mandatory
requirements, including:
(1) The petitioner ``has been identified as an American
Indian entity on a substantially continuous basis since 1900'';
(2) A predominant portion of the petitioning ``group
comprises a distinct community and has existed as a community
from historical times until the present'';
(3) The petitioner has ``maintained political influence or
authority over its members as an autonomous entity from
historical times to the present'';
(4) The group must ``provide a copy of its present
governing documents and membership criteria'';
(5) The petitioner's ``membership consists of individuals
who descend from a historical Indian tribe or from historical
Indian tribes which combined and functioned as a single
autonomous political entity'';
(6) The ``membership of the petitioning group is composed
principally of persons who are not members of any acknowledged
North American Indian tribe'' and do not maintain a bilateral
political relationship with the acknowledge tribe; and
(7) ``Neither the petitioner nor its members are the
subject of congressional legislation that has expressly
terminated or forbidden the Federal relationship''.\1\
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\1\See 59 Fed. Reg. 94-3934. (February 25, 1994).
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The Department issued new Part 83 regulations on July 1,
2015.\2\
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\2\80 Fed. Reg. 37861 (July 1, 2015).
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History of changes made to the Department's Part 83 regulations
The Federal acknowledgement process has been criticized as
``broken'' for decades.\3\ Nonetheless, until the Department's
recent effort to reform Part 83 (discussed below), there have
been only a handful of changes made to the Federal
acknowledgement process since its inception.\4\
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\3\See 80 Fed. Reg. 37862.
\4\Examples of changes made to the process prior to recent reform
efforts include regulations clarifying the evidence needed to support a
recognition petition, 59 Fed. Reg. 94-3934 (February 25, 1994); a
notice regarding internal BIA processing of federal acknowledgment
petitions, 65 Fed. Reg. 7052-53 (February 11, 2000); and a notice
providing guidance and direction to streamline the process, 73 Fed.
Reg. 30146 (May 23, 2008).
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Complaints about the Department's Federal acknowledgement
process have centered primarily on the high cost of gathering
documentary evidence to meet the seven mandatory criteria, the
length of time it takes the Department to review a petition,
and the Department's inconsistent application of the listed
criteria.\5\ Of the 567 tribes that have been federally
recognized, only 18 have been acknowledged through the Part 83
process.
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\5\See 80 Fed. Reg. 37861 (July 1, 2015).
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Since 1970, Congress has passed legislation to federally
recognize or reaffirm 17 Indian tribes.\6\ To date, the
Department has issued 50 decisions under the Part 83 process,
including one decision issued after new Part 83 regulations
were published in July 2015.\7\
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\6\See Tonto Apache Tribe of Arizona, Pub. L. 92-470 (1972); Modoc
Tribe of Oklahoma, Pub. L. 95-281 (1978); Pasqua Yaqui Tribe of
Arizona, Pub. L. 95-375 (1978); Houlton Band of Maliseet Indians of
Maine, Pub. L. 96-420 (1980); Cow Creek Band of Umpqua Indians of
Oregon, Pub. L. 97-391; Kickapoo Traditional Tribe of Texas, Pub. L.
97-429 (1983); Mashantucket Pequot Tribe of Connecticut, Pub. L. 98-134
(1983); Ysleta Del Sur Pueblo of Texas, Pub. L. 100-89 (1987); Lac
Vieux Desert Band of Lake Superior Chippewa Indians of Michigan, Pub.
L. 100-420 (1988); Coquille Tribe of Oregon, Pub. L. 101-42 (1989);
Aroostook Band of Micmac Indians of Maine, Pub. L. 102-171 (1991);
Pokagon Band of Potawatomi Indians of Michigan, Pub. L. 103-323 (1994);
Little River Band of Ottawa Indians of Michigan, Pub. L. 103-324
(1994); Little Traverse Band of Odawa Indians of Michigan, Pub. L. 103-
324 (1994); Central Council of the Tlingit & Haida Indian Tribes of
Alaska, Pub. L. 103-454 (1994); Graton Rancheria of California, Pub. L.
106-568 (2000); and Loyal Shawnee Tribe of Oklahoma, Pub. L. 106-568
(2000).
\7\The Department of the Interior issued a final determination
recognizing the Pamunkey Indian Tribe. See 80 Fed. Reg. 39144 (July 8,
2015).
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Recent developments
On June 21, 2013, the Assistant Secretary--Indian Affairs
(AS-IA) released a Discussion Draft proposing changes to Part
83. The related comment period closed on September 30, 2013. On
May 29, 2014, the AS-IA published a Proposed Rule in the
Federal Register. The Department received substantial input
from tribes, state and local governments, and the public,
during the associated comment period, which closed on September
30, 2014.\8\
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\8\See U.S. Department of the Interior, News Release, Department of
the Interior Announces Final Federal Recognition Process to Acknowledge
Indian Tribes (June 29, 2015) (stating that more than 2,800 commenters
provided input on the Discussion Draft, and that there were over 330
unique comments on the Proposed Rule). The Department also received
feedback from tribes during consultations and public meetings. Id.
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Ultimately, the Department published a Final Rule on July
1, 2015, which took effect on July 31, 2015.\9\ Assistant
Secretary Washburn also issued a policy statement indicating
that the Department will rely on the new Part 83 process as the
``sole administrative avenue'' for Federal acknowledgement for
tribes.\10\
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\9\80 Fed. Reg. 37861 (July 1, 2015).
\10\80 Fed. Reg. 37538-39 (July 1, 2015).
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According to the Department, the Final Rule preserves the
existing standard of proof and seven mandatory criteria to
``maintain[] the substantive rigor and integrity of the [Part
83] process.''\11\ In order to promote timeliness and
efficiency, the Final Rule provides for a two-phased review of
petitions that establishes certain threshold criteria and may
result in the earlier issuance of final decisions, as well as a
uniform evaluation period (1900 to present) to satisfy the
tribal identification, community and political authority
criteria.\12\ The Final Rule is intended to promote efficiency
by providing for limited reconsideration of final agency
determinations.\13\ The Department states that the Final Rule
promotes fairness and consistency by providing that prior
decisions finding evidence or methodology sufficient to satisfy
any particular criterion will also be sufficient for a
petitioner under the new Part 83 process.\14\ It also states
that the Final Rule promotes transparency by providing for
increased public access to petitions for Federal
acknowledgement and associated public materials and, in the
case of a negative proposed finding, providing petitioners the
opportunity for a hearing.\15\
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\11\80 Fed. Reg. 37861 (July 1, 2015).
\12\Id.
\13\Id.
\14\Id.
\15\Id.
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Indian tribes that applied for federal acknowledgment prior
to publication of the Final Rule on July 1, 2015, are allowed
to choose to have the Department evaluate their application
under the previous application process or the new application
process.\16\
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\16\Id.
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Since the Final Rule was published, one Indian tribe has
been federally recognized.\17\
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\17\The Department of the Interior issued a final determination
recognizing the Pamunkey Indian Tribe on July 2, 2015. See 80 Fed. Reg.
39144 (July 8, 2015).
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History of Little Shell
The Little Shell has used historical ties to the Pembina
Band of Chippewa Indians in North Dakota for the Department to
consider to satisfy criteria five.\18\ The Pembina Band was
included in the Chippewa--Red Lake and Pembina Bands treaty
with the United States in an 1863 treaty that was ratified by
the Senate.\19\ Many of the members of the Pembina Band settled
on reservations in Minnesota, but the ancestors of the Little
Shell moved westward, following the buffalo herds. By the late
1800s, the Little Shell had settled in Montana and in the
Turtle Mountains of North Dakota.\20\
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\18\See Little Shell Tribe of Chippewa Indians Restoration Act of
2011, S. 546, 112th Cong. Sec. 2 (7) (2011).
\19\Treaty with the Chippewa--Red Lake and Pembina Bands, U.S.-
Chippewa--Red Lake and Pembina Bands, October 2, 1863, 13 Stat. 667.
\20\Fixing the Federal Acknowledgement Process: Hearing Before the
S. Comm. on Indian Affairs, 111th Cong. 2, 2-3 (2009) (written
testimony of John Sinclair, President of the Little Shell Tribe of
Chippewa Indians of Montana).
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The Little Shell Band has had numerous dealings with the
United States. In 1892, a United States Commission was formed
to negotiate cession of land from the Turtle Mountain Chippewa
and provide for their removal. Chief Little Shell and his
followers refused to accept the terms of the agreement and
walked out on the negotiations. He was followed by a group of
supporters who would become known as the ``Little Shell
Band''.\21\
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\21\Id.
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Chief Little Shell and the Little Shell Band's refusal to
cede additional lands to the United States left them without a
reservation.\22\ Congress appropriated funds in 1908, and from
1914 through 1925, to establish a land base for the ``homeless
Indians in the State of Montana.''\23\
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\22\Id.
\23\Little Shell Tribe of Chippewa Indians Restoration Act of 2007:
Hearing on S. 724 Before the S. Comm. on Indian Affairs, 110th Cong. 2,
13 (2008) (statement of the Hon. John Sinclair, Little Shell Tribe of
Chippewa Indians of Montana, President); 41 Stat. 1225 (March 3, 1925).
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In 1935, following the enactment of the Indian
Reorganization Act (IRA),\24\ the BIA attempted to help the
Little Shell Tribe form a government and reestablish a
relationship with the United States. The Little Shell was
ultimately unable to formally organize under the IRA because
they lacked a land base.\25\
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\24\Indian Reorganization Act, 25 U.S.C. Sec. Sec. 5101-5144
(2017).
\25\See Little Shell Tribe of Chippewa Indians Restoration Act of
2011, S. 546, 112th Cong. Sec. 2 (7) (2011).
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The Little Shell continued its effort to obtain Federal
recognition through the Department's Federal acknowledgment
process. In 1978, the year this process was created, Little
Shell filed a letter of intent to petition for Federal
acknowledgment. Little Shell spent approximately 14 years
documenting their petition for acknowledgment, and ultimately
submitted a petition in 1992.\26\
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\26\Id.
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In 1995, the BIA declared the Little Shell's petition was
complete.\27\ In 2000, the BIA issued a positive proposed
finding on the petition, stating that Little Shell had met all
seven mandatory criteria for Federal acknowledgment.\28\
However, the BIA Office of Federal Acknowledgement requested
additional information from the Tribe. In response, Little
Shell provided nearly 1,000 pages of additional material.
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\27\Little Shell Tribe of Chippewa Indians Restoration Act of 2013:
Hearing on S. 161 Before the S. Comm. on Indian Affairs, 113th Cong. 1,
4 (2013) (written testimony of the Assistant Secretary for Indian
Affairs, U.S. Department of the Interior).
\28\65 Fed. Reg. 45394 (July 21, 2000).
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In 2009, the Department issued a final determination
against federally acknowledging Little Shell.\29\ The
Department's final determination stated that Little Shell met
only four of the seven mandatory criteria for Federal
acknowledgment.\30\ Little Shell appealed the negative final
determination to the Interior Board of Indian Appeals.\31\
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\29\74 Fed Reg. 56861 (November 3, 2009); Little Shell Band of
Chippewa Indians Restoration Act of 2011: Hearing on S. 546 Before the
S. Comm. on Indian Affairs, 112th Cong. 1, 30 (2011) (statement of Hon.
John Sinclair, Little Shell Tribe of Chippewa Indians of Montana,
President).
\30\Little Shell Tribe of Chippewa Indians Restoration Act of 2013:
Hearing on S. 161 Before the S. Comm. on Indian Affairs, 113th Cong. 1,
20 (2013) (statement of the Assistant Secretary for Indian Affairs,
U.S. Department of the Interior).
\31\Id.
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In 2013, the Secretary referred Little Shell's petition to
the AS-IA for reconsideration. The Little Shell petition was
placed on hold.
LEGISLATIVE HISTORY
Montana Senators Jon Tester [D-MT] and Max Baucus [D-MT]
introduced legislation to federally recognize Little Shell in
the 110th Congress (S. 724), the 111th Congress (S. 1936), the
112th Congress (S. 546), and the 113th Congress (S. 161).
During the 110th Congress, and again in the 112th and 113th
Congresses, the Committee on Indian Affairs held hearings on
the legislation. At that time, Little Shell's petition for
recognition was on active consideration, and the Administration
testified in support of the Part 83 process.\32\ Montana
Senators Jon Tester and Steve Daines introduced legislation to
federally recognize Little Shell in the 114th Congress (S. 35).
The Committee favorably reported out bills to recognize Little
Shell in the 112th, 113th, and 114th Congresses.
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\32\Little Shell Tribe of Chippewa Indians Restoration Act of 2007:
Hearing on S. 724 Before the S. Comm. on Indian Affairs, 110th Cong. 2,
1 (2008) (written testimony of Director, R. Lee Fleming, Office of
Federal Acknowledgment, US Department of the Interior).
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In the 115th Congress, on January 5, 2017, Senators Jon
Tester [D-MT] and Steve Daines [R-MT] introduced S. 39 to
federally recognize Little Shell. The bill was referred to the
Committee on Indian Affairs, which considered the bill at a
February 8, 2017 business meeting. During this business
meeting, the Committee favorably reported S. 39 to the full
Senate by voice vote, without amendment.
Although there have been companion bills introduced in the
House during past Congresses (including the 114th Congress),
there is currently no companion bill. Additionally, Montana's
at-large congressional seat is presently vacant.
SECTION-BY-SECTION ANALYSIS
Section 1--Short title
This section states that the short title of the bill is the
``Little Shell Tribe of Chippewa Indians Restoration Act of
2017''.
Section 2--Findings
This section lists Congressional findings.
Section 3--Definitions
This section defines terms used throughout the Act.
Section 4--Federal recognition
This section formally extends Federal recognition to Little
Shell, making all federal laws and regulations of general
applicability to Indians and Indian tribes, including the IRA,
applicable to Little Shell and its members.
Section 5--Federal services and benefits
This section states that, beginning on the date of
enactment of this Act, the Little Shell and each member shall
be eligible for all services and benefits provided by the
United States to Indians and federally recognized Indian
tribes, without regard to either the existence of a reservation
for the tribe or the location of the residence of any member on
or near an Indian reservation. This section also establishes
Little Shell's service area for service delivery and benefits
purposes as Blaine, Cascade, Glacier, and Hill Counties in the
State of Montana.
Section 6--Reaffirmation of rights
This section makes clear that nothing in this Act
diminishes any right or privilege of Little Shell, or members
of Little Shell, that existed prior to the date of enactment.
The section further states that any legal or equitable claims
to enforce rights or privileges reserved by or granted to
Little Shell that were wrongfully denied or taken before
enactment of this Act are preserved.
Section 7--Membership roll
This section mandates, as a condition of receiving
recognition, services, and benefits pursuant to this Act, that
Little Shell submit to the Secretary a membership roll within
18 months of enactment of this Act, and maintain such roll.
This section also requires that tribal membership be determined
in accordance with Little Shell's constitution dated September
10, 1977.
Section 8--Transfer of land
This section directs the Secretary to acquire trust title
to 200 acres of land within the service area of the Tribe. This
section also states that the Secretary may acquire additional
land for the benefit of the Tribe, in accordance with the IRA.
COST AND BUDGETARY CONSIDERATIONS
The following cost estimate, as provided by the
Congressional Budget Office, dated February 21, 2017.
Summary: S. 39 would provide federal recognition to the
Little Shell Tribe of Chippewa Indians of Montana. Federal
recognition would make the tribe eligible to receive benefits
from various federal programs.
CBO estimates that implementing this legislation would cost
$35 million over the 2018-2022 period, assuming appropriation
of the necessary amounts. Enacting S. 39 would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
CBO estimates that enacting S. 39 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
S. 39 would impose an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA) by exempting some
lands from taxation by state and local governments, but CBO
estimates the cost of the mandate would be small and well below
the threshold established in that act ($78 million in 2017,
adjusted annually for inflation).
S. 39 contains no private-sector mandates as defined in
UMRA.
Estimated cost to the Federal Government: The estimated
budgetary effect of S. 39 is shown in the following table. The
costs of this legislation fall within budget functions 450
(community and regional development) and 550 (health).
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By fiscal year, in millions of dollars--
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2018 2019 2020 2021 2022 2018-2022
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INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Department of the Interior:
Estimated Authorization Level............. 3 3 3 3 3 16
Estimated Outlays......................... 2 3 3 3 3 15
Indian Health Service:
Estimated Authorization Level............. 4 4 4 4 5 20
Estimated Outlays......................... 4 4 4 4 5 20
Total Changes:
Estimated Authorization Level......... 7 7 7 7 8 36
Estimated Outlays..................... 6 7 7 7 8 35
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Note: Components may not sum to totals because of rounding.
Basis of estimate: For this estimate, CBO assumes that S.
39 will be enacted near the end of 2017 and that the amounts
necessary to implement the bill will be appropriated each year.
Providing federal recognition to the Little Shell Tribe of
Chippewa Indians of Montana would allow the tribe and about
2,600 tribal members to receive benefits from various programs
administered by the Department of the Interior (DOI) and the
Indian Health Service (IHS). Based on the average per capita
expenditures by those agencies for other Indian tribes, CBO
estimates that implementing S. 39 would cost $35 million over
the 2018-2022 period.
Department of the Interior
DOI, primarily through the Bureau of Indian Affairs (BIA),
provides funding to federally recognized tribes for various
purposes, including child welfare services, adult care,
community development, and general assistance. Based on current
per capita expenditures of around $1,200 for other federally
recognized tribes located in the central states and accounting
for anticipated inflation, CBO estimates that providing those
services to the tribe would cost $15 million over the 2018-2022
period.
Indian Health Service
S. 39 also would make members of the tribe eligible to
receive health benefits. Based on an analysis of information
from the IHS, CBO estimates that about 55 percent of tribal
members--or about 1,400 people--would receive benefits each
year. CBO expects that the per capita cost to serve those
people would be similar to the costs for current IHS
beneficiaries--about $2,650 in 2017. Accounting for anticipated
inflation, CBO estimates that providing benefits for tribal
members through the IHS would cost $20 million over the 2018-
2022 period.
Other Federal Agencies
In addition to DOI and IHS funding, certain Indian tribes
also receive support from other federal programs within the
Departments of Education, Housing and Urban Development, Labor,
and Agriculture. Based on their status as a tribe recognized by
the state of Montana, the tribe is already eligible to receive
funding from those departments. Thus, CBO estimates that
enacting S. 39 would not increase costs for that support.
Pay-As-You-Go considerations: None.
Increase in long-term direct spending and deficits: CBO
estimates that enacting S. 39 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
Estimated impact on state, local, and tribal governments:
S. 39 contains an intergovernmental mandate as defined in UMRA
because it would authorize the Secretary of Interior to acquire
and take into trust 200 acres of land for the Little Shell
Tribe. Because that land would be exempt from state and local
taxes, the provision would impose an intergovernmental mandate.
Given the small amount of land to be taken into trust, CBO
estimates that the forgone tax revenue to state and local
governments would be small and well below the threshold
established for intergovernmental mandates ($78 million in
2017, adjusted annually for inflation).
Estimated impact on the private sector: S. 39 contains no
private-sector mandates as defined in UMRA.
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. 39 will
have a minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 39.
CHANGES IN EXISTING LAW
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 39 will not make any changes in existing law.
[all]