[House Report 108-299]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 108-299
======================================================================
WESTERN SHOSHONE CLAIMS DISTRIBUTION ACT
_______
October 7, 2003.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 884]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 884) to provide for the use and distribution of the funds
awarded to the Western Shoshone identifiable group under Indian
Claims Commission Docket Numbers 326-A-1, 326-A-3, and 326-K,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Western Shoshone Claims Distribution
Act''.
SEC. 2. DISTRIBUTION OF DOCKET 326-K FUNDS.
The funds appropriated in satisfaction of the judgment award granted
to the ``Western Shoshone Identifiable Group'' of the Shoshone Nation,
under Docket Number 326-K before the Indian Claims Commission,
including all earned interest, shall be distributed as follows:
(1) Judgment roll.--The Secretary shall identify and allocate
the resources necessary to establish a Western Shoshone
Judgment Roll consisting of all Western Shoshones who--
(A) have at least \1/4\ degree of Western Shoshone
Blood;
(B) are citizens of the United States; and
(C) are living on the date of enactment of this Act.
(2) Certain individuals ineligible.--Any individual
determined or certified as eligible by the Secretary to receive
a per capita payment from any other judgment fund, based upon
an aboriginal land claim, awarded by the Indian Claims
Commission, the United States Claims Court, or the United
States Court of Federal Claims, that was appropriated on or
before the date of enactment of this Act, shall not be eligible
for enrollment under this Act.
(3) Publication of roll.--Not later than 120 days after the
date of enactment of this Act, the Secretary shall publish in
the Federal Register rules and regulations governing the
establishment of the Western Shoshone Judgment Roll and shall
use any documents acceptable to the Secretary in establishing
proof of eligibility. The Secretary's determination on all
applications for enrollment under this paragraph shall be
final.
(4) Per capita payments.--Upon completing the Western
Shoshone Judgment Roll under paragraph (1), the Secretary shall
make a per capita distribution of 100 percent of the funds
described in this section, in a sum as equal as possible, to
each person listed on the judgment roll.
(5) Conditions of per capita payments.--
(A) With respect to the distribution of funds under
this section, the per capita shares of living competent
adults who have reached the age of 19 years on the date
of the distribution provided for under paragraph (4),
shall be paid directly to them.
(B) The per capita shares of deceased individuals
shall be distributed to their heirs and legatees in
accordance with regulations prescribed by the
Secretary.
(C) The shares of legally incompetent individuals
shall be administered pursuant to regulations and
procedures established by the Secretary under section
3(b)(3) of Public Law 93-134 (25 U.S.C. 1403(b)(3)).
(D) The shares of minors and individuals who are
under the age of 19 years on the date of the
distribution provided for under paragraph (4) shall be
held by the Secretary in supervised individual Indian
money accounts. The funds from such accounts shall be
disbursed over a period of 4 years in payments equaling
25 percent of the principal, plus the interest earned
on that portion of the per capita share. The first
payment shall be disbursed to individuals who have
reached the age of 18 years if such individuals are
deemed legally competent. Subsequent payments shall be
disbursed within 90 days of the individual's following
3 birthdays.
(6) Applicable law.--All funds distributed under this Act,
are subject to the provisions of section 7 of Public Law 93-134
(25 U.S.C. 1407).
(7) Unpaid amounts.--All per capita shares belonging to
living competent adults certified as eligible to share in the
judgment fund distribution under this section, and the interest
earned on those shares, that remain unpaid for a period of 6
years shall be added to the principal funds that are held and
invested in accordance with section 3, except that in the case
of a minor, such 6-year period shall not begin to run until the
minor reaches the age of majority.
(8) Residual amounts.--Any other residual principal and
interest funds remaining after the distribution under paragraph
(4) is complete shall be added to the principal funds that are
held and invested in accordance with section 3.
(9) Not a waiver of treaty rights.--Receipt of a share of the
judgment funds under this section shall not be construed as a
waiver of any existing treaty rights pursuant to the ``1863
Treaty of Ruby Valley'', inclusive of all Articles I through
VIII, and shall not prevent any Western Shoshone Tribe or Band
or individual Shoshone Indian from pursuing other rights
guaranteed by law.
SEC. 3. DISTRIBUTION OF DOCKETS 326-A-1 AND 326-A-3.
The funds appropriated in satisfaction of the judgment awards granted
to the Western Shoshone Indians in Docket Numbers 326-A-1 and 326-A-3
before the United States Court of Claims, and the funds referred to
under paragraphs (7) and (8) of section 2, together with all earned
interest, shall be distributed as follows:
(1) Establishment of trust fund.--(A) not later than 120 days
after the date of enactment of this Act, the Secretary shall
establish in the Treasury of the United States a trust fund to
be known as the ``Western Shoshone Educational Trust Fund'' for
the benefit of the Western Shoshone members. There shall be
credited to the Trust Fund the funds described in the matter
preceding this paragraph.
(B) The principal in the Trust Fund shall not be expended or
disbursed. The Trust Fund shall be invested as provided for in
section 1 of the Act of June 24, 1938 (25 U.S.C. 162a).
(C)(i) All accumulated and future interest and income from
the Trust Fund shall be distributed, subject to clause (ii)--
(I) as educational grants and as other forms
of educational assistance determined
appropriate by the Administrative Committee
established under paragraph (2) to individual
Western Shoshone members as required under this
Act; and
(II) to pay the reasonable and necessary
expenses of such Administrative Committee (as
defined in the written rules and procedures of
such Committee).
(ii) Funds shall not be distributed under this
paragraph on a per capita basis.
(2) Administrative committee.--(A) An Administrative
Committee, exclusively comprised of Western Shoshone, to
oversee the distribution of the educational grants and
assistance authorized under section (3)(2) shall be established
as provided for in this paragraph.
(B) The Western Shoshone Administrative Committee shall
consist of 1 representative from each of the following
organizations:
(i) The Te-Moak Tribes of Western Shoshone Indians.
(ii) The Duckwater Shoshone Tribe.
(iii) The Yomba Shoshone Tribe.
(iv) The Ely Shoshone Tribe.
(v) The Western Shoshone Committee of the Duck Valley
Reservation.
(vi) The Fallon Band of Western Shoshone.
(vii) The at-large community.
(C) Each member of the Committee shall serve for a term of 4
years. If a vacancy remains unfilled in the membership of the
Committee for a period in excess of 60 days, the Committee
shall appoint a replacement from among qualified members of the
organization for which the replacement is being made and such
member shall serve until the organization to be represented
designates a replacement.
(D) The Secretary shall consult with the Committee on the
management and investment of the funds subject to distribution
under this section.
(E) The Committee shall have the authority to disburse the
accumulated interest fund under this Act in accordance with the
terms of this Act. The Committee shall be responsible for
ensuring that the funds provided through grants and assistance
under paragraph (1)(C) are utilized in a manner consistent with
the terms of this Act. In accordance with paragraph
(1)(C)(i)(II), the Committee may use a portion of the interest
funds to pay all of the reasonable and necessary expenses of
the Committee, including per diem rates for attendance at
meetings that are the same as those paid to Federal employees
in the same geographic location.
(F) The Committee shall develop written rules and procedures
that include such matters as operating procedures, appeals
procedures, rules of conduct, eligibility criteria for receipt
of educational grants or assistance (such criteria to be
consistent with this Act), application selection procedures,
fund disbursement procedures, and fund recoupment procedures.
Such rules and procedures shall be subject to the approval of
the Secretary. A portion of the interest funds in the Trust
Fund, not to exceed $100,000, may be used by the Committee to
pay the expenses associated with developing such rules and
procedures. At the discretion of the Committee, and with the
approval of the appropriate tribal governing body or
organization, jurisdiction to hear appeals of the Committee's
decisions may be exercised by a tribal court, or a court of
Indian offenses operated under section 11 of title 25, Code of
Federal Regulations.
(G) The Committee shall employ an independent certified
public accountant to prepare an annual financial statement that
includes the operating expenses of the Committee and the total
amount of educational grants or assistance disbursed for the
fiscal year for which the statement is being prepared under
this section. The Committee shall compile a list of names of
all individuals approved to receive such grants or assistance
during such fiscal year. The financial statement and the list
shall be distributed to each organization represented on the
Committee and the Secretary and copies shall be made available
to the Western Shoshone members upon request.
SEC. 4. DEFINITIONS.
In this Act the following definitions apply:
(1) Administrative committee; committee.--The terms
``Administrative Committee'' and ``Committee'' mean the
Administrative Committee established under section 3(2).
(2) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(3) Trust fund.--The term ``Trust Fund'' means the Western
Shoshone Educational Trust Fund established under section 3(1).
(4) Western shoshone members.--The term ``Western Shoshone
member'' means an individual who appears on a Western Shoshone
Band or Tribe Base Roll or an individual who is the lineal
descendant of an individual appearing on the base roll of one
of the Western Bands of the Shoshone Nation of Indians, who
meets the criteria of section 2(1) under this Act and for
purposes of the trust funds, who--
(A) satisfies all eligibility criteria established by
the Administrative Committee under section 3(F);
(B) fulfills all application requirements established
by the Committee; and
(C) agrees to utilize funds distributed in accordance
with section 3(1)(C)(i)(I) in a manner approved by the
Committee for educational purposes.
(5) Western shoshone identifiable group.--The term ``Western
Shoshone Identifiable Group'' means those individual Western
Shoshones identified as claimants by the Indian Claims
Commission in Dockets 326-K, 326-A-1, and 326-A-3, distinct and
severed from the claims of the Northwestern, Eastern, and Mixed
Bands of Shoshones and Bannocks, Lemhi, or Goshute bands of the
Shoshone Nation.
(6) Aboriginal land claim.--The term ``aboriginal land
claim'' means a claim derived from land where the band, tribe
or identifiable group claimed a right of occupancy based on
their immemorial possession of the area.
(7) Base roll.--The term ``base roll'' means the originating
census (list) compiled by the Federal Government that
established tribal membership.
SEC. 5. REGULATIONS.
The Secretary may promulgate such regulations as are necessary to
carry out this Act.
PURPOSE OF THE BILL
The purpose of H.R. 884 is to provide for the use and
distribution of the funds awarded to the Western Shoshone
identifiable group under Indian Claims Commission Docket
Numbers 326-A-1, 326-A-3, and 326-K, and for other purposes.
BACKGROUND AND NEED FOR LEGISLATION
In 1951, the Te-Moak Bands of Western Shoshone Indians
filed two claims with the Indian Claims Commission against the
United States. One was a takings claim for the 19th-century
loss of aboriginal title to lands located mostly in Nevada,
California and Idaho. The other was a general accounting claim.
The land claim concluded in 1979, and resulted in an award of
$26.1 million. The accounting claim resulted in awards totaling
about $850,000. These awards, however, have never been
distributed. H.R. 884 provides for the distribution of the
principal and interest of these awards.
H.R. 884 provides for the use and distribution of the
awards (referenced by certain docket numbers). When a hearing
on H.R. 884 was held on June 18, 2003, the amount of the
judgment funds was estimated to be approximately $143.9
million, including interest. Using this figure as a basis for
this report, under H.R. 884, $142,472,644 will be paid to
eligible Western Shoshones on a per capita share basis. The
remaining $1,386,718 would be used for an education trust fund
for the benefit of the Western Shoshone Indians.
The bill specifies the criteria for eligibility for the per
capita payments and for distributing the funds for the purposes
of the bill. The bill requires the Secretary of the Interior to
establish a judgment roll consisting of Western Shoshones who
have at least \1/4\ degree of Western Shoshone blood, are
citizens of the United States, and are living at the date of
enactment. The Secretary would distribute the approximately
$142 million for the land claim to each eligible person on the
judgment roll through a per-capita share. The $1.38 million
awarded for the accounting claim would be used to establish the
``Western Shoshone Educational Trust Fund'' for educational
grants and other purposes.
One of the main reasons for the delay in distributing funds
has to do with disputes among some Western Shoshones over the
disposition of the funds. Some Western Shoshone people believe
the distribution would preclude them from seeking restoration
of title to their aboriginal lands, which they argue did not
have its title legitimately extinguished. However, federal
court decisions have upheld that the Indian Claims Commission
payment is a ``full discharge of the United States of all
claims and demands touching any of the matters involved in the
controversy.'' (Section 22(a) of the Indian Claims Commission
Act). Section 2(9) of the bill (as introduced and as amended in
committee) provides that receiving funds under this bill does
not waive the Western Shoshone's existing treaty rights or
ability to pursue other rights as guaranteed in law.
During the hearing and later markup of the bill, there was
considerable discussion concerning whether a majority, and how
large a majority, of the Western Shoshone people favor a
distribution of the judgment funds. While there is disagreement
among some factions of the Western Shoshone community, it is
the judgment of the Department of the Interior that H.R. 884
``reflects the wishes of the vast majority of the Western
Shoshone people.'' Statement on H.R. 844 of Michael D. Olsen,
Counselor to the Assistant Secretary for Indian Affairs, June
18, 2003. More important, there was no evidence provided by
dissidents to prove that enactment of this bill of the judgment
funds would affect the legal rights of the Western Shoshone.
The basic purpose of this bill is to distribute certain
judgment funds that have remained out of reach of their
rightful owners for several decades. Delaying the distribution
of the funds is unreasonable and unfair.
Similar bills to provide for a distribution of the judgment
funds were introduced in the 107th Congress. One of the bills,
S. 958, was passed by the Senate and referred to the House
Resources Committee, but was not considered further because
Congress adjourned.
COMMITTEE ACTION
H.R. 884 was introduced on February 25, 2003, by
Congressman Jim Gibbons (R-NV). The bill was referred to the
Committee on Resources. On June 18, 2003, the Full Committee
held a hearing on the bill. On September 24, 2003, the Full
Resources Committee met to consider the bill. Congressman
Gibbons offered an amendment in the nature of a substitute
which made several technical changes to the bill, including
clarifying which members of the Western Shoshone Nation are
eligible for judgment fund distribution, setting a time frame
in which the Interior Department is supposed to act, and adding
definitions of certain terms contained in the underlying text.
Congressman Nick J. Rahall II offered an amendment to the
amendment in the nature of a substitute; however, a point of
order was sustained against it. The amendment in the nature of
a substitute was agreed to by voice vote. The bill, as amended,
was then ordered favorably reported to the House of
Representatives by a rollcall vote of 21 to 14, as follows:
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States (``The Congress shall have the power to * * * regulate
commerce * * * with the Indian Tribes;'') grants Congress the
authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. This bill does
not authorize funding and therefore, clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
apply.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional budget Office,
Washington, DC, September 25, 2003.
Hon. Richard W. Pombo,
Chairman, Committee on Resources, House of Representatives, Washington,
DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 884, the Western
Shoshone Claims Distribution Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette J.
Walker.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
H.R. 884--Western Shoshone Claims Distribution Act
H.R. 884 would establish procedures for the distribution of
about $143 million in judgment awards held in trust funds on
behalf of the members of the Western Shoshone tribes. Under
current law, the funds cannot be spent or distributed by the
tribes until the Congress approves a plan to allocate the
funds.
The tribes were awarded over $26 million in 1979 as
compensation for the federal government's taking of tribal land
in California and Nevada and the removal of minerals from that
land. H.R. 884 would provide for payments to eligible members
of the Western Shoshone tribes of the $26 million plus interest
earned on that amount--a total of about $143 million.
H.R. 884 also would allow for the distribution of interest
earnings on about $1.4 million that was awarded by the Court of
Federal Claims to the Western Shoshone for the federal
government's improper accounting of tribal funds. Under the
bill, the interest on that trust fund would be used to make
educational grants or to provide other education assistance to
Western Shoshone members and to pay for the administrative
expenses of the disbursement committee.
Those trust funds are held and managed in a fiduciary
capacity by the federal government on behalf of Indian tribes
and are treated in the budget as nonfederal entities. As a
result, outlays were recorded on the budget when the judgments
were awarded to the tribes and paid into those funds, and there
is no budgetary impact when the money is distributed to the
individual members of the tribes. Therefore, CBO estimates that
enacting H.R. 884 would have no effect on the federal budget.
H.R. 884 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
On August 19, 2003, CBO transmitted a cost estimate for S.
618, the Western Shoshone Claims Distribution Act, as ordered
reported by the Senate Committee on Indian Affairs on July 16,
2003. The language of the bills are similar and the cost
estimates are identical.
The CBO staff contact for this estimate is Lanette J.
Walker. This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
DISSENTING VIEWS
The issue of the distribution of funds raised by H.R. 884
has come before the House Resources Committee several times,
and each time the legislation has failed to be enacted. It has
failed generally over the same problem--the lack of a showing
of strong support within the Western Shoshone Indian population
and among the federally recognized Western Shoshone tribes.
This problem still exists and the bill should not be moved
until it is appropriately addressed.
The Committee held a hearing on this bill on June 18th of
this year. At that time the Administration witness promised to
provide additional information to the Committee to support its
claim that a ``vast majority'' of Western Shoshone supported
the distribution of the claims judgment as provided for under
this legislation. Representative Tom Udall, requested
documentation on this assertion and was promised it would be
provided to the Committee. A full fifteen weeks later, and
despite repeated calls to the Interior Department, no
documentation has been sent and we are still waiting for this
information.
This goes right to the heart of the question of support for
this bill. It is premature to move this legislation forward. We
do not have all of the facts and by this point in time one must
question whether or not the Department has any such
documentation.
We do not have documentation showing the ``vast majority''
of Western Shoshone Indians support this legislation nor
tribally passed resolutions from the majority of tribes in
support.
In addition, we are uncomfortable with the assertion that
Congress should distribute over $130 million of Western
Shoshone money based on a so called ``straw poll'' taken by an
unofficial ad hoc committee known as the Western Shoshone
Steering Committee. By all accounts the Steering Committee was
comprised of very dedicated, hard working, honest Western
Shoshone Indians.
The problem is that by the very nature of being an ad hoc
committee, we are left with no official tribal or federal
documentation as to the specifics of how the straw poll vote
was taken. We have no consistent and specific information on
voter eligibility, voter education, absentee information,
sample ballot information, and ballot counting rules that were
followed.
Further, the bill contains no process to expand the land
base of the various Western Shoshone Indian tribes. Perhaps the
one thing the Western Shoshone tribes can agree on is the need
for more land. There is no doubt that the ancestral lands of
the Western Shoshone are rich in natural resources and
minerals. Some estimates have put the value of mining receipts
on these lands in the tens of billions since the 1960's.
Western Shoshone Indians are spread across at least three
States working hard to eke out a living and provide for their
families. Elders wonder if they will ever see judgment fund
distribution checks. Western Shoshone tribes struggle to keep
their sovereign governments afloat with very limited resources
available for economic development while others become wealthy
off of what used to be Shoshone land.
The National Congress of American Indians (NCAI) which is
the oldest and largest national Indian organization passed
Resolution #SD-02-017 in November, 2002 which states in part:
* * * Now Therefore Be It Resolved, that the NCAI does
hereby call upon the United States to make a
legislative commitment to enter into land talks with
the Western Shoshone Nation
Representative Nick Rahall, II, offered an amendment during
mark up of this legislation which would have directed the
Secretary of Interior to enter into discussions with the
various Western Shoshone tribes for the purposes of identifying
specific land parcels appropriate for adding to each tribe's
land base. In addition the amendment would have exempted the
judgment funds distributed from taxation or from counting
against the recipient in any government program. Finally, the
amendment would have required that an audit of the judgment
funds be conducted by the Secretary of Interior prior to the
funds' distribution. The amendment was objected to and ruled
out-of-order.
H.R. 884 as ordered reported by the Committee on Resources
establishes a ``Western Shoshone Educational Trust Fund.''
Changes were made to this section at mark up which we feel will
cause it to fail as a long lasting education fund. The amended
bill now defines the term ``Western Shoshone member'' as ``an
individual who is a lineal descendant of an individual
appearing on the base roll of one of the Western Bands of the
Western Shoshone Nation of Indians, who meets the criterion of
section 2(1) under this Act * * *''
Section 2(1) sets out three requirements to be enrolled on
the ``Western Shoshone Judgment Roll'' to receive a per capital
share of the Docket 326-K funds. The third requirement, set
forth in section 2(1)(C), is that the individual is ``* * *
livingon the date of enactment of this Act.'' There are
problems with the requirements to receive educational benefits.
The first is that individual must appear on the ``Western
Shoshone Judgment Roll'' and appear on ``a Western Shoshone
Band or Tribe Base Roll'' or be a lineal descendant or an
individual appearing on the base roll. We have been informed
that there are people who will appear on the ``Western Shoshone
Judgment Roll'' who are not listed on a ``base roll'' or a
lineal descent of someone who is. It is unclear why this
additional burden has been added.
An additional problem is that all persons born after the
date of enactment will be prohibited from receiving educational
benefits. Once all eligible persons born on the date of
enactment receive benefits or decline to apply, any remaining
monies in the Western Shoshone Educational Trust Fund will
continue to accrue dividends and interest presumably growing ad
infinitum. The fund will grow but Western Shoshone youth will
have no way to tap into the resources.
Some simple amendments to this legislation could go a long
way to addressing many concerns, however, the bill is on a fast
track to move leaving little option remaining but to oppose its
passage.
In the year 2003, Congress should pass such legislation
only when we are assured of tribal support and the government-
to-government partnership has been respected.
Nick J. Rahall.
Tom Udall.
Mark Udall.
Donna M. Christensen.
Madeleine Z. Bordallo.
Frank Pallone, Jr.