H. R. 6100
IN THE HOUSE OF REPRESENTATIVES
August 10, 2010
Mr. Pomeroy (for himself and Ms. Herseth Sandlin) introduced the following bill; which was referred to the Committee on Natural Resources
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.
This Act may be cited as the
Pick-Sloan Tribal Commission Act of
Congress finds that—
Missouri River Basin Program (known as the
authorized by section 9 of the Act of December 22, 1944 (commonly known as the
Flood Control Act of 1944) (58 Stat. 891), was approved—
to promote the general economic development of the United States;
to provide for irrigation above Sioux City, Iowa;
to protect urban and rural areas from devastating floods of the Missouri River; and
for other purposes;
the United States acquired 1,422,000 acres of land in the States of North Dakota, South Dakota, and Nebraska for—
the building of mainstem Missouri River dams at Garrison, Oahe, Big Bend, Fort Randall, and Gavin’s Point; and
the creation of reservoirs behind the dams named Lake Sakakawea, Lake Oahe, Lake Sharpe, Lake Francis Case, and Lake Gavin, respectively;
the construction of the dams and creation of the reservoirs described in paragraph (2) included the taking of title to land located on the reservations of 7 Indian tribes (but did not diminish the reservations), including the taking of—
156,000 acres from the Fort Berthold reservation;
55,994 acres from the Standing Rock reservation;
104,420 acres from the Cheyenne River reservation;
22,955 acres from the Lower Brule reservation;
15,565 acres from the Crow Creek reservation;
3,252 acres from the Yankton reservation; and
1,703 acres from the Santee reservation;
the water impounded by the Garrison, Oahe, Big Bend, Fort Randall, and Gavin’s Point projects of the Pick-Sloan Program flooded the most fertile and wooded bottom land of the 7 Indian tribes referred to in paragraph (3) along the Missouri River;
that land constituted the most productive agricultural, hunting, and collecting land of those Indian tribes; and
the majority of the community infrastructure of each tribe was also located on the land;
the flooding of the productive land described in paragraph (4) greatly damaged the economy and cultural resources of the 7 Indian tribes;
although those Indian tribes reside on the Missouri River, the economic benefits of the Pick-Sloan Program have not been passed on to the affected Indian tribes; rather
the operation of the dams creates disproportionate hardships for the Indian tribes, including—
poor water quality;
increased trespassing and theft or damage to cultural resources;
artificial sediment deposits that impact water infrastructure and contain unknown contaminants;
harming fisheries, including loss of reservoir retention time;
damage to riparian habitat; and
increased recreational traffic and impacts, but with few opportunities to regulate or benefit from recreational uses;
Congress held a number of hearings and promoted studies of the impacts to those tribes, pursuant to which representatives of the tribes testified on impacts to tribal economies, health, and welfare from the flooding of that land;
Congress has established prior commissions to study and make recommendations regarding impacts of the Pick-Sloan Program, including the Garrison Diversion Unit Commission established under section 207(c)(1) of the Energy and Water Development Appropriation Act, 1985 (Public Law 98–360; 98 Stat. 411), which recommended that a Joint Tribal Advisory Committee be formed to examine and make recommendations with respect to the effects of the impoundment of water behind the Garrison and Oahe Dams;
the Joint Tribal Advisory Committee was established by the Secretary of the Interior on May 10, 1985, for the purpose of assessing the impacts of the Garrison and Oahe Dams on the Three Affiliated Tribes and the Standing Rock Sioux Tribe;
the Committee delivered a final report to the Secretary on May 23, 1986;
in 1992, Congress passed the Three Affiliated Tribes and Standing Rock Sioux Tribe Equitable Compensation Act (title XXXV of Public Law 102–575; 106 Stat. 4731) to address certain findings of the Committee; and
a number of the findings of the Committee still have not been addressed as of the date of enactment of this Act;
before the date of enactment of this Act, Congress provided compensation to the 7 affected Indian tribes for the land taken from the tribes over a 55-year period;
on 17 different occasions, as part of 14 different Acts of Congress, compensation was authorized for the 7 affected Indian tribes; and
1 tribe also received compensation through a court case; and
a single comprehensive bill is needed to resolve and finally settle the claims of the affected Indian tribes because past compensation—
was provided at different levels and based on different compensation methods, depending on the historical time period during which the compensation was provided; and
resulted in each of the 7 Indian tribes being compensated differently.
In this Act:
Affected Indian tribe
The term affected Indian tribe means any of—
the Cheyenne River Sioux Tribe;
the Crow Creek Sioux Tribe;
the Lower Brule Sioux Tribe;
the Santee Sioux Tribe;
the Standing Rock Sioux Tribe;
the Three Affiliated Tribes; and
the Yankton Sioux Tribe.
The term Commission means the Pick-Sloan Tribal Commission for Comprehensive Resolution established by section 4(a)(1).
The term Pick-Sloan Program means the
Pick-Sloan Missouri River Basin Program authorized by section 9 of the Act of
December 22, 1944 (commonly known as the
Flood Control Act of
1944) (58 Stat. 891).
Pick-Sloan Tribal Commission for Comprehensive Resolution
Establishment of Commission
is established a commission to be known as the
Commission for Comprehensive Resolution.
The Commission shall be composed of 7 members, of whom—
1 shall be the Chairperson of the Commission;
at least 1 shall have expertise in the field of Indian law and policy;
at least 1 shall have expertise in the operation and history of Federal water projects;
1 shall have expertise in the area of environmental justice;
1 shall be an economist; and
at least 1 shall be an authority in cultural preservation.
Of the 7 members selected for the Commission, at least 3 shall be members of federally recognized Indian tribes.
Selection of Commission
The Chairperson and Vice Chairperson of the Committee on Indian Affairs of the Senate and the Chairperson and Ranking Member of the Committee on Natural Resources of the House of Representatives shall—
select the 7 Commission members; and
appoint 1 of the members to serve as Chairperson of the Commission.
The affected Indian tribes may make recommendations to the Chairperson of the Committee on Indian Affairs of the Senate and the Chairperson of the Committee on Natural Resources of the House of Representatives regarding members of the Commission.
Deadline for appointment
All members of the Commission shall be appointed not later than 60 days after the date of enactment of this Act.
A member shall be appointed for the life of the Commission.
A vacancy on the Commission—
shall not affect the powers of the Commission; and
shall be filled in the same manner as the original appointment was made.
Not later than 30 days after the date on which all members of the Commission have been appointed, the Commission shall hold the initial meeting of the Commission.
The Commission shall meet at the call of the Chairperson.
A majority of the members of the Commission shall constitute a quorum, but a lesser number of members may hold hearings.
Nonapplicability of FACA
The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Commission.
In carrying out this section, the Commission shall consult with the affected Indian tribes.
The Commission shall conduct a study of—
with respect to the period beginning on the date of commencement of the Pick-Sloan Program and ending on the date on which the study is initiated—
the impacts on the affected Indian tribes, directly or indirectly, caused by the Pick-Sloan Program; and
measures implemented by the Federal Government to attempt to address those impacts;
other measures that have been proposed to address the impacts on the affected Indian tribes caused by the Pick-Sloan Program;
the results of any other studies regarding those impacts and potential solutions to the impacts, including any studies conducted by the Joint Tribal Advisory Committee relating to the Pick-Sloan Program; and
comparisons involving other situations in which Federal hydroelectric projects or federally licensed hydroelectric projects have resulted in the taking or occupation of Indian land and the compensation, or other measures, Indian tribes have been or are being provided in those situations.
In carrying out paragraph (2), the Commission shall hold at least 3 hearings to receive information from Federal agencies, Indian tribes, and other interested parties regarding the resolution of Pick-Sloan Program impacts.
A hearing under this paragraph shall be open to the public.
For each hearing under this paragraph, the Commission shall—
compile a record consisting of transcripts, written testimony, studies, and other information presented at the hearing; and
include the record in the report of the Commission required under paragraph (5), as an appendix in electronic format.
Based on the results of the study under paragraph (2), and hearings under paragraph (3), the Commission shall develop a proposal to comprehensively resolve the impacts to the affected Indian tribes resulting from the Pick-Sloan Program.
The proposal under subparagraph (A) shall include—
a comprehensive proposal for a program to provide full and final compensation to the affected Indian tribes;
a description of the measures referred to in paragraph (2) that—
have not been implemented;
could be implemented; or
should be implemented in a more effective manner;
relevant measures that could be accomplished administratively;
relevant measures that would require legislation to be implemented; and
any other measures necessary to comprehensively resolve the impacts of the Pick-Sloan Program on the affected Indian tribes.
Subject to subparagraph (B), not later than 18 months after the date on which the first meeting of the Commission takes place, the Commission shall submit to the President and Congress a report that contains—
a detailed statement of the study findings and conclusions of the Commission; and
the proposal of the Commission for such legislation and administrative actions as the Commission considers to be appropriate to resolve the impacts on the affected Indian tribes caused by the Pick-Sloan Program.
The deadline described in subparagraph (A) may be extended for a period of not more than 180 days if the Commission submits to the Committee on Indian Affairs of the Senate and the Committee on Natural Resources of the House of Representatives a request for the extension that—
is received by the Committees before the deadline described in subparagraph (A); and
includes a description of the reasons why the extension is needed.
The Commission shall maintain a website for the period beginning on the date on which the first meeting of the Commission takes place and ending on the date that is 180 days after the date of termination of the Commission.
The Commission shall use the website—
to describe the activities of the Commission;
to provide access to information studied by the Commission;
to provide notice of, and make available all information presented at, hearings of the Commission; and
to post the report (including all appendices to that report) of the Commission required under paragraph (5).
Archiving of website content
At the time at which the website of the Commission is terminated, all content on the website shall be—
collected on compact disk, digital video disk, or other appropriate digital media; and
included in the report to be submitted under paragraph (5).
The Commission may hold such hearings, meet and act at such times and places, take such testimony, and receive such evidence as the Commission considers to be advisable to carry out this Act.
Information from Federal agencies
The Commission may secure directly from a Federal agency such information as the Commission considers to be necessary to carry out this Act.
Provision of information
On request of the Chairperson of the Commission, the head of an applicable Federal agency shall provide the information to the Commission.
The Commission may use the United States mails in the same manner and under the same conditions as other agencies of the Federal Government.
The Commission may accept, use, and dispose of gifts or donations of services or property.
Commission personnel matters
Compensation of members
Each member of the Commission shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which the member is engaged in the performance of the duties of the Commission.
Each member of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for an employee of an agency under subchapter I of chapter 57 of title 5, United States Code, while away from the home or regular place of business of the member in the performance of the duties of the Commission.
The Chairperson of the Commission may, without regard to the civil service laws (including regulations), appoint and terminate an executive director and such other additional personnel as are necessary to enable the Commission to perform the duties of the Commission.
Confirmation of executive director
The employment of an executive director shall be subject to confirmation by the Commission.
Except as provided in subparagraph (B), the Chairperson of the Commission may fix the compensation of the executive director and other personnel without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay rates.
Maximum rate of pay
The rate of pay for the executive director and other personnel shall not exceed the rate payable for level IV of the Executive Schedule under section 5316 of title 5, United States Code.
Detail of Federal Government employees
An employee of the Federal Government may be detailed to serve as staff for the Commission without reimbursement.
Civil service status
The detail of the employee shall be without interruption or loss of civil service status or privilege.
Human resources support
The Commission may request the Secretary of Defense to provide, and the Secretary of Defense shall provide, through human resource departments under the jurisdiction of the Secretary of Defense, on a reimbursable basis, operational support for activities of the Commission.
The Commission may, to such extent and using such amounts as are provided in appropriation Acts, enter into contracts to enable the Commission to discharge the duties of the Commission under this Act.
Notwithstanding section 1342 of title 31, United States Code, the Commission may accept and use such voluntary and uncompensated services as the Commission determines to be necessary.
Procurement of temporary and intermittent services
The Chairperson of the Commission may procure temporary and intermittent services in accordance with section 3109(b) of title 5, United States Code, at rates for individuals that do not exceed the daily equivalent of the annual rate of basic pay prescribed for level V of the Executive Schedule under section 5316 of that title.
Termination of Commission
The Commission shall terminate 90 days after the date on which the Commission submits the report of the Commission under subsection (b)(5).
Authorization of appropriations
There are authorized to be appropriated such sums as are necessary to carry out this Act for each of fiscal years 2010 and 2011, to remain available until expended.
Transfer of funds in lieu of appropriation
For any fiscal year, or at any time during a fiscal year, in which insufficient amounts are available to fund activities of the Commission, the Secretary of the Interior or the Secretary of the Army may transfer to the Commission such unobligated amounts as are available to the Secretary of the Interior or the Secretary of the Army for use by the Commission in carrying out this Act.
Amounts transferred to the Commission under paragraph (1) shall remain available until the earlier of—
the date of termination of the Commission; or
the date on which amounts that are sufficient to carry out this Act are made available.
Nothing in this Act diminishes, changes, or otherwise affects—
the water rights of the affected Indian tribes;
any other right (including treaty rights) of the affected Indian tribes;
the status of Indian reservation land or the boundaries of any reservation of an Indian tribe; or
any Congressional authorization of appropriations for the benefit of the affected Indian tribes.