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                                                      Calendar No. 397
115th Congress       }                                  {       Report
                                 SENATE
 2d Session          }                                  {      115-240

======================================================================

 
 TO PROVIDE FOR EQUITABLE COMPENSATION TO THE SPOKANE TRIBE OF INDIANS 
     OF THE SPOKANE RESERVATION FOR THE USE OF TRIBAL LAND FOR THE 
    PRODUCTION OF HYDROPOWER BY THE GRAND COULEE DAM, AND FOR OTHER 
                                PURPOSES

                                _______
                                

                  May 7, 2018.--Ordered to be printed

                                _______
                                

           Mr. Hoeven, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 995]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 995) to provide for equitable compensation to the 
Spokane Tribe of Indians of the Spokane Reservation for the use 
of tribal land for the production of hydropower by the Grand 
Coulee Dam, and for other purposes, having considered the same, 
reports favorably thereon with amendments and recommends the 
bill, as amended, do pass.

                                PURPOSE

    Specifically, S. 995 would provide the Spokane Tribe with 
annual payments for the past and continued use of tribal lands, 
which are now submerged under the reservoir created by the 
Grand Coulee Dam. The annual payments are to be based on 
revenues from the sale of electric power from the Grand Coulee 
Dam and the transmission of the power by the Bonneville Power 
Administration.

                               BACKGROUND

    From 1927 to 1931, the United States Army Corps of 
Engineers (Corps), at the direction of Congress, investigated 
the Columbia River and its tributaries to identify sites where 
dams could be constructed to produce hydroelectric power at low 
cost.\1\ During this time, the Corps made a number of site 
recommendations for dam construction, including the site where 
the Grand Coulee Dam is now located. The site chosen for the 
Grand Coulee Dam consisted, in part, of lands held in trust by 
the Federal government for the benefit of the Spokane Tribe and 
the Confederated Tribes of the Colville Reservation (Colville 
Tribes).
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    \1\Federal Power Act of 1920 Sec. 4, 16 U.S.C. Sec. 797 (1920).
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    The Federal Power Act and its effect on Indian tribes. The 
Corps recommended local governments or private utilities, as a 
licensee under the authority of the Federal Power Act,\2\ 
undertake construction of the Grand Coulee Dam. When tribal 
lands are involved, licensing procedures require the licensee 
to pay an annual payment to Indian tribes who have jurisdiction 
over the tribal lands.\3\ In 1933, the Federal Power Commission 
issued a preliminary permit to the Columbia Basin Commission to 
construct a dam at the recommended Grand Coulee site. During 
the mid-1930s, the Federal government federalized the Grand 
Coulee Dam project and began construction of the dam. The 
Federal government is not subject to the Federal Power Act and 
is not obligated to make annual payments to Indian tribes when 
tribal lands are used for projects such as the Grand Coulee Dam 
project.\4\
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    \2\ Id.
    \3\Federal Power Act of 1920 Sec. 10, 16 U.S.C. Sec. 803(e) (1920).
    \4\ Id.
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    Compensation to the Tribes. The Federal government's 
decision to federalize the Grand Coulee Dam project affected 
the Spokane Tribe and Colville Tribes' interests. The Federal 
government acknowledged these effects and determined that both 
tribes should receive a share of revenue from the disposition 
of power produced by the Grand Coulee Dam. To that end, the Act 
of June 29, 1940, directed the Secretary of the Interior to 
provide compensation to the Spokane Tribe and Colville Tribes 
for the use of tribal lands in an amount determined by the 
Secretary to be just and equitable.\5\ Interior paid $4,700 to 
the Spokane Tribe and $63,000 to the Colville Tribes.
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    \5\Act of June 29, 1940 Sec. 2, 16 U.S.C. Sec. 835d (1940).
---------------------------------------------------------------------------
    The Indian Claims Commission. Prior to passage of the 
Indian Claims Commission Act in 1946, there was no forum for an 
Indian tribe's claim for damages against the United States. 
Instead, these types of claims would proceed on a case-by-case 
basis, with each tribe seeking an individual authorization from 
Congress to pursue litigation against the United States. 
Dissatisfied with this ad hoc approach, Congress enacted the 
Indian Claims Commission Act to establish the Indian Claims 
Commission (ICC), a forum where Indian tribes could pursue 
historic claims against the United States, so long as those 
claims accrued prior to the Act's passage (August 13, 1946). 
Under the Act, Congress granted only a five-year statute of 
limitations for tribes to file claims with the ICC.
    While the ICC's jurisdiction over these claims was broad--
covering everything from claims of a breach of fair and 
honorable dealings to violations of the Constitution--the 
remedies available to tribes were not. Rather than vest the ICC 
with the authority to provide equitable relief, Congress 
instead allowed for monetary damages only.
    Both the Spokane Tribe and the Colville Tribes filed 
separate, unrelated land claims prior to the August 13, 1951, 
deadline. During the five-year period to file claims with the 
ICC, neither the Spokane nor the Colville Tribes filed claims 
for compensation for the use of tribal lands to construct the 
Grand Coulee Dam.
    The ICC fully adjudicated the Spokane Tribes' land claims 
by 1967. By settling the land claims against the Federal 
government, the Spokane Tribe had no further mechanism to 
litigate claims over the Grand Coulee Dam project in Federal 
court due, in part, to the 5-year statute of limitations set in 
the Indian Claims Commission Act.
    The Colville Settlement Agreement. In 1976, against 
objection by the United States because of the cessation of the 
ICC, the Colville Tribes successfully amended their ICC land 
claim to add the Grand Coulee Dam project, creating an 
opportunity for the tribe to seek compensation.
    In 1994, to halt litigation pending under the Indian Claims 
Commission Act, Congress ratified the Colville Settlement 
Agreement (Agreement) requiring a payment of $53 million to the 
Colville Tribes for the federal government's past use of tribal 
lands.\6\ Under the Agreement, the United States also agreed, 
in exchange for the continued use of Colville tribal lands, to 
provide the Colville Tribes annual payments of $15,250,000, 
adjusted annually based on revenues from the sale of electric 
power from the Grand Coulee Dam project and the transmission of 
that power by the Bonneville Power Administration.\7\ Unlike 
the Colville Tribes, the United States did not compensate the 
Spokane Tribes under the Agreement for the continued use of 
their tribal lands.
---------------------------------------------------------------------------
    \6\Act of August 13, 1946, omitted 25 U.S.C. Sec. 70 et seq. in 
that the Indian Claims Commissions was terminated on September 30, 1978 
by Pub. L. No. 94-465 (1976).
    \7\Confederated Tribes of the Colville Reservation Grand Coulee Dam 
Settlement Act, Pub. L. No. 103-436, 108 Stat. 4577 (1994).
---------------------------------------------------------------------------

                          NEED FOR LEGISLATION

    The bill, S. 995, would provide fair and equitable 
compensation to the Spokane Tribe by requiring annual payments 
from the Bonneville Power Administration to the Spokane Tribe 
for past and continued use of tribal lands in generating 
hydropower from the Grand Coulee Dam in the state of 
Washington. With no further opportunity to litigate the Spokane 
Tribe's lands claims in federal court, legislation is 
necessary.

                          LEGISLATIVE HISTORY

    On May 1, 2017, Senator Cantwell and Senator Murray 
introduced S. 995, a bill to provide for equitable compensation 
to the Spokane Tribe of Indian of the Spokane Reservation for 
the use of tribal land, and for the production of hydropower by 
the Grand Coulee Dam, and for other purposes (also known as the 
Spokane Tribe of Indians of the Spokane Reservation Equitable 
Compensation Act). The Committee did not hold a legislative 
hearing on this bill. A House companion bill has not been 
introduced at this time.
    On February 14, 2018, by voice vote, the Committee ordered 
the bill, as amended, to be reported favorably to the Senate. 
The amendment, offered by Senator Cantwell, removed Section 5, 
the ``Spokane Tribe of Indians Recovery Trust Fund'' of the 
bill and included conforming, technical amendments. The 
amendment eliminated the $53 million upfront payment but 
retained the provisions for annual payments.

Prior Congresses

    114th Congress. On March 17, 2016, Senator Cantwell and 
Senator Murray introduced S. 2739. The Committee did not hold a 
legislative hearing on this bill. On May 11, 2016, the 
Committee held a duly called business meeting to consider S. 
2739. The Committee ordered the bill to be reported favorably 
without amendment.
    113th Congress. On August 1, 2013, Senators Cantwell and 
Murray introduced S. 1448, the Spokane Tribe of Indians of the 
Spokane Reservation Equitable Compensation Act. Senator Begich 
was added as a cosponsor on February 4, 2014. The Committee 
held a legislative hearing on September 10, 2013. The Committee 
held a duly called business meeting on January 29, 2014 to 
consider S. 1448. The Committee ordered the bill to be reported 
favorably with an amendment in the nature of a substitute. No 
further action was taken on the bill.\8\ There was no House 
companion bill.
---------------------------------------------------------------------------
    \8\S. Rep. No. 113-202 (2014).
---------------------------------------------------------------------------
    112th Congress. On July 11, 2011, Senators Cantwell and 
Murray introduced S. 1345, the Spokane Tribe of Indians of the 
Spokane Reservation Grand Coulee Dam Equitable Compensation 
Settlement Act. The Committee held a legislative hearing on 
October 20, 2011. The Committee held a duly called business 
meeting on September 13, 2012 to consider S. 1345. The 
Committee ordered the bill to be reported favorably with an 
amendment in the nature of a substitute. No further action was 
taken on the bill, S. 1345. There was no House companion bill.
    111th Congress. On June 25, 2009, Senators Cantwell and 
Murray introduced S. 1388, the Spokane Tribe of Indians of the 
Spokane Reservation Grand Coulee Dam Equitable Compensation 
Settlement Act. Senator Inouye was added as a cosponsor on July 
28, 2009. The Committee held a duly called business meeting on 
September 10, 2009 to consider S. 1388. The bill, S. 1388, was 
ordered to be reported favorably without amendment. No further 
action was taken on the bill, S. 1388.
    On June 26, 2009, Representatives Inslee and Dicks 
introduced a House companion bill, H.R. 3097, the Spokane Tribe 
of Indians of the Spokane Reservation Grand Coulee Dam 
Equitable Compensation Settlement Act. Representative Kildee 
was added as a cosponsor on October 7, 2009. Representative 
Richardson was added as a cosponsor on February 3, 2010. The 
House referred the bill, H.R. 3097, to the Committee on Natural 
Resources of the House of Representatives where no further 
action was taken on the bill.
    110th Congress. On December 17, 2007, Senators Cantwell and 
Murray introduced S. 2494, the Spokane Tribe of Indians of the 
Spokane Reservation Grand Coulee Dam Equitable Compensation 
Settlement Act. Senator Inouye was added as a cosponsor on 
January 24, 2008. The Committee held a legislative hearing on 
May 15, 2008. The Committee held a duly called business meeting 
on June 19, 2008 to consider S. 2494. The Committee ordered the 
bill, S. 2494, to be reported favorably without amendment.\9\ 
No further action was taken on the bill.
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    \9\S. Rep. No. 110-450 (2008).
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    On July 17, 2008, Representatives Inslee and Dicks House 
introduced a House companion bill, H.R. 6547, the Spokane Tribe 
of Indians of the Spokane Reservation Grand Coulee Dam 
Equitable Compensation Settlement Act. Representative Kildee 
was added as a cosponsor on July 29, 2008. The House referred 
the bill to the Committee on Natural Resources of the House of 
Representatives where no further action was taken on the bill.
    109th Congress. On April 21, 2005, Senator Cantwell with 
Senators Murray, Inouye, and McCain introduced S. 881, the 
Spokane Tribe of Indians of the Spokane Reservation Grand 
Coulee Dam Equitable Compensation Settlement Act. Senator 
Dorgan was added as a cosponsor on May 18, 2005. Senator McCain 
withdrew as a cosponsor on April 26, 2005. The Committee did 
not hold a legislative hearing on the bill. On June 29, 2005, 
the Committee ordered S. 881 to be reported favorably without 
amendment. On December 8, 2005, the bill was placed on the 
Senate Legislative Calendar under general orders. No further 
action was taken on the bill.
    On April 21, 2005, Representatives McMorris Rodgers, Dicks 
and Kildee introduced a companion bill, H.R. 1797, the Spokane 
Tribe of Indians of the Spokane Reservation Grand Coulee Dam 
Equitable Compensation Settlement Act. Representative Inslee 
was added as a cosponsor on May 11, 2005. The House referred 
the bill, H.R. 1797, to the Subcommittee on Water and Power of 
the Committee on Resources of the House of Representatives. On 
May 18, 2005, the Subcommittee on Water and Power discharged 
H.R. 1797 and by unanimous consent ordered the bill to be 
reported. On June 23, 2005, the Committee on Resources reported 
H.R. 1797 where the bill was placed on the Union Calendar. On 
July 25, 2005, Representative McMorris Rodgers moved to suspend 
the rules and pass the bill, when the House proceeded with 
forty minutes of debate with the motion to suspend the rules 
and pass the bill was agreed to by voice vote. On July 26, 
2005, the Senate received H.R. 1797. On July 27, 2005, the bill 
was read a second time and placed on the Senate Legislative 
Calendar under general orders. No further action was taken on 
the bill, H.R. 1797.
    108th Congress. On July 22, 2003, Senators Cantwell, Murray 
and Inouye introduced S. 1438, the Spokane Tribe of Indians of 
the Spokane Reservation Grand Coulee Dam Equitable Compensation 
Settlement Act. The Committee held a legislative hearing on 
October 2, 2003. On September 22, 2004, the Committee held a 
duly called business meeting to consider S. 1438 and ordered 
the bill to be reported favorably with an amendment in the 
nature of a substitute. On October 8, 2004, Senator Campbell 
reported the bill with an amendment in the nature of a 
substitute and an amendment to the title, where the bill was 
placed on Senate Legislative Calendar under general orders.\10\ 
On November 19, 2004, the Senate passed S. 1438 with an 
amendment to the title by unanimous consent. The House received 
the bill, S. 1438, on November 20, 2004, and referred to 
Committee on Resources of the House of Representatives. On 
December 1, 2004, the House subsequently referred the bill to 
the Subcommittee on Water and Power of the Committee on 
Resources of the House of Representatives. The House took no 
further action on the bill, S. 1438.
---------------------------------------------------------------------------
    \10\S. Rep. No. 108-397 (2004).
---------------------------------------------------------------------------
    On April 10, 2003, Representatives Nethercutt and Dicks 
introduced a House companion bill, H.R. 1753, the Spokane Tribe 
of Indians of the Spokane Reservation Grand Coulee Dam 
Equitable Compensation Settlement Act. Representative Kildee 
was added as a cosponsor on July 17, 2003. The House referred 
the bill, H.R. 1753, to the Subcommittee on Water and Power of 
the Committee on Resources of the House of Representatives. On 
October 2, 2003, the Subcommittee on Water and Power held a 
legislative hearing on the bill. The House took no further 
action on the bill.
    107th Congress. On May 23, 2002, Senators Murray, Cantwell 
and Inouye introduced S. 2567, Spokane Tribe of Indians of the 
Spokane Reservation Grand Coulee Dam Equitable
    Compensation Settlement Act. The Senate referred the bill, 
S. 2567, to the Committee. The Senate took no further action on 
the bill.
    On June 4, 2002, Representative Nethercutt introduced a 
House companion bill, H.R. 4859, the Spokane Tribe of Indians 
of the Spokane Reservation Grand Coulee Dam Equitable 
Compensation Settlement Act. The House referred the bill, H.R. 
4859, to the Committee on Resources of the House of 
Representatives. The House took no further action on the bill.
    106th Congress. On August 5, 1999, Senators Murray and 
Inouye introduced S. 1525, the Spokane Tribe of Indians of the 
Spokane Reservation Grand Coulee Dam Equitable Compensation 
Settlement Act. The Senate referred the bill, S. 1525, to the 
Committee. The Senate took no further action on the bill.
    On July 30, 1999, Representative Nethercutt introduced a 
House companion bill, H.R. 2664, the Spokane Tribe of Indians 
of the Spokane Reservation Grand Coulee Dam Equitable 
Compensation Settlement Act. Representative Dicks was added as 
a cosponsor on August 5, 1999. The House referred the bill, 
H.R. 2664, to the Committee on Resources of the House of 
Representatives. The House took no further action on the bill.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    The Act may be cited as the ``Spokane Tribe of Indians of 
the Spokane Reservation Equitable Compensation Act.''

Section 2. Findings

    Section 2 states the findings of Congress that support the 
need for the Act.

Section 3. Purpose

    Section 3 states the purpose of the Act is to provide fair 
and equitable compensation to the Spokane Tribe for use of its 
lands for the generation of hydropower by the Grand Coulee Dam.

Section 4. Definitions

    Section 4 defines the key terms used throughout the Act.

Section 5. Payments by Administrator

    Section 5 provides for annual payments to the Spokane Tribe 
for continued use of tribal lands, based on the revenue from 
the generation of hydroelectric power by the Grand Coulee Dam.

Section 6. Treatment after amounts are paid

    Section 6 describes how the Tribe may use funds provided 
under section 5 of the Act, and states that there is no trust 
responsibility of the Secretary of the Interior or the 
Bonneville Power Administrator for the funds once they are paid 
to the Tribe.

Section 7. Repayment credit

    Section 7 allows the Administrator of the Bonneville Power 
Administration a credit against future interest payments owed 
to the Secretary of the Treasury.

Section 8. Extinguishment of claims

    Section 8 states that upon the deposit of amounts in the 
Fund described in Section 5(a), all monetary claims the Spokane 
Tribe has or may have regarding the Grand Coulee Dam against 
the United States will be extinguished.

Section 9. Administration

    Section 9 states that the Act is not binding or 
establishing precedent for other power administrations.

                   COST AND BUDGETARY CONSIDERATIONS

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 19, 2018.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 995 the Spokane 
Tribe of Indians of the Spokane Reservation Equitable 
Compensation Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Kathleen 
Gramp.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 995--Spokane Tribe of Indians of the Spokane Reservation Equitable 
        Compensation Act

    S. 995 would compensate the Spokane Tribe of Indians for 
the use of tribal lands in the construction of the Grand Coulee 
Dam in Washington State. Beginning in 2020, the bill would 
require the federal Bonneville Power Administration (BPA) to 
make annual payments to the tribe out of receipts from the sale 
of electricity. Starting in 2030, BPA could offset a portion of 
those payments by paying less interest to the Department of the 
Treasury.
    Enacting S. 995 would affect direct spending; therefore, 
pay-as-you-go procedures apply. CBO estimates that the net 
costs would be insignificant over the 2019-2028 period but, 
starting in 2030, would rise to $2.7 million a year. Enacting 
the bill would not affect revenues or spending subject to 
appropriation.
    CBO estimates that enacting S. 995 would not increase net 
direct spending by more than $2.5 billion or on-budget deficits 
by more than $5 billion in any of the four consecutive 10-year 
periods beginning in 2028.
    S. 995 would impose an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA) by extinguishing the 
monetary claims of the Spokane Tribe of Indians against the 
United States for hydropower revenues and for past and 
continued use of their land. CBO estimates that the cost of the 
mandate would not exceed the annual threshold established in 
the act ($78 million in 2017, adjusted annually for inflation).
    The bill contains no private-sector mandates as defined in 
UMRA.
    Estimated cost to the Federal Government: The costs of this 
legislation fall within budget function 270 (energy). Because 
BPA is a federal entity, its receipts and expenditures are 
recorded in the federal budget.
    Basis of estimate: Beginning in 2020 and extending through 
2029, S. 995 would require BPA to make annual payments to the 
Spokane Tribe of Indians equal to 25 percent of the annual 
payment that BPA makes under current law to the Confederated 
Tribes of the Colville Reservation. Beginning in 2030, the 
annual payment to the Spokane Tribe would increase to 32 
percent of the amount paid to the Confederated Tribes.
    CBO estimates that those payments would total about $6 
million annually until 2029 and then increase to $8 million a 
year, thereafter. Under the bill, those payments would continue 
as long as electricity is generated by the Grand Coulee Dam. 
CBO estimates that enacting S. 995 would have no significant 
net cost over the 2019-2028 period.
    Because BPA's operating costs are driven primarily by 
unpredictable market and environmental conditions, CBO expects 
that the agency could not offset the costs of the annual 
payments to the tribe by reducing operating expenses. Instead, 
CBO anticipates, BPA would raise its rates to cover those costs 
and, as a result, by 2020, its payments to the tribe would 
generally be offset by an equivalent increase in receipts from 
its electricity customers. CBO thus estimates that there would 
be no net significant effect on the budget through 2029.
    Starting in 2030, S. 995 would reduce by $2.7 million the 
amount that BPA makes in interest payments to the Treasury each 
year. CBO anticipates that BPA would reduce rates to mirror 
that cost reduction and thus create a corresponding drop in 
BPA's receipts from electricity sales. Because receipts from 
those sales offset direct spending, starting in 2030, the bill 
would indefinitely increase annually direct spending by $2.7 
million, CBO estimates.
    Pay-As-You-Go considerations: None.
    Mandates: S. 955 would impose an intergovernmental mandate 
as defined in UMRA by extinguishing the monetary claims of the 
Spokane Tribe of Indians against the United States for 
hydropower revenues and for past and continued use of their 
land. Eliminating an existing right is a mandate because the 
right to seek redress and recover damages beyond that what is 
provided in the bill would be lost. Using information from the 
tribe, CBO assumes it is unlikely that the tribe would, in the 
absence of the provision extinguishing claims, pursue such 
claims if the bill were enacted. Therefore, CBO estimates that 
the cost of the mandate would not exceed the annual threshold 
established in UMRA ($78 million in 2017, adjusted annually for 
inflation). Overall, the tribe would benefit from authorized 
payments from BPA.
    The bill contains no private-sector mandates as defined in 
UMRA.
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting S. 995 would not increase net direct 
spending by more than $2.5 billion or on-budget deficits by 
more than $5 billion in any of the four consecutive 10-year 
periods beginning in 2028.
    Estimate prepared by: Federal Costs: Kathleen Gramp; 
Mandates: Rachel Austin.
    Estimate approved by: H. Samuel Papenfuss; Deputy Assistant 
Director for Budget Analysis.

                      REGULATORY IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill to 
evaluate the regulatory paperwork impact that would be incurred 
in implementing the legislation. The Committee has concluded 
that enactment of S.995 will create only de minimis regulatory 
or paperwork burdens.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no official communications from 
the Administration on the provisions of this bill.

                        CHANGES IN EXISTING LAW

    In compliance with the Standing Rules of the Senate and the 
Committee Rules, subsection 12 of rule XXVI of the Standing 
Rules of the Senate is waived. In the opinion of the Committee, 
it is necessary to dispense with subsection 12 of rule XXVI of 
the Standing Rules of the Senate in order to expedite the 
business of the Senate.

                                  [all]