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                                                    Calendar No. 34

116th Congress}                                            { Report
                                 SENATE
 1st Session  }                                            { 116-4

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

                                _______
                                

                 March 7, 2019.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 216]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 216) 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, reports favorably thereon 
without amendment, and recommends that the bill do pass.

                                PURPOSE

    The bill, S. 216, would provide fair and equitable 
compensation to the Spokane Tribe of Indians of the Spokane 
Reservation (Spokane Tribe) for past and continued use of their 
tribal lands by the Federal government for the production of 
hydroelectric power generation by the Grand Coulee Dam in the 
state of Washington.
    The bill would provide the Spokane Tribe with annual 
payments for the continued use of tribal lands, based on the 
sale of hydroelectric power generated by the Grand Coulee Dam.

                               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 recommended a number of 
sites where dams could be constructed, 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 the construction of the Grand Coulee Dam be 
undertaken by local governments or private utilities, as a 
licensee, under the authority of the Federal Power Act.\2\ 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\
---------------------------------------------------------------------------
    \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 Spokane Tribe and Colville 
Tribes' interests were affected when the Federal government 
federalized the Grand Coulee Dam project. The Federal 
government acknowledged the effects and determined that both 
tribes should receive a share of revenue from the disposition 
of power produced by the Grand Coulee Dam. The Act of June 29, 
1940 directed the Secretary of the Interior (Secretary) 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\ The Secretary paid to 
the Spokane Tribe, $4,700, and to the Colville Tribes, $63,000.
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    \5\Act of June 29, 1940 Sec. 2, 16 U.S.C. Sec. 835d (1940).
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    The Indian Claims Commission. Prior to Congress enacting 
the Indian Claims Commission Act in 1946, Indian tribes needed 
Congressional action to pursue claims against the Federal 
government. The purpose of the 1946 Act was to establish a 
forum, the Indian Claims Commission (ICC), for Indian tribes to 
pursue historic claims, dating before August 13, 1946, against 
the Federal government. The ICC did not have authority to grant 
or restore lands to Indian tribes and was only able to award 
monetary compensation. Under the 1946 Act, Indian tribes had a 
5-year statute of limitations to file claims with the ICC.
    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.
    Those unrelated land claims of the Spokane Tribe before the 
ICC had all been fully adjudicated 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 were successful in amending their ICC 
land claim to add the Grand Coulee Dam project, creating an 
opportunity for the tribe to seek compensation and leading to 
the 1994 Colville Settlement Agreement.
    In 1994, to halt this 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 past use of tribal 
lands.\6\ Additionally under the Agreement, the Colville Tribes 
are provided 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, for the continued use of 
Colville tribal lands.\7\ Unlike the Colville Tribes, the 
Spokane Tribes were not compensated 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 Spokane Tribe has been affected by the construction and 
operation of the Grand Coulee Dam. The bill, S. 216, would 
provide fair and equitable compensation to the Spokane Tribe by 
requiring payments from the Federal government 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 lands 
claims of the Spokane Tribe in Federal court, legislation is 
necessary to provide fair and equitable compensation.

                          LEGISLATIVE HISTORY

    On January 24, 2019, Senator Cantwell with Senator Murray 
introduced the Spokane Tribe of Indians of the Spokane 
Reservation Equitable Compensation Act. On January 29, 2019, by 
voice vote, the Senate Committee on Indian Affairs ordered the 
bill to be reported favorably to the Senate. A companion bill 
has not been introduced in the House of Representatives.
    115th Congress. On May 1, 2017, Senators Cantwell and 
Murray introduced S. 995, a bill to provide for equitable 
compensation to the Spokane Tribe of Indians 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). A legislative hearing 
was not held on this bill. A companion bill was not introduced 
in the House of Representatives.
    On February 14, 2018, by voice vote, the Senate Committee 
on Indian Affairs ordered the bill, as amended, to be reported 
favorably to the Senate. The amendment, offered by Senator 
Cantwell, removed 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. On 
October 4, 2018, the Senate passed the bill by voice vote. It 
was then referred to the Committee on Natural Resources in the 
House of Representatives. No further action was taken.
    114th Congress. On March 17, 2016, Senators Cantwell and 
Murray introduced S. 2739, a legislative hearing was not held 
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. No further 
action was taken.
    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 companion 
bill in the House of Representatives.
---------------------------------------------------------------------------
    \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. A legislative hearing was held 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 companion bill in the House of 
Representatives.
    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.
    The companion bill, H.R. 3097, the Spokane Tribe of Indians 
of the Spokane Reservation Grand Coulee Dam Equitable 
Compensation Settlement Act, was introduced in the House of 
Representatives by Representatives Inslee and Dicks on June 26, 
2009. Representative Kildee was added as a cosponsor on October 
7, 2009. Representative Richardson was added as a cosponsor on 
February 3, 2010. The bill, H.R. 3097, was referred 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 bill, S. 2494, was 
ordered 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).
---------------------------------------------------------------------------
    The companion bill, H.R. 6547, the Spokane Tribe of Indians 
of the Spokane Reservation Grand Coulee Dam Equitable 
Compensation Settlement Act, was introduced in the House of 
Representatives by Representatives Inslee and Dicks on July 17, 
2008. Representative Kildee was added as a cosponsor on July 
29, 2008. The bill, H.R. 6547, was referred 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 bill, S. 881, 
was referred to the Committee. No legislative hearing was held 
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, S. 
881.
    The companion bill, H.R. 1797, the Spokane Tribe of Indians 
of the Spokane Reservation Grand Coulee Dam Equitable 
Compensation Settlement Act, was introduced in the House of 
Representatives by Representatives McMorris-Rodgers, Dicks, and 
Kildee on April 21, 2005. Representative Inslee was added as a 
cosponsor on May 11, 2005. The bill, H.R. 1797, was referred 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 Rodgers moved to suspend the rules and pass the 
bill, when the House of Representatives proceeded with forty 
minutes of debate and then the motion to suspend the rules and 
pass the bill was agreed to by voice vote. On July 26, 2005, 
H.R. 1797 was received in the Senate. 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, the Committee 
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\
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    \10\S. Rep. No. 108-397 (2004).
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    On November 19, 2004, the Senate passed S. 1438 with an 
amendment and an amendment to the title by unanimous consent. 
The House of Representatives received the bill, S. 1438, on 
November 20, 2004. The bill, S. 1438, was referred to Committee 
on Resources of the House of Representatives. On December 1, 
2004, the bill, S. 1438, was referred to the Subcommittee on 
Water and Power of the Committee on Resources of the House of 
Representatives. No further action was taken on the bill, S. 
1438.
    The companion bill, H.R. 1753, the Spokane Tribe of Indians 
of the Spokane Reservation Grand Coulee Dam Equitable 
Compensation Settlement Act, was introduced in the House of 
Representatives by Representatives Nethercutt and Dicks on 
April 10, 2003. Representative Kildee was added as a cosponsor 
on July 17, 2003. The bill, H.R. 1753, was referred 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. No further action was taken 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 bill, S. 2567, was referred to the 
Committee. No further action was taken on the bill, S. 2567.
    The companion bill, H.R. 4859, the Spokane Tribe of Indians 
of the Spokane Reservation Grand Coulee Dam Equitable 
Compensation Settlement Act, was introduced in the House of 
Representatives by Representative Nethercutt on June 4, 2002. 
The bill, H.R. 4859, was referred to the Committee on Resources 
of the House of Representatives. No further action was taken 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 bill, S. 1525, was referred to the 
Committee and no further action was taken on the bill.
    The companion bill, H.R. 2664, the Spokane Tribe of Indians 
of the Spokane Reservation Grand Coulee Dam Equitable 
Compensation Settlement Act, was introduced in the House of 
Representatives by Representative Nethercutt on July 30, 1999. 
Representative Dicks was added as a cosponsor on August 5, 
1999. The bill, H.R. 2664, was referred to the Committee on 
Resources of the House of Representatives. No further action 
was taken on the bill, H.R. 2664.

                 SECTION-BY-SECTION ANALYSIS FOR S. 216

Section 1. Short title

    This section sets forth the short title as the ``Spokane 
Tribe of Indians of the Spokane Reservation Equitable 
Compensation Act''.

Section 2. Findings

    This section sets forth the findings of Congress that 
support the need for the Act.

Section 3. Purpose

    This section 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

    This section defines the key terms used throughout the Act.

Section 5. Payments by Administrator

    This section 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

    This section describes how the Spokane Tribe may use funds 
provided under sections 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

    This section 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

    This section states that upon the deposit of amounts in the 
Fund described in Section 5, 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

    This section 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, February 14, 2019.
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. 216, 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. 216--Spokane Tribe of Indians of the Spokane Reservation Equitable 
        Compensation Act

    S. 216 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 2022, 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 Treasury.
    Payments to the tribe would total about $6 million annually 
through 2029, CBO estimates. However, the net effect on direct 
spending would not be significant because CBO anticipates that 
BPA would raise its electricity rates to cover those costs. 
Thus, payments to the tribe would generally be offset by an 
equivalent increase in receipts from BPA's electricity 
customers, which are recorded in the budget as reductions in 
direct spending.
    Starting in 2030, S. 216 would increase payments to the 
tribe to about $8 million annually and would reduce the amount 
that BPA makes in interest payments to the Treasury each year 
by $2.7 million. CBO anticipates that BPA would reduce rates to 
mirror that lower interest payment. Thus, CBO estimates that 
the expected reduction in receipts under the bill would 
indefinitely increase annual direct spending by $2.7 million 
starting in 2030.
    S. 216 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. Eliminating an existing right of 
action is a mandate because the right to seek redress and 
recover damages beyond what is provided in the bill would be 
lost. Using information from the tribe, CBO expects that the 
tribe would, probably not absent the provision extinguishing 
those claims, pursue such claims if the bill were enacted. 
Therefore, CBO estimates that the cost, if any, of the mandate 
would not exceed the annual threshold established in UMRA ($82 
million in 2019, adjusted annually for inflation). Overall, the 
tribe would benefit from the payments authorized for the tribe 
from the Bonneville Power Administration.
    The CBO staff contacts for this estimate are Kathleen Gramp 
(for federal costs) and Rachel Austin (for mandates). The 
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communication from the 
Executive Branch regarding S. 216.

               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. 216 will 
have minimal impact on regulatory or paperwork requirements.

                        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]