Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?
                                                       Calendar No. 37
116th Congress      }                                    {      Report
 1st Session        }                                    {       116-6



                 March 13, 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. 46]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 46) to repeal the Klamath Tribe Judgment Fund Act, 
having considered the same, reports favorably thereon without 
amendment and recommends the bill do pass.


    The bill, S. 46, repeals Public Law 89-224, commonly 
referred to as the Klamath Tribe Judgment Fund Act.\1\ The bill 
is intended to promote the Klamath Tribes' ability to exercise 
its sovereign authority and discretion over tribal funds. This 
legislation provides greater flexibility for the Klamath Tribes 
to access and use monies they were awarded following successful 
litigation against the United States.
    \1\An Act to provide for the disposition of judgment funds of the 
Klamath and Modoc Tribes and Yahooskin Band of Snake Indians, and for 
other purposes, Pub. L. No. 89-224, 79 Stat. 897, 897-898 (1965) 
(codified at 25 U.S.C. Sec. 565 et seq.).


    On August 13, 1954, Congress passed Public Law 83-587, 
otherwise known as the Klamath Termination Act (1954 Act). The 
1954 Act established procedures for the sale of a portion of 
the reservation land belonging to members of the Klamath and 
Modoc Tribes and Yahooskin Band of Snake Indians (collectively, 
``Klamath Tribes''), and the termination of the Federal 
government's trust relationship with the Tribes.\2\
    \2\An Act to provide for the termination of Federal supervision 
over the property of the Klamath Tribe of Indians located in the State 
of Oregon and the individual members thereof, and for other purposes, 
Pub. L. No. 83-587, 68 Stat. 718 (1954) (codified at 25 U.S.C. Sec. 564 
et seq.).
    As required by the 1954 Act, six months after passage, the 
Tribes submitted to the Secretary of the Interior a final roll 
consisting of 2,133 members.\3\ Klamath tribal members on the 
final roll were separated into two groups: those who would 
receive their share of the tribal estate in cash from a 
liquidation of tribal assets (i.e. the ``withdrawing 
members''), and those who would hold an undivided interest in 
the tribal estate to be managed by a private trustee (i.e. the 
``remaining members'').\4\ In addition to transferring rights 
in tribal property to the final enrollees, including their 
heirs and legatees, the 1954 Act specified that nothing would 
``prevent [either remaining or withdrawing members] from 
sharing in the proceeds of tribal claims against the United 
    \3\22 Fed. Reg. 9303 (November 21, 1957).
    \4\The Long Struggle Home: The Klamath Tribes' Fight to Restore 
Their Land, People and Economic Self-Sufficiency, Native American 
Rights Fund Legal Review, Vol. 27, No. 1 at 5 (2002).
    \5\Id. supra, note 2 (codified at 25 U.S.C. Sec. 564e(c)).
    On August 13, 1946, Congress passed the Indian Claims 
Commission Act, creating a special forum in which Indian tribes 
could seek damages against the Federal government for, among 
other things, the cessation of land for inadequate 
compensation.\6\ Prior to the passage of the 1954 Act, the 
Klamath Tribes filed a claim with the Commission, the basis of 
which was unconscionable consideration paid for lands ceded by 
the treaty of October 4, 1864.\7\ Otherwise known as ``Docket 
100,'' this claim was settled on January 31, 1964 for $2.5 
    \6\An Act to create an Indian Claims Commission, to provide for the 
powers, duties, and functions thereof, and for other purposes, Pub. L. 
No. 79-726, 60 Stat. 1049 (1946). See generally An Act to authorize 
appropriations for the Indian Claims Commission for fiscal year 1977, 
and for other purposes, Pub. L. No. 94-465, 90 Stat. 1990 (1976) 
(providing for the eventual dissolution of the Indian Claims 
    \7\The Treaty of October 14, 1864, obligated the United States to 
pay less than $300,000 for over one million acres of aboriginal land in 
southern Oregon and northern California.
    \8\Klamath and Modoc Tribes, et al. v. The United States of 
America, 13 Ind. Cl. Comm. 41, Docket No. 100 (1964).
    On October 1, 1965, Congress passed Public Law 89-224, the 
Klamath Tribe Judgment Fund Act, which directed the 
distribution of the Docket 100 settlement funds to both 
``withdrawing'' and ``remaining'' members of the Klamath 
Tribes.\9\ In so doing, Congress required the Secretary of the 
Interior to make per-capita distributions to all living 
individuals listed on the August 13, 1954 roll. The share of 
any deceased enrollee would be paid to his or her heirs and 
legatees pursuant to the 1954 Act.
    \9\Id. supra, note 1.
    In the years following the settlement of Docket 100, the 
Klamath Tribes were awarded three more judgments against the 
United States from the Indian Claims Commission for various 
claims including the mismanagement of tribal assets and 
unconscionable consideration paid for Reservation land.\10\ 
Like Docket 100, monies from these judgments were distributed 
pursuant to the Klamath Tribe Judgment Fund Act.
    \10\Klamath and Modoc Tribes and Yahooskin Band of Snake Indians v. 
The United States of America, 21 Ind. Cl. Comm. 343, Docket No. 100-A 
(1969) (The Klamath Tribes were awarded $4,162,992.80 for 
unconscionable consideration paid pursuant to a 1901 land-sale 
agreement); Klamath and Modoc Tribes and Yahooskin Band of Snake 
Indians v. The United States of America, 37 Ind. Cl. Comm. 2, Docket 
No. 100-C (1975) (The Klamath Tribes were awarded $785,000 for claims 
involving grazing and rights-of-way); Klamath and Modoc Tribes and 
Yahooskin Band of Snake Indians v. The United States of America, 39 
Ind. Cl. Comm. 262, Docket No. 100-B-1 (1977) (The Klamath Tribes were 
awarded $18,000,000 for mismanagement of tribal funds and properties, 
primarily timber and ranch lands).
    Under the Klamath Tribe Judgment Fund Act, distributions 
would only occur after the United States deducted litigation 
expenses and estimated costs of distribution.\11\ On April 15, 
1958, the Klamath Tribal Executive Committee passed a 
resolution authorizing the use of a $350,000 reserve fund for 
the reimbursement of attorney expenses for the presentation of 
tribal claims. Any unused portion would remain in the U.S. 
Treasury to the credit of the Tribes.\12\
    \11\Id. supra note 1.
    \12\Id. See also Disposition of Klamath and Modoc Judgment Funds: 
Hearing before the Subcomm. on Indian Affairs of the H. Comm. on 
Interior and Insular Affairs, 89th Congress (May 13, 1965). See also 
H.R. Rep. No. 89-889, at 1 (1965) (Comm. Rep.).
    On August 27, 1986, the Klamath Tribes' Federal trust 
relationship with the United States was restored with the 
passage of the Klamath Indian Tribe Restoration Act.\13\ 
Nevertheless, the Klamath Indian Tribe Restoration Act did not 
restore the Klamath Tribes' former reservation lands and 
efforts to regain their tribal land base continue to this day.
    \13\The Klamath Indian Tribe Restoration Act, Pub. L. No. 99-398, 
100 Stat. 849 (1986).

                          NEED FOR LEGISLATION

    The Klamath Tribe Judgment Fund Act prescribes the method 
for distribution and use of any funds awarded to the Klamath 
Tribes from the U.S. Treasury. Thus, any future successful 
monetary claims by the Tribes against the United States would 
be subject to the Act's distribution terms, which make 
compliance cumbersome and expensive. This bill repeals the 
Klamath Tribe Judgment Fund Act in order to avoid unnecessary 
bureaucracy, ensure that tribal funds are distributed in 
accordance with traditional notions of tribal sovereignty, and 
for the Tribes to benefit from and use the funds on their own 

                          LEGISLATIVE HISTORY

    In the 115th Congress, on May 24, 2017, Senator Merkley 
introduced S. 1223, the Klamath Tribe Judgment Fund Repeal Act, 
and the bill was referred to the Committee on Indian Affairs of 
the Senate. Senator Wyden was an original co-sponsor. No 
companion bill was introduced in the House of Representatives 
in the 115th Congress.
    The Committee held a legislative hearing on S. 1223 on July 
12, 2017. In testimony before the Committee, Mr. Tony Dearman, 
Director of the Bureau of Indian Education, on behalf of the 
Department of the Interior, stated that the Department could 
not take a position on S. 1223. He further stated that the 
Department needed to better understand the manner in which a 
blanket repeal of the Klamath Tribe Judgment Fund Act would 
affect its trust responsibility to the Tribe.\14\ The Committee 
also received testimony from a Senior Attorney from the Native 
American Rights Fund, Mr. Donald R. Wharton, on behalf of the 
Klamath Tribe, noting the Klamath Tribe's full support of S. 
    \14\Legislative Hearing to Receive Testimony on S. 943, S. 1223, 
and S. 1285 Before the S. Comm. on Indian Affairs, 115th Cong. 115-76 
(2017) (statement of Mr. Tony Dearman, Director, Bureau of Indian 
Education, U.S. Department of the Interior).
    \15\Id. (statement of Mr. Donald R. Wharton, Senior Attorney, 
Native American Rights Fund).

                        COMMITTEE CONSIDERATION

    In the 115th Congress, the Committee considered S. 1223 at 
a duly called business meeting on October 25, 2017. Senator 
Udall, on behalf of Senator Merkley, filed one amendment to the 
bill. The amendment, timely filed and duly considered by the 
Committee, would add a third section to the bill to clarify 
that the Secretary of the Interior shall disburse the full 
balance of any remaining or reserve funds held in the U.S. 
Treasury to the Klamath Tribes as soon as practicable, after 
the date of enactment of S. 1223. The text of the amendment was 
based on the Department of the Interior's technical drafting 
assistance. Following the business meeting, the Department of 
the Interior informed the Committee of its support for S. 1223, 
as amended.
    In the 116th Congress, on January 8, 2019, Senator Merkley 
re-introduced the Klamath Tribe Judgment Fund Act. Senator 
Wyden is an original cosponsor. The bill, S. 46, is identical 
to the version favorably reported by the Committee, as amended, 
in the 115th Congress. On January 29, 2019, at a duly called 
business meeting, the Committee considered and reported S. 46 
favorably, without amendment.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 sets forth the short title of this bill as the 
``Klamath Tribe Judgment Fund Repeal Act.''

Section 2. Repeal

    Section 2 contains a full repeal of Public Law 89-224, the 
Klamath Tribe Judgment Fund Act.

Section 3. Disbursement of remaining funds

    Section 3 requires the Secretary of the Interior, as soon 
as practicable following enactment, to disburse all remaining 
funds in trust accounts for legal fees and administrative 
expenses, as well as funds in per-capita trust accounts, to the 
Klamath Tribes.


    The following cost estimate, as provided by the 
Congressional Budget Office, dated February 8, 2019, was 
prepared for S. 46:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, February 8, 2019.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC 20510.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 46, the Klamath 
Tribe Judgement Fund Repeal Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jon Sperl.
                                                Keith Hall,

    S. 46 would repeal the Klamath Tribe Judgment Fund Act, 
which authorizes the Department of the Interior (DOI) to 
establish and maintain a fund to make payments to Klamath Tribe 
members to satisfy any judgments obtained by the tribe. The 
bill also would require any amounts remaining in the fund upon 
its closure to be disbursed to the Klamath Tribe.
    Payments to certain tribal trust funds that are held and 
managed in a fiduciary capacity by the federal government on 
behalf of Indian tribes are treated as payments to a nonfederal 
entity. Thus, the balances remaining in the Klamath Tribe 
Judgment Fund were previously recorded as federal budget 
authority and outlays at the time those funds were deposited 
into the fund. Accordingly, any subsequent disbursement of 
those funds would have no effect on the federal budget.
    According to information provided by DOI, about $600,000 
remains in the fund. That money is slated to be paid to almost 
200 members of the Klamath Tribe or to their next of kin, none 
of whom DOI has been able to locate. Assuming that S. 46 will 
be enacted early in calendar year 2019, CBO estimates that the 
$600,000 in the fund would be disbursed directly to the 
government of the Klamath Tribe during fiscal year 2019.
    The CBO staff contact for this estimate is Jon Sperl. The 
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.


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

                        EXECUTIVE COMMUNICATIONS

    Except as otherwise noted, the Committee has received no 
communications from the Executive Branch regarding S. 46.

                        CHANGES IN EXISTING LAW

    In accordance with 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 
to expedite the business of the Senate.