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Calendar No. 37
116th Congress } { Report
SENATE
1st Session } { 116-6
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TO REPEAL THE KLAMATH TRIBE JUDGMENT FUND ACT
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March 13, 2019.--Ordered to be printed
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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.
PURPOSE
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.
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\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.).
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BACKGROUND
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\
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\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.).
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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
States.''\5\
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\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)).
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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
million.\8\
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\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
Commission).
\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).
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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.
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\9\Id. supra, note 1.
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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.
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\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).
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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\
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\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.).
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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.
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\13\The Klamath Indian Tribe Restoration Act, Pub. L. No. 99-398,
100 Stat. 849 (1986).
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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
terms.
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.
1223.\15\
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\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).
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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.
COST AND BUDGETARY CONSIDERATIONS
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.
Sincerely,
Keith Hall,
Director.
Enclosure.
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.
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. 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.
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