April 24, 2001

The Domenici amendment to the Budget Act would provide for an annual adjustment to the Function 302 budget cap for a specific amount still to be determined. Appropriations under the cap adjustment would be made solely for the purpose of fulfilling the Federal Government’s aggregate commitments in any fiscal year to the settlement of Indian water rights and land claims as authorized by legislation enacted by the Congress and signed into law by the President.

Under the Budget Act, appropriations authorized to fulfill the Federal Government’s trust responsibilities to individual tribes in settlement of their water rights or land claims are accounted together with other Federal spending for Indian programs under Function 302. Thus, new appropriations authorized by settlement legislation under the budget caps effectively displace or appear to be increases in programmatic funding for tribal programs, thereby making Indian and other Interior programs bear the Federal Government’s share of the cost of settlements. The number and size of pending settlements makes imperative the need to ensure that the Federal Government’s share of the cost of settlement of its own legal and trust liabilities to individual tribes is not paid at the expense of programs serving all tribes.

No. The amendment would limit the amount by which the budget cap could be increased in any fiscal year, and thus require the Administration as well as relevant Congressional authorizing committees to ensure that the aggregate of Federal appropriations authorized for settlement purposes does not exceed the maximum cap adjustment in any fiscal year. Any amounts authorized in excess of the cap adjustment would be subject to a point of order. Existence of the cap adjuster would have no effect whatever on the Administration’s rigorous settlement guidelines. Also, these settlements would continue to be subject to Congressional scrutiny through the authorization process.

No. Final judgment awards by Federal Courts in settlement of litigation against the United States are routinely appropriated to the Judgment Fund of the United States, and funds for legislative settlements sought by the Justice Department and enacted by Congress are similarly funded. Annual Justice Department program funding is not affected by increases or decreases in the total amount of such awards. The Justice Department strongly opposes funding legislative settlements of Indian water rights and land claims through the Judgment Fund in part because negotiations are conducted primarily by Interior Department representatives and because such settlements typically include some programmatic funding that exceeds what Justice considers to be the strict legal liability of the United States.

Before the Indian Claims Commission (ICC) was established in 1946, tribes had to secure enactment of jurisdictional statutes authorizing the U.S. Claims Court to hear their claims; judgment awards were paid by direct appropriations from the U.S. Treasury. Between 1951 and 1978, the ICC awarded judgments to tribes in over 60 percent of the more than 600, mostly land claims, filed. These judgments totaled more than $800 million, and were paid through the Judgment Fund of the United States. Since the ICC was terminated in 1978, Congress has authorized more than $3.5 billion in legislative settlements of various Indian land and water rights claims. These appropriations have been included within the budget for the Bureau of Indian Affairs and, to a much lesser extent, the Bureau of Reclamation in the Department of the Interior. The appropriateness of including settlement funds as part of these agencies’ budgets has been continuously in dispute.

Because some land and water rights claims will ultimately be litigated rather than negotiated to settlement, a precise number in either category cannot be known. Approximately a dozen land claims, primarily in the eastern United States, remain subject to negotiation and possible settlement. More than 20 negotiations of tribal water rights claims are currently in progress, with another 10-20 subject to future negotiation and settlement. Given the complexities of the issues associated with the claims, the vagaries of the negotiating and legislative processes, and the levels of resources available to pursue them, settlement of most of these claims is likely at best to take between 10 and 20 years, at a probable cost of between $2 to $5 billion.