cL.

NTLNTS

STATIY' NTS BLYIPACI

Special Counvol#
(Iffice, Chiof of Lngineerso
!eopartmont of the Army 12

CliW,1L!S W flNiY,
Chi f
olicyJ-and Continuity Branch,
Planning and PevelopeAz P1ivision,
Civil Worke, Office, Ch-'e of 1npiners,
Department of the Armiy 12
COLIN C. flCKFUrD,
Assistant Chiof,
Acquisition Division, Ioal 1Lstatol
OCfie Chief of I-ngfneera,
Popartmnent of the Artry 12
 ~~tSYfTAY, fAY 190 1954

m * *
5ter
Hl.*. 2233
&
S, 695
A BILL

To provide for the acquisition of lands by the United

States required for the reservoir created by the const-
ruotion of Oaho Pam on the Hissouri kiver and for re-
habilitation of the Indians of the Cheyenne River Sioux
Reservation, South r/akota, and for other purposes.

House of Representatives,

Joint Senate and House Subcoumittee

on Indian Affairs of the Committees
on Interior and Insular Affairs,

'ashington, 1* C.

Tho Joint Subcoirittee on Indian Affairs et, pursuant

to notice, in hoom 1324 New House office Building, at 10

o'clock a.mt, the H1onorable L, Y. Berry (Chair.ian of the

Houso Subcommittee) presiding, for consideration of i.R. 2233

and SI. 95, which are au follows$

 4

Mr, Berry, The Subcommittee on Indian Affairs of the

Senate and House will coue to order, this being a joint

hearing of both the House and Senate.

I should state that Senator Watkins was called downtown

temporarily, and will not be here for a little while, How-

over, he will be here a little later on.

r,. Jex, do you wart to come up and represent Senator

Watki n?

Mr. Jex. Mr. Grorud will testify on that.

:"r, Berry. ':r. Grorud will represent Senator Watkins?

.r. Jex. Yes.

Mr. Berry. We have under consideration today two bills,

1.%,-2238, and S. 695, which are Identical bills. The Chair

will place in the record the text of these two bills.

Mr. Aspinall. Why is there any necessity of putting

thoihole text of each of the bills in the record when they

are identical?

Ir,. Berry. That is correct, that can be done, I suppose,

is use the two numbers and put one bill in the record,

Mr. Aspinall. Yea.

Mr. Berry. Also 1 should like to place in the record

*-
three reports, the report of the Corps of Lnginoers, the

report of the Department of the Interiorg and the report of

the Bureau of the Budget.

M:r. Aspinall, r. Chairman, I reserve the right to

 6-7

object. X do not seem to have a copy of the report of the

Bureau of the Budget,

Mr. Berry. Off the record,

(Discussion off the record.)

Mr. Aspinall. I withdraw my reservation. I o~r perfect*

ly willing to have the three reports in the record.

(The matter referred to is as followed)

(IN5BWF)
 9

Mr,. Berry. In addition, the Chair would make the

further request that since there are about fifty pages of

the bill which are entirely descriptive of the land involved,

taet wo only Include the full bill down to and including

the first two lines of Part II and then indicate there the

omission of the land description, and refer to the bill itself

for those descriptions. IT there objection to that?

without objection, it ia so ordered.

The Chair would like to state that the two bills before

this Committee today como before Congress as a result of a

failure on the part of the Army engineers to effect sottle-

44ent between the Tribe, the Bureau of Indian Affairs and the

Army r.ngineers for the value of the land, the tangible damages

and the rehabilitation and the relocation of the Indians on

the Cheyenne reservation.

Now, briefly, the history is this The Oahe Dam is a

part of the comprehensive plan for the development of the

Missouri ! river basin and is authorized by the Flood Control

Act of 1944, which act authorized special settle ent in the

case of Indian reservations, innundated by these reservoirs.

In addition to the basic law, Congress by an Act

approved Septe: ber 30, 1950 (64 Stat, 1003) as airended by

the Act of Congress approved April 8, 1952 (66 Stat, 46),

authorized the Chief of engineers, United States Army,

jointly with the Secretary of the Interior to negotiate

 10'

separate contriactvo with the Sioux Indian* of the Cheyenne

!4ver 1horvati on I n South takota and th a Sioux Indians of
2 the etandig 1Rock TRerervation in North and 'South r!.aIota,
iihich will provide for conveyancc to the UnIted States of the
iltle to all tribal, allottcdo and Inherited lands or Inw
torests therein belonging to the Tndlans of the tribe which
Ore required by the tlr~tedlStates for the Oahe 1'au and
!':erervoirtand rzako provision frr payrant by the United States

rf just compensation for all the land and iprovoments,

rotlocatton costs, ant) oth'rwlse provide for the orderly
rc.eoval of' the Indians and the co 4c-plote settlei-ent of all
their clatnis arising because of the construction of the Oahe Vam
T'ro Joe-t.
In corpiance therewith, the negutiatcrs for the Cheyenne
!"iver Trbes the Boureau of Indian Affairs and thi'll Corps of
..ngineers -fet in 1Wovetaber M19 As their agenda, they agreed
that first they would settle upon the price to be paid for
the land and the tangible property.
The Tribe asked for $2#614#778,,95,, The Corps of T ngineae
offered 119305#4l1'), After ne'gotattons, the Arm~y cane u' to
$2 million, The tribal negotiators ca! e down to $2,500,000.
Since they could not nogottato the first item on the
3r~ondaq they agreed to disagree and 11,1Z. 2233 and5S. 693 were
introduced by Senator ,.'ne and iryself to bring before Congress
the matter or' a fair and equitable sottlei-iont for the taking
 11

of these lands and properties on the Cheyenne River reserva*

tion.

Now, I ask unanimous consent to insert as part of the

file the report of the contract negotiators, h Ich was prepared,

according to the cover sheet, in January, 1953, but, as I

understand it it is the report of the negotiations between

the Amy engineerss , the Bureau of Indian Affairs, and the

Tribe which was held in November, I5)3.

As the first witness the Chair will call :r. Kimbel of

the Army Fngineers. -o you have other witnesses, Mr. Kirnbel

whom you want to sit with you?

Mr, Kimbol, Yes, I have two other gentlerien from ::y

office that I wold like to have sit with ure.

Mr, Berry. They ray sit with you, sir,

 STATM!XNTS OF J. W. KIMBEL, SPECIAL COUNSEL,
FCL, Cni z F :xNrIN:l S, EV;PARTXt1 T OF TilE
ATrMYs C!HAlLLS . 1WeKINNEY, CRItrF, POLICY AND)
CONTINUITY BrANC1I, PLANNING AND DPLV-LOQP>1NT
DIVISION, CIVIL WORKS, OFPICL, CfHILF OF I.NGINdfRS,
rrr4a*1TMvENT OF THI- ARIMY; AND COLIN C. DICKFOKD,
AS')ISTANT C ILPo ACQUISITION DIVISION, RtEAL
!STATT., OFFICE, CITP oOF TNGCIN.ERS, E;PAHTHtNT
01" TIW ARtMY

Mr. oerry. All right, Mr. KinbiBel, if you will state

your full name , and the names of those in your group.

Mr. Kirmbeol, To you want these gontlo:en too?
Br.
jerry. Yes, just your natries and titos,.

Mr. Rimbel. Yy nime is Joseph V. Kibol, Special Counsel

of the Chief of T ngineers.

On y right is Mr . C. c. fickford, Assistant Chief of

our Yceal state Acquisition TDiviion, Office of the Chief of

engineers, and on my left to c, W. iKinney, of our Policy

(r.

PManning Group, Civil Worke Division, Office of Chief of

nginoors.

Mr, Berry. All right, you may proceeidwth your state-

ocnt!,Mr. Kinbcl.

Mr. Kimbol, Mr. Chairman, wecame up here today to make

ourselves available to the Committee.

We feel that our written reports, the report to the

House Committee dated March 12, 1953, and the report to the

Senate Committee dated January 28, 1954, which are substanti*l-

ly identical except for the last paragraph, sot forth the

facts In considerable detail, and we feel with sufficient

 18

detail for the purpose of the Committee.

If there are any points that the Coiaittee wants addition-

al information on we would be glad to try to furnish it this

3 :orning,or supply it later if we do not have that data with

us at this time.

Our report, as you know, is of considerable length, and

it sends along a report by-the Division Lngineer of the

Missouri River division which is the report of January, 19583

that the Chairman referred to some time ago, this brown backed

report.

Mr. Berry. Is that the report signed by John Slozak?

Mr. Kimbel. No, that is signed by the ivision Lnginee'.-

Mr. Berry. That is the report on the billA

Mr. Kinbol, Oh, you are talking about the Acting

Secretary letter, ::r John Slezak. The report signed by

Mr. Slezak transiitted inclosures, one of which is a report

by the Division Tngineer giving a detailed description and

discussion of the negotiations at the field level.

Attached to the letter of Mr. Slozak is also the letter

of the Assistant Chief of Lngineers for Civil Works, General

Corbin, describing the later negotiations in Washington with

the Bureau of Indian Affairs and the Indian Negotiating

Cot nittee here at the Washington level, and transmits also

the formal report ;.ade by General George old, who was

negotiating on behalf of the Chief of Lngineers at that time.

 14

That letter, or the report plus the inclosures, and,

incidentally the inclosures also include a copy of the Hart

appraisal of the Indian land, those contain substantially

all the pertinent information on these bills that we have,

I believe .

Yr. Berry. This is the report you are talking about?

r. Kinbell, That is the Division ngtnoor's report,

yes, sir. That is n:eroly a report on the negotiations up

to the stage-of--the-transfer to Washington.

:r, Borry. As a matter r of fact, this Cormmittee has not

received one of those as yet. The first I saw of this was

this morning.

Mr. Ki-,bel. A copy of all of that was supposed to have

been with the letter that came to your Committeeo last year.

I an sorry if it did not get here.

:ir. Berry. Let us briefly run thrtuah it, and give the

Coimittec scme information on it.

Mr. Kinbel. Originally the Chief of !;nginoers designat-

ed the vision Lngineor at Omaha as his representative to

join with a representative of the Secretary of the Interior

to conduct negotiations with the tribal representatives as

directed by the Congress in the former legislation, Public

Luw 870, of the 81st Congress.

Mr. Berry. Then what happened?

Mr, Kiabol. First, in accordance with the statute, the

 16

alleged errors seemed to be in the land descriptions, the

ownership of leases, and so forth, the acreage in the

different individual Tndi&n's ownership, and the erroneous

classification of the land as grazing land or agricultural

land, and ao forth, or tit.ber land,

In an effort to get together on that the 'iv sion

ngite or suggested that a Coriittee he appointed representing

the Government on the one hand and the Indians on the other

hand to try to work out and go over the appraisal report and

correct the errors.

Some agreement was reached, but not a complete agreement

as to just what corrections and changes were necessary. The

division n Engineer fc1t that the appraisal report should be

secured and should be the basis for negotiation to get the

basis, but that he could not accept as a basis for negotia-

tion the revised appraisal that had been prepared by the

)M.Issouri !,Iver Investigation Unit, I believe it was, of the

Bureau of Indian Affairs, They had prepared a revision of

the lHart appraisal that came ou tdAth an evaluation appraisal

of somethingg over 42 million, but the Indians had reviewed

the appraisal, and core up with a figure of $2,600,000.

The efforts at that level to arrive at some agreement

prs~od unsuccsasful, and the Indians asked that they be given

an opportunity to negotiate in Washington with the Chief df

engineers direct, and that opportunity was afforded in Novem*

 17

- br of 1952, I believe it was. The negotiations wore resumed

at that time in ashington in October or November-November

1 guess is right.

Those negotiations at the Washington level are set forth

in an attachment to the Secretary of the Army letter and in

a report dated the 26th of February, 1953, signed by Brigadier

General C. HIt Chorpening, Assistant Chief of Lngineors for

Civil Works.

Briefly those negotiations resulted in an agreement,

first, by both sides that we would only endeavor first to

reach an agreement as to the physical value of the lands and

properties of the Indians, If we could not reach an agreement

on that the Indian negotiators preferred not to proceed to

i;notiation on other elements of the sottleoent.

The final result was a firm offer of $2 .Jllion made by

the Chief of 'ngineers' negotiator, General George J. Nold.

The Indians indicated that they were unwilling to accept

that figure, and as a final offer they made a counter offer

of $2,500,000.

General Nold said he -could not accept such a figure.

Lr, Berry. That would have been for the tangible assets

Mr. Kimbol, That is right, that included nothing but

the land value.

1r;r Berry. The land value?

Mr. KItmbol. The land and improved nts, and the timber
 18

and so forth involved,

Mr, Berry. Now, there were three appraisals trade, is

that correct?

Mr, Kimbel, Well, it is a question of whether there

were three separate appraisals. I think you would want to

explore that certainly with the Indian Bureau people and the

Indian Tribal Council themselves.

It is =y understanding that there was one appraisal, the

Hart appraisal. The other figures are based on reviews of

that basic appraisal, first by the Bureau of Indian Affaires
and then next by the Indian negotiators themselves.

M!r. Berry. Is it not true that the Bureau of Indian

Affairs had a Comission described as the issouri River
fasin Investigations co(ia=ission, and they refer to it as the

Mr. Viamberl-tYe) air, that is correct.

Mr. Berry. And they made an appraisal did they not?

Mr. Kimbel. It was not my understanding that that was

a complete new appraisal. It is my understanding that t at

was a review, that is my understanding. They iade a study,
that il what it was referred to as in some of our negotiation

convorsati ons,

Mr, Berry. I show you a report put out by' the MI)BI,

In that they sot out what they arrive at as a just figure.

You indicated a while ago that it was something in excess of

 19

$2 million. I believe the figure was $2,234,00o. Is that

about right?
Mr. KitmObe Yes sir.
?r. Berry. Then the Tribe did the same job of appraising
this land and the property on a quarter by quarter basis, on

a land description by land description basis, and they came

up with a figure of $2,614,000 plus. Would that be about

right?
Mr. Kimbel. Yes, sir, that is right.
Mr. Berry. Did they revioo at that titue and state that
they had contacted the owners, that they had gone over each

piece of land separately anf they gave you the detail/figures

of what they baaed their report on?

Mr. Kimbel. That is correct, yea,s#ir

Mr. Berry, tWelI, now, the Ary itself has f:ado no other
surveys?

Mr. Ki bel. No, sir,

' r, Berry, Your figures are based on the Hart appraisal?

LMr Kimbel, Yes, air,

apprati sal
Hr, Derry. Uo you know what the. 'art klWpat is based
on? Is that based upon the fair market value? Assuming
that this land were not located in an Indian reservation

would you say that that was the basis of their appraisal?
Mr. Kimbel. I do not believe that it would be quite

fair to say that, ,r. Chairman. The basis of the Hart

 20

appraisal is given in the basic data report which is alsw an

enclosure to the lotter report of the Department of tho Army

on those bills. Thi volumes which was prepared by the Hart

roal Istate Appraisalu firm, recites the basis on which they

have appraised the lands. They start out by quoting Public

Law 870, sot Congresst and the directive to the Congress as

to the rating of an oppralaeal, and they discuss the definition

of value in the Act amd the general practices of appraisers

in snrt:ing appraisal reports oncrally.

The appraisal is the effort, as I understand it, of that

firm to evaluate lanids on the basis specified b., Congress in

Public Law 170T.

I would like, for the benefit of the committee rmeabers,

to road the directive as to the preparation of an appraisal

report an sot forth in Public Law 870,

"To assist the negotiators in arriving at the amount of

just compensation as provided herein in section 2(b) (1),

the ecrotary of the Interior or his duly authorized

representative and the Chief of tagineers, epartmont of the

Ary, or his duly authorized representative shall cause to be

prepared an appraisal schedule on an Individual tract basis

of the tribal, allotted, and assigned lands, including heir-

-ship interests thlein, located within the taking areas of the

respective reservations. In the preparation thereof, they

shall determine the fair market value of the lands, giving

 21

full and proper weight to the following elements of appraisal

"Tprovements, severance damage, standing timber,

mineral rights, and the uses to which the lands are raeonabty

adapted. They shall transmit the schedules to the represontam

tives of the tribe appointed to negotiate a contract, which

schedules shall bo ueod as a basis for dotetorlning the amount

of just compensation to be included In the contracts for the

cloments of daiges set out in section 2 hereof."

The Hart fir being a fir of recognized appraisers

which has boen engaged i.L the appraisal of lands generally

in the tiddlo West and Western areas, and wich wo understood

had been employed by the Bureau of Indian Affairs I.n sone

instance to make appraisals for the Bureau on Indian lands

for the benefit of the Indlanst the directive to the nart

firm was to prepare atn appraisal in accordance with this laws

6 . rr. Borry,. ow, !I it a fact that di ring your negotia-

tione .between the tio you first started to negotiate with

the Indiana and the tite you negotiated in ~auhington that

the Indians claimed- that this

aart proposal was too low and -

ost up 20 or 30 test plots under the uhD6I,

aon the Indians
thfcwsolvos sont over these test plots, and cac up with

) a figure that was quite a little higher than the Hart

propaal appraisal had sot the" at? Is that substantially

correct?

Mr, tinbol, Holl now, I do not know that I would say

 22

that the stato.;erit in toto is substantially correct, ::r,

Chairman.

They did attempt to :ake some sample rechecks of that

type, and it is y understanding that the result of those

rechecks indicated that accepting the claims of the Indians

to the Bureau of Indian Affairs as to the proper classiflca*

tion, as distinguished from the classification which had been

nado in the Hart appraisal, that on that basis there would be

a higher value arrived at, that is true. I cannot say

that the representatives of the Corps of engineers agreed

that those different classifications were acceptable to the

Corpn,

Mr. Berry. ;ell, now, let me ask you one aore things

in your dealing with the Indiana, I do not know whether it

was at the Washington lcvel or at the agency level, they

asked you for the definition of s:arkot value as set out in

the Hart appraisal, and your answer was that the market value

is the amount that a willing buyer will givo to a willing

seller for his land, that that was substantially the basis

for the values that wore established b the Hart appraisal.

Mr.Kifrbol. I do not recall that we over made such a

statement as that.

Mr. terry. -Is ttat app oxlIately it?

.rKibel. That is perhaps a -good brief statement of

what is normally the basis of evaluation lands that are being

 20

taken for a public purpose in the ordinary statement of the

rule which is usually applied by the courts in condemnation

proceedings, and so forth.

Mr.i Berry. Now, then, I would like to ask you this

Congress established the criteria as to the uses to which

the lands are reasonably adopted. In your judgomnt do you

think that should include a hesitancy on the part of the

Indian who owns this land to move, to :ivo up his land and

Novo off of the reowrvation?

M%r. Kimbelo I would say to that, no, sir.

. berry. You do not think that should be included?

:r. Ki;mbol. That is right,

r, Borry. In other words, the appraisal uhauld beo the

ane aUoif it were non-Indian land on a nn-rleservation area?

r. "iubl. Nou, I d(ovnot say that, 'I do not think the

two statoients are the usae. The use to which lands are
adaptable, you might stay, is considered in appraising lands,

because in taking property for a public purpose the extent

to which it has adaptability for a particular typo of use

eightt affect the marrket value of it.

The individual attachurnt to a piece of property is not

a "attor of evaluation in appraisals or in condemnation

proceedings. It is an ebient -which this Cosmittoe and

which the Congress could well take into consideration in

dealing with the ndins thIndinsa

s wrse
wrd of Government, but as
 A 24

an clement of appraisal my view is nop that istut a proper

element of appraisal.

:r. Berry, ut there i a difference between individual

attachent and adaptable lity.

Mr, Kiibol* A.luatablllty to a particular type of use.

:r. oBerry. The attachment of a unit of Govornment, such

as an Indian tribe, ia different froi individual attachment?

tr. KiAbbeol. That ay woll beo yos, Sir.

!,r.Derry Well, could we compare it to the valuo of

antiques, for instance? Antiques are high because they are

7 scarce. IX not that right, that the prices are high because

of the fact that they are scarce? You have a situation

here whore there: just is no more reservation land, is not

that correct. Th'er is a scarcity of it?

,Mr.
yKitAbol. I do not inow that I au co petent to answer

that.

Mr. Borry. This land t irreplaceable from the stand-

point of the Indians themselves, I moean?

Mr. Kimbel, I would not want to answer that Mr,.

Chairman. It may or aoy not be irreplaceable. I thinU that

is a matter of opinion. Proa one viewpoint you can say

nothing is irreplaceable, and from another viewpoint you

can. ay It is.

Hr, Dworry. There is no other pluco to ihich the Xndians

can go to stoblish the isolvos, is there?

 25

Mr, Kiibel, There is, as I understand it, invoked in

those negotiations slightly over 100,000 acres of the Indian

reservation. I believe the reservation includes substantially

over one million acres.

Now, it seems to me that your question is one of view-

point and opinion as to whether or not there is a sufficient

area left on the reservation for th population of this

Indian Tribe. I do not feel that I am competent to judge of

that.

uMr. sorry. f there was not sufficient fertile land

left on the reservation, then that :Lt:ht influence opinions

about the rmarct v:luo r the valuo of this land, j; iht it

not?

Mr, KFitbel. It cLrtainly would tothe Indians.

I
:r. lerry. Tlat. !s right,

Mr. limbel. if you are talking about just co ,pensation

in the sense of the ordinary rule in an cminent iooain

proceeding the courts generally throw cut the value to the

property owner as an individual or his spccXal attachment

to that locality. They say it is the amount whichtif he

wore willing to sell#, he could get in the market for it.

Xow it is, not also the value to the taker of an action that

this land .iay have hat is proper to e tablish the value

in the ordinary land xatua evaluation proceeding.

Mr. Berry. I would like to point out one i-ore thing in

 I'
28 , s I

this connection, and that is the fact that that map there is

a map of the reservation, and it Is apparent that there is

practically no one living in a good share of that area. Can

you tell this Co .r:ttoo why there is no one living there,

if you know?

Mr. :inbol. ;o, I do not know.

Mr. Borry, Would it be because there is no water avail-

able?

:r. Ti;ibel. I think that would be very probable. I

realize that it is probably a fact that the populations

especially in sparatly populated areas such as this settle

closoat to a river on river bottom lands, that those are

the areas that are normally first occupied and the most

thickly settled as a general rule,

Mr, jerry . About 95 percent of the Indians live along

the river, do they not, i.n preference to going up to the

flats?

Mr. Kiubel. "Ye, that may well be.

ir , Berry. As a M:atter of fact, it it not true-that-

that entire area is what is known as Pierre shale and heavy

Smith flu Mr. ric:el, That I to not know.

 36

TLS Mr. Berry. Do you know whether there is any water

fls Sterling
1l-a.m. obtainable back upon the flat except for dams, reservoirs,
5-19-54
*Int & Ins or something like that?
Mr. Kimtall That, I am not able to answer.

Mr. Berry. Do you not think that that would make a

difference in the value of this bottom land?

Mr. Kimball. Yes.

Mr. Berry. If I own 320 acres of land, for instance,

down in the bottom and I have good winter protection and I

have good water, all I have to do is go down 50 feet to get

the best water, and I am now being replaced, removed some

1C or 15 miles back up in an area where no one is living,

and I have got to replace that water, have I not?

Mr. Kimball. Yes.

Mr. Berry Water that I am getting down below, and

the only thing I can replace it with is a dam, which is going;

to cost me possibly as much as I am getting out of this land

down below, and it seems to me that that should have to be

taken into consideration in the appraisal in determining

the value of that land, would it not?

Mr* Kimball. May I answer that question, tr. Chainrn,

by referring again to Public taw r70, which laid down the

rules for this negotiation. Section 2 (b) of that Act

,says that we are to negotiate the payments to be made as

herein provided for. (b) provides for the payment of (1)

 37

just compensation for the land and Im~provements arnd interest

therein conveyed - conveyed pursuant to Subsection (W)
('2) rost of relocation anid reestablishing the tribi
and members of each tri-be who reside upon such land# so that
their economic# social, religious and community rioht can
be reestabtlished arnd protected,,
N',ow that is something, outside the appraisal; If we took
all those thirjms into consideration In appraising the land
an4j fi'Nli- the value of the land, then there would be w thing
to 'be covered by this second directive of the Conf.re8sp that
oiQ also negotiate,t relation to the cost of relocation
and reeitablishm~ente
Is niot that the element that you havejust been asking

(,uestions about of what the cost of reestablishmenxt would be?

'Ir,, lleryy I do not think so, because we cannot re-
establish these peorle back upon the land*
'1%r., Kimball. But the Congress directed us to uri ertake
to evaluate just that. If it cannot be done, we were g~en
an ivipossi ble task, were we niot?
M4r. Berry. Well# I hope not "" you are correct, but

T hrpe %rou are not.

ir. Abtbott, Oo you have any juestlons?

mr, Abbott. Mr, Kimball, do you know whether or not

the appraiaers# the Hart f iris I believe you said, of Denver#

Colorado, took into consideration the relationship of
 88

the river lands to the upper meadows? I think I am getting

to the severance factor, but as shown by leases that were

executed on tribal lands or blocks of leased land wherein in

one instance in advertising or in letting those leases,

there was river flood-land included on the effect of the

lease price when it was not river flood land, did not in-

clude the flood lands.

Mr. Kimball. I am not sure that that information was

available at the time the Hart appraisal study was made.

It was presented to us in the negotiations at the Cheyenne

IMver Agency. The Hart appraisal did take into consider-

ation the value of these lands, as lands suitable for

lease for grazing; they did take that into consideration.

Whether they took into consideration that particular trans-

action we are speaking of, I am not prepared to say.

Mr. Abbott. And it was surely developed by ascertainin

the potential use of these lands, because of the nature of

the winter season out there, and it is necessary, or desir-

able at least, to have the livestock down under the protec-

tive floods and on the bottom lands of the river during

the winter time.

Mr. Kimball. That is correct.

Mr. Abbott. And to graze them in the summer time do

you feel that it would be fair, or at least have some

bearing on the over-all value, to take the leased blocks,

 89

which in the one instance, did not include the river flood

lands in its 12-month operation, and in anothr instance,

did include the river flood lands in the operations

Mr. Kimball. These elements should be considered.

It is not the sole basis for determining value.

Mr. Abbott, Do you think that the legislation author-

izingthe fixing of the damages in this case were restricted

as to not permit taking into consideration such facts?

Mr. Kimball. 1o, 1 think it was taken into considera-

tion.

Mr. Abbott. Then it is just a matter of a difference

of opinion as to the value; is that true?

Mr. Kimball. I think so.

Mr. Abbott. I think that is all I have, Mr. Chairman.

Mr. Berry. Just to follow Mr. Abbott's question one

step further, -- and I refer you again to the map behind

you; there is a unit, the last red unit, marked 203 and

206, -- there are two of them; they are separate units, --

Hr. Kimball, es,

- Mr. Berry. They are pretty much dependent upon, for

their value, the river front -- is that not correct, so
that the value of this ladd on the river is increased by
the fact that it is needed in order to make that land

valuable*
 Mr. Kimball, I think that probably would be a fair

statement.

Mr. Berry. Wow, in this Army report to the Sera te,

page 3, at the top of the page, you say this

"Since the sum of $2,614,000 is substantially higher

than the appraised fair market value of $1,605,000 which

has not been reduced for all of the privileges which would

be reserved in S-695, the amount of 12,614,000 is higher-

than should be recommended for the payment by the Corps of

Bgineers."

.ow, the $2,614,000 is the amount that the tribe ha4

established?

S Mr. Kimball. That is right.

Mr. Berry. Is that a fair value?

Mr. Kimball. Yes.

Mr. Berry. I would like to ask you this: Do you believe

that the tribal officials who have lived there all their

lives, and who are engaged in the business of the appraisal

of lands for sale and purchase, if their judgment would not

be pretty good in establishing the fair value of this land?

Mr. Kimball. I would say yes, I think that is quite so,

sir. But you have toqualify that by taking into considera-

tion that they are, of course, interested in the members

of their tribe, and --

 Mr. Berry (Interposing) And the job of relocating.

Mr* Kimball. And also in seeing that the tribe gets

the maximum amount for these lands, that can be justified,

and they also have no responsibility toward insuring that

the United States does not pay more than the fair value.

They are on one side of the problem; they are not - and

I do not say that they are in the position of the owner

in fixin- his own price, and I am not making that implica-

tion, or that accusation at all, but they certainly are

people who are representing the land owners and I would say

that it is very similar to the case of expert testimony

Tn condemnation proceedings where appraisers are employed

by the land owners, who are very apt to give a higher opin-

ion of the value of the land than the appraiser employed

by the taking agency, or by the Department of Justice if

they are engaged in conducting a condemnation proceeding.

It is opinion evidence, after all you take the

opinion of the man whom you are most impressed with.

Mr, Berry. I havw some other quest ions that I want to

ask tcgarding some other matters,but I think I should yield

at this time to the other members of the committee to

bring out questionss they have in mind.

r. t
D'Ewartt do youhave any questions?

Mr. DTflart. I would like to ask what this bill will

 42

cost the United States Government if we pass it as it is

written?

Mr. Kimball. I do not know whether we could give you

theover-all figure now, Mr. D'Ewart. There are many ele-

ments involved here that are not evaluated in the legisla-

tion. In addition to the payments to be made to the Indians

or for the Indians, there remains the question of the neces-

sary road relocation, relocation of agency buildings, schools

and other Covernrent operating facilities for the benefit

of the Indians.

In the case of the Fort Berthold Peservation, our

estimated figures for those expenditures, outside of some

$10 million provided for the Indians in that cass, we are

having a construction program for roads, school buildings

End agency building relocation of froa $8 million to

$10 million additional. How that copa res with this roe

servation, I am not prepared to say.

Mr. D'E*wart, I think I should inform you that, of

some eleven authorizations for appropriation -- one, two,

three, four, five, six, seven, eight, nine authorizations

for appropriation, we cannot go to the Floor of the House

unless we know what it is going to be. We are just

stymied before we start* We have to know, and be able

to tell the House what is going to cost.

 Mr, Kimball. Those are elements we could not give you

any figure on, Congressman D'Ewart. I do not know whether

the Bureau cf Indian Affairs is prepared to give you any

fiures, or the Indians themselves, or not.

Mr, D'Ewart. I would like to ask you if they have been

justified; has anyone ever justified them, at any place

1r, Kimball, Wo have never seen a justification.

Mr. D'Ewart. You just report on the bill without jus-

tification?

Mr. Kitball. That is r14ht. We did not put them in

the bill; this is not our bill.

Mr, D'rwart.,ho is the author of the bill?

!r. Kimball. The Indians and their counsel prtsetted

this bill. It is not the Corps of Engineers' proposal by

any means, and we, in our letter, have stated that thero

are a number of things in here which we cannot justify

or recommend.

Mr. D'FWart. Probably my questionn should be addressed

to the author of the bill. I have several questions on i

this matter, but if you didn't write the bill, I think

perhaps they should be addressed to the author of the bill

because we have to have justifications before we can go

to the House.
 44

Mr. Kimball. Yes.

Mr. D'DEart. We have been through this thing before,

in the case of Garrison, for instance.

Mr. Kimball. Yes.

Mr. D')wart. And we had to have every item in the bill

justified before finally reaching an areement in Congress.

I was on that conference committee.

No. Kimball. Yes.

Mr. D'wart. And without having it justified, we

just cannot go to the floor of the House with it. I hope

somebody will be able to justify these nine items of

additional concrete appropriations in the bill.

I would also think that someone should explain, on

page 9 this language

"Provided that, For the purpose of this Section,

no prior Act of Congress or Departmental regulation shal!

be held to be a bar to the full operation of this Section,

nor shall the Tribal Constitution or Ordinance or Resolutions

thereunder be held to be a bar to the full operation of

this Section."

Someone ought to explain that, and whether we are

laying ourselves liable for future suits by setting aside

the Tribal Constitution, and even treaties, if I read it

right, ordinances and so forth. But you are not the one
to address that question to.

Mr. Kimball. I feel that we are not, that is correct.

Mr. Berry, Mr. Westland.

Mr. iestland. I would like to ask ou this uestion,

Mr. Kimball As I understand it, you are going through

oDtdo nation proceedings on the last Side of the RiverI is

that correct?

Mr. Kiball. I believe that is right,

Ir. estland. How are the payments for that land,

through condemnation proceedings, comparable with the figures

you have arrived at on the West side of the River?

Mr. KAmball, I do not know that we have gone very

far in the acquisition within the reservoir area of the

Oahe dam*. e have ac :uired some 2000 acres of land around

the dam site, and I do not have available with me today

the figures on the condemnation awards as it covers the

governmentt appraisal in those cases,

,Ir, .estland. )r. Kimball, it seems very important to

me, because certainly here the lands are very similar and

I think this committee should certainly be informed as to

the comparable prices paid for lands on the r~st side of

the River as compared with the land on the West side.

Mr. Kiamball. We will be very glad to check on that

and furnish the information to the committee.

 46

Mr. Westland. I would certainly want to reserve

my position on any figures until I know those facts. Cer-

tainly we on this committee want to be sure that both sides

of the river are being treated the same.

Mr. Kimbal). Yes.

(The information requested follows:)

 47

)Mr.Westland. Getting back to severance proposition,

about which you were talking to the Chairman earlier, in

your computations of the value of this river bottom land,

did you take into consideration the decreased value of

this higher land as a result of the purchase or condemnation

of the river bottom land?

Mr.,Kimiball. That is tho normal practice in all of our

appraisals. If the tract of land being appraised -- a part

of it is being taken and a part of it is being left with

the owner, the value of the tract as a whole, before we took

any of it, as compared with the value of what is loft after

we have taken for the project, is the element of compensation

Now, in this case, we recognize there is an additional

elementin that where you are dealing with the allotted indi-

vidual in lands you rmay be taking his entire tract, so that

-there will be no sevoranc damage involved in the appraisal

of his parcel, and in the amount that would be found owini

to him. However, that may well result in some over-all

lessening of the tribe, of the reservation, and as a tribal

unit; and that is otry taken into consideration insofar

as you are evaluating the tribal-owned lands. There, -- whel

we take some lowland, the tribal lowland-, the severance

of those particular lands from the remaining tribal land,

is an element of the appraisal.

 48

Mr.Westland, Then you are taking into consideration

the decreased value of the upper lands?

Mr. Kimball. Yes, we are.

Mr. Westland. I would like to ask one other .uastion,

Mr. Chairman! Is there anything to prevent the person who

has this land taken from him, from purchasing land else-

whore with these funds; I mean, comparable land elsewhere?

Mr. Berry. You are asking the question of me?

Ir.Westland. Yes.

Mr. Berry. ot if there were comraarable lands else-

where, but this dam will backwater solmc seven miles north

of Perrie to Bismarok. It covers a million acres of the

best land in the world, land that has been laid in there

through siltae for a million years; there is actually

no comparable land --

Mr. Westland. In the State of South Dakota.

Mr. Berry. In the State of South Dakota or any other

,tate, in my opinion.

Mr. wetland. I would like to ask 'Mr. Kimball one

other questionss In the proposal for this dam, what was

the figure you used for the taking of this property?

Mr Kimball. I do not believe wehave that figure with

us, Mr. estlandl we will, be glad to supply it for the

record,

Mr. Westland. That is the second ,uestion, then, for

 4V?

twhdflich you are going to oujyl the answori

!fr. 0jn1or1.
Tesa.
(Thie lnforrratton re uiesed follows)
 50

Mr. estland. That is all I have, Mr. Chairman.

Wr. Berry. Mr. Kimball, you do have a record showing

what the Army went to the appropriation committee for, and

the figures that you went to the appropriation committee

with, in setting up the value and the cost of this project,

how much it was going to cost to move the cemetery and

these various things that are set out in the bill? ihen

you went to the Appropriations Committee, you had an esti-

mated amount, did you not?

Hr. Kimball., e have not gone to the Appropriations

Committee yet to get funds for those purposes, Mr. Berry,

When we went to the Public Works Cortlittee for the basic

authorization for th Missouri Basin Project, t

it includvc

Oahe Dam and there were some over-all estimates of costs.

And as we have gone to the Apprt priation Committee in the

past two years for construction funds, for Oahoe Ia-, we

have given them up-to-date figures on the over-all con-

struction costs and a breakdown of what we intended to

utilize the particular appropriation -- which is only a

small part of the over all cost that we are asking for

here, for the money, and what we were goin,; to do with

it.

I am not sure that we have jiven any definite figures

on the cost of the Indian land or relocation of Indian

facilities on these projects, We will check that and

 51
if we have got any fires, we will be glad to supply them

to the committee also.

Mr. Berry. Without that information, you could not

tive any conception of the cost of the Oahe Dam or any

of these otherdams to be constructed?

'.r. Kimball. I might say, to that, Mr. Chairman, that

on all of our estimates for construction projects of this

type, where there are many hundreds of thousands of acres

of land to be taken, we certainly are not prepared vith

detailed tract appraisals, or detailed estimated of t"be

construction cost of relocation of cemntaries, roads, anpd

buildings.

r. TDBerry. ho makes the appraisal on non-Indian land? '

Do you make your own appraisals

r. Kiamball. We have either a salaried appraiser or

contract appraisers do that, and a great deal of it is

done by contract appraisers, I believe, in the Missouri Basin.

Mr. Berry. Does the Tart firm make any appraisals

fer you?

Mr. Kimball. I do not believe we utilize the Hart

firm on the rest of the Oahe Reservoir area,

tr. eorry. Now, the gentleman from iashington asked

you a question Sero a while ago on whether or not t ere

was a great variaJti*bnbetween the asking price and the

price that was determined in condemnation.

 52

Mr. Kimball. Yes.

yr. Berry. I call your attention -- I do not have it

here but I saw a recent press story, about a week ago, to

the effect that the court was increasing the amount by

approximately 40 per cent. tould that be too far off, in

your opinion?
Mr. Kimball. It has hap;onud in individual cases,sir.

Mr. Berry. well, on an ovex'-all basis, would you

say that the Associated Proe;9 was wrong when it says that

where cases haw gone to the Federal Courts, that there

have been increases in the amount of somewhere around

40 pgr cent?

Mr. Kimball. That is not an average fiuro, I

wouldn't say,

Yr. norry. It would not be?

Mr. Kimball. No.

Hr.Borry. Noow, I want to ask you with regard to the

Sandy Phillips PRanch, north of Fort Pierre. You are to

settle for $80,000 as I understand it; is that correct?

Mr. Kimball. T do not know. I would have o oheck

that, and we will be glad to get the fig ures for you.

Mr. Berry. Hy understanding; is that the court allowed

$104,000 as coapred with $80,00( that you people offered.,

That was one instance which I noticed in the paper.

(The information requested foltowes)

^ -
 %.fr.nerry. !rAbott, do you have some uestions?

.r. Abbott* If TIas Y!r. Chain'an# one or tIw

uQ9 tiOns.
Mr. (iXbaltIt or r,& ickforI, or innoy, who would

be bost -,ualifietl to answer it: te March 129 1103 report

of the Ariyo, which we have before us haJ t1w figures -

thore arc uctv:a.tW tbre 0 one, 1;r; the fair

vnatiet vaucu av referred to i0 that repuirt; apparently

base( on the Yart appraisal; Z2,OO,O(; is set out as

the offer rf the Corps In the ml S

irch 2na2, repcrtp and

the f iuro of 1206,4OOO is 9oipi;Tntly the Indians' asking

price. Is that-nubstantially co~roct?

11r, 1(i3mba1i Thnt is correct

I . Abbott. Are you familiaji with the 11arch 4p, ic"4

report of the Vrepartment (if Inter-o whi ch shows tho rev

conendartion of' 402S4,OO?

!rr. itkal. xo we have not 5s0 the Interior Deo-

partment's report.

Y'r. Abbott. Then let me golbac for vpomuont to the

m\

1#6000,00 price appraisal a oof what ja.Gc was that

figure arrived att .,re

Could yov f.' it by year le

?trK ifulA1 l- 1 think it was In 1D620

Mr. Abbott, 1052?

Yr. Virball1. Ye.

Yr. Abbott. Now, have #ou en

mde any adjustrnet, wri#
or downward, based on a change of the cost index since

that time

Mr. Kimball. Not in the lHart appraisal figure, ~e

allow for that in the $2 million rffer which was made during

the negotiaons.

Mr. Abbott. But if the report of the Department of

Interior suggests that the cost index as of fTarch 18,

1954 would ore closely approximate the figure of $2,234,'n00,

would you be in position to quarrel with that appraisal

/upward on the basis of a change in the cost int ex as of that

date?

Mr, Kimboll. That, I would have to check with our

field people to determine whether they agree that there

is that much change in the cost index*

Mr, Abbott. I think if we could have that auplietl

to the committee before the record was completed, 'r.r

Chairman, it would be helpful.

I have one other -uestion on another subject: Pas

it not been the policy of the Corps of ilngineers in ac.uir-

ing reservoir areas, and taking areas for the storage of

water behind the aain stem structures, that you anticipate

a fee taking of the land, do you not?

tr. Kimball. That-has been the policy until very

recently. There has been some change in that policy.

 S5

)r, Abbott. ow, is there not under study -- or has

there been yopsed for consideration by the "orps Pf Enin-

aers within the Department of the Army, a change in the

policy which would anticipate, net a fee taking, but taking

of a flowage casement?

mr. Kimball. There has been a now land acquisition

policy worked out jointly by the Corps of lUgineers and

the Bureau of Reclamation for reservoir projects.

Mr. Abbott. .ow is that within the Missouri liver

Basin also?

)r. Kimball. That is nation-wide.

'r. Abbott. Nation-iide.

Mr. Kimball. Yes.

?r. Abbott. Has that policy been worked out, has it

been agreed upon by the two departments?

Mr. Kimball. It has.

Ifr, Abbott. And is it bein; put into -

Mr. Kimball (Interposing) It was issued as a prose

release by the Interior Department some t ime back.

Mr. Abbott. Could you state briefly how this flowage

easement acquisition would differ from the taking of

a foe?

Mr, Kimball. We have got some figures on that by

telephone from Omaha, with respect to the Chepenne iver

 56

Reservation. According to the Corps of rhgineer figures,

on the besis of the fee taking of all land, there would

have been taken 102,845,000 of Indian land within the

Cheyenne River Reservation.

mr. Abbott. That is, if you anticipate a fee talking?

Mr. Kimball, That is right.

Mr. Abbott. All right,

Mr. Kimball. Under the new established policy which

contemplates the taking of a foe title up to the top of

the permanent pool, and above that, to the five-year floo(

fre'luency, approximately, and a flow easement above that

line to the contour line only, instead of blocking out

tractal outside the contour line, the difference in fee

taking would be a reduction of 7,550 acres, bringing the

total of the Cheyenne River reservation to be taken in

fee, 95,290 acres in fee, and an additional 560 acres

on which we would take a flowage easement.

Now if you apply this new policy --

'Mr.Berry (Interposing) You say 560 acres?

Mr. Kimball. That is right.

Mr. Abbott. Can you convert that into dollar effect,

or has that been done?

1r. Kimball. That has not been done.

 87

Mr Abbott, Let us see if the record will show clearly

what we are talking about, You are saying that your fee
anticipates taking up to and including the five-year flood

line then with the flowing easement applied to that

line between the contour or the higher point and the flood

line?

Mr. Kimball. 'that is rifht.

Mr. Abbott, Is that what you rdbr to as the flowage

easement?

Ir. Kimbal'v The flood line is the lower line as

you understand.

Mr, Abbott. Yes,

Mr. Kimball. The five-year freuency flood is not the

maximum flood of record or the maximum flood anticipated

in this reservoir. Our ultimate contour taking line will

be much higher level, at this higher level of the floods

that will occur iaybe a hundred years, or a hundred and

fifty years from now.

Mr. Abbott. would the acquisition of that flowing

easement as against the fee by the United tatee permit

the continued use <f the area between that flood line

and the contour line?

Mr. Kimball. For practically every purpose except

human habitation; building for human habitation would not

 58

be permitted in that flow eastment area.

Mr, Abbott. And is it to be the understanding of

the committee that this new policy, sinoe negotiations have

not been closed on the Oahe taking area, would be applied?

Mr. Kimball It would not be opposed by the Corps (f

Engineers. ke would be willing to apply it if it were

agreeable to the Indians.

Mr. Abbott, Have you so presented to the Department

of Interior?

Xr. Kimball. That question has been raised. It is

a question that is still under discussion between the

two departments.
Mr. Abbott. Mr. KIimbal] you say it would not be

opposed by the Corps of LEgineers. Can that be translated

to mean that the Corps would recommend that the flowage

easements would be applied rather than the fee?

Mr. Kimball. I believe that is correct; as I under-

stand it, that would be, yes, with this qualification

on the reservation I might say, that generally this new

policy is to be applied in all cases wih re we are already

in the process of acquiring lands for projects, unless a

landowner says, no, I do not want you to leave me any

fee title subject to flowage easemnt; I would rather

get out entirely; we started on that basis; we will

 89

go throwh the transaction for settlement with you on the

old fee basis.

Now, in the case of Indian lands, we are confronted

an
with this situations You may have Indian allottee who

would like to get complete payment and have his lands

taken in fee, but the Bureau of Indian Affairs is in the

position of a trustee for that Indian, from the overall

standpoint, and may dedde that they would rather that we

apply the new policy, and vice versa, the other way.
Mr. Abbott. But in any case, you are got suggesting

that with reference to lawaii Cheyenne Agency land; that

is, one area you would apply the fee title principle and

theother area you would not?

r,. Kimball. No; we prefer to have it uniform through-

out the whole reservation.

Mr. Abbott. fave you completed your negotiations

for the acquisition of land at Fort Randal', Fort Pandall

taking?

Mr. Bickford. For that project -- not too much.

Mr. Abbott, How far?

Mr. Bickford. We do not have title to it.

Mr.Abbott. Has that policy, Mr. Bickford, been

applied with respect to the Fort Randall Basin area?

Mr. Bickford. The new policy has been adopted

at Fort Randall for the reason we have several hundred,

 60

or maybe several hundred trade in condemnation on which

final judgment has not been rendered; thereforewe are

giving the land owner, some of the land owners, an oppor-

tunity to make a decision on their own, whether they would

have the land tack with the flowing easement, or be paid

the fee value in its entirety.

Mr. Abbott, Well, in addition to Oahe and Fort Ran-

dollt there is contemplated on the main stem development

of the Missouri River Basin, CArrian Dam and Gavine Point,

I believe. Are you now in the process of acquiring land

for those?

Mr. Bickford. Garrison I)am, the ac uisition of land

for Carrison Dam, I would say, is, oh, 90 or 92 per cent

complete as far as the title in the United tates is con-

corned, There are a number of condemnation cases which

are pending, upon which we have not come to trial yet.

Mr. Abbott, And ravins Point?

Mr, Bickford. At Cavins rointp the new project if

my memory serves me correctly, the only thing that we

have acquired title to is in the construction area. we

are now in, you might say, the planning staoe, working

out the stake line for the reservoir area.

Mr. Abbott. One more -uostion, !r. Chairmnt: avo

you comunicated to the Department of Interior, the

sense of what Mr. Kitball has stated, that it would

 61

be the recommendation of the engineer Corps that W-iet*a

sonaidwration be given to the use of your flowage easement

sac;uisition, rather than the acquisition in fee?

Mr. Mickford, I want to be sure I understand the

question n you say have we recommended?

)tr. Abbott. Has the Department cf the Army communicate(

its position?
?r. llickford. To my knowledGe, ithas not formally.

I feel that there has been discussion of it between the

b3 various officers,

Mr, Abbott*. ould you gentlemen, in the near future,

) be in position, possibly, to convert into dollar effect

the flowage easement policy as against the fee title policy

as was anticipated in your original appraisal?

Mr.r Kimball, As to the Cheyenne river Reservation,

you are now talking about?

Mr. Abbott. Yes,

Mr. Kimball. I thinckwe have had the field make a

study survey of the over-all Oahe oRservoir, Indian, and

other land on just that basis, the difference in money

value and so on, under this policy of taking, and we

ought tobs able to furnish that to the committee very

shortly, I should think,

 62

Mr. Kinney, That is about due.

Mr. Kimball. I understood that the field had reported

that they now have it on the basis we would have it as of

the first of June or the 7th of June.

Xr. Abbott. Will that constitute a new element, in-

sofar as the Indians areconcerne , open up new negotiations

or discussions, possibly?

Mr. Kimball. Pos ibly.

Mr. Kinney. Possibly a re-appraisal.

Mr. Berry. Gentlemen, what do you mean, by "possibly"?

It will trake a million dollars worth of difference, will
it not?

Wr. Ki.ball. You mean $1 million less payment to the

Indians ?

Mr, Berry. Yes, certainly.

Mr. Kimball. Not for 7000 acres? In other words,

wo are still goini to take fee title to 95,000.

Mr. Berry. Nel1, let us tet the figures straight

here, When you were negotiating with those Indians, you

were talking about 104,420 acres, is that correct?

?r. Kimball. That is what the Indians were talking

about. We were talking.about 102,000, the difference

being, to some extent, river bottom land, which the

Indians claimed title to, which we do not dispute; they

 63

rtay have title to it, but we do not feel in regard to

any waterway improvement project, the United States must

pay for acreage in the bed of the river, or for islands

which ,way have come up as shoals in the bed of the river.

There is some difference between the figures of

the Indians and the Corps of engineers in that the figures

which the Indians were using showed 104,420 acres, accord

ini; to the fituros that wo furnishe- this morning, and

the fig ures that the corps of E.ngineers was using was

f"^,(3U acres,

Mr, Borry, .hat is tho basis of your arLument there?

Is not there a separate treaty where the title to the ro-

servation was conveyed?

r. im
iball. Title to thu '.I of navigable streams

In the United States is subject to a servitude in favor

of the Govermint to utilize, oupy-the bed as maybe

ne-edd in respect to the improvement of that stream

and without compensation, to whoever may have title to it,

whether it b the Sttta

th te Indians or private individuals;

that is the isis far our position, I believe.

r, 1erry. I arm advised that at the Omaha meeting,

yot a;,recd, an agreement was reached by all of the parties

as to the acreage, and there was no question about the

acrea;ge. Ts that correct or not?

 64

Mr. Kimball. I do not recall it that way, sir, no.

Mr, Berry. Well, wire you there?

Mr. Kimball* I was there.

Mr. Berry. Were you in charge of the Army corps then

Mr. Kirmball. No.

Mr. Berry. Who was?

Mr. Kimball. BHradier General Thickler (?) who was

the Division Engineer, and had direct charge of negotiations

on behalf of the State --

Mr. IHarrison. 11il the (entleman yield?

Mr. Berry. Yes, Mr. Harrison.

Mr. Harrison, For the record, does the minutes show

whether there was an agreement reached or noti

Hr, Kimball. Probably so; I am not sure but what it

may be set forth in this report,

Mr.7 1nrrison. If I may ask the witness, 7r. Chairman,

to secure a copy of the minutes of that meeting, so we wi31

Sbe able to determine whe ther an agreement was reachou at

that time, as to the number of acres involved.

Mr. Berry. il1 you funish that for us after lunch

when we convene alain?

Mr. Kimball.We will try to secure that, yes.

Mr, Berry. Was that considered quite an important

feature in the negotiation with the Indians as to how

many acres were to be taken?

 65

iir. 'rimball. Yes# and no. it there are 10 acres

,)f land In-the river bed that Is covered with water, it
has no substantial market value, in addition to the. fast

lands on shore, to which It pertains, and you would not

value it on the acreage basis as metadow lands or agricul"
ture land. it would have probably a nozoinal value at

Be.rry* Suppose there were oil discovered under

thi8 land; what would the situation be then as to the
title to the -oil?
11r..Kimball. Under this bill, I believe it would be
in the Inuians if it were paa.ed by the Conjyoas'.
M4r, 71arrison. Undeor the freo-bed too?
MIr. ZI bal. Yes.
:.r. flrrisoni. :;o there would be a pos:dbility of
securing somno substantial value to the stream bel.. in the
case that uineral cc oil should be found in that bed?
M4r, fffa That is ruita true, if It were found,
but to those in charge of these negotiations that ,.Pas a
speculative element.
Xr.nlarrison. Is it not true that all of the findinj,;9
on the Yissouri livarv for those that ha"vo found oil, that
that has been true until about 10 years ag;o?
Xr# V{.'Jba1,l, That is -uite true, but that does not
necessarily mean that a tract of land now has any par-

ticular special value for possible oil,

mr. Berry. Is not this in the Williston Basin?

.r. Kimball, It is in that area, I think.

Mr. Berry. No, I just want this one ,uestiont Is

it or is it not in the Williston Basin?

Mr. Kimball. I do not know, sir. I would not attempt

to make answer to that.

Mr. norry. I want to ask you one more questionn

and then I au going to give overt This reservation as

such, would the Indian derive any benefit whatsoever from

this dans from the Oaho IDai

1r. Kimball. I do not know that I aTa competent to

answer that. 'y own personal opinion is that the economic

benefits of this issouri Basin Project are going to be

felt throughout the Basin and that the Indian starvation

will necessarily benefit as a result of this development

out there,

Mr, 'Berry. Five benefits were - established, were they

notes Navigation, flood control, power, irrigation and

recreation?

Mr. Kir balf11.a Those are the particularly onuiorated

benefits in the justification of the project, the economic

justification of the project, yes.

 67

Yr, Berry, certainly the Indians will not be benefitted

fromn any navitationf so far as flood control is concerned,

their lhas not been t500 worth of damage to these people

livin; within thin reservation area in the past 75 years.

The on'y way they could be benefitted from power.

Obe i. ua block of power were aasignod

would to there, which

Il not 'cin;: done; there is not one acro to be irritated,

not one drop of wator to go out on the land, is there'

A ! as far astccreation is concerned, their recreation is

to e tia.ken awvay from them instead of their being a benefit

providtdc br this (damr. So that actually, under the five

) btcnfit; , they lose in all of them.

t am ':oin: to refer b
hck nov to the report of the

*"rc: 'n inis to Senator T utler, In this connection,

yorut:tate bnra'e 3, Fpararaf'ph , vh re you are talking

al:out the double rara:;e by virtue of the fact they have

aslrk for preservation of hunting and fishing rights in the

nr'a. Tat, a3 a matter of fact, does not follow, does it,

.o ue
bi of the fac t that whether they are reserved or not,

~le '; t'cre is

un huntini and fishin, there, certainly it

is not worth finything, and I call your attention to the

"T'n report on page 6 and I .uoto:

b5 r The Indians will lose valuable wild life resources

in recreational areas, on the Cheyenne river resorvatin

over 400 deer are esthiated to live the year round in

 68

the timber land area w1hi will be inundated, It is

aiso Populated 1W thrSands ofd rabbiftir a.d racoons

atre annually taken Cront this

area. -Id'Ti Vo ;e
4c- rovisles
p the Ioportant food for
13t0 farii.6r1r, \si j 1wd
NJlost*

:1'T v IJ.;h ant- Im il k)1't)Sria tn their report Cated

.anua y 'iA', estAL* -Pvted tihut the nct annmul to.,:. of Wit

I'l-ro: on~ tbu Chcy"'rine tI oil I'::r.uII'(! be ct-

4I,t f:l.-Ovn
- ffl,4 the vvnort

SJ' tht Vluw )trl :It, ; ure it" cOrrect, t!t

2 ~l.:t
1 : r' iont v4(ln cori1utc ZIflr I cEpitoiZeICQ at

f'e u r ceref: 1:
I-tno -it

*i it iJl'v;~. T not zIfiPC to v.nri-er

t uvttiurt hntJ 'j ltt:; th ;e 4.'ye.3
y bv
, u t-let we
Vhsetth.s
Vsire- rISi Jon o ri thatton
ist aptaiI z i rwor c

CHrlt); pmw flay

f7 the tbsfls3f5trmlrw nf the vanlYc of

property, Tf th0- f-Cengres! 'V to cflrponate ticlre dia

en Li t ~ifvtb , tIt ss it:t -, rIrerct tl* tto do so,) i' It 4- s

no* nnreJ :c thbrvl ised in retpjnnrtlnr the vale of

1) ()r t'tg,

Vjt P(rrv. o%, ut . Jt Ir- a norm-i% ;o ho of cfetr-

rinnj drivaos.

;r*, ;irrap *Ifn uviasOus; not always.

Mr, trry, And certainly it could not bn
dectorminod

BEST AVAILABLE COPY

as double, the percentapfe doube, where one feature of'

the datimo Is taken out, could it?

'r. imball,
, Not ewctly butt in effaetq, whnt %e are
sayinpf, 14(r. Chairman is tlu t the Flaih li1fe which would

bo reserved to tho Indians undcr this bill are worth

Te.evy, That l5 right.

I V~tbEba11. About the hunting; rights that they

Would losto tp>the taklnj, of this lancl boing worth ~?

,-1.11ons noi yojmay or' ~ not lie crrx~t in that# Nit
if you say the huotti, rights that will. be reoervatti n

thli bl."
'r.a zero# then why write It into the bil?
ro 1.'cZ>y. It is under the treaty or 13G8, iuic

-'ur'Vior s Ittor thA, .. nd the ill imptzly reserves one

f(,atura ol '7 IG8

Ja rrocty,

':o~i, 1.H us drop Oo4l1 to ,Uo .ut 0 4-itJJ-raph on pfg!o

C tlK, hO:eVu ', 4,

11W t t Sucf*
iueh r0,04ationI
ne tain aretnlnV
about tha iQo o oiocatonOman

6i ;
1~i hevc~, ftheat such relocation be

n, Gtjrntcntal oprtiuon under the super

vison Cof t iv PtWCru of Tndta Afftair, sdth anwl
aptrerprizttirn to that Atercy based up;fro the cost to be
incurred aftir that Agoncy ha s furthr ol.-portunity to

prtpax'e dtttilesd figu-res."

 70

Tnother wores, the Ary c'oce not propose to pay

for -amrrelocation or rehalttatlon or rrestablishivent

of then Indions; ir that correct?

Ufr. !{Fmxiall. Vf 0 question whether that Is a ropar

ouewrit of the cost of the projisct. Vi th respect to the
non-iai.tl'e lan;t, tht oextont of property: 4 u.,.istl on that
Is chrtabto tothe
to the preje::, the Oarclt value of the land,
plus not to tzxcend LIrp-, eL$t o?' tha value for removal
C Sqt'O

JryI It fro rjY1 meototarY' to 'unomtbljshl rlw*

,nizsbt
Sist;;wo *Cs of th e facI-

yo r andt xv~ !v)~,I tin)T

u rdri.vP:r
.txitu U tcii~r: t.ci
Vt Lil% lttui0
i 1 Qertainly should
ct tint ' jto :
'.* L iv Vo itf In 0 a , ",iL#o
s r.

trr~.ir UQt iPt;'U3a COYSt on

~ic-.
,,i~, L:l~st involve a,
N,

~l .i ; .\ It piAi that you ror

rl w bititt 1&0 ~Eeu 'akfng a four

a tl I to
' f V; ( 14 t tl ira-. \IHrl s t * t

t G~ j XI( iOulli brb too

;;. i5(4 n r (U Jt i

' ,.3I t it,*j . $ )A

k #--at on t he
$U

SILA

BEST MIVILABLE COPY

 71/

ir. nelrry. I think you are corrects Dring the war#

ae strip
they took a strip from the Pine Ativor )eserVwtiong
40 rni1OS) onl; and 124..5 miles wide# and they paid Just
whiat you propose
the Ibarte cost Of the land on the was of
re~iueoa the
to CIO for whiteo-wfled land. The Congress
of the actual
InAiari Dep.-rtmoflt to 1,,o out and make0 a study~
1 hat was about 10 years ago.,
damxw-e ,- caused these people.
The report indicated they were da;'agred
to the Qxtont of'
sentit1(od
per favillyp plus the fact that they were
to addlitional. money for their land,
*Toi-i the 3Bureali of the Butt.-t has ufl
adverse racoui-

roeriatiofl -- the Army of coturt; recomwonetidd its vies and

that this$ recomnCia
that was adverse# so I huve an idea
tion of yours3 would end up In about
the sape placeO.

I have~ just one miore point horet on para 4, para-

winwxal riLhits.
kuraph 4,9(deals with the reservation ok'
or pro-
111i you havc4 any objection to the reservation
this land' You
vision rouetvinfr all mineral riLhts ini
-SUR!C3t Only oil and gs

r
1,'Ambal1. That isi currt~t. That Is in confor--aflce

I 4'o not kno,4 U*,t

to the Iepart ient's overo-alljpoicy.
Wyporiow feelini[ would
T can speak for the iopuavt*.
ob)jectionl
be that perhaps we wouldi not have any sariuuu
if It
to the reservation d minra~l ri~at~, overall,
 72

wore subject to suitable restrictions that the recovery

of minerals would be under regulations of the Departiment
to prevent any adverse effeoct on, the pro".r operation.
Any reservation of' oil or 1;as or minerals# of any kind#
would have to be subj'zt to such protective rights and
rol;ulations of recovelry.
Mr. flerry. VNow, the reason I asked that is because
there is a large amount of known low..i-rade manganeso
on the Cheyenne and tho Crowi Foot )Reemation and on lands
that will '?o taken and are beinU taken by the Federal
Government. At the present time, I adinit that we do not
know of any proces!T; of obtaining that mar anese,# but It
there is sufficient power available# we may be able to
e.-trat that mant-anese ore and It may becowo very valuable,
either to the Indians or to the Federal Govornment, who-w
evotr has ownership of that land, and I thinkc the resorva"
tion should be for mineral ri,,.htav subject to -whatever
neces4.ary language is needed to have,
IrrM*rKimball, Yes,*
Mfr. Terry. Now, on pav;e 4p 'aruj, mph 7, that deals
with the right of occupancy of' the Tndians on this lanLI
until such time as the land is coverv;_. by baekmup. vater,
and yous stato this, and I uotes
"Such ~HtM of occupancy to combine vith a provision

that no Tndinn will be allowed any furttvr payinent to

 73

tho Indians, at least, until after the date for reliniuish-

as
inu sugoasted."
row, with reference to interest in a further sum.Do

you mean the total suim?

"r. Kirball, Tes,

Mr. Berry. Now, if the settlement was made for, s~y,

12. million or $15 million, or whatever it may be, say

"12 million at four per cent, four per cent on that would

be quitee a sizcable amount of money, ould it not, and

would be ruite an unconscionable rate of rent, in my jud;-

ront,

r. ! imbalI. That presupposes that Conros:; detonines

that :'2 r.nl!lu"t today is the value oC the daima;e t the

'r, ry.
, '. el:* the relation --

'r, iibal continuingu) Our recomredation was based

or a c estion, in our mind, as to whether the full extent

of tVi dapa;:e to the Indians, the reestablishment of costs,

and so on, are possible of evaluation as of today.

Mr.3 Berry. Then, as a matter of fact, both you and

T are a:kint interest on what amount?

?r.,,:i';-iball !:. l , let ioe ,ay this, that yourprosent

cvalvaticn of yearly annual loss is arrived at, in the

first place, by computing interest. Ihen if you value it

 74

today and pay interest on it, are you not doubling up

on it to a certain extent?

Hr. Berry. On that same pae, at the bottom of the

page, in the last paragraph, with regard to leasing the

lands between the high water mark and the low water mark,

"The Army rtiineers propose to maintain a staff there

to handle the leasing of that land between the taking aroi

and the low water markk"

Is that what you are proposingg, is that the theory

of the Army !:nji.neers?

Mr, Kinball, ';e do tat ri.ht alunl in al reservoirs

where there ara no Inctian lands involved, V-e are granting

leases continuously forthe use of the land that can be

made at intervals that is not submerged by water, And

that is standard practice.

Mr. Berry. And is that put up to bidders?

Mr. Kimball. No. It says here, first the fornier lan

owner is given preferential right.

fr. Bferry. To meet the hJlh bidA

Mr. :iimball.I I do not know that he has to reet the

high bid; it is based on the appraisal made. An aprIraJ,

is %;ade of what the iair rental value would be and the 0

is i;ven preferential ri:ht to lease it, and if he doesn

then it is advertised to the highest bidder,

 75,

r- Tla I0tiiev W p e hto 6~ot 1.1" miles

of lazi ul. thu rivo' i a the inaar ltoKYu Lion uAnd we

are 1110 tO0t

oity ba@ to tha t iwa Pwdtu132QZ Ui 2UG

thitz on the u t,-uppsoyou 1,(szscthat

2& to srnoono olso,

the -,torvinc to 6uiiotw (.1tiep you have then mde units

d i!IL 2~.~16t, l :h Grrtit setst. svctrsl turflz3 ipsj Of' land1~

swv v!A OB
eq,,haive ov 110nt.
, )0not luw.w whether it, would makea

it tno I1;v w It ot
C.u o*I;

ta-uythis
'tJI rental. vnita':that we k~rcutallkina" about,

tw diFI>IW t-i~ Ini runtil vsi, wOtl(i certainly he uuch

hi,lctl t 1 1eI t cc'Ittnfilla i)y tite 1Til

'Le toulC.' It not,?

l.a! dl * *hQ. I,
'tN.Imk IO h I
v4'r it w ulW 1)e

z'iot 9iCs &by.

:ziki rs, : (e'
". T( thcv? e-unti iruht. it, thlirs st
4
ri's~ Per-~
IC.
l;hci-
, Is it nct,

:i-at ,- t~t, di they

;Lli~~
t U--.
I *77Jc TtIIs ;7G'
;t :
V CJAyou i4 twiInter use
$4 ' S
ot,- N . hcy el w tl1N s, tho of f f roi nthe

~.iont- to the IndIians

hx~i.in: t-.o 3s ciirs of thu;, "kvorn'i, t1flndwithin the

!r,(L: n s&ilrclrationtr arfXEa?~

 16

'W, frriball, T believe that we stnte' t t wte (IiC

not have in this letter, did wr mt?

rr. !r~cr. Did you #ay thnt' 7 eoulC not findI tlit.

"fr. TrUiu'nl . The only thing wo object to is that It

Is boinv roervrl to thc'3 Lv s t3tto. nr
Sny, we are

reco tint that Rection bejo

Wmrni -nm-, teJi , that tha
V-al

;vtcervaft ion homirid nor he a Ia

bate; ftM I It be n servitude

or ar casenc:t or ,mothini of
(o tA t'o, aid then we Jio

'n toe sty

T bTh lnt or al TP1ctorifl -,nt" pr -i-

t I co 111:tlui Thencintlns

would havc, as ether foimutr IbnU ovmer-tiJncs, jpd-Cr(flAtr

trcaItr'cnm t c, !ratirw cases (' tv uc t[ land forr zinj

ai otICcr
(l" t.YJ O&c9 arr Uc..
j ,clii% ;U tf fI-fr rental

"T"tie
, !c r l "h ti o
w)icI I

I brb~
a 111

To0t u C;...O on to61 1 't r; '1"n..; 4 V iI n, T I

e)(, Cvi

tIhi bulOl:J3 to the Air iturce . ha; tat r'aUt tin t

OVat o thIt oj u Obu i

Ud( ftv.iu0
cn I*o.- t Lc- t1-. tha ,Lvan.

The fervatinn Aj:ency haudlb- ,f;, tat the Trihe

it j! t <zzr~
tin. thu ' thi tii,' .1 ri bal Jari

I :oulC iti.ne'fi
1; (64fl4t (I)JUC tY, Lu t m the i be
htatrwlt , thu ronitl r 1 >, ' Ci They uc
6ov

thvir 1-'iv i-
ii IZnW P

"'r., j:jPi!t~4k] . t'tl1 ite ola i i A!t et in this

 77

praagraph of the letter here is that that is consistent

with the standard practice of the Departraent in reservoir

an ,. Tf the Indians are to be given that privileges that

is a tHatter for the committee and the Congress to detertaine,

and if they are civen that, it is our feeling that there

should be sonE corImensurato reduction in the price that

is to be paid for the land. In other words, the appraiosa

is supposed to be t;ssed on the complete taking of the land

including: tincrals and evorythin-elso.

Ir. carry. I have not rade myself clear. The tribal

counsel is Actin, as the acent for the Army :ngineers, you

,r. 7 irib'all. And turn over the leaTsing of this land

to thei --

:r. terry. That is correct.

??r, Kimiball. And they turn it over to the Iovernment?

Hr. Berry. hat is the way we handled it out in that

other areas is it not?

Nr. Bickford. I a not too familiar with the present

procedure, .but I know back about a year or so ago, it was

operated that way; at least, I heard it was. This is a

little out of my field.

Pr. Berry. It seems to ro that that would be more

of a protecttkn than anything else.

I wish you would give some consideration to this,

 70

becauu c the fact that here you are dcalings not w! th

tho 1n'ividual alone, but you are dealing say, idth a

mun!
c rail ctyrvorati.on that will oi'n 'I of thl shor.ntiwn,
and IC ono operator wC1o gvon thew oportuimty to take tip

aiSID4,11 n cotild pcnna

Itcyooat ak aOI nrt area alt.ic40

les,-,7 tn rr afa has Tne

Tho
t t ts"1 \oncornerl. There i3 no worry

abotit, Lis T unlerstan.-* -it ih

t rpe are out 40 tr'actt throu h..

out tIti:r tt3ro 1.417 ril-e cof shorelin, of non-Indiart laud,

bt- T thi tjj, Ithit is t thin tt y hou'(I

_;
,u

thout t too, ICatu

I feel. tat there is sowothirr, still

to be wncr out, an(! T th ;nVc i t Shi-lmfd bC worlecV ut-t iu14th

a1l sittiflr J' In order to protect the Iritians In eI'tet

rbiit::i to thV laf nd.

,i you haive a Ueitlongi tVr Abbott"

','yr. Abrtt, One otler ' Uestioiv, Y{r,, hai"r.0 n, Or.the

2a-st - agek-of the report oif the ',vart'icnt of tho Ar.4v,*,Pp the

seat ftill paraj.,raph, havin, reforenct. to Se-tion S on

pa, 0 G
Of tHQ OU hi
irs o o1ate
11ri.vJ, t i a 9tattient i , r)i c

"I-octi'vi rqciteg the hardOs t lvostorlt crIiete'

by rtse aid f'll of water to b itrrpounded in the Onhe ko-

4 eroirt anid: it i1aes ujpon te United States the roaij.oti

si ily for protective meaiasuros, The De.,artmort consider

there is no basis, in fact, for such a recital."

Could youg "r, X taibal, gor one of your asociatem ,

 I -.

comnient on thatil You are saying; in your report that

there are no bazarchs, or that there would be no hazards
crea tod to livestock by reason of the iripoundinU of tho
waters; i that correct?
r,, I imballo That iJS a uvation of opinion, Y woulcil
sayg, on our part. *e do not believe that the hazards
..-
v-411 be any 1area ter in the rosorvoir than they would be
a1, nti; the river in its natural condition. T would like t)
as~k 7r'-, Innc.y whether he ai.roc ;

-r, Kinrwy. Yca, that iu correct,,

'T, Kinmba1. The change In the water level would be
ioro gradual with the reservoir than it would be with the
open river' condition.
Mrv Abbott* 'nut is not this true, with the open river
condi-tions, after hundreds ofy*eai's in the course that
the *,UMi;ouri !i ver now follows, that youhavo either a
river bottom weadow which may from time to time be flooded,
or it runs Into what amounts to an almwttsUhort bluff,
It
or' a rather steep bluff, and is nct likely that cattle
would be ,razing from a verticle point. If# however#
you tak e them ur on the steep contours# is it not true#
that in wany places# you will have a rather sharp inc'Jline
that would tempt cattle to graze and if the water rises
and fal's, you are Coing to have a perhaps bogty or
 80

muddy area or areas where they will Indcod find thetm

selves in distre.)

lfr. Kivhal. Not being; an en 1ineerp I would prefer

not to try to answer that question, It would depend upon

the rain in the particular area, I would say, I might

ask Mr. 1 innoy if ho has anything.-to ad' to that.

)tr, bbott. It is perhaps a question that riybe

a runchor could nswr as well an aan nnneer,

',as the attor brought up in ycur id2sus!'on'

>v.* KlminilJ. I th-ink it mas, ycs.

*r, Abbott, And it

the ArxMy rej ecte(It

r. Kinbll. The Ar'ty takes the l:uotion that the

..

hazards to cattle wil I.be no jerater utlcr reservoir

conditions than they are at the presntttie.

Mr. Abiott. Well, the recitation in the bIll, linos

1.0 thrciu-h 2 rira(1, an(' T vuotet

ottce
"Tht. UnItol and tht: anti par1'tIoi to

this agreement rocolr) nize that Et hnz7ard to livetock

is Created b the rii.r : fall vf the

heatrs to be

iLloutcd in C.WL
1Yf!:seroir f

Insofar a.. the Army Is ocernec# you ('o not so

recoLnizaT
11r. Fuball. That is right.

Mr. Abbott, *ould any expert testiv;.ony on that point,

 81

perhaps trou an ontincer, ofr porhaup from people who do

rraz'e cattle in the vicinity of the reservoir, help or

he prranaivo on that point?

'r, .'iha ,oll Tt ltold hvi' to 'bo coupolnd with actual

know tg of what 1he rsrjryoicr Icyvt is oinu to be,

"r'.hot0tt. '.ui you would think, If thero was such

a :t)azrd, that precautionary measures woild be necc;';ary,

ch a':cJt idr.i, cr vbltm e';r wa:i necef.ary, be erected

without a (:i tioal cost to th IrCia rs themselves

oMr. .ith ll, That is not neeftr ari'r s ueation I

Ca:0 answer s, r the rcaon thut it woulu Jrependc upon

the hazards,i ecoA;o-ic hazard:; and cconoic costs of

prove iriw such protcctixo nrcu:' trs.

o $k
i. But yo; perapsl4 ca';nut so ;uch apply

a n rve to vh' thcer cattle woIuCb be in danor, as

'E~
"ILx a 2 < animal wha (AJert
( :r in that.

If in &rs'. cot
a 0 tvuL the pri-

ril1 y of t.iing the cattle ldown to the water's ed;e

they wi1 not be stlbject to thbt hazat . 1

Mr. Rr,e-tt. voldcu not thils flowa';:o uasetaaat there

crhaIi s
E ayive qwae effect on what wo tre tniking about?

"rm, -Inul, !rc"pt tht the Plot a: easemen t

thcory th t s are tal; in{ about, b~ear in m;in, does

BEST AVAILABLE COPY

not ta'down even to the normal power pool of this ca ,

It is a hTh.hr levels we taise fee title aboleo the normal

powor pool, which will provide water and wilL prevail for

the grester rPart of the year,, "'a take foe title on above-

that poia. whore a flood on nn arjiareto of ovfery tive yearo

wouldI reach, to that there will be a stretch of land on

which the Ineinrs iwill have the r*iainin.- lan, iff wetake

rfo title, w"ider the newi policy, betwcri thuir property

l

and the *iator, most of the tin, oven urwier the now poicy.

r Thbott, Des yotrrolocation ta1le into consider-alm

atioin, the 'I'Mncl:] i" theory they now hove In the !t

That !-u who oun tho cattle is ret runrlble for fencin,

tfse-r in, 9ot thatt the at'jaceat :al: ou;nrf- sare re uircd

to fence the'o) Oit as thley iurc al one tnic?

1'. Rkhall. I do not know that I ar -a trvr

to answer

that, Xormally we could fence thcw on the sarie basis as

tl'e pasturage the cnctioi. the I 3,.t-tira was in u-hein we

came in; If' there is a Cnce f riot, reocatiogo thenieo

vovvld incli;o a fence in the relocation. If' there t no

f nr, vvow]d
w not incltie the cost of a fence in the

r1 Oa it *I#

Vr., Pety. I an not jviL, c ral;.e z. point Gf oruacr

thaf the Vt1'e 1-Sin !66SJV11# b t 5iLjiy call attention

to It. ut T do want to announce thatt v.;ithut ubjection

 83

io wi12 tweet at A2:30 this nf ternoon; in this room# at

'low, here is sotwthi1U that I would like to have

you check" on -- and I wan t to announce also that I am
-oinj; to turn the .,ueationir -,r tolir. 'lox from~ Senator
;-"atkinsl ojfia nd Ar. Juhn~e from 11r. cassoff ice
au"' CtisQ &i~ tlaw,-aa wiill W1w-t out with the (que@tiork8.
to do that tiuis wviaxw but ran out of time*
I wuat4t you to check this during the noon hour and
ii you a settluiment under~Z the Garrison Do
for' the river bottowi land.
'. 0 6, iA'bi%1L. I can answer that questionn right now,

'"i Ghairnanr, U you want ie too

A46 ::- y eso

Ajr'. r4Wija ll did noL ... Ake settlement on the

cirriz.,in )-. mfor any thinu, 'Jou russ ,ae settlement on

r~U~u !am~; they rejrctud our negotiated agreement

irthoy nameod a fiiguru that wa*.s to bu pa~id for all of

Vi
iLn i.Thera -ware w UOuetjifl5 ofvaluirlit

)-cv ai-iu .WavovAbeiCnuver iurnishad the Congres

~9XUif~. o -W reueixiaccion# any appraisal of th* Indian

v 11,11,, ' ort11fleithold i(te4dion that vas being
Sftov (tho G4ririun i~v0ir.

~ ~)2Ii$1
4 (~w~j:~i3.i las an UstiAate of'

th-ooJ t i'4 ac iuirintV lieu lalau89 othar lands# which'

we tried to locate on the a suution that it would be
as Uood for the Indian$ as we were talking about hero
this morning# and what wee were taking away from them#, and
the estiu;,ated cost of acuiring these lieu lands, which.
the Indians could use# was 58,705f(M figure, which the
Conress took, not having; any relationship to tho lands
'we were taking; from the Incdianap but what it would have
cost by those particular lio lanUs an-i the,,ysaid'. that

money Is sot asido strictly for' thizs tribe of Indians ano(

you are Lvinr. to nc;;-otiate with ther for the ae nisition
oft their landis.
Actually# in the case of the V 11flerthold Leservationg
af ter that settlement was authorized by the Conf-rus!'*t and
accepted b--,- the Indians# the Nrau of Indian Affairs mulc
an appraisal of those Indian 24ttiis and if I am not mistaken
the apl raisal made by the Bureau (if Intlian Afftairs was
something; les than ,kS million, or ap~roxiniately ".3 million.

That was2 million les:;, at leiistp tha the figure which

Contrcss had directed us to -sturL out wit he

The Congres-'!. in additicui to the 400,103#000 figure

awali' C 11.6' llion of additional iornoy for danajaes. fTat

*;7.5milIi.on f or thea nor thol1(A ca~t- %a not charred to

the arrison project but wais -

Ir. llerry. has not hru

 85

*r,3c:~,l. '"au not etr!:e

lmz,t atar, it wis
Budtg: by the 'Bureau c!" tndzan Aalar in the Tnterlor
Department bud;et Iatdr.
In addition to that, we are nowJ spondin, at, I tol1d
you before, soe s .0 million to tvmillion for t 1cocatirsn
of Government faclllties on the hLcThQrQfo1d vservation*
.,, llerr Ina addition j( t,, j li ion and thc
t,,7 rid"LlZ~lonii
4,r. lat
ThttaE~
its ribjhi,
:I'vety. Threu 1*:3 ,,i- tbu.oftrc or four miraiinn

do~ax't~

Ivj. jiiifhwtJ * 1iht IMii.liiO;~ iov'~t fcir 'OPICt~,

jxx, Ieorry, 1, Ight million

fr. riL.a-ll* For ivelocation of rcof s schools and

agncy buil,61n!-s relocation.
.kr* Bleriry. The coni-ittee wui. stitnr': in voces until

f l o.rouoi,
p a t 121 i a r o oj i wa a t a k.(in ut i1 2V;

~.t 'io the sia.iie dlay.)

 liednoodayq ?lay 10, 1954

(The subcomm~i ttee on Indian Affairs of the CoLWA tteo

on Interior and Insular Affairs resumed its season Ut

230! pie, Honorable I*.Y. Mrry (Chalriman) presicing.)

!tr. Berry. The convuitteo will please come to order,

Yr. Kimball# till you L-entlezuen toko the static aLain!

Mrs Kithall., Yes.

Mfr. Berr'ys 1r* Grorud, on the staff of the Interior

Cumitteeilin the 5ena to, will takeo up tho c;uoationini..

'r.!Grorud. Yr. Vimball how~' nany Indian families

are living in that area?

11re rJdrbll, in that aroa-w I think wie have that fil',ure.

Accoi in e
to toiaoneral inforTation that we kavv, there

are a total of approx-imatoly (06 Indian familiar on

tho total reOorvationi, and in that area of tho Oahe L-am

thero are 131 families.

rre Grorud. How many fawiiou?

'ir. E!imlnbll., One hundred thirty one families.

lire Gmruru. Aoce that incude~ the Cheyenne liver

Mr IKimibalie I think so.

1Nro Grotud. Mrost of the Indians live at that agency

dSo they not7

 8?

Mr. kJtball a*A subthantia1 number of than. .;e 44o

not have it broken down here as to how mmny are liv~n 6

at the agency head,.,uarters antt how rnmny are outside,,

Ir , roru(!. 11Hw many Inliunu are. farngn& their

Mv.
7 :i~a1.2T I ansorry, T tl dnot honr your

"r. ror:uc. now onny Il(PAn I'arei

hnt t re faruin,,
theAr' , own.and 01

',Jn;arba1 I (i(0 not t II ha h t Cl :4ure

tha M:r.

Yr. rrvrud, I this ani r ostly Ie:;iA?

Yr. E12u,11 A i.rust d

I l cf it . l4rne of thoni eaVCie

it to non-fndian cnttle owner....

Yr. OrocrrriW, I'metirl all_ i, ,1 offt,.,

Ttt,'miballo A grat rarity of thema~

"rr, r nv u cal Lh site i not wIthin Indian lands

* 13mfiaballs No#a sir,

tr. ( rorud, How far Cm the rirorvation is the land

for the C#ur7site, actually for cor;trution?

r.*, Kiroltm. The moruth of the Chyoana Tivor is

40 vi'taoe upstrowti frori tho

The aisitsl
; -most of this IncUtan

lauu 18I ab'n' tho 'iey-enne 1I~vvr.

I'!r. rrorud, Jow many hoi3r(oowoe would be developed

when Itho a is fininhod"'

r . Jz r)ai'V The plan 3, j tho inttial iimtllation

 08

calls for tuo Q5,l kilovatts, or a total of 175,000

ilowatts with ain ultimate installation of five units,

n t ttU ui 42of -
ror 1. ,6 Mu t tie -:ii.
1te6 : t) ei 1u; fOr any

bl o2. of pdwer
b.1,I oots
f 1 vo a

"'r. M'tobaI2 * 3 t:hini o.

r 7 11 Tr 1 t Ih * ' .. i . a.L $ r. Clo run,

Au 4i4 U v, J .G yut hvV : t As t I Q1S

on behoxc of' unator ;atkinu.

-I, J 0.s '2, t' a ''r 2 u* sIiutoI.

rE' ct "rL' U'

Mail t'e ." As Iis:crC;iuc ta li30; , -. r iu.t ari that
f.m( 1'tye i the

iri:; th( *! 7: V. {fl;X s .; ~., I3 t'$t cGEEOctz

j . dc:;
r+s * I nd C1 I.
- C: it,, -I ! 1t th

V. ;I., .k wh I ti t , tu laive
. <2 rili\-rt

cni t . 'n'n ?" u m n' ;.Y : n 1-ti'

tho 1n ati.s coi e hai
Tk ; th bouu t 11' ii niion and amu
"tvV-,

w':'ri n, now r t : E S t;,er P

nr(J 1
thc 'irbut a)3 c( is i :' .. .LI
'- Iho

Chcy unne

on"t Y *jii
 r., ;re, YC~i,

Yr'r. L U,'Avt : iri

a;U4 te] n bowf itt or qw-l:,t1bin;

v ' I? I a, meLc !cS t t;ll r

~~"j ,t ;r I'

uJI ov r. r- i IM 4V I 40l11$ C f t- tl Cl

k) .c 'er rr '
v71n1).0,t noit' rt tIn tat ;oator

146 Vtc:
T': thin. 1' at: tu t a t i s i n fI iu r I n

I t 1 an too t Ic rv pr o
pr n ('w r V t(- of the

p""rjo<:t, 7
C)" '1'>' t lvo v ( V! oL 1
'A. W;.1 t Ioi' IL, ? rt

acunt"nrcl:I c.1urltlC ci t
tt ccIcto t I, cost of

consitili.:C tt; stf:i correct

2$ p~:tc,,
1
I'~f -V1 'tC h'r r'~IS~, t.r tat.
rt921~nc
cct~~ i cr
ictcain' o ta
tc.r n otil~l
1 tT11C 81'VM Afliti St0 for

%J cr 1, cn!tO cl f.A*. , c ,t , tshc rot,

amt!) Tn Intn ~ c~ -~t to Venxrod

jr. i ;3 *
I r;.ba-~ 1. nl'1 j'~ ;I <Cr: 'i:~
A~ O B.~:
i'o~oc tion of" thnoz lnlhnrltx
In fnr ;h' I: ri Lpicsct>d10:
i it I I#titJAyitt Z't doptec1 by

z gr@ ; 111t1n h l) k: l coao titr. t l'A. i ii tary

project!),, and in Cii s Publj .11 r.cw >0i 4 dThr r#ej

cf *t~ 3l:nd 2 .m.

actiono n 41b(h),I t f3Qs t,;?t ncO' t -ftAI vl 1. "uiurojec

vii' s ts

m--
that in the discretion of thu :.epartuint we could pay

actual moving costs of the land owner or the tenants on

the land that was bein, taken froLu the project at a i'i;,urc

not to eYceed 25 per cent of the fair turkeat valuc of

the land on which he was located.

- Mr, Jox, If that is taxed as a court to the over-ul'

project and a portion of the Ireject is f iurt' to be

roiribursable then 1 will address; tyself to the subject

of the elements of the locatin(s ind:irect costs on this;

project which you clain should full outside of the project

costs.

! r, Kiimball, Yes.

vr, J ex Does it not sevta reasonable that if you

build the sane project on non-Indian lands, a certain

portion of the relocation costs should be charUged to

the project as reimbursable?

_ r. Kirmball They would be, yes,

Ilr. 3ex. Itas tlht been taken nt effect hore in

your offer of t2 million

,r,. Kiiiball. No, because the statute undOr which

that offer was trade directed us to negotiate two things

with the Indianas Nuaber one, the fair valuo of the lan;d

number two, the cost of relocating; the Indians,

The only figure we have negotiated is mn: - I 1o.

 The statute, Public Taw 870, under which we undertook
the neo otin:'ons, directed that we have an
appraisal of the
land uade, which would Carm the basis of the negotiations,

presumably for number one.

Nuwbor two is an additional olomont and we wore dir-

ectd to negotiate, as we untlerstocd it, the ; ond step
in the netotation,

1r. Jex. If Congress, in so im tructing you to netoti-

ate for the relocation, intended to treat tht cost of re-
lontion of these individuals as Indian citizens
separate and
apart as dis;t:ln uished from other citizens
and reconized
the further problem of relocation of these
individuals then
yv-u would not ,uarrol ith tho Congress if they so implied
that you should negotiate the sawe contract
as to the con-
struction as you woul' have negotiate! in non-Indian structures?
Tr,
':ia l. ?,No I would not. Tet me say I do not
rve-an to lave the impression that we are antagonistic witnesses
fn this thin; at all.

rr., Jex, And I do not mean to leave the impres ion

that I arm antagonistic in ty oxau nation.

Mr. Kimbalt. te arue merely calling ,this to the attention

of the committee and if the Con.res so indicates, we have
no objection to allocating; as a part of the over-all cost

oP th. project, certainly. After all, the Con, ress authorized

 r

the project an: the %n rt.1 ho weC shall allocate

1yC6

thce itos in carrying out wt4tver wishes the Conrss

waatsU m to #1,

Mr. Jx, This line of uostiontni; develops frm -

that Is, the falling that if there i3 a reiabursablo &le-

ment tit would ho paLl Por h thoJe d directly bonoritted

b th9s project; that it should include al the raitmbursaboe

co ts, an those others which are ptrotised primarily upot,

tie oblpirtton to the Idmian pooplo a3 TInian poeyW and

tVn t they hould hb trntd --

Uly
'71rW Wi1der a 1 t ta l td e 'o treu.

.lMr. ,T:(I hre there ti; reit:;:1z!O itotZt , that

that should he a separate itoum.

Fr, *UA1'alll. VYes*

'r. Jcx.And that this project sbcul6 not be treated

differently ierely because it is bein: constructed within

tho Tndian area,

"r* 1Sal
Kimb!n That is riht.

r, .Tc, In your computationl f the 12 million Vi.ure,

you diP. not tk& Into account t-pt jortlr oI' what is recot,-

nized as intanijble b' your unltr of the rvecatAin

costs

rs Xiaball No, v0o did atict

hr. Jox. I think tht , .

i's ailthairron.
 ,Tr. erry. Mr. Juhnke, do you have any :uostions?

':r. Juhenlo. I do not have any questions,

a r. Chainaan.

"'r. H*rry. I havo a uEction with reLard to the

acreazo. On November 1, 1952, you net with the Indian

Tribal Counsel, with the bureau of Indian Affairs, a re-

presentative of the Bureau of Indian Affairs, at which you

worked out some facts and fiureos

Mr. Kinrball. That was a meeting: here in Lashington, I

b)eivo and my recollection of that moetin, is that there

was a comi ttee appointed to go over soom records of the

Indian tribal negotiators. They consisted of a couple of

our men from the M.issouri Basin, appraisers aaybe -- they

weru both qpraisers; and a couple of men from the Bureau of

TIndian Affairs, and a couple of representatives of the

tribal negotiators. I personally wtas not a member of that

cornittecc,

V:r, oerry. Your Corps represent tives were at the hear-

ings; is that right?

Yr. iiall. T believe that is right.

:;r. Torry, To you romembLr the number of acres that

they decidel upon as being the amount?

Mr. :inbal, There is an analysis of those various

figures attached to exhibit A accompanying the oepartamnt

of the Arny's report to the Comnilttoee tabulated here, and

 94

the acreajeo figures, as liven in the Hart appraisal is

shown here as P12,f47,23 acres.

1The yisouri river BasinIinvostitatin,: unit figure

was 104,420 acres.

The tribal figure given as Iivon In this analysis

does not show all the ciffercnt figures but I believe tho

tribe accepted the ""rBT figures .n arriving at this value.

Mr. Berry '. I have before me a cory of the minutes

of that reeting in which the Hart appraisal is set up,

acres, values, Y!TBI and the reviewing committee figures

are sit up.

ri'ball,
Ir, Yes

Mr. nlerry. And according, to these minutes, it wa.

definitely agreed, as I understand it, on the fi,,grc: 10A,420

acres.

No; Js that right; is that correct

Tr'. 'Irba1ll. That - from this analysis here, it iould1

ap-pear that what the Corps of ininoers didi, as a result

of that review they ap li ed the Hart appraisal figures

to the acreage of the )fRBT and the Tndians 304000O0 fi' ures,

in order to check the difference between our basic figures

and the 1,600,000 and the Indians' basic fig ure of $2,600,0,0

and, as stated in the offer, the representative of the Chief

of n:natrrs recognized that it is not unusual in nootia-

tin' with -- for the ac uisition of land, to aree upon

 95

a price difforing in reasonable deree frr the official

appalisal figure %theresuch variation is justified. Accord"

i: ly, while having in mind that Public law 870 provided

that the official ("art) appraisal umade in accoredanco with

fbe terms of fl-Nat Acto thhl b usell as v ksJs foz' the

leinatto-.I of ttbe a.11ount of j ipe1j;On$uition to be

co.t

nr-lutrein the c nti' t, p : 14UN , C ausd ki further auizalysis

o" the three reportn to o r.cic I n effort to arrive at

a pos:ib1otulis for adjustmentt in the-%CChief of 1.hinoer"'

The tabulation s hotw the result of thti analysis and

i9 atltach~d.
In braking t'is revie', 10 vet accerto, the land
clas, ificatlon nttt * csalice ?,
Tr ci r;t forth,

in the ".flTPV retort # vi,,Ich era

. I2:V1, vat;%.31so aloptc-c
by the trial negatiorsp aPjAylng ivrco per acrei.ayi
prices derived from official rHart apl-rabern.

in re-psct to the severance rlhts, q e r ealizo that

even experts munt use rrofaea ional opinion In d~ieteuininf

such dlata, and we have vedC values, oststilis9be' by the

tribal negotAators3
ow, w;e w113J ';t to tho othv elenentsp
, ltt the

eaJsinltia1 point is that rncrv l.:no~tIJ, vho -w the

c'i*iJciai. nvootitor for the Chief' r f. hlnIncerso in his

offer of t2 million in reevaluating his basis for negotiation

he has accepted the firuro of the 1,T:BIan thethe ndians

,and computed those values on the basis of the Hart acreage

values, to determine what the difference in acreage amounted

to.

r. B jerry, You are a lawyer, are you not?

Mr. Kimball. Yes.

Mr. Berry. I want to ask you this ,uestions

1 t ou3d

you build that dam without gettin i a deed to this land

to the center of the issouri tRver, not getting the title

to it from the Indianar

Yr. Kimba 31. No. Pos-ibly we would not.

Yfr, Berry But you do not want to pay for Iti

Yrr Ktimball. That is right,

Mr. Berry. D,o you believe that the Indians own

title to the center of the Mis:couri :lver?

tr. Ktimball. do not dispute that.

Mr. Berry. For the record, may I read thu provisions

of the Act of Yarch 2, 1889, 25 Stat, 88t1, Section 4,which

reads as follows

YThat the following tract of land, being a part of

the said Lrat PReservation of the ',oux Nate n, in the

Territory of Dakota, is herd)by set apart for t permanent

reservation for the Indianv receiving rations pnd annuities at

 \cove'y
, 71 iia ehQ ;id ~Teritory c

Co~ifLu;: yrwr~r, ~v< I '; :t- It ppcLnt in fe (:Olat':r of'th

t.!lr~jh
T:lii~M1, 1,~t I~r ri sjtri I3ver, ten nil Qrntr th of thie
IZi i ~flt01 .in rC''I' the
' Lte, poInt
~m 1s.;Li ei r the0 :othe torn
t ci fl tY -' r 5
TiC

(C tn ctl r; thcr: "Ca t1 niI #4 P ( >1T

Iic S!~ utri1,v', ! nclui,tti
Tr ttcI Z tnn i v'iflY. lw~wttO,-)
iC

tc, ; pr)fin rprosi Vr'til

1?' CI' t'Ahe
I ff
jV 1
V, Jfl C~ I n,c 's21 t C#F~~_i (b'4,r,"T')O t Vctl~

*(, fn~4i
lint wqtll(1 "o no ot t at n Ct'c LhS I lt.81atWnIC T,

S'r
t 'i~al1 7I
*o
fat is1 ri:t.

i that is fru;

*r4 .I(v bl 1C ac r4:i

hat is tt a rni; At'.g o fl tnai c nof VIC

rZ~rtl~ ,
yrJ tv r Ijvr 'z t1, oclcoc t, Vo 11i:l Y',)* r c

tiri 'ti4vin al T~>j t ~r ;'~l Yvi Ioh t~ -'lier ii ;Th~OsK to the0 t~re

tniry .1 tlrft At"''rty'; 7plr~t t$ ~1 tcr 4

TutIF tt; bhil.B ~ 6r:

ocrc!-s ofC 'T.rZ~ ~C~Y :04C

r ft;11:C~
rcu>.I th 4 ,t f
Cmeic't to
a~. ~i It te f f, l rII) 4nf'.0Co
ta t lv rVP "(' ht tzn

vnu~ ~Tt ;ntP ~~di. th' firt co .Pututiom1, I:

-1- !)311'/rcdi Vtat thf.I' ff. POWt tlctotal

h ucrc L0 12

hcQr' o('c~c:U~ \nef1 8aLnjiy IAt thelc ?nt~ tEiwl t ~ZAIE.s nuM r" 1'
 98 -100

Individual tracts are bordered by streams. There has

b9 been no survey. The Hart appraisal of acres was deter-

mined by the use of a perimeter estimate based on actual

inspection. While neither is accurate, it has been the

position of the Corps that the Hart estimate should be

accepted because the other computations were not checked

by actual inspection.

Maybe there is some difference also by whether

computations were made under low, mean, or high water level.

Here, again, it has been considered by the Corps that the

tract by tract inspections made by Hart in the estimates

of the market value took proper account of the amount of

land in each tract, and whether the acreage is exact is

of no consequence.

I think discrepancies may also exist in individual

cases where owners may be mis taken as to their boundary,

Hallaz
fls
3 pm
 101

OHal Mr. Berry. Mr. Abbott, do you have some questions?

folks
TLS Mr. Abbott. I should like to address questions to any
3pm
51954 of these gentlemen who might be able to shed some light on
Indiana
m 1324 them.

Is it the understanding of the committee that the Corps

of Engineers in submitting a planning report is required to ad
out estimated costs of all of the items that go into the

project under consideration?

Mr. Bickfurd. That is generally correct.

Mr. Abbott. Are you required in setting out such costs,

in addition to construction of the actual storage facilities,

are you required to show the estimated cost for relocating
highways, roads, buildings, and acquiring land by condemnation
or purchase?
Mr. Bickfurd. Generally, yes, the exception being if it
has not as yet been finally determined that it is necosaary
to relocate the roads, then there will not or would not be
anything in there, of course.
Mr. Abbott. Specifically, then, in submitting a plan
for the construction of Oahe Dam, were you not required to

include an item which would generally cover the physical

facilities that would be inundated at the Cheyenne River

Agency as a result of impounding of the waters behind the Oahet

Mr, Bikflurd. As I recall, we are talking about a real

estate planning report. A real estate plan report may not go
 102

into those details, sir, for the reason that in a reservoir

such as Oahe where we get funds from year to yea.% to go ahead

with the land acquisition, the planning report is usually

prepared in the field and submitted in a segment basis.
Mr. Abbott. Are those planning reports you are referring
to a report required by reason of what is known as Circular

A-47 of the Bureau of the Budget, among other things?

Mr. Bickfurd. That I am not familiar with, by number

at least.
Mr. Abbott. It is a promulgation of the Bureau of the

Budget of December 31, 1952, which sets out the information

that must be included in Corps of Engineers or Bureau of

Reclamation Projects involving use of water facilities.

Mr. Kimball. Our report since that directive was Iseued

by the Bureau of the Budget -- our reports are prepared in that

form".

Mr. Abbott. Is it not true that you are required

and requesting authority to proceed with a project to have a

total dollar estimate of the cost of that project?
Mr. Kimball. That is quite right.
Mr. Abbott. Could you state what the overall dollar
estimate of Oahe Project was?

Mr. Kinney. At the time of the authorization, or at

the last submission before the Committee on Appropriations --

the last submittal to the Committee on Appropriations was

 103

$306 million.
Mr. Abbott. $306 million. That was as of what date?
Mr. Kinney. That is an estimate as of July 1, 1953.
Mr. Abbott. So that within that figure, do you have
an item whioh would cover acquisition of the necessary lands
and easements?

Mr. Kinney. Yes.

Mr. Abbott. Could you state what that gross figure is?

Is it so consolidated that you could give us that figure at

this time or would you rather consolidate it yourself?

Mr. Kinney. I was just checking the Aature of the

estimate that I have here. I have a figure here. I have

a figure for lands, total for the reservoir, of $19,390,000.
Now, the thing that waa bothering me a little bit is
relocations and other items which also include some items
which may be within the Indian reservations roads and so
forth.

Mr. Abbott. Would relocations be in that lands item

figure of $19 million, as you gave it?

Mr. Kinney. Not necessarily. We have another figure

on relocations, total of $50,901,000 including railroads,

highways, and items of that kind.

Mr. Abbott. Fifty million, plus.

Mr. Kinney. $50,901,000, so you would have a total

of $69 million for relocation plus lands.

 104

Mr. Kinney. That would be reservoir costa.

Mr. Abbott. That is broken into such a way as to what

portion of that $60 million was presented to the Appropriation

Committee as being n eessary as compensation for the Chwyenne

Agency Indians?

Mr. Kinney. No, I do not have that.

M.r Abbott. But was not such a figure developed?

Mr. Kinney. I do not believe so. I can cheok and supply

it for the record but I do not believe that figure has been

broken down that way.

Mr. Abbott. It is $19 million that th~y have shown as

a gross figure for lands, as I understand Mr. Kinney's pre-

sentatn.

Mr. Berry. On Indian preservation.

Mr. Abbott. Total for Oahe, total project -- 342,000

acres of land, $19,390,000? In addition, there is an item

for $50 million which would go to relocation,
Mr. Kimball. Major replacements and that sort of thing.
Mr. Kinney. $50,901,000 for relocations which include
railroads, highways, major bridge replacements, utilities,
and towns.

Mr. Abbott. Would there be included in there the re-

location and reoonstruction of schools, hospitals, services,

agent' and employeea' quarters and all roads, bridges, and

inclidental matters or facilities in connection with the

 105

Cheyenne River Agency?

Mr. Kinney. I do not have enough detail here to iaswer

that question.

Mr. Abbott. Do you believe that detail is in the de-

partmental files on this particular matterS

Mr. Kinney. We have in our Distriot Office complete
back-up material of what the figure is composed of. We do

not have it here.

Mr. Abbott. Congressaxi D'Ewart this morning raiaed

a question as to what would the total cost of this bill be.

Now, on the board behind you I have attempted to simply ex-

tract tiose actions which involve the appropriation of Federal

funds. In the bill that we have, Seotion II provides for

wua has been labeled as individual and tribal compensation.

I think we have diaouAsed the $2,614,000 for which the bill

provides.

In addition to that, there io a tribal total as the bill

is to be understood of soae six million plus dollars.

Moving down to Section 5, there is provision for, with
no dollars specified, an appropriaionand agreement by the

United States to appropriate and make available further ad-

ditional appropriation for the special purpose of relocating

and re-establishing Indian cemeteries, tribal monuients and

shrines within the taking area.

Do you have in any of the figures now before you an
 106

estimate, or have you through your negotiations approached

an estimate of what would be included within Section 3?

Mr. Kinney. No, sir; I do not.

Mr. Abbott. Could you attempt to obtain that for the

committee information?

Mr. Kinney. I think that wald be possible. That

pertains to Item 3, Cameteries?

Mr. Abbott. Yes, to Section 3 as it lis et out in both
the House and Senate bills.
Mr. Kinney. The total figure which I gav you a

while ago did also include cemetery relocations.

Mr. Abbott. That would be this $50 million, i. the $50
million.
Mr. Kiirey. That ia in tho $50 million figure; that
includes cemeteries, relocation of cemeteries.
Mr. Abbott. Similarly, Section 4 of the House and
Senate bills would bind the United States to an agx ewoent to

appropriate and make available further and additional appro-

pratione generally for relocation and reconstruction of the

Cheyenne River Agenoyof schools, hospitals, service buildings,

and so forth. Again, no dollar estiat is made of that.

Could you do the same with respect to that item?

Mr. Kinney. Sir, I would have to check.

Mr. Abbott. On that point, I believe in my conversation

with Mr. Kimball, it is probable that a great degree of

cooperation with the Indian Bureau would be neoeessa so that

you would be advise. as to what plan for ashooling, ,hospitals,

and agencies wer contemplated.

Is that your statement, Mr. Kimball?

Mr. Kimball. Generally, that is correoti and any figure

that we may have used up to this time in presenting overall

estimates to the authorization or Appropriation Comittees
are necessarily more or less approximations based on just
general information ulthout any detailed study as to the
exact relooations that would be neoeasary.
Mr. Abbott. Within the degree of specification that
you have indicated, and the qualifications t*k would go into

that, could you at this time statethat that figure presented

to the Appropriations would have been?
Mr. Kimball. We can attempt topt that to the extent that

it has been oo piled by our people in preparing this total,

overall estimate.
Mr, Kinney. We can e t what they have in there for re-

location of such facilities on the tribal land. I am not

sure that it will be the figure which is contemplated by

Section 4.
Mr. Abbott. What do you mean, a figure that is con-

templated. You mean it could not be broken down to aean the

specific language of Section 4?

Mr. Kinney. We can show how much is in our estimate 1
 108

what I mean there is that certain of these items to be de-

termined by the tribal oounoil of said tribe with the approval
of the Secretary of the Tnterior, that4etemination has not
been made, so we would not have a statement of estimate of
cost of Section 4.
Mr. Abbott. Well, Section 4 spells out the what it

does not spell out the how, when and where but would not the
"what" specification be sufficient to indicate anapproximate
a

oost? It is not a matter for negotiation as I take it.

Mr. Kinney. Not the way this is spelled out, no.

Mr. Abbott. A plan would be developed between tie

Indian Bureau and the tribe but it would be developed through

the Secretary of the Interiol on the basis of that plan re-

location then would be affected and of course the resulting

boost would be covered by the provisions of Seotion 4. But

going back to the question again, was it not necessary for you

to include in your presentation to Appropriations a figure

which, whatever refined an approximation it would have been,

would in any oase have been a specific figure?

Mr. Kimball, Nay I interjeot here to say that some

part of the information you are asking for is contained in

this report of the Division Engineer which is attached to the

Coamittee Report.
Mr. Abbott. Mr. Chairman, I would like tosuggest if

time permits thesegentlemen, sometime before these hearings

 109

are wound up in the next two days, if we could have an

approximation of the figures anticipated by Sections 3 and 4

of the bill, it would perhaps help make a more complete record.

As it now stands, we have an indicated total cost to the

Congress of in excess of $21,774,000, That includes only

those items provided for in Section 2 and Section 5 which is
an overall rehabilitation. ,
The suggestion this morning, if Garrison is kept in mind,
would be that the costs involved in Section 3 and Section 4
are going to be very substantial and in the spirit of Congres -
man D'Ewart's request this morning, with as much accuracy
as those figures can be provided, they would seem to be a
very necessary part of the record, if you would so like to
instruct the Army.

Mr. Berry. I certainly am going to instruct them that

we want it. They have had four years to work this out in,

as I understand it. And apparently they have not up to the

present time any figures except-a figure ot the Hart Sub-

conmmittee Report, is that not about right?

Mr. Kimball. I beg your pardon on that, Mr. Chairman.

May I read from this report which is before your committee?

This is the report from our Division Office and there is some

information there on these subjects. It is not full information

and it is not responsive to Mr. Abbott's question in that

Section 3, Section 4, for instance, they will require, if

 110

enacted, literally as now written in the bill, they will re-

quire us to do certain things to the extent that the Indian

Tribal Council determines to be necessary. That may or may

not coincide with what our basic, original idea of what would

be a reasonable replacement amounted to.

Mr. Abbott. On that point, Mr. Chairman, you are

touching on precisely what I hoped I was asking for. In the

Army's view of what would have to be done. You are suggest-

ing now, as I understand your statement, that an estimate was

ade, Do you have that estimate?

1r. Kimball. The estimate is not as complete as you

are asking for but in paragraph 25 here for instance, in dis-

cussing cemeteries, monuments, and shrines, the statement is
made that a joint survey of cemeteries which will be inundated

by the project has been made by the Corps, the Bureau, and

the Tribe. Such shows that 983 graves will require removal.

Based upon experience in similar work, the cost of removal

should average $55 per grave, or a total of $54,5Of5. The

only monument or shrines which will be the subject of re-

location is Medicine Rook which may require removal to a
distance of about 500 feet. There has been no estimate as to

the probable cost.

Mr. Abbott. Off the record.

(Discussion off the record.)

Mr. Kimball. There are also a couple of paragraphs on

 Ill

roads here. All public road within the taking area of the

reservation which are under the jurisdiction of the State of

South Dakota or any of its political subdivisions, will be

dealt with on the same basis as in other projects. Reloca-
tions will be provided at Government cost where they are re-
quired by the public. That will be by concurrence of the
State. There is a main Indian service road along the Missouri
and Moreau Rivers north of Cheyenne Agency, many portions of
which will be inundated to the extent of rendering it useless.
It serves as an access to the properties within and adjacent
to the taking area, and also serves as a connecting road be-
tween Federal Highway 212 which crosses the Missouri River
near Cheyenne Agency and the crossing of the River at Mobridge
South Dakota. It will be necessary to raise bridges and
relocate portions of the road in order to furnish the public
with adequate road facilities. It has been estimated that
the cost of such will be approximately $647,000. New con-
struction will involve about 40 miles of roadway, the estimate
being based on construction of the same type and standard as
the road to be flooded.
That is the type of estimate that we have prepared.

Then we go on to say that there has been no attempt to

reach an agreement with respect to the construction of roadways

to accommodate the persons who will be required to move from

the taking area, because of the position assumed by the tribe
 112

that all agreements are contingent upon a settlement of the

amount to be paid for the land.

In other words, then, these feeder roads to new areas

of relocation, we have not at this time come up with any

figures on those.

Mr. Abbott. Have you, to your knowledge, since come

up with any figures?

Mr. Kimball. Not that I know of, no. We have to check

and give you the best information we have on that. But I

Just wanted to read that to counteract the implication that

we have done absolutely nothing in the way of studying those
phase of the problem.

Mr. Abbott. A survey was made of the physical

properties, the buildings constituting the agency proper.

Was any appraisal made of their value as they stand?

Mr. Kimball. I don't know that there was.

Mr. Biokfurd. They are Government buildings,

Mr. Kimball. If there was any figure on that it was

an engineering cost of replacing such structures rather than

appraisal.
Mr. Abbott. Well, a statement is made by one of the

gentlemen that those are Government buildings. Is that to

suggest that they are not buildings which directly benefit

the Indian Agency, however, or the Indian Tribe?

Mr. Kimball. That is not the intent, no. But it will

 113

be an item of expense under this bill that we shall relocate

all Government facilities. It will not be a compensation to
the Indians as tribal moneys.
Mr. Abbott. But replacement pro tanto as nearly as

possible. Do you have an approximation of that cost?

Mr. Bickfurd. There is nothing in the real estate studies.

Mr. Kimball. I don't think we have that at this time.

Mr. Abbott. Was that an item that you were not required

to justify in detail before the Appropriations Committee?

Mr. Kimball. Not broken down to the Indian lands; only

an overall figure for lands asad relooations.

Mr. Abbott. I think that is all, Mr. Chairman.
Mr. Berry. With reference to the offer that was made by

the Corps of two million dollars, was that intended to

cover everything, your entire settlement?

Mr. Kimball. No, sir; oh, no.

Mr. Berry. What figures did you have prepared when you
met to negotiate, what figures did you have prepared for

overall severance damage and so forth? Can you give me that?

Mr. Kimball. I think we had no figure prepared on that,

Mr. Chairman, for the reason that the bill contemplated that

the Indians would be relocated so as to re-establish their

economic, social and religious life. If that is done at

Government expense, we were at a loss to arrive at any basis
for estimating severance value. If they are to be restored to
 114

the same economic , social and religus condition that they

enjoyed before the taking of this property, it was our view

that there would be no overall severance damage. At least

that was my personal view.

Mr. Berry. So, actually, you are prepared only to

settle on the coat of the value or the market value, so to

speak, the market value of the real estate plus the improve-

ments thereon. That was about the extent of what you were

prepared to offer settlement on?

Mr. Kimball. No, we were prepared to listen to any

figures that night be presented by the Indiana or by the

Bureau of Indian Affairs as to what would be necessary in the
way of relocation and re-establisiment and we were prepared
to check on what they considered essential figures. We would
check the costs of those works. We did not prepare or under-

take to prepare a plan of our own for relocating.

Mr. Berry. On the theory that that probably would have

to come back to the Congress, anyway?

Mr. Kimball. No, sir; on the theory that that was a
problem to be worked out initially by the Indians and the
Bureau of Indian Affairs,
Mr. Berry. Did I get the figure correctly? The amount

of land in the taking area was 342,000 acres?

Mr. Kinney. That is the amount for the entire project.

Mr. Berry. That cannot be right, though, can it?

 115

a~. Kinrey. I believe it is, sir. That is the figure

that I have here, 342,000.
Mr. Berry. That cannot be right. That is about a third
of it, is it not?

Mr. Kinney. I do not believe so.

Mr. Berry. In other words, a third of the entire

project lies within the Cheyenne River Reservation. We have

got 104,000 acres right in the Cheyenne River Reservation.

I think it is closer to a million area, if you will check.

Mr. Abbott. Off the record.

(Discussion off the record)
Mr. Berry, Either you are quite badly mistaken on
your acreage or you are certainly giving these Indians a
bad deal.

Mr. Kimball. It checks with our original 1949 document,

Mr. Berry. How many acres have you on the Standing

Rock, then? Do you have any record of that?

Mr. Bickfurd. Approximately 50,000.

Mr. Berry. 50,000. How far is it, would you say,

from the Moreau River down to the dam?

Mr. Kimball. Forty miles from the Cheyenne ivei down

to the dam.

Mr. Berry. From the Cheyenne, then, you have 40 miles

on both sides of the river before you get to the Indian

 116

reservation. Almost half of your acreage is on the Cheyenne

Standing Rock and there are two sides to that river, I think,

so that your figure has got to be wrong. And it goes clear

on up to Bismarck on top of that.

Mr. Kimball. We will undertake to check those figures.

The original pamphlet --

Mr. Berry. How soon can you have those figures for uas
Mr. Kimball. We would like to check that with our
field office. We would like to have several days to get
that for you next week.
Mr. Abbott. Mr. Chairman, so that the record may show

it, I would like to address a question to Mr. Kimball on the

basis of his testimony.

In substance, your comments and the comments of the

Department of the Arny on the proLsions of this bill are

limited to comments on appraised value of those factors which

you normally take into consideration in acquiring taking areas,

is that true?

Mr. Kimball. That is substantially true, yes,sir.

Mr. Abbott. Is it the correct understanding of the

committee that the position of the Department of the Army

in so far as these other items are concerned is purely a

matter for legislativedtermination.

Mr. Kimball, Yes, sir; that is correct.

Mr. Abbott. So that you have disqualified yourself from

 117

time to ti to oommBint on those items?

Mr. Kimua:a1. That is right.

Mr. Berry. And one more question, and along that same
line with regard to the handling of this land after you ob-
tained deed to it between the taking area and the water line,
your statement with regard to how you intend to handle that
applies only off of the reservation, does it not?

Mr. Kimball. I think that is correct.

Mr. Berry. Should apply only --
Mr. Kimball. I think that is correct. We would be
open to consideration of any reasonable special arrangement
with respect to Indian lands that the Congress or the Com-
mittee might indicate as being desired by them.
Mr. Kinney. I would think so.
Mr. Berry. There is one more thing that I would like
to proceed with just a little bit further, I think we
should have a definite understanding, and I think that you
owe this to the committee to give us, and to Indians, to give

us a definite idea on whether you intui to buy this land,

fee simple, or whether you are planning to acquire flowage
rights or just what you intend to do so far as Oahe Dam is
concerned.

Mr. Kimball. I do not icnow whether I should make an

answer directly on that question for the Department without
going back and checkingitth my superiors, Mr. Chairman. I

have some firm personal feelings on the subject and I might

say that for the benefit of the committee.

Mr. Berry. Do you not think it is fundamental to this

bill?

Mr. Kimball. That we would be satisfied with a flowage

easement on the Indian lands, if that is what the committee

feels is the fairest thing for the Indiana. We can operate

with that. That is my personal feeling. I would have to

check that with ry superiors to be able to say that is the

position of the Department.

Mr. Berry. And that would apply throughout the entire

reservation area, is that correct?

Mr. Kimball. Now you are injecting, areyou not, a

question as to the -- there are a few scattered tracts of

non-Indian land within that reservation area and you are

asking, would we be agreeable to acquiring that land in fee,

say, from the non-Indian owner and then conveying the fee

to the Indian subject to a reservation of flowage easement

by the United States, is that what it would amount to?

Mr. Berry. If you could best handle it that way.

Mr. Kimball. In order to do that, to do what I v ink

you are asking, that would be the mechanics that we would

go through, I believe.

Mr. Abbott. The question, perhaps, that is raised, Mr.

 119

Kimball, by the injection of this flowage easement possibility

here, with your understanding of the lengthy negotiations

and the impa -etn-the economic, agricultural units of these

people, you would concede that it will make a great deal of

difference whether that flowage easement there is applied or

if the 'ee easement there is applied?

M~. Kimball. That is quite right and it should make a

great deal of difference on the compensation that they are

entitled to.

Mr. Abbott. The next question would be that and it

would reflect directly on the amount of compensation. So

that care would have to be taken to determine whether or not

a few people are going to benefit from those flowage easements

or whether all of those persons who are relocated would have

an opportunity to benefit from those flowage easements.

Is it not true it would rather considerably reflect on

the total damages involved?

Mr. Kimball. That is quite right and this question is

one that we have not as yet resolved definitely with the

Department of the Interior as to what the two departrmnts feel

would be the beat thing to do.

Mr. Abbott. Is it possible that it would open the door

to another four years of negotiations?

Mr. Kimball. It is possible, I would say, yes, sir.

Mr. Berry. It is fundamental to this bill, is it not?

 120

We cannot do a thing; as far as Congress is concerned, we are

sitting here just the same as we were four years ago.

Mr. Abbott. We know a little more about the law.

Mr. Kimball. Substantially so, yes, sir; that is right.

Mr. Berry. You could not have flowage easements on

fee title, on non-Indian land and--

Mr. Berry. If we took only flowage easement on non-

Indian land, the right t, use the surface of that land would

not be in the Indians; it would be in this original non-Indian

owner of the land. For that reason, we could not agree with-
out first extinguishing the comrgete title to that land to

give the Indians the right to the use of that particular

tract of land.

Mr. Berry. The Indians do not want the use of that.

If necessary --

Mr. Kimball. If all you are asking about is the

reservations, of the fee title by the Indians in the land

they now own, that merely means, then, will we accept a mere

flowage easement over Indian land?

Mr. Berry. But it makes an awful difference to tirem if

they have access to the waterfront and/or if someone

else can crowd them out, away from this waterfront, because

the value of their land back up on the hills is dependent

on this water.
Mr.Kimball. And their access to the water also is
 121

material to the question of whether there is a hazard to live-

stock because of water fluctuation.

Mr. Abbott, But the $2,600,000, the $2,234,000 or the

two million dollar figure --

Mr. Kimball. Would be sufficient to implement re-

evaluation if we only took a flowage easement.

Mr. Berry. How long do you think that would take?

Mr. Biokfurd. Two hundred thousand acres. How many
on there, owners, 600? I could, Mr. Chairman, make a guess
on it. Of course, we have got the basic fee value of the
land, using thi basis of the Hart appraisal and the MRBI
data. The minimum time I would say would be several months
because there are so many tribal land, there is individual
land, waold probably mean a resurvey, physical survey of the
lands to see where the various flood lines touch it.
Mr. Abbott. But when you peak of the seven -- I believe
the figure given this morning was roughly seven thousand acres.
Th would be -

Mr. Kimball. That would not be-the differential in the

problem that the Chairman has just propounded,

Mr. Bickfurd. I was assuming that, Mr. Chairman.

Mr. Kimball. The chairman is propounding a question of
whether we would be satisfied with a flowage easement over the
entire Indian ownership here, so that whatever the elevation
of our pool might be, our reservoir pool might be, the Indians

can come down to the water.

 122

Now, this proposition that we talked about this morning

of seven thousand acre differential in the fee taking, that

would not give the Indians access to the water most of the

time, Most of the time they would be away from thewwater

because we take fee title to those bottom lands that will

be permanently submerged. We take fee title to the area that

will be subJerged an average frequency of once in five years,

Above that we took only a flowage easement. That will not
satisfy what the Chairman is aking for the Indians because

a great deal of the time thj water is going to be down below

this five-year frequency. In fact, four years out of five

and a good part of the fifty year because it will be down

below that.

Mr. Abbott. And it will not be possible, you feel, as-

suming the actual rights to the water's edge, it would not be

possible, you feel, through negotiation with the tribe to

arrive at a rough percentage deduction of present anticipated

costs -- ten percent, five percent, whatever it might be?

Mr. Kimball. It could not be done just sitting around

the table. We would have to get our people from the field

who have the figures on the flood protection; how much of

this land is going to be permanently submerged and will never

be exposed; then there would be no change in the valuation

there. The part that is going to be submerged may be only

three months out of the year. Well, that has considerable

 123

remaining value.

Mr. Abbott. But you would have on your maps, your

engineers' and so on, you would have the conservation pool

line plotted, would you not?

Mr. Kimball. I should think so.

Mr. Abbott. We would be talking about that area between
the conservation pool line and the contour line.

Mr. Kimball. Right.

Mr. Abbott. So that once plotted, there would be ready
indication of the acreage involved.

Mr. Kimball. That is right.

Mr. Abbott. You would necessarily take the Department

of the Interior into consultation on this matter.

Mr. Jex. Mr. Chairman, I would suggest, in view of the

importance of the determination of this question, irrespective
of what Congress does with this bill from here out, that the
Army proceed to get some kind of a determination as to whether
or not they would accept flowage easement only. We might as
well start on it.
Mr. Berry. I think it is the foundation of the bill.
Mr. Jex. As a practical matter, the policing of the
area between the pool P3el and what would be your five-year
flood level line, that would be or would present quite a
policing problem as a matter of trespass. The only thing it

would do is protect you from damages for trespass, those

 124

trespass cattle who stray to the water's edge.

Mr. Kimball. It would also give us an interest that

we could lease for some grazing purposes or something of that

kind, to Indians or other persons who were interested, get a

little partct our expenses, perhaps.

Mr. Jex. Is it understood, then, that you will proceed

to get a determination as to what the Army's position would

be on a flowage easement right?

Mr. Kimball. Well, we will undertake to do that, yes,

sir.

Mr. Berry. How soon will you know?

Mr. Kimball. I feel this way, Mr. Chairman, on that,

that before we take a firm position, our people will want to

consult some with the Interior Department. If you want us

to give you just an ex parte portion of the Department, ex

parte position of the Department of the Army regardless of

the wishes and desires of any interest the Department of the

Interior might have.

Mr. Berry. Could you not get together with the Department

of the Interior this afternoon and talk these things over?

It might be of interest to the Indians, too.

Mr. Kimball, Yes, sir; but so far as our chief is con-

cerned, and the Assistant Chief of Engineers for Civil Works

is concerned, I am not sure that I could get him down to this

problem today. They were not able to come up before the

 125

committee here because they are appearing before the Public

Works Committeejand I think the Chief is out of town. But in

any event, these decisions are not in our hands, Mr. Chairman.

That is the reason that I cannot say, yes, we will do it this

afternoon,

Mr. Abbott. The present policy as I read it in Number

2744 of the Department of the Interior, dated January 13, 1954

would provide that fee title in general will be acquired to

all land 300 feet hcrizontally from the edge of the conserva-

tion pool, which is not what the Chairman had reference to,
of course. In those projects where the topography is pre-

cipitous, or where the topography is unusually flat and where

such discretionary action is desirable, fee title may be

acquired to those lands which are included in the five-year

flood frequency rather than 300 feet horizontally. In short,

the present joint policy of the Department of the Army, of

the Department of the Interior, does not anticipate a flowage

right between a conservation pool and the contour line.

Mr. Kimball. That is right. So for us to take a position

that we would accept a flowage easement would be inconsistent

with the now-approved policies of the two departments. That

is the problem that is involved; that is the question you are

asking.

Mr. Berry. I think that is all. Does anyone else

have any questions? If not, thank you gentlemen.

 126

STATEMEW T OF LEWIS SIOLER, HOMER

JENKINS, AND WALTER U. PUHRIMAN
RBPRESENTINO THB BUREAU OF INDIAN
AFFAIRS
Mr. Berry. Mr. Sigler, if you will introduce yourself
and the members at the desk --

Mr. Sigler. Lewis Sigler, counsel, Bureau of Indian

Affairs. I have with me on my right, Mr. Homer Jenkins who
is chief of the Coordinating Staff of the Bureau of Indian
Affairs. And on my left is Mr. Fuhriman who is the author
of this Missouri River Basin Investigation Report that you
have been referring to.
Mr. Chairman, you introduced into the record when you
started the hearing this morning, the Department's report on

both of these bills. So I shall, with your permission,

merely touch on the major points that are involved in that

report. I should like to indicate that the Department's

report touches upon some ten or twelve different points. The

most important of those points is the one that you have been

considering for some time today and that is the question of

damages that will be sustained by the Indians, both direct

and indirect damages.

Since that is the most important of the points, I should

like to go through all of ours and come back to that one

because I think you will want to spend more time on it than

any of theothers.
 127

The first recommendation in our report relates to the

ratification of this proposed agreement between the United

States and the Indians by the Indians themselves. The bills,

I should say, are cast in the form of an agreement. They are

actually,the bills are actually nothing more than theproposed

agreement that was negotiated but not concluded between the

Government and the Indians. That agreement contemplates

that it will become effective only after it has been ratified

by three-fourths of the adult Indians enrolled in the tribe.

The Department's recommendation is that that three-

fourths figure be changed to a simple majority so that the

agreement would become effective as soon as ratified by a

majority of the enrolled members of the tribe.

Mr. Aspinall. Let me ask a question here. Is it true

that historically the tribe is bound by three-fourths vote

on any matter that comes before it?

Mr. Sigler. I cannot answer that categorically. I would

like to explain it, if I may, Mr. Aspinall. The Comittee

has before it and we have been given the privilege of reading

a memorial prepared by the tribal attorney and I do not intend

to anticipate his arguments, but necessarily the question you

asked involves that very point.

The treaty between the United States and the Indians does

contain a provision that any future treaty between the Govern-

ment and the United States that involves any cession of land
 128

will become effective only if ratified by three-fourths of the

adult males, not all adults, but the adult males.

Now, that provision is in terms of future tr-aties

involving a cession of land. Technically speaking, the bill

before your committee is not a treaty. It is an Act of

Congress that is cast in the form of an agreement but it is not

a treaty that involves a cession of land.

Now then, you asked whether historically the Indian

lands have been governed by a three-fourths majority rule.

I would like to answer that by pointing out that this tribe

is organized under the Indian Reorganization Act. They have

a constitution and by-laws. And under that constitution they

do not follow a three-fourths majority rule. The governing

body of the tribe is elected by a majority vote of the en-

rolled members of the tribe, the adult members, both male and

female. The tribal council's are taken by majority action.

The constitution itself was adopted by a majority vote.

Amendments to the constitution by the terms of the constitution
may be adopted by a majority vote.

The governing powers of the tribe include the reference

which unfortunately is an ambiguous one, but it does contain

a reference to the disposition of tribal land. One of the

powers of the tribal council, not the entire Indians, but the
tribal council, the elected governing body, is to approve or

disapprove any disposition or lease of tribal land but the

 129

constitution also goes on and says. "However, no tribal

land may be sold at all." So you have that ambiguous

phrasing.

However, I think the direct answer to your question is

that since the organization of the tribe under the Indian
Reorganization Act, the tribe has operated in general on
the principle of majority rule. For that reason, thatis
one of the reasons that we recommend that the bill be cast
in the form of a majority ratification.
The other reason, however, is a more practical one. It
is our belief that this subject is such a highly controversial
one and the wishes of the Indians are going to be so diverse,
that to require a three-fourths majority for ratification
may mean the difference between getting a ratification and

not getting one because I think it is obvious from the

tenor of this hearing today that the proper figure, that is,

the proper money damage that is to be paid to the Indians,

is the subject of marked differences of opinion and if you

do not get a figure that is extremely high, I suspect that

the chances of getting a three-fourths ratification are not

very good.

Mr. Berry. Is it not a fact, though, that the settlement,

if it is just inequitable in their mind, that there will not

be too much trouble of getting three fourths.

Mr. Sigler. Yes, Mr. Berry, I would agree, but I also

suggest to you that the question of what is just and equitable

 130

is a matter of difference of opinion which I think has been

illustrated by this hearing today. And of course it is ia-

possible to predict the final figure that is going to come

out of this hearing in the legislation.

Mr. Berry. It would be in the act, the amount in the

act, too, would it not? The Act itself, 870, provides for

three-fourths.

Mr. Sigler. That Act does provide for a three-fourths

majority but that act also, I suspect, is not effective today,

although I do not want to offer that as a definitive opinion,

but the Act required negotiation to be completed within a

specified time and they were not completed within that time.

Mr. Berry. It was extended.

Mr. Sigler. The extended time has expired, also.

You are quite correct,though, Mr. Chairman, that the

Public L'wJ 870 that you are referring to does require a

threa-fourths vote on ratification. Of course, that does not

bind the Congress if in authorizing a settlement now it wants

to change that provision.

In any event, you see, I refer you to the fact that the

Department's official recommendation is that the three-fourths

majority requirement be modified to a simple majority require-

ment for the reasons I have just stated.

The second recommendation of the Departm nt relates to

this question of damages. I should like not to go into detail

 131

but I do want to point out two subjects that will be olari-

fied and explained in detail when Mr. Puhrimran spe"s later,

if you care to hear him.

The points I would like to call to your attention are,

first, the bill before you contemplates the payment of one

sum of money as direct damages for the taking of the land, and

as I understand it, that means the value of the land there

and the improvements on the land. The bill also contemplates

a second sum of money which would be compensation for the

indirect damages sustained by the Indians as a result of

taking the leind. Those indirect damages include such things

Sas the cost of relocating the Indians and re-establishing

them in new quarters of approximately the same value a the

ones they are giving up. It also includes the loss of such

things as wildlife, and wildlife products, on which the

Indians rely very heavily for their livelihood today; and

which they will lose by the flooding of the area; and it

includes compensation for other intangible and psychological

losses that the Indians may sustain.

Now, those are the two elements of damage that we are

talking about and if I may leave the subject there I would

like to do so and ask that we come back to it later because

the other point that I have will not, I think, take long.

The third point has to dowith the rate of interest.

The bill before you provides that whatever sum Congress

 132

appropriate, including both of thee elements of damage,

and I think it also includes the rehabilitation figure, I am

not sure of that, but in any event that total figure will be

subject to 50 percent intere st as long as it is retained in

the United States Treasury. The Department's recommendation

is that that rate be reduced to 4 percent on the ground that

that is the current interest rate now paid for Indian funds

on deposit in the Treasury, That is also the recommendation

of the Bureau of the Budget.

The next point that I should like to mention relates

to the Hart appraisal, or in the alternative, the appraisal -

of the Bureau of Indian Affairs which we have been calling

the Missouri River Basin Investigation Appraisal, MRBI; or

thirdly, the appraisal of the tribal representatives themselves.

The question is, which of those three appraisals, or rather,

the tract listings on those appraisals will be used as the

basis for distributing whatever sum of money Congress ap-

propriates. The bill before you recommends that the tribal

negotiators' figures be used. The Department's recommendation

is that the Hart appraisal figures, not appraisal figures, the

Hart listings be used and I think that if that issue is not

too -- I do not believe there is a marked difference of opinion

because unfortunately when the Department used the suggestion

of the Hart appraisal report, we intended to suggest the

adjusted Hart appraisal which is identical with the MRBI

 133

listings and the tribe has indicated that it is willing to

accept the MRBI listings.

So far as the tribe and the Department are concerned,

I think there is no difference of opinion on this point as

I have just modified our reference to the Hart appraisal.

The next point I should like to mention --

Mr. Berry. Would you wish to amend your report to accept

the MRBI listings and not even refer to Hart?

Mr. Sigler. That is what I just said, the adjusted

Hart listings are identical with the MRBI listings and the

Department's recommendation is to use either of those since

they are identical.

Mr. Chairman, I think the error crept in by our reference

to the Hart report without referring to the fact that it had

been adjusted at a later date; and by "adjusted" I do not

mean adjusted officially. The Army Engineers, I think, have

not made any final adjustments but in the negotiations there

were adjustments made and those adjustments are the ones I

am referring to.

The n 3xt point relates to the language of Section 3 of

the bill which deals with the cost of moving, relocating

cemeteries, shrines and monuments. Our report offers some

substitute language and the reason for our offer of substitute

language is primarily the fact that we think the languageof

the bill is ambiguous and could be made more clear. I do not

 134

believe there is any difference of substance in the two

versions. Both versions contemplate that the Urited States

will pay the cost of removing and re-establishing the Indian

cemeteries, monuments and shrines to another area. However,

the manner and the method of relocation will be a natter of

agreement between the Indians, the Department of the Interior,

and the Department of the Army.

The next oonment I would like to offer relates to

Section 4 which has been mentioned earlier today. That section

relates to the restoration of the services and facilities

now provided the Indians. The bills before you provide that

the Bureau or the Department shall restore those services and

facilities to the Indians in the same quantity and the sauie

quality as they exist today. The Department' recommendation

is that it is premature to determine which services and

which facilities will be restored because the closing of the

dam is several years off and the conditions of the Indians

may very well change substantially between now and the actual

date when they are removed from the area and it would be more

logical for Congress to determine at that time the nature and

the type of the services and facilities that will be continued

by the Federal Government.

Bear in mind, if I may suggest, this is not an element of

cost. I have reserved that element of cost as a separate

issue. Both the direct and theindirect damages are completely

 135

different from this cost of restoring services; and the issue

involved is which of the services now performed by the 'overn-

ment will be continued after the relocation has been completed.

y suggestion is --

Mr. Aspinall. Mr. Chairman, I wish to call to your

attention that there is a roll call vote on the floor of' the

House,

Mr. Derry. I hatad to interrupt you, Mr. Sigler, until

you had finished your section that you were on, but actually

it has been five minut

4t' since the bells rang.

We will resume tomorrow morning at 10 o'clock on the

Senate side.

(Whereupon, at 4:15 p. m., the hearing was recessed.)