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HOUSE OF REPRESENTATIVES

HEARINGS
BEFORE THE COMMITTEE
on
INT1 1OE1. ANL NI Tu Ar .kF~
IJOINT SETNAT' AND) TIOUA.') SUL'JC 03,: iTT1J4*
ON INIAN AF!"AllS

ACQJI S3. TiON 0O0 LxX I)S ANiI IA3Il CTIX0'CIY~


~S
1 IOUX I ~E IuS uU'iil 1 4,d(OrfA 4,ND FQO, OTIll'L .U 'O,

Official Reporters to Committees Wed ne~sday, AMayr 191, 1954


Washlinyrton, 7). C.
; I

CO T 'P. NT S
SSTATlM.TS BYS* s

J w, KINBl,
K
Special comneel,
Suffice, Chief f Engineers,
I department of the Army 12
CIEfALIS We KINY,
Chief.
Policy and Continuity Branch,
Planning and Development Dlvision,
Civil Works, Office, Chief of IEngineers,"
Department of the Army 12
COLIN C. IXCKITFUD),
Assistant Chief,
Acquisition Division, Real t'state,
Office, hief of Lnwineers,
Department of the Army 12

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CH~IIPf
5R Y -~- ~Blrarurrcu~irriaanrruru~g~,~,,,,_,___7~ ____~ L-YIUr.U
, 1-3
WEDrNESAY, MAY 19, 1954

Ster,
,i HR, 2233
&
S. 695
A BILL

To provide for the acquisition of lands by the United


States required for the reservoir created by the const
ruction of Oahe Dam on the Missouri River and for re
habilitation of the Indians of the Cheyenne River Sioux
Reservation, South Dakota, and for other purposes,

House of Representatives,

Joint Senate and House Subcommittee


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

Washington, D, C.

The Joint Subcommittee on Indian Affairs met, pursuant

to notice, in !oom 1324 New House Office Building, at 10

o'clock a.m., the honorable E. Y. Berry (Chairman of the

House Subcommittee) presiding, for consideration of H.R. 2288

and S. 695, which are as follows

~--~)'L1~3~.-C -YI~-----~
L -(_l_~yICYL__ _CI-UI _. - -L-
""~~~-~~"-~-- -------- T~a*rJ -~n~L~N
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i 4

Mr. Berry. The Subcommittee on Indian Affairs of the

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

hearing of both the House and Senate.

I should state that Senator Watkina was called downtown

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

ever, he will be here a little later on.

Mr. Jex, do you want to come up and represent Senator

Watkins?

Mr. Jex. Mrs Grorud will testify on that.

Mr. Berry. Mr. Grorud will represent Senator Watkins?

lr. Jex. Yes.

Mr. Berry. We have under consideration today two bills

Hl.R 2233, and S. 695, which are identical bills. The Chair

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

Mr. Aspinall, Why in there any necessity of putting

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

are identical?

MrI Berry. That is correct. What can be done, I suppose,

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

Mr. Aspinall, Yes,

Mr, Berry. Also I should like to place in the record

three reports, the report of the Corps of Engineers, the

report of the Department of the Interior, and the report of

the Bureau of the Budget.

Mr. As'inall. MrI Chairman, I reserve the right to

~F~__~ t~s,

"-----~OI:.. ~CI. ~.~~.~N.~LIUVtW~-a"~n~-


_gl .~I1~=~
YLIUL~h~LII+~hi_-~ wBy~tYI~ ~~~~~_i~_l_~_ r-
i'

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

Bureau of the Budget,

: Mr. Berry, Off the record.

(Discusslon off the record.)

Mr. Aepinall, I withdraw my reservation. I am perfoot

ly willing to have the three reports in the record*

(The matter referred to is as follows$)

,CI - -- _-_~_ Il l __~ r I CII -I -~~) ~a~H r:~i lE*r, j~_ .~


(INSBRT)
9
i

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

further request 1hat since there are about fifty pages of

* the bill which are entirely descriptive of the land involved,

ift~ we 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, Is there objection to that?

Without objection, it is so ordered,

The Chair would like to state that the two bills before

this Committee today come before Congress as a result of a

failure cn the part of the Army engineers Ito effect *ottle-

ment between the Tribe, the Bureau of Indian Affairs and the;

Army Engineers 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 Rdvur basin and is authorized by the Flood Control

Act of 1944, which act authorized special settlement in the

case of Indian reservations, inundated by those reservoirs.

In addition to the basic law, Congress. b an Act

A approved September 30, 1950 (64 Stat. 1093) as amended by

the Act of Congress approved April 8, 1952 (86 Stat. 46),

authorized the Chlef of engineers, United States Army,

jointly with the Socretary of the Interior to negotiate


.. . . . . .. - .. - . . . .. . . .. . . . )- . . . .. .
10

separate contracts with the Sioux Indians of the Cheyenne

River Reservation in South Dakota an d m e Sioux Indians of

2 the Standing Rock Reservation in North and South Dakota,

which will provide for conveyance to the United States of th?

title to all tribal, allotted, and inherited lands or in

terests therein belonging to the Indians of the tribe which

are required by the United States for the O0ho Dam and

reservoir, and make provision for payment by the United Stato@

of just compensation for all the land and improvements,

relocation costs, and otherwise provide for the orderly

removal of the Indians and the complete settlement of all

their claims arising because of the construction of the Oahe Dan

Project.

In compliance therewith, the negotiAtWas for the Cheyen*e

Rivor Tribe, the Iuroau of Indian Affairs and the Corps of

Engineers mnet in November, 1952. 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 Lngine rs

offered $.1,0l5,410. After negotiations, the Army came up to,

$2 million. The tribal negotiators camei down to $2,5000,000.

Since they could not negotiate the first item on the

agenda, they agreed to disagree and TI.R. 2233 and S. 695 wer4

introduced by Senator Case and myself to bring before Congres

the matter of a fair and equitable settlement for the taking;

, ., Now-..---
am.; A f ,.M ._ I . . _N._ R._--_
. .... .lm -ftl , . - . . "M -. I ". - "
11

UI

of these lands and properties on the Cheyenne River reservaj.

tion.

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

file the report of the contract negotiators, htich was prepared,

according to the cover sheet, in January, 1958, but, as I

understand it it is the report of the negotiations between

the Army Ingineers, the Bureau of Indian Affairs, and the

Tribe which was held in November, 1953.

As the first witness the Chair will call Mr. Kimbel of

the Army Urngineers. Do you have other witnesses, Mr. Kimbol

whom you want to sit with you?

Mr. Kimbel, Yes, I have two other gentlemen from my

office that I wald like to have tst with me.

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


12

STATEMENTS OF J. W. KIMBEL, SPECIAL COUNSEL,


OFFICE, CHIt F OF LNGINEETRS, DIPARTTMENT O.,' THE
ARY CHARLES W. KINNIY, CHIEF, POLICY AND
CONTINUITY BRANCH, PLANNING AND DIX1ILOPNENT
DIVISION, CIVIL WORKS, OFFICE, CHIEF OF LNGINtRSO
DEPARTMENTT OF THE ARMY; AND COLIN C, BICKFORD,
ASSISTANT CHILF, ACQUISITION DIVISION, RIAL
:STATI-, OFFICE, CHILF OF ENGINEERS, DEPARTMENT
OF THE ARMY

Mr. Berry. All right, Mr. Kimbel, if you will ctate

your full nare rnd the names of those in your group.

Mr. Kimbel. Do you want these gentlemen too?

Mr. Berry. Yes, just your names and titles

Mr. Kimbel. My name is Joseph W. Kimbol, Special Counsel

of the Chief of Engineers.

On my right is !r. C C. Bickford, Assistant Chief of

our Ieal Estate Acquisition Division, Office of the Chief of

Engineers, and on my left is Mr. C. W. Kinney, of our Policy

Planning Group, Civil Works Division, Office of Chief of

Engineers.,

Mr, Berry. All right, you may proceed with your state-

ment, Mr. Kimbel.

Mr. Kimbel. 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 substantial-

ly identical except for the last paragraph, set 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 Committee wants addition-

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

3 morning,or supply It later if we do not have that data with

us at this tine,

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

it sends along a report by the Division Engineer of the

Missouri River Division which is the report of January, 19583

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

report.

Pr, Beri'y. Is that the report signed by John Slezak?

Mr. Kimtbel, No, that is signed by the Division Lngineer,

Mr. Berrye That is the report on the bill

Mr. Kimbel Oh, you are talking about the Acting

Secretary*a letter, Mr. John Slezak. The report signed by

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

by the Division engineer giving a detailed description and

discussion of the negotiations at the field level.

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

of the Assistant Chief of lingineers for Civil Works, General

VbicunIa, describing the l:ter negotiations ir-Washi.n~tae wjt

the Buroau of Indian Affairs and the Indian Negotitiing

Comitte here at the Washington level, and transmits also

the formal report: :.ade by General George Nold, who was

negotiating on behalf of the Chief of Lngineera at that time

RraCllluur.araarcr*,,rrrrrL -~31
14n.r L u~nur~-*-rr~,,_,l.,~
II
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.

fMr. Berry, This I. the report you are talking about?

Nvr Kimbel. That is the Division Lngineer's report,

3es, sir. That it merely a report on the negotiations up

to the stage of the transfer to Washington.

Mr, Berry. As a -atter of fact, this Committee has not

received one of thece as yet, The first I saw ox this was

this morning,

M:r. Klimbjl,. A copy of all of that was supposed to have

been with the letter that came to your Comtmittee last year,

I am sorry if it did not get here,

Ir. Berry. Let us briefly run through it, and give the

Coumittee some information on it.

)lr. Kimbel. Originally the Chief of Lngineers designat-

ed the Division L engineer at Omaha as his representative to

join with a representative of the Secretary of the Interior

to conduct negotiations with the tribal representatives as

erectedd by the Confgres in the former legislation, Public

L.w 870, of the 81st Congress.

Mr. Berry, Then what happened?

Mr, Kimbel, First, in accordance with the statute, the

-' I wIl 1#01 ohm. - 11 - . ,11


-1 |i i ,.-,, ,-M-MAP
15

Division Engineer and the local representative of the Bureau

of Indian Affairs agreed on the selection of an appraisal

) firm to have an appraisal made of the Indian lands that

would be within the taking area for the Oaho Dam, That was

directed in Public Law /870. The law said that an appraiae

should be made to form the basis of negotiations with the


Indians.

As mentioned in yacr opening statements the Hart appraial

was in the neighborhood of $1,600,000 for the Cheyenne River'

Indian lands. That appraiad was made available,and it was

paid for, incidentally, by the Corps of Engineere, and the

selection of the appraisal firm was approved by the Bureau

of Indian Affairs in advance of the contract.

When the appraisal report was received copies were made

available to the Indian Bureau representatives in the field,

After that a meotini was set to ucoet the Indians and open

negotiations.

The Division Lngineer met with the Indians, I cannot

say offhand whether it was two or three times, I attended

one of the meetings with him at the Indian Agency headquarters*

4 At that meeting the Bureau of Indian Affairs representatives

and representatives of the tribal negotiators questioned the,

accuracy of the appraisal report,

Efforts were made to determine exactly in what respects

the appraisal report was claimed to be erroneous. The


1b

alleged errors seemed to be in the land descriptions, the


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

different individual Indian's ownership, and the erroneous

classification of the land as grazing land or agricultural


land, and so forth, or timber land.

In an effort to get together on that the Division

Ingins er suggested that a Committee be appointed representing

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

hand to try-to work, o~ft.-sad go over the appraisal report and

correct the errors,

Some a reement was reached, but not a complete agreement

as to just what corrections and changes were necessary. The


WA~ b,, t. ,
Division 'nrineer felt that the appraisal report -e4hto4--b,-

.saeuerd and should be the basis for negotiation ta:.get the

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

tion the revised appraisal that had been prepared by the

Mlssouri klver Investigation Unit, I believe it was, of the

Bureau of Indian Affaira. They had prepared a revision of

the Hart appraisal that came out with an evaluation apprasil

of something over S2 million, but the Indians had reviewed

the appraisal, and come up with a figure of 2,G600000.

The efforts at that level to arrive at some agreement

proved unsuccessful, and the Indians asked that they be given

an opportunity to negotiate in Washington with the Chief dt

Engineers direct, and that opportunity was afforded in Novcm-


17

Sher of 1952, I believe it was. The negotiations wore resume

. at that time in Washington in October or November--November

I guess is right.

Those negotiations at the Washington level are set forth

in an attachment to the Secretary of the Army letter,-a -4

a report dated the 26th of February, 1153, signed by Brigadier

General C. H, Chorpentng, Assistant Chief of Lngineers for

Civil Works.

Briefly those negotiations resulted in an agreement,

first, by both sides that we would .etly 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

negotiation on other elements of the settlement.

The final result was a firmr offer of $2 million made by

the Chief of Lngineers' negotitor, General George J, Nold,

The Indians indicated that they were unwilling to aiccopt

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

of $2,500,00(0.

Gewrnal Nold said he could not accept such a figure.

Mr. Berry. That would have boon for the tangible assets?

>r. Kimbel, That is right, that included 4,othing but

the land value,

Mr, Berry, The land value?

1Ir. Fimbol. The land and ivproveie nts, and the timber
18

and so forth involved,

Mr. Berry. Now, there were three appraisals made, 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 vy 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 Affairse

and then next by the Indian negotiators themselves.

Mr. Berry, Is it not true that the Bureau of Indian

Affairs had a Commission described as the NIisouri iorer

Basin Invostigations Commission, and they refer to it as the

Mr. Rinibol, Yes, sir, that is correct,

Nr. Berry, And they made an appraisal did they not?

Mr. Kimrbel, It was not my understanding that that was

a complete new appraisal. It is my understanding that that

was a review, that is my understanding. They made a study,

that is what it was referred to as in some of our negotiation

conversati ons

.r. Berry. I show you a report put out by the RBI.

In that they set 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 $2,284,000. Is that

about right?

Mr. Kimbel. Yes, sir.

Mr. Berry, Then the Tribe did the same job of appraising

this land and the property on a quarter by quarter basit, on|

a land description by land description basie, and they came

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

right?

Mr. Kinbel Yes, sir, that is right.

Mr. Borry. Did they revise at that time and state that

they had contacted the owners, that they had gone over each
-c(d
piece of land separately and they gave you the detail/figure*

of what they based their report on?

Mr. Kimbel. That is correct, yes, sir.

Mr. Berry. Well, now, the Army itself has ma4e no othet

survey ?

Mr. Kimbel. No, sir,

Mr. Berry, Your figures are based on the Hart appraiseat

Mr, Kimbel, Yes, sir,


appraisal
)r. berry, bo you know v at the Hart upasxt 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. Kimbe'l I do not believe that it would be quite

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


20 f! 1
2

appraisal is given in the basic data report whi-h is also at

enclosure to the letter report of the Department of the Arm

on these bills, This volume which was prepared by the Hart

Real estate Appraisal firm, recites the basis on which they

have appraised the lands, They start out by quoting Publia

Law 870, Olst Congress, and the directive e- the Congress as

to the making of an appraisal, and they discuss the definition

of value in the Act mad the general practices of appraisers

in making appraisal reports generally,

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

firm to evaluate lands on the basis specified by Congress int

Public Law 870,

I would like, for the benefit of the Committee membersV

to read the directive as to the preparation of an appraisal

report as set 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 Secretary of the Interior or his duly authorized

representative and the Chief of I:ngineers, Department of the

Army, 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 therein, located within the taking areas of the

respective reservations. Xn the preparation thereof, they

shnll determine the fair market value of the lands, giving

*h-.-h..-
-'! --- -- u .- c-.-__-r- W-- ~ .. . ~~-
21

full and proper weight to the following elements of appraisal

"Iaprovements, severance damage, standing timber

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

adapted, They shall transmit the schedules to the represent4-

tivos of the tribes appointed to negotiate a contract, which:

schedules shull be used as a basis for determining the amount

of just compensation to be included in the contracts for the

elements of damages set out in section 2 hereof,"

The Hart firm being a firm of recognized appraisers

which has been engaged in the appraisal of lands generally

in (dle West and Western areas,


the Mid and which we understood

had been employed by the Bureau of Indian Affairs in some

instances to make appraisals for the Bureau on Indian lands

for the ber fit of the l.,dlans, the directive to the Hart

firm was to prepare an appraisal in accordance with this law,

M
Ir6 crry. Now, is it a fact that cdring your negotia-

tions between the time you first started to negotiate with

the Indi ans and tlh tii.e you negotiated in Washington that

the Indians claimed that this Hart proposal was too low and

set up 20 or 80 tost plots under the NRDI, ant the Indians

themselves went over these test plots, and came up with

a figure that ;as quite a little higher than the Hart

poaspsal appraisal had set them olt? Is that substantially

correct?

Mr, Eimlbl. Well, now, I do not knolw that I would say


22

that the statement in toto is substantially correct, Mr.

Chairman,

They did attempt to make some sample recheck of that

type, and it it my understanding that the result of those

rechecks indicated that accepting the claims of the lntan i

to-the Buroau of Indian Affairs as to the proper classificas

tion, as distinguished from the classification which had bees

riade in the Hart appraisal, that on that .basis there wuld bi

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

that the representatives of the Corps of Engineers agreed

that those different classifications were acceptable to the

Corps,

Mr. Berry, Well, now, let me ask you one ruorc things

In your dealing with the Indians, I do not know whether it

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

askud you for the definition of market value as set out in

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

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

seller for his land, that that was substantially the basis

for the values that were established b,\ the Hart appraisal*

r. Kic,.bel. I do not recall that we ever 'iadc such a

statement as that,

Mr. Borry Is that approxiately it?

Mr,KiJbcl, That is perhaps a good brief statement of

what is normally the basis of evaluating lands that are boing


23

taken for a public purpose, - the ordinary statement of the

rule which is usually applied by the courts in condemnation

proceedings, and so forth.

Mr. Berry Nowp then, I would like to ask you this$

Congress established the criteria as to the uses to which

the lands are reasonably adapted, In your ju~igrjent do you

think that should include a hesitancy on the part of the

Indian who owns this land to Diove, to give up his land and

move off of the reservation?

Mr. Kimbel. I would say to that, no, sir.

Mr. jerry. You do not think that should be included?

Mr. Kiu.ibol. That is right.

Mr, Berry, In uther words, the appraisal should be bhe

same as if it wore non-Indian land on a non-reservation area

Nr. Kii.:bol. No, I do not say that. I do not think their

two statements are the same. The uso to which lands are

adaptable, you might say, is considered in appraising lands,

because in taking property for a public purpose the extent

to which it has adaptability for a particular type of use

r:,pht affect the market value of it.

The individual attachment to a piece of property is not

a nattcr of evaluation in appraisals or in condemnation

proceedings. It 1v an obi-ent which this Committe and

which the Congress could well take into consideration in

dealing with the Indians as wards of the Government, but as


24

an element of appraisal my view is no, that isrt a proper

element of appraisal,

Mr. Berry. %lut there is a difference between individual

attachment and adaptabi lity.

Mr. Kimbel, Adaptability to a particular type of use.

Mr. Berry. The attachment of a unit of Government, such

as an Indian tribo, is different from individual attachment? I

Mr. Kimbel. That may well be, you, sir.

Mr. Berry. Well, could we compare it to the value of

antiques, for instance? Antiques are high because they are

scarce* Is not that right, that the prices are high because

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

here where there just is no more reservation land, is not

that correct. There is a scarcity of it?

Mr, Kimbel. I do not know that I am competent to answer

that.

Mr. Berry. This land is irreplaceable from the stand-

point of the Indians themselves, I mean?

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

Chairman. It may or may not be irreplaceable. I think that

is a matter of opinion, F om one viewpoint you can say

nothing is irreplaceable, and from another viewpoint you

can say it os.

)r, Berry. There is no other place to which the Indians

can go to establish themselves, is there?


25

i Mr, Kiinbel. There is, as I understand it, involVed 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 asa sufficient

area loft on the reservation for th population of this

Indian Tribeh I do not foel that I am competent to judge of

that.

1r, i crry. If there was not sufficient ferti, land

loft on tho reservation, then that m:i ht influence opinions

about the market value or the value of this land, might it

not?

'!r. Kimbel. It certainly would to .nhe Tndians.

Mr. Berry. That I o right.

Ir. Kimrbol. If you are talking about just compensation

in the sense of the ordinary rulo in an eminent domain

proceedin, the courts generally throw out the value to the

property owner as an individual or his special attachment

to that locality, They say it I the amount which, if he

were willing to stll, ho could got In the market for it,

'ewdi-s-not-also the value to the takor af n,,actionth&at,

Wt'e-X'aid...**..*' <ay ha-wv 'hat is proper 4 -.astablihf thte-v*ao-,

In the ordinary land xaIta evaluation proceeding.

Mr. Berry, I would like to point out one more thing in


I;i
26 69

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

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 Committee why there is no one living there,

if you know?

1r. Kimbel. bo, I do not know,

Mr, Berry, Would it be because there is no water avail

able?

Hr. Kimbelo I think


than t would be very probable, I

realize that it is probably a fact that the populations

especially in sparsely populated areas such as this settle

closest 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.

Yr. Berry. About 95 percent of the Indians live along

the river, do they not, ir preference to going up to the

flats?

Mr, Kinbel, Yes, that imay well bu.

'r, Berry. As a. matter of fact, is it not true that

that entire area is what Is known as PLorre shu.lc and hioavy

Smith fls Hr. KiAmbel. That I do not know,


11a .m.

.~~..~:-- ------- ~4
-- wr~~m~q~rrp*;wl
.. Araall*.
36

TLS Mr. Berry. Do you know whether t' i is any water


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

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

difference in the value of this bottom land?

Mr. Kimbasl. 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

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

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

Mr. Kimbql. 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. Kimb il. May I answer that question, fr. Chairman,

by referring again to Public law P70, 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)

-w^". - -- -- -- - . r. , ........ =--


. >.- . ** U.-...-. -- .. --. l- " . + Wano &
TmK . t . ^.
, . .
37 '

just compensation for the land and improvements and interest

therein conveyed -- conveyed pursuant to Subsection (a).

(2) Cost of relocation and reestablishing the tribe

and members of each tribe who reside upon such land, so that

their economic, social, religious and community a 4 can

be reestablished and protected.

Now that is something outside the appraisal; if we took

all those things into consideration in appraising the land

and fixing the value of the land, then there would be nothing

to be covered by this second directive of the Congress, that

we also negotiate, in relation to the cost of relocation

and reestablishment.

Is not that the element that you havejust been asking

questions about of what the cost of reestablishment would be?

Mr. Berry. I do not think so, because we cannot re-

establish these people back upon the land.

Mr. Kimbkl. But the Congress directed us to undertake

to evaluate just that. If it cannot be done, we were gjen

an impossible task, were we not?

Mr. Berry. Well, I hope not -- you are correct, but

I hope you are not,

Mr. Abbott, do you have any questions?

Mr. Abbott. Yr, Kimbl, do you know whether or not

the appraisers, the Hart firm, I believe you said, of Denvef;

Colorado, took into consideration the relationship of

~--" 1 ------- - - - ~-*SI~UI ~r~au~.


88

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

to the severance factor, but *s 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. Kimbl. 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

Miver 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.

fr. Abbott, And it was surely developed by ascertaining

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,

I
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 food lands in the operations

Mr. Kimbt1l. 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. Kiabtl1. No, I think it was taken into conside'ra-

tion.

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

of opinion as to the value; is that true?

Mr. Kimbtl. I think so.

Mr. Abbott. I think tha 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, --

r. Kimbal.. Yes.

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. Kimbh1. I think that probably would be a fair

statement.

Mr. Berry. Now, in this Army report to the Sere 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 $2,614,000 is higher


CoutU
than aw6 be recommended for n payment by the Corps of

ngi neera."

Now, the $2,614,000 is the amount that the tribe has

established?

Mr. Kimbil. That is right.

Mr, Berry. Is that a fair value?


1
Mr. Kimb l1. ,:Pa Jt: ,' ,tr opi, ^^

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. Kimba.lo I woul4 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. Kimbal, 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 fixing 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

in condemnation proceedings where appraisers are employed

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

ion of the valme 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 haw some other questions that I want to

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

at this time to the other


r the
members
embehe committee to

bring out questions they have in mind.

Wr. D'Ewart, do youhave any questions?

Mr. D'E)art. I would like to ask what this bill will


42

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

written?

Mr. Kimbdl. 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

oor fr the Indians, there remains the question of the neces-

sary road relocation, relocation of agency buildings, schools

and other Government operating facilities for the benefit

of the Indians.

In the case of the Fort Berthold Reservation, our

estimated figures for those expenditures, outside of some

millionn provided for the Indians in that case, we are

having a construction program for roads, school buildings

and agency buildings relocation of from $8 million to

$10 million additional. How that compares with this re-

servation, I am not prepared to say.

Mr, D'Ewart. 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. KimbHl. Those are elements we could not give you

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

the Bureau c Indian Affairs is prepared to give you any

figures, 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 plaeP

Mr. Kimbtlg We have never seen a justification.

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

tification?

Mr. Kimbfl1. That is right. We did not put them in

the bill; this is not our bill.

Mr. D'IEart. Who is the author of the bill?

Mr. Kiamb i. The Indians and their counsel presented

this bill. It is not the Corps of ,ngineers proposal by

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

are a number of things in here which we cannot justify

or recommend

Mr. D'Ewart. Probably my question should be addressed

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

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.

I I
44

Mr. Kimb4Ol. Yes.

Mrs D'Ewart, We have been through this thing before,

in the case of Garrison, for ins tance.

Mr. Kimbl. lts.

Mdr, D'$wart. And we had to have every item in the bi,.1

justified before finally reaching an agreement in Congress.

I was on that conference committee.


E
Kr. Kimbtel. Yes.*
Mr. D'Ewart. 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 languages

"Provided that, For the purpose of this Section,

no prior Act of Congress or Departmental regulation shall

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

V .0"M N
to address that question to,

Mr. Kirabil. J feel that we are not# that is correct.

Mr. Berry. Mr. Westland,

Mr. Westland. I would like to ask ou this question,

Mr. Kimba ll As I understand it, you are going through

Scndemnation proceedings on the Iast Side of the River( is

that correct?

Mr. Kiibail. I believe that is right,

MrWestland. ow 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. Kbimb~. I do not know that we have gone very

far in the ac uisition within the reservoir area of the

Oahe dam. We have acquired some X000 acres of land around

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


ctApA.: W Tr'
the figures on the condemnation awards as it **ve the

Government appraisal in those cases.

Mr. testland, Mr. elmb l, 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 nast side of

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

r, Kimba 1J. e, will be very glad to check on that

and furnish the infos~rtion to the committee.


I,
46

ii
Xr. Wstland, I would certainly aant to reserve
my position G ay
Vtigurvs until I know those facts. Cera
mainly weO On this committee want t* be sure that
both sies
of the river are being tree ted the sauf.b

Xl', Kimeb$1 Yes.


(Theis information requested ot losses)
ii

'I ;. U, -.

Toe DtIriu En6neer, Nioufl Ivrlie on, aoha,


zBH*ortA the fof1npP~~rB ~~aoat'o havec beean a0urpo cn the easta~ ebraD
sid~ o
the river at prioea , indca tedre

listiod of "ausiation
Aorewj Appaj&aj
lItroe pa14
Purohaq@m~ 274.71 (avormtpar eOn) G(avenge por acxv)
spas0
178498 6.,00 6*oof
2F" landO aoqtdne on tile Wst side of he river te foflozng fiur
AM reported, I haA riiafnwn jua

LajtJio4d of QUeij;tir
Acruaj
(reePer *or*) (avvrs~e peor
ConJdewntion Lort)
5s539*8as $1.*6 i sat,

1~~
-tr
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. Kimbtib That is the 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 left after

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

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

elementin thr .where you are dealing with the allotted indi-

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

there will be no severance damage involved in the appraisal

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

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

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

unit; and that is o*r taken into consideration insofar

as you are evaluating the tribal-owned lands. There -- where

we take some lowland, the tribal lowland, the severance

of those particular lands from the remaining tribal lanb,

is an element of the appraisal.


Mr.Westland. Then you are taking into consideration

the decreased value of the upper lands?

0 Mr. Kimb l. Yes, we are.

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

Mr. Chairman Is there anything to prevent the person who

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

where with these fund; I mean, comparable land elsewhere?

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

Mr.Westland, Yes.

Mr. Berry. Not if there were comparable lands else-

where, but this dam will backwater some seven miles north

Sof Perrie to Bismarck. It covers a million acres of the

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

through siltage 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

State, in my opinion.

Mr. Westland. I would like to ask Mr. Kimbal one

other questions In the proposal for this dam, what was

the figure you used for the taking of this property?

9Mr. Kimbil. I do not believe wehave that figure with

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

record.

Mr. westland. That is the second question, then, for


49

which you are going to eup1y the aanswer?

Kr. XiSIbflq Y*i. fllose)~

(1sho information requested f4


I if ti
bjlgB~~1I..

The Division Enginner reports that te original fiMUrMs irtndtU


in the Oaes Project astimtes for acquisition of Indian aWlads %or* n
foflove#

Oheyorn Rhsr Resrvation - Lads


i and flyprovnts $1,AF1,325
Standig Rock reservation n$0 2 07L5OQRTh

No estimte of cost for relocating ad nstablishing th individual


Indians wa included.
50
Mr. Westland. That is all I have, Mr. Chairman.
F-
Mr. Berry. Mr. Kimbt 1 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? When

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

mated amount, did you not?

Mr.. Kimbl. We have not gone to the Appropriations

Committee yet to get funds for those purposes, Mr. Be-ry.

When we went to the Public Works Committee for the basic

authorization for the Nissouri Basin Project, it included

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

And as we have gone to the Appropriation Committee in the

past two years for construction funds, for Oahe Dam, 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 aebgFf

here, for hiem-oaiey, and what we were going to do with

it.

I am not sure that we have given any definite figures

on the cost of the Indian land or relocation of Indian

facilities on these projects, We will check that and


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

to the committee also,

: Mr. Berry. Without that information, you c~uld not

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

of these otherdas to be constructed?

Mr. Kimbel. 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 with

detailed tract appraisals, or detailed estimates of the

construction cost of relocation of cometaries, roads, and

buildings.

Mr. Berry. Who makes the appraisal on non-Indian land

Do you make your own appraisalsP '

Kr. Kirmbl. 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 ?asin

Mr. Berry. Does the Hart firm make any appraisals

for you?

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

firm on the rest of the Oahe Reservoir area.

Mr. Berry. Now, the gentleman from Washington asked

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

was a great varia.tion.,between the asking price and the

price that was determined in condemnation.


Mr, KimbaB1. Yes.

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

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

S the effect that the court was increasing the amount by

S approxAately 40 per cent. Would that be too far off, in

your opinion?

| NMr. Kimbell. It has happened in individual case8,eir.

I Mr. Berry, Well, on an over-all basis, would ya\

S say that the Associated Press was wrong when it says that

S where cases hMwgone to the Federal Courts that there

S have been increases in the amount of somewhere around

40 per cent?

it Mr. Kim 1l. That is not an average figure, I

would~ say.
MMr, Berry. It would not be?

Mr. Kiimb~ l. No.

Mr.Berry. Now, I want to ask you with regard t 9 the

Sandy Phillips Ranch, north of Fort Pierre. You . to


tp

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

fMr. KitTba . I do not know. I would have to check

that, and we will be ).lad to get the figures for you.

Hr. Berry. My understanding- is that the court allowed

$104,000 as compared with $80,000 that you people offered.

That was one instance which I noticed in the paper.

(The information requested follows;

The Dvisivon Engineer reperty that the total area of the Scotty
ti0e (St'-U) ,~a wasapro~atel. lO000 aore of wi3doh'the
ovortment took 4,366.07 noares with the ;'ain water supply and hetad
uarte, nt
ovoln Ps a 03,
le Jury award was ",10,3,50.O,
'3'evuruoXe ojmo; . inluding 13,200

~I II_~
flr. Berry. Xfr*Abbottp dio you have some questions?

1rfr Abbott, If I mayp, 11. Chairman, one or tvo

!!uesti ons .
ever
Mr. Kimbafl, or Mfr. Bickford, oxr Kinney, who.Awould

be best -,ualified to answer it: The MRarch 12, 1053 report

of the Arry, Wrhtch we have before us has two figures 40

ther t arc actually y Tflrve -"- one, $1,605000 is the fair

waricket viilue as referred to :n that report; apparently

bascee on the Hlnrt artr'aisl $2,000,000) is set out as

the offer tof the orps in the YTnrch 12, 11953 reprt, and

the fi"I'rc of t2,F1,000 is apparently the Indians' asking

price. T. that c'stb tant11'y correct?

1W. V riI44.l. Thpf ls, correct.

"fr. Abbott. Are you familiar with the March i4# 1614

W3 report of the Tepartment f Tnterfor, which shows the relft

co:i~ieta titou or ~~,f 4,000

::r. i~fK)il. Xn *e havre not seen the Interior Do-


vartrloitts report.

Tlr. Abbott. Than let me r:o back for a moment to the

ILt,5F,S",000 prllce a!p~raiz al as of what date was that

f iguo irriveJ1 at? Co'i.d 'wrou fig, ure it bY year?

Mr. ~ 'Ui1., T thtnk It waa in 19)51,

yr. :T'ibavil. Yes.

"Ir,
.4 Abbott, Neae
N~s 1Fbot,
have IBovu nnfle any adjustmentp upwrd
54

Sor downward, based on a change of the cost index since

That time?

i Mr. Kisbl1. Not in the Rart appraisal figure. We

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

Sthe negotiations.

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

Interior suggests that the cost index as of )Mrch 18,

1954 would more closely approximate the fip~re of $2,284,000,

would you be in position to quarrel with that appraisal

upward on the basis of a change in the cost id lex as of that

date?

Mr. Kimb Ll. 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 supl:lied

to the committee before the record was completed, Mr.

Chairman, it would be helpful.

I have one other 1-uestion on another subject: Has

it not been the policy of the Corps of Engineers in acquir-

ing reservoir areas, and taking areas for the storage of

water behind the main sterm structures, that you anticipate

a fee taking of the land, do you not?

!r, Kiimbnb. That has been the policy until very

recently. There has been some change in that policy.

The FILPion ,ri reports that no anaysiae of and sale


in the reservoir area sinoe tu I art appraisal has beon imde by the
Cor-s of Enginers. However, he reports the Dopartment of Aricauture
ie?,earoh Servioe sows a decline in farm real estate of four per Cent
from 1952 to 1953 and a decrease from 1953 to 1954 over the United
StatAes of aix per cent*
55

Mr. Abbott. Now, is there not under study -- or has

there been proposed for consideration by the orps of Engin-

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

policy which would anticipate, not a fee taking, but taking

of a flowage easement?

Mr. Kimb4l. There has been a new land acuisition

policy worked out jointly by the Corps of Engineers and

the Bureau of Reclamation for reservoir projects.

Mr. Abbott. Now, is that within the Missouri River

Basin also?

Mr. Kimb l. That is nation-wide.

Mr. Abbott. Nation-wide.

Mr. Kimbtl. Yes.

Mr. Abbott. Has that policy been worked out, has it

been agreed upon by the two departments?

Mr. Kimbal. It has,

Mr. Abbott. And is it being put into -,

Mr. Kimbagl (Interposing) It was issued as a press

release by the Interior Department some time back.

Mr. Abbott. Could you state briefly how this flowage

easement acquisition tould differ from the taking of

,. fee?

Vr. Kimbial. We have got some figures on that by

telephone from Omaha, with respect to the Chapenne River


Reservation. According to the Corps of Ehgineer figures,

on the basis 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 taking?

Mr. KiTmbhl . that is right."

Mr. Abbott. All right.

Mr. KiablA . Under the new established policy whi'

contemplates the taking of a fee title up to the top of O


l

the permanent pool, and above that, to the five-year flo ~

frequency, approximately, and a flow easement above that

line to the contour line only, instead of blocking out

tracts outside the contour line, the difference i* fee

taking would be a reduction of 7,550 acres, bringingithe

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. Kimb0l1. That is right.

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

or has that been done?

Mr. Kimbail. That has noi been done.

ii .
V
57

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. Kimbil. That is right.

Mr. Abbott. Is that what you rar to as the flowage

easement?

Mr. Kimbll. The flood line is the lower line as

you understand,

Mr. Abbott. Yes

Mr. Kibbol. The five-year frequency 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 maybe 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 tastes permit

the continued use dC the area between that flood line

and the contour line?

Mr. Kimbll. For practically every purpose except

human habitation; building for human habitation would not

ii
be permitted in that flow easement area.

4r. Abbott. And is it to be the understanding of

the committee that this new policy, since negotiations have

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

Mr. Kimbll. It would not be opposed by the Corps d'

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

agreeable to the Indians.

Mr. Abbott. Have you so presentedtto the Department

of Interior

Mr. Kimbil. That question has been raised. It is

a question that is still under discussion between the

two departments.

Mr. Abbott. Mr. Kimbikl, you say it would not be

opposed by the Corps of EBgineers. Can that be translated

to mean that the Corps would recommend that the flowage

easements would be applied rather than the fee?

Mr. Kimbl. 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 whe re we are already

in the process of acquiring lands for projects, unless a

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

fee title subject to flowage easemtnt; I would rather

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


59

go through 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

taren 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 not suggesting

that with reference to PameIO .Cheyenne Agency ladd; that

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

theother area you would not?

Xr. Kimbal. No; we prefer to have it uniform through?

out the whole reservA4*4.-

Mr. Abbott. Have you completed your negotiations

for the acquisition of land at Fort Randall, Fort Randall

taking?

Mr. Bickford. For that project *--a 'P.


c 5

Mr. Abbott, How far?

Mr. Bickford. We 4e-*~b - have title to IthA ,oC ,X 0

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-wylrJ lW - t umn tracts in condemnation on which

final judgment has not been aande. therefore,we are 1

giving the land owne , m-o--fMuh4ao. w , an oppor-

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

have the land back with tha flow easement, or be paid

the fee valueoi-~.4o y


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

dall, there is contemplated on the main stem development

of the Missouri River Basin, 0arrinm Dam and Gavins Point,

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

for those?

1fMr. Bickford. Garrison Dam, the acquisition of land

for CGrrson Dam I would say, is/f'. 90 or 92 per cent

complete as far as the title in the United States is conm

corned. There are a number of condemnation cases which

are pending, vs which p have not come to trial yet.

Mr. Abbott. And Gavins Point?

Mr. Bickford. Xt Cavins Pointo,4he new project, if

my memory serves me correctly, the only thing that we

have acquired title to is in the construction area. we

p are now in, you might say, the planning stage, working

out the #take line for the reservoir area.

Mr. Abbott On more ruestior 1r. Chairman


me Have

you communicated to the Department of Interor, the

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


be the recommendation of the Engineer Corps that serious

i consideration be given to the use of your flowage easement

I acquisition, rather than the acquisition in fee?

Mr. Bickford. I want to be sure I understand the

question; you say have we recommended?

Mr. Abbott. Has the Department cf the Army communicated

its position?

Mr. Bickford, To my knowledge, ithas not formally.

I feel that there has been discussion *664W between the

b8 various officers.

Hr. Abbott, Would 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?

r. Kimbi l . As to the Cheyenne River Reservation,

you are now talking about?

Xr. Abbott, Yes.

Mr. Kimball. I think we have had the field make a

study wure of the over-all Oahe Reservoir, Indian, and

other land on just that basis, 'the difference in money

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

ought to e able to furnish that to the committee very

shortly, I should think.


Mr. Kinney. That is about due.

Mr. Kiimbsil I understood that the field had reported

that -hyl arve-4'o-


i -t tbe- we w ould have it as of

the first of June or the 7th of June,

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

sofar as the Indians areconcerneu, open up new negotiations

or discussions, possibly?

Nr. Kimbl. Possibly.

Xr. Kinney, Possibly a re-appraisal.

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

It will make a million dollars worth of difference, will

it not?

Kr, Kimbadl. You mean $1 million less payment to the

Indians?

Mr. Berry, Yes, certainly.

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

we are still going to take fee title to 95,000.

Ar Berry. Well, let us get the figures straight

here. When you were negotiating with these Indians, you

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

Mr. Kimh l. 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 disputes they


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

any waterway improvement project, the United States aust

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

which may have come up as shoed 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

,hich the Indians were using showed 104,420 acres, accord-

in t the figures that we furnished this morning, and

the figures that the Corps of Engineers was using was

102,845 acres,

Xr. Berry, What is the basis of your argument there?

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

servation was conveyed?

Mr. Kimb~T. Title to the bed of navigable streams

in the United States is subject to a servitude in favor

of the Government to utilizeA oipy the bed as aayb

needed in respect to the improvement of that stream

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

whether it be the State, the Indians or private individual ;

that is the basis for our position, I believe.

Tr. Berry. I am ad-ised that at the Omaha meeting,

you agreed, an agreement was reached by all of the parties

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

acreage. Is that correct or not?


Mr. Kimbftl. I do not recall it that ways sir, no,

!fr, Berry, Well wire you there?


r. Kimbai&1, I was there.

Mr. Berry. here you in charge of the Army corps then?

IMr Kimbal1. No.


Mfr* Berry. Who was?

?r, KimbaL. Bri adier General ShiFtPw- (P- who was

the Division F~rineer, and had direct charge of negotiations


CHieuI op EnirtEi
on behalf of the%
44ate=-

Mr. Harrison, Will the gentleman yield?

Mr. Berry* Yes, Mr. Thrrison.

Mr. Harrison. Por the record, does the minute show

whether there was an agreement reached or not?

ri*. Kimabll. Probably so; I am not sure but what it

may be set forth in this report.

Mr. nfsrrison. If I may ask the witness, Mr. Chairman,

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

be able to determine whe their an agreement was reacheJ, at

that time, as to the number of acre involved*


Mr. nerry. will you furnish that for us after lunch

when we convene again?

Mr. KimIl.lWe will try to secure that, yes.

Mr. Berry. Was that considered juite an important


feature in the negotiation with the Indians as to how

many acres were to be taken?


65

Mr. Kimbtl. Tes, and no. If there are 10 acres

of 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 meadow lands or agricul-

ture land. It would have probably a nominal value at

best.

Mr. Berry. Suppose there were oil discovered under

this land; what would the situation be then as to the

title to the oit?

Hr. Kimbb l. Under this bill, I believe it would be

in the Indians if it were passed by the Congress.

Mr. Harrison. Under the -ree-bed too?

74r. Kigbl, Yes. "

Mr. Harrison. So there would be a possibility of \

securing some substantial value to the stream bed in th*

case that mineral or oil should be found in that be? \

Mr. KimbAl. That is quitee true, if it were foud,


but to those in charge of these negotiations that wks a

speculative element.

Mr.Harrison. Is it not true that all of the findiks

on the Missouri River, for those that have found oil, that

that has been true until about 10 years ago?

Mr. Kimiba82 That is quite true, but that does not


v i
". .,
66

necessarily mema that a tract of land now has any par-

ticular special value for possible oil.

Mr. Berry, Is not this in the williston Basin?

Mr. Kimbafl. It is in that area, I think.

Mr. berry. No, I just want this one question Is

it or is it not in the Williston Basin?

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

to make answer to that.

Kr. Berry, I want to ask you one more liuestion

and then T am going to give overs This reservation as

such, would the Indians derive any benefit whatsoever fromi

this dam, from the Oahe Dam?

SMr. ,Kimball. I do not know that I am competent to

answer that, Ny own personal opinion is that the economic

benefits of this Missouri Basin Project are going to be

felt throughout the Basin and that the Indian reservation

will necessarily benefit as a result of this development

out there.

SHMr. Berry. Five benefits were established, were they

not; Navigation, flood control, power, irrigation and

recreation?

Mr. Ki/baTll. Those are the particularly enumerated

benefits in the justification of the project, the economic

justification of the project, yes.


67

Y~r. Berrye certainly the Indians will niot be benefittedi

from any nevilation; so faT' as flood control is concerned$

there has not been $800 worth or dawaGe to these people

livine, within this reservation area in the pnst 75 years,

The otily 'cytheyv covl'i be bcncfitted from power

woir 'Ic I b1no4I of~ ro,,cr wcrc as--1<ned to them., which

iS 11 ot jr4 ,,, tOne t4crk -.s nrt onio acre to be irrgatc4

nlot onc Iror of' 'o.tvr to go out on thi. 1ai, 1 there?


-.

And as far ntroiatio~ Is concor~iee, thd-cr recreation is

to be taken awny1 fror. t1-om lnsteac1 of thair being a benefit

rrnv~rlecl by this daw., So that actual.iyl under the five

benofitst they loie in all or than.

T emn g~ni- 'to refer back now~ tn the report of the

Arm~y TVnl:incers to) Seitor Nitor. Tn this connection,

y~u -t-t on Ia 3' re yo


.Ylv'ra! are talking

f) (It tie (Inibic ~


b1rar vl.rtue olf the fflc~t they have
0vte'Ok f vr r vrerir' t 4 .1-ip hi t.t - n '~ in rights in the

n roa. 7hat, afr n matter of oes, niot follow,, does it,


d~,

boiv-oA tof the fact tilat AfhletAioIcr rc reserved or not,


cei

tin1es the re I bol


hwir (-, anei Pi Il nr, 1fhero , certainly iltQ

is ,lct wzrth nnrtlilniy and T cz., 1 ttontion to the


ao~

,PT3T report on np -P (, rnd T *jiiotc!

bS The ndlanis will os-e valuable wild life resiurcc*


in rQ(-r~fatlOn1 areas.e on the Cbeyenfle IPiver Reservation

~vPAof (!eor are of; tint tr live the year round in


68

fl-, t Imber 1-a n ( a rea ithic-i wi E-1 be nu a t,.d. It is

al'so yepulcltod IT thousands of rabbits and racoons,,


overalll llundrul are arnwloly taken from this

area, '11. 1e fc wich p rovidet; the important food f or

10f~aillet iil' be ?ost.

"Tl-c IPiq fun ' W'ild Tle Ser~ice in their report dated

J~inuary '~t rqti~lated that the nut annual Iosr,: of Wild

115fe on 11we Cheyenne 14ver Rleservation would be S30.


ThA.t Is t-aken from the r"NTh1 report.

Inv , if that vabir, (,74,~301., fitrure is corrects that


is alimst 2 jrj-117ionr whenl cor,-puted anid capitalized at

f our perce-at is it 'In~

Mr. RiiW)Wl It may be. I ami not jualified to anIswer

Oa~t ii,- tfon tha t quic(-k; that mnay wel. boO but let me

twax th:ts observation o n that I Captalizing gros! income

is not iwrm aTwr the '-)s!.s of' determining: the value of

propo~I f' the Congres wats to cornpensat3 the Indiana

o-i that f~ns i t is its )rfcrogativo to do so, b~zt It is

non.iyttln 1r lm n!"00~ in( ' d~O '~th~vl of

prop Prty.

Yr eYr;'y. Nrc. 1loit I t J s a ne'rial r~e tboA of (cter-

r. Ki.rIw4.J. Tn svr cqwses; not oway--~.


r. 1Thr. t O cr t inh~ j t c o ud nrt bo ccrnIne&(
69

as double, the percentage double, where one feature of

the damage is taken out, could it?

Mr. Kibatl., Not exactly but, in effect, what we are

saying, Mr. Chairman, is that the Fish life which would

be reserved to the Indians under this bill are worth

zero.

7r. Berry. That is right.

Mr. KimbAtil About the hunting r-'rhts that they

would lose by the takiRJ of this land being worth $2

million, now yumay or may not be correct in that, but

if you say the hur.tin;: rights that will b'e reserved in

this bill are zero, then why rite it into the bill?

Nr. Berry. It is under the treaty of 1868, which

reserves it for them. And the bill simply reserves one

feature of the 1868 Treaty.

Now, let us drop down to the last paragraph on page

1, and I quoted

"It is slureted, however, that such relocation" --

and they are tal.kn.m asut the court cf relocation --

"It is sugjosted, however, that such relocation be

accomplish hed as a Governmental operation under the super-

vision cf tbhe Preau of Indian Affalrs, with annual

appropriation to that Agency besed upon the cost to be

incurred after that Agency has further opportunity to

prepare detailed figures,"


70

In other words, the Army does not propose to Ipay

for any relocation or rehabilitation or reestablishment

of these Indians; is that correct?


F
Mr. Eimbal. We question whether that is a proper

element of the cost of the project, With respect to the

non-Indian lands, the extent of property aciuisititn that

is chargeable to the project, the market value of the land,

plus not to exceed 25 per cent of that value for removal

cost.

Mr. Berry. If it is necessary to re-establish, re-

locate and rehabilitate these Tndiarnbacause of the fact

you are driving them out from the bottom, certainly should

not that be charged to the project?


r
Mr, Yimb :.. That is a question n of opinion, sir,

Mr. Berry. If it has to be done, it is a question

of bookkeeping is it not?

Mr. Kiimbp4il. There is some bookkeeping involved,

yes,

Mr. Borry. As a matter of fact, suppose that you re-

commend, as the Bureau did, r,.int; zhed and making a four

or five year study, and then Qore back with a bill to

provide for relocation, do you think there would be too

much chance of them betting it?


r
Wr. KimbL.. That would depend a ureat deal on the

circumstances at that time, I suppose.


It ' .

71

Mr. .lerry. I think you are correct. During the war,

they took a strip from the Pine river Reservation, a trip

40 miles long and 12.5 miles wide, and they paid ;ust

the bare cost of the land on the basis of what you propose

to do for white-owned land. The Congress requested the

Incian Department to go out and make a study of the actual

Camaae;cs cause( these people, 1'hat was about 10 years ago.

The report indicated they were damaged to the extent of

$250 0 per family, plus the fact that they were entitled

to additional money for their land.

Now the Bureau of the Budget has an adverse recom-

mendation -- the Army of course recommended its view and

that was adverse, so I have an idea that this recommenda-

tion of yours would end vp in about the same place.

I have just one more point here: On page 4, para-

,raph ., deals with the reservation of mineral rights

i.ll you have any objection to the reservation or pro-

vision reserving al:. mineral rights in this land? You

sue:cst only oi3 and gas.

:"r. 'iwba-l. That is correct. That is in conformance

to the bepart nt's over-all policy. I do not know that

I can speak for the Department. My personal feeling would

be that perhaps we would not have any serious objection

tc ths reservation ' inreral rights, over-all, if it

41 , ~ i1 t
72

ifere subject to suitable restrictions that the recovery


of mhtrals would be under regulations of the Department
JC-CT
to prevent any adverse effect on.y the projor operation,
Any'reservation of oil or gas or minerals, of any kind,
wouldl bave to be subjed to such protective rights and

regula tions of recovery.


'tr.' Ylerry. Nyoup the reason I asked th&t Is because
tivere Is -iTrg amount of %nown low- ;rade manganese

on Vie Che-yerne andl thn r (iowi4# 1c.servstion and on lands


thati~ be taken -unl nar being ta"Kcii by the Federal

M~vertrint. At the rresgent tmI acdn-f Vint we- do not

1o o' nny process of obte.irin- tlmt Inatpanose, but If

'there Is suffi1clent power available, we miay be able to


oex11trac-t 'at ran,-nese ore and it may become very valuabl,'e,;
e,1tbecr to flip TndOJ3:is- or to t!-o Feelorctl Goviewnmentf whoa

ver hen' cowner!sh~o of tfhat lancl, ane!4 T t!.-ink the reserva-

tioni stould be for ri-neral ri-Jitst subject to whatever

rv
r~ecsi~ iI,;t neclod to 11,0V'2.
Irr, TI-ii1-'4{. Yes.

nr. Berry, Now, on pae4, paragraph 7, that deals

ith tho riltht o-r occupancy of the Tnhdians on this land

ntfi such time as the~ land is cooV4rl-1 by ba~k-up Watean

rind you~ s tate thiijt and I ;juotei

"'Stich rltght of' ocupancy to cotibino with a provision

tint nt) Tnflitn W..12 be n o~ ~~ urfr r payment to


the Indians, at least, until after the date for relinquish-
as
ing suggested."

Now, with reference to interest in a further suu.Do

you mean the total sua?

Mr. Kimbadl. Yes.

Mr. Berry. Now, if the settlement was made for, sa,

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

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

be quite a sizeable amount of money, would it not, and

would be ruite*an unconscionable rate of rent, in my judg-

ment.

Mr. KimbiAl. That presupposes that Congress determines

9 that $12 million today is the value of the damage to the

Indians.

Mr. Berry. Well, the relocation --

Mr. KJ.mbAi (Continuing) Our recommendation was based

on a question, in our mind, as to whether the full extent

of the damage to the Indians, the reestablishment of coats,

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

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

I are asking interest on what amount?

* Mr. Kimb l. Well, let me say this, that yourpresent

evaluation of yearly annual loss is arrived at, in the

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


74
1
i

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

on it to a certain extent?

Mr. Berry. On that same page, 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 ht.-ineers propose to maintain a staff there

to handle the leasing, of that land between the taking area

and the low water mark."

Is that what you are proposing; is that the theory

of the Arwny ,ngincers?

!Mr, KiiiblR. o;edo that right along in al reservoirs,

whore there are no Indian lands involved. We are granting

leases continuously forthe use of the land that can be

made at intervals that is not suberged by water. And

that is standard practice.

Yr. Berry. AnC is that put up to hidders?


I
*Tr. raj ll1, NO, It says here, first the former 3and-

owner is :.ven preferential riht,

r. Rorry. To meet the hi.,h b:i.i

?r. Eimbi.tl. I do not T:now that he has to meet the

h.lh bif; it I.s based on the appraisal made. An appraisal,

i r:ade of what lhe i'air rental value would be and the owner

is given preferential riht to lease it, and it he doesn't

then it is advertised to the highest bidder,

I I 1... .. ' ... .-L i I- I , i . .m- . . . is .... w .. . . ... .


75

)erry,.
Pr In other words* we have got 145 silos

of land alon-g the riva- in the *Indian Reservation and we

are grin to-4urn back to that map, units 203 and 208

there on the nmapi-suppose you lease that to somecone else#

thf) ,ihoru~line to riomt-e,,u else, you have then made units

I iii~id 2NCG which eifiuc ;vxatown~hips of land

* A (to) 12o kn'ow whethur it would make

V..'t vAi~lmctivcueotb
Betr're. atlas-

C(LrLtinly this rental vvluethat we are talking about#

tI. diffrential it) rental values would certainly be much

Mhouh~r tbar 13 cnteminted by the Indians wculd it not?

~~ThaU0.e19
::~. I Jo not know wiftther it would be
*I ,not1 s(ec whyo

Eriy
" If the~y can -tot ituP It, their loss is

:tr~".I i i l i L i,

A .4 4
J .1t. Thc T. dianz co:-i 'e -- tee th* tp did they
ritt ia er
0T Iai ,

1rr rry. lc. They are takin& about winter use

of' the o:c; Tw you are ctting thewi off from the

~itc
t:. '.u..yoi havo aay objection to the Indians

La ri i P. hef loar~ (., this Cefolland within the


76

tr. Kimb~l. I believe that we tstaed that we did

not have, in this letter did we ot?

Xr. Berry. Did you say that? I could not find that.
i
Mr. Kimbsl. The only thing we object to is that it

is bei.nr reserved to them by statute. We say, we are

recommending that that section be eliminated, that that

or au easnment or something of that type, and then we go

r to s t rryy
"The norma. eDepartment practice is that the Indians

fwoulbd v re, as other former land owners, preferential

treatment t of granting leases for the use of land for grain g


and other purposes and upon the payment of fair rental

Fr.Berry. That is not what I am talking about, ~r.

Let us go on to the Pine Idge etur'vation. I believe


th~'t belongs to the Air Force. The Army has turned t t

over to the P'ine Ridge Reservation to handle the leasing.

The T.eservation Agency handled it -- that is, the Tribe


handles it just the same as they do their tribal land,
Would you know of any objection to lettinglthe tribe

handle this, the rental on this, the same as they do

their own tribal lands?

Yr.EKimbJed. Well, the objection stated in this

-g Oft INN-- IN . .-- N


" -t" 1....
*77

S paragraph of the letter here is that that is consistent

S with the standard practice of the Department in reservoir

S land, If the Indians are to be given that privilege, thaj


is a matter for the cookttttee and the Congress to determined ,

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

should be some commensurate reduction in the price that

S is to be paid for the land. In othar words, the appraisal

is supposed to be based on the complete taking of the land

includirt minerals and everythingelse.

n.
.-... r ry. I have not made miyself clear. The tribal

(Information supplied for inaertion in the transcript of rcord of


"IHearirg before the Interior andl Insular Affeair Joit Senate and
House Subcotamitte. on Indian Affais - .l, 2233 Jand
o S
69 te a
Wednesday ay19, 19, ), 69

Ua-w w Mun....
78

because of the fact that here you are dealing, not with.

the individual alone, but you are dealing, say, with a

municipal corporation that will own all of this shoreline,

and if one operator were given the opportunity to take up

a small acreage, he could possibly make a large area value-

less, so far as the Indians are concerned. There is no worry,

about, as I understand it -- there are about 40 tracts through-

out this entire 145 miles of shoreline of non-Indian land,

but I think that is something that you should give some

thought to, because I feel that there is something still

to be worked out, and I think it should be worked out with

all sitting in, in order to protect the Indians in their

rights to this land.

Did you have a question, Mr. Abbott?

Mr. Abbott. One other question, Mr. Chairman. On the

last page of the report of the Department of the Army, the

second full paragraph, having reference to Section 8 on

par.e 6 of the Ho~osand Senate Bill, this statement is made:

"Section 8 recites the hazards to livestock created

by rise and fall of waters to be impounded in the Oahe Re-

servoir, and it places upon the United States the respon-

sibility for protective measures. The Department considers

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

Could you, Mr. Kimbll, or one of your associates,


79

comment on that? You are saying in your report that

there are no hazards, or that there would be no hazards

created to livestock by reason of the impounding of these

waters; is that correct?


; I-.
?r. Kimiil. That is a question of opinion, I would

say, on our part. We do not believe that the hazards

will be any Lgreater in the reservoir than they would be

along the river in its natural condition. I would like b

ask Mr. Kinney whether he areoes.

Mr. Kinney. Yes, that is correct.

r. Kiiimb&l. The change in the water level would be

more girauual with the reservoir than it would be with the

open river conditions.

Mr. Abbott. But is not this true, witi the open river

conditions, after tundredc orfyoars in the course that

the MIssouri River now follows, that youhave either a

river bottom meadow which may from time to time be flooded,

or it runs into what amounts to an almost short bluff,


it
or a rather steep bluff, and is not likely that cattle

would be grazing from a verticle point. If, however,

you take them up on the steep contours, is it not true,

that in r)any places, you will have a rather sharp incline

that v'ould teoupt cattle to graze and if the water rises

ant fal:.i, yo; are g)oin; to have a perhaps boggy or

~- ~LI~L--L-- _ ~IIIII~.I--Y1 -,
80

muddy area or areas where they will indeed find theme*

elves In~ distress.

Mfr, Kiln.rbtA. Not being an engineer, I would prefer

rnot to try to answer that -Jiestion. It wouldi depend upon

the.,,\ailn in the particular area, I would say. I wigh t

ask "r. XUiiney if fie has anything to add to that.

Yr, Abbott. li, is perhaps,., a ijuestion that maybe

x-anchot, ooti'd1 answer acj welt as an -t410r

,aa, the matter brotv-:ht up TI-n youir discussion",

r.
ii~~3 . IthnVr -it wassy

1'rbbott. And Coo AAF,:;Ay x'oj Ittitj

,.* Kirnbikv1. The Arm~y tales the position -that the

hazards to cattle will be no (.rcator under reservoir

condi tionfs than~ they are at thc; parent time.

H~r. Abbo tt. Well, the recitation i ni the bill, lines

V'~ throulisli 22, reatdcF, ~Ft" T i-uotet

'l h. Un-, to$ tmm'


az the In(':i.ani par ties to

this aurroementI Peefufize that a hazar() to livestock

createdd by the rise am? fall of the vaters, to be

Tnsofar as tliv Army :is concerned, you (io not so

rcoyi 7( ?

yr.~~~~~T a~~~
16rntisrch

74r, Abbott. 1ould any expert testii.ony on that poini,

ki a
Mon. kwo
perhaps from an e-Ineer, or perhaps from people. who do

graze cattle in the vicinity of thie reservoir, help or


be pcrsuasive on that point?

1Yr. 'Tiribll. It would have to be coupled with actual


knowledg-e of what the reservoir level is [tgoing to be,

ifr.Abb'3tt, But you would think, If there was suhe

a hazard, that precautionary measures would be neceesary,

such as fencin- or whatever was necessary, be ertod

without additional cost to the Indians themselves?

fr, TYimrbW%, That is not necessarily a. questionn I

can answer yes, for the reasoth that it would depend upon

the hazarc!5, econor-le hazard09 and economic costs of

providing., such protective measures,

'rr. Ahbott. 1ut you perhaps cannot so much apply


a slide rule to whether cnttle would be in (tonor# as

you could liy a good aninIa httsban&y @-pert in that


re., a r(;

r. T-
i t1 . If the Indianrs are not given the pri k

vlee!r e of PBZin, the cattle clown to the uater's edge,


they will not be subject to that hazard.

x. Abbott. VTt1(o not thii.S i'fjOwa,,e easement there

yr~aFl )liave so-te e:'fect on what. i..e are talkinc g about?

'r, 1i,,iT.41 1 Except that the flowage easement

th~cory that w~e nre talking about, bear in miindt does


82

not go down even to the normal power pool of this dan

It is a higher level. We take fee title above the normal

power pool, which will provide water and willprevail for

the greater part of the year. We take fee title on above

that point where a flood on an average every ve years

woulc reach, so that there will be astretci Yland on

which the indians will have the remaining ta, . i*4


d- -

wef~iath , un.cr the new policy, b-4.ua. mb sesfB

ano hc Ia ter r ost of the timu, even under the new policy.

7ir. Abbot. Does yoitarelocation take into considera-

ation the "iencing in" theory they now have in the West?

That he who owns the cattle is responsible for fencing

therm in, not that the adjacent land owners are required

to fence thue out, as they were at one time?

,i.ubilr,
)Mr. I do not know that I am prepared to answer

that. orally we could fence them on the same basis as

the pasturage, tho condition the pasture was in when we

cam-' in; if thcro is a fence now, upon relocation , then:we

wou.iu include a fence in the relocation. If there is no

fticu, '.o wou1rd not include th cost of a fence in the

ruloua Lion.

iMr. 3er'y. X am not goi n , to make a point of order

th t the 1:ou~e j.3 in session, but simply call attention

to it. Aut I do want to announce that, without objection,

___ II __ __
83

ure wll m~et 't 3oo th~is af ternoon; in this room at

Iohere is samethinj in~t T would 11ke to have

,-nn chock zn -- and T want to announce also that I a

goin., to tur-n the u~~o~~ over toMr. J1ex from Senator


Vatldins' office and %fr. Juhinke from lir, Case's office

and the,'-1c-ntleme- -*411. tart or.t with the questions.

We intenCe to do tba!t this irning but ran out of time.


I !,- vt yreti to r1~ccl: t'ds dur:1nrr the noon hour ond
Gec iLr y( iCc n setierpit under the Garrison Do

bi6& . I ca n 41.-swe-r that .jcstion right now,

Xtr, ChaL':ia-i, if' yru want me~ to.

I r. 1~b c11cd not irakle settlement on the

rnarH. son Dsr fox, nnrythtinr. Conrec nadce settlement on

crir son Js;thry re'etc 1 owC negotiated agreement

zid
11C y narle, R f I rtire the t v~as to bo paid for all -of

tl~
tv 1-n
arvt's There Vere no f-upetions- of valuing.

if;'Cl. acro Irro~vd. ncw'er rurn{i'hed the Congrs.6

acccincil, to' PiJ rer 1 iect~nn, any spr-rai;al of the Indian

I~(
n thK Frrt Rprtbold Pcvtinthat wan being'e

tr, ir rcr tic r~nrrison 1kesprvolr.

7.1-it we fiirni --hpd orI~jnaJ1y- was an estimate of'

lhic Cost nf zc I!rinr liexi landcs, ether Yantls* which


84

we tried to locate on theea sumption that it would be,-


as good for the Indians as w.o were talking about her*
this morning# and what we were taking away from them# an~d
the euthvted costt of' acquiring~ those( lieu lande# which
the Indiatns could wse, was $501O0900 figure# which the
Corigras;: took$ not havinij anty relatiowphiq to the lands
we wcrc taikliv,, from the Iadiansp but sOhat It would hove
CoW *A%' those~I particula iou
IIQ$A 1n4nEd1( they said that
trorey itl- Sot g'~i~;~triatly Lox' thi~i ribe of Indians and
yo~~~~~~a~ o 'c i L i ~~ Ll,=Torl the actrujaition

4(fa+i3 y Ina Cie ci~a of~ Vic~ "ur, Iertvld. Kesorvation,


after thEit solumcnt vvautthorized byl tie Congress# and
acvvveciL the:, Trdifliv h 'L?'uu.Au of '"niliau Affairs made
v pjra3~1 of' tbvv. Tndian 1a)-ds and if I um not mistaken
the apl raiv~a1 mseoc 1)3 the Fureau of lnca4'n Affairs was
~etiini~ ~th~in is)IIiong Cr ap~roximat~ly $3 millions
That tir viiIII1rin liio at lcat, thu.- the figure which
~
(C~~? ~hs, : diWrtei.1 "4. tU iout 11
t. h
The~TZ7, n itdt i cn to th~a ,01059,000 figure
alrsa 1,0 C 7 *" t i~ iOA or a('i.(4r~l woc for' daimatges That
1.7. , 111 i i nr tV'o %rt1'W3.tf ot charLged to

the rorjct
1rL but %a

Mr., TBurrvya ias not char!;'.i


88

Mr. Kimbs~. Was not charged but, rather, it was

budgeted by the Bureau of Indian Affairs in the Interior

Department budget later.

In addition to that, we are now spending, as I told

you before, some $8 million to $10 million for relocation

of Government facilities on the Eerthold Reservation.

Mr. Berry. In addition to the $5 million and the

$7 million?

Xr. Kimbl. That is right.

Mr. Berry. There is a sum of three or four million

dollars?

Mr. Kimb&il. Eight million more for roads.

Mr. Berry. Eight million.

Mr. Kimbbl. For relocation of roads, schools and

agency buildings relocation,

Mrr. Berry. The committee will stand in recess until

2t30 p.m.

(Thereupon, at 12:15 a recess was taken until 2t30

p.r. of the same day.)


WFIednesdayp H1ay 10, IV54
(The subcoiamittee on Indian ilrairs of the Comiaittee

on Interior and Insular Affairs resum-ed its session at


2030 puim,p Honorable 33, T. )3erry (Chairmuan) presiding*)

)tr. Berry. The conxittee will please come to order,


K!r' 1NUn~bolt il you gont-c&umen take the standI again?

Hx%' Berry. Hr, Gzroruc, on the staff of the Interior

Ccutdittou in the Senato, will take up the questioning,

T)cr, Grcoru(4'. 'Yr. IKir,b1 how many Indian families

are livinLj inr that area?


1'-r, 1. Ini that area- I think we have that figure.

Accord -41~ to the Lenera1 irnfolniltion that we have, there


are ~a ttctal of apj:ro'iti,-atciy 60c, Xndian families on

thc tcptitl reservation, and in that area of the Oahe Dam

there are 131 farmillest

'r. (roruQI. Tow many fandliesi'

;h&0.1.
m~r One hurndred thirty one fainilles,,

tr. Gror1W. bors thot include the Cheyenfe driver

~r.
rit~h~i.T thin'~.-

Yr. Grofud. Ifost of the Indians live at that agency


Jo the' -not?
87

Mr. Kimbatl A substantial number of them. We do

not have it broken down here as to how many are living

at the agency headquarters and how many are outside.

Mr. Grorud. How many Indians are farming their

own land?

Mr. Kimb*1l. I am sorry, I did not hear you?

Mr. Grorud. How many Indian family are farming

their own land?

Mr. Kimbafl, I do not think I have that figure, Mr.

Grorud.

,r, Grorud. Is this land mostly leased?

Yr. Ib l. A rreat deal of it. Some of them lease

it to non-Indian cattle owners,

Mr, Creru, Practic ally all ofit?


'.
Mr. Kimbtfl. A great many of them.

Yr. Grorud. The dam site is not within Indian lands?

Mr. KimbhS. No, sir,

Mr, Grorud. How far from the reservation is the land

for the dap site, actually for construction?

Yr. Kimb1ll. The mouth of the Cheyenne River is

40 miles upstream front the dam site; most of this Indian

land is alont the Cheyenne River,

Yr. Crorud. How many horse-power would be developed

when the dam is finished?

1r. Kinmbll. The plan is, the initial ins tallation


88

calls for two 85,000 kilowatts or a total of 175,000

kilowatts with an ultimate installation of five units,

making a total of 426,000.

Mr. Grorud. But the Indians are not asking for any

block of power?

Mr. Kimbat1. I believe not,

Mr, Grorud. They did some years ago?

Mr. Kimbtl. I think so,

Mr. Grorud. But not now. That is all, Mr. Chairman.

The Chairman, Mr. Jex, do you have some questions

on behalf of Senator Watkins?

* Mr. Jex. Yes, Tr. Chairman, I have a few questions.

I address myself particularly to this element known

as direct damages. As I understand it, primarily that is 'the

only thing the Army is testifying on now; is that correct?

Mr. Ximbil. That is correct, yes.

Mr. Jex. And as I get it

Mr. Kimba3. The question of damages,

Mr. Jex. And as I get it, you have offered $2 million;

the Indians come back with about $2 .5 million and I am

wondering now if there is any reinbursable costs, or

are there reimbursable costs in this project on the

Cheyenne?

Mr. Kir;ball. You iean reimbursable costs of the

Oahe Project?
80

Mr. Jex. Yes.

Mr. Kimbel, Such as irrigation benefits or something

of that kind being made?

Hr. Jex. Well, I am not meaning to tie it down

strictly.

Mr. Kimwb l. The reimbursable costs of the Oahe are

basically power. Power will be reimbursed, from the sale

of power revenue. There is not any portion of that power

earmarked for the Cheyenne River Reservoir.

Yr, Jex, The thing I am trying to get at is in figurin

the csti-nte which you presented for justification of the

project, you must have figured tho allocation of a certain

amount as reimbutrsable costs, out of the total cost of

construction; is that correct?

Mr. yIiri.!, That is correct.

fr. Jex. No:, in fi-gurine- cons tructim on this same

type of flood control project, in non-Indian territory,

am I right, in stating that you allocate not to exceed

25 per cent of the costs of the taking area of lands for

relocation of those inhabitants who have been displaced?

Tr. KimRb3. That is a policy recent adopted by

the Congres.;, initially in connection with military

projects, and in this Public Taw 534 of the 82nd Congress,

Section 401(b) it was extended to all Civil works Projects


90

that in the discretion of the department we could pay

actual moving costs of the land owner or the tenants on

the land that was being taken .rsaw the project at a figure

not to exceed 25 per cent of the fair market value of

the land on which he was located,

Mr,. JTex. If that is taxed as a cost to the overall

project and a portion of the project is figured to be

reimbursable, then I will address myself to the subject

of the elements of the locations indirect costs on this

project, which you claim should fall outside of the project

costs,

Mr. IKimball. Yes,

Mr. Jex Does it not seem reasonable that if you

build the same project on non-Indian lands, a certain

portion of the relocation costs should be charged to

the project as reimbursable?

Mr. Kir bl. They would be, yes,

I(r, Jexo Has that been taken int effect here in

your offer of $2 million?

Mr. KimiaWl. No, because the statute under which

that offer was made directed us to negotiate two things

with the Indians: Number one, the fair value of the land;

number two, the cost of relocating the Indians,

The only figure we have negotiated is number one.

____~ _ __ I II
q9

The statute, Public law 870, under whieb we undeirtook

the negotiations, directed that we have an sprraisa1 or the


land m~ac1Q, which would form the basis of' th~e negotiations*
presumably for number one,
Number two io an a~dlt.onal eletenfp- tri1 vc slere Cir'.

ected to negotiete, as we understocC It, O~v sceon7 step


In the negotiation.
~Ir., J.if "onges -in so Ir's trtictin- yrou to neigoti-
ote for the relocation, Intondedr to tr'oal t1o cost of re-
loaition of these individuals as Yndin, c-11'1i.ns separate and

apart as disti nfuished from otbv'r 0 ti~vns sr'd rpcor;nizedc

the further problem of relocation of th'me Indiv,11duals# then

you would not quarrel with the Conzrlto-~hy se) i'riplied

that you should neg-otiate the sam~e enntract as to the con.M

structiori as you would have intl~ated -In n n&(.tn tstructureql

Xr. Wimbaik \.Tor T woulet net,, rt ir., --py 3ACO noCt


mean to lcavo thz1 irpre-ii tllit vie antt-onintIc witnesses

ill this thing. -tt 011.

17r. J1ex, AnO. I cAo not mean to Teoovi tlr T~neso

tha t I am~~ a 4agon i-stlc i n Py e xa m1 n t 1.ovtn

!'X Kimrbi;.2 . e aro vmer43ir 4 ii tttW to tho a ttention

of' the Comti ttee on(- if the C'onc rns- , Vmio~C~~


(! have

no objection to loatn:as a part of tbhE. ve~~cost

of' the project# certainly. After !nll, the %"onre,. authorizolC


92

Sthe project and the Congress says how we shall allocate

These items in carrying out whatever vw+e.e the Congress

!i wants us to do,

Xr. Jex. This line of questioning develops from -

that ist the felling that if there is a reimbursable ele-

ment that would be paid for by those directly benefitted

by this project; that it should include all the reimbursable

costs, and those others which are premised primarily upon

the obligation to the Indian poeple as Indian people, and

tha t they should be treated --


: CVI E N b0
/ fV
Mr. Kimbhal Under a treaty with the -fogre -.

Mr. Jex. Where there is no reimbursable item, that

that should be a separate item.

Mr. Kimball. Yes,

Mr, Jex.And that this project should not be treated

differently merely because it is being constructed within

the Indian area.


L.

Yr. Kimbi13. That is right.

Mr. Jex. In your computation of the $2 million figure,,

you did not take into account that portion of what is recog"

nized as intangible by your analysis of the relocation

costs?

lr. KiIball No, we did not,

Mr. Jex. I think that is all, ir,. Chairman.

"-"
SHtro Berry. Mr, Juhnke, do you have any questions?

Mr. Juhnke. I do not have any 'uestions, Mr. Chairman.

STr. Berry. I have a question with regard to the

acreage. On November 19, 1952, you met with the Indian

Tribal Counsel, with the Bureau of Indian Affairs, a re-

Spresentative of the Bureau of Indian Affairs, at which you

worked out some facts and figures?

Mr, Kimbsl. That was a meeting horse in Vashington, I

believe and my recollection of that meeting is that there

was a committee appointed to "o over some records of thd

Indian tribal negotiators. They consisted of a couple of

our men from the Missouri Basin, appraisers maybo -- they

were both qpraisers; and a couple of men from the Bureau of

Indian Affairs, and a couple of representatives of the

tribal negotiators. T ner c onalyv was nrt n mcmrber of that

committee,

Mr. Berry. Your Corps representatives were at the hear-

ings; is that right?

Mr, Kim.amll. T believe that is ri.ht,

Mr, Berry, Do you remember the number of acres that

they decided upon as being the amount?

Hr. T'imba1. * There is an analysis of those various

figures attached to Exhibit A accompanying th.e Departm.ent

of the Ary's report to the Conmmittee, tabulated hero, and

L- --- --- . ~- ~,_,~-~


-- .1.u~-u
~
~- or-- ---- L- ~ ~y--""~
lr-usrv ~lI~lll- -
llrrr~ - -~u
the acrna:ge fgrGures, Ps gIven in the !lart appraisal is

shown here as 102,A47.28 acres.

The Missouri river Bsin investigating unit figure

was 104,420 acres.

he tribal) frig&Pure iva re4'#~e44.'i'M.?Ii5 98Si

ti
ar 'i v': at this value,
trbe accepted The !KTI (2~ :u its [:C;in

s-rry
* 7r. . it>iv'c leor. i;ic a copy f the minutes

Ci t It! rwe tin;1


nrItan ic the : rnsatf. 3 is Set up,

cc,, ucS, EBJ ncIler7the rtxrie'i:y conn;ttee f1oures

are Sv"'t tp.

r Lag I, y

, Pe~rry. \nc! iccordliu: to thcso rl !t1tf, It was

de~i:<l: tO a
nc2 ,i n- i rini'rrtne It, oil thuo fim-,1ire 104g420

'Nv' I: tim 'tr': lit; ts timt corret'ttf

r 't,'b . t-zt -- fro- ti is inl.,ysts here, it would

* 1~"'r tat . C~jpe


fl;,& r" -iner:r (did, as a result

ef'tim' !~Q
f~i~a- eO lvMairt apraiai figures

. ; n r l th" 'P3T v t ne (l-iils 10 4 o0 0 fiures,

;n oo' r to1-t-nk t'm -ifference between our basic figures

niJ t(I ' ,0flr0 and the Tndlan' Ias i c f ip-ure of $2,6,0OOi

nr, as ctatn 1.n the ofer, the renresontative of the Chief

of' ?%n jixnr; ra'coy-ni-7,cl that it is Anoi. unusual In ne,,&otia-

tI.nr- idth -- Cor Vie acr.-ulsl Mon of -, ,nd, to agree upon

BEST AVAILABLE COPY


95

a price differing in reasonable degree from tho official

appraisal figure where such variation is justified. Accord

ingly, while having in mind that Public Law 870 provided

that the official (Hart) appraisal made in accordance with

the terms of that Act, shall be used as a basis for the

termination of the amount of just compensation to be

included in the contract, we a ve c aused " further analysis

of the three -cnorts to be made in an effort to arrive at

a possiblefasis for adjustment in the Chief of Engineers'

of f% .

The tabulation shows the result of this analysis and

is attached.

In making this review, we have accepted the land

clas ification and acreages compiled by, and set forth.

in the RBI report No. 132, which data was also adopted

by the tribal negotiators, applying average per acreage

prices derived from official Hart appraisers.

In respect to the severance rights, we realize that

even exports must use professional opinion in determining

such data, and we have used values established by the

tribal negotiators,

Now, we will get to the other elements, but the

essential point is that General K1wi;;, who was the

official negotiator for the ChI.cf of Lngineers, in his


96

offer of $2 million in reevaluating his basis for negotiation,

he has accepted the figure of the MB'8I and the Indians

and computed these values on the basis of the Hart acreage

values, to determine what the difference in acreage amounted

to.

"yr. Berry. You are a lawyer, are you not?

Mr. Ki.mhb . Yes.

Mr. Berry. I wan* to ask you this questions Would

ycu build that dam without getting a deed to this land

to the center of the "issouri liver, not getting the title

to it from the Indians?

Mr. Kimbai. No. Possibly we would not.

Mr. Perry.But you do not want to pay for it?

Yrr. KIJm t3. That is right.

Mr. Perry. Do you believe that the Indians own

title to the center of the ?i.s-'ouri Piver?

-:r. riahb 3. T do not dispute that.

?.r, r c.rry. For the record, may I read t. provisions

of the Act of March 2, 189, 25 Stat. P8a, Section 4,which

reads as follows:

VThat the following tract of land, being a part of

the said great Reservation of the Sioux NatHt n, in the

Territory of Dakota, is henbby set apart for a permanent

reservation for the Indians receiving rations and annuities at


9'

the Cheyenne River Agency, in the said Territory of

Dakcotal namely, Iletinning at a point in the center of the

min channel of the hi ssouri River, ten miles na th of tile

moth of the Mloreau River, said point being&the southeasterv

corner of the Stinei.ng reck resp'at$on; thence down said

center off the malt~n channel. off the Ulssourl River, incluei.ing

also entirely within sad reservtio all islands, if

any# in s.d river to a point oppo'dte the risouth of the

Cheyenne 1Riverp thence wret to said Cheyenne Ri.ver" and

so foth.

That would leave no doubt at al. of the Indian owner

ship .
r 'tr,at lg rTt'bht,

~rrr. And If that is truet the total amount is


approximately )')4,420 acres?

Mfr. Klmfbhi.1. Vast Is. not n complete explaaien of the

discrepancy, The discrepancy -- the total discrepancyp,

believe, in the river bed, according to this report of

the division 4nvrineer, which is ilso attachedl to the Secrel

tarv rf the Armny's report to the corvifttee, shows 643


acreA r r1,ror beO which reduces the difference to 032

acref .. Tt har, been agrlpred that the river beC I;q! -to tangible

vitr1. t wt iot included In the 1!izt computation. It


is believed that the difrerence In the total acreage has

been occasioned rizainly by the f'zct tbat a larjjo number of


98gg-100

individual tracts are bordered by streams. There has

b9 been no survey. The Hart appraisal of acres was deter-


Pier ', 'Y f A .b, i,;
mined by the use of a estimate ,based on actual

inspection. While neither is accurate, it has been the

poCition of the Corps that the lart estimate should be

acceptedbecausee the other computations were not checked

by actual inspection.

Maybe there is some difference also by whether

computations, were uvdre i4er low, mean, or high water level.

Here, , ain, 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 (,'ch tract, and whether the acreage is exact is

of no consert;uence.

I \h.nk diAcrepncies may also cist in individual

cases wher-e oC'


riner may b mti taken asi to their boundary.

Hal3az
fls
3 pm
101

OHal Mr. Berry. Mr. Abbott, do you have some questions?


fols
TLS Mr. Abbott. I should like to address questions to any
3pm
1954 of these gentlemen who might be able to shed some light on
ndians
1324 them.

Is it the understanding of the committee that the Corps

of Engineers in submitting a planning report is required to s'

South estimated costs of all of the items that go into the

project under consideration?

Mr. Bickfcrd. That is generally correct.

Mr, Abbott. Are you required in setting out such oosta,

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 necessary

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 Oahe?
Mr. Biokfurd. As I recall, we are talking about a real
estate planning report. A real estate plan port may not go

8 - Y I -RI L--- - - _1U 1_1__ I~-~A----Il~ II----_ -I .-.-LIL-- ~


102

Into those details, sir, for the reason that in a reservoir

such as Oahe where we get funds from year to year to go ahead


With the land acquisition, the planning report is usually
0 prepared in the field and submitted 0n a segment basis.
Mr. Abbott. Are those planning repo. s ,u are referring
Sto 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
Reolamation Projects involving use of water facilities.

Mr. Kimball. Our report since that directive was issued


by the Bureau of the Budget -- our reports are prepared in thai

form.
Mr. Abbott. Is it not true tbht you are required
and requesting authority to proceed with a project to have a
total dollar estimate of the coat of that project?
Mr. Kiabil. 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

- - - ^- ij . " .. r ... i ___. ...... ' - - _.. - - - " .


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

on item which 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 nature 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 was both ering 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

Nr. Kinney. That would be rsenryair costs.

S Mr. Abbott. That is broken into 'uch a way as to what

|; portion of that $60 million was presented to the Appropriatie


SCommittee as being neoessa
r ' as oonmensation for the Cheyenne

SAgenoy Indians?

Mr. Kinney. No, I do not have that.


S Mr. Abbott. But was not such a figures developed?

Mr. Kinney. I do not believe so, I can check 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 they have shown as


a gross figure for lands, as I understand Mr. Kinney's pre-

sentation.

Mr. berry. On Indian reservations.

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. Kimbal. MaJor/.replacements and that sort of thing,

Mr. Kinney. $50,901,000 for zlocations which include


railroads, highways, major bridge replacements, utilities,
and towns.

Mr. Abbott. Would there be included in there the re-

location and reconstruction of schools, hospitals, services,

agents' and employees' quarters and all roads, bridges, and

incidental matters or facilities in connection with the

: - ... ,
Cheyenne River Ageneyt
MW, Kinney. I do not have enough detail here to answer
that question.

Mr. Abbott. Do you believe that detail is in the 4e-

1 partmental files on this particular matter


S Mr. Kinne. We have in our Distriot Office complete
Sbaok-up material of what the figure is composed of, We do
not have it here.

Mr. Abbott. Congressman D'Swart this morning raised

a question as to what would the total coat of this bill be.

Now, on the board behind you I have attempted to simply ex-

tract those sections whioh involve the appropriation of Pedea1


funds. In the bill that we have, Section II provides for

whathas been labeled as individual and tribal compensation.

I think we have discussed the $2,614,000 for which t1 bill


provides.

In addition to that, there is a tribal total as the bill


is to be understood of some six million plus dollars.
Moving down to Section 5, there is provision for, with
no dollars specified, an aproprriationand 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 monuments 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 BSetion 3T

Mr. Kinney. No, sir; I do not.


, Mr, Abbott, Could you attempt to obtain that for the

Soasmitteeb information?

Mr. Kinney. I think that wald be possible. That

pertains to Item 3, Cemeteries?

iMr. Abbott. Yes, to Seotion 3 as it is set out in both

Sthe House and Senate bills,


Mr. Kinney. The total figure which I gave you a
while ago did also include cemetery relocations.

Mr. Abbott. That would be this $50 million, in the 450


million.
Mr. Kinney. That is in the $50 million figures that
Includes cemeteries, relocation of cemeteries.
Mr. Abbott. Similarly, Section 4 of the House and
Senate bills would bind the United States to an agreement to
appropriate and make available further and additional appro-
piations generally for relocation and reconstruction of the
Cheyenne River A~encJof schools, hospital, service buildings,
and so forth. Again, no dollar estimate 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 rm conversation
with Mr. Kimbail, it is probable that a great degree of
107

ooopetation with the Indian Bureau would be necessary so that


you would be advised as to what plan for schooling, hospitals,

j and agencies were contemplated.

Is that your statement, Mr. Kimbatl?

Mr. Kimbal. Generally, that is correct; an :am figure

that we may have used up to this time in presenting oveall

estimates to the authorization or Appropriation Committees


j are necessarily more or less approximations based on just

general information without any detailed study as to the

exact relocations that would be necessary.

Mr. Abbott. Within the degree of specification that

you have indicated, and the qualifications tt would go into

that, could you at this time statethat that figure presented

to the Appropriations would have been


Mr. Kimb&Al. We can attempt topt that to the extent tbL t

it has been compiled by our people in preparing this total,

overall estimate.

Mr. Kinney. We can get what they have in there for re-

location of such facilityis 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 mean the
specific language of Section 4?

Mr. Kinney. We can show how much is in our estimate but


108

what I mean there is that certain of these itemsato be de-


termined by the tribal council of said tribe with the approval
of the Secretary of the Interior, hhatdetermination has not

been made, so we would not have a statement of estimate of

cost of Section 4.
S Mr. Abbott. Well, Section 4 spell out the what; it

does not spell out the how, when and where; but would not the
"what" speoification be sufficient to indicate an approimate
Scoat? 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 the

SIndian Bureau and the tribe but it would be developed through

the Secretary of the Interior; on the basis of that plan re-


location then would be affected and of course the resulting
cost would be covered by the provisions of Section 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 case have been a specific figure?
Mr. Kimbl.l May I interject here to aay that some
part of the information you are asking for is contained in
this report of the Division iEngieer which is attached to the
Committee 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 oould have an


approximation of the figures antioipated by Sections 3 And 4

of the bill, it would perhaps help make a more ocplete 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 whih is

San overall rehabilitation.

S The suggestion this morning, if Garrison is kapt in mind,

would be that the costs involved in Section 3 ard Section 4

are going to be very substantial and ti the sprit of Oongress-

man D'Ewart's request this morning, with as muoh aoouraoy


as those figures can be provided, they would seem to be a

Very necessary part of the record, if you would so like to

instruot the Armz.

Ml. Berry. I certainly a 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 of the Hart Sub-
committee Report, is that not about right?
Mr. Kimbgll. I beg your pardon on that, Mr. Chainran.
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 inforustio0
and it is not respDnsive to Mr. Abbott's question in khat

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


STribal Council determines to be necessary. That may or may

' not coincide with what our basic, original idea of what would
i
ibe a reasonable replacement amounted to.

S Mr. Abbott. On that point, Mr. Chairman, you are

touching on precisely what I hoped I was asking fo.. In the

Army'e view of what would have to be done. You are suggest-

ing now, as I understand your statement, that an estimate was

made, Do you have that estimate?

Mr. Kimbwfl. 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 Corpa, 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 $54,065. The

only monument or shrines which will be the subject of re-


looation is Medicine Rock 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. Kimbl. There are also a couple of paragraphs on

-
it
r oade here All public roads within the taking ana of the
rreservation which are under the Jurisefttion of the State of
SSouth Dakota or any of its political subdivisions, will be
Dealt with on the same basis as in other projects. Relo*a-
tions w.l1 be provided at Government cost Were they am re-
quired by the publio. That will be by oonouwrrens of the
State. There is a main Indian service road along the Missoe
and Moreau Rivers north of Cheye'-ne Agency, ay portions of
whioh will be inundated to the extnt 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 1Highway 212 which crosses the Missouri River
near Cheyenne Agency and the crossing of the River'at obrid
South Dakota. It will be neoesary to raise bridAes and
locate porti.oas of the road in order to furnish the public
with adequ.xte road facilities. It has be'in estimated that

the coet of uch will be approximately $647,000. New con-

structlon will .involveabout 40 miles of roadway, the estimate

being based on construction of the saame type and standard as

the road e;obe 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 roadwsi

to accommodate the persons who will be xJqaired to osev frma

the taking area, because of the position asuumd by the tribe

'^-i
I( I ~ ~

i.4

4't bo' paid for the lewt

of' nlontion, w have not at this tie neft VP With Av


figuresl oi, thoe,
,
Xro Abtott. Have you*, to your )00w1 ,j sin0.0
up with WZT
fSil~f?
1?

Mr,
Mr lom1.
Abo~L,
~a. ANot
surve X know
that wbkas mad of, We Mnv to *0ea
no. physical~
ofth
and give you the best itonvAtion we hay* co that. But I
' '1"

Just wanted to read that to oountereet the LIpLication tint.


we have done absolutely nothing in the way of studying then,
phases of the problem. sr %4tO
Mr. Ao A ws mae of

oc u1 -o
tyr >ixrratn z'usfo1or
aroYa- fallolm.PJ

ii r!t- IC'A lo - XK

14 ,str-ati.on
Y)3 9IXx

it~d~0ti

I fr I
be an ita of expense under this bill that we shall relet

i all Government faoilities. It will not be a oePasati to

the Int&i' as tribal moneys.

Mr. Abbott. P
But replacement pro tanto as ne& as

possible. Do you have an approximation of that soctf

Mr. Biokfird. There is nothing in the real estate stvutMi

Mr. Kimbtl. I don't think we have that ttthis tA

Mr, Abbott. Was that an item that you were not reqited

to justify in detail before the Appropriations Comattet

Mr. Kimbal. lads; oly


Not broken down to the Indian 3

an overall figure for lands and relocations.

Mr. Abbott. I think that is all, IW'. Chairman.

Mr. Berry. the offer to at ws made by


With reference to te

the Corps of two million dollars, was that intended to

cover everythtr., your entire settlement?

Mr. Kimbl No, sir; oh, no.


o.

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. Kirmba&l. I think we had no figure prepared on that,


Mr. Chairman, for the reason that the bill oontempwlted 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 bapi

for estimating severance value. If they are to be restored to

..-, .. _ .. ._ ua a,
u-~
4 L

the Same economic,, social and religlus condition that thqW

enjoyed before the taking of this property, it wa OW View*


that there would be no overall severane dama . At lest
that was y personal view.

Mr. Berxy. So, actually, you are p'epared only to

settle on the cost of the value or the market value, so to


speak, the market value of the real estate plus thlw tiptov
ments thereon. That was about ths extent of what you were
prepared to offer settlement on?

Mr. KimbiAl. No, we were prepared to listen to any

figures that might be presented by the T dians or by the

Bureau of Indian Affairs as to what would be necessary in the

way of location and re-establishment and we were prepaed


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 Congreas, anyway?

Mr. Klmba
a1. No, sir; on the theory that that was a

problem to be worked out initially by the Indians and the

Burieau of Indian Affairs.

Mr. Berry. Did I betC 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?


Vi

Mr. Zinney. I believe it is, sir. That is the fige


II

j Mr. Berry. That emant be right. That Is about a bt


h i
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. W hban

got 104,000 acres right in the Cheyenne River Reservation.


I think it is closer to a million acres, if you will eheek.

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 Indiana a

bad deal,
Mr. Kimbf &1 It ohelck with our original 1949 dooumnt,
also.

Mr. Berry. How many acres have you on the Standing


Rock, then? Do you have any record of that?

Mr. Bickikrd. Approximately 50,000.


Mr. Berry. 50,000. How far is it, would you say,
from the Moreau River down to the dam?

Mr. Kimbalil Forty miles from the Cheyenne River down


to the dam.

Mr. Berry. From the Cheyenne, then, you have 40 miles


on both side of the river before you get to the Indian
.' xa . '
reservation. Almost half of your atrage is on the OhPapt

I Standg Rook and there are two side to that river I tM k

jso that your figure has got to be wrong. And it gosa 0Iar

Son up to Bitmarok on top of that,

Mr. Kimball. We will undertake to check those figures.

The original pamphlit --

Mr. Berry. How soon can you have those ftguns for Uis

Mr. Kimbatl. We would like to chek that with our

field office. We would like to have several days to get

that for you next week,

M.r Abbott. Mr. Chairman, so that the record may ahow

it, I would lilk to address a question to Mr. Kimball on the

basis of his testimony,

In substance, your oonIrants and the comments of the

Department of the Army on the proasions of this bill a.

limited to cojuntets on appraised value of thoas factors which

you nonnally take .Jnto consideration in acquiring taking &afara,


I6 tiat true?

Mr. Kimball. That is substantially true, yesair.

Mr. Abbott. Is it the correct understanding of the

committee that the position of the Department of the Aras

in so far as these other items are concerned is purely a

matter for legislativedtermination.

Mr. Kimball. Yes, air; that is correct.

Mr. Abbott. So that you have disqualified yourself fraM'


Kr. Berry. And one more question, and along that PWM

line with regard to tohe handling of this land after yt ob*-

:stained deed to it between the taking area and the water iue,

your statement with regard to how you intend to handle that

applies only off of the reservation, does it not?

Mr. Kimba&. I think that is correct.

Mr. Berry, Should apply only --

Mr. Kimbeil. I think that is correct. We would be

open to consideration of any reasonable special arratement

with respect to Indian lands that the Congress or the Con-

mittee might indicate as being desired by them.

Mr. Kinney. I would think so. .

Mr. Berry. There is on l


more thing that I would like

to proceed with Just a little bit further. I think we

should have a definite %iderstanding, and I think that you

owe thia to the committee to give us, and to Indians, to give

us a definite idea on whether you intedlto buy this land,

fee simple. or whether you are planning to acquire flowage

rigLts or just what you intend to do so far as Oahe D1a is


shoud
adefiiteundestading^
hae ad X hin tha yo
concerned,

Mr. Kimball. I do not know whether I should make a


answer directly on that question for the Department without
going back and checking ith W superiors, B. Chaaiwarmi, I
have some finm pnrCsonl feelings on the subject a4 X aoght
Essay that for the benefit of the oamittee.
Mr. Berry. Do you not think it is funda~ntal to this

bill?

Mr. Kimbil. That we would be satisfied with a& tica


easement on the Indian lands, if that is What the oastBee

feols in the fairest thing for the Indians, We can operat


with that. That is my personal feeling. I would have to
check that with Bm 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. Kimbll . 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 aend you a


asking, would we be agreeable to acquiring that land in fee,
say, from the non-Indian owrer and then conveying the fee

to the Indian subject to a reservation of flowag easement

by the United States, is that what it would amount to?

Mr. Berry. If you could best handle it that way.


Mr. Kimb l. In order to do that, to do what I think
you are asking, that would be the mechanics that we would

go through, I believe.
Mr. Abbott. The question, perhaps, that is raised, Mr.

-- J---r^~ ~-m~rrru~~ru~r- -rrw-r~-rruru-rarrr rrsh-- urrr-- ununrra-xOn~~ . I*l~c~-*Ul;i;WIILr--ms)C*AlrUII


Kmlals, by the injection of this flowage easenrr possibility
here, with your understanding of the lengt negotlateaft

aand the impact on the econia,ce ,agrioultut units of those


"
people, you would concede that it will mas A great 4deal of

difference whether that flowag easeent there is pplied or

Sif the fee easement there is applied?

S Mr. Kimbal. That is quite right and it hwould meke

great deal of difference on the compensation that they are

entitled to.

Mr. Abbott. The next question would be that apd 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 ot9JWnts

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. Kimbal. That is quite right and this question is

one that we have not ra yet resolved definitely with the

Department of the Interior as to what the two departments feel

would be the best thing to do.

Mr. Abbott, Is it possible thatti 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?

-. ~~_~~
sa~ , ~lh~~
N~'na r~ l.
We cannot do a thing; as far as Con ss is Eoo0ena , 9w an
sitting here just the same as we were tour ye ap>.

Mr. Abbott, We know a little more about b laJw.

Mr. Kirmbtl. Substantially so, yes, siri tlAt Us right.

Mr. Be~rr. You could not have flowaA esaentt an

fee title, on non-Indian land and--

Mr. m. If we took only flog easemU nt on on-


Indian land, the right to use the surface of thatl;nd wo1ul

not be in the Indians; it would be in this original nmo-Indira

owner of the land. For that reason, we oould not AgW with-

out first extinguishing the conbte title to tht 1lan to

give the Indians the right to the use of that patieular

tract of land.

Mr. Berry. The Indians d


do annot ant the use of that.

If necessary --

Mr. KimbLl. If all you srt asking about ia t ev

rservation title by the Indians n the


of the fee titl and

they now own, that merely means, then, will we maoept a mre

flowage easement over Indian land?

Mr. Berry. But it makes an awful differenot to them if

they have access to the waterfront and/or if so *ri

else can crowd them out, away from this waterfrot, Ibeause

the value of their land back up on the hills is &ependeit


on this water.
Mr.Kimbial. And their access to the water also is

~'- qt
i atrial to the question of whether ther is a hatard to Ul -

Sstook because of water fluctuation.


Mr. Abbott. But the $2,600,000, the $2,234,000 or the
Stwo million dollar figure -
rO.: PA T/// r
hUC 'A' WA otLoDR.~ v %i
Mr. Kimba~l. Would beAsufficientTo ImploentA
4 n-

evaluation if we only took a flowage easement.


Mr. Berry. How long do you think that woul ta ,

Mr. Bickfrd. wo hundred thousand aorn~


a jhewiap-- :

-<tonte;~
a.~,0.'- Br.' 6 I could, Mr. chairman , mak* a guess

-.4,tt. Of course, we have -G the basio fee valauA of the

land, -ux.ing'-t bas oV the Hart, appraisal and the MBI


data. The minimum time I would say would be several amotbA
- SObeaue 'there are as~sa y tribal in wA~A individual v *
" ,\;''<
.VA1 \ h"
lan(, would probably mean a ewiamsy,. physical'survey of th '
-I '
lands to 4S where the various flood lines touch it) 6\'Ai,$(S;x '

nr. Abbott. But when you speak of the seven -- I belies

the figure given this morning was roughly seven thousand acsns.

That would be --

Mr. Kimb&ll. That would not be the differential in the

problem that the Chaairman has Just propounded.

Mr. Bickft.rd. I was assuming that, Mr. Chairman.

Mr. Kimb&al. 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

4tan come down to the water.


l
, ^ *. !^t ^ .. .!__-' Miii~f *[- ^ W. A.. min - .
Now, this proposition that we talked about this moniOa g
of ven thousand &aredifferential in the tee taking, that

Should not give the Indians aooess to the water moat of toh

Time. Most of the tism they would be away ftro theWater

Because we take fee title to those bottom la s that will

'be permanently submerged. We take fee title to the ana that

will be subjerged an average frequency of once in five yars.

Above that we t oktonly a flowage easement. That will not


satisfy what the Chairman is asking for the XsIdian because

a great deal of the time the water is going to be down below


this five-year frequency. In fact, four years out of five

and a good part of the fift year because it will be down

below that.

Mr. Abbott. And it will not be possible, you feel, as-..


sumi.ng 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 bet

Mr. Kimba&l. It could not be done Just sitting around

the table. We would have to get our people froa the field

who have the figures on the flood phoew e; 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 ma be only

three months out of the year. Well, tat has considerable

. *' <* . . ^r &-.* . .


I
remaining value.
Mr. Abbott. But you would have on your maps, your

engineers' and so on, you would have the conservation pool

Sline plotted, would you not?

S r. Kimbtal. I should think so.

Mr. Abbott. We would be talking about that are& between

Sthe conservation pool line and the oontour line.

Mr. Kimb l. Right.

Mr. Abbott. So that once plotted, thawr would be ready

indioatinn of the acreage involved.

Mr. KimbMl. That is right.

Mr. Abbott. You would necessarily take the Department

of the Interior into onsu3tation n this matter.

Mr. Jex. Mr. Chairman, I would suggest, in view of the

importance of the determination of this question, irrespecv

of what Congress does with this bill from here out, that th

Army proceed to get some kind of a determination as to whether

or not they would accept flowage easement only. We might at

woll start on it.

Mr. Berry. I think it is the foundation of the bill.

Mr. Jex. As a practical iratter, the policing of the

area between the pool ~wel and what would be your five-year

flood level line, that would be or would present quite a

policing problem as a mat* of trespass. The only thing it

would do is protect you from damages for trespass, tho~q

'.
trespass battle who stray to the water's edge,
Mr. KiBmbal. It would also giv us an interest that
we could lease for some grazing purpoo a or something of that

kind, to Indians or other persons who were interested, gt a


'
little part o our expnses, perhaps.

Mr. Jex. Is it understood, then, that you will proceed

' to get a determination as to what the Army'e position would

be on a flowate easement right?


Mr, Kimball. Well, we will iundrtake to do that, yes,

Mr. Berry. How Boon 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 parts portion of the Department, ex

parts position of the Department of the Army regardless of

Ske wishes and desires <q any interest the Department of the

Interior might have.

Mr. Berry. Could you not get together with the Departentr

of the Interior thi afternoon and talk these things over

It might be of interest to the Indians, too.

Mr. Kimbl. Yes, sir; but so far as our ohief is *on-

cerned, and the Assistant Chief of Engineers for Civil Works

is concerned, I am not siue that I could get him down to this

problem today. They were not able to come up before the

K *
iIcommittee here because they are appearing before the Publio

i Works Conmittee;and I think the Chief is out of town. But in

any event, those decisions are not in our hands, Mr. Chairman.

That is the rctson that I cannot say, yea, we will do it this

afternoono,

Mr. Abbott. The present policy as I read it in iM4uler

2744 of the Department of the Interior, dated Januar 13, 1984

would provide that fee title in general will be acquired to

all land 300 feet horizontally from the edge of the oonserva-

tion pool, which is not what the Chairman had reference to,

of course. In those projects where the topography is pe-

cipitous, or where the topography is unusually flat and where

such discxet.onary action is desirable, fee tittle may b

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 Ar , of

the Department of the Interior, does not anticipate a flowage

right between a conservation pool and the contour line.

Mr. Kimb4al. That is right. o


So for us to take a positi

that ve 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

STATWWNT OF ULEWIS SIOu noMa


JXEV3So AMD WA.ETR, PRIMAN
F
aifRWNTING
R THE B I 0 INDIAN
I.
AFFAIRS
Mr. Berry. Mr. Sigler, if you will introduce younarl
Sand the members at the desk --

S Mr. Sigler. Lewis Sigler, counsel, Bureau of Indin

Affairs. I have with me on my r eight, Mr. Hoaser Jenkins who


is chief of the Coordinating Staff of the Bureau of Indian
Affairs. And orn my left is Mr. FPuhiman 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 on

because I think you will want to spend more time on it than

any of theothers.
The first recommendation in our report relates to the

riatifioation of this proposed agreeamnt between the United

States and the Indians by the Indiana themselves. The bill#.,


SI should say, are Iast in the form of an Agreement. They ar
li
Actually, the bills ar actually nothing moe than tbeprooed

Agreement that was negotiated but not concluded between the

Ggovernment and the Indians. That agreement oenemplat a

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 -t.ple 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-fourthe 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 Comnittee

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

askad involves that very point.

The treaty between the United States and the Indiana does

contain a provision that any future treaty between the Govern-

ment and the United States that involves any session of land
will become effective only if ratified by three-feorth of the

Adult males, not all adults, but the adult males.


ii of futue tr*aties
Now, that provision is in tense
involving a session of land. Techically speaking, the bill

Before your committee is not a treaty. It is an Act of

Congress that is east in the form of an a ement but it is ad

a treaty that involves a session of land.

Now then, you asked whether historically the XIn~d

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 oonstitutios

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


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 ans t er to your que tion is

That since the organization of th


thtribe under the In toi

Reorganization Act, the tribe has operated in general n

the principle of majority rule. For that reason, that's

one of the reasons that we recommend that the bill be east

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 goirx 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 i

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

s^gfr_.t to you that the question of what is4ust and equitat0


Sis a matter of difference of opinion which I think Mha bean

Illustrated by this hearing today. And of eourS it is Ir-

possible to predict the final figure that is going to eome

out of this hearing in th legislation.

Mr Berry. It would be in the act, the mount in the

act, too, would it not? The Act itself, 870, provides for

three-fourths.
Mr. Sigler. That Act does provide for a threawfoutths
majority but that aet 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 oorrect,though, Mr. Chairman, that the

Public Law 870 that you are referring to does require a

three-fourthe vote on ratification. Of course, that does not

bind the Congress if in auth' v.iing a settlement now it wants

to change that provision.

In any event, you see, I refer you to the fNot that the

Department's official recommendation is that tlw three-fourtho

majority requirement be modified to a simple majority requi:.'e-


ment for the reasons I have just stated.
The second reconaondation of the Departmqnt relates to
this question of damages. I should like not to go into detail
but I do want to point out two subjects that will be *elri

t ied and explained in detail when Mr. Fuhrimn speak .later

Sif you oars to hear him.

The points I would like tto callto yr attention ar,

first, the bill before you contemplates the pafitnt of one

sum of money as direct damages for the taking of the land, an

as I understand it, that means the value of the land thorn

and the improvements on the land. The bill also contBipvlates

a second sum of money which would be compensation for the

indirect damages sustained by the Indians as a result of

taking the land. Those indirect damage include such things

an the cost of relocating the Indians and re-establishing

them in new quarters of approximately the same value as the

ones they are giving up. It also includes the loss of suoh

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 w are
talking about and if I may leave the subject thero 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
appropriates, including both of these elemnts of damage,

and I think it also Includes the rehabilitation ffiga, I am

not sure of that, bu i


in eevent that total figur will be

subject to 50 percent interest as long as it is retain id


t

the United States Treasury. Tho Department' a eaamendation

is that that rate be reduced to 4 percent mo the ground that,

that is the cairent interest rate now paid for Indian fauds

on deposit in the Treasury. That is also the reoommndation

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, WWIBX or

thirdly, the appraisal of the tribal representatives themselv*l .

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' reoameindAtion

is that the Hart appr sal 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 differeaoe of opini

because unfortCunately when the Department used the suggestion

of the Hart appraisal report, we intended to suggest the

adjusted Hart appraisal which i identical with the NRBI


133

listings and the tribe has ndioeated that it is williEt to

accept the MRBI listings.


So far as the tribe and the Department are *oneerea,

ii I think there is no diferenoe of opinion on this point as

iI have Just modified our referenee to the Hart appraisal.


The next point I should like to mentio --

Mr. Berry. Would you wish to amend your report to aerspt

the MRBI listings and not even refer to Hart?

Mr. Sigler. That is what - 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 orept in by our reference
to the Hart report without referring to the iact that it had
been adjusted at a later date and by "adjusted" I do pot

mean adjusted officially. The Army Engineers, I think, have

not made any fina3 adjustments but in the negotiations there


were adjustments made and those adjustments are the ones I
am referring to.

The next 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 sowe

substitute language and the reason for our offer of substitute


language is primarily the fact that we think the languageof
mad more clear.
the bill is ambiguous and could be m I do not
believe there is any 4dffeenoe of subatanee in the two
versions. Both versions contemplate that thlatted StatBs
ii
will pay the cost of removing mnd re-establljjhAd tbhe Utdia

Soemeteries, monuments and shines to another amea. IHowfver,

the manner and the method of relocation will be a matter of

agreement between the Indians, the Department of the Intoior,

and the Department of the Anr.

The next comment I would like to offer relates to

Section 4 which has been mentioned earlier today That seoti*e


relates to the restoration of the services asd facilities

now provided the Indians. The bills before you provide that
the Bureau or the Department shall restore thone series and
facilities to the Indians in the same quantity ad the oen
quality as they exist today. The Department's rooemMendtion
is that it is premature to determine which aorrioes 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 aA the actual

date when they arre r. '-vedfrom the area and iV would be more
logical for Congress to determine at that thi the natwu and

the type of the services and facilities that wAll be continued

by the Federal Government,

Bear in mind, if I may suggest, this is not n elment of

cost. I have reserved that element of cost &s a separate

issue. Both the direct


ie the ad
and eindireot damages ar eoepletey j

^^ ** * ., , .
different from this cost of restoring services d the i. b
involved is which of the services now performed b th#OMWu aW'
ment will be continued after the relocation has beeIn O letd

Ny
suggestion is --

S Mr. Aspinall. Mr. Chairman, I wilh to call etyouw

attention that there is a roll call vote on the floor of the

II
House.

Mr. Berry. I hated to interrupt you, Mr, Sigler, until

you had finished your emotion that you were on, but at lly

it has been five minutes since the bells rang.

We will rsumae tomorrow morning at 10 o'clook on the .

Senate side,

(Whereupon, at 4:15 p. m., the hearing was reoeeted.) A

!,i
1.
(Infoomation supplied for inse,'tion in the transcript of record of
"Hearings before the Interior and Insil.ar Affairs Joint Senate and
House Subconmmttee on Indian Affairs - 11 R. 2233 and S. 695 -
WednesdaayMay 19, 1951").

To be inserted at page .12 of the record.

The Division Engineer reports that the estimatos for relocations


on the Indian Re: rations are as follows:

Indian Come;tori.es ;and 3hhrines

Cheyerne River RiJservation h,o06 oo00


Standing Rock Reservation 9,000 .00

Roads;

Cheyonne River Reservat ion :,6}.7,000.00


Standing Rock Reservation j20,)00,00
Schools Agency Buildinrg:, etc.

Cheyonne RPiv.r Ieservation :1, 22h,050.00


Standing Rock Roesrvation 221, 800.00

S,
(Information supplied for insertion in the transcript of record of
"Hearings before the Interior and Insular Affairs Joint Senate and
House Subcommittee on Indian Affairs - H. R. 2233 and S. 695 -
Wednesday May 19, 1951").

To be inserted at page 77 of the record.

The Division Engineer does not recommend handling of leasing


at the Oahe Reservoir through the Indians as has been done at Pine
Ridfge Reservation, The Corps of Engineers will have a real estate
organization to manage lands in the Oahe Roservoir and such organ-
ization can handle leasing of lands acquired from Indians along
vrith other lands in the reservoir.
(Information supplied for insertion in the transcript of record of
"Hearings before the Interior and Insular Affairs Joint Senate and
House Subcommittee on Indian Affairs - H. R. 2233 and S. 695 -
Wednesday May 19, 192l,.").

To be inserted at page ! of the record.

The Division Engineer reports that no analysis of land sales


in the reservoir area since the Hart appraisalJ has been made by the
Corps of Engineers. However, he reports the Department of Agriculture
Research Service shows a decline in farm real estate of four per cent
from 195,2 to 1953 and a decrease from 1953 to 1954 over the United
States of six per cent.
Crnformtlon surllod Ifor insartUft I'm the tm, mWip' at rOWAM at
Injouringo before th6 lUtOrlor " LIOWM AfftiM JOAM SOnAG 4M
#moo ou InUm Af fodn -wIts R* 223) WA So 043

W 1 0 NIONWA

I o be lmorod at p44o 54 of the xvoft4*

T --v rd.virslor ', XAn"r ro-.iorta Uuxt 'no OrAlysis of Und *SUM
in Ute rommir alms Um Tlart apprviol two been m& by tl*
t orpjs of FugUmro* I'louwmrp ho zvoorto the OVartiment of Agriftl*vo
aeftearoll g"Orvico tl-w)Wv a "Ime'lltne In form raml astAte tl row per owt

frm 1915? to 1953 And a deorout frm 19,53 to 195A owr tlv Unitsd
statvw of 6jx lv-- cont#0
(Information supplied for insertion in the transcript of record of
"Hearings before the Interior and Insular Affairs Joint Senate and
House Subconmmittee on Indian Affairs - H. I. 2233 and S. 695 -
Wednesday May 19, 195h").

To be inserted at page 52 of the record.

The Division Engineer reports that the total area of the Scotty
Phillips (Smith) Ranch was approximately 10,000 acres of which the
government tooK h,366.07 acres dith the main water supply and head-
quarters. The government appraisal was 083,800, including $13,200
severance damages. The jury award was :;;104,350.
tho t4f4gloovio of
.,Iota%awykto MA
WROXPArip bot*M tbo ut*vduw MA usaar Artaiior''.
"3,' wed S.* 40
XWVAM Affid"

a p OWN

To tis umorw at Pao 52 cc tto vasorL

*X VO 90*t*
Tbo DiViSSAM FO*,4,nO*r M. *VIM VIA tb* t*Wl 4X"* at
10*OW 441" *Iah tbo
rMulps 041th) UM*l US iWpr*VIM&tOV I"b*r OMPLI.7 APA h*""
tog* 4s,366*07 saw with the rWlA MAW
""tevoo Tho CAM*Xmmt *pPratsial =0 $8 08001, uvluaim
OOVUVAMW dWAPtWo- Tl* jtaY WOW UM t12,09700
(Information supplied for insertion in the transcript of record of
"Hearings before the Interior and Insular Affairs Joint Senate and
House Subcommittee on Indian Affairs - II. R. 2233 and S. 695 -
Wednesday May 19, 1954").

Ua
CXIMII~ 11~3Y-~LIIIU-
IUII
UI UII

To be inserted at page )9 of the record.

The Division Engineer reports that the original figures included


in the Oahe Project estimates for acquisition of Indian lands were as
follows:

Cheyenne RIiver Reservation - Lands and Improvements - 1,531,250


Standing Rock Reservation - " " i - $1,022,750

No estimate of cos' for rclocat:i.n and rea tabli shing the individual
Indians was incl.diwed(o
,,'WI

(Information supplied for insertion in the transcript of record of


"Hearings before the Interior and Insular Affairs Joint Serate and
House Subcommittee on Indian Affairs" - H. R. 2233 and S. 695 - 't
Wednesday May 19, 195h).

)C
I;.
*ii\
To be inserted at )afe 46 of record. *'*.i

,:?

The Division Engineer, Missouri river Division, Omaha, Nebraska,


reports the following acreages have boon acquired on the east side of
the river at prices as indicated:

Method of acquisition Acreo.age Appraisal Price paid


(average per acre) (average per acre)
Purchase 271.71 ,9.65 $9.6
Condemnation 178.98 6.oo 6.o00

For lands acquired o tAhe wo-l;t ..i.de of the river the following figures
a-'e reported:

Mithod of acquisition .cr "'g Appraial Price paid


averagee per acre) (average per acre)

Cond
onUation *.,)3/oiJC ,17.86 ;)21.97

-- a - E IJ()I~PP--sd~ I~CI-aqlL9-~. - ~.lr~ ~'~U~UI~LPlljj~