    [House Hearing, 105 Congress]
    [From the U.S. Government Publishing Office]

      H.R. 3658, A BILL TO PROVIDE FOR THE SETTLEMENT OF THE WATER RIGHTS
     CLAIMS OF THE CHIPPEWA CREE TRIBE OF THE ROCKY BOY'S RESERVATION, AND
                               FOR OTHER PURPOSES

    =======================================================================

                                    HEARING

                                   before the

                        SUBCOMMITTEE ON WATER AND POWER

                                     of the

                             COMMITTEE ON RESOURCES
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED FIFTH CONGRESS

                                 SECOND SESSION

                                   __________

                       SEPTEMBER 23, 1998, WASHINGTON, DC

                                   __________

                               Serial No. 105-112

                                   __________

               Printed for the use of the Committee on Resources

     Available via the World Wide Web: http://www.access.gpo.gov/congress/house
                                       or
               Committee address: http://www.house.gov/resources

                          U.S. GOVERNMENT PRINTING OFFICE
     51-141 CC                   WASHINGTON : 1998
    ------------------------------------------------------------------------------
                       For sale by the U.S. Government Printing Office
     Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

                             COMMITTEE ON RESOURCES

                          DON YOUNG, Alaska, Chairman
    W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
    JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
    JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
    ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
    JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
    JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
    JOHN T. DOOLITTLE, California        ENI F.H. FALEOMAVAEGA, American
    WAYNE T. GILCHREST, Maryland             Samoa
    KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
    RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
    BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
    HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
    LINDA SMITH, Washington              CALVIN M. DOOLEY, California
    GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto
    WALTER B. JONES, Jr., North              Rico
        Carolina                         MAURICE D. HINCHEY, New York
    WILLIAM M. (MAC) THORNBERRY, Texas   ROBERT A. UNDERWOOD, Guam
    JOHN SHADEGG, Arizona                SAM FARR, California
    JOHN E. ENSIGN, Nevada               PATRICK J. KENNEDY, Rhode Island
    ROBERT F. SMITH, Oregon              ADAM SMITH, Washington
    CHRIS CANNON, Utah                   WILLIAM D. DELAHUNT, Massachusetts
    KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
    JOHN PETERSON, Pennsylvania          DONNA CHRISTIAN-GREEN, Virgin
    RICK HILL, Montana                       Islands
    BOB SCHAFFER, Colorado               RON KIND, Wisconsin
    JIM GIBBONS, Nevada                  LLOYD DOGGETT, Texas
    MICHAEL D. CRAPO, Idaho

                         Lloyd A. Jones, Chief of Staff
                       Elizabeth Megginson, Chief Counsel
                  Christine Kennedy, Chief Clerk/Administrator
                    John Lawrence, Democratic Staff Director
                                     ------

                   Subcommittee on Water and Power Resources

                    JOHN T. DOOLITTLE, California, Chairman
    KEN CALVERT, California              PETER A. DeFAZIO, Oregon
    RICHARD W. POMBO, California         GEORGE MILLER, California
    HELEN CHENOWETH, Idaho               OWEN B. PICKETT, Virginia
    LINDA SMITH, Washington              CALVIN M. DOOLEY, California
    GEORGE P. RADANOVICH, California     SAM FARR, California
    WILLIAM M. (MAC) THORNBERRY, Texas   ADAM SMITH, Washington
    JOHN B. SHADEGG, Arizona             RON KIND, Wisconsin
    JOHN E. ENSIGN, Nevada               LLOYD DOGGETT, Texas
    ROBERT F. SMITH, Oregon              ---------- ----------
    CHRIS CANNON, Utah                   ---------- ----------
    MICHAEL D. CRAPO, Idaho
                      Robert Faber, Staff Director/Counsel
                       Joshua Johnson, Professional Staff
                          Steve Lanich, Minority Staff

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held September 23, 1998..................................     1

    Statement of Members:
        Chenoweth, Hon. Helen, a Representative in Congress from the
          State of Idaho, prepared statement of......................     4
        Doolittle, Hon. John T., a Representative in Congress from
          the State of California....................................     1
            Prepared statement of....................................     2
        Hill, Hon. Rick, a Representative in Congress from the State
          of Montana.................................................     3

    Statement of Witnesses:
        Cosens, Barbara, Legal Counsel, Montana Reserved Water Rights
          Compact Commission.........................................     9
            Prepared statement of....................................    37
        Hayes, David J., Counselor to the Secretary of the Interior,
          Department of the Interior.................................     5
            Prepared statement of....................................    22
        Sunchild, Bruce, Vice Chairman, Chippewa Cree Water Rights
          Negotiating Team...........................................     7
            Prepared statement of....................................    23

    HEARING ON H.R. 3658, A BILL TO PROVIDE FOR THE SETTLEMENT OF THE WATER
          RIGHTS CLAIMS OF THE CHIPPEWA CREE TRIBE OF THE ROCKY BOY'S
                      RESERVATION, AND FOR OTHER PURPOSES

                                  ----------

                         WEDNESDAY, SEPTEMBER 23, 1998

                      House of Representatives,
                       Subcommittee on Water and Power,
                                        Committee on Resources,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2:05 p.m. in
    room 1334, Longworth House Office Building, Hon. John Doolittle
    (chairman of the Subcommittee) presiding.

       STATEMENT OF HON. JOHN T. DOOLITTLE, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF CALIFORNIA

        Mr. Doolittle. The Subcommittee will come to order.
        We are here today to hold a hearing on H.R. 3658, a bill to
    provide for the settlement of the water rights claims of the
    Chippewa Cree Tribe of the Rocky Boy's Reservation, and for
    other purposes.
        This is the first new Indian water rights settlement bill
    to come before the Congress in many years. Although there are a
    number of pending and potential Indian water rights claims
    throughout the country, this legislation is also the first
    Indian water rights settlement proposed by the Clinton
    Administration.
        We need to take steps to advance the resolution of these
    issues as quickly as possible. These claims have been
    outstanding for decades and, frankly, the process is too
    cumbersome and does not reflect the unique nature of each
    situation. The opportunity must exist to meet the long sought
    needs of the tribes and at the same time reduce the impacts on
    existing water users. I am encouraged by the comments we have
    received from the Western Governors concerning their commitment
    to negotiate rather than litigate these claims.
        As many of you are aware, the Senate has held an oversight
    hearing and a markup this year on the Rocky Boy Reservation's
    implied reserve water rights settlement. Unfortunately, many of
    the underlying questions have been left unanswered on the
    Senate side.
        While there is no question about the need to settle Indian
    water rights issues, it is imperative, in order to arrive at a
    wise, fair and equitable solution, that the following issues be
    fully considered: One, the statutory, regulatory and judicial
    history of the implied Federal reserved water rights; two,
    State jurisdiction in the appropriation and later distribution
    of water; three, the appropriate funding mechanisms to resolve
    these problems; and, four, the appropriate methods for
    determining the liability in Indian water rights settlements.
        Over the years, both Indian and non-Indian implied reserved
    water rights have undergone a judicial evolution. It is clearly
    time to consider those trends and look for ways to meet the
    growing needs of Indian populations while preserving the
    stability of current water rights holders.
        Although the courts have not fully reconciled the Indian
    and non-Indian reserve water rights cases, the opportunity
    exists to weave the many threads of existing trends in case law
    together; to consider existing demands, needs and technology;
    and to develop a process that is faster and more equitable to
    all the parties.
        The legislation we have before us is the product of hard
    work and thoughtful consideration of a complicated situation. I
    believe that everyone involved has a genuine desire to address
    the fundamental need the Indian tribes have for adequate water
    resources.
        I look forward to hearing from our witnesses today. We at
    this point don't have a minority member to make the opening
    statement on their side, and I guess if we do, when they come
    in, I will recognize them for that purpose.
        [The prepared statement of Mr. Doolittle follows:]

    Statement of Hon. John T. Doolittle, a Representative in Congress from
                            the State of California

        This is the first new Indian water rights settlement bill
    to come before the Congress in many years. Although there are a
    number of pending and potential Indian water rights claims
    throughout the country, this legislation is also the first
    Indian water rights settlement proposed by the Clinton
    Administration.
        We need to take steps to advance the resolution of these
    issues as quickly as possible. These claims have been
    outstanding for decades. The process is too cumbersome and does
    not reflect the unique nature of each situation. The
    opportunity must exist to meet the long sought needs of the
    tribes and at the same time reduce the impacts on existing
    water users. I am encouraged by the comments we have received
    from the Western Governors concerning their commitment to
    negotiate rather than litigate these claims.
        As many of you are aware, the Senate has held an oversight
    hearing, and a markup, this year, on the Rocky Boy
    Reservation's Implied Reserved Water Rights Settlement.
    Unfortunately many of the underlying questions have been left
    unanswered on the Senate side.
        While there is no question about the need to settle Indian
    water right issues, it is imperative, in order to arrive at a
    wise, fair, and equitable solution, that the following issues
    be fully considered:

               The statutory, regulatory, and judicial history of
            implied Federal reserved water rights.
               State jurisdiction in the appropriation and later
            distribution of water.
               The appropriate funding mechanisms to resolve these
            problems.
               The appropriate methods for determining liability in
            Indian water rights settlements.
        Over the years both Indian and non-Indian implied reserved Federal
    water rights have undergone a judicial evolution. It is clearly time to
    consider those trends and look for ways to meet the growing needs of
    Indian populations while preserving the stability of current water
    rights holders.
        Although the courts have not fully reconciled the Indian and non-
    Indian reserve water rights cases, the opportunity exists to weave the
    many threads of existing trends in case law together; to consider
    existing demands, needs, and technology; and to develop a process that
    is faster and more equitable to all the parties.
        The legislation we have before us is the product of hard work and
    thoughtful consideration of a complicated situation. I believe that
    everyone involved has a genuine desire to address the fundamental need
    the Indian tribes have for adequate water resources.
        I look forward to hearing from our witnesses today.

        Mr. Doolittle. We are going--we have Mr. Hill, whose bill
    this is, joining us today. I recognize you for any statements
    that you would like to make.

    STATEMENT OF HON. RICK HILL, A REPRESENTATIVE IN CONGRESS FROM
                          THE STATE OF MONTANA

        Mr. Hill. I thank you, Mr. Chairman, and thank you for
    holding this hearing. I want to welcome Bruce Sunchild, who is
    the vice chairman of the Chippewa Cree Tribe of the Rocky Boy's
    Reservation; Barbara Cosens, legal counsel from the Montana
    Reserve Water Rights Compact Commission; and David Hayes,
    counselor to the Secretary of the Interior.
        The benefits of this legislation are that it addresses the
    long-term water needs of the Rocky Boy's Reservation; without
    this compact, those water needs cannot be met. The Indian
    Health Service designed the current water supply system which,
    Mr. Chairman, provides an average daily use of about 60 gallons
    per person. The average Montana use is about 170 gallons per
    person.
        The reservation's population is predicted to grow at about
    3 percent per year, so clearly the current system cannot meet
    either the current demand or projected demand. This bill enacts
    a water needs assessment study for all of north central Montana
    where water, in that area of Montana, is scarce. And this is a
    first step in ratifying a solution to address not only the
    tribe's needs but the needs of others.
        This bill will reduce the potential for future water rights
    disputes by setting up a dispute resolution mechanism. This
    legislation represents a successful culmination of a long-
    standing negotiation between the tribe and the State, and has
    the blessing of the administration.
        Mr. Chairman, since 1916 when the reservation was created,
    the tribe has sought to meet its water needs. The tribe's
    current water needs process began in 1982, when the U.S. filed
    a water claim for the tribe in the Montana water court. This
    led the U.S. Government, the tribe and the State of Montana to
    enter into negotiations, and these negotiations represent a
    good faith effort to avoid costly legislation to provide a win-
    win solution for all Montanans.
        The State of Montana held a series of public meetings
    regarding these negotiations beginning in 1992. And with that
    in mind, over a decade of technical studies, an agreement was
    reached in 1997 for the benefit of all Montanans. The Montana
    State Legislature approved this compact on April 14th, 1997.
        This legislation would ratify the compact, which will
    achieve the following things: It will allow the tribe to
    exercise its on-reservation water rights of 10,000 acre feet of
    water. For this to happen, the Federal Government would
    contribute $24 million for on-reservation water development
    projects. It would contribute $15 million toward the planning
    and the construction of a future water reservation water supply
    system. And it would contribute $4 mil-

    lion for the feasibility studies on enhancing the water
    supplies for others in the tribe in northern central Montana.
        In conclusion, Mr. Chairman, this bill represents a Montana
    consensus, and I look forward to working with the chairman and
    my colleagues in moving this forward. Mr. Chairman, I do have a
    bill on the floor, and I am going to have to leave here
    shortly. With your consent, I would like to submit questions in
    writing to the panelists.
        Mr. Doolittle. Of course, that will be perfectly
    appropriate, and then we will ask them to respond
    expeditiously.
        Mr. Hill. Thank you, Mr. Chairman.
        [The prepared statement of Mrs. Chenoweth follows:]

     Statement of Hon. Helen Chenoweth, a Representative in Congress from
                               the State of Idaho

        Mr. Chairman, I am pleased that we have the opportunity to
    hold a hearing on H.R. 3658, the ``Chippewa Cree Tribe of the
    Rocky Boy's Reservation Indian Water Right Settlement Act of
    1998.'' This is a bill that could have major future
    implications on water rights throughout the west.
        Mr. Chairman, on the surface, H.R. 3658 simply affirms a
    compact that has been made between the State of Montana and the
    United States over water rights for the Chippewa Cree Tribe. I
    do not oppose the right for the Montana or any other state to
    make these type of agreements. However, what I am concerned
    about is how this new law, which would codify an ``Indian
    reserved water right,'' could impact the many numerous disputes
    over water between my own State of Idaho and the United States
    over this very doctrine.
        Mr. Chairman, I understand that this bill tries to restrict
    the precedents for future litigation this bill would establish
    for Federal reserved water rights. But there is no way to
    ensure that this limitation will be enforced by future courts--
    and at the very least, the first-time codification of a Federal
    reserved water right will lead us down a dangerous and
    unintended path.
        Mr. Chairman, we all are aware of a concept that has been
    established through common law known as the ``Winters
    doctrine,'' which had its origin in the 1908 Supreme Court case
    Winters v. U.S. This case held that water which was flowing
    through an Indian Reservation in Montana was impliedly reserved
    by the government in the treaty establishing the reservation.
    In other words, the court held that although no mention was
    made in the treaty regarding the reservation of water rights,
    it was assumed that such a right was meant to be implied when
    the treaty was created.
        Ever since this decision, the U.S. government has made
    numerous attempts to broaden the ``Winters doctrine'' to
    suggest that the United States has an implied reserved right to
    water above the rights that belong to the state. However, the
    Supreme Court has consistently ruled that the primary authority
    for water rights belongs to the states. In California v. U.S.
    current Chief Justice Rehnquist opined what would be the
    consequences if we were to undermine this right. He said:

              ``To take from the legislatures of the various states and
            territories, the control of (water) at the present time would
            be something less than suicidal . . . If the appropriation and
            use were not under the provisions of the State law, the utmost
            confusion would prevail.''
        The Court has held in cases such as Cappaert v. U.S. and Arizona v.
    California that when the Federal Government reserves land from the
    public domain, by implication it reserves water rights sufficient to
    accomplish the purpose of the reservation. But the Court clarifies in
    later cases such as U.S. v. New Mexico that this reserved right is
    extremely limited and reaffirms that water rights should be
    ``established in accordance with local custom, laws, and decisions of
    the courts.'' In this decision, Judge Rehnquist again emphasizes the
    importance of state rights, even in the spectrum of Federal reserved
    rights, when he states:
              ``Congress has seldom expressly reserved water for use . . .
            lf water were abundant, Congress' silence would pose no
            problem. In the and parts of the west, however, claims to water
            for use on Federal reservations inescapably vie with other
            public and private claims for the limited quanties to be found
            in rivers and streams. This competition is compounded by the
            sheer quantity of reserved lands in the western states, which
            lands form brightly colored swaths across the United States.''
        Mr. Chairman, despite these clear limitations that the Supreme
    Court has established on Federal reserved rights, in the past few years
    we have witnessed an attempt by the Federal Government to dramatically
    widen the scope of the Federal reserved water rights doctrine. In my
    own state of Idaho, along the Snake River, thousands of cases are being
    adjudicated on this very issue.
        Moreover, we are seeing Federal district judges ignore clear
    precedent set down by both statutory and common law in favor of non-
    binding Federal ``biological opinions.'' In addition, just a month ago,
    a Federal District Court ruled that one-third of Lake Ceour d'Alene, in
    northern Idaho, belonged under the ownership of an Indian tribe.
        These type of actions may seem inconsequential now, but in the long
    run will dislodge the delicate system now in place for controlling
    water. This will result in a devastating impact on the livelihoods that
    depend on that system of for survival. Already, it is creating a sense
    of ``confusion'' and uncertainty that the Supreme Court warned about.
    The ability for citizens who are attempting to make a living in our
    state to adequately know how to protect their investments is in serious
    jeopardy.
        Mr. Chairman, to relate back to the bill we are considering today,
    H.R. 3658 will codify an Indian reserved water right. Yet, the bill
    does not define the exact nature of that right. In fact, the vagueness
    of this ``reserved'' right leaves it wide open for future
    interpretation. I hesitate to think what a ambiguous codification of
    the term ``Federal reserved water right'' could mean to the many water
    appropriation holders up and down the Snake River, who are at this time
    having to fight to preserve their water rights against the government.
    It is these type of precedents and ambiguities that threaten the future
    stability of the long-established system of water rights in Idaho and
    the West. We have a duty as Congress to stop this from happening.
        Mr. Chairman, I cannot emphasize enough the seriousness of the
    matter before us today. Before we allow this bill to move further in
    the process, we need to take a very close look at vhat they ``reserved
    water right'' means, and how it could impact state water rights. I hope
    that we may examine and clarify this issue today before the
    Subcommittee.

        Mr. Doolittle. Thank you. Well, let me ask our 3 witnesses
    please to rise and raise their right hands. We actually have
    someone who--Ms. Knight, maybe you would like to join them just
    in the event that you are going to be giving testimony.
        [Witnesses sworn.]
        Mr. Doolittle. Thank you. Let the record reflect each
    answered in the affirmative. We are pleased to have you here on
    an important subject.
        Our first witness will be Mr. David J. Hayes, Counselor to
    the Secretary of the Interior. And we are pleased to have you
    here Mr. Hayes, and you are recognized.

    STATEMENT OF DAVID J. HAYES, COUNSELOR TO THE SECRETARY OF THE
                  INTERIOR, DEPARTMENT OF THE INTERIOR

        Mr. Hayes. Thank you, Mr. Chairman, and thank you for
    calling this hearing. We very much appreciate, particularly
    given the late hour of the session, the Subcommittee having
    this hearing.
        Mr. Chairman, I will not repeat the material in our written
    statement, which I hope will be accepted for the record.
    Instead, I would simply like to highlight a few points this
    afternoon.
        First is that this bill would approve a water rights
    compact that was entered into truly under the leadership of the
    tribe and the State parties. To our mind, as Federal
    representatives, this represents the model of how Indian water
    rights settlements should be solved, which is at the grass
    roots level, with the leadership of the Montana State Reserved
    Water Commission and tribal representatives, as described in
    some detail in the State's testimony before the Subcommittee
    today.
        There was an effort to involve all water users in the
    entire affected basin, to literally work ranch by ranch, water
    user by water user to try to reconcile water uses and water
    rights of the various parties. The result was a very creative,
    thoughtful accommodation of the rights and interests of all
    parties. And we as the Federal Government were happy to play
    our part in helping to make that grass roots agreement become a
    reality.
        In terms of our role here, Mr. Chairman, really two things
    are asked of us as Federal authorities. One is to validate the
    State compact, the key components of the State compact, so that
    they may become Federal law; and as part of that, to confirm
    that any otherwise existing Federal rights and as trustee to
    the tribe dealing with potentially senior water rights would be
    waived.
        And we think it's appropriate for the Federal Government,
    in consultation with the tribe and with this entire package, to
    provide those assurances. And that is why through this
    settlement, the question of potentially otherwise unenforced
    Federal rights for--on behalf of the tribe for water rights
    will be resolved in favor of the system that the State and the
    tribes have essentially worked out together.
        The second thing that is asked of the Federal Government is
    for help in implementing the scheme that basically the State
    and the tribe came up with to help satisfy the water needs of
    both the tribe and the non-Indian water rights holders in the
    area. And in order to do that, two things needed to happen:
        First, the on-reservation water supplies of the tribe,
    which are limited, need to be enhanced so that the most can be
    made of those water supplies. Once the most is made of those
    water supplies through, for example, the Bonneau Reservoir,
    then an accommodation can be made so that the downstream non-
    Indian water rights holders and those depending on water will
    be able to count on the continued flow of water for their
    purposes, while the tribe at the same time can count on the
    water it needs for its reservation.
        And much of this bill is essentially a series of, in the
    grand scheme of things, small projects that will enhance the
    on-reservation capability of the tribe to utilize its water for
    not only its benefit, but quite directly for the benefit of
    non-Indians as well, who therefore will be able to count on
    and, in fact, with the tribe being required to do, ensure that
    adequate supplies will flow down downstream to non-Indian
    parties.
        The second thing we've been asked to do in terms of funding
    is to help, long term, by examining the tribal water need for
    additional drinking water supplies. It's clear that over the
    long haul, with the projected increase in population by the
    tribe, that they will not have adequate drinking water on the
    reservation, even with the enhanced water supplies.
        We as the Federal Government did not believe that we have
    the wherewithal or the responsibility to fully fund any project
    that might provide that enhanced water supply. But we do
    believe a significant financial commitment here of $15 million
    to be put in trust to satisfy the long-term drinking water
    needs of the tribe is appropriate, and that has been
    incorporated into this settlement, along with a planning effort
    that Congressman Hill outlined in his opening statement.
        So in conclusion, we enthustiastically endorse this
    legislation. It exemplifies the type of grass roots resolution
    of conflicting water rights that we think serves as an
    excellent model of how these issues should get resolved.
    Negotiation, not litigation, is the policy of this
    administration, as it was for the previous administration in
    resolving Indian water rights.
        We also believe that the settlement satisfies the Federal
    trust responsibility to the tribe. And that, of course, is a
    fundamental guidance to our actions and is a reason for our
    support for the legislation.
        We think this is a remarkable achievement. We congratulate
    the citizens and the leaders of the State of Montana, both
    tribal and nontribal, in putting this deal together. And we're
    happy to do what we can to make it a reality. We hope the
    Committee will move on the bill.
        Thank you very much, Mr. Chairman.
        [The prepared statement of Mr. Hayes may be found at end of
    hearing.]
        Mr. Doolittle. Thank you.
        Our next witness will be Mr. Bruce Sunchild, vice chairman
    of the Chippewa Cree Water Rights Negotiating Team. You are
    recognized.

    STATEMENT OF BRUCE SUNCHILD, VICE CHAIRMAN, CHIPPEWA CREE WATER
                        RIGHTS NEGOTIATING TEAM

        Mr. Sunchild. Thank you very much, Chairman Doolittle,
    Representative Hill, honorable members of the Committee. My
    name is Bruce Sunchild. I'm a member of the Business Council of
    the Chippewa Cree Tribe of the Rocky Boy's Reservation. The
    Business Council is the governing body of the Chippewa Cree
    Tribe. I also serve as vice chairman of the Tribe's Water
    Rights Negotiating Team.
        I am here to testify on behalf of the tribe in support of
    H,R. 3658 entitled, the Chippewa Cree Tribe of the Rocky Boy's
    Reservation Indian Reserved Water Rights Settlement Act of
    1998. I am accompanied today by the tribe's water resources
    staff, Paul Russette, also Yvonne Knight, the tribe's attorney.
    I appreciate the opportunity to testify before you today. I
    submit for the record the tribe's detailed written testimony.
        I would like to begin by expressing the tribe's great
    appreciation to Representative Hill and to his staff for their
    help and support of moving this bill forward. I would also like
    to thank Representative Doolittle and his staff of the Energy
    and Power Subcommittee, for assisting the tribe in obtaining a
    hearing on H.R. 3658.
        The tribe and the state of Montana and the United States
    are in full agreement that the settlement embodied in H.R. 3658
    is beneficial to all parties. The settlement consists of the
    compact entered into between the tribe and the State of Montana
    on April 14th, 1997, and the bill before you today.
        The bill ratifies the compact and provides funding to
    enable the tribe to fulfill its obligations under the compact,
    to compensate the tribe for its release of breach of trust
    claims against the U.S. Government, and to enable the United
    States to carry out its trust obligation by assisting the tribe
    in obtaining the water necessary to make Rocky Boy's
    Reservation a permanent self-sustaining homeland.
        The settlement benefits the tribe in a number of different
    ways. First, it ratifies the compact and quantifies the tribe's
    on-reservation water rights at 10,000 acre feet per year. The
    remainder of the annual water supply on the reservation will be
    used to mitigate impacts on downstream non-Indian users. The
    settlement provides $3 million to enable the tribe to carry out
    administrative duties under the compact.
        Second, the settlement provides a future source of drinking
    water for the tribe by setting aside 10,000 acre feet of water
    in Lake Elwell behind Tiber Dam. The Rocky Boy's Reservation is
    located in a water-short area, and existing on-reservation
    water supplies are insufficient to meet the tribe's current and
    future drinking water needs. The settlement provides $1 million
    to study alternative means to transport the Lake Elwell water
    to the reservation, and $15 million is authorized as seed money
    to be applied toward the design and construction of the
    selected importation system.
        Third, the settlement provides $25 million to improve on-
    reservation water supply facilities. These facilities will
    enable the tribe to enhance the availability of water supplies
    on the reservation, to improve tribal agricultural products, to
    ensure the existing dams are made safe, and to meet the tribe's
    obligation under the compact to mitigate impacts on downstream
    water users.
        Fourth, the settlement provides the tribe with an economic
    development fund of $3 million to assist us in furthering our
    economic development plans on the reservation.
        The settlement also benefits the tribe's non-Indian
    neighbors in Montana. First, it quantifies the tribe's water
    rights and brings certainty to the rights of tribe's non-Indian
    neighbors. It thus eliminates the need for lengthy, expensive
    and divisive litigation.
        Second, the compact establishes guidelines for day-to-day
    administration for the water rights projected under the
    compact, both tribal and non-Indian, and establishes a local
    system for resolving disputes that may arise between tribal
    water users and nontribal water users.
        Third, H.R. 3658 will benefit the entire north central
    Montana region by authorizing a $5 million feasibility study to
    examine ways to supplement the Milk River Basin water supply.
    This study will also undoubtedly further the United States'
    effort to settle the water rights of the two other tribes in
    Milk River Basin, Blackfeet and Fort Belknap.
        The tribe strongly urges Congress to enact H.R. 3658 into
    law during this session. First, two of the dams on the
    reservation which will be repaired in and enlarged with funds
    from this settlement are classified by BIA as unsafe dams.
    However, these funds cannot be expended by the tribe until a
    final decree approving settlement is approved by the State
    water court. A final decree cannot be entered until the compact
    is ratified by Congress through H.R. 3658. And even then, State
    court procedure could take as long as 2 years. The longer we
    must wait for funds to repair the unsafe dams, the greater the
    risk that a tragedy will occur.
        Second, there is no opposition to H.R. 3658. It is fully
    supported by the administration, as well as the tribe and the
    State, the first Indian water rights settlement to have this
    distinction.
        In conclusion, I thank you for the opportunity to testify
    on behalf of the tribe in wholehearted support of H.R. 3658,
    the Chippewa Cree Tribe of the Rocky Boy's Reservation Indian
    Reserved Water Rights Settlement Act of 1998, and we will be
    happy to answer any questions this Committee may have.
        Thank you very much.
        [The prepared statement of Mr. Sunchild may be found at end
    of hearing.]
        Mr. Doolittle. Thank you, sir.
        Our final witness is Ms. Barbara Cosens, legal counsel,
    Montana Reserved Water Rights Compact Commission. Ms. Cosens,
    you are recognized.

     STATEMENT OF BARBARA COSENS, LEGAL COUNSEL, MONTANA RESERVED
                    WATER RIGHTS COMPACT COMMISSION

        Ms. Cosens. Thank you, Mr. Chairman. Chairman Doolittle and
    Congressman Hill, my name is Barbara Cosens. I'm legal counsel
    for the Montana Reservation Water Rights Compact Commission.
    I'm here to testify on behalf of the State of Montana and
    Governor Marc Racicot in support of H.R. 3658 and to urge your
    approval of the Act. My written testimony has been submitted
    for the record.
        Congressman, it would be impossible for me to overstate the
    importance of this bill for the State of Montana. The
    unquantified nature of reserved water rights casts a cloud over
    certainty regarding investment in private water development
    throughout the West.
        In 1979, the Montana legislature created the Montana
    Reserved Water Rights Compact Commission in order to settle
    these issues. And in doing so, our legislature articulated a
    policy in favor of negotiated settlements. In 1983, in a suit
    before the U.S. Supreme Court in which Montana was a
    participant, the Supreme Court held that State courts do have
    jurisdiction to join the United States in a general stream
    adjudication for settlement of these issues.
        That case strengthened our ability to bring tribes in the
    United States to the table to settle these issues, and since
    1983, we in Montana have been very successful in doing this. We
    have settled with three Indian reservations and with nine other
    Federal reservations, in every case we've been successful in
    protecting existing water users and in protecting the State's
    interests in maintaining control over its water.
        Similar to Montana, most Western States favor a policy of
    negotiated settlements, and they've supported their neighbors
    in seeking their own unique solutions. In June of this year,
    the Western Governors Association passed a resolution in favor
    of negotiated settlements, urging the Federal Government to
    participate in these efforts and help us move forward to
    finalize these issues. That resolution has been submitted as an
    attachment to my written testimony.
        It's not hard to understand this preference for negotiated
    settlements, which allows us to tailor unique solutions to meet
    the needs of the specific locale that we're dealing with. If
    you think about the diversity of the Western landscape, our
    climate varies drastically. We have wide differences in water
    supply, in precipitation, in growing season, in access to
    markets, and in the economic value of water, which varies
    widely from Southwestern urban areas to agricultural areas like
    Montana.
        In the area of this particular reservation, most of the
    precipitation comes as snow pack in the Bearpaw Mountains. It
    runs off in early spring. Springs run dry in late summer. The
    only way to provide a firm yield of water supply is through
    storage.
        This Act, by authorizing enlargement of existing dams on
    the reservation, chooses a relatively low cost to do that, and
    in doing so, has minimal impact on the environment. Also, by
    storing early spring runoff, it minimizes the impact on
    downstream water users.
        We took further measures in the settlement to protect
    downstream water users from any harm, and we did this with the
    process of working with water users literally on a ranch-by-
    ranch basis. Years of experience has taught us that no amount
    of expert study can replace the knowledge that ranchers have
    gained through generations of living and making--working on
    these streams. We made staff engineers and contract engineers
    available to them to design improvements and conveyance in
    diversion structures, to allow them to take water at the lower
    flows while the tribe is storing water.
        In Beaver Creek we purchased water from an off-reservation
    reservoir for release to make up for water stored on the
    reservation. All of these measures were funded by State grants.
    In addition to these local protections, the compact protects
    the State's interests in maintaining control over its waters by
    assuring that any off-reservation use of the tribal water
    rights subjects it to full compliance with State law.
        On behalf of Montana, I would urge you not only to pass
    this bill, but to do so this session. The Montana legislature
    has prioritized the Milk River Basin in which the Rocky Boy's
    Reservation is located for adjudication by our water court, and
    the reason for doing this is because this is an area with high
    potential for conflict over water use. Our water court is
    prepared to begin working on a decree next year if Congress
    passes this Act.
        Of even greater urgency is the need to repair the unsafe
    dams on the reservation. On Friday I spoke with Hill County
    Commissioner Kathy Bassett and we talked about a rainstorm that
    occurred this June in the Bearpaw Mountains. It dropped 9
    inches of rain in the 24-hour period, and Kathy said that it
    appeared for a while that the East Fork Reservoir, which is an
    unsafe Federal dam on the reservation, would not hold. A county
    park downstream from the reservation was evacuated.
        Downstream from that, there is a larger reservoir. Had East
    Fork gone out and taken the lower reservoir with it, the 10,000
    residents of the community of Havre would have been directly in
    the path of the flood. Repair of these dams is needed before
    this situation occurs again.
        Congressman, we know of no opposition to this settlement.
    Passage of the Act would send a signal to Western States that
    the United States is once again prepared to help us move
    forward toward finality on these issues.
        I appreciate the opportunity to testify on behalf of the
    state of Montana in support of H.R. 3658. I urge your timely
    approval of this bill, and I would be happy to answer any
    questions by the Subcommittee.
        [The prepared statement of Ms. Cosens may be found at end
    of hearing.]
        Mr. Doolittle. Thank you very much.
        Mr. Hayes, is it my understanding that the administration
    then supports H.R. 3658?
        Mr. Hayes. That's correct, Mr. Chairman.
        Mr. Doolittle. What does the language in Article VII,
    section A(4) of this bill mean? Is that in the compact? That's
    in the compact. And, Mr. Hayes, it's not in the bill. But let
    me ask you about the compact. I don't have the full text of
    that in front of me, but there's language in there that I
    understand Article VII, section A(4), that says notwithstanding
    any other provision in this compact, the Department of the
    Interior reserves the right to refuse support for Federal
    legislation ratifying this compact.
        Mr. Hayes. Mr. Chairman, let me explain. The compact was
    passed and signed into State law at a time when there was not
    agreement by the Federal Government on some of the basic terms
    of the compact, including an open-ended request or requirement,
    really, for Federal funding of as yet unidentified potential
    projects.
        Essentially, what we did, in close cooperation with the
    State and with the tribe, is, following the enactment into
    State law, the compact looked at the Federal piece, we agreed
    consensually on the Federal role. And the way the statute
    before you is drafted, is that the compact applies except to
    the extent that there's anything in this Federal law that is
    inconsistent with it. And that provision, in particular, is
    essentially moot by the--I think, by the fact that this Federal
    law would be enacted.
        Mr. Doolittle. OK. So you've subsequently determined that
    it merits your support?
        Mr. Hayes. That's correct.
        Mr. Doolittle. The legislation, I guess, reflects your
    desires as to what should happen?
        Mr. Hayes. That's absolutely correct, Mr. Chairman. Just to
    explain a bit more, at the time the State passed the compact,
    there was not any precise understanding of what the Federal
    role, funding-wise, responsibility-wise, might be. There were
    certainly some indications of what the State was looking for,
    but we needed to work those out, and we subsequently did, and
    this legislation embodies the results of that shared view.
        Mr. Doolittle. Does the administration have any reservation
    about the legislation?
        Mr. Hayes. We do not.
        Mr. Doolittle. What happens to the settlement if the
    Federal Government fails to construct the works authorized in
    the settlement?
        Mr. Hayes. Mr. Chairman, I'm not certain, to be honest,
    what would happen. I mean, I think we have a very clear and
    explicit responsibility under this law to construct those
    works. I would imagine that if we failed in that
    responsibility, we would be subject to some legal challenges at
    the least.
        Mr. Doolittle. I guess there's language in here in the bill
    on page 21, (c)(1), it says, ``Upon passage of this act, the
    tribe shall execute a waiver and release of the following
    claims against the United States, the validity of which are not
    recognized by the United States, provided that the waiver and
    release of claims shall not be effective until completion of
    the appropriation of the funds set forth in Section 11 of this
    act and completion of the requirements of Section 5(b) this
    act.''
        So it appears to read that unless everything is done, then
    this waiver will not be complete. Is that your understanding?
        Mr. Hayes. That's correct. My counsel is telling me that's
    correct.
        Mr. Doolittle. So if you did nine-tenths, just for the sake
    of argument, of the funding of the projects and didn't do the
    remaining one-tenth, then there would be no waiver in effect?
        Mr. Hayes. I suppose there's that theoretical possibility,
    Mr. Chairman. These are quite well-defined projects, though,
    and very doable. I don't think any of the parties are concerned
    about that issue.
        Ms. Cosens. Mr. Chairman, may I supplement the answer?
        Mr. Doolittle. Yes, Ms. Cosens.
        Ms. Cosens. I think if I could refer you to the same
    section that you're looking at, number (c)(4) in the tribal
    release of claims, one of the concerns that came up when we
    were finally negotiating these with the Federal Government,
    since appropriations would occur over a period of time, is what
    happens if some of the appropriations occurs, some of the dams
    are repaired, and then the will to provide further funding is
    not there. Does the tribe still retain its entire claim against
    the United States? And this provision provides that there would
    be offset for funds that have already been spent.
        Mr. Doolittle. OK. Thank you for pointing that out.
        Suppose the government took 20 years to do this. Is there
    any maintenance of effort, or is this anything in here
    governing how long this might take?
        Ms. Cosens. Mr. Chairman, the one provision of the compact
    that does have a deadline in it is entry of the decree in water
    court. The funding does not have a deadline on it for entry of
    the decree. The parties were concerned with finalizing these
    claims as quickly as possible, and we provided a 3-year
    deadline. If that deadline is not met, the United States'
    approval is withdrawn from the compact and then the tribe may
    withdraw. A 3-year deadline with our water court we feel is
    quite reasonable to meet.
        We had similar provisions in the Northern Cheyenne
    Settlement Act that was passed by Congress and we did meet
    those deadlines.
        Mr. Doolittle. But it's--knowing just how the Federal
    Government works from time to time, at least the congressional
    part of it, if that decree actually won't be allowed, even if
    it's sought in court, under this (c)(1), I don't think it takes
    effect until all of those things have been done, does it?
        Ms. Cosens. Actually, Mr. Chairman, the appropriations are
    contingent on entry of the decree. The Department of Justice
    communicated to us that they were very concerned that there be
    a final decree before the Federal obligations to provide
    funding kicked in. So we need to get the decree entered before
    the funding can actually be used by the tribe.
        Mr. Doolittle. But the decree isn't effective until the
    appropriations are completed, is it?
        Ms. Cosens. Mr. Chairman, the waiver by the tribe is not
    effective until the appropriations are completed.
        Mr. Doolittle. The waiver is not effective until the
    appropriations are completed. I suppose the way as a practical
    matter it would work, they would fund the appropriations,
    hopefully complete them.
        But, I mean, suppose they run into budget problems or
    something? For whatever reason, it's never completed. Is this--
    what happens then? Are you just in limbo? I mean, they've never
    declared they're not going to complete them, they just haven't
    appropriated all the money they're supposed to appropriate.
    What would happen to that in that circumstance?
        Mr. Hayes. I think, Mr. Chairman, what would happen is that
    the tribe would potentially have at least part of its claim
    still against the United States but there would be an offset.
    To the extent that funds have been provided for the projects
    and there are benefits flowing to the tribe, they would be an
    offset against a breach of trust claim.
        Mr. Doolittle. So you think they would have to file an
    action for breach of trust, then?
        Mr. Hayes. Yes, yes.
        Mr. Doolittle. I mean, but that's--how do we know when the
    trust has been breached?
        Mr. Hayes. Well, that would be in litigation. That would be
    a subject for a Federal Government action. So in our sense, we
    think that's fair, Mr. Chairman. We do not--we would not expect
    the tribe to waive completely its potential rights against the
    United States unless and until, rather, any--precisely because
    of the potential that this would not be fully implemented.
        Let me say, though, that we have worked closely with OMB in
    connection for the funding for this matter. And as you can see,
    the funding is a multiyear funding scenario, which has been
    worked into the potential budgets in outyears for both the BIA
    and Bureau of Reclamation budgets which would be sharing
    responsibilities for this funding. And, in fact, our track
    record in terms of implementing Indian water rights settlements
    has been quite good in terms of Congress and the administration
    working together to come up with the funding to actually
    implement enacted settlements.
        Mr. Doolittle. What are you estimating is the total amount
    of time to complete the appropriations?
        Mr. Hayes. I think it's over a 3-year period.
        Mr. Doolittle. OK. Well, is the Secretary's signature of
    this settlement a final commitment, then, to carry out the
    terms of this agreement?
        Mr. Hayes. Yes, Mr. Chairman.
        Mr. Doolittle. Is it the administration's position that
    executing paperwork that makes no change in the physical world
    does not constitute a major Federal action under the National
    Environmental Policy Act?
        Mr. Hayes. Well, let me explain that if I can. I think
    you're referring, Mr. Chairman, to Section 11, or rather 13, 13
    (f), of the bill.
        Mr. Doolittle. Right.
        Mr. Hayes. That needs to be read in connection with 13 (e).
    The administration's position is that environmental compliance
    for all physical elements of the project needs to be completed.
    And, in fact, in connection with our policy of trying to
    identify if there are any environmental issues as soon as
    possible, much of the NEPA analysis on the major on-reservation
    activity, the enlargement of the Bonneau Reservoir, has already
    been completed.
        So we are comfortable with the substantive application of
    NEPA for all physical activities. What section 13 (f) does is
    simply say that the signing of the compact itself in the
    context in which we are, with the NEPA applying to the physical
    activities, does not itself trigger an additional obligation.
        Mr. Doolittle. Well, then, I think your answer--which was
    fully explained, I appreciate that--but it would be ``yes,''
    then. It does not constitute a Federal--a major Federal action
    in your view, the mere execution of it?
        Mr. Hayes. In this context, we're comfortable with that.
        Mr. Doolittle. And so I think you've explained this, but
    apparently then--well, I will just ask the question: Does the
    administration believe that it is more appropriate for NEPA,
    ESA and other environmental compliance processes to be carried
    out at the implementation stage, when actions are not merely
    contemplated in theory but actually proposed?
        Mr. Hayes. I'm not sure I understand the question, Mr.
    Chairman.
        Mr. Doolittle. Well, I was just looking--I think that
    particular sentence came out of the letter that you sent, and I
    was just--I have a special interest in this. Let's see. This is
    a letter to--I guess responding to questions posed by Senator
    Campbell's committee. There's a date stamped on it, August
    31st. And in there--let's see, you're responding to questions,
    and you state in that letter, ``Moreover, we believe that it is
    more appropriate for full NEPA, Endangered Species Act and
    other environmental compliance processes to be carried out at
    the implementation stage, when actions are not merely
    contemplated in theory but actually proposed.'' I assume you
    still believe that.
        Mr. Hayes. Certainly. In this context, but I hope this
    won't be taken out of context, this is--the context here is in
    a situation where the possibilities for enhancing the water
    supplies have been well studied for years on the reservation,
    where NEPA in fact had already been well underway for the major
    aspect of the water enhancement program on the reservation. I
    guess I would caution use of that sentence outside the context
    of this matter.
        Mr. Doolittle. I just--I'm glad you've got it in there,
    because I felt it's been appropriate on a number of occasions
    for many of the reasons that you've mentioned. I don't think
    this is a unique circumstance. But, you know, we constantly get
    the administration objecting and calling that type of language
    ``veto bait'' and implying that it's--or not implying, I mean
    it's basically stating that it's unreasonable, and I don't
    believe it is a major Federal action.
        And I guess you don't either, or else if it were, you would
    have to be doing all of these studies before the Secretary were
    able to execute the contract.
        Mr. Hayes. Well, in fact, we have done most of the studies
    already.
        Mr. Doolittle. But you haven't done them all, and to all
    the specificity required, have you?
        Mr. Hayes. No, that certainly is the case. That's certainly
    the case.
        Mr. Doolittle. And as you pointed out, or as it says in the
    law itself, of course, before any of these projects is actually
    carried out, all the necessary environmental work will have to
    be completed?
        Mr. Hayes. That's correct.
        Mr. Doolittle. That I think is a reasonable policy, and I'm
    glad the Clinton Administration agrees.
        This matter of the reservoir, Elwell, Lake Elwell off the
    reservation, let me ask, Mr. Sunchild, do you envision
    receiving a distribution system from Lake Elwell to the
    reservation?
        Mr. Sunchild. Yes, we do.
        Mr. Doolittle. And who are you anticipating will be
    providing that?
        Mr. Sunchild. At this point right now there's a feasibility
    study that will happen with this money that's--if it's
    allocated.
        Mr. Doolittle. What is the approximate cost that you're
    hearing for--I realize it's being studied, so you only will
    perhaps have a ballpark figure. But what's a ballpark figure
    for building the distribution system from that reservoir to
    your reservation?
        Mr. Sunchild. Mr. Chairman, at this point I can't answer
    that without the feasibility.
        Mr. Doolittle. Can anyone give us a ballpark figure,
    stipulating that it's subject to completion of the study?
        Mr. Hayes, do you have any idea about that?
        Mr. Hayes. Well, we really can't, Mr. Chairman, because the
    method of potential delivery is a key question. There has been
    discussion in the past of a potential pipeline from Tiber
    Reservoir to the reservation, but that is extraordinarily
    expensive.
        And the feasibility study is going to look at other
    potential options, including the release of the water at the
    reservoir and the potential pickup of the water downstream out
    of the Missouri right up to the reservation, which will be a
    much shorter distance and potentially tremendously cheaper in
    terms of costs.
        Mr. Doolittle. The distance from the reservoir of that
    pipeline you're talking about to the reservation is about 50
    miles?
        Mr. Hayes. That's correct.
        Mr. Doolittle. And if you did, it would be releasing the
    water and then picking up it in Missouri river. What distance
    would that be from there to the reservation?
        Mr. Sunchild. Mr. Chairman, I would estimate about 30
    miles.
        Mr. Doolittle. That would be 30 miles. We're still talking
    about a major, even at 30 miles, a major conveyance system?
        Mr. Hayes. Yes.
        Mr. Sunchild. Yes.
        Mr. Doolittle. And I guess, what is the intention then with
    releasing the acre feet? Is that then--the intention is to
    release it to pick up at the other end?
        Mr. Hayes. That's potentially one scenario that will be
    evaluated, Mr. Chairman.
        Mr. Doolittle. Is there any intention to satisfy existing
    water needs to downstream water users?
        Mr. Hayes. I think, Mr. Chairman, the downstream water
    users' needs will be satisfied with the on-reservation
    enhancements, and what we're talking about here is a longer
    term imported water supply that would be needed at some point
    in the future for anticipated on-reservation growth.
        Ms. Cosens. Mr. Chairman, if I could also answer that
    question.
        Mr. Doolittle. Yes. Yes, please jump in there, Ms. Cosens.
        Ms. Cosens. As Mr. Hayes says, the compact fully protects
    downstream water users for any impact by the tribal water
    right. In this part of Montana, the groundwater resources are
    very saline for the most part, and in some areas where there is
    good water, it's a very low yield. And many of the communities
    in the surrounding areas already have put in rural water
    systems for treatment and transport of surface water, so
    there's an existing infrastructure already in place.
        Part of the feasibility study will look at whether it will
    sort of bring in an economy of scale and reduce costs if more
    of those rural water systems that are already in place actually
    attach to a system that would go to the tribe, and that's one
    thing that may lower costs in this area. But certainly at this
    point the development and treatment of surface water for
    drinking for the tribe lags way behind the surrounding
    communities.
        Mr. Doolittle. The tribe in its testimony has indicated
    they're going to come back to Congress to provide for the money
    for this, I guess, for their part of the system, and it
    wouldn't be paid for by other water users as was described.
        Is that your understanding, Mr. Hayes?
        Mr. Hayes. We don't know what the tribe's ultimate
    intentions are or what--how this would play out in the future.
    If I can make a couple of comments, as the administration, we
    were uncomfortable with making an open-ended financial
    commitment to the tribe in connection with a potential future
    water delivery system whose outline and potential costs and
    timing and everything else is unknown.
        We recognize, obviously, a trust responsibility. And we
    evaluated that and concluded that setting aside a $15 million
    trust fund, which could earn interest over time, would satisfy
    the Federal trust responsibility in this regard and would be
    the basis for waiving claims, both ways, in terms of Federal
    reserve water rights.
        If at some point in the future the tribe wants to approach
    the administration, the then administration or the Congress,
    and ask for programmatic funds to supplement this fund, I
    suppose they're free to do so. And that will be for a future
    Congress and a future administration to evaluate. But that
    would not be in the context of a resolution of an Indian water
    rights settlement, that would be in the context of a request
    for programmatic funds.
        Mr. Doolittle. Ms. Cosens, could the proposed MNI water
    system from the Tiber be tapped by nontribal members for tribal
    profit?
        Ms. Cosens. Mr. Chairman, I believe that is one of the
    options that the tribe has looked at, is ownership of the
    system. I think the tribe could better answer on their
    discussions with surrounding communities on that. Certainly,
    one aspect, as I mentioned earlier, that would be looked at is
    I think there are eight rural water systems between Tiber and
    the reservation whose lines are very close to or actually cross
    the path that a pipeline would have to take.
        And contribution by those systems to building the pipeline
    so that they can tie into it would certainly reduce the overall
    per capita costs of a system. I know that's being looked at
    seriously. And I would defer to the tribe whether there have
    been discussions of marketing.
        Mr. Doolittle. Do you want to comment on that, Mr.
    Sunchild?
        Mr. Sunchild. Yes, Mr. Chairman, as far as marketing, I
    think there was some thought that some individual communities
    would go to the BOR for some sort of allocation for their water
    needs.
        Mr. Doolittle. OK.
        Mr. Sunchild. We never intended to sell to non-Indian
    communities.
        Mr. Doolittle. It was your intent to keep it for the tribe,
    then?
        Mr. Sunchild. Yes, sir.
        Mr. Doolittle. OK. Back to Ms. Cosens. What impact do you
    think this settlement will have on other implied reserve
    Federal water rights that are being expanded, such as those for
    Forest Service, national parks, wilderness areas, watershed
    protection, cattle grazing, big game and waterfowl refuges,
    recreation, planned occupancy for the military and other
    governmental personnel, tree nurseries and seed beds, fire
    fighting? I mean, what impact do you think that might have on
    some of those other things?
        Ms. Cosens. Mr. Chairman, the short answer to your question
    would be no impact whatsoever.
        Maybe I could supplement that by explaining one of the
    reasons why Montana has chosen this process of negotiated
    solution is, it does allow them to tailor solutions to the
    specific circumstances of a particular reservation, come up
    with site-specific solutions, and avoid wading into any of the
    questions that might raise a precedent in other areas.
        In addition, it has allowed the State of Montana to provide
    some certainty in these areas by quantifying the reserve water
    rights that are unquantified at this point and place some
    uncertainty on it. I think that the State of Montana has been
    very successful in this process, and the values of negotiations
    for the people of Montana have been substantial.
        Mr. Doolittle. Is it fair to say your main interest in this
    is certainty?
        Ms. Cosens. Mr. Chairman, I think that we have several
    interests in this process. Certainly, certainty is probably the
    primary thing that caused the legislature to create the Reserve
    Water Rights Compact Commission, starting the general stream
    adjudication in order to quantify these rights. But over the
    years I think we have found that the benefits are far greater
    than that.
        If I could just go through maybe three of the main benefits
    that we've seen from these negotiations, certainty is
    definitely one quantification. But quantification can be
    achieved through litigation as well, and you can get certainty
    that way.
        Litigation is a highly costly alternative, and what
    litigation can't accomplish is protection from junior water
    users. In Montana most of the basins that have Indian
    reservations in them are highly appropriated, and in most cases
    the Indian reservations was created prior to most of the
    development of water. And the only avenue we have for
    protecting those junior uses is through settlement, and again,
    we've been very successful in doing that.
        Secondly, through these compacts, we've been able to
    resolve many more issues then simply the quantification of
    water. The beauty of settlement is that you can wrap a number
    of issues into a single package.
        And the main one that I'm thinking of is the dispute
    resolution once the compact is implemented. If a reserve water
    right is litigated, you get a quantification, but the question
    remains open as to what form people have to resolve disputes
    after that quantification occurs. And I can tell you in our
    negotiations, working with the ranchers around Rocky Boy's,
    that they were probably as concerned or more concerned with
    what remedy they would have if the obligations that were put
    forth in the compact were not lived up to or water wasn't being
    used in that way than they were with the actual quantification.
        It's a small comfort to a water user that has their head
    gate opening on to a dry stream that they have the right to
    spend the entire irrigation season arguing over what court they
    should be resolving their disputes in. And this compact and the
    other ones that we have settled set up a dispute resolution
    mechanism by creating a tribal-State compact board that would
    resolve those disputes.
        And I think the third benefit that we've seen is that it
    creates negotiation rather than litigation, creates improved
    relationships, both between tribes and their neighbors and
    between tribes and States. We can all go home tomorrow, but the
    tribe and the ranchers out around the Rocky Boy's Reservation
    will live with whatever we end up with for generations to come.
        I think in the Western Governors Association letter that I
    attached to my testimony, there was also a concern expressed
    with this. The letter talks about the hiatus in Federal
    approval of these settlements and the concerns of what that
    break down might be. And if I can quote from that, they stated
    that the prospects for returning to an era of adversarial
    relations between tribes and their local neighbors and the
    neglect of addressing tribal rights appeared imminent because
    of that breakdown. I think that many of the Western States are
    concerned with going back to a system in which the only avenue
    we have is litigation.
        Mr. Doolittle. Mr. Hayes, we've read and heard that several
    of the dams in the reservation are at risk. I just wondered if
    you could tell me why the department has allowed them to
    deteriorate to such an extent?
        Mr. Hayes. Well, the funding for the safety of dams program
    in the BIA has been significantly curtailed in recent years.
    And the----
        Mr. Doolittle. Can I just jump in and ask, why have you
    pursued such a policy of allowing that to be curtailed?
        Mr. Hayes. We have sought appropriations from Congress for
    the BIA budget for this purpose and have not gotten the
    appropriations we've requested, Mr. Chairman. It's quite--it's
    as simple as that. What we've had to do is prioritize the dams
    that are in the worst shape so that the limited funds available
    can be put to those BIA facilities.
        In the case of the Bonneau Reservoir, at one point the
    Bonneau Reservoir I think was in the top five or so as one of
    the most unsafe dams. The Bureau took funds to stabilize the
    facility and take it out of the red zone, if you will. However,
    it was--it's not efficient to do a permanent fix at the same
    time that there's a contemplation of an enlargement of the
    facility. So the permanent fix will be done in connection, in
    fact, with the enhancement of the reservoir capacity. And that
    is an important purpose here. But we're hopeful that the
    temporary fix will provide adequate safety.
        Mr. Doolittle. Has Congress actually specifically turned
    down the requests for the safety of dams program?
        Mr. Hayes. Mr. Chairman, I don't know the answer to that,
    in terms of whether it's been targeted at this program or not.
    I suspect not. I suspect it's part of the programmatic cuts for
    the BIA, which has forced the BIA to try to put its scarce
    dollars to any number of often life-threatening situations, be
    it safety of dams or people-oriented projects. I'm happy to
    look into that and get you some more information, if you would
    like, Mr. Chairman.
        Mr. Doolittle. I would appreciate that, because my hunch is
    if you made a specific request for that, it would be fully
    funded. I just wonder how many other dams are in the yellow
    zone or the red zone.
        Mr. Hayes. It's a serious issue, and we would be happy to
    get some more information to you, Mr. Chairman.
        Mr. Doolittle. I think that would be good.
        Ms. Cosens, you state that the Western Governors continue
    to support negotiating rather than litigated settlement of
    Indian water rights disputes, and that's certainly the
    direction I would want to encourage.
        Do the Western Governors generally support extending
    implied reserve water rights to include the quantification of
    additional uses, such as fish and wildlife enhancements?
        Ms. Cosens. Mr. Chairman, what the Western Governors
    Association supports is the ability of States to choose their
    own paths in this. Certainly there is no specific endorsement
    of specific types of reserved water rights. As I stated
    earlier, one of the things that we're able to avoid when we
    negotiate is setting precedent. We can tailor a solution to the
    specific needs of the reservation.
        In the case of Rocky Boy's with the fish and wildlife
    enhancement, it was a need that the tribe brought to the table
    that we were able to agree to without affecting any other water
    users and with the support of the other water users. I think
    that there has been a long history of Federal deference to
    State water law, probably because we each have our own unique
    solutions that we can put forward in these cases. Certainly the
    Western Governors Asso-

    ciation supports their neighboring States' efforts to choose
    their own solutions in those cases.
        Mr. Doolittle. How many people do you have in Montana?
        Ms. Cosens. Less than a million, Mr. Chairman.
        Mr. Doolittle. You're in the fortunate circumstance of, I
    believe, of having sufficient water for your needs. Is that not
    the case?
        Ms. Cosens. Mr. Chairman, that's not, certainly when you
    compare our State to other States. Because of our low
    population, that's probably true, but because of our high
    reliance on agriculture, there are basins that are water short
    and because particularly east of the Continental Divide it is a
    very arid region. The Milk River Basin, in which this
    reservation is located, has many periods of short water supply.
        And part of that is brought on by the fact that our climate
    is highly variable. We can have years where we have more water
    than we could ever need, and then we have expanses of years
    where we have extreme drought, so it is variable. We're not
    without our shortages, but certainly I think we are at an
    advantage in having a low population.
        Mr. Doolittle. And you do have the--you're able to--in my
    State, where we're water short on the average now and are going
    to be more water short when some of those other basin States
    claim everything they're entitled to, we--it's not just
    theoretical. We're at the point where somebody is making a
    claim, somebody else is going to give up the water they have,
    whereas you are apparently able to parcel this out and make
    everybody happy and that's good. I wish it were that way for
    everyone.
        But there is some concern about approving this kind of a
    settlement that may be setting some real precedent. I know it
    says it's not intended to set a precedent. But it will set a
    precedent, and most of our Western States are water short.
        And so there is no reluctance on the part of the Committee
    to acknowledge the hard work that has gone into this
    legislation and the compact. And certainly we understand your
    desire, for the reasons you mentioned, certainty and a more
    desirable dispute resolution process, and just the comity and
    general good feelings amongst the different interests within
    your State. Those are all positive goals.
        But this whole implied water right reservation system has
    some substantial ambiguous areas in it. And when it comes to
    dealing with the non-Indian claims or the downstream, the
    junior rights holders, there's lots of issues that come into
    play, as you know, but you've been able to work them all out in
    your case.
        The Subcommittee is grappling with what do we do in some of
    these other areas where we're not going to be able to work them
    out as nicely as you have and, where you're going to have to
    deal with taking--you know, not having a larger pie, so to
    speak, but reallocating the pieces thereof, and that's a much
    more difficult question.
        And I think this hearing has afforded us the opportunity to
    at least begin to explore some of these issues. And I'm sure we
    will have--if Mr. Hill were here, I know he would have a number
    of questions that he would want to ask you, and frankly a
    number of other members who are just probably in the air now as
    we speak. So there will be lots of other questions we will
    probably tender in writing, and I ask you to respond as
    expeditiously as you can.
        Ms. Cosens. Mr. Chairman, could I respond to the last
    comment?
        Mr. Doolittle. Yes, certainly.
        Ms. Cosens. I apologize if I misled you into thinking that
    the Milk River Basin has abundant water to allocate. That's not
    why we were able to settle in this area. We have 6 years of
    intensive work with water users in the area resting on this
    settlement and waiting for it to move forward. This is by no
    means a region with abundant water. We get 12 inches of
    precipitation a year on the average in the part of the
    reservation that has agriculture, and ranching and farmland
    around it is fully developed.
        Milk River notoriously has shortages in waters. The Milk
    River has one of the earliest Bureau of Reclamation projects
    authorized by Congress. And I'm sure you know enough about
    reclamation projects, having a number of them in your State,
    that those projects historically were built in areas where
    there was not sufficient water to support the agriculture in
    the area.
        So as early as the early 1900's when that project was
    authorized, there were water shortages in this part of Montana.
    It's not because of the population, it's because of the
    agriculture, which uses substantially more water than in
    municipalities. We don't have the concern that other States do
    with municipal water supply, and one of the results of that is
    that the water isn't worth a lot in Montana, like it is in the
    Southwest.
        But in terms of shortages for allocations, we have very
    difficult issues that we need to deal with. This compact
    allocates 20,000 acre feet to the Rocky Boy's Reservation. I
    think if you compare that with other agreements, both in the
    Southwest and in Montana, that's a very small amount of water,
    and it reflects the fact that the water supply on the
    reservation is extremely limited.
        Mr. Doolittle. Well, I didn't mean to imply that it was an
    easy thing for you to do. But we're losing, even in wet years,
    60 percent of water deliveries say to our farmers in the San
    Joaquin Valley, which is probably the most productive area in
    the world for agriculture, and we're losing it due to fish and
    wildlife requirements.
        You're not experiencing that kind of thing to that degree
    in Montana, are you?
        Ms. Cosens. In certain areas, Mr. Chairman, in certain
    areas of Montana, we are. The whole western part of the State
    is part of the Columbia River System.
        Mr. Doolittle. You do have a taste of it, don't you?
        Ms. Cosens. We do.
        Mr. Doolittle. Well, I appreciate all of you coming up here
    to offer your testimony. We are very interested in this
    subject. We want to achieve a good result for you and for
    others in the future, so we will be looking carefully at the
    facts and the information you provide us. And we'll hold the
    record open for the responses that you provide to our
    questions.
        And with that, why, this hearing is adjourned.
        [Whereupon, at 3:16 p.m., the Subcommittee was adjourned.]
        [Additional material submitted for the record follows.]
        Statement of David J. Hayes, Counselor to the Secretary of the
                      Interior, Department of the Interior

        Good Afternoon. I am David J. Hayes, Counselor to Secretary
    of the Interior Bruce Babbitt. It is my pleasure to be here
    this afternoon to testify on behalf of the Administration in
    support of H.R. 3658. This bill represents the successful
    culmination of approximately eight years of negotiation among
    the United States, the State of Montana and the Chippewa Cree
    Tribe of the Rocky Boy's Reservation over water rights disputes
    being litigated in the case entitled, In the Matter of the
    Adjudication of All Rights to the Use of Water. Both Surface
    and Underground, within the State of Montana. It represents a
    true partnership among Federal, State and Tribal interests. By
    working hard, together, the parties have forged a water rights
    settlement that satisfies Tribal rights and needs, while also
    taking into account the rights and needs of non-Indian
    neighbors, and enabling all affected Montanans to plan for the
    future with confidence and certainty.
        The Rocky Boy's Reservation, located in North Central
    Montana, consists of approximately 110,000 acres and includes
    several tributaries of the Milk River. The average annual water
    supply on the Reservation is limited by hydrological delivery
    constraints and inadequate storage infrastructure. The Tribe
    has over 3,500 enrolled members and a population growth rate
    well above the typical rate for tribes of 3 percent. Tribal
    unemployment averages around 60-70 percent in an economy based
    primarily on agriculture, including raising livestock. Existing
    Reservation water use includes irrigation, livestock
    consumption, wildlife and recreational use, and municipal and
    industrial uses. The Tribe's municipal water is derived from 12
    community wells and approximately 240 individual wells. A
    majority of the domestic wells suffer from low production due
    to aquifer overdraft or improper siting. In addition,
    groundwater contamination from hydrogen sulfide, iron and
    manganese contributes to well casing corrosion and makes the
    water very unpleasant to drink or use for other domestic needs.
        Since the Tribal economy is heavily based on livestock and
    hay is the principal crop grown using irrigation, the Tribe's
    goal is to maintain, or perhaps slightly increase, the current
    level of irrigated agriculture on the Reservation in order to
    avoid having to purchase supplemental livestock forage on a
    regular basis. Without enhanced on-Reservation storage and
    other infrastructure improvements, experts calculate that,
    within 20 to 40 years, the Tribe will be unable both to
    maintain its modest agricultural base and meet the domestic
    water needs of its rapidly growing population.
        The United States, the State and the Tribe struggled for
    many years to find an immediate solution to the problem of an
    inadequate Reservation water supply. For a time, the Tribe
    viewed the only solution to be the importation of water from
    the Tiber Reservoir, a Bureau of Reclamation facility some 50
    miles from the Reservation. In this context, the water would
    have been delivered to the Tribe as part of a combined Indian/
    Non-Indian system. This system would have been very expensive
    and would have required an extensive Federal subsidy. Moreover,
    this system would have cost the Federal Government far more
    than it could reasonably be expected to pay to settle the
    Tribe's water rights. Rather than pursue this expensive
    regional water system, the parties decided to focus on
    developing existing Reservation water supplies and setting
    aside funds that will be available for use in a future plan to
    supplement on-Reservation water supplies. This is the approach
    that has been adopted in H.R. 3658.
        Under the terms of H.R. 3658, Congress would approve, and
    authorize participation in, a Water Rights Compact entered into
    by the Tribe and the State. The Compact was enacted into
    Montana law on April 14, 1997, and recognizes the Tribe's right
    to approximately 10,000 acre feet of water on the Reservation.
    In order to enable the Tribe to exercise its on-Reservation
    water right, the United States would contribute $24 million for
    four specific on-Reservation water development projects and
    additional funds of no more than $1 million to cover Bureau of
    Reclamation (BOR) administrative costs associated with these
    construction activities. First and foremost among the projects
    is the repair and enlargement of Bonneau Reservoir, a facility
    that has ranked in the top ten of the Department's ranking list
    of most dangerous dams. Other projects include repair and
    enlargement of several smaller on-Reservation irrigation and
    recreational dams, including East Fork, Brown's and Towe's Pond
    dams.
        H.R. 3658 also addresses the Tribe's future water needs by
    providing the Tribe with the right to an additional 10,000 AF
    of water stored in Tiber Reservoir. This allocation is only a
    small percentage of the 967,319 acre feet of water stored in
    Tiber Reservoir and will not impact on any other use of the
    Reservoir. The Department has carefully considered the impact
    of the allocation on the reserved water rights of other Indian
    tribes and has concluded that such rights will not be
    negatively affected.
        It is important to note that by making the Tiber Reservoir
    allocation, the United States is not undertaking any obligation
    to deliver water to the Reservation. Section 8(d) of the bill
    expressly provides that the United States shall have no
    responsibility or obligation to deliver the Tiber allocation or
    any other supplemental water to the Reservation.
        Nonetheless, in order to assist the Tribe when the time
    comes that it needs additional on-Reservation water supplies,
    H.R. 3658 provides that the United States will set aside $15
    million in trust toward the planning, design, construction,
    operation, maintenance and rehabilitation of a future
    Reservation water supply system. In addition, the bill
    authorizes BOR feasibility studies totaling $4 million to
    explore alternative methods of augmenting the Rocky Boy's
    Reservation water supply, as well as analyzing region-wide Milk
    River water availability and enhancement opportunities. One
    particular alternative that will be studied will be the
    feasibility of releasing the Tribe's proposed Tiber Reservoir
    allocation into the Missouri River for later diversion into a
    treatment and delivery system for the Reservation. We are
    hopeful that this alternative or others identified by the BOR
    studies will prove to be more realistic and reasonable
    solutions than an expensive rural water supply system centered
    upon a pipeline from Tiber Reservoir. The BOR studies should
    provide an in-depth understanding of the Milk River Basin water
    supply, its potential and limitations, that will be of valuable
    assistance to the United States, the State of Montana and
    Montana Indian tribes in our efforts to address Indian water
    rights disputes. The studies will address, as well, some of the
    water supply problems facing many small North Central Montana
    communities.
        Other components of the Chippewa Cree settlement are a $3
    million Tribal Compact Administration fund to help defray the
    Tribe's Compact participation costs and a modest $3 million
    Tribal Economic Development fund to assist the Tribe in putting
    its water to use.
        The total Federal contribution to the settlement is $50
    million. We believe that this expenditure is justified. The
    Tribe has presented the United States with a legal analysis
    setting forth a substantial damages claim against the United
    States. The Department of Justice and the Department of the
    Interior have analyzed the claim and concluded that settlement
    is appropriate. In addition to releasing the United States from
    damage claims, the settlement also will relieve the United
    States of the obligation to litigate, at significant cost and
    over many years, the Tribe's water rights. The certainty
    secured by the settlement is, in fact, its central feature. By
    resolving the Tribe's water rights, all of the citizens of this
    area of the State of Montana will be able to plan and make
    investments for the future with the assurance that they have
    secure and stable water rights.
        Like other Indian water rights settlements, the benefits to
    accrue to the Tribe and other settlement parties will be
    available only after a final water rights decree is issued by
    the appropriate court. We expect that the process of entering
    and gaining final approval of the decree will take
    approximately eighteen months to two years. As motivation to
    keep the court approval process moving, the settlement parties
    have set a three year deadline for finalization of the decree.
    The Department of the Interior is committed to advancing the
    court process and other settlement implementation tasks as
    expeditiously as possible in order to avoid having to seek
    Congressional relief from the settlement deadline. The Tribe
    has waited many years to see its water rights become a reality
    and we do not want to see that wait prolonged any more than
    absolutely necessary.
        In summary, the Administration strongly supports H.R. 3658.
    To strengthen the probability of securing appropriations for
    this settlement, we support swift passage of H.R. 3658. We
    congratulate the Chippewa Cree Tribe for this historic
    achievement and we extend our thanks to the State of Montana,
    and, in particular, the States Reserved Water Rights
    Commission, for the indispensable role it played in bringing
    this settlement to fruition.
        I will be happy to answer any questions you may have.
                                    ------

     Statement of Bruce Sunchild, Member of the Business Committee of the
     Chippewa Cree Tribe of the Rocky Mountain Boy's Reservation, and Vice-
          Chairman of the Chippewa Cree Water Rights Negotiating Team

        Chairman Doolittle, and Representative Hill, Honorable
    Members of the Committee:
        My name is Bruce Sunchild. I am a member of the Business
    Council of the Chippewa Cree Tribe of the Rocky Boy's
    Reservation. The Business Council is the gov-

    erning body of the Chippewa Cree Tribe. I also serve as the
    Vice-Chairman of the Tribe's Water Rights Negotiating Team. I
    am here to testify on behalf of the Tribe in support of House
    bill 3658 entitled ``The Chippewa Cree Tribe of the Rocky Boy's
    Reservation Indian Reserved Water Rights Settlement Act of
    1998.'' I am accompanied today by Paul Russette, the Tribe's
    Water Resources staff, and the Tribe's attorney. I appreciate
    the opportunity to testify before you today, and I subunit for
    the record, the Tribe's detailed written testimony.
        I would like to begin by expressing the Tribe's great
    appreciation to Representative Hill, and to his staff for their
    help and support in moving this bill forward. I would also like
    to thank Representative Doolittle, and the staff of the Energy
    and Power Subcommittee for assisting the Tribe in obtaining a
    hearing on H.R. 3658.
        The Tribe, the State of Montana, and the United States, are
    in full agreement that the settlement embodied in H.R. 3658 is
    beneficial for all parties. The settlement consists of the
    Compact entered into between the Tribe and the State of Montana
    on April 14, 1997, and the bill before you today. The bill
    ratifies the Compact and provides funding to enable the Tribe
    to fulfill its obligations under the Compact, to compensate the
    Tribe for its release of breach of trust claims against the
    United States, and to enable the United States to carry out its
    trust obligations by assisting the Tribe in obtaining the water
    necessary to make the Rocky Boy's Reservation a permanent self-
    sustaining tribal homeland.
        The settlement benefits the Tribe in a number of important
    ways.
        First, it ratifies the Compact and quantifies the Tribe's
    on-reservation water rights at 10,000 acre feet per year. The
    remainder of the annual water supply on the Reservation will be
    used to mitigate impacts on downstream non-Indian users. The
    settlement provides $3 million to enable the Tribe's to carry
    out its administrative duties under the Compact.
        Second, the settlement provides a future source of drinking
    water for the Tribe by setting aside 10,000 acre feet of water
    in Lake Elwell behind Tiber Dam. The Rocky Boy's Reservation is
    located in a water-short area, and existing on-Reservation
    water supplies are insufficient to meet the Tribe's current and
    future drinking water needs. The settlement provides $1 million
    to study alternative means to transport the Lake Elwell water
    to the Reservation. and $15 million is authorized as seed money
    to be applied toward the design and construction of the
    selected water importation system.
        Third, the settlement provides $25 million to improve on-
    Reservation water supply facilities. These facilities will
    enable the Tribe to enhance the availability of water supplies
    on the Reservation to improve Tribal agricultural projects, to
    ensure that existing dams are made safe, and to meet the
    Tribe's obligations under the Compact to mitigate impacts on
    downstream water-users.
        Fourth, the settlement provides the Tribe with an economic
    development fund of $3 million to assist us in furthering our
    economic development plans on the Reservation.
        The settlement also benefits the Tribe's non-Indian
    neighbors in Montana.
        First, it quantifies the Tribe's water rights and brings
    certainty to the rights of the Tribe's non-Indian neighbors. It
    thus eliminates the need for lengthy, expensive, and divisive
    litigation.
        Second, the Compact establishes guidelines for the day-to-
    day administration of the water rights protected under the
    Compact, both Tribal and non-Indian, and establishes a local
    system for resolving disputes that may arise between Tribal
    water users and non-tribal water users.
        Third, H.R. 3658 will benefit the entire North Central
    Montana region by authorizing a $5 million feasibility study to
    examine ways to supplement the Milk River basin water supply.
    This study will also undoubtedly further the United States'
    efforts to settle the water rights of the other two tribes in
    the Milk River basin-Blackfeet and Ft. Belknap.
        The Tribe strongly urges Congress to enact H.R 3658 into
    law during this session.
        First, two of the dams on our Reservation which will be
    repaired and enlarged with funds from this settlement are
    classified by BIA as unsafe dams. However, those funds cannot
    be expended by the Tribe until a final decree approving
    settlement is entered by state water court. A final decree
    cannot be entered until the Compact is ratified by Congress
    through the enactment of H.R. 3658. And even then state court
    procedure could take as long as two years. The longer we must
    wait for funds to repair the unsafe dams, the greater the risk
    that a tragedy will occur.
        Second, there is no opposition to H.R. 3658. It is fully
    supported by the Administration, as well as the Tribe and the
    State-the first Indian water rights settlement to have this
    distinction.
        In conclusion, I thank you again for the opportunity to
    testify on behalf of the Tribe in wholehearted support of H.R.
    3658--``The Chippewa Cree Tribe of the Rocky Boy's Reservation
    Indian Reserved Water Rights Settlement Act of 1998.'' I will
    be happy to answer any questions from these Committees.

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