[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
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                         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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