    [Senate Hearing 107-608]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 107-608

                     ZUNI INDIAN TRIBE WATER SETTLEMENT ACT
    =======================================================================

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                          ONE HUNDRED SEVENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                    S. 2743

    TO APPROVE THE SETTLEMENT OF THE WATER RIGHTS CLAIMS OF THE ZUNI INDIAN
                        TRIBE IN APACHE COUNTY, ARIZONA

                                   __________

                                 JULY 18, 2002
                                 WASHINGTON, DC

                               U.S. GOVERNMENT PRINTING OFFICE
    81-230                          WASHINGTON : 2002
    ____________________________________________________________________________
    For Sale by the Superintendent of Documents, U.S. Government Printing Office
    Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800
    Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001

                          COMMITTEE ON INDIAN AFFAIRS

                       DANIEL K. INOUYE, Hawaii, Chairman

                BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

    KENT CONRAD, North Dakota            FRANK MURKOWSKI, Alaska
    HARRY REID, Nevada                   JOHN McCAIN, Arizona,
    DANIEL K. AKAKA, Hawaii              PETE V. DOMENICI, New Mexico
    PAUL WELLSTONE, Minnesota            CRAIG THOMAS, Wyoming
    BYRON L. DORGAN, North Dakota        ORRIN G. HATCH, Utah
    TIM JOHNSON, South Dakota            JAMES M. INHOFE, Oklahoma
    MARIA CANTWELL, Washington

            Patricia M. Zell, Majority Staff Director/Chief Counsel

             Paul Moorehead, Minority Staff Director/Chief Counsel

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page
    S. 2743, text of.................................................     3
    Statements:
        Bowekaty, Malcolm B., Governor, Pueblo of Zuni, Zuni, NM.....    40
        Brown, David, Brown & Brown Law Offices, Pinetop, AZ.........    49
        Brown, Norman Ray, Lyman Water Company, St. Johns, AZ........    49
        Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
          vice chairman, Committee on Indian Affairs.................     1
        Carter, Joe, vice chairman, Arizona Game & Fish Commission,
          Safford, AZ................................................    44
        Eriacho, Wilfred, chairman, Zuni Water Rights Negotiation
          Team.......................................................    43
        Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman,
          Committee on Indian Affairs................................     1
        Kyl, Hon. Jon, U.S. Senator from Arizona.....................    37
        Marx, Jane, attorney, Zuni Tribe.............................    40
        McCaleb, Neal, assistant secretary, Indian Affairs,
          Department of the Interior.................................    37
        Odenkirk, James, assistant attorney general, Arizona Game &
          Fish Commission............................................    44
        Padilla, Pablo, special assistant, Zuni Tribal Council.......    40
        Page, Oliver, hydrologist....................................    40
        Roberts, David C., manager, Water Rights and Contracts, Salt
          River Project, Phoenix, AZ.................................    50
        Vicenti, Sr., Edison, head katchina leader...................    40
        Weldon, Jr., John B., Salmon, Lewis & Weldon, Phoenix, AZ....    50

                                    Appendix

    Prepared statements:
        Bowekaty, Malcolm B. (with attachments)......................    56
        Brown, Norman Ray (with attachments).........................    72
        Carter, Joe..................................................    83
        Kyl, Hon. Jon, U.S. Senator from Arizona.....................    55
        McCaleb, Neal................................................    86
        Roberts, David C.............................................    92
    Additional material submitted for the record:
        Nelson, Michael C., presiding judge, Superior Court of
          Arizona, Apache County (letter)............................    99

                 ZUNI INDIAN TRIBE WATER RIGHTS SETTLEMENT ACT

                                  ----------

                            THURSDAY, JULY 18, 2002

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The committee met, pursuant to other business, at 10:10
    a.m. in room 485, Senate Russell Building, Hon. Daniel K.
    Inouye (chairman of the committee) presiding.
        Present: Senators Inouye and Campbell.

     STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
          COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        Senator Campbell [assuming Chair]. We'll now move to Senate
    Bill 2743, the Zuni Indian Water Rights Settlement Act of 2002.
    Maybe I'll just say a few words on it. The chairman is absent.
        Last session this committee and the Congress passed
    legislation to settle treaty-based water claims for other
    tribes--the Southern Utes--in our State. I'm very happy to say
    the President signed that in the year 2000. I think it really
    set a precedent for negotiated settlements on water among
    tribes, States, and the Federal Government.
        Like the Zuni claims, those tribes involved a number of
    people and a lot of discussions, but it was a good bill, and
    I'm interested in encouraging negotiated settlements and I look
    forward to hearing from Secretary McCaleb and our other
    witnesses this morning.
        Senator Inouye is now off the phone, so I will return the
    gavel, Senator.

     STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
                 CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        The Chairman. S. 2743, a bill to approve the settlement of
    the water rights claims of the Zuni Indian Tribe in Apache
    County, Arizona, and for other purposes, will now be taken up.
        On August 28, 1984, the United States established a
    reservation for Zuni Indian Tribe in Apache County, AZ, for the
    purpose of enabling the members of the Zuni Tribe to continue
    their centuries-old religious and sustenance practices. In
    order to sustain life on the reservation, there must be access
    to water. However, the water rights of all water users in the
    Little Colorado River Basin in Arizona have been the subject of
    an ongoing stream adjudication since 1979.
        In an effort to reach a final resolution of the various
    claims to water rights, the parties that will be affected by
    this bill entered into negotiations which have culminated in a
    settlement agreement. This legislation would ratify that
    settlement agreement, which provides not only for the
    resolution of the water rights, claims of the Zuni Indian
    Tribe, but also provides a means for assisting the tribe in
    acquiring surface water rights to provide the tribe's use of
    groundwater and provide for the restoration of wetlands located
    on the tribe's lands.
        [Text of S. 2743 follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(s) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(s) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(s) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(s) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(s) NOT AVAILABLE IN TIFF FORMAT]

    [GRAPHIC(s) NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Our first witness, we have the most
    distinguished senator from the State of Arizona, the Honorable
    Jon Kyl.
        Senator Kyl, it is a pleasure to have you here, sir.

          STATEMENT OF HON. JON KYL, U.S. SENATOR FROM ARIZONA

        Senator Kyl. Thank you very much, Mr. Chairman and Senator
    Campbell. Mr. Chairman, you have just described the settlement.
    Let me put my statement in the record and really summarize it.
        You correctly noted that the purpose of this settlement is
    to provide a wetlands area for the Zuni to come to Arizona as
    part of their reservation there and engage in religious
    practices. They need water in order to recreate this wetlands
    area, and the settlement provides financial support for them to
    buy the water rights and settles any claims between the other
    water users in the area and the Zuni with respect to those
    water rights. It is agreed to by all of the parties, and I
    believe it will have the support of the U.S. Government, and
    therefore I would ask for the committee's favorable
    consideration.
        I have one statement in the nature of an apology to make.
    All of the parties are most anxious to move on this as quickly
    as possible. As a result, we put a great deal of pressure on
    your staff, Mr. Chairman, and they have been wonderful in
    responding very quickly to the need to have the hearing, to
    reviewing the legislation, which they didn't receive until just
    very recently, even though the general outlines were well
    known. But I want to thank you and thank your staff especially
    for getting on this immediately to try to help the parties move
    this forward just as quickly as possible. I appreciate that
    very, very much.
        [Prepared statement of Senator Kyl appears in appendix.]
        The Chairman. Senator Campbell and I are most grateful to
    you for acknowledging the great work of the staff. We have
    known that for a long time. In fact, it may interest you to
    know that this committee has had more hearings and has reported
    out more measures than any other committee in the Congress of
    the United States.
        Senator Kyl. Mr. Chairman, if I could indulge the
    committee, would it be permissible for me to sit at the dias to
    hear the testimony of other witnesses? I'd very much like to do
    that. This settlement means a lot to me, and I want to make
    sure that----
        The Chairman. You are always welcome, sir.
        Senator Kyl. All right. Thank you very much, Mr. Chairman.
        The Chairman. And without objection your full statement is
    made part of the record.
        Now may I call upon the Assistant Secretary for Indian
    Affairs, Department of the Interior, Neal McCaleb.

      STATEMENT OF HON. NEAL A. McCALEB, ASSISTANT SECRETARY FOR
               INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

        Mr. McCaleb. Thank you very much, Mr. Chairman, Senator
    Campbell. I very much appreciate the opportunity to appear
    before the committee to discuss S. 2743, which is, as
    previously stated, a bill to authorize a water rights
    settlement for the Zuni Heaven Reservation.
        The Administration supports the bill. There are some
    provisions in the bill that will probably require some further
    discussion because of the unique circumstances of this Zuni
    land. There are three reasons that this settlement unique.
    First of all, the tribal lands will be used almost exclusively
    for ceremonial and religious purposes and will not be used as a
    homeland to accommodate tribal members. Second, the water
    rights and land area involved are relatively small. Finally,
    the settlement provides a benefit by allowing additional lands
    to be taken into trust and providing the accompanying water
    rights.
        I'm not going to read my entire testimony. It has been
    submitted for the record. I would comment that there are four
    other tribal nations in the Little Colorado Basin: The Hopi
    Tribe, the Navajo Nation, the Southern Paiute Tribe, and the
    White Mountain Apache. I would also note that this particular
    land involved in this water settlement is very sacred to the
    Zunis, and it had to do with the water that was there and the
    lake that was there that has been dried up over a period of
    time. The thrust of this water settlement is to restore these
    water rights and to restore these wetlands for their religious
    purposes.
        This reservation was established by Congress in 1984 and
    was expanded in 1990. Since 1979, the water rights in the
    Little Colorado have been a subject of adjudication with the
    State of Arizona.
        I would also point out that this bill authorizes Federal
    participation in the main settlement agreement, which includes
    three subsidiary agreements with the individual parties, and
    that the settlement constitutes a final settlement of water
    rights claims with the Zuni Tribe and is designed to release
    the United States from any potential claims that might be
    asserted by the tribe relative to the agreement that is reached
    here.
        The financial partners in this settlement involve the State
    of Arizona, who is participating on the order of $6 million,
    and the Federal contribution will be about $19,250,000.
        I think that I will stop with those remarks and try to
    answer any questions that the committee might have.
        The Chairman. I thank you very much, Mr. Secretary.
        [Prepared statement of Mr. McCaleb appears in appendix.]
        The Chairman. I am certain you are aware that this is not
    the only pending settlement before us relating to Arizona
    Indian Tribes. There is one involving the water rights of
    Navajo Nation, and the Hopi Tribe. There have been some who
    have suggested that once this matter is resolved for the Zunis
    that the Government might not be too anxious to resolve the
    others. I am certain that is not the case.
        Mr. McCaleb. No, Mr. Chairman; as a matter of fact, I met
    as recently as July 2 in Albuquerque with a negotiating team
    from both the Navajo Nation and the Hopi Tribe in furtherance
    of our discussions of the settlement agreement. There was some
    discussion relative to this proposed settlement with the Zuni
    at that meeting. But we are doing everything we can to advance
    and expedite a settlement agreement with both the Navajo and
    Hopi.
        The Chairman. I would like to congratulate you for the
    expeditious manner in which you have been handling the Gila
    River Indian Community and the Tohono O'odham Nation settlement
    negotiations.
        Mr. McCaleb. Thank you very much, largely due to the very
    beneficial influence of Senator Kyl.
        The Chairman. Mr. Vice Chairman.
        Senator Campbell. Thank you, Mr. Chairman.
        You mentioned the uniqueness of this bill. I guess the
    uniqueness really is that the land base of the tribe in
    question is in one State and the settlement deals with areas in
    another State, but if you look at some of the recent history of
    Colorado tribes, Wyoming tribes, I, frankly, think these
    negotiated settlements are the way to go. Protracted litigation
    in the past between tribes and States and the Federal
    Government has been expensive and contentious and just simply
    doesn't solve the problem to the satisfaction of everybody, as
    these new ways of negotiating settlements for water goes.
        There are a few problems, I guess. You mentioned years of
    negotiations between the tribe, and your testimony indicates--
    it doesn't reflect the United States position on several
    issues. Do you believe those issues can be worked out to the
    satisfaction of the parties?
        Mr. McCaleb. Yes; I do. I think there are tangential issues
    that can be resolved. I'd call them maybe more than technical,
    but they are tangential issues. There is a great deal of effort
    that has been put into this settlement effort.
        Senator Campbell. You're willing to work with the tribes
    and the States involved in that?
        Mr. McCaleb. Yes.
        Senator Campbell. Okay. Thank you.
        Senator Domenici has introduced legislation which I
    cosponsored, as well as several other members of the committee,
    entitled, ``The Federal Integrity in Indian Claims Settlement
    Act.'' It is S. 1186, if you are interested in looking at that.
    It provides a budgetary mechanism to ensure the funds will be
    there to satisfy the Federal Government's responsibilities with
    respect to negotiated settlements and disputes related to
    Indian water rights.
        Have you had a chance to look at that? I was going to ask
    if you support that measure.
        Mr. McCaleb. Senator, I have not seen the bill. I will take
    a look at it. I just jotted the number down and I will take a
    look at it immediately and respond to you on that.
        Senator Campbell. I would appreciate it if you would
    respond to the committee.
        Thank you, Mr. Chairman.
        The Chairman. I thank you very much.
        I have several questions, if I may, I would like to submit
    to you and your office. They are all technical questions
    relating to liability and waivers of rights and such, and I
    look forward to receiving your responses.
        Mr. McCaleb. We'll do it with utmost dispatch, Mr.
    Chairman.
        The Chairman. Thank you, sir.
        Now may I recognize Senator Kyl.
        Senator Kyl. Thank you, Mr. Chairman. Just two quick
    points.
        I very much appreciate your testimony and pledge to work
    with you. As a matter of fact, I know that one of the things
    that you have pointed out as a potential deficiency I think you
    are absolutely correct on and ready to make the change right
    now, so I think we'll have no trouble making modifications that
    might be called for.
        Second, I would like to reiterate, Mr. Chairman, that I am
    fully committed and everybody in the State of Arizona that has
    anything to do with these subjects is absolutely fully
    committed to, as quickly as possible, bringing to the Congress
    a Hopi/Navajo and other parties' settlement of their claims. As
    a matter of fact, we're going to be bothering you a lot. Right
    after Zuni we will have the Gila River and Tohono O'odham
    settlement, and hopefully not too long after that the Hopi/
    Navajo settlement, and that will resolve almost all of the
    issues in Arizona. We just can't do everything all at once, but
    both the Hopi and Navajo leaders have my solemn commitment--and
    I know that Senator McCain feels exactly the same way--that we
    will work very hard to get their issues resolved very quickly
    and be bringing a settlement to you reflecting their views, as
    well.
        The Chairman. We are prepared to be of assistance.
        Senator Kyl. Thank you.
        The Chairman. Any further questions?
        [No response.]
        The Chairman. If not, I thank you very much, Mr. Secretary.
        Mr. McCaleb. Thank you, Mr. Chairman.
        The Chairman. Our next panel consists of the Governor of
    the Pueblo of Zuni, Zuni, NM, Malcolm B. Bowekaty, and the vice
    chairman of the Arizona Game and Fish Commission, Joe Carter.
        The Chairman. Governor, it is always good to see you, sir.
        Mr. Bowekaty. I appreciate that.

      STATEMENT OF MALCOLM B. BOWEKATY, GOVERNOR, PUEBLO OF ZUNI,
      ZUNI, NM, ACCOMPANIED BY EDISON VICENTI, Sr., HEAD KATCHINA
        LEADER; PABLO PADILLA, SPECIAL ASSISTANT TO ZUNI TRIBAL
       COUNCIL; JANE MARX, ZUNI TRIBE ATTORNEY; AND OLIVER PAGE,
                              HYDROLOGIST

        Mr. Bowekaty. Good morning. On behalf of my Zuni people I
    come here before you to present a water rights settlement that
    satisfactorily requires and meets the water needs for Zuni
    Heaven's area. It is also here for restoration project that has
    been before my tribe for over a century now. As this esteemed
    committee knows, we have seen the merits of a lot of our
    requests before this body by my former governors, as well as my
    colleagues, the tribal councils to establish the Zuni Heavens
    Reservation and also the amendments to include those areas that
    were inadvertently excluded in 1990.
        Given that, we have also been working a lot with the
    different parties--the State parties, the Federal parties, as
    well as the private ranchers and the cities of St. John, Show
    Low, and Springerville. We believe that, as the Zuni Tribe,
    that this is the best that we can do, rather than going into
    protracted litigation.
        I also have with me a delegation of our top religious
    leaders that I wish to acknowledge and beg the committee's
    indulgence to recognize two of those individuals. One of those
    is Edward Vicenti, Sr., our top religious leader. If I can beg
    the committee's indulgence, I'd like for him to say 30 seconds
    worth of statements.
        The Chairman. Please.
        Mr. Vicenti. Good morning, Mr. Chairman, Vice Chairman, and
    members of the committee. Today I greet you all with a very
    happy heart. You know, this is something that has been dear to
    me because it really directly affects me as a leader of the
    Katchina group.
        I am directly affected because this is a very sacred place
    that we make a pilgrimage to on foot, and it is a place that in
    years past, over the centuries, back when my great-great-
    grandfathers were in this position, they told me about stories
    of how the place used to be like marshlands where they used to
    do their prayers, especially at night when we finally reached
    the point of our destinations. We have a prayer meeting at
    night. My great-grandparents always told me about the stories
    of how they used to do their prayers right where the springs
    used to exist, which is right now just a piece of dried land
    right now, and there was some wildlife in there like ducks and
    other frogs. When they did their prayers, it was like their
    spirits--well, they were in a spiritual form. They were being
    answered as their prayers were being recited.
        Today we get there. We have to make arrangements with a
    rancher to provide water for us so we can share the water with
    their stocks where the stocks are grazing, and we have to share
    that, and that's where we have to fetch our water because there
    is no place where we can fetch water.
        In years past, when the place still had some vegetation,
    there was a collection of seeds that we do, and also some of
    the willows that we do gather in the area. There is no longer
    existing.
        I'm very glad and happy today. My heart is happy. I'm
    pretty sure my ancestors before time also feel that way, too,
    because this is what I was told by my grandfather, who held
    this position before me--that he hoped some day maybe, if we
    are fortunate enough, that this will get restored to the place
    and condition it was at one time, with a lot of vegetation and
    wildlife, and also a place where we can officially do our
    religious thing. Right now we have to use sort of makeshift
    ponds where we have to collect our water, and also we have to
    go off-site to gather some of the sacred things that we have to
    go collect. We have to do that off-site from where we do our
    religious things.
        I am very glad today that we have come a long way, because
    I was part of the negotiation team early on as part of this
    group, to carry this ball forth. I, myself, it's very important
    to me and to our people, because it is a place that, after we,
    in this lifetime--that is a place that we all go to reside in
    spiritual form.
        I thank everybody for my opportunity.
        The Chairman. Your approval and your blessings are most
    appreciated by this committee.
        Mr. Bowekaty. As Mr. Vicenti had highlighted for us, Zuni
    Heavens and what we call Koluwala:wa is a hallowed ground, a
    sanctuary for our people. We make a lot of pilgrimages for
    that, and this settlement, negotiated settlement, has allowed
    us to judiciously as well as serendipitously allowed us to
    restore a significant portion of our original land base around
    the Zuni Heavens from willing sellers of private ranchers in
    the area, so that has been an added blessing for our tribe.
        We also look at Koluwalawa as a spiritual place for the
    genesis of our tribe for the future. Our tribe will always look
    at that. It has been a century-long struggle among other former
    governors. We have former Governor Henry Gasper back in the
    1930's that formally requested the restoration of Zuni Heavens,
    as well as the restoration of the wetlands. We also have former
    Governor Robert E. Lewis, who trailblazed a lot of ways to
    allow the tribe to secure land and resources to purchase the
    land claims area, as well as the former aboriginal areas. We
    also have former Governor Edison Laselute, who actually
    testified before this exact same committee for the successful
    passage of the Zuni Heavens Act. We also have our former
    Governor Donald Eriacho, who also maintained the fight and the
    momentum for establishing the riparian restoration program.
        The settlement actually allows the tribe to look at
    reestablishment of several critical springs within the area.
    One is called Hadinkya'a. It is the most sacred springs that we
    have.
        Our Zuni Tribe deems the entire tributary at the Little
    Colorado River, as well as the Zuni River Basin, from the
    headwaters of the Zuni Mountains, where we have the first
    formal village near the reservation, Nutria, all the way down
    to the Zuni Heavens area, as well as the waters going into the
    Grand Canyon area as a sacred area. We offer our food
    offerings, our prayers, as well as our tobacco offerings along
    the river banks in any of those areas. So, consequently, the
    confluence of the Little Colorado and the Zuni River Basin is
    the nexus for our pilgrimages. That has actually allowed us to
    secure the pilgrimage trail by getting the lands that have
    actually been offered to the tribe for purchase, since we have
    willingly taken that.
        We have also several other projects that would attempt to
    restore the wetlands. That is the reason why the bulk of the
    funds are being requested. The Zuni Tribe has invested a little
    bit over $5 million to purchase the lands, not just necessary
    for the lands but also to secure the most senior water rights
    relative to the establishment of the reservation in 1984.
    Ironically, that means that the Zuni who considered that as
    their aboriginal territory are now the junior water rights
    holders within the area. So, consequently, the settlement
    negotiation is probably the best way we can settle our water
    needs, as well as keep the rest of our neighbors whole.
        Again, the Zuni Tribal Council has been hard pressed to
    make a lot of soul-searching decisions. One is the water
    quality waivers that we have encountered. The other one is the
    taking of the lands into trust with certain sanctions.
        The Zuni Tribal Council spent a lot of time and a lot of
    hours, as well as consulted with our religious fathers to get
    the blessings, and they have made a very tough decision.
    Consequently, we are bound by their direction to approve this
    compact, and therefore we are here to present this information
    for you.
        Esteemed Senators, we have only two remaining governors in
    the history of our tribe left alive. I would like to share the
    peace and serenity that will be on their faces when we announce
    to them the successful package and the successful acceptance of
    the package to the entire Congressional process. I would love
    for this committee to recommend The Honorable Jon Kyl's
    recommendation that this committee give due passage to that.
        On behalf of our Zuni Tribe, I would like to take this last
    step to introduce the main person that has been the guiding
    force and the binding spirit between this negotiating team,
    Wilfred Eriacho, and I also have in the audience my Lieutenant
    Governor, Barton Martza. But I would like to call on Wilfred
    Eriacho to do our concluding remarks.
        I would be happy to answer any questions that the committee
    may have.
        Mr. Wilfred Eriacho.

    STATEMENT OF WILFRED ERIACHO, CHAIRMAN OF THE ZUNI WATER RIGHTS
                            NEGOTIATION TEAM

        Mr. Eriacho. [Native words.] Good morning. How are all of
    you? Senator Inouye, Senator Kyl, Senator Campbell, and the
    staff that have worked so hard with them to have this
    negotiated settlement come to fruition, [Native word], thank
    you.
        I share the happiness and joy from the heart that Brother
    Edison Vicenti expressed in his talking to you.
        My name is Wilfred Eriacho. I am the chairman of the Zuni
    Water Rights Negotiation Team. I am of the Badger Clan and
    child of the Dogwood Clan. I have both traditional and formal
    education. My Zuni tribal traditional education started from
    birth until now. My Americanized education started from seven
    years of age until now. I am an administrator with the Zuni
    Public School District in our community and have participated
    in both traditional life and the modern life of our community.
        I took on the leadership in the Zuni Water Rights
    Negotiation Team because I have personal knowledge that the
    Koluwala:wa area is the most sacred geographic area in Zuni
    Country. This is not only of modern vintage, it is a tradition
    that has been handed down to generations of Zuni people for at
    least 2,000 years. We know for a fact that the Koluwala:wa
    pilgrimage that both the governor and Mr. Vicenti referred to
    was practiced when the Spanish first came into this area on
    July 7, 1540. So this area has been extremely important to the
    Zuni people for centuries, generations of Zuni people.
        It is the geographic area where past generations of Zuni
    people have gone to live in a spiritual life. We believe that
    when I and the Zuni people that are in this audience end our
    daylight life path, Koluwala:wa area is where we are going to
    end up as spirit life forms. This is the reason why the Zuni
    people are extremely anxious to return this geographic area
    into the condition that it was when it was created in ancient
    times and designated as the homeland of the spirit life of the
    Ashuwe. I think we owe them, past generation of Zuni people who
    have passed on into the spirit life form and to the future
    generations that will assume this life form, I think we owe
    them the responsibility to get these lands back into the
    condition that they were when they were first created.
        According to the Zuni stories, Zuni knowledge, cultural
    knowledge that has been handed down to us, when that area was
    created for that purpose, the river was running swift and deep.
    There was wetland conditions all around. A sacred lake was a
    lake that was waist deep, and all the springs were active from
    the Zuni villages in New Mexico to Koluwala:wa. These springs
    are very important, because they are the conduits through which
    we communicate with the spirits that live under these springs.
        So I guess I could go on and on, but I think this is the
    information that all of us wanted to share with you. The
    governor mentioned past tribal council members. I am mentioning
    that past religious leaders--I am one of those religious
    leaders--will be most happy, you know, that this is getting
    accomplished. The present leaders that we have met with on
    several occasions are going to be extremely happy and extremely
    proud that we are going to finally see some results of our
    attempts at restoring the wetland conditions and the
    environment that would be very conducive to sustaining our
    spirit life forms in that area.
        Again, I appreciate the work that all of us did: the Zuni
    people, the committee members that served with me on this, the
    directors of the program--Dorothy Firecloud and also Joan
    Sandee. They were tireless in their efforts--the State parties,
    Senator Kyl, and everybody.
        Again, thank you very much. [Native words.]
        Mr. Bowekaty. Senator Inouye and committee, [Native words].
    Thank you.
        [Prepared statement of Mr. Bowekaty appears in appendix.]
        The Chairman. The committee is most pleased that we were
    made part of the process to bring about happiness in the Zuni
    Tribe.
        Governor, are you finished?
        Mr. Bowekaty. Yes; I am.
        The Chairman. Mr. Carter?.

     STATEMENT OF JOE CARTER, VICE CHAIRMAN, ARIZONA GAME AND FISH
        COMMISSION, SAFFORD, AZ, ACCOMPANIED BY JAMES ODENKIRK,
                       ASSISTANT ATTORNEY GENERAL

        Mr. Carter. Good morning, Mr. Chairman, Mr. Vice Chairman,
    Senator Kyl from Arizona--a person I have great admiration for
    in his total commitment to all the people of Arizona. My name
    is Joe Carter. I am the vice chairman of the Arizona Game and
    Fish Commission. My written testimony has been submitted
    previously. I would ask that it be entered in the record.
        The Chairman. Without objection.
        Mr. Carter. I would like to summarize it today, If I may,
    please.
        First, I want to thank the committee for this opportunity
    to make this statement in support of this legislation. The
    Arizona Game and Fish Commission has worked tirelessly, along
    with many others represented here today, to achieve a historic
    agreement that we believe will be the foundation for the Zuni
    Indian Tribal Settlement Act of this year.
        In authorizing the settlement agreement and making an
    appropriation to carryout the provisions of the agreement, this
    legislation, in our view, builds on the success that has
    already been achieved, and in particular will allow the Game
    and Fish and the Zuni Tribe to realize their mutual beneficial
    goals of restoring an ecologically important section of the
    Little Colorado River in eastern Arizona.
        Game and Fish enthusiastically participated in the
    settlement negotiations that have led to this agreement. The
    process was an opportunity to build on our existing efforts and
    relationships in the region to restore and maintain riparian
    habitat that are of critical importance to wildlife and fish.
        Game and Fish and the Zuni Tribe have worked cooperatively,
    shared resources to improve the conditions of a large portion
    of the river. For over 10 years the Arizona Game and Fish has
    been active in acquiring riparian habitats and water rights
    within the Little Colorado River drainage. Our objective has
    been to use these water rights to protect minimum flows in the
    river, to encourage the reestablishment of native vegetation,
    and to return the channel, along with eroded banks, to a more
    natural condition, all with the eventual goals of protecting
    sensitive wildlife species.
        We have found that diverse populations of wildlife have
    come back to these areas of the river because the flows have
    become more predictable.
        It is our hope that these efforts will eventually lead to a
    recovery of listing of native fishes that historically were
    found throughout the Little Colorado River watershed. It is our
    opinion that the recovery of these species depends upon
    restoring additional portions of the river to help increase
    perennial flows and to restore the natural hydrograph.
        The Settlement Act will provided a needed support toward
    this effort. It will authorize significant funding for the
    tribe to accomplish similar restoration projects on this
    property. The funding will be used for the Zuni Tribe to
    redevelop and maintain wetlands, conditions that previously
    existed within its natural Zuni Heaven Reservation. The Zuni
    restoration project at its sacred lake will include rebuilding
    the channel of the Little Colorado River, enhancing river
    flows, and reintroducing native wildlife and plant species
    which are essential to the tribe's religious and sustenance
    activities.
        Game and Fish looks forward to a cooperative relationship
    with the tribe and assisting the tribe in its endeavor.
        Under the settlement agreement, Arizona Game and Fish
    agrees as part of its continuing stream rehabilitation project
    to an expend over $6 million over the next 15 years and to
    acquire additional land and water rights with the express
    commitment to transfer as much as 1,000 acre feet of water to
    the Zuni Tribe for its wetland restoration project.
        Game and Fish will also work cooperatively and share
    information so that the Zuni Tribe can be assured that any
    proposed acquisition that Game and Fish makes under the
    settlement agreement will likely result in excess water that
    can be used at the Zuni's wetland project, and that the water
    quality in the Little Colorado River remains in the acceptable
    standard.
        Our anticipated funding source for the settlement agreement
    is the Arizona Heritage Fund, which is a dedicated source of
    money that is administered by the Arizona Game and Fish and is
    used for property acquisition and projects that are intended to
    benefit sensitive wildlife and their habitats.
        In addition to the conservation agreements, Game and Fish
    will receive some measure of security in settling claims
    adversely affecting Game and Fish water rights. The parties
    have agreed under the agreement not to object to current
    attributes of the Game and Fish water rights, which includes
    rights in various recreational lakes in the region. This is
    important for many people to enjoy sports fishing in Arizona's
    White Mountains and for the local economies to benefit from the
    increasing number of recreationists.
        The passage of this legislation, in our view, is important
    to the Arizona Game and Fish. We believe it is the catalyst
    that is necessary to allow the important work within the
    settlement agreement to proceed. Mr. Chairman, we believe that
    it represents the common goals to preserve our collective
    traditions, our values, and our heritages, and for this I urge
    passage of this legislation.
        Again, Mr. Chairman, I want to thank Senator Kyl for his
    hard work in this endeavor and your committee members.
        We would be happy to answer any questions you may have.
        The Chairman. I thank you very much, Mr. Carter.
        [Pepared statement of Mr. Carter appears in appendix.]
        The Chairman. Right now we have a vote pending, so if I may
    I would like to call a recess for ten minutes.
        [Recess.]
        The Chairman. May we resume the hearings.
        I have a question for the governor. Section 8C of the
    agreement states as follows:

        The Zuni Tribe shall not unreasonably withhold consent for
    easements and rights-of-way for roads, utilities, and other
    necessary accommodations for adjoining landowners across the
    lands unless such easements and rights-of-way will cause
    significant and substantial harm to the tribe's wetland
    restoration project or religious practices.

        Can you tell us what sort of circumstances could the tribe
    or would the tribe reasonably decline to grant such easements
    and rights-of-way?
        Mr. Bowekaty. I'll use a couple of examples that actually
    highlight why we are very amenable to that.
        On our current existing reservation in New Mexico, there is
    a private non-Indian person from the community of Raima. His
    land borders our reservation, and on the north, the east, and
    the south side of his property he has about a 200-foot-high
    mesa. The only way he can access his property is either
    building a road, maybe borrow the tramway from Albuquerque, or
    build a tunnel. The Zuni Tribe has given his access to his
    property through our reservation land. He has a 50-year-and-
    renewable lease up to 99 years of access and egress along our
    reservation side for at least 50 years, as well as up to 99
    years, so he actually has used that for over five years now,
    and he has been a good neighbor. We have had no problems.
        A similar situation exists on some property that has been
    purchased on the south side of our current reservation. The
    property is called ``Mazone Ranch.'' We have been working very
    closely with the New Mexico State Game and Fish Department, as
    well as our tribe, as well as our game and fish officers, where
    we jointly work whenever there's--there are a couple of
    sections of State grazing lands, as well as State leased lands,
    that border some of our checkerboard area. We work very
    closely. There is a country road that bisects that portion of
    the reservation. We direct all State-licensed hunters to the
    proper locations and vice versa. The State Game and Fish direct
    our tribal members to the proper sections of the tribe. We have
    that relationship.
        In this situation, that is a fair and equitable situation
    with the lands that we already have in the Zuni Heavens area,
    the State lands that have been purchased.
        We also currently lease some of those properties to the
    non-Indian ranchers in that area. We have been leasing those
    properties out for over 3 years now. We have had no problem. As
    most of the next panel will attest, we have a very good
    relationship. Consequently, I don't anticipate any situation
    where there is a right-of-way or an easement that will harm our
    neighbors or let alone the neighbors will harm us.
        The Chairman. Thank you very much.
        Mr. Carter, this bill waives sovereign immunity as far as
    the Federal Government and the tribe is concerned, but as a
    result of the Supreme Court decision in the Seminole case,
    waive the sovereign immunity of the States. In this case, the
    State has not waived sovereign immunity.
        My question is: What remedies are available to the tribe if
    the tribe feels that it needs to enforce its rights against the
    State? And in what forum could it bring suit to enforce its
    rights?
        Mr. Carter. Mr. Chairman, with your indulgence, I would
    like to refer that question to James Odenkirk, who is with me.
    He is the assistant attorney general that represents the Game
    and Fish Commission.
        The Chairman. All right.
        Mr. Carter. Thank you, sir.
        Mr. Odenkirk. Thank you, Senator. My name is Jim Odenkirk.
    I am an assistant attorney general with the State of Arizona. I
    represent the Game and Fish Commission.
        My view is that, under the settlement agreement, the tribe
    would have access to State courts to resolve conflicts
    resulting from some issue arising from the settlement
    agreement.
        The Seminole case I am familiar with, and I believe that
    refers to sovereign immunity in suits in Federal court. Most of
    the issues that would arise would be involving water right
    issues, and the State court would have primary jurisdiction
    over those matters.
        The Chairman. And the State courts are available to the
    tribe?
        Mr. Odenkirk. Certainly.
        The Chairman. I thank you very much, sir.
        Do you have any questions?
        Senator Campbell. Thank you, Mr. Chairman.
        I had the opportunity to walk over to vote with Senator
    Kyl, and I can tell you those who know him know he does not get
    involved with a bill unless he researches it completely and
    really knows the insides and outsides of a bill.
        I had some questions dealing with priority water rights and
    restoration of the ground vegetation and so on, but he answered
    them completely for me, so maybe just only let me make a short
    comment on this business of easements and rights-of-way.
        I certainly understand the tribe's concern when it comes to
    an area that is a religious area. I was thinking, when the
    governor was talking, about a mountain in South Dakota that is
    used for spiritual purposes by a number of Northern Plains
    tribes. It is called ``Bear Butte.'' One-half of that mountain
    is actually owned by the Cheyenne Tribe. The other one-half is
    owned by the State of South Dakota. There is a State visitors'
    center on their one-half of the mountain.
        It is not uncommon, when Indians are there on the Indian
    side praying, for people with binoculars and cameras and
    actually leading tour groups to the other side so they can
    watch the Indians praying. I mean, that's almost sacrilegious.
    How would you like, if you were a Catholic or a protestant, to
    have somebody come in while you're praying and take pictures of
    you in church or record what you're saying when you're making
    your prayers?
        That's what Indians actually face sometimes, Mr. Chairman.
    I know that there's a very big concern on the part of many
    tribal people, particularly spiritual leaders, about who is
    going to be on there and under what conditions, particularly
    when they are trying to do ceremonies.
        Thank you. I have no questions.
        Thank you for appearing, Governor.
        The Chairman. Thank you very much.
        Just for clarification, may I ask the deputy attorney
    general more specifically: As you know, there is no reciprocal
    provision that waives the sovereign immunity of the State of
    Arizona. The tribes' immunity is waived and the Federal
    Government's immunity is waived to allow the tribe to enforce
    its rights.
        Now, by your statement this morning, are you saying that
    the State of Arizona is waiving its sovereign immunity to
    permit to tribe to enforce its rights in court?
        Mr. Odenkirk. Mr. Senator, I am certainly not in a position
    to state that the State of Arizona has waived its sovereign
    immunity. There are certainly occasions where the State has
    waived its sovereign immunity to allow suit in State and
    Federal court, but only the State legislature would be
    authorized to waive sovereign immunity in a manner further than
    what has already occurred.
        The Chairman. When can the tribe sue the State, under what
    circumstances?
        Mr. Odenkirk. Senator, there would be a number of
    situations where the tribe could sue a State, especially if it
    was under a Federal law that Congress has expressly provided
    for the State's waiver of sovereign immunity, or in State court
    could certainly enforce provisions of the settlement agreement.
    The State has waived its sovereign immunity to jurisdiction
    under State court.
        The Chairman. Well, under section 8(a)(1), the sovereign
    immunity of the United States and the tribe are waived, but not
    the State of Arizona, and so, under your interpretation, the
    State has not waived its sovereign immunity under this
    settlement, or has it?
        Mr. Odenkirk. Senator, I don't believe the State has waived
    its sovereign immunity. The parties have not been able--the
    parties are not in a position. The State agency parties are not
    in a position to waive sovereign immunity without authorization
    of the State legislature, just as the agencies of the United
    States would not be in a position to waive sovereign immunity
    without the authority of Congress.
        The Chairman. So if the Zuni Tribe wants to sue the State
    of Arizona under the provisions of the agreement, it will have
    to go to the legislature to get approval first?
        Mr. Odenkirk. Senator, I believe if they wanted to sue in
    Federal court they would need to do so, but there is State
    court available for them to enforce the terms of the settlement
    agreement.
        This is an issue that I would need to look at and further
    review, but I don't believe that the parties to the settlement
    agreement have the authority to waive sovereign immunity as to
    suit in Federal court.
        The Chairman. Is the Zuni Tribe concerned about this
    provision?
        Mr. Bowekaty. We have thought long and hard, and I'm going
    to defer to my attorney, Jane Marx, for the technical issues,
    but we have looked at the implications and the potential
    liabilities in situations where we may need to look at that.
        Ms. Marx. Thank you, Mr. Chairman.
        The State of Arizona has no immunity from suit for
    enforcement of contracts. That's State law as I understand it
    from the early 1960's that has made that point clear. We're not
    concerned.
        The Chairman. Thank you very much.
        Do you have any further questions?
        Senator Campbell. No further questions, Mr. Chairman.
        The Chairman. I thank the panel very much.
        Mr. Bowekaty. Thank you.
        The Chairman. now may I call upon Norman Ray Brown of Lyman
    Water Company of St. Johns, Arizona, accompanied by David Brown
    of Brown and Brown Law Offices of Arizona; David Roberts,
    manager, water rights and contracts, Salt River Project of
    Phoenix, accompanied by John Weldon, Jr. of Salmon, Lewis and
    Weldon of Phoenix, AZ.
        Mr. Brown.

    STATEMENT OF NORMAN RAY BROWN, LYMAN WATER COMPANY, ST. JOHNS,
     AZ, ACCOMPANIED BY DAVID BROWN, BROWN AND BROWN LAW OFFICES,
                              PINETOP, AZ

        Mr. Norman Brown. Thank you, Mr. Chairman, Mr. Vice
    Chairman, and Senator Kyl. I appreciate being able to be here
    today. I am Norman Brown. I live in St. Johns, which is in
    Apache County in Arizona. I'm a member and represent the board
    of directors of the Lyman Water Company, which is one of the
    largest water users on the river there. I have lived there and
    am doing a fairly good job of attempting to provide for my
    family with seven children. My wife, Karen--I'm a fifth
    generation farmer/rancher there. We have an alfalfa farm to
    help us provide feed for our cattle operation.
        With me today is my brother, David, who is an attorney with
    the law firm of Brown and Brown. He is also a supervisor on the
    Apache County Board of Supervisors.
        A portion of our cattle ranch is located adjacent to the
    Zuni Heaven portion of the reservation in Arizona there, and
    for many years we have been neighbors with that property there,
    and I have never had any problems with the previous owners or
    the current owners, the Zuni Tribe.
        As my responsibilities as a member of the board of
    directors, we have for several years now been negotiating under
    this situation, and, because we control a large area in the St.
    Johns area, approximately 2,500 acres of farm when we have
    sufficient water--as everybody knows, the last several years we
    have had a dearth of that water. I represent approximately 200
    shareholders that use the water in our little valley there.
        In the late 1800's, early settlers started using the water
    for the farms in the St. Johns area and also in Eager and
    Springerville, and developed those farms. In the early 1900's
    we had an adjudication process that resulted in the Norvell
    Decree.
        I'm just making a few brief comments from the written
    comments, and I request that the committee receive my written
    testimony that I submitted earlier.
        The Norvell Decree spells out who has water rights up and
    down the river since the late 1800's. At that time the decree
    did not include or address any claims to water rights by the
    Zuni Tribe; therefore, we have been in settlement negotiations
    with the tribe during the last several years.
        I am here today to tell the committee that Lyman Water
    Company and also the small towns of St. Johns and Springerville
    and Eager, who are upstream from St. Johns, endorse the
    proposed settlement and agree that in this situation it would
    be the best.
        I believe personally that the Lyman Water Company--on
    behalf of Lyman Water Company, this settlement is good for the
    whole situation because it recognizes the Norvell Decree, still
    recognizes the water rights we have there, helps us settle as
    neighbors and, on another hand, for our small company there it
    helps to maybe quit paying the attorneys that are involved.
        Lyman Water Company controls Lyman Lake, and we have agreed
    to use that resource to help control water flows for all the
    parties involved.
        I would like to thank the committee for the work that they
    have been doing in hearing this bill. I appreciate Senator Kyl
    and all the leadership he has shown in bringing this to this
    point.
        One of the last requests I have is, if the committee has
    any authority, we need more rain in the whole area. [Laughter.]
        That would help solve a lot of things.
        That's all I have today. Thank you.
        The Chairman. I thank you very much, Mr. Brown.
        [Prepared statement of Mr. Norman Brown appears in
    appendix.]
        The Chairman. Mr. Roberts.

         STATEMENT OF DAVID ROBERTS, MANAGER, WATER RIGHTS AND
    CONTRACTS, SALT RIVER PROJECT, PHOENIX, AZ, ACCOMPANIED BY JOHN
         B. WELDON, Jr., SALMON, LEWIS AND WELDON, PHOENIX, AZ

        Mr. Roberts. Thank you, Mr. Chairman and Mr. Vice Chairman
    Campbell, members of the committee, as well as Senator Kyl--and
    I appreciate Senator Kyl very much in his, as you mentioned
    earlier, ability to work with these Indian water rights
    settlements. He has had a lot of experience. He really works on
    them well with us, and we really appreciate the opportunity to
    work with Senator Kyl on this particular settlement.
        I am the manager of the Water Rights and Contracts
    Department at Salt River Projects. I am here to present
    testimony in support of this legislation. I have submitted
    written testimony, and I would just like to highlight some of
    the major parts of that testimony that I provided for the
    record.
        The Chairman. Your full statement is part of the record
    now.
        Mr. Roberts. Thank you.
        SRP is a large, multi-purpose reclamation project
    authorized pursuant to the Reclamation Act and constructed in
    central Arizona. Pursuant to various contracts with the United
    States and the Reclamation Act, SRP operates six large storage
    reservoirs in central Arizona and is the largest water supplier
    in the Phoenix metropolitan area.
        SRP also operates several large power plants throughout
    Arizona and distributes electricity from those power plants to
    more than three-quarters of a million customers in central
    Arizona.
        You have heard quite a bit of testimony this morning about
    the history of the Zuni Indian Reservation. You've also heard
    testimony about the many benefits the settlement agreement will
    provide the Zuni Tribe, the State of Arizona, the cities and
    towns in the Upper Little Colorado River Basin, as well as the
    irrigators from the Little Colorado River Basin.
        This morning I would like to just highlight a few of the
    important parts of the settlement that we think are critical in
    settling this claim, the claim by the Zuni Indian Tribe.
        First, SRP's interest in the settlement, why the settlement
    is important to SRP; second, a short history regarding what led
    to the negotiations of the water rights claim by the Zuni
    Tribe; and, third, the importance of this settlement with
    respect to the settling parties, including the United States.
        As I mentioned earlier, one of the major responsibilities
    of SRP is to produce and distribute electricity in central
    Arizona. SRP has a significant interest in the water issues in
    the Upper Little Colorado River Basin because one of the power
    plants owned and operated by SRP is the Coronado Generating
    Station located near St. Johns about 15 miles upstream from the
    Zuni Indian Reservation.
        About 20 percent of the power generation owned by SRP comes
    from CGS. CGS was constructed in the mid 1970's and employs
    about 20 percent of the workforce in the area. Water for CGS is
    supplied by two well fields located near the plant, and SRP has
    pumped about 10,500 acre feet each year to supply the Coronado
    Generating Station.
        With respect to how the settlement negotiations began, as
    you heard earlier, the Zuni Heaven Reservation is a fairly new
    reservation, having been created by Congress in 1984. For many
    years, this was not much of a concern to the area water users
    because most of the current uses of groundwater and surface
    water from the Little Colorado, including SRP's use of
    groundwater for CGS, predated Congress' creation of the Zuni
    Heaven Reservation and arguably would have priority over the
    tribe's use of water in times of shortage.
        However, the arguable seniority of these upstream water
    rights to those of the Zuni Tribe was called into question in
    1994 when the Justice Department asserted a claim in the Little
    Colorado River adjudication based on the tribe's use of water
    since time immemorial. This filing brought into focus a
    potential conflict between the tribe's water uses on the
    reservation as well as those of the surrounding communities.
        In 1997, representatives of the tribe, the United States,
    SRP, and other local parties began negotiating a settlement of
    the tribe's claims.
        Last, with respect to the importance of this settlement, as
    with the other Arizona Indian water rights settlements that
    have been submitted to and approved by Congress, there are
    three important characteristics of this settlement that warrant
    its approval.
        First and foremost, the settlement resolves all outstanding
    water-related litigation between the Zuni Tribe and the other
    settling parties and settles once and for all the water rights
    of the tribe to surface water and groundwater in the Little
    Colorado River Basin in Arizona.
        Second, the settlement provides the tribe with essential
    resources to restore and maintain the religiously significant
    riparian areas on its reservation. SRP will participate in that
    restoration process by providing the tribe with $1 million to
    be used toward developing a water supply to restore the tribe's
    sacred lake.
        Third, the settlement provides certainty for the water
    users and the tribe with respect to current and future water
    uses in the basin. The settlement permits the continuation of
    existing surface water and groundwater uses in the basin. This
    is critical to the local economy of the Upper Little Colorado
    River area.
        Additionally, as part of the settlement SRP and the tribe
    will enter into a separate supplemental agreement that will
    address the terms and conditions that apply to future pumping
    by SRP and the tribe. Under this agreement, SRP has agreed to
    refrain from drilling new wells or replacement wells within a
    specific area between the reservation and the existing well
    fields utilized by CGS in order to minimize the effects of
    SRP's wells on water supplies for the reservation. The tribe
    has also agreed to restrict its pumping of groundwater in an
    area surrounding SRP's well fields in order to minimize impacts
    on water supplies for CGS.
        SRP will also undertake a groundwater quality monitoring
    program in an effort to identify future water quality changes
    in the area near the Zuni Heaven Reservation lands.
        In conclusion, the Zuni Indian Tribe and the other parties
    to this settlement have worked diligently and will continue to
    do so to achieve the numerous compromises and contributions
    necessary for settlement of the tribe's water rights claims.
    The legislation before the committee embodies the hard work of
    those parties to achieve a result that is beneficial to both
    the tribe and the local water users, enabling them to use the
    scarce resource cooperatively with consideration for the needs
    of both sides.
        SRP and the other settlement parties urge this committee to
    bring the settlement one step closer to completion by approving
    S. 2743.
        Thank you for your time. I would be happy to answer any
    questions.
        The Chairman. I thank you very much, Mr. Roberts.
        [Prepared statement of Mr. Roberts appears in appendix.]
        The Chairman. If I may ask a question of Mr. Brown, section
    9 of the bill states that certain agreements among the parties
    shall become null and void if certain prerequisites are not met
    by December 31, 2005. Among these prerequisites is the tribe's
    ability to purchase certain surface water rights and the
    severance and transfer of those water rights. Do you foresee
    that the tribe may have some difficulty in complying with these
    conditions?
        Mr. Norman Brown. I see that the tribe could very easily
    purchase some of those water rights up and down the river. It
    is a long way up and down there. It has been not feasible for
    them to try to acquire those rights up until now since they
    haven't had the resources to do so or the agreement to transfer
    those rights.
        The Chairman. So you see no problems now?
        Mr. Norman Brown. No.
        The Chairman. Thank you. And, for Mr. Roberts, is your
    organization committed to move forward expeditiously to reach
    similar settlements addressing the water rights of other tribes
    in Arizona?
        Mr. Roberts. Yes, Mr. Chairman; we very much are. We have
    been involved in a number of settlements in Arizona, currently
    working on several right now, and certainly will work
    diligently towards that.
        The Chairman. I want to commend both of your organizations
    for the expeditious manner in which you have resolved the Zuni
    water rights case. We look forward to further legislation to
    bring about settlements for other tribes.
        Mr. Vice Chairman.
        Senator Campbell. Mr. Chairman, I have no questions. They
    all seem to support the bill, so I don't have to light into
    anybody. I'm just very happy they do.
        Let me just tell Mr. Brown how much I admire your raising
    seven children on a ranch. We have a small ranch in Colorado.
    We only had to feed two, and we still had to have outside jobs,
    which meant I was either a bad rancher or they ate too much.
    [Laughter.]
        Congratulations.
        Mr. Norman Brown. Thank you.
        Senator Campbell. Thank you, Mr. Chairman.
        The Chairman. Senator Kyl.
        Senator Kyl. Mr. Chairman, I just thank you very much for
    holding this hearing. I thank the witnesses. They have worked
    very, very hard. They have done all the work. They have
    expressed appreciation to me, but, frankly, they are the ones
    who have done the hard work. It just demonstrates what happens
    when everybody has a desire to sit down and resolve their
    differences and stop paying lawyers, so in that regard this is
    a very successful conclusion. [Laughter.]
        The Chairman. That is why they call you a miracle worker,
    don't they.
        With that, and with the gratitude of this committee, the
    hearing is adjourned.
        Mr. Norman Brown. Thank you.
        Mr. Roberts. Thank you.
        [Whereupon, at 11:35 a.m., the committee proceeded to
    further business.]
    =======================================================================

                                A P P E N D I X

                                  ----------

                  Additional Material Submitted for the Record

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

         Prepared Statement of Hon. Jon Kyl, U.S. Senator from Arizona

        Mr. President, on behalf of Senator McCain and myself I am
    introducing legislation today that would codify the settlement of the
    Zuni Indian Tribe's water rights for its religious lands in
    northeastern Arizona. Congress first recognized the importance of these
    lands in 1984 when it created the Zuni Heaven Reservation (Pub. L. No.
    98-498, as amended by Pub. L. No. 101-486 (1990)). The small
    communities upstream from this Reservation have been fully
    appropriated--they have had more would-be water users than water--for
    nearly a century. The prospect of dividing this limited water with yet
    another user created great uncertainty. To resolve that uncertainty and
    to avoid expensive and protracted litigation, the Zuni Tribe, the
    United States on behalf of the Zuni Tribe, the State of Arizona
    (including the Arizona Game and Fish Commission, the Arizona State Land
    Department, and the Arizona State Parks Board) and the major water
    users in this area of Arizona negotiated for many years to produce a
    settlement that is acceptable to all parties.
        This bill would provide the Zuni Tribe with the resources and
    protections necessary to acquire water rights from willing sellers and
    to restore and protect the wetland environment that previously existed
    on the Reservation. In return, the Zuni Tribe would waive its claims in
    the Little Colorado River Adjudication. In addition, the Zuni Tribe
    would, among other things, grandfather existing water uses and waive
    claims against many future water uses in the Little Colorado River
    basin. In summary, with this bill, the Zuni Tribe can achieve its needs
    for the Zuni Heaven Reservation while avoiding a disruption to local
    water users and industry. Furthermore, the United States can avoid
    litigating water rights and damage claims and satisfy its trust
    responsibilities to the Tribe regarding water for the Reservation. The
    parties have worked many years to reach consensus and I believe this
    bill would produce a fair result to all.
    [GRAPHIC] [TIFF OMITTED] 81230.001

    [GRAPHIC] [TIFF OMITTED] 81230.002

    [GRAPHIC] [TIFF OMITTED] 81230.003

    [GRAPHIC] [TIFF OMITTED] 81230.004

    [GRAPHIC] [TIFF OMITTED] 81230.005

    [GRAPHIC] [TIFF OMITTED] 81230.006

    [GRAPHIC] [TIFF OMITTED] 81230.007

    [GRAPHIC] [TIFF OMITTED] 81230.008

    [GRAPHIC] [TIFF OMITTED] 81230.009

    [GRAPHIC] [TIFF OMITTED] 81230.010

    [GRAPHIC] [TIFF OMITTED] 81230.011

    [GRAPHIC] [TIFF OMITTED] 81230.012

    [GRAPHIC] [TIFF OMITTED] 81230.013

    [GRAPHIC] [TIFF OMITTED] 81230.014

    [GRAPHIC] [TIFF OMITTED] 81230.015

    [GRAPHIC] [TIFF OMITTED] 81230.016

    [GRAPHIC] [TIFF OMITTED] 81230.017

    [GRAPHIC] [TIFF OMITTED] 81230.018

    [GRAPHIC] [TIFF OMITTED] 81230.019

    [GRAPHIC] [TIFF OMITTED] 81230.020

    [GRAPHIC] [TIFF OMITTED] 81230.021

    [GRAPHIC] [TIFF OMITTED] 81230.022

    [GRAPHIC] [TIFF OMITTED] 81230.023

    [GRAPHIC] [TIFF OMITTED] 81230.024

    [GRAPHIC] [TIFF OMITTED] 81230.025

    [GRAPHIC] [TIFF OMITTED] 81230.026

    [GRAPHIC] [TIFF OMITTED] 81230.027

    [GRAPHIC] [TIFF OMITTED] 81230.028

    [GRAPHIC] [TIFF OMITTED] 81230.029

    [GRAPHIC] [TIFF OMITTED] 81230.030

    [GRAPHIC] [TIFF OMITTED] 81230.031

    [GRAPHIC] [TIFF OMITTED] 81230.032

    [GRAPHIC] [TIFF OMITTED] 81230.033

    [GRAPHIC] [TIFF OMITTED] 81230.034

    [GRAPHIC] [TIFF OMITTED] 81230.035

    [GRAPHIC] [TIFF OMITTED] 81230.036

    [GRAPHIC] [TIFF OMITTED] 81230.037

    [GRAPHIC] [TIFF OMITTED] 81230.038

    [GRAPHIC] [TIFF OMITTED] 81230.039

    [GRAPHIC] [TIFF OMITTED] 81230.040

    [GRAPHIC] [TIFF OMITTED] 81230.041

    [GRAPHIC] [TIFF OMITTED] 81230.042

    [GRAPHIC] [TIFF OMITTED] 81230.043

    [GRAPHIC] [TIFF OMITTED] 81230.044

    [GRAPHIC] [TIFF OMITTED] 81230.045