[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