[Senate Hearing 108-383]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-383

                      MISSOURI RIVER MASTER MANUAL

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

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                                   ON

 IMPACT SUFFERED BY THE TRIBES IN THE UPPER BASIN OF THE MISSOURI RIVER

                               __________

                            OCTOBER 16, 2003
                             WASHINGTON, DC



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                            WASHINGTON : 2003
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                      COMMITTEE ON INDIAN AFFAIRS

              BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

                DANIEL K. INOUYE, Hawaii, Vice Chairman

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

         Paul Moorehead, Majority Staff Director/Chief Counsel

        Patricia M. Zell, Minority Staff Director/Chief Counsel

                                  (ii)

  
                            C O N T E N T S

                              ----------                              
                                                                   Page
Statements:
    Claymore, Michael, tribal council representative, Standing 
      Rock Tribe, Fort Yates, ND.................................    25
    Conrad, Hon. Kent, U.S. Senator from North Dakota............     1
    Daschle, Hon. Tom, U.S. Senator from South Dakota............    10
    Dorgan, Hon. Byron L., U.S. Senator from North Dakota........     6
    Dunlop, George, deputy assistant secretary of the Army, Civil 
      Works......................................................     5
    Grisoli, Brig. Gen. William T., U.S. Army, Commander, 
      Northwestern Division, U.S. Army Corps of Engineers........     8
    Johnson, Hon. Tim, U.S. Senator from South Dakota............     3
    Smith, Chip, assistant for regulatory affairs, Tribal Affairs 
      and Environment, Office of the Assistant Secretary of the 
      Army, Civil Works..........................................     5
    Steele, John Yellow Bird, president, Oglala Sioux Tribe, Pine 
      Ridge, SD..................................................    22

                                Appendix

Prepared statements:
    Corbine, Elwood, executive director, Mni Sose Intertribal 
      Water Rights Coalition, Inc. (with attachment).............    47
    Daschle, Hon. Tom, U.S. Senator from South Dakota............    35
    Dunlop, George (with attachment).............................    51
    Frazier, Harold C., tribal chairman, Cheyenne River Sioux 
      Tribe......................................................    57
    Grisoli, Brig. Gen. William T. (with attachment).............    51
    Jandreau, Michael, chairman, Lower Brule Tribe, Lower Brule, 
      SD (with attachment).......................................    37
    Kindle, William, president, Rosebud Sioux Tribe..............    45
    Murphy, Charles W., chairman, Stand Rock Sioux Tribe (with 
      attachment)................................................    78
    Steele, John Yellow Bird (with attachment)...................69, 78

 
                      MISSOURI RIVER MASTER MANUAL

                              ----------                              


                       THURSDAY, OCTOBER 16, 2003


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:05 a.m. in 
room 485, Russell Senate Building, Hon. Kent Conrad (acting 
chairman of the committee) presiding.
    Present: Senators Conrad, Dorgan, and Johnson.

  STATEMENT OF HON. KENT CONRAD U.S. SENATOR FROM NORTH DAKOTA

    Senator Conrad. We will bring this hearing before the 
Senate Committee on Indian Affairs to order.
    I want to welcome everyone here this morning. Today, the 
committee convenes to receive testimony on the impact suffered 
by tribes in the upper basin of the Missouri River due to the 
U.S. Army Corps of Engineers' operations of the dams, as well 
as the treatment of federally reserved Indian water rights in 
the revisions to the Missouri River Master Water Control 
Manual.
    Before I begin, I want to especially thank Chairman 
Campbell and Vice Chairman Inouye for agreeing to hold this 
important hearing, as well as the committee staff for all of 
their work in preparation for this hearing.
    It is fair to say that no group of people in the Missouri 
River basin has suffered more than the American Indian tribes. 
The advent of the Pick Sloan Plan with its series of dams and 
reservoirs along the Missouri River resulted in significant 
damage to Indian land and resources. Nearly one-quarter of the 
land taken for the project was Indian land. Entire communities 
were uprooted. A way of life was destroyed.
    Vine Deloria, a well-respected scholar and an enrolled 
member of the Standing Rock Sioux Tribe, noted that the Pick 
Sloan Plan was ``the single most destructive act ever 
perpetuated on any tribe in the United States.'' Even today, 
nearly 50 years after some of the dams were constructed, the 
suffering by the Indian people along the river continues. Lake 
Sakakawea is now 19 feet below normal, and is on track to 
surpass its all-time low.
    In fact, I have just been notified that the water storage 
in the reservoirs has reached the lowest level since the 
reservoirs were filled. Marinas around the lake, including 
those owned by the Three Affiliated Tribes, are dry, and in 
some cases are more than one-half mile from the lake. It is 
certainly hard to run a marina under these circumstances. This 
is at Fort Stevenson, actually, in North Dakota. I was just 
there last week. As you can see, the marina facilities are high 
and dry. There is no water to float boats. The water has 
receded and is a long way from any of the marina facilities.
    In addition, water supplies are at risk. The community of 
Parshall on the Fort Berthold Reservation is searching for a 
new water source as their intake is coming up high and dry. 
This is a story about the town of Parshall perhaps running dry. 
I was just in Parshall as well this last week. There is a high 
level of concern about what will happen to that community 
without a water source.
    Lake Oahe, which straddles the North Dakota and South 
Dakota border, has actually now retreated from North Dakota. So 
Oahe no longer is in North Dakota. The Standing Rock Sioux 
Tribe which borders the lake was unable to irrigate crops this 
summer due to low lake levels, rendering their intakes 
unusable. Tribal land is also being eroded, exposing important 
historical sites.
    In addition to current operations, the tribes are 
rightfully concerned about the future operations of the river 
and whether their rights to utilize the water will be 
adequately considered and protected in the Master Manual 
revisions. That is really the focus of this hearing today.
    In 1908, the U.S. Supreme Court affirmed that when the 
Indian reservations were created and reserved, the right of the 
tribes to use the water was also reserved. The court noted, and 
I quote, ``Fundamentally, the United States as a trustee for 
the Indians preserve the title to the right to the use of water 
which the Indians had reserved for themselves.'' This is a very 
important court determination that was followed by other court 
determinations that reaffirmed that basic and fundamental 
concept.
    The Corps of Engineers cannot ignore the clear and 
indisputable fact that the tribes have a legal right to water 
in the basin. It is a right that has existed for more than 100 
years when the tribes signed treaties with the United States, 
and a right that was reaffirmed by the U.S. Supreme Court 95 
years ago. Those rights were never forfeited and never 
extinguished.
    For 14 years, the corps has been working to revise the 
Missouri River Master Water Control Manual. I was deeply 
involved in the initial impulse to revise the manual, putting 
pressure on the Corps of Engineers, holding up the appointment 
of the civilian head of the Corps of Engineers for many months, 
to get agreement to revise the Master Manual. I must say to 
you, never in my wildest imagination, never, would I have 
thought 14 years later we still do not have it. This is not a 
good moment for the Corps of Engineers. It is not a good moment 
for the functioning of the Federal Government. To take 14 years 
to revise the manual is just way beyond the pale. None of us 
can seriously say that this is acceptable performance.
    Professor John Davidson has summarized the importance of 
the Master Manual revisions on the tribes, and I quote, ``The 
final Master Manual may lock in the status of specific river 
uses with a firmness that is every bit as solid as many Supreme 
Court equitable apportionments,'' and based on what we have 
seen, certainly as long-lasting. The corps has previously 
stated that an estimated withdrawal of an additional 7.2 
million acre feet of water would prevent it from meeting the 
current functions along the river, yet the corps has not taken 
any measurable steps to plan for the use of water by the basin 
tribes. I think in fairness, other than those who have 
quantified their water rights, that that statement is correct.
    Instead, the corps only recognizes those water rights that 
have been quantified. Unfortunately, only three tribes out of 
30 in the basin have quantified water rights, with one tribal 
settlement awaiting congressional approval. In my judgment, the 
corps cannot selectively ignore the water rights of the other 
26 tribes in the basin. Doing so would be irresponsible and an 
abrogation of its management responsibilities. Beyond that, it 
would be an absolute failure of the trust responsibility that 
the Federal Government has with those tribes.
    The tribes fear, and rightly so, that the corps continues 
to make commitments to downstream users without regard to their 
rights, creating a situation that will make it impossible for 
them to access water for present and future uses.
    I look forward to hearing the testimony of the corps on 
what steps they have and will be taking to address this 
important issue in the Master Manual revisions. Before we begin 
with today's witnesses, I want to remind everyone that the 
hearing record will remain open for 2 weeks for those who would 
like to submit written testimony. So just as a reminder, the 
record will remain open for 2 weeks. The committee has received 
written testimony already from the Mni Sose Intertribal Water 
Rights Coalition, which has worked to unite tribes in the 
basin, and the President of the Rosebud Sioux Tribe, that will 
be included in the record.
    With that, I want to call to the witness table, and let me 
just indicate for the record that Senator Daschle intends to be 
here to testify. Senator Johnson is already here. I would ask 
Senator Johnson to make whatever statement he would like to 
make at this point. While he is doing that, I would ask George 
Dunlop, the deputy assistant secretary of the Army, to come 
forward to the witness table and to be joined by Brigadier 
General William Grisoli, the Commander of the Northwestern 
Division of the Corps of Engineers.
    Senator Johnson, welcome.

 STATEMENT OF HON. TIM JOHNSON, U.S. SENATOR FROM SOUTH DAKOTA

    Senator Johnson. Thank you, Senator Conrad, for chairing 
this hearing and for your excellent remarks this morning. I am 
pleased that my senior colleague, Senator Daschle, will be 
joining us. He has played a very active role in Missouri River 
and Native American concerns. His input and leadership is 
essential and I am glad that he is involved in this hearing as 
well.
    There are a lot of individuals who traveled far for this 
hearing this morning. I want to take particular time to welcome 
Oglala Sioux President John Yellow Bird Steele. President 
Steele's presence reminds us that the tribes with an interest 
in the Missouri River are not just tribes who happen to have an 
immediate site located on the river, but that our tribes in 
South Dakota have treaty rights involving Missouri River water, 
whether they are a few miles from the river or whether they are 
on the river.
    Standing Rock council member Mike Claymore, welcome. 
Standing Rock administrative officer Cynthia Moore and Standing 
Rock BLM director Everett Iron Eyes is here. Additionally, we 
have several representatives from the Rosebud Tribe, as well as 
representatives from Mni Sose Intertribal Water Rights 
Coalition, including Executive Director Elwood Corbine. I want 
to thank them for their written testimony.
    Mr. Chairman, we are also accepting testimony from Chairman 
Mike Jandreau of the Lower Brule Tribe in South Dakota. I 
appreciate their important insights on this critically 
important matter.
    I would like to welcome George Dunlop and General Grisoli 
to the Committee on Indian Affairs. When I last met with 
General Grisoli, he was a colonel. Congratulations on your 
promotion and your new position as Commander of the 
Northwestern Division of the U.S. Army Corps of Engineers. 
Truly, this is a daunting task, but I know that you will listen 
and consider carefully the tribal concerns that will be 
articulated so well here today.
    Binding together all of us who care about the future of the 
Missouri River to a common principle of stewardship and balance 
is critical to the sustainability of the river. To accomplish 
that shared goal, earlier this year Senator Dorgan and I 
introduced legislation to establish a long-term river 
monitoring program directed at the incredibly diverse Missouri 
River ecosystem. The legislation will leverage the expertise of 
the Missouri River Basin States and the expertise of our Indian 
tribes to monitor the environmental conditions of the river. We 
fully understand the negative impacts on wildlife, river 
species, cropland and cultural resources from the construction 
of the Pick Sloan dams.
    What is less understood and therefore urgently needed is a 
framework for comprehensively examining the success of 
recovering wildlife and returning portions of the river to a 
more natural state. The tribes located along the Missouri River 
and all tribes within the Missouri River Basin, have a keen and 
undeniably strong understanding that future management 
decisions not further degrade the river. I envision this bill 
as binding together tribes, local stakeholders, the States and 
wildlife experts to give us a complete picture of how we can 
improve and enhance the Missouri River's diverse ecosystem.
    After 14 years of indecision and inaction, I greet with 
frankly some skepticism the recent pronouncements and promises 
of millions of dollars in Federal funds to rehabilitate and 
restore river bottomlands. A monitoring program is needed to 
give all river users an ability to hold accountable the corps' 
newfound commitment to restoring the health of one of America's 
longest rivers.
    I look forward to the testimony today. I will be submitting 
questions for the record in expectation of written responses.
    Thank you, Mr. Chairman.
    Senator Conrad. Thank you, Senator Johnson, and thank you 
for the leadership that you have shown on this issue and so 
many others that affect Indian country. We thank you for your 
very active involvement on this committee as well.
    With that, we want to again welcome our first panel, George 
Dunlop, the deputy assistant secretary of the Army for Civil 
Works, who is accompanied by Chip Smith, the assistant for 
regulatory affairs, Tribal Affairs and the Environment, the 
Office of the Assistant Secretary, and Brigadier General 
William Grisoli, the Commander, Northwestern Division, the 
Corps of Engineers.
    I took with interest the statement of Senator Johnson that 
when he first met you, you were a colonel. We hope that you do 
not return to that status after the hearing today. [Laughter.]
    Senator Conrad. That is a joke. [Laughter.]
    Senator Conrad. Welcome, Mr. Dunlop. Please proceed with 
your testimony.

 STATEMENT OF GEORGE DUNLOP, DEPUTY ASSISTANT SECRETARY OF THE 
  ARMY, CIVIL WORKS, ACCOMPANIED BY CHIP SMITH, ASSISTANT FOR 
REGULATORY AFFAIRS, TRIBAL AFFAIRS, AND ENVIRONMENT, OFFICE OF 
        THE ASSISTANT SECRETARY OF THE ARMY, CIVIL WORKS

    Mr. Dunlop. Thank you, sir. General Grisoli might deserve 
the Silver Star after this hearing. [Laughter.]
    Thank you, Mr. Chairman, and good morning to all of you 
here and to your other guests. As you have indicated, my name 
is George Dunlop and I serve as deputy assistant secretary of 
the Army for Civil Works, and have a responsibility to exercise 
policy direction and oversight for the civil works activities 
of the Army Corps of Engineers.
    As you also indicated, I am accompanied by Chip Smith, who 
is an assistant in the Office of the Assistant Secretary. Chip 
has been instrumental in assuring that the Department of the 
Army appropriately considers the interests of Native Americans 
in all the work that we do, and particularly in the matters 
that are of interest to this committee today, as you have 
articulated them.
    Of course, General Grisoli is the Commander of the 
Northwestern Division, and ultimately is the chief officer 
responsible for executing and carrying out the laws that the 
Congress has provided for in these matters.
    General Grisoli and I would request that our formal 
prepared testimony be submitted for the record, and we will 
both summarize our remarks today, our joint testimony.
    Senator Conrad. We are happy to make your full statements 
part of the record, and we are pleased to have you summarize.
    Mr. Dunlop. Thank you, Mr. Chairman.
    Before I do summarize, however, I wonder if I could attend 
to one other ministerial duty. When I last appeared before your 
committee here, Senator Inouye made a request of the Army. He 
said:

    Would you all consider appointing a single professional 
person to be the tribal liaison for the headquarters of the 
Corps of Engineers in Washington?

    I want to report to you, Mr. Chairman, that we did that, 
and in fact about 6 months ago Dr. Georgeanne Reynolds assumed 
her position as tribal liaison in the Office of Tribal Affairs 
at the headquarters USACE. If I could, I would like to 
introduce Dr. Reynolds to the committee and to your other 
guests.
    Senator Conrad. Very well. We are pleased to have that bit 
of business conducted here today, and we very much welcome Dr. 
Georgeanne Reynolds. We look forward to working with you, and I 
am delighted that you have made this decision.
    Let me say this. Senator Dorgan has joined us now. I am 
advised that Senator Daschle will be here in about 5 minutes. I 
would just ask the indulgence of the panel, and turn to Senator 
Dorgan for any comments that he might want to make, and then 
Senator Daschle may very well be here. As you know, the 
protocol before any committee is to recognize members. 
Certainly the Democratic leader would be recognized upon his 
arrival here, and then we would proceed with your testimony.

  STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH 
                             DAKOTA

    Senator Dorgan. Mr. Chairman, thank you very much. I regret 
I was delayed because of other committee work. Let me just be 
mercifully brief here. I know that you have probably given a 
statement and captured all of the relevant issues. The issue of 
the Missouri River Master Manual and its impact on tribal water 
rights is a really important issue.
    Water policy is controversial and it is controversial 
because of its importance. I think this is a critically 
important hearing to hold at this time, because of where the 
Corps of Engineers is with respect to the rewrite of the Master 
Manual. They are now under court order to finish that by March 
of next year, after only 12.5 years. We will see how well the 
Federal court does. I know how well the Congress has done 
persuading the court to finish the project, but we will see how 
well the Federal court does in enforcing this deadline. My hope 
is that this gets finished and that when it is finished we have 
a Master Manual rewrite that addresses all of the issues in an 
appropriate way, and that includes especially the impact on 
tribal water rights.
    So Mr. Chairman, thank you for chairing this hearing.
    Senator Conrad. Thank you, Senator Dorgan.
    Why don't we proceed, Mr. Dunlop, with your testimony?
    Mr. Dunlop. And when Senator Daschle arrives, we will 
withhold.
    Senator Conrad. If you are close to the end, we will 
continue. If not, we will break.
    Mr. Dunlop. I will be brief also, because I am summarizing 
my remarks.
    Mr. Chairman and other members of the committee, as you all 
know the Missouri River Master Manual, we call it the Water 
Control Manual, is the guide that is used by the corps to 
operate the mainstem of the Missouri River. The first Master 
Manual was published in 1960. It was revised again in 1975 and 
1979, principally to address some flood control issues. Then in 
1989, as you all have alluded to, about 14 years ago, going on 
15 years, the corps began attempts at further revision to 
update the Master Manual to accommodate the Missouri River 
Basin needs and to assure compliance with all of the laws and 
statutes, including especially the Endangered Species Act, 
which had come to have an impact in the way the river was 
operated.
    As part of that process, revised a draft environmental 
impact statement was completed in August 2002. As you know, 
that EIS process is thoroughly transparent and involves an 
extensive series of public hearings, meetings, workshops with 
all of those people and individuals and interests that have a 
stake in the operation of the river. And especially, Mr. 
Chairman, the public consultation process included extensive 
tribal consultations, hearings, workshops, informational 
meetings, and tribal summits. Indeed, a tribal summit to 
consider the new draft biological assessment that the corps is 
soon to deliver to the Fish and Wildlife Service will be held 
on October 31 in Rapid City, SD.
    Since 1999, in this current cycle of trying to revise the 
Master Manual, there have been 30 such tribal meetings, the 
list of which we have incorporated into our formal testimony. 
Of course, there have been scores of other informal meetings. 
These tribal meetings affirm the commitment made by President 
Bush in his November 12, 2001 proclamation attesting to the 
sovereignty of the tribal governments, and also in accordance 
with the chief of engineers' Policy Guidance Letter Number 57, 
which affirms and acknowledges the same and mandates that 
consultation with tribes prior to this kind of decisionmaking 
that pertains to the Missouri River Master Manual.
    The Army and the corps are committed to fulfill our legal 
responsibilities to the tribes, and will continue to consult 
with the tribes and with tribal leaders, as they are the duly 
elected representatives of tribal people in their sovereign 
capacity with inherent rights to self-government.
    We will do this as we complete the entire process for the 
revision of the Master Manual. I would underscore what all of 
you have said about the intention of all the parties involved 
to arrive at a new Master Manual and to do so by the first of 
March.
    I think it is significant or important perhaps at this 
point to emphasize that there are several principles that guide 
this work that we are doing to complete this Master Manual. 
One, of course, is to carry out the enactments of Congress, the 
authorized purposes which are provided for in law for the 
operation of the river; to especially focus on the 
environmental laws that we are obliged and eager to enforce, 
including the Endangered Species Act. But also and especially 
important is the fundamental obligation that we have to do so 
in consideration of the treaties and the trust responsibilities 
that are laid forth, and for which we will faithfully carry out 
and fulfill.
    As you know, currently the corps and the Fish and Wildlife 
Service are in consultations that will inform a final 
environmental impact statement, and will in turn lead to a 
final record of decision for a new Master Manual by March.
    In addition to the water flow regimes and the balancing of 
the entire range of issues for which the Master Manual is the 
guide, the corps is also directing and developing what is 
called a programmatic agreement with the Missouri River Basin 
tribes. It is my understanding that there are about 30 tribes 
involved in this, including about 15 of the reservations that 
are immediately adjacent to the river and to the lakes. They 
are working this programmatic agreement between the tribes and 
the Advisory Council on Historic Preservation to facilitate the 
compliance with the new Master Manual and section 106 of the 
National Historic Preservation Act.
    Mr. Chairman, this concludes my summary statement. Mr. 
Smith and I, of course, will be pleased to respond to any of 
your questions. But first, if it pleases the committee, 
Brigadier General Grisoli will now address how tribal reserved 
water rights are accommodated in our Missouri River Basin.
    [Prepared statement of Mr. Dunlop appears in appendix.]
    Senator Conrad. All right. General Grisoli, welcome and 
please proceed.

 STATEMENT OF BRIGADIER GENERAL WILLIAM T. GRISOLI, U.S. ARMY, 
 COMMANDER, NORTHWESTERN DIVISION, U.S. ARMY CORPS OF ENGINEERS

    Mr. Grisoli. Thank you. Mr. Chairman and members of the 
committee, good morning. As Commander of the Northwest Division 
of the Corps of Engineers, I am pleased to be here today to 
discuss our efforts in updating the Missouri River Master 
Manual, while ensuring our trust and treaty obligations to 
federally recognized tribes are met.
    When the lands were set aside for Indian reservations, 
whether by treaty, legislation or Executive order, water rights 
were often not implicitly defined. The courts have long 
recognized, however, that such reservation of land also 
reserves by implication unappropriated water related to the 
land in order to accomplish the purposes of the reservation.
    This doctrine of implied reservation of water rights was 
first articulated in the Supreme Court decision, Winters v. 
United States. The court found that an 1888 agreement and a 
statute which created the Fort Belknap Reservation in North-
Central Montana explicitly reserved to the tribe water from the 
Milk River for irrigation purposes. The nature and extent of 
these water rights vary based upon the particular Indian 
reservation, with the objective of making the reservation a 
livable permanent homeland.
    Tribal water rights may be quantified through adjudication, 
a congressionally ratified tribal-State compact, or by direct 
congressional action. Most tribes within the Missouri River 
basin, however, have not yet sought to quantify their reserved 
water rights under the Winters doctrine, although several 
tribes in Montana and Wyoming are at various stages of the 
quantification process. The corps does not have the 
responsibility to define, regulate or quantify water rights or 
any other rights that the tribes are entitled to by law or 
treaty. The corps does not attempt to do so within the current 
revision of the current Master Manual, although the revision 
provides some flexibility to accommodate potential changes in 
water regimes.
    The current Master Manual recognizes that streamflow use on 
the Missouri River is not static, and addresses changes in its 
use accordingly. For example, when a tribe exercises and 
establishes water rights through a diversion of water from the 
mainstem reservoir system for consumption uses, then such 
diversions are treated as an existing depletion. In this way, 
the corps incorporates that depletion into its analysis of the 
overall system depletions. By incorporating such information 
into its estimates of future depletions, the corps can 
anticipate the manner in which depletions of water will affect 
the overall system, and plan for the amount of water that will 
be available to move through the system to meet the various 
project purposes, while complying with applicable law.
    The revised Master Manual will likewise incorporate such 
present and future depletions into its analysis of systems 
operations. Specifically, the revised Master Manual will be 
flexible under its adaptive management provisions to account 
for consumptive of use of the tribes at such time that their 
rights are quantified and finally established.
    Finally, I would like to emphasize that the corps fully 
recognizes the principles of tribal sovereignty and the Federal 
Government's trust responsibility to the tribes. The corps will 
continue to engage in government-to-government consultation in 
order to take into account the quantified water rights of the 
tribes in the operation of the mainstem reservoir system.
    We appreciate the opportunity to participate in this 
hearing and look forward to hearing the testimony from the 
tribal leaders and any ideas they may have regarding the Master 
Manual revision effort, especially in regard to the overall 
consultation process and our consideration of tribal water 
rights, which the Army takes very seriously.
    Mr. Chairman, this concludes my testimony. We are pleased 
to answer any questions you or members of the committee may 
have.
    [Prepared statement of General Grisoli appears in 
appendix.]
    Senator Conrad. Thank you both for your testimony.
    Let me go first to the so-called Winters Doctrine. I would 
like to ask the two of you, either one of whom can answer, what 
do you take to be the message of the Winters Doctrine?
    Mr. Grisoli. The message of the Winters Doctrine is that we 
have an obligation to ensure that tribal reservations have 
water rights from a given source, in this particular case, the 
Missouri. So when you take a look at that, we, the Federal 
Government, have trust responsibilities for tribal 
reservations. So we take this very seriously, to make sure that 
whatever document we have includes that particular doctrine.
    Senator Conrad. Let me ask you this. I have noticed that 
Senator Daschle has arrived. We will go to him immediately. Let 
me just follow-up on your answer so that the record is complete 
before we go to Senator Daschle.
    As I understand it, in the Winters decision, which is a 
Supreme Court decision in 1908, it stated that when the Indian 
tribes reserved rights to land, the tribes similarly reserved 
the right to use an amount of water needed to survive and 
prosper. Is that your understanding?
    Mr. Grisoli. Yes, sir; that is.
    Senator Conrad. All right. Just to give you a heads up, the 
next question I am going to go to is the question of the case 
of Arizona v. California, and what finding was there. What 
message did that send us as to Federal policy? Just so you have 
a heads up on where I am going with my next question.
    With that, the Democratic leader has arrived. We welcome 
Senator Daschle, who is such an important member of this 
committee. Senator Daschle?

 STATEMENT OF HON. TOM DASCHLE, U.S. SENATOR FROM SOUTH DAKOTA

    Senator Daschle. Mr. Chairman, thank you for holding this 
hearing, and thank you for your interest in this important 
issue. I want to especially thank my dear friend and colleague 
from South Dakota for all of the work that he has put into the 
question of the problems associated with the management of the 
Missouri River over the many years. No one has put greater 
leadership into this effort than the three members of the 
committee that are currently here. I acknowledge that and thank 
them for that commitment and for their leadership.
    I have a written statement that I will ask unanimous 
consent that the full statement be submitted as part of the 
record, Mr. Chairman.
    Senator Conrad. Without objection.
    Senator Daschle. I wanted to come by and just emphasize how 
critical I believe this issue is. Unfortunately, I believe the 
Corps of Engineers' management of the Missouri River has been 
nothing short of abysmal. I don't know that anybody has felt 
the brunt of that mismanagement more routinely and more 
dramatically than the reservations that border the river. It is 
absolutely essential that we fix the Master Manual, that we 
revise it this year, and that we do it in a way that 
accommodates the needs and concerns of our Indian people.
    I would argue that no one in the country has probably 
sacrificed more on the Missouri River than South Dakota's 
Indian tribes sacrificed in terms of sacred sites, sacrificed 
in terms of the economic loss, sacrificed in terms of the 
cultural repercussions of what happened when we built the dams. 
The acknowledgement of that sacrifice has yet to be made in 
full. We have begun to build a water system that will serve 
their needs, and I think that is one small way of beginning to 
address the extraordinary impact that these dams have had.
    I must say, we have a moral and a legal obligation to 
consult and to work more closely with the tribes. A government-
to-government responsibility acknowledges in large measure that 
those governments have every bit as much right to be at the 
table as any State or as anybody in the Federal Government. So 
I know that this hearing acknowledges that realization and 
again I thank the Chair for making it the priority that I know 
it is for him.
    We have an opportunity here to address these concerns and 
these needs in the Master Manual, but the only way that is 
going to happen is if every tribe, every leader is at the table 
in a way that allows full participation and an airing of these 
views, and a commitment made by the corps to change their 
approach and to recognize how important their role can be.
    Again, I thank you for giving me the chance to interrupt 
the testimony and I appreciate very much the chance to be heard 
this morning.
    [Prepared statement of Senator Daschle appears in 
appendix.]
    Senator Conrad. We especially thank you, Senator Daschle, 
for coming here and addressing this hearing and sending such a 
clear message. I think you would not be surprised to find out 
that the statements of the three of us preceding yours were 
very closely in alignment with what you have said and the 
conclusions you have reached. I think really it is impossible 
to defend the performance thus far of the corps with respect to 
management of the river. We understand they are under all kinds 
of cross-pressures. There are downstream States that have a 
different take on this.
    But look, I really do think this is fundamental. We go to 
the question I asked to begin with with respect to the Winters 
decision, the so-called Winters Doctrine, going back to a 
Supreme Court decision in 1908. I think that said very, very 
clearly that water rights are reserved along with rights to the 
land.
    Then, if I could follow up with Mr. Dunlop and General 
Grisoli, in the Arizona v. California decision, what is your 
understanding of what it said on the question of Indian water 
rights? This is some 60 years after the Winters decision.
    Mr. Dunlop. Mr. Chairman, I have consulted with my 
colleagues here at the table and none of us are familiar with 
that case. I have also consulted with Martin Cohen who is from 
the Office of General Counsel at the Corps of Engineers, the 
litigation branch, and he advises that this is a complicated 
case that we would ask that we could provide some written 
response to you, to give you an analysis of our understanding 
about that for the record.
    In the meantime, though, we would be very interested in 
being informed about your take on it and your understandings 
from it.
    Senator Conrad. Let me just say to you, I believe this is 
an important case. I will welcome your written response. I 
believe what it said was that the court recognized that the 
reserved right amounted to the water necessary to satisfy the 
future, as well as the present needs of the Indian 
reservations. It went beyond that and said that enough water 
was reserved to irrigate all of the practicably irrigable 
acreage on the reservation.
    Now, that is a standard often referred to as the PIA 
standard, practicably irrigable acreage, and that has become a 
standard for reserved water rights throughout the West.
    Now, that takes us to the next question, and that is, in 
your testimony you said that the corps recognizes the tribes 
have claims to reserved water rights and will to the extent 
permissible by law continue to operate the mainstream reservoir 
system in a way that does not preclude such claims. You say the 
tribes have claimed to reserved water rights, and the corps 
will, to the extent permissible by law. Can you identify any 
existing law that in your view requires the corps to manage 
this system in a manner that would preclude tribes' claims to 
reserve water rights?
    Mr. Dunlop. I think each of us might want to take a stab at 
that, and of course we could elaborate further after we have a 
chance to give due consideration later. But I think that from 
the perspective that I would bring to that is that our 
obligation, the first principle that the corps has, that the 
Army has when the operation of the river is taken into 
consideration is to faithfully execute all the laws and 
statutes. As you indicated in your comments, this creates a 
circumstance for the corps which is in some ways just almost 
impossible because there are conflicting interests and uses and 
statutes that require us to balance all these different laws 
and statutes, as the Manual is prepared and the river is 
operated.
    That is why when General Grisoli was discussing these 
matters, he talked about the importance of adaptive management 
as circumstances change. Within the guidelines of the Manual, 
we have to adapt to that. I think more specifically even, when 
we are talking about these reserved rights as you have been 
discussing, as General Grisoli said in his remarks, in his 
summary, he said the corps does not have the responsibility to 
define, regulate, or quantify water rights. Actually, it goes 
beyond that. They don't have the authority.
    So I think that the thrust of the testimony that we have 
presented today is that once the three methods that may be used 
to arrive at particular quantifiable rights, that is 
adjudication or by congressional action, when those 
circumstances then occur, then yes, the corps will be obliged 
to operate the flow regimes consistent with those formally 
adopted under the rule of law for water rights.
    That is the philosophy that we maintain in regard to all 
aspects of operation of the river, that we must faithfully 
execute the laws that Congress has enacted or its subordinate 
agreements such as these compacts and adjudications.
    General would you care to elaborate?
    Senator Conrad. Let me followup with you, if I could, 
before we go to General Grisoli, because I want to give him a 
chance as well, but I do not want to lose the opportunity to 
discuss, when you say you don't think the corps has the 
authority, who does have the authority?
    Mr. Dunlop. As General Grisoli testified, there are these 
three methods, as I understand it, and my understanding may not 
be perfect on this. I can be better informed, perhaps. But my 
understanding is that when these water rights are then 
quantified, that is the operative term, and that there are 
three ways that tribal entities can have their water rights 
quantified, and therefore become operative in the way that the 
corps would write and operate the Master Manual: Through 
adjudication, through a compact with the States; or by direct 
congressional action. Once any one of those or any combination 
of those result in a quantified water right, then that water 
right would have to be respected. It would take on, I presume, 
the force of law.
    Senator Conrad. Can I just say this to you, I think that is 
too narrow a view of the responsibility of the corps. When I 
look at what you have done here, it appears to me that you have 
really not done much of anything to protect rights that the 
U.S. Supreme Court has said are reserved to the tribes, number 
one; number two, in the follow-up case of Arizona v. California 
that we discussed, that they went further in defining what is 
the reserved right, and that that reserve right includes all 
practicably irrigable acreage, that gets to be I think a pretty 
clear signal to us from the United States Supreme Court as to a 
responsibility that the corps has or anybody else representing 
the Federal Government in determining what is being reserved.
    So when you go through a master manual revision, it would 
seem to me you have some obligation to go out and try to define 
what has been reserved based on previous Supreme Court 
holdings. I do not think it is adequate. The Supreme Court did 
not say, this is based on what is quantified. It did not say 
that. They said the tribes have reserved the right to this 
water, and then they followed up in the Arizona v. California 
and they said when you determine what is reserved, it is a 
broad definition. It is a broad definition.
    The fact is, tribes that have not quantified, only three 
have, you have a fourth on the cusp, out of 30, but all these 
tribes are using water, are they not? Have you done an 
assessment of how much water they are using now? Is that any 
part of this Master Manual review?
    Mr. Grisoli. Yes; we have. And what we have done, Mr. 
Chairman, we have looked at the larger number also in our 
analysis, but it is not something that is quantified in the 
Master Manual at this time.
    Senator Conrad. So it is not quantified in the Master 
Manual. Well, that is one part of the problem. Look, if you 
have gone out and done an analysis of how much water is being 
used, not only by those who have quantified, but also those who 
have consumptive uses of water, whether it is for household 
use, commercial use, irrigation, those are, it would seem to 
me, very clearly things that the previous Supreme Court 
decisions would have reserved. Would you agree with that or 
disagree with that?
    Mr. Grisoli. Mr. Chairman, the water that is depleted from 
the system is acknowledged and is calculated. It is the water 
that has not been depleted from the system that we have not 
added to the master manual. If I may, the Master Manual is a 
guide for the operation of the river, and every year the water 
flow changes, the amount of water in the system changes. That 
is why you have to have an annual operating plan. So you have 
to have this basic plan, but every year it changes. So when you 
take a look at the water in and the water out, you have to 
adjust each year as you manage it, whether it is a flood year, 
a normal year, or drought year.
    So when we look at the water rights, we recognize those 
water rights and we clearly indicate in the Master Manual that 
those rights are there and that as they are quantified and 
depletions are withdrawn, we have to modify how we operate the 
river.
    I like to look at three critical things that I always look 
at. First, are the authorized purposes, authorized by Congress. 
Second, I have to comply with environmental laws. And third, I 
have trust and treaty obligations to the Native Americans. So I 
really look at three critical things.
    The water that they have is in the system. There is not 
going to be any more water in the system. So if x number is 
quantified, that water will be withdrawn from the system and we 
will have to balance those with the other two to make sure I 
comply with all Federal laws.
    Senator Conrad. Let me just say to you, that is what raises 
a lot of concern, concern by tribes, concern by members, 
because the way you define it to me is too cramped, too narrow 
a view of the responsibility. You said in your testimony, and I 
will turn to colleagues after this question. You state in your 
testimony, the corps, and Mr. Dunlop you repeated this, does 
not have the responsibility to define, regulate or quantify 
water rights or any other rights that the tribes are entitled 
to by law or treaty.
    Let me just ask you this, is it your position that the 
corps in developing a Master Manual need not give any 
consideration to the existence or magnitude of tribal reserved 
water rights or to the fact that the existence of those rights 
may at some future point result in increased on-reservation use 
of water that would reduce the availability of water to 
downstream users?
    Mr. Grisoli. I would like to say that the key, Mr. 
Chairman, is that we recognize their water rights in the 
document. We also are willing to, and we do work with the 
tribes and will provide technical assistance to help quantify 
those water rights, and we do, as I mentioned before, in our 
overall analysis, we run models. We do take a look at 
depletions that could be taken from what is already being 
depleted or possible future depletions from the river itself, 
the mainstream itself. So we do look at that to see possible 
outcomes that might happen.
    Senator Conrad. What would happen if in the future the 
tribes collectively had claims totaling 10 million acre-feet of 
water? What would that do to your overall plan?
    Mr. Grisoli. I would offer, Mr. Chairman, as I said before, 
every year the amount of water changes. In a normal runoff 
year, you have 25 million acre-feet to runoff. That is a 
significant chunk of water to come out of that 25 million. It 
would alter the way we would have to manage. So we would have 
to take a look at that.
    Senator Conrad. But isn't that the point? You are not doing 
it now in this Master Manual as I understand it. You do not 
have that water reserved. You have what is in the system, other 
than those water rights that have been quantified by the three 
tribes. You do not really have anything reserved for the 
Indians for the future.
    Mr. Grisoli. As I mentioned, Mr. Chairman, we operate the 
river yearly. If the water is not being taken out of the system 
at this time, for us to reserve that water and to impact all of 
the other congressionally authorized purposes and the 
environmental impact, is probably not a wise way to run the 
river at this time. What you want to do as depletions come on, 
then you have to make those adjustments.
    Senator Conrad. Adjustments.
    General Grisoli. Trying to speculate how we are going to 
have to manage the other authorized purposes, given x number 
when it is not being withdrawn, is not practical.
    Senator Conrad. I understand exactly what you are saying 
and there is a logic to it. But do you see that the problem 
that this logic could lead to? That is, in the future, as 
commitments are made downstream, a right of the tribes upstream 
is compromised. In other words, unless you do an analysis now 
that says, gee, this is potential future water needs and that 
has to be taken into account as make commitments downstream. 
You may well find yourselves in a circumstance in the future in 
which so many commitments are made downstream, you cannot keep 
the fundamental commitment outlined by the U.S. Supreme Court 
to the tribes upstream.
    As I see it, that is the nub of this problem. I know it 
presents you with an extraordinarily difficult task, but as I 
look at what you have done here, I see almost nothing that has 
been done. My understanding is that in the environmental 
section here, there is a half-page devoted to the Indian water 
rights issue.
    Mr. Grisoli. Mr. Chairman, I would have to go back and look 
at the exact number, but I believe there is a lot more than 
that. We have an appendix that talks about water rights on half 
of a page, but then when you look at the whole picture of the 
tribal issues, et cetera, there are several pages that try to 
outline the impacts of the operation of the river.
    Senator Conrad. Quite apart from the number of pages, I 
think you and I both agree that is not the issue. The issue is, 
does this document faithfully reflect the commitments made by 
the Federal Government, both in terms of treaties written by 
this government and by court interpretations, the U.S. Supreme 
Court interpretations.
    Let me turn to Senator Johnson, who was here first, for any 
questions that he might have.
    Senator Johnson. No; I do not have any questions at this 
point. We may submit some to the corps, but I am pleased that 
they are now, after not having any meetings with the tribes 
this year, now do have one planned for this month. I do urge 
the corps to make an extra effort to be closely consultative 
with the tribes relative to revamping the Manual. That is my 
only concern at this point.
    Senator Conrad. Senator Dorgan.
    Senator Dorgan. Mr. Chairman, thank you very much. The 
testimony from the Corps of Engineers is interesting. I 
understand your point about how you interpret existing law and 
court decisions and your responsibilities. You, I think, 
understand our concern about the rewrite of a Master Manual 
that is long overdue. We feel that when that rewrite is 
complete, it ought to respond to all of the interests and needs 
and responsibilities.
    The failure to include provisions that would recognize 
existing rights, obligations and existing treaties with respect 
to Indian tribes would be a remarkable failure. That, it seems 
to me, must be a part of this.
    Let me ask this question. We recognize that lands were 
taken from Indian tribes and from individual Indians in pursuit 
of the Pick Sloan Plan and the development of the reservoir 
system and the series of dams. Do you not recognize that? The 
land has been taken from Indian tribes. So as a result of that, 
did the Federal Government ensure benefits to those tribes? If 
so, what are those benefits and have the tribes received those 
benefits? Have the obligations that were caused by the Federal 
Government and inherited by the Federal Government as a result 
of taking these lands been met? Tell me your impression of 
that, Mr. Dunlop, if you would.
    Mr. Dunlop. Yes, sir; I think so. What I would like to do, 
just so that I am comprehensive and don't leave any particular 
matter out that would be obvious that I had missed it, and 
therefore somebody would think we were establishing policy if 
we could respond to that in a formal way, with a written 
response.
    But yes, sir, I think that virtually everything that you 
have said, and in fact what the other members and the leader 
have said, we could concur with in the philosophy and the 
approach. We have these obligations and responsibilities under 
the treaties and trust responsibilities. We believe that in 
fact the path that the corps is on in its consultations with 
the other parties, including the public and the Fish and 
Wildlife Service, all the activities underway to bring about 
the conclusion of a new Master Manual do incorporate the 
concerns that you have expressed here, and do make provision 
for circumstances that might change such as quantified water 
rights come along.
    It might be an overstatement to say this, but I think it 
picks up the general theme of it, is what Senator Conrad 
mentioned:

    Well, what if the tribes and the people there were to 
exercise their rights under the Winters Doctrine and use the 
water to which they have senior right to the tune of 10 million 
acre-feet?

    Well, what if they took 25 million and used it for these 
purposes that were provided for in treaty and other things?
    Well, then there would be no water left. They have drained 
it dry. Ultimately, my understanding, which may not be 
complete, of the Western water law, the Winters Doctrine and 
things like that, is based upon seniority. It is my 
understanding that the tribal rights are among the most senior 
in the country.
    So therefore, everything that we do has to take that into 
account. So ultimately if those consumptive uses obtained and 
they are quantified and they use those, then the operation of 
the river will have to accommodate to that.
    Senator Dorgan. You are saying that the Master Manual will 
address that?
    Mr. Dunlop. It provides the procedure, yes. It is my 
understanding that it takes into consideration the fact that if 
senior consumptive uses are utilized under the quantified rules 
that are obtained through these three ways that we described, 
that they would have to be taken into account.
    Senator Dorgan. And if this process is consultative, then 
are the tribes satisfied that the consultations have addressed 
the issues?
    Mr. Dunlop. Sir, of course, the tribes would have to 
address that.
    Senator Dorgan. What is your impression of where you are 
with the consultative process?
    Mr. Dunlop. Well, I am very pleased at the enormous amount 
of effort that the corps has made. It has been our policy not 
only in this Administration, but in the previous one, that the 
corps and other agencies engage in a robust way with the tribes 
and their elected representatives. The 30 meetings that I 
mentioned in my testimony, plus scores of other informal 
meetings, I think are evidence of the fact that we are trying 
to be faithful to that.
    Senator Dorgan. But my question was not whether you are 
trying to be faithful. My question is where do you think you 
are with respect to the consultative process. For example, 
testimony that we will receive from the tribes, among others, 
says, and I will quote from part of one testimony from the 
Oglala Sioux Tribe, the region's largest tribe, that they will 
suffers severe harm as the result of the Corps of Engineers' 
Master Manual review and update process. And they go on to 
explain why.
    My point is that if tribes have seniority rights here with 
respect to the consumptive use of water, and you are rewriting 
a Master Manual you rewrite should reflect that. As you know, 
the tribes were here long before the Corps of Engineers ever 
designed a uniform. They actually lived on the river long 
before anybody that represented your forbears even thought of 
being here.
    Mr. Dunlop. And long before the Congress authorized and 
directed and appropriated the funds that executed all this.
    Senator Dorgan. That is true. So the tribes feel some claim 
here, and we have a process of harnessing the Missouri River 
and creating dams. We took their land. We have obligations to 
them, and you say that in the rewrite of the Master Manual 
there is a consultative process. I ask you, how is it going, 
and you say, well, you think the corps is trying hard. My point 
it, we are having testimony today from the tribes who say that 
they fear that this is going to cause severe harm. So clearly 
the consultative process is not working from the standpoint of 
the tribes. Would you agree with that?
    Mr. Dunlop. No, sir; I really could not associate with 
that, because I do believe that it is working. Ultimately, I 
guess it gets down to what is the definition of 
``consultation.'' In so much of what we do, we have had to 
focus that coming to consensus does not always mean unanimity. 
It means that people are willing to engage and make trade-offs. 
As long as they are consulted and involved in a substantive and 
a sincere way that does in a demonstrated way take into 
consideration people's earnestly held thinking, to measure its 
success, if any party does not obtain exactly what they want 
that it is a failure, well, then that is not a fair 
representation.
    Senator Dorgan. But Mr. Dunlop, there is a difference 
between not obtaining exactly what you want and alleging severe 
harm from a process.
    Let me just ask the question: You say that the corps 
recognizes that the Feds have obligations to the tribes, but 
then you also say that those obligations are recognized only if 
those obligations are quantified; Only at the point that they 
are quantified are you forced or required to adjust the 
management of the river itself or the river system. I do not 
understand. I think that is a discrepancy. Either you recognize 
obligations or you don't. There is either an obligation or 
there isn't. You recognize it or you don't. It is hard for me 
to understand that you are going to create a system to manage 
the river that you say will ignore potential senior consumptive 
use of water by those who have the right to it, but at some 
point when they use that water, you will have an accommodation 
in the Manual to allow that use. For some reason, it sounds 
like bureaucratic doubletalk to me.
    Mr. Dunlop. Well, sir, the reason that it is not is what 
General Grisoli is addressing. That is that there is no such 
thing as a fixed amount of water in that river or in any river 
in any given year.
    Senator Dorgan. But there is some amount of water, not 
fixed, but there is some amount of water, right?
    Mr. Dunlop. I would hope so. If we get into a drought of 
the 1930's, there might not be any, but right now there is 
some.
    Senator Dorgan. And if we agree on that, you also agree 
that some of that water is owed to the tribes for their use. 
Agreed?
    Mr. Dunlop. Indeed. They have rights under law and treaty 
to exercise those. That is the distinction. What I was trying 
to communicate, and if I am not successful, I apologize, but 
there is a clear connection in my mind when one says, we are 
going to make provision in our guide. We hope this Master 
Manual lasts another 30 years, for heaven's sakes. We do not 
want to have to go through what we have gone through every 
cycle, every year, every 15 years. For a long time, that Master 
Manual ought to obtain.
    So by definition, it has got to be a document that serves 
as a guide that can be adaptive to changing in different 
circumstances. So when I assert to you that it is my 
understanding that is the direction in which we are moving, now 
the General has not decided yet on this Master Manual. He is 
the deciding official. He has not put out his record of 
decision. All of the input we are having today is informative 
to that and very helpful. But ultimately when a Master Manual 
is arrived at, it will by definition have to be the kind of 
guide, the kind of document that can take into consideration 
the conundrum you have mentioned.
    Senator Dorgan. Okay. But my point it, this should not be a 
conundrum. It ought to be a certainty. There are obligations 
and rights and they ought to be a product of certainty, not a 
conundrum. How long have you been in your job, Mr. Dunlop?
    Mr. Dunlop. Only about 20 months, Senator.
    Senator Dorgan. And you understand the impatience and the 
anxiety that we share here on this panel. The same 
organization--and it is not you personally but the same 
organization--that says 12 years ago it is going to rewrite the 
Master Manual and has not done so yet, now comes to this table 
and says we are going to make provisions for the tribes' water 
rights.
    The question in our minds is, when might one do that? 
Twelve years from now? Twenty-four years from now? If a person 
is going to make provisions, it seems to me you deal with 
certainty. The certainty is that we have an obligation to the 
tribes with respect to the management of the river, and we do 
not create a new management plan that says, oh by the way, if 
at some point there is a withdrawal of water based on rights 
the tribes have, we will make provisions for that, but we will 
not assume that will happen.
    That is implausible to me. It is not good planning and it 
is not meeting your obligation to the tribes. That obligation 
is not some guesstimate. The obligation is in a treaty. It is 
in the law. And they come here and they say what you are doing 
will cause them irreparable harm. Why do they do that? Because 
they are worried you are not going to make provisions for their 
rights. You are just not going to make provisions.
    What you are going to do is you are going to say, well, 
sometime later if this happens, we will deal with it. 
``Sometime later'' with the Corps of Engineers looks to us like 
a decade, two decades, three decades. These tribes don't live 
in the long term, they live this month, this week, tomorrow. 
And they are trying to make do with this resource which runs 
right smack through their reservations, and is an enormous 
resource for them, but one which if managed improperly is a 
significant liability and detriment.
    So that is why they are here. That is why you see this 
anxiety in their testimony. I was only trying to understand the 
difference between your rather positive outlook, and again Mr. 
Dunlop, this is not personal. There are others like you who 
have sat at this table and had to see the wrath of my colleague 
Mr. Conrad or mine or others. We do not like what is going on. 
It is not right. It is not right for us. It is not right for 
the tribes, and not right for our States.
    You must, it seems to me, address each part of this in a 
satisfactory way, and there must be certainty with respect to 
the rights of the tribes. If you do not do that, this Master 
Manual is not going to work.
    Mr. Dunlop. Yes, sir; I understand and comprehend 
everything that you and the other senators and members of the 
committee have said. I appreciate all that.
    One final thought that I might offer for your 
consideration, and again there may be other people who are more 
informed about these things who could be more articulate. But 
it seems to me that if the corps were to in a Master Manual 
make an attempt to do things that it does not have authority to 
do under law, that is to quantify anybody's rights, that we 
would actually be mitigating against the interests of people 
who might have a more rule of law way, I don't know how to say 
that in words, a way that is more sound and has more legitimacy 
under the rule of law.
    As I indicated, there are three ways that the tribal people 
can be assured of quantifying their rights, this adjudication 
process, the process of a compact, or an act of Congress. If an 
agency of the Government, if people who are civil servants or 
people who are people like me who are policymakers who pass 
through our elective process, attempt to do that in a way that 
might mitigate against their right under law to establish and 
quantify these things, that might not be the path they really 
want to go if they considered it. Because the law and the 
Constitution and the other corpus of our law provides these 
three means to quantify those things, that is really in our 
view the best way to protect and defend the tribal rights to 
their reserve water.
    Senator Dorgan. Mr. Chairman, you have been very generous. 
Let me just make one final observation. I would much sooner 
fight with the Corps of Engineers, if we have to fight, over 
the fact that you did something, rather than over the fact that 
you do nothing. Historically for 1 dozen years I have served in 
the Congress, you have not moved on the Master Manual.
    General, good luck. I would not bet your star on that. I 
hope that you meet March as a deadline. I hope the Master 
Manual includes the tribal rights. My point is, you explain why 
things can't happen. We are trying to say to you that you must 
make the right things happen, as you construct this. Otherwise 
even if you meet the March deadline and you do not address this 
the right way, with all of the component parts of all the 
stakeholders, a very significant one of which is tribes, then 
you are destined to fail even if you meet the deadline. That is 
my point.
    Thank you for the time, Mr. Chairman.
    Senator Conrad. Absolutely. Maybe I can go back to this 
point and try to leave you with perhaps a firmer understanding 
of why some of us are concerned.
    General Grisoli, you talked about a stream flow of 
something like 25 million acre-feet. That is an average. Let me 
take you to the next point. Of those tribes that have 
quantified their rights, and including the one that is on the 
cusp of quantifying, how much has been reserved for them? Do 
you know? How much has been committed?
    Mr. Grisoli. The water is committed as required, all the 
water. The water that has been identified and quantified is 
withdrawn from the system.
    Senator Conrad. How much is that?
    Mr. Grisoli. I believe it is about 1-million acre-feet.
    Senator Conrad. I am told it is 1.6-million acre-feet, if 
you take the three that have quantified, plus the one that is 
about to have its interests quantified; 1.6 million. Does that 
sound about plausible?
    Mr. Grisoli. Yes, sir.
    Senator Conrad. Okay. What if all 30 were quantified on the 
same basis of the four that either have been or are about to 
be? Do you have any idea how much that would be?
    Mr. Grisoli. I believe it is along the number that you had 
given to me before, roughly 10 million acre-feet, around that 
number, et cetera. I do not know off the record. I could come 
back to you on that.
    Senator Conrad. Okay. Let's do that.
    Based on your current analysis, I am told that you have a 
7.2-million acre-feet cushion to current operations, to meeting 
all the commitments that have been made. Is that correct? Is 
that roughly correct?
    Mr. Grisoli. It is approximately correct.
    Senator Conrad. Do you see the problem that I see?
    Mr. Grisoli. I see a requirement that will grow possibly 
over time. We recognize that again their water is in the 
system, and how the water is allocated will have to change each 
year because if you have a drought, for example, right now, the 
water flow is about 17-million acre-feet. If we go to 17 
million acre-feet, there are no winners on the river. We may 
have to come back to Congress to ask for how we are going to 
answer the authorizes purposes, because every year it changes.
    I guess that is why I feel very comfortable with saying 
that we have provisions as water requirements grow on the 
river, which they will, for not only the tribal reservations, 
but all the stakeholders, and some of the purposes. As those 
come in, we have to balance. There are Federal laws that commit 
a certain amount of water to the Native Americans. We will meet 
those. We have to meet the environmental piece also, and then 
whatever at that particular point down the road would be to 
authorized congressional purposes, that will grow over time.
    So if you try to look at it too far out, you get to a point 
in time where you really cannot have a great vision. But when 
you look at it close-in, and the amount of water being 
withdrawn, we can manage that, and we can manage anything in 
the near-term for a long period of time.
    So what I would offer is that as things change, and as one 
of those three areas authorized quantifications of water 
rights, we then are obligated to be prepared to manage that. 
Because first of all, when you do that, you have to be able to 
withdraw that water. You have to build structures. You have to 
prepare. That takes time. So even after ratification, it is not 
an automatic withdrawal. That time is what we use in 
consultation because consultation is something that is 
continuous and needs to happen every year. If it is signed this 
year, I need to have a tribal summit every year, not just this 
year, but every year, and I should do that prior to preparing 
any annual operating plan. When I do that, I then have to 
adjust.
    So when we look at the practical management over time, we 
can take these changes into effect and then move forward.
    Senator Conrad. You know what it is to have an epiphany? As 
you were speaking, I had an epiphany and I realized why we are 
having the problem we are having. You sit on that side of the 
dais and you are a very good man. I know that. I know something 
of your record, absolutely well-intentioned, and speaking from 
the heart.
    Mr. Dunlop, you are a good man. I can tell that from your 
testimony. You are being honest as you can be. The tribes are 
similarly well-intentioned and well-intended, and they have a 
totally different view of what is occurring. The epiphany I 
have had is I understand the difference. You know, where you 
stand has a lot to do with where you sit. You are in positions 
of responsibility for a relatively brief time. They have been 
living with this problem for 100 years. Their experience is so 
different from what you believe the experience will be. There 
is the problem.
    You know, you think back, in my brief career, I am in my 
17th year in the U.S. Senate, and in the 1980's we had this 
terrible drought. The corps released the increasing amounts of 
water in the depths of the drought, dramatically drawing down 
the reservoir. I had a hearing in North Dakota. It was one of 
the most intense emotional hearings I have ever conducted. 
People were irate, irate, because they found out, as I did on 
the very day of the hearing, that the corps was increasing 
their draw-downs of water in the midst of the worst drought 
since the 1930's.
    General Grisoli, you say and I know you believe it and you 
intend it to happen, that this is going to be adjusted. Those 
are words that you have used here, that you have to have a 
living document, one that adjusts, because water flows change, 
as indeed they do. The problem is, we started revising the 
Master Manual 15 years ago.
    Now, if I were sitting in your seat testifying then, and 
somebody asked me when is this Master Manual review going to be 
done, I would have said, and I think I did say to the public, a 
year or two. And now here we are 15 years later from when we 
started the process. I am talking about the entire length of 
the process.
    There is the difference. You know, Indian people are saying 
to themselves, my God, wait 1 minute. We have only got 1.6 
million acre-feet quantified. That is only 4 of the 30 tribes. 
On average, there is 25 million acre-feet, and in a drought 
year, 17 million acre-feet, and commitments are going to be 
made downstream without their rights being fully and completely 
quantified. You can see why they are worried. They see the 
possibility in the not-too-distant future, although both of you 
will be gone. I will probably be gone.
    And they will be looking around and they will be looking 
back at this testimony and they will see General Grisoli 
saying, with absolute best of intentions, this thing will be 
adjusted. But they have a sneaking suspicion that it is going 
to be adjusted against them; that their full rights will have 
been compromised by commitments downstream that did not take 
into account their needs, based on only a small number of the 
tribes having quantified in the ways that, Mr. Dunlop, you have 
described.
    That, to me, is the gap here in communication and 
understanding. You have the best of intentions, fully believe 
that it will happen in a way that is rational and fair. Their 
experience, unfortunately, is quite different. Their experience 
is every time they turn around, they get shorted. I tell you, 
as a representative of four tribes, I can tell you it is pretty 
much my experience. What is well-intended and what really 
happens are two very different things.
    Senator Johnson.
    Senator Johnson. No.
    Senator Conrad. We will go to the next panel. Thank you 
very much, and we will await your written responses to those 
things that we identified. General Grisoli, thank you very much 
for being here today.
    Mr. Dunlop. Thank you, Senator. This was all very helpful 
to us and we are very appreciative for the opportunity to 
appear before you.
    Senator Conrad. Thank you very much.
    Mr. Grisoli. Thank you, Senator Conrad.
    Senator Conrad. I want to welcome the second panel, 
including John Yellow Bird Steele, the president of Oglala 
Sioux Tribe, Pine Ridge, SD; and Michael Claymore, tribal 
council representative from Standing Rock Sioux Tribe in Fort 
Yates, ND.
    Mr. Claymore, I hope that you will forgive me if we begin 
with our representative from South Dakota. [Laughter.]
    Senator Conrad. Welcome very much. Please proceed with your 
testimony.

 STATEMENT OF JOHN YELLOW BIRD STEELE, PRESIDENT, OGLALA SIOUX 
                     TRIBE, PINE RIDGE, SD

    Mr. Steele. Thank you, Senator.
    Mr. Chairman and members of the committee, as president of 
the Oglala-Lakota Tribe, I wish to express my sincere 
appreciation for the opportunity to testify before the Senate 
committee today. I am here today to testify on the Indian water 
rights in the Missouri River basin and the concerns of the 
Oglala-Lakota people respecting the Master Manual update by the 
Corps of Engineers.
    I would like to apologize, Senator, for President Charlie 
Murphy of Standing Rock Sioux Tribe. His mother is dying and he 
needed to personally transport her to Oklahoma where she is 
from.
    Senator Conrad. I understand fully. We have been in 
communication with Chairman Murphy. Chairman Murphy had asked 
me to hold this hearing and he told me of the family emergency 
that exists, and we certainly understand. We are glad that Mr. 
Claymore is here and we appreciate your attendance as well.
    Mr. Steele. Thank you. I would like to especially thank 
you, Senator Conrad, for requesting and chairing this meeting 
and for your words, sir, and the quotes you put up there in 
relation to the operation of the Master Manual. I think you are 
very knowledgeable about the situation, Senator.
    I would like to also thank Senators Campbell and Inouye for 
their long-time leadership on the Committee on Indian Affairs 
and their support for the treaty rights of the Oglala Sioux 
Tribe. These are treaty rights, Senator, that the U.S. Supreme 
Court has said are to be interpreted as the Indian interpret 
them. This is a ruling of the U.S. Supreme Court. We say that 
there are water rights that are being violated right now by the 
Corps of Engineers in the operation of the Missouri River.
    I am also pleased that both Senators Daschle and Johnson 
can be with us here today to listen to our concerns regarding 
this important issue. I personally am very proud to call them 
friends of the Oglala Sioux people and personal friends of 
mine. I appreciate their support for our efforts to protect our 
rights against the way the Army Corps of Engineers is 
operating.
    We, the Oglala Sioux people, are extremely proud of our 
history. Our ancestors exhibited the values of courage, wisdom, 
generosity, attributes which we strive to practice today. In 
doing so, we have the legacy of our treaties. Under the Fort 
Laramie treaties of 1851 and 1868, we retained important legal 
claims to land and water in the upper Missouri River basin.
    The Oglala Sioux Tribe is the largest tribe in our region. 
Pine Ridge Indian Reservation is our homeland. Rivers and 
streams that cross our lands and join the Missouri River 
include the Cheyenne River and the White River. The Oglala 
Aquifer underlies our reservation. The Mni Wiconi Project, 
which we thank Congress for, provides drinking water to the 
reservation and includes a major intake and water treatment 
plant on the Missouri River that delivers water through a nine-
county area of Western South Dakota and to Pine Ridge, 
Roosevelt, and Lower Brule Indian Reservations. My tribe claims 
water rights to the Missouri River, its tributaries and 
aquifers that underlie our lands.
    Our water rights have been held since time immemorial, and 
well before the United States took possession of these rights 
to the Missouri River basin in the Louisiana Purchase of 1803. 
I today join the Standing Rock Tribe in claiming prior and 
paramount water rights for the irrigation of our lands, as well 
as municipal and industrial fish and wildlife, recreation, 
aesthetic, mineral and all other purposes for which water can 
be beneficially used for the general welfare and health of our 
people.
    Collectively, the Indian claims in the Missouri River may 
exceed more than half of the natural flow of the river as it 
reaches Sioux City, IA. However, on our reservation, our water 
remains largely undeveloped.
    The Corps of Engineers is developing a new Master Manual 
for the future operation of the Missouri River mainstream dams. 
Our tributaries and our aquifers drain into the Missouri River 
and become a component of the water supply regulated by the 
mainstream dams. Whether diverted from the Missouri River 
mainstream, from tributaries or aquifers, our present and 
future depletions impact the Missouri River.
    Conversely, the reliance by others on our unquantified 
unused water rights adversely impacts our ability to obtain an 
equitable future adjudication or equitable congressional 
settlement confirming our invaluable water rights. The Federal 
Government has expended considerable resources developing flood 
control and irrigation projects to supply water that is needed 
on the Pine Ridge Reservation to non- Indian water users. The 
Corps of Engineers' Master Manual will change the Missouri 
River. As of the 2002-03 annual operating plan demonstrates, 12 
million acre-feet increase of water in storage is contemplated 
before the length of the navigation season would be reduced.
    This increase from 40 million to 52 million acre-feet would 
be largely derived from claim of Indian tribes in the Dakotas, 
notwithstanding claims from those tribes that have already 
decreed or settled their water rights upstream.
    Other interests, including hydropower purchasers, 
navigation, municipalities, recreation developers, threatened 
and endangered species, and advocates of habitat improvement, 
among others, will make investments, commitments and long-term 
plans based on the new changes in the Missouri River 
operations. These changes will greatly prejudice the ability of 
the tribes, including the Oglala Sioux Tribe and the Standing 
Rock Tribe, to protect, preserve and administer or adjudicate 
or settle our prior and superior rights to the use of the water 
as the future unfolds.
    The Master Manual carefully avoids any attention to this 
issue and requests that the Secretary of the Interior address 
the matter on behalf of tribes has gone unheeded. The Master 
Manual review and update process has become a tool to lock in 
existing non-Indian water users such as downstream navigation, 
fish and wildlife, to the detriment of water users on the Pine 
Ridge and other Sioux reservations.
    The Corps of Engineers' planning documents would render our 
rights as secondary to the existing users supplied by the corps 
now, although under Federal law, our rights are prior and 
superior to non-Indian water users. This is an extreme 
injustice that must be remedied by Congress. We heard the corps 
refer to our water rights as superior just before I came up 
here, but the way the Manual is being written, we see our water 
rights as being secondary.
    The Standing Rock Sioux Tribe has shown convincingly that 
the corps' analysis of Indian water rights, environmental and 
cultural and historic impacts are fatally flawed, even though 
there has been a decade of consultation with the tribes. The 
most compelling aspect of our argument is that the Corps of 
Engineers has failed to address the impact of the Master Manual 
on Indian water rights and failed to mention any impact on the 
tribal water rights to the Missouri River tributaries.
    This is the situation of my tribe, the Oglala Sioux Tribe. 
The use of water by tribes and non-Indians in the tributaries 
have as much impact on the depletion of the Missouri River 
supply as main stem users. Conversely, the Master Manual has 
impacts upon the water rights of all tribes who have treaties 
with the United States. It is incumbent upon Congress to ensure 
that the Corps of Engineers takes no final action to enhance 
non-Indian water flows downstream without consideration of the 
water rights of the Oglala Sioux Tribe and the Great Sioux 
Nation as recognized under the Winters Doctrine.
    Let me point out another crucial issue, the desecration and 
destruction of Native American cultural resources and human 
remains along the Missouri River. The Corps of Engineers' 
operations are directly responsible for the destruction of tens 
of thousands of cultural sites of Lakota origin. The Master 
Manual review and update planning documents completely 
whitewash this heartfelt matter. There is no compliance with 
the importance provisions of the National Historic Preservation 
Act, Native American Graves Protection and Repatriation Act.
    Just in the USA Today in the South Dakota portion down 
there, the Corps of Engineers reminds people to leave these 
artifacts and human remains alone because of the drought 
situation now, and the exposure that is happening now, but have 
they contacted the tribes on any kind of remediation of this or 
repatriation of these human remains? No, they have not, not the 
Oglala Sioux Tribe. There can be no greater injury to our 
people than the destruction of cultural objects and desecration 
of human remains, yet this is happening now. The Master Manual 
revision process fails to remedy this or to provide any kind of 
mitigation.
    Also demonstrative of the Corps of Engineers' lack of 
genuine attention to the tribes is the sharp contrast of 
language in the Master Manual related to trust responsibility. 
Our treaties are with the President and Congress of these 
United States. Every Federal Department under the treaties that 
we have with the U.S. Government have a full trust 
responsibility.
    On the one hand, the Corps of Engineers states that it is 
striving to fulfill its trust responsibilities to Native 
American tribes in the Missouri River basin. On the other hand, 
it states that without a specific duty, the trust 
responsibility may be discharged by compliance with general 
statutes and regulations not specifically aimed at protecting 
tribes. This, I think, Senator Conrad, you sort of quizzed them 
on, and I did not see an answer coming to you, Senator.
    It is for these reasons that we have come before the 
committee today. I am hopeful that we can work with members of 
the committee and possibly enact legislation to protect the 
tribes and to mitigate the damages to our water rights. I would 
like to thank the committee and you, Senators, especially for 
your time.
    [Prepared statement of Mr. Steele appears in appendix.]
    Senator Conrad. Thank you for your excellent testimony. I 
have been reading it as you went along as well. You make many 
excellent points that I think will be very helpful to the 
committee.
    Next, we are going to turn to Michael Claymore, tribal 
council representative from the Standing Rock Sioux Tribe in 
Fort Yates, ND. Welcome.

 STATEMENT OF MICHAEL CLAYMORE, TRIBAL COUNCIL REPRESENTATIVE, 
           STANDING ROCK SIOUX TRIBE, FORT YATES, ND

    Mr. Claymore. Thank you, Mr. Chairman and committee members 
for holding such an important hearing. Good morning. My name is 
Michael Claymore. I am chairman of the Tribal Economics 
Committee. Mr. Murphy was invited to provide testimony, however 
due to family emergency is unable to be here. He asked me to 
thank you for holding this very important hearing and to ensure 
that the Standing Rock Sioux Tribe's testimony would be heard.
    Mr. Chairman, I wish to express the sincere and genuine 
thanks of the Standing Rock Sioux Tribe and its members for 
your continued work for the tribes in the Missouri River basin. 
We will never forget your support of the equitable compensation 
legislation for the taking of 56,000 acres of land on the 
Standing Rock Indian Reservation by the Corps of Engineers for 
the building of the dam and reservoir. Without your efforts and 
other members of the North Dakota delegation, the legislation 
would not have been possible.
    In the past, we came because the corps had taken our lands. 
We come today because the corps is taking our prior, superior 
and vested rights to the use of the water of the Missouri River 
and its tributaries. The Master Manual will adversely affect 
our future ability to use equitably, adjudicate or settle our 
invaluable rights to the use of the waters.
    Our written testimony documents the pretensions of the 
Corps of Engineers in the Master Manual to address 
environmental impacts and draws attention to the complete 
inadequacy of the scope of analysis and the errors and 
conclusions. I will list a few instances.
    No. 1, the full extent of the environmental analysis is 
presented for the tribes on the main stem Missouri River only. 
Impacts are measured on the basis of percentages of change. In 
wetland habitats, riparian habitats, fish production in the 
reservoir, fish habitat in the reservoir, flood control, water 
supply, recreation and historic properties, no impacts on our 
water rights is measured.
    No. 2, the Corps of Engineers measured economic impact of 
the Master Manual on navigation, hydropower and other purposes, 
but failed to measure the economic impact on the tribes or the 
tribes' water rights.
    No. 3, there is no quality in the limited analysis of the 
Standing Rock Indian Reservation. For example, the impact 
analysis shows flood control benefits from as low as a negative 
80 percent to as high as a plus 40 percent for the 11 
alternative studies. All the land that can be damaged by 
flooding are above the taking area line for the Oahe Reservoir 
and those areas not within the Missouri River floodplain. 
Therefore, there can be no change in the flood control impact 
for the alternatives studied by the Corps of Engineers. The 
analysis is flawed not only with respect to the numerical 
values presented, but with respect to its sensibility.
    No. 4, the impacts on water supplies are shown to vary for 
the alternative studies in detail from a plus 9 percent to a 
plus 10 percent. There is virtually no variation. I can tell 
you, however, that any change in the Master Manual would be 
much greater benefit than the conditions that exist today. The 
reservoir levels are so low that the intake for our drinking 
water is severely threatened. The intake for irrigation has 
dried up for the second time, to my knowledge, in the 1980's 
and again today. Our second crop is destroyed. This cannot 
continue. There must be an end to the Master Manual process and 
changes must be implemented to stop the draining of the 
Missouri River water away from the reservation.
    No. 5, the depletion analysis does not distinguish between 
future water use based on State permits and future water use 
based on Indian reserved water rights. While the Corps of 
Engineers may conclude that the State water rights do not exist 
until used, the same cannot be said for Indian water rights 
which do not rely on appropriations, but are currently vested 
and require preservation, protection and mitigation.
    No. 6, the Corps of Engineers has consulted for more than 
10 years with the Standing Rock Sioux Tribe. We have 
corresponded, attended meetings and have been visited by 
officials of the Corps of Engineers, including the Native 
American coordinator, and all has been to no value to the 
Standing Rock Sioux Tribe. The Corps of Engineers has proven it 
cannot analyze our environmental impacts, much less impacts on 
our invaluable water rights of the Standing Rock Sioux Tribe.
    No. 7, the Corps of Engineers in consultation with other 
Federal agencies has prepared wetland mitigation plans, fishery 
mitigation plans, plans for protection and preservation of 
threatened and endangered species, and programmatic agreements 
for cultural and historic resources. We feel that those plans, 
particularly the programmatic agreements for cultural and 
historical resources, is as deeply flawed as the environmental 
analysis for the Standing Rock. But most damaging, the Corps of 
Engineers has carefully avoided any plan to protect, preserve 
or mitigate damages to our water rights, despite considerable 
correspondence from the tribe on this subject.
    In the meantime, we are drying up. I am hopeful, Mr. 
Chairman, that these points will help underscore the insincere 
nature of the Master Manual efforts respecting the Indian 
tribes of the Missouri River basin. Mr. Steele and I believe 
many other tribes are anxious to work with you, outside the 
Master Manual, to assure the protection necessary for the 
preservation, protection and mitigation of the damages to our 
Indian water rights, our environment, our economy and our 
cultural and historic resources.
    The Indian people have great faith in you, Mr. Chairman, 
and the congressional delegation in the Dakotas. I am confident 
we can work towards this to the benefit of many. I thank you 
for accommodating my testimony.
    [Prepared statement of Mr. Murphy appears in appendix.]
    Senator Conrad. Thank you very much, Mr. Claymore. Thank 
you very much for being here and for your excellent testimony.
    Let me ask the two of you, if I could, there is obviously a 
world of difference between the perspective of the corps and 
the perspective that you have brought to this committee. This 
is about as wide a gulf in perspective as I have seen here. 
What do you think needs to be done? Mr. Steele, what do you 
think should happen next?
    Mr. Steele. Before I answer your question, I would like to 
address Senator Johnson on his words in his opening statement, 
in recognizing the Oglala Sioux Tribe by treaty as just as 
important as a tribe that sits on the Missouri River. Senator, 
I hold you in high regard, and just for your words, I trust you 
so much more and I thank you for being our Senator.
    Senator Johnson. Thank you.
    Mr. Steele. Sir, as you yourself stated to the corps, the 
way they have operated over all of the decades on the Missouri 
River without addressing treaty rights and our water rights in 
the Missouri River, we see the consultation, they call it, and 
they will put down as consultation a passing by. Yes, they did 
hold these meetings and we did attend them. They take very good 
notes and they come up with tables. These tables and all 
jimmied up and it looks like they really have done their 
homework and they have facts and figures.
    No, Senator; they do not. We know this for a fact. We are 
afraid that the way that they are going to operate that river 
is for downstream barges, for endangered species, and it is 
going to be almost impossible to get this water back if ever in 
the future we have a use for it as a tribe.
    I am thinking that we had better get together possibly with 
the States and the tribes go into recreation and fishing, and 
utilize our water rights in other ways also. There are other 
ways we can do this to address this Master Manual. But we would 
like to work with the Corps of Engineers on a very realistic 
basis, and have them in their EIS and in their Master Manual to 
recognize our rights and to really show us that they are 
serious, and they are not just playing us along and saying, 
yes, you have superior rights, but we are waiting for statutes 
or you to quantify before we can really address your water 
rights. This we believe is totally out of hand.
    Senator Conrad. Mr. Claymore, what do you think should be 
done?
    Mr. Claymore. In all due respect, I am not exactly sure how 
we should move forward. I know in the consultation process that 
the corps has had, there are a lot of our elder people who say 
that regardless of what we say, the corps will do what the 
corps is going to do. So therefore, I do not know where we go 
from here. I am really concerned about our water, about the use 
of our water and the rights that we have. You mentioned that in 
the Master Manual, we have one-half page addressing water 
rights for the Native people. I am concerned about that 
because, again, the corps had mentioned appendix. It is like it 
is put on the back burner; we need to address that, but let's 
not put it in the Manual, let's put it as an appendix. I am 
really concerned about that.
    I do think that we need to seriously address our needs, 
futuristic and current needs. That is about all I have.
    Senator Conrad. Can you tell me, in your testimony you 
indicated that you believe the corps failed to include an 
analysis of the economic impact on the tribe's water rights 
under the revised draft environmental impact statement. Has the 
tribe completed an analysis of what it believes would be the 
economic impact?
    Mr. Claymore. No; we have not, but I can tell you that our 
marinas and our irrigation are actually being severely 
threatened right now. So I guess the future of our economics is 
in the hands of the corps and how they manage the river right 
now. I think the tribe would gladly look towards analyzing that 
economic benefit more thoroughly as we move forward.
    Senator Conrad. Let's talk about things that have already 
happened, because in your testimony you indicate that the corn 
crop burned up this year, that was on irrigable land. Is that 
correct?
    Mr. Claymore. Yes, sir; that was at Fort Yates. There are 
approximately 800 acres of irrigable land there at Fort Yates, 
eight center pivots. This is not the first time it has 
happened. It happened in the late 1980's in the drought that 
you mentioned and the corps dropped the lake levels at that 
time. So this is the second time that we are without water at 
Fort Yates irrigation project.
    Senator Conrad. I go back to the testimony that the corps 
provided. They may wonder why some of us are skeptical about 
good intentions, however good the people are who have them. I 
go back to the 1980's and I remember very well finding out just 
on the day of the hearing, management of the river, that the 
corps had increased releases in the depth of the drought. You 
wonder why people are skeptical about assertions that the corps 
is going to respond and is going to make the changes necessary 
year by year.
    Now, you come before us today and you tell us that the 
tribe that has 800 acres that they have paid to irrigate, would 
seem to have a right to that water based on Supreme Court 
decisions, but the fact is the intake is now high and dry. As a 
result, you do not have the water to irrigate the corn. As a 
result, the corn burned up, as a result people have substantial 
economic losses. Is that correct?
    Mr. Claymore. Yes.
    Senator Conrad. It would not be just the corn crop that was 
adversely affected. It would also be the marina. Do you still 
have access?
    Mr. Claymore. No.
    Senator Conrad. You don't have access to the water?
    Mr. Claymore. No; we are about one-half mile from the 
water.
    Senator Conrad. Your marina is one-half mile?
    Mr. Claymore. Maybe a little less, but it is high and dry.
    Senator Conrad. Just like the picture I showed up at Fort 
Stevenson, then.
    Mr. Claymore. Yes, sir.
    Senator Conrad. It really is kind of a startling sight. You 
go there, and there is no water. You have all the facilities, 
but there is no water.
    Now, I guess what also adds to our skepticism that this is 
going to be managed in the future in a way that is fair and 
equitable, is in the 1980's, do either of you gentlemen recall 
by how much the corps reduced the navigation season downstream 
in order to respond to the crisis? Do you recall how many weeks 
the navigation season was shortened by the corps in order to 
respond to the depletion of the reservoirs?
    Mr. Steele. No, sir; downstream navigation, no we don't.
    Senator Conrad. Would this refresh your memory, that they 
reduced the navigation season by 5 weeks 3 years in a row, 5 
weeks 3 years in a row. Do you know how much they have reduced 
the navigation season now, when we have a report that the 
reservoirs have reached the lowest levels ever?
    Mr. Steele. I expect none from the previous way they have 
operated. I don't know for sure. I think 6 days.
    Senator Conrad. You said 6 days. That is the correct 
answer, 6 days. In the 1980's, when things were bad but not as 
bad as they are now, it was 5 weeks; 5 weeks then, 3 years in a 
row; 6 days now. And they wonder why we are a little skeptical 
about claims that this is going to be adjusted in the future, 
and that things are going to be dealt with fairly.
    Mr. Steele. Senator, I just went to Little Rock, AR and to 
a little town there. All of the people there, southern people, 
were coming up and saying the Federal Government has really 
treated you Indians bad in the past, throughout history. They 
have not kept their promises, their words. This happens, 
Senator, wherever we go throughout the United States, that 
people come up and say this.
    I see, Senator, your words, Senator Johnson's, and it seems 
to me the bureaucracy here that is not keeping their word once 
again. This is part of history. It is going to affect us, like 
we say, in our economics, our treaty obligations. The people of 
America are really upset and they wish that the U.S. Government 
would act according to keeping their word, but I see where the 
bureaucracy and the Corps of Engineers in their Master Manual 
update are the problem, and it is the leaders of these United 
States that want to keep their word.
    I do not know how we would go about it. We need a continued 
working relationship, Senator, and possible legislation to 
address this.
    Senator Conrad. I would just say this to you, there is no 
wonder that people are upset and skeptical. I was just at home, 
and spent the week break going town to town. The anger is 
building. I can tell you that. People have a very hard time 
understanding how it is that the economic analysis that has 
been done shows that the downstream navigation value is $7 
million; the upstream recreational value is $85 million. But 
when we have the reservoirs at the lowest levels they have been 
in history, the history of the structures, that the navigation 
season is reduced by 6 days, when in the 1980's, 3 years in a 
row, they were reduced by 5 weeks. That does not send a very 
good signal.
    Mr. Steele. Senator, we want to get that Master Manual 
completed also. It has been worked on too long here.
    Senator Conrad. Do you think 15 years is too long?
    Mr. Steele. Yes.
    Senator Conrad. We have been assured here that it is going 
to be adjusted year by year.
    Mr. Steele. Let it be completed, Senator. We have these 
fears and we see they are not changing their ways today. Or do 
we drag it on for another 15 years because of our fears, and we 
see them operating the way they are operating today, just like 
the 1980's, just like they will in 2015.
    Senator Conrad. Senator Johnson, anything that you would 
say?
    Senator Johnson. Yes; thank you, Mr. Chairman. I thank both 
the witnesses for excellent testimony today and excellent 
leadership back home.
    I would note that Councilman Claymore from Standing Rock 
Reservation, which of course straddles both North and South 
Dakota, Mike has exercised the good judgment to live actually 
on the South Dakota side of the line. [Laughter.]
    We are pleased to have his presence here as well.
    I am pleased that on top of the water issues that Mr. 
Claymore has talked about, the economic impact, and President 
Steele has talked about the problems we have with cultural 
sites. I have been to White Swan, I have been to a number of 
places, and it is all up and down the river, literally human 
remains exposed. Part of the problem is Congress needs to do a 
better job of providing the corps with the financial resources, 
but I think the corps also needs to better prioritize their 
obligations to take care of those sites. It is truly an outrage 
what has happened to so many cultural sites and the disrespect 
that this inevitably visits on the ancestors of native people.
    Let me ask President Steele, I think your testimony is 
excellent, and I do want to reiterate the moral and legal 
reality that the Oglala, while not having a riverfront 
geography to its current reservation, nonetheless is party to a 
treaty which guarantees water rights the same as if they were 
immediately contiguous to the river.
    Let me go to what strikes me as a fundamental question 
here. My natural inclination is to view things from the 
perspective of the tribes, but let me be a devil's advocate a 
bit here, because I think there is a question that we need to 
do a better job of responding to our colleagues on the 
committee and in the Senate. That is that the corps says, well, 
they acknowledge that the Indian rights to the water are 
superior. They say that is true, but they seem to be suggesting 
that because there has not been a quantification on the part of 
most tribes, that they are then not in a position to adequately 
set aside the amount of water that truly is needed because who 
knows what it is.
    Some would suggest, well, the problem then is with Congress 
and the tribes for not having, then, quantified at a large 
level or a small level or at any level, the amount of water 
that the tribes truly need and are legally required to have. 
What would you say to that argument about the key problem has 
been the inaction on the part of Congress and the tribes 
relative to quantification, rather than the problem of the 
corps in not setting aside the water? How would you respond to 
that?
    Mr. Steele. Senator, I would say that the Corps of 
Engineers, just like any other Federal department, I have said 
it before, has this full trust responsibility to the tribes 
under the treaty. There are other tribes that the Supreme Court 
says that they have trust responsibility on, some Federal 
departments the Supreme Court says, but they are Executive 
order tribes, other federally recognized tribes. Treaty tribes 
are different. I say that the corps does not need to mention 
quantification as a necessity before they can really recognize 
water rights. The McCarran amendment that the Supreme Court 
says that State courts are going to be the adjudication tool to 
quantify water, we will not use State courts. So that is going 
to be out.
    Senator Johnson. If it were to be resolved in a Federal 
court as opposed to a State court, would that make very much 
difference in terms of the tribe's inclination or 
disinclination to quantify?
    Mr. Steele. That is a possibility, Senator, yes. It is just 
the idea that State courts, who we see have a conflict in 
adjudication of these rights, that we will not use them. No, 
no, no, we will not. And so, we see the corps using the 
quantification issue as something to put our water rights to 
the back of the burner, when they are in the forefront here 
according to our treaty.
    Yes, we are willing to sit down at some point in time to 
really look at our needs in acre feet or whatever, but not at 
this point in time.
    Senator Johnson. I respect and agree with your point here. 
I do think that in a perfect world that at some point, some 
sort of just recognizing that there is a certain use it or lose 
it dynamic at work that is going on here, and I do worry that 
about the time we finally come to some concurrence about 
exactly how much water is needed, we are going to have to then 
undo previous commitments and it is going to get very 
complicated. But I do share your observations about the State 
courts. Indian tribes are not sub-units of States. They are 
sovereign nations. They have a government-to-government 
relationship with the Federal Government and they should not be 
forced into a legal system that is contrary to the whole 
underlying sovereignty of the tribes. I appreciate that.
    I also thought your thoughts, I appreciate somewhat in 
passing, but your thoughts about the potential for fish and 
wildlife agreements with States, so long as it is negotiated as 
two separate sovereign powers, is intriguing. Again, it would 
not be for me to tell the tribe or the State exactly how to do 
that, but wherever common ground can be found and strategies 
found that would be win-win, and which would indeed recognize 
the dignity and the sovereignty of the tribes and their treaty 
rights, that that is an intriguing idea. I encourage you to 
pursue that as best you can. Anytime we can broaden our 
coalition of support for a sensible water strategy that retains 
water where it has the greatest economic impact and wildlife 
and the natural impact, all the better there. So I appreciate 
that.
    Those are my only thoughts. I appreciate both of you 
articulating so well the perspective of the tribes. We will 
work with you.
    There are some areas where, while we have heaped a lot of 
criticism on the corps and much of it deservedly so, I think it 
is important that Congress look in the mirror at itself a bit 
as well, and the Administration as well, because there are 
faults on our side of the dais here as well in terms of 
politically complicating in some instances the timely pursuit 
of a revamping of the Master Manual. There have been amendments 
on the floor of the Senate and we have had some complications 
there. There also have been funding issues and funding priority 
problems which are not necessarily of the corps' making, but 
which come back to rest with us. So I want to acknowledge that 
the Congress could do better and the White House could do 
better as well as we deal with these issues.
    Nonetheless, the most immediate issue we have is the Master 
Manual. We want a timely completion of it, but we want a timely 
completion of a proper manual, of a good manual, and not a 
quick completion of a manual that is not observant of Native 
American rights and needs.
    So I thank you for what you have done here today to help 
educate us, our staff, and indirectly the entire Congress, by 
your testimony. We look forward to working with you and to see 
that we can advance a manual that best reflects our needs and 
priorities.
    Thank you again.
    Senator Conrad. Thank you, Senator Johnson. Thank you so 
much for your thoughtful comments on this issue.
    And thanks to President Steele, Mr. Claymore. Extend my 
best wishes to the chairman. I am very sorry about his mother. 
I want to thank you very much for appearing here today and to 
your assistance to this committee. I am very hopeful that 
people are listening.
    I want to thank the gentlemen from the corps who stayed to 
listen. I think that reflects well on their seriousness and 
their intentions. I believe they are men of good intentions. I 
hope in the listening that they caught a sense of the 
frustration here. It is not just a frustration of the last 
weeks or months. This is a frustration built up over many 
years.
    I hope that they think carefully about how the messages 
that are sent in this Master Manual review reverberate across 
not only Indian country, but in other parts of our States as 
well, that there is a very deep and strong feeling that our 
part of the country has gotten shortchanged, and has not been 
dealt with fairly, and that in the real world of experience 
that people have had, it has not been a happy experience. It 
has not been one that has led people to have confidence in the 
future fairness of actions.
    I hope that message is received and understood. It is not 
an attack on an individual or a person or an agency. It is a 
frustration because of experiences that have been very, very 
frustrating to people in situations where there was a lot at 
stake.
    I tell you, I will never forget the hearings I have had 
with people who ran marinas, people whose crops burned up 
because they could not irrigate land that they thought they had 
a fundamental right to irrigate as part of a compensation for 
things that were done years ago, to help the downstream States.
    I guess the great irony is these main stem reservoirs were 
built for the primary purpose of flood control for downstream 
States. It saved them billions of dollars in flood damage. 
Those things have been quantified. We know that is the case. We 
have been good neighbors. We have saved them from enormous 
losses. So it is especially difficult to accept when there is 
what is seen by us as a continuing unfairness in the operation 
of these facilities.
    Again, thank you all. Thank you for being here. We will 
declare this hearing adjourned.
    [Whereupon, at 12:08 p.m. the committee was adjourned, to 
reconvene at the call of the chair.]


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                            A P P E N D I X

                              ----------                              


              Additional Material Submitted for the Record

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 Prepared Statement of Hon. Tom Daschle, U.S. Senator from South Dakota

    Mr. Chairman, thank you for convening this hearing today on the 
management of the Missouri River, and specifically the ongoing revision 
of the Missouri River Master Manual. I especially appreciate this 
hearing's focus on the effect the Master Manual has on federally 
reserved Indian water rights. I am grateful for the opportunity to 
speak before you today to share my insights and experiences in dealing 
with the U.S. Army Corps of Engineers in South Dakota.
    I am pleased that President John Steele, of the Oglala Sioux Tribe, 
as well as Mike Claymore, council member for the Standing Rock Sioux 
Tribe, are here to testify on this important topic. They will describe 
to you the effects the Corps of Engineers' management of the river and 
this Master Manual revision will have on their tribes. I also look 
forward to hearing the testimony of General Bill Grisoli to better 
understand what steps the Corps is taking to respond to tribal 
concerns, and hope we can work together in a constructive manner to 
resolve these issues.
    Mr. Chairman, the Corps of Engineers' reputation in South Dakota on 
the management of the Missouri River is tenuous at best. As my fellow 
Senator from South Dakota, Mr. Johnson, knows, the Corps' management of 
the Missouri River has long been the source of much division between 
the upstream and downstream states. Our constituents, many of whom 
depend on the river for recreation, drinking water, and irrigation, 
cannot understand why it is that during times of drought, such as the 
one South Dakota has experienced in recent years, our State's 
reservoirs are drained to maintain a nearly nonexistent barge industry. 
To them, it simply flies in the face of commonsense.
    South Dakota hosts four of the six mainstem dams. Five South Dakota 
Indian tribes border the river, and many others have historical and 
cultural ties to the river. Tribal burial grounds dot the landscape up 
and down the river, and the fluctuating water levels erode tribal land 
and expose these burial sites to the environment, leaving many remains 
and artifacts subject to poaching. Tribes are disconnected from the 
river that was once central to tribal life. You would think that simply 
bordering our Nation's longest river, a vital economic lifeline, would 
provide some benefit to the tribes, but that is often not the case.
    When the mainstem dams were built almost 50 years ago, the State 
and the tribes were assured they would be compensated. Hundreds of 
thousands of acres of productive river bottom land was lost when the 
reservoirs filled. The two largest reservoirs formed by the dams, Oahe 
Reservoir and Sharpe Reservoir, caused the loss of approximately 
221,000 acres of fertile, wooded bottomland that constituted some of 
the most productive, unique, and irreplaceable wildlife habitat in 
South Dakota.
    This included habitat for both game and non-game species, including 
several species now listed as threatened or endangered. Meriwether 
Lewis, while traveling up the Missouri River in 1804 on his famous 
expedition, wrote in his diary, ``Song birds, game species and 
furbearing animals abound here in numbers like none of the party has 
ever seen. The bottomlands and cottonwood trees provide a shelter and 
food for a great variety of species, all laying their claim to the 
river bottom.'' The Missouri River tribes did receive payment for the 
lands they lost to the reservoirs. However, the level of payment was a 
pittance of what it was worth. In the 1980's, the Joint Federal-Tribal 
Advisory Committee, or J-TAC, determined that tribes were owed tens of 
millions of dollars more than they originally received. This committee 
has held a number of hearings on this issue over the last decade as 
Congress has enacted law after law to provide additional compensation 
to affected tribes to adequately compensate them for their losses.
    But adequate compensation is more than just paying a fair value for 
the lost land. Compensation was supposed to come in other forms, such 
as guarantees that the reservoirs would provide irrigation for 
farmland, conserve and enhance fish and wildlife habitat, promote 
recreation along with meeting other important goals. This has never 
been fully realized. While recreation has become an important economic 
draw in South Dakota, water levels continue to be subject to the whims 
of the downstream interests threatening the future of river-based 
businesses. And Indian tribes have never fully realized the benefits 
promised them, while they continue to experience the adverse effects of 
low water levels.
    For the last decade, I have watched as the Corps has steadfastly 
refused to change its management of the Missouri River to reflect the 
environmental and economic needs of the 21st century. The current 
operating plan for the agency was written in the 1960's, with the last 
revision coming in the 1970's. Barge traffic has long been the primary 
focus of the Corps' management policies on the river, but today that 
traffic is a mere fraction of what people thought it would be. Yet the 
Corps continues to support navigation at the expense of all the other 
uses the river should support. Nearly 14 years ago, the Corps was 
directed to revise the Master Manual to reflect the modem river and 
provide a more appropriate balance among the various uses on the river. 
However, the agency has continually delayed this review to avoid 
implementing a plan that will bring meaningful change to the management 
of the river. This will only further jeopardize endangered species, 
drive river-dependent businesses into bankruptcy, and lead to further 
erosion of Native American burial and cultural sites along its banks. 
The Missouri River is important to all of us, especially the Native 
Americans who share a special kinship with the river and hunted and 
fished off its banks for hundreds of years before Lewis and Clark. As a 
senator from South Dakota and as a citizen who appreciates awesome 
power and beauty of the Missouri, I share the sense of betrayal that so 
many upstream residents feel watching the Corps' management slowly 
degrade this once-thriving river.
    The Corps has taken a very unbalanced approach in its revision. I 
continue to see the agency push its preconceived notion of how the 
Missouri River should be managed, even while it speaks of 
``inclusiveness'' and ``compromise.'' The Corps has shown time and 
again its unwillingness to work effectively with members of the public, 
states, tribes, or stakeholders to resolve ongoing challenges. For 
example, the Corps has stated it will not incorporate more natural 
river flows, such as the spring rise, in its plan, even though the U.S. 
Fish and Wildlife Service and the National Academy of Sciences have 
both stated that these changes are essential to the health of the river 
system. Someone once told me that when discussing the Master Manual, 
the Corps has stated people should ``think outside the box--just don't 
change anything.'' This narrow view leaves out any real hope of 
compromise, and I sincerely hope that something can be done to change 
it.
    That is why this hearing today is so important. American Indian 
tribes lost a great deal when the dams were constructed, and they 
continue to face hardships because of the Corps' management of the 
Missouri River. With the scarce resources available on the river, it is 
important that tribes be included in the process to ensure their needs 
are adequately addressed in the revision of the Master Manual. The 
Corps now plans on finalizing a Master Manual by March 2004. The agency 
has waited far too long to finish this work, and it must be completed 
quickly. However, it is imperative that the Corps revise it the right 
way, by developing a plan that fairly balances all current and future 
uses of the river. Only through commonsense, balanced river management 
can upstream states and Indian tribes fully realize the benefits of the 
river they were promised so many years ago.
    Again, Mr. Chairman, thank you for holding this hearing. I look 
forward to hearing the views of the other witnesses.
                                 ______
                                 

  Prepared Statement of Michael Jandreau, Chairman, Lower Brule Sioux 
                         Tribe, Lower Brule, SD

    Mr. Chairman, members of the committee, I am pleased to present 
this statement on behalf of the Lower Brule Sioux Tribe. We are located 
in central South Dakota along the Missouri River.
    Last year, on May 21, 2002, the Lower Brule Sioux Tribe and the 
Crow Creek Sioux Tribe filed a lawsuit against the Secretary of Defense 
and the Army Corps of Engineers seeking injunctive relief growing out 
of their management of Lake Sharpe, which is formed by the Big Ben Dam.
    As you know, the Department of Defense, including the United States 
Army Corps of Engineers, has adopted an American Indian and Alaskan 
Native Policy that:
    Acknowledges Federal trust responsibilities to tribes; B. Commits 
to a ``government-to-government'' relationship with Indian tribes; C. 
Recognizes the obligation of meaningful consultation with federally 
recognized tribal governments; and D. Agrees to manage lands under 
Federal jurisdiction in a manner mindful of the special significance 
tribes ascertain to certain natural and cultural resources.
    The plaintiffs filed the action, in short, because the Department 
of Defense and the Corps was operating in a manner that was 
inconsistent with their own Policy.
    I am pleased to report to the committee that we have just recently 
settled our litigation with the Department of Defense and the Corps. 
Under the terms of the Settlement Agreement, the Corps has agreed to 
maintain an operating level at Lake Sharpe as measured at the gauge on 
the Big Ben Dam, and adjusted for wind effects, between an elevation of 
1419 and 1421.5. Further, when the Corps anticipates that conditions 
may result in a water level outside of this ``normal'' operating level, 
they will contact the tribes and consult with them on a government-to-
government basis.
    Attached to this statement is the Settlement Agreement and Order 
signed by Judge Charles B. Kornmann on August 8, 2003.
    The Corps is to be commended for signing this Settlement Agreement. 
It is vital, however, that the Department of Defense's American Indian 
and Alaskan Native Policy be incorporated into the master manual for 
the Missouri River. Policy articulated in Washington, DC is very 
important, but only if it is actually followed at the local level 
throughout the country. The Army Corps of Engineers has not adequately 
apprised its employees of the Department of Defense's American Indian 
and Alaskan Native Policy. The Corps should also conduct training for 
its employees so that they might become better acquainted with the 
Department's American Indian and Alaskan Native Policy. Finally, as I 
mentioned above, the Policy must be formally incorporated into the 
Missouri River master manual; then, it must be followed. Thank you very 
much for your consideration.
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  Prepared Statement of William Kindle, President, Rosebud Sioux Tribe

    The Rosebud Sioux Tribe [Sicangu Oyate or Lakota] thanks the Senate 
Committee on Indian Affairs for the opportunity to provide testimony on 
the Missouri River Master Manual update and the state of Indian 
Reserved Water Rights. Your oversight of this important matter is 
needed and appreciated.
    For others to understand the importance of these issues to the 
Sicangu Oyate it may be beneficial to share our knowledge and 
experience. In the very beginning when Unci Mka [Grandfather Earth] 
came to be known as earth and before life forms were created, Tunkasila 
Inyan [Grandfather rock] caused himself to bleed and with the drip of 
his blood, colored blue, created the bodies of water of this earth.
    Among these waters was the Mni Sose, or muddy [sose] water [mni] 
now known as the Missouri River. The key to understanding our reverence 
for water is in the translation of the word Mni. This word is a 
contraction of Miye le un wqni [I live by this]. Mni is a gift created 
by Tunkasila Inyan and it is crucial for the world to survive 
physically, mentally, and spiritually. Because water provides healing 
to the mind, body, and core of human existence it is not by accident 
that many of the ceremonies taught by White Buffalo Calf Women require 
its use.
    Water is critical for not only humans but also all other life forms 
and the very earth itself. With this in mind, please listen to our 
concerns on our Indian Water Rights and the Master Manual Update.
    The ancestral homelands of the Sicangu Lakota were collectively 
shared by all of the other bands of the Lakota Nation. This territory 
originally embraced a vast area consisting of 100 million acres 
extending from east of the Missouri River to the Yellowstone River and 
south through Wyoming and into Kansas and Nebraska. Our homelands were 
the heart of the Missouri River Basin long before these lands were 
acquired from France in 1803. To this day, the Sicangu Lakota still own 
land in the Missouri River on the eastern edge of our ``Original 
Reservation''. We are a river tribe and will always be a Mni Sose 
Tribe.
    The United States recognized our sovereignty over these lands and, 
beginning in 1851 entered into treaties with the Great Sioux Nation. 
Through the Fort Laramie Treaties of 1851 and 1868 and later acts of 
Congress, our homeland was diminished. Through none of these treaties 
or acts of Congress did we give up our right to mni. Our ancestors knew 
that water is sacred and essential to life. We reserved our Indian 
Water Rights.
    The U.S. Supreme Court recognized the importance of water to making 
Indian reservations inhabitable and acknowledged our rights in its 1908 
decision in Winters v. United States, which created the reserved rights 
doctrine. More recent actions by the courts and Congress are troubling.
    The Supreme Court decided that the McCarran amendment establishes 
State courts as the forum for adjudicating Indian Water Rights. Who 
asked us if we wanted our Water Rights adjudicated in State courts? We 
are often at odds with our State government and are under-represented 
in the legislative, judicial, and executive branches.
    We see our worries confirmed in State court decisions involving 
other tribe's water rights. In the Gila River adjudication, the Arizona 
Supreme Court has applied a minimalist approach to the quantification 
of Indian Water Rights based on sensitivity and consideration of 
existing water users. We believe that the Corps of Engineers proposed 
revisions to the Missouri River Master Manual further imperil our 
Indian Water Rights.
    The droughts that plagued the Missouri River Basin during the late 
1980's provided the impetus for the Corps of Engineers to revise their 
Master Manual for the operation of the mainstem reservoir system of the 
Missouri River. Operating the reservoirs under the existing manual 
prepared in 1979 increased conflicts between competing water users. 
Bear in mind that tribes have yet to exercise their Indian Water 
Rights. What will happen when tribes exercise their rights?
    The process that was used to update the Master Manual included 
some, albeit inadequate participation by tribes and Indian 
organizations. In addition, there is a lack of acknowledgement of how 
the use of Indian Water Rights would impact the operation of the 
mainstem reservoirs. This lack of acknowledgement is troubling. Indian 
Water Rights have the most senior priority date in the Missouri River 
Basin. There are millions of acres of Indian lands and appurtenant 
water rights in the Missouri River Basin. To not consider how the use 
of these rights would impact the mainstem reservoirs is poor planning.
    We are also very concerned with the defacto allocation of the flow 
of the Missouri River [Mni Sose] through the Master Manual and Annual 
Operating Plans. Whether the flows and releases are allocated to 
recreation, navigation, hydropower, or endangered species, they do not 
account for Indian Water Rights. As these water uses become ``usual and 
accustomed'', we fear that our ability to exercise our Indian Water 
Rights will be diminished.
    An additional concern with the Master Manual Update is the lack of 
acknowledgement by the Corps of Engineers that the Rosebud Sioux Tribe 
still owns lands on the Missouri River. To this day, we still own lands 
bordering the Missouri. The Corps needs to acknowledge this.
    While Indian tribes have deferred the use of Indian Water Rights, 
other interests have benefited and the United States has earned 
billions of dollars in revenue. We are proposing that a trust fund be 
established with a principal of between $1,000,000,000 and 
$2,000,000,000. Proceeds from the trust fund would be used for economic 
development. The people living on the Indian reservations in South 
Dakota and elsewhere in the Missouri River Basin are among the most 
impoverished in the Nation. This level of funding is needed to effect 
meaningful change.
    Mni is sacred to the Sicangu Oyate. We are concerned about our 
Indian Water Rights for our children and their grandchildren. As 
competition for water increases, we fear that we will be unable to have 
a fair adjudication of our Indian Water Rights. We do not believe we 
will be treated fairly in a State court. Our concerns are compounded by 
the Corps of Engineers lack of planning for the use of our Indian Water 
Rights. As others become accustomed to using water that we may need to 
use in the future, it will be harder for our grandchildren to use what 
our ancestors reserved for them. We also request compensation for 
having deferred the use of our Indian Water Rights while others have 
benefited.
    We seek your consideration of these matters and assistance in 
protecting our rights. We thank you again for this opportunity.

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