[Senate Hearing 108-625]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-625

                    THE OGLALA SIOUX TRIBE ANGOSTURA
                   IRRIGATION PROJECT REHABILITATION
                          AND DEVELOPMENT ACT

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

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                   ON

                                S. 1996

          TO ENHANCE AND PROVIDE TO THE OGLALA SIOUX TRIBE AND
    ANGOSTURA IRRIGATION PROJECT CERTAIN BENEFITS OF THE PICK-SLOAN 
                      MISSOURI RIVER BASIN PROGRAM

                               __________

                             JUNE 16, 2004
                             WASHINGTON, DC



                    U.S. GOVERNMENT PRINTING OFFICE
94-530                      WASHINGTON : 2004
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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
S. 1996, text of.................................................     3
Statements:
    Daschle, Hon. Tom, U.S. Senator from South Dakota............    23
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice 
      chairman, Committee on Indian Affairs......................     1
    Janis, Valerie, council member, Oglala Sioux tribal council, 
      Pine Ridge, SD.............................................    19
    Johnson, Hon. Tim, U.S. Senator from South Dakota............    15
    Mooney, Ross, acting director, Trust Services, BIA, 
      Department of the Interior.................................    16
    Steele, John Yellow Bird, president Oglala Sioux Tribe, Pine 
      Ridge, SD..................................................    19

                                Appendix

Prepared statements:
    Mooney, Ross.................................................    29
    Steele, John Yellow Bird.....................................    31

 
THE OGLALA SIOUX TRIBE ANGOSTURA IRRIGATION PROJECT REHABILITATION AND 
                            DEVELOPMENT ACT

                              ----------                              


                        WEDNESDAY, JUNE 15, 2004


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2 p.m. in room 
485, Senate Russell Building, Hon. Daniel K. Inouye (vice 
chairman of the committee) presiding.
    Present: Senators Inouye and Johnson.

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

    Senator Inouye. The Senate Committee on Indian Affairs to 
order. We are meeting today to discuss S. 1996, the Oglala 
Sioux Tribe Angostura Irrigation Project Rehabilitation and 
Development Act, a bill sponsored by Senator Tom Daschle of 
South Dakota.
    The Angostura Unit is a part of the Missouri River Basin 
Pick-Sloan Program. It is an irrigation project operated by the 
Bureau of Reclamation in southwestern South Dakota. This 
project diverts up to 48,000 acre-feet of water annually from 
the Cheyenne River to irrigate more than 12,000 acres of 
farmland in the Angostura Irrigation District.
    The Pine Ridge Indian Reservation, home of the Oglala Sioux 
Tribe, is located on the Cheyenne River downstream of the 
Angostura Unit. The tribe receives no economic benefit from the 
operation of the Unit, but does suffer significant economic, 
environmental and ecological harm because of the greatly 
reduced flows in the Cheyenne River.
    According to the testimony that has been submitted to the 
committee for this hearing, the territory of the Oglala Sioux 
Tribe was first recognized by the United States in the treaty 
of Fort Laramie of 1851. Under the Winters Doctrine established 
by the U.S. Supreme Court, the reservation of lands of this 
tribe and for other tribes includes the right to a sufficient 
amount of water to fulfill the purposes for which the 
reservation was established.
    Typically, these reserve water rights have a priority date 
that coincides with the date of establishment of a tribe's 
reservation. Thus, the water rights of the Oglala Sioux Tribe 
predate the formation of the Angostura Irrigation Project by 
nearly 100 years. Nonetheless, the operation of the Angostura 
Irrigation Project by the Interior Department's Bureau of 
Reclamation provides for no release of water for instream flows 
of the Cheyenne River upon which the survival of fish and 
wildlife and tribal agriculture depends.
    In August 2002, the final environmental impact statement 
for the Angostura Unit was completed. That final EIS documented 
substantially diminished water flows in the Cheyenne River, as 
well as serious impacts on water quality. These circumstances 
have led to disputes between the tribe and non-Indian water 
users over the continued operation of the Angostura Unit.
    S. 1996 is intended to resolve those disputes. The bill has 
two parts. Title I provides funds to upgrade the efficiency of 
the irrigation works associated with the Irrigation District so 
that the water thus conserved can be returned to the river for 
the benefit of the tribe and other downstream interests. Title 
II establishes an economic development fund for the benefit of 
the tribe.
    Because we are advised that certain sections of this bill 
have yet to be fully developed, the committee would hope that 
the Interior Department would be willing to work with the 
committee and the Oglala Sioux Tribe in further refining this 
measure.
    [Text of S. 1996 follows:]
      



    Senator Inouye. May I call upon Senator Tim Johnson.

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

    Senator Johnson. Thank you, Senator Inouye. I thank you and 
Chairman Campbell for your willingness to hold this important 
hearing today pertaining to S. 1996, the Oglala Sioux Tribe 
Angostura Irrigation Project Rehabilitation and Development 
Act, a bill introduced by my senior Senator, Senator Tom 
Daschle, and cosponsored by myself.
    I would also like to recognize and thank the Oglala Sioux 
tribal president, John Yellow Bird Steele, for coming to 
testify today, and for his leadership on this issue. 
Accompanying President Steele here today are Oglala Sioux 
tribal council members Valerie Killsmall Janis, Gary Janis, 
Cora Hildebrand Whiting, and Carol O'Rourke. I welcome the 
Oglala Sioux tribal council members and other South Dakotans 
that are joining us here this afternoon. I appreciate all the 
hard work that you are doing on behalf of the Oglala people.
    The Angostura legislation addresses the legal and equitable 
claims of the Oglala Sioux Tribe relating to the Angostura 
Unit's environmental impacts in the Cheyenne River watershed on 
the Pine River Reservation. In August 2002, Reclamation 
released its final environmental impact statement, Angostura 
Unit Contract Negotiation and Water Management. The final EIS 
verifies that the water flows, water quality and riparian 
habitat below Angostura have diminished substantially. The 
Angostura Unit is located 15 miles from the Pine Ridge 
Reservation, and the project has impacted the environmental and 
economic resources of the Oglala Sioux Tribe.
    Proposed amendments call for a $92.5-million trust fund to 
be set up to make the tribe whole. I am supportive of this 
legislation and I look forward to working with the tribe as 
this bill moves forward.
    I want to conclude by thanking Senator Daschle for 
introducing this legislation. I have been known to say that our 
tribes have no better friend in Washington than my friend and 
colleague, Tom Daschle. I look forward to working with Senator 
Daschle on this legislation. I know that it was his intent to 
lead off the testimony here today. Hopefully, he will be able 
to join us, but as you know, he is balancing demands on his 
time on the floor with the Defense authorization bill and other 
matters all going on simultaneously. I will leave it to the 
chairman in which order to call witnesses, but I know that 
Senator Daschle regards this legislation as among his very 
highest priorities.
    Thank you, Mr. Vice Chairman.
    Senator Inouye. I can assure you that Senator Daschle will 
be here. He is at this moment presiding over a matter of great 
importance and some sensitivity. I have been instructed to move 
ahead and not to keep you waiting.
    With that in mind, I would like to call upon the acting 
director of Trust Services of BIA, Ross Mooney. Mr. Mooney, 
welcome, sir.

  STATEMENT OF ROSS MOONEY, ACTING DEPUTY DIRECTOR, OFFICE OF 
             TRUST SERVICES, BIA, DEPARTMENT OF THE
                            INTERIOR

    Mr. Mooney. Good afternoon, Mr. Vice Chairman.
    I am pleased to provide the Administration's views on S. 
1996, the Oglala Sioux Tribe Angostura Irrigation Project 
Rehabilitation and Development Act. This bill would enhance and 
provide certain project benefits for the Oglala Sioux Tribe in 
connection with water conservation improvements on the 
Angostura Irrigation Project.
    Title I of this bill would authorize the secretary to 
rehabilitate and improve the facilities of the project, a 
component of the larger Pick-Sloan project in the Missouri 
River Basin. Furthermore, title I would provide that the 
Secretary shall to the maximum extent practicable deliver water 
saved through the rehabilitation and improvement of the 
facilities of the Angostura Project to the Pine Ridge Indian 
Reservation and provide that the use of that water be used for 
environmental restoration.
    Title II of the bill would create a tribal development 
trust fund to promote economic development, infrastructure 
development, and the educational, health, recreational and 
social welfare objectives of the tribal members. The 
Administration shares the concern of the tribe about the need 
to improve economic, educational and health systems on the 
reservation and will continue to work with the tribe to seek 
solutions to promote these reforms.
    While the Administration has some concerns that are 
contained in the written testimony, Mr. Chairman, we share the 
sponsor's goal of finding innovative solutions for economic, 
education, health, recreational and social welfare improvements 
on the reservation. The Department stands ready to work with 
the tribe, this committee and the South Dakota delegation on 
possible solutions.
    This concludes my testimony and I will be happy to respond 
to questions you may have. Thank you.
    [Prepared statement of Mr. Mooney appears in appendix.]
    Senator Inouye. I thank you very much, sir.
    My first question is, how many Indian tribes have been 
affected by the Missouri River Basin Pick-Sloan program? And 
how many of those tribes have alleged injuries that have not 
yet been fully addressed by Congress?
    Mr. Mooney. I cannot respond to that, sir, because the 
Commissioner of Reclamation was unable to make the meeting. But 
I have been involved with five other tribes, the Cheyenne 
River, Lower Brule, Standing Rock, some of those other tribes 
that were more directly impacted by some of the facilities that 
were constructed as part of the Pick-Sloan project.
    Senator Inouye. There are several tribes with alleged 
injuries.
    Mr. Mooney. Most of the tribes within the Missouri River 
basin, as I understand it, did have some impacts as a result of 
the facilities associated with Pick-Sloan.
    Senator Inouye. In your written testimony, you state that 
the Department is not aware of any specific impacts caused by 
the development of the Angostura Unit. How do you reconcile 
this statement with the findings of the final environmental 
impact statement of August 2002 prepared by your own 
Department, that specifically documents substantially 
diminished water flows in the Cheyenne, as well as serious 
impacts on water quality?
    Mr. Mooney. The EIS was developed by the Bureau of 
Reclamation, and again, since the Commissioner of Reclamation 
could not appear at this time, I really cannot respond to that 
question. I will be glad to take it in writing and we can 
respond later.
    Senator Inouye. Yes; can you provide us with that, sir, 
your written response? I would appreciate that.
    Mr. Mooney. Yes, Mr. Vice Chairman; I sure can.
    Senator Inouye. Your testimony states that the 
Administration does not support the enactment of legislation 
mandating that water saved through improved efficiency of the 
Angostura Unit be applied to environmental restoration on the 
Pine Ridge Indian Reservation. Does the Department propose any 
alternative measures to address the economic and ecological 
injuries the tribe claims to have suffered? Is it the 
Department's position that no such injuries have been 
demonstrated?
    Mr. Mooney. I do not believe we put forth that there have 
been no injuries, but dedicating the water that is saved 
through efficiencies of the rehabilitation of the project, in 
putting this in the bill, in a sense circumvents the public 
interface with the other stakeholders in the area. The way the 
bill is written, it appears to dedicate this water strictly to 
the Pine Ridge Reservation without further consultation with 
these other stakeholders.
    Senator Inouye. What do you propose to do with other 
stakeholders? They have been kept out in the cold up until now. 
What do you propose to do with them?
    Mr. Mooney. Are you referring to the Oglala Sioux Tribe 
stakeholders?
    Senator Inouye. Of the tribe, yes.
    Mr. Mooney. As I stated in the testimony, we will be glad 
to work with this committee and the tribe to come to resolution 
and solutions on these kinds of issues.
    Senator Inouye. These tribes have been asking for relief 
for some time. Have you attempted anything up until now?
    Mr. Mooney. I personally am not aware of any actions that 
the Commissioner has taken. I am sure he has worked diligently 
to try to work with the tribes, especially through the EIS 
process. Any further detail on that, I would have to refer to 
him.
    Senator Inouye. I thank you very much, sir.
    May I call upon Senator Johnson.
    Senator Johnson. Thank you, Senator Inouye.
    Mr. Mooney, this the final environmental impact statement 
for Angostura Unit. Have you read the EIS?
    Mr. Mooney. I have read a brief summary of it, sir, but I 
have not read the whole EIS.
    Senator Johnson. Okay. In your statement, you testified 
that the Secretary currently possesses the authority to 
rehabilitate the irrigation unit, but on page 24 of the EIS, it 
states that legislation is required for this. Wouldn't you 
agree that this presents a discrepancy between your statement 
and the EIS evaluation?
    Mr. Mooney. Yes, sir; I agree. As you stated, it seems to 
be a discrepancy.
    Senator Johnson. You testified that S. 1996 excludes all 
other stakeholders. As a cosponsor of S. 1996, my staff is 
engaged in discussions with the Bureau of Reclamation and other 
stakeholders. Additionally, I know that President John Steele 
has been in discussion with the Angostura Irrigation District 
and members of Hot Springs and Oral communities. With these 
discussions taking place, how exactly is it that S. 1996 
undermines collaboration with other stakeholders?
    Mr. Mooney. The bill appears to circumvent that. If there 
have been official consultations with the stakeholders, then 
that does not seem to be a problem. Again, I would defer the 
final answer to that question to the Commissioner of 
Reclamation.
    Senator Johnson. When you refer to stakeholders, who 
exactly are you talking about and which stakeholders have you 
spoken with?
    Mr. Mooney. The EIS was performed in cooperation with the 
Angostura Irrigation District; the Oglala Sioux Tribe, the 
Cheyenne River Sioux Tribe; the Lower Brule Sioux Tribe; the 
South Dakota Department of Game, Fish and Parks; the U.S. 
Geological Survey; U.S. Natural Resources Conservation Service; 
the BIA; and the South Dakota Department of Environmental and 
Natural Resources.
    Senator Johnson. Are you aware that President Steele has 
proposed an amendment that provides that the irrigation 
improvements are to be on a non-reimbursable basis? And this 
amendment, one might think, would alleviate your concerns that 
the bill undermines the collaboration with other stakeholders.
    Mr. Mooney. I am aware that there has been a proposed 
amendment for non-reimbursability of the funds.
    Senator Johnson. Do you still see this, however, as an 
undermining of collaboration?
    Mr. Mooney. Since the commissioner and his delegatees have 
been the ones consulting with the stakeholders, I would defer 
that detailed answer to him.
    Senator Johnson. Your testimony indicates that title I of 
the bill is inconsistent with the record of decision, whereas 
title I implements the preferred alternative in the EIS and the 
record of decision. When you state that title I is inconsistent 
with the ROD, which section of the record of decision are you 
talking about?
    Mr. Mooney. Let me defer that answer to the commissioner.
    Senator Johnson. Very good. And you will provide that in 
writing?
    Mr. Mooney. Yes, sir.
    Senator Johnson. Good. I have several other questions, but 
I will submit them to you and would appreciate your timely 
attention to that.
    Mr. Chairman, we received Mr. Mooney's testimony this 
morning. Obviously, it is not as favorable as I would like, but 
frankly in my view the BIA is not really the agency that should 
be testifying in many respects. It is the Bureau of Reclamation 
that I think we may need to know more from.
    We have drafted several questions for Mr. Mooney and we 
will make that part of the record and submit them for his 
prompt attention.
    Senator Inouye. Without objection, so ordered.
    Senator Johnson. Very good. I yield back.
    Senator Inouye. I thank you very much.
    Mr. Mooney. Thank you, Mr. Vice Chairman.
    Senator Inouye. Thank you very much, Mr. Mooney.
    May I now call upon John Yellow Bird Steele, the president 
of the Oglala Sioux Tribe of Pine Ridge, SD.

        STATEMENT OF JOHN YELLOW BIRD STEELE, PRESIDENT,
   OGLALA SIOUX TRIBE, ACCOMPANIED BY VALERIE JANIS, COUNCIL 
              MEMBER, OGLALA SIOUX TRIBAL COUNCIL

    Mr. Steele. Thank you very much, Mr. Vice Chairman Inouye. 
Thank you for chairing this meeting.
    My name is John Yellow Bird Steele. I serve as the 
president of the Oglala Sioux Tribe. I thank Senator Johnson 
for being here and for cosponsoring this legislation of Senator 
Daschle's.
    I do have with me Valerie Janis. She is on the tribal 
council. She represents the affected community that the river 
does pass through, the Cheyenne River on the Pine Ridge 
Reservation. And Peter Capasella, our attorney, who is going to 
help me answer any questions that may have to be answered.
    I filed a written statement, Senator, and I ask that I be 
able to summarize that lengthy written statement here.
    Senator Inouye. Without objection, your full statement is 
made part of the record.
    Mr. Steele. I thank you, sir. We have also proposed some 
amendments to S. 1996 which I ask to also be included in the 
record.
    Senator Inouye. Without objection.
    Mr. Steele. I would like to thank the Chairman, Senator Ben 
Nighthorse Campbell, for allowing this meeting, the conducting 
of this hearing on S. 1996. I would like to thank you, Senator 
Inouye, for chairing this afternoon's hearing. I would like to 
thank you, Senator, for your advocacy for Indian issues over 
all of these years.
    I would like to thank Senator Johnson for participating in 
this afternoon's hearing. I have been working with Senator 
Johnson on this specific issue since the early 1990's when the 
contracts with the irrigators gave out. It has been 10 years 
now, and we do have legislation introduced by the Senator here. 
Today, we have an opportunity to discuss the damage to our 
reservation caused by the Angostura Dam and the basic 
unfairness to our tribe to have our water flows cut off by the 
Bureau of Reclamation just above our reservation's boundary.
    We the Oglala Sioux Tribe are adapting to the modern world 
now. We are making progress. We still have some lack and needs 
in housing, education, economic development, but we are making 
progress in those areas. We still hold many of our older 
practices. This includes hunting and fishing, gathering of 
fruits and berries and roots and plants for medicinal purposes. 
As children, we grew up doing this.
    The Cheyenne River, which is on the northwestern part of 
our reservation, was the most fertile and beautiful area. 
Historically, the rich Cheyenne River valley attracted tribal 
members from throughout the reservation. They gathered there to 
hunt, to fish, for recreation, for swimming. The Red Shirt 
Table community on the Cheyenne River is one of the most 
traditional communities. Many of the residents are descendants 
of the survivors of Wounded Knee massacre. This is a rich 
historical area. The stronghold is right near there. This is 
where our people lived in harmony with the natural environment 
for hundreds of years.
    The Angostura Dam changed all of that. The dam was built in 
the late 1940's. By 1950, the dam was completed and the river 
flows in the Cheyenne River were completely cut off of the 
reservation. In 1956, the Bureau of Reclamation entered into a 
40-year contract with irrigators for water delivery from the 
Angostura Irrigation Dam. At that time, our tribe was not 
consulted. We were in no position to object to the Bureau of 
Reclamation.
    The results were devastating. The natural flow of the river 
was completely disrupted. Spring floods dried up. Riparian 
vegetation dried up. Wild fruits disappeared. Wildlife went 
away. Water quality declined. Now the fish have sores or 
lesions on them. I believe it was a bottle of water that we 
brought from Cheyenne River when we proposed the Mni Wiconi 
project that was discolored, had an odor to it, had a bad taste 
to it, that they were using there in Red Shirt Table.
    The Indian Health Service posted a sign at Red Shirt Table 
warning residents not to swim in the Cheyenne River. The water 
quality got so bad. The water supply for the community gardens 
dried up. Red Shirt Cannery closed down in the 1950's.
    They used to have an agricultural cooperative back in the 
1950's in Red Shirt Village, along with the irrigation and the 
cannery. That had to close down and disband. Our tribe has 
suffered severe harm, irreparable harm since the 1950's because 
of Angostura Dam.
    In 1996, as I said, the water contract expired with the 
irrigators. I requested that the Bureau of Reclamation conduct 
an EIS, an environmental impact statement. They said it would 
take too long, be too costly at first. But then they came 
around and they agreed to do it. The EIS took 4 years to 
complete. We worked with the irrigators, the recreation people 
that use the dam for recreations. We worked with all the 
participants in the benefits of the dam right now. We completed 
the EIS and that is what we are using today, Senator, on this 
legislation.
    Our tribal environmental program has accumulated a great 
deal of water data on the Cheyenne River. We worked hard to 
ensure that this was considered by the Bureau of Reclamation in 
the EIS. I do wish the Bureau of Reclamation were here. We have 
a relationship with them because we worked with them on that 
EIS for many years.
    I did discuss with Dennis Breitzman, the manager of the 
Dakotas area office, in developing this win-win approach we see 
that we are producing today in this legislation, where the 
irrigators are going to be satisfied; the recreational people 
are going to be satisfied; and the Oglala Sioux Tribe is going 
to be satisfied with the stream flow that is going to take care 
of those fish with lesions on them, the children swimming in 
those ponds, that are supposedly supposed to be a river.
    I called it a win-win approach in S. 1996, because 
everybody benefits here. Because of the, as I stated, 
irreparable harm done by the Angostura Dam over the 50 years, a 
trust fund in the amount of $92.5 million will be established 
for some of those damages to help mediate some of those 
damages. But it is based upon prior legislation by Congress, 
and so the EIS has got the amount of $92.5 million in it, based 
upon prior legislation.
    This is accomplished without quantifying or compromising 
our water rights, this legislation. Time-consuming and costly 
litigation are being avoided with this legislation. The 
environment is being protected and our tribe is trying to be 
made whole again with this legislation.
    This legislation is based upon many years of negotiations 
between our tribe and the Bureau of Reclamation and all of the 
water users. It includes provisions favored by the irrigators, 
as well as the provisions for fish and wildlife habitat and the 
environment. The tribal council supports the bill. The Bureau 
of Reclamation participated in the development of the concepts 
included in the bill. It is based on BOR's final EIS. All 
affected parties have participated and are in support of S. 
1996.
    I am a little contrary to what the BIA is saying up here. 
They have not been a participant over all of these years. They 
have made testimony today, but I do not know where they are 
coming from because they have not participated one minute. I do 
not know how they got their opinion to make a statement today.
    But for the reasons that I give you, I urge the committee 
to take favorable action on S. 1996. I thank you very much. Let 
me defer some of my time for a brief statement from Tribal 
Councilperson here, Valerie Janis from the White Clay District, 
the Red Shirt Table Area District. Valerie?
    Ms. Janis. Thank you, President Steele, and thank you Mr. 
Vice Chairman. My name is Valerie Killsmall Janis. I represent 
the White Clay District on the Oglala Sioux Tribal Council. The 
Red Shirt Table community is located in my district. I know 
from growing up in this area and visiting with my relatives in 
Red Shirt just how much Angostura Dam affects our area.
    Because of the Angostura Dam, we went from hunting and 
fishing to food stamps and welfare. We went from gathering 
chokecherries, buffalo berries, wild plums and canning them and 
storing food supplies for the winter, to being idle and having 
no jobs or industry. As our tribal President stated, Red Shirt 
Table community had its own cannery and provided jobs and 
income for community residents. That is all gone now.
    We need the development trust fund that is provided in S. 
1996. Our unemployment rate is 80 percent. There is a serious 
lack of housing in Red Shirt community. The elementary school 
is on the brink of being condemned. It is in such bad condition 
that the Shannon County school board is planning on replacing 
the school, but the community electrical distribution system is 
not adequate for a new building.
    The water supply was just hooked up last week. For many 
years, Red Shirt community members hauled water great 
distances, traveling throughout the city to fill water bottles, 
that is 40 miles away. The road from Red Shirt across the 
reservation is unpaved. This 40-mile stretch of road is 
extremely dangerous. There are many accidents and fatalities on 
this road. Just two weeks ago, President Steele's chief aide 
and close relative, Richard Yellow Bird, who was from the Red 
Shirt community, and his 16-year-old granddaughter Amber were 
killed in a head-on collision on the Red Shirt Road.
    Our community and our tribe suffer from the lack of basic 
infrastructure, things that other Americans take for granted 
like paved roads, electricity, telephone service that are 
unavailable for many of our community members.
    In the meantime, the Bureau of Reclamation built this large 
irrigation project for the nearby off-reservation farming 
community. They use our water and disrupt our way of life. We 
deserve this trust fund. We deserve the opportunity for a 
better life than we have now. S. 1996 provides that hope for 
us.
    I appreciate the opportunity to speak today on behalf of 
the White Clay District and the Red Shirt Table community. 
Thank you very much, Senator Inouye.
    Senator Inouye. Thank you very much.
    Mr. President, would you care to add to this?
    Mr. Steele. Senator, it is a situation that, as I said in 
my statement, that the tribe had no consultation, no right to 
give an opinion in the 1950's as to the construction and the 
use of the water. It was completely cut off. We got the dry 
river bed. And that river bed used to be the life of the 
people. It used to be the life of that community. The area had 
been able to provide some fish for food, the berries and stuff. 
They no longer grow. The river, the sides of it, the berry 
trees do not grow because the silt is not there anymore. It is 
just devastating. The life of the community was just choked 
off, as Ms. Janis just stated here. They have just been 
surviving up there.
    After 50 years, we have an opportunity to speak to 
yourselves, the United States Congress here, to try to mediate 
some of these problems.
    Senator Inouye. As a result of this reduced flow, did you 
testify that the Red Shirt Agricultural Coop had to be closed?
    Mr. Steele. Yes, sir; they had a cannery. They canned 
different items of berries, vegetables through their irrigation 
of the use of the river. And there was an agricultural coop 
established in the 1950's. These all had to close down and 
disband because there was no more water for all of those 
purposes.
    Senator Inouye. And the water quality is unfit for human 
consumption?
    Mr. Steele. Oh, no, you could not drink that. It is in the 
EIS, the environmental impact statement that the Bureau of 
Reclamation has done. But the fish that we are taking out of 
the river have lesions on them, sores. The children that use 
the river, the ponds in there because it is dried up and there 
are just ponds left, get rashes. So Indian Health Service put 
signs up for children not to swim in there because it is 
contaminated with pesticides, fertilizers that a natural-
flowing river would clean itself up. But here with standing 
water, it does not have a chance to clean itself up.
    Senator Inouye. You have the senior rights to the use of 
water on the Angostura Irrigation project, but if you exercise 
those rights fully, no one else would have water.
    Mr. Steele. This is what we are terming the win-win 
situation in this legislation, Senator. The irrigators would 
still get water to irrigate with; the recreation people would 
still have water to ski and to motorboat and to use these for 
recreation purposes. We would get a stream flow from the 
savings of the water for the increased efficiencies in the 
irrigation system. I think there are about identified 20,000 
acre-feet of water that would be saved per annum. This would go 
into the stream flow to help mitigate some of the distressed 
river conditions for the wildlife.
    But yes, we do have senior prior rights as established 
through the Winters doctrine, through the 1868 and the 1851 
Fort Laramie Treaties. It would be very costly litigation for 
us to establish those prior water rights through litigation, 
but we would rather approach Congress for this win-win 
situation for everybody involved, all the stakeholders. The 
stakeholders would not be fairly treated through court. The 
Oglala Sioux Tribe, in all fairness, is entitled to all of the 
water.
    Senator Inouye. In other words, you are trying to share 
your water with others.
    Mr. Steele. Through this legislation, it is a solution. It 
is not a settlement that we are offering. But yes, this 
legislation would continue for all of the stakeholders a good 
equitable share, what they are used to today.
    Senator Inouye. I thank you very much, Mr. President.
    Senator Johnson. I have some questions for President Steele 
and for Ms. Janis. However, I notice that Leader Daschle is 
here, and I wonder, Mr. Chairman, given the demands on his 
schedule, if he might present his statement and then we can 
return to questions to the tribal leadership.
    Senator Inouye. Would you like to introduce our leader?
    Senator Johnson. It is an honor for me, of course, to 
introduce our Leader and my senior Senator, Senator Tom 
Daschle. Senator Daschle is the lead sponsor of this 
legislation and has been an extraordinary friend of all of our 
tribes in South Dakota.
    These are difficult issues, and we are thankful that we 
have someone of Tom Daschle's stature taking the leadership 
role on behalf of the immense needs of Indian people in South 
Dakota. So I am very pleased that Senator Daschle could take 
time out of an incredibly busy schedule to join us here for 
this.
    Senator Inouye. Mr. Leader, may I request that I be listed 
as one of your cosponsors?
    Senator Daschle. I would appreciate very much the honor of 
adding you as a cosponsor. I will certainly do that. I thank 
you.

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

    Senator Daschle. I thank you for this hearing. I thank 
Senator Johnson for his incredible advocacy. The Indian people 
of this country have no two stronger or finer or more loyal 
friends than the two of you. I am very grateful. This is the 
second day in a row that Senator Johnson has participated in or 
chaired a hearing, thanks to you and your magnificent staff. So 
I am grateful to you.
    I have a lengthy statement and I would ask that it be made 
a part of the record, Mr. Chairman. Let me just say very 
briefly, you have heard from President Steele. You know from 
his eloquent presentation the injustices that have once again 
been recorded, and our need to begin correcting those 
injustices with this legislation.
    We can to all the way back to the treaties themselves and 
the many, many wrongs that came as a result of our abrogation 
of those treaties and our unwillingness to respect them. But 
this even goes beyond the treaty. These were projects that were 
built and constructed for good reason. We think that flood 
control in South Dakota and irrigation in South Dakota are 
worthy goals. But they cannot be done at the expense of others. 
They cannot be done at the expense of those who have already 
been victimized in so many other ways as a result of the 
abrogation of treaties.
    So this legislation simply provides a mechanism by which we 
can make right some of the tremendous pain, economically and 
socially, that has been caused by the construction of our flood 
control and irrigation efforts.
    I think it is long past due. I think it is very, very 
critical that at the earliest possible time, we address this 
inequity, this injustice, and try to make it right. That is all 
that we attempt to do with the legislation, to provide a 
meaningful way with which to put some balance back into the 
sacrifices required of those who live in southwestern South 
Dakota, especially on the Pine Ridge Reservation.
    Chairman Steele and those tribal leaders within the tribe 
themselves have very powerfully and eloquently made the case to 
us, to Senator Johnson and me on a number of occasions, and I 
think you can tell from his presentation today that they have 
given great thought to this issue.
    So it is with pride and with great determination that I 
come before you today with the expectation that this committee 
and ultimately the Senate will address this injustice in a way 
that will allow them to begin feeling more confident that they 
can be made whole, given the sacrifices that they have made 
with such great regularity for the last 100 years, but 
especially in the time since these projects were created.
    So with that, Mr. Chairman, again I thank you and I cannot 
begin to express my gratitude to you for all that you do for 
Indian country, but especially for what you do for the Native 
American population in our State of South Dakota.
    Senator Inouye. Mr. Leader, I thank you for your very 
moving statement. I wish Indian country was here to listen to 
you because if it were not for you, I think Indian country 
would be in worse shape than it is now.
    Mr. Leader, yesterday we received testimony here that the 
Crow Creek Sioux Tribe, like President Steele's tribe, has 
about 80 percent unemployment. The thing that shook me was the 
report that teenagers commit suicide or attempt to commit 
suicide on an average of about 22 a month. This is the highest 
in the United States, with a tribal population of just 2,200. 
It is unheard of. That is why I requested that I be made one of 
the sponsors of this measure, because this matter must be 
resolved. I am with you, sir.
    Senator Daschle. Mr. Chairman, I am very grateful. And to 
your ally and my dear, dear friend, Senator Johnson, I know I 
speak on behalf of everyone in Pine Ridge in expressing our 
gratitude to both of you. Thank you.
    Senator Johnson. Only briefly to once again express 
appreciation to Leader Daschle. As he has so ably stated here, 
that the Oglala Sioux are one of America's largest tribes in 
terms of population, but also one of America's poorest in terms 
of economic circumstances.
    While this legislation does not single-handedly correct all 
the problems that we face in that part of South Dakota, it is 
an important part of any kind of strategy to help to alleviate 
the poverty and the hopelessness that has existed for far too 
long, and which was brought upon these people due to no choice 
of their own.
    While we have talked about the trust funds for reservations 
that abut the Missouri River, the loss suffered by this tribe 
is no less than it is for others, and the need for equity is as 
great here as it is with any other tribe.
    So I thank Senator Daschle for his leadership and Mr. Vice 
Chairman, you for your cosponsorship of this legislation.
    Senator Inouye. I would just like to add something, Mr. 
Leader. I think we should also note that more members of these 
tribes have volunteered to serve in the uniform of the United 
States than any other ethnic group in the United States. This 
is the worst-treated group, and yet they come out number one. 
The least we can do is to rectify that. I am with you.
    Senator Daschle. Mr. Chairman, I thank you. I applaud for 
calling attention to the patriotism of our Native American 
community. You are absolutely right. In numbers beyond 
virtually any other ethnic group, they have demonstrated once 
again their commitment to their country. We owe them a response 
that is commensurate with that level of patriotism today.
    Thank you.
    Senator Inouye. I thank you very much, Mr. Leader.
    Do you have any questions?
    Senator Johnson. I do have some questions for President 
Steele and for Councilwoman Janis. I know that we are short on 
time and I have another obligation, as I know that you do as 
well, but just a couple of quick points.
    John, you and I have been talking about this for a long 
time. I am afraid our hair is getting grayer faster than the 
equity is being delivered on this problem. How long have you 
been working on this project? And have you been working with 
the Bureau of Reclamation all along that way?
    Mr. Steele. We have been in touch with the Bureau of 
Reclamation prior to 1996 in the early 1990's on the fish out 
there that had the sores on them, and the kids getting rashes 
from swimming in those ponds in that river bed. But it was 1996 
when the irrigators' contracts, their 40-year contracts ran out 
that I met with Eluid Martinez who was then Commissioner of the 
Bureau of Reclamation, and said I wanted an EIS done and they 
refused at first. So I told them I would take you to court over 
the water rights. They came around and they did the EIS at that 
time on the river.
    So we have been working and yourself, sir, since then, on 
the EIS. It takes several scoping meetings. You have to meet 
quite often, quite regularly to compare data, discuss and agree 
upon things. It took four years for the environmental impact 
statement to be completed. So it has been quite a number of 
years that we have been physically there working on it. That is 
why I question, why isn't the Bureau of Reclamation here? They 
approved of this legislation. They had input into it. The BIA 
had no participation. They do not even know who the 
stakeholders are, and yet they are testifying here. I cannot 
understand that.
    Senator Johnson. Thanks to your insistence upon the 
environmental impact statement, we now know, we have a 
scientific basis for knowing that when you talk about the 
lesions and the illnesses of the children and so on, that not 
only has the volume of water been degraded significantly that 
comes to the Oglala Sioux, but that you now suffer from the 
inclusion of mercury, pesticides and other foreign influences 
into that ecosystem. It is not diluted in the fashion that it 
once was, and that has, if I understand the EIS, has been a 
further significant detriment to the public health of the 
children and the people of particularly the Red Shirt District.
    Mr. Steele. Yes; that is all in the environmental impact 
statement. The fish and the mercury are all identified. We have 
taken the fish to the labs for the lesions, for the mercury 
content, all of that stuff. It is all in the EIS. Yes, sir.
    Senator Johnson. This morning I received some proposed 
amendments to the bill. I want to thank you for those. As is 
virtually always the case, most legislation evolves and changes 
over a matter of course, and I want to again say to you, John, 
that I look forward to working with you in our attempt to 
really bring this legislation to a point where I think we can 
move it our of this committee and finally bring a resolution to 
what has been a half-century-long injustice to the people of 
your reservation.
    Mr. Steele. Yes, Senator; and on behalf of the over 42,000 
enrolled tribal members back home, I would like to thank 
yourself and I would like to thank Senator Inouye for offering 
to cosponsor this at this time. Thank you so much.
    Senator Johnson. I would only in closing say to 
Councilwoman Janis, Valerie, first of all I appreciate your 
leadership with the Red Shirt District. Your constituents were 
most particularly impacted by the Angostura Dam. Can you share 
with us just briefly how this legislation would impact the 
people of your district of the Oglala Sioux?
    Ms. Janis. Yes; thank you.
    Senator Johnson. What would we be able to do for your 
people?
    Ms. Janis. To provide the basic infrastructure needs that I 
talked about in my testimony, and also for our future 
generations to come, and speaking to the elders there, they 
said they used to do all of these things which they can no 
longer teach their children and grandchildren. So I would 
appreciate the legislation for the future generations.
    Senator Johnson. We are not talking about taking the water 
away from irrigators. We are simply talking about a financial 
compensation for what has been a profound loss to the way of 
life of your people. I think we need to understand that as 
well.
    Mr. Steele. Yes, sir; and the irrigators are going to still 
get the same amount of water, but there are going to be about 
20,000 acre-feet saved through more efficient irrigation 
systems.
    Senator Johnson. That is an excellent point, that again it 
is as you denominated it, a win-win recommendation.
    Mr. Vice Chairman, I have no further statements here, but 
again I applaud the leadership and the testimony of Chairman 
Steele and Councilwoman Janis.
    Senator Inouye. I thank you very much, sir. If I may just 
bring Hawaii into the picture, whenever we have conditions 
where we consider the water being a bit polluted or unsafe, we 
invite Government workers to swim there. [Laughter.]
    If they are not willing to swim there, then something must 
be wrong. I think we should invite the Department of the 
Interior to swim there.
    Mr. Steele. We should ask Mr. Mooney to come to Pine Ridge 
next week. [Laughter.]
    With that, I thank you very much, sir. We will do our very 
best.
    Mr. Steele. Thank you very much.
    Senator Inouye. The meeting is adjourned.
    [Whereupon, at 2:57 p.m. the committee was adjourned, to 
reconvene at the call of the Chair.]


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


                            A P P E N D I X

                              ----------                              


              Additional Material Submitted for the Record

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


 Prepared Statement of Ross Mooney, Acting Deputy Director, Office of 
    Trust Services, BIA, Department of the Interior, Washington, DC

    Mr. Chairman, I am Ross Mooney, the acting deputy director for the 
Office of Trust Services for the BIA. I am pleased to provide the 
Administration's views on S. 1996, the Oglala Sioux Tribe Angostura 
Irrigation Project Rehabilitation and Development Act. S. 1996 would 
enhance and provide certain project benefits for the Oglala Sioux Tribe 
in connection with water conservation improvements on the Angostura 
Irrigation Project. The Administration cannot support the bill as it is 
currently written, and has several serious concerns, which I will 
discuss here today.
    Title I of S. 1996 would authorize the Secretary to rehabilitate 
and improve the facilities of the Angostura Project, a component of the 
multi-State Pick-Sloan Missouri Basin Program. Furthermore, title I 
would provide that the Secretary shall to the maximum extent 
practicable, deliver water saved through the rehabilitation and 
improvement of the facilities of the Angostura Project to the Pine 
Ridge Indian reservation, and provide that the use of that water be 
used for environmental restoration.
    Title II of the bill would create a tribal development trust fund 
to promote economic development, infrastructure development, and the 
education, health, recreational, and social welfare objectives of the 
tribe and members of the tribe.
    While the Administration recognizes that economic challenges that 
many tribes in Indian country face, the establishment of a Trust Fund 
to address these issues does not seem warranted at this time. The bill 
infers there ``may'' be impacts caused by the development of Angostura. 
Unit of the Pick-Sloan Project, yet we are not aware of what those 
specific impacts are. Unlike other legislative propositions regarding 
compensation for land impacted by the Pick-Sloan Project, no specific 
impacts have been cited here nor any evaluation of appropriate 
compensation completed. The Administration shares the concern of the 
Tribes about the need to improve economic, educational, and health 
systems on the reservation and will continue to work with the Tribe to 
seek solutions to promote these reforms.
    In addition, title II establishes a trust fund without a specific 
dollar amount and requires a retroactive annual interest payment on an 
unspecified amount to be deposited in the fund in the 11th year 
following enactment of S. 1996. We are concerned with the precedent 
that this may set.
    The Administration is also concerned that the proposal would 
exclude all the stakeholders, other than the Oglala Sioux Tribe, from 
the ongoing public process collaboratively developed during the 
Environmental Impact Statement [EIS] process to recommend the most 
beneficial use of saved water. In addition, we do not support the 
blanket authorization for such sums that may be necessary included in 
this bill.
    In August 2002, the Bureau of Reclamation [Reclamation], in 
collaboration with a host of stakeholders, completed and published the 
Final Environmental Impact Statement [FEIS] for Contract Negotiation 
and Water Management of the Angostura Unit. The EIS was prepared in 
cooperation with:

   \\\\\\the Angostura Irrigation District;
   \\\\\\Oglala Sioux Tribe;
   \\\\\\Cheyenne River Sioux Tribe;
   \\\\\\Lower Brule Sioux Tribe;
   \\\\\\South Dakota Department of Game, Fish, and Parks;
   \\\\\\U.S. Geological Survey;
   \\\\\\U.S. Natural Resources Conservation Service;
   \\\\\\U.S. Bureau of Indian Affairs; and
   \\\\\\The South Dakota Department of Environment and Natural 
        Resources.

    In January 2003 the Record of Decision [ROD] was signed for renewal 
of a long-term water service contract for the Angostura Unit, Cheyenne 
River Basin, SD. Reclamation is concerned that provisions of title I 
are inconsistent with understandings spelled out in the ROD that 
involved input from many key stakeholders. These provisions include the 
requirement that the Secretary deliver saved water for the purposes of 
environmental restoration on the Pine Ridge Indian Reservation, and the 
finding that the Angostura Unit may be associated with negative effects 
on water quality and riparian vegetation in the Cheyenne River on the 
reservation.
    With regard to the authority in section 101 to carryout 
rehabilitation and improvement at the Angostura Project, Reclamation 
already has authority to undertake such work.
    Mr. Chairman, while the Department cannot support S. 1996 as 
written, we share the sponsors goal of finding innovative solutions for 
economic, education, health, recreational, and social welfare 
improvements on the reservation. Indeed, the Department has already 
committed significant resources to the ongoing construction of the Mni 
Wiconi rural water project, which addresses many of the needs 
identified in this legislation. The Department stands ready to work 
with the Tribe, the Committee, and the South Dakota delegation on these 
activities including examining if there are quantifiable impacts caused 
by the Pick-Sloan project.

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