[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
INDIAN WATER RIGHTS SETTLEMENTS
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
Wednesday, April 16, 2008
__________
Serial No. 110-67
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL, II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Chris Cannon, Utah
Frank Pallone, Jr., New Jersey Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin Jeff Flake, Arizona
Islands Stevan Pearce, New Mexico
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam Cathy McMorris Rodgers, Washington
Jim Costa, California Louie Gohmert, Texas
Dan Boren, Oklahoma Tom Cole, Oklahoma
John P. Sarbanes, Maryland Rob Bishop, Utah
George Miller, California Bill Shuster, Pennsylvania
Edward J. Markey, Massachusetts Bill Sali, Idaho
Peter A. DeFazio, Oregon Doug Lamborn, Colorado
Maurice D. Hinchey, New York Mary Fallin, Oklahoma
Patrick J. Kennedy, Rhode Island Adrian Smith, Nebraska
Ron Kind, Wisconsin Robert J. Wittman, Virginia
Lois Capps, California
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South
Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Rick Healy, Chief Counsel
Christopher N. Fluhr, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
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SUBCOMMITTEE ON WATER AND POWER
GRACE F. NAPOLITANO, California, Chairwoman
CATHY McMORRIS RODGERS, Washington, Ranking Republican Member
Jim Costa, California Ken Calvert, California
George Miller, California Doug Lamborn, Colorado
Mark Udall, Colorado Mary Fallin, Oklahoma
Joe Baca, California Adrian Smith, Nebraska
Nick J. Rahall, II, West Virginia, Don Young, Alaska, ex officio
ex officio
Vacancy
------
CONTENTS
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Page
Hearing held on Wednesday, April 16, 2008........................ 1
Statement of Members:
Baca, Hon. Joe, a Representative in Congress from the State
of California.............................................. 33
Costa, Hon. Jim, a Representative in Congress from the State
of California.............................................. 4
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California.................................... 1
Prepared statement of.................................... 2
Letter to OMB Director Rob Portman from the Senate Energy
and Natural Resources Committee submitted for the
record................................................. 58
Smith, Adrian, a Representative in Congress from the State of
Nebraska................................................... 3
Prepared statement of.................................... 3
Statement of Witnesses:
Bogert, Michael, Chairman of the Working Group on Indian
Water Settlements, U.S. Department of the Interior,
Washington, D.C............................................ 5
Prepared statement of.................................... 7
Cottingham, Susan, Director, Montana Reserved Water Rights
Compact Commission, Helena, Montana, on behalf of the
Western States Water Council and Western Governors'
Association................................................ 11
Prepared statement of.................................... 13
Echohawk, John, Executive Director, Native American Rights
Fund, Boulder, Colorado.................................... 15
Prepared statement of.................................... 16
Lewis, Rodney B., Former General Counsel, Gila River Indian
Community, Sacaton, Arizona................................ 51
Prepared statement of.................................... 53
Shirley, Hon. Joe, Jr., President, Navajo Nation, Window
Rock, Arizona.............................................. 46
Prepared statement of.................................... 48
Sullivan, John F., Associate General Manager, Salt River
Project, Phoenix, Arizona.................................. 25
Prepared statement of.................................... 26
Whiteing, Jeanne S., Legal Counsel and Member, Blackfeet
Tribe, Browning, Montana................................... 40
Prepared statement of.................................... 41
OVERSIGHT HEARING ON ``INDIAN WATER RIGHTS SETTLEMENTS''
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Wednesday, April 16, 2008
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Natural Resources
Washington, D.C.
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The Subcommittee met, pursuant to call, at 2:01 p.m. in
Room 1324, Longworth House Office Building, Hon. Grace F.
Napolitano [Chairwoman] presiding.
Present: Representatives Napolitano, Costa, Baca, and
Smith.
STATEMENT OF THE HONORABLE GRACE F. NAPOLITANO, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. Napolitano. Good afternoon. This meeting of the
Subcommittee on Water and Power will come to order. I would
like to make it clear that the purpose of this meeting is to
hold an oversight hearing on Indian water rights settlements.
We welcome Members of Congress. Unfortunately, our friend
and colleague and Ranking Member of the Subcommittee, Ms. Cathy
McMorris Rodgers will not be able to be with us today, but she
is ably represented by her colleague, Adrian Smith. She is
participating in a Farm Bill conference, unfortunately, and
cannot make both of them. We sometimes do get double-booked.
We welcome all guests to the Subcommittee today. We are
expecting Congressman Raul Grijalva of Tucson, Arizona, who is
Chairman of the Subcommittee on National Parks, Forests and
Public Lands, as well as Congressman Steve Pearce of Hobbs, New
Mexico, the Ranking Member of the Energy and Minerals
Subcommittee, and we will welcome them when they arrive.
I ask unanimous consent that Congressman Raul Grijalva and
Congressman Steve Pearce be allowed to sit on the dais and
participate in the Subcommittee proceedings today. Hearing no
objection, so ordered.
After my opening statement, I will recognize all of the
Members of the Subcommittee for any statement they may have.
Any Member of Congress who desires to be heard will be heard,
and, of course, any additional material from anybody in the
audience or elsewhere may be submitted for the record by
Members, by witnesses, or any interested party.
The record will be kept open for 10 business days following
this hearing. The five-minute rule, with a timer, and you have
that timer in front of you, as do I, will be enforced, and that
means I will start knocking on you as you get near. Green means
go; yellow, you are near the end, wrap it up; and red means
stop, or I will.
My opening will start with the Winneman-Wintu tribal women,
who shared a poem on water, and my staff slipped it in. This is
a very good topic to start on. ``Water says, 'Wherever you put
me, I will be in my home. I am awfully smart. Lead me out of my
springs, lead me out of rivers, but I came from the ocean, and
I shall go back into the ocean. You can dig a ditch, put me in
it, but when I am out of sight, I am on my way home.'''
There is no more basic or universal need than water. Water
is the economy. A century ago this year, the United States
Supreme Court affirmed the basic right to water for First
Americans. This case, known as the Winters case, became the
fundamental doctrine of Indian water rights. The Court asserts
that Congress must have intended to reserve water for the
Indian reservation at the time of its creation.
One hundred years after this important case, only 21 Indian
water rights claims have been resolved or are near resolution.
There are four bills addressing Indian water rights settlements
before Congress as we speak, and we are expecting nine more
this session. As western communities face more demands for
water, we can expect more tribes to assert their water rights.
Today, we are happy to welcome all of our witnesses and
thank you for being here today. I would like to thank Mr.
Bogert and his staff in the Indian Water Rights Office for
being so forthcoming with me and my Subcommittee and hope that
we will continue the same candor in our discussions this
afternoon. Our goal for the hearing is for Congress to better
understand how these settlements start, how they are
negotiated, and how the come to a finality.
This is only the beginning of our consideration on this
issue, and I hope to continue learning more and speaking to you
in the future.
[The prepared statement of Mrs. Napolitano follows:]
Statement of The Honorable Grace F. Napolitano,
Chairwoman, Subcommittee on Water and Power
Wintu tribal women shared the following poem on water.
Water says this, ``Wherever you put me I'll be in my home. I am
awfully smart. Lead me out of my springs, lead me out of my rivers, but
I came from the ocean and I shall go back into the ocean. You can dig a
ditch and put me in it...(But) when I am out of sight, I am on my way
home.''
There is no more basic or universal need than water. A century ago
this year, the United States Supreme Court affirmed the basic right to
water for the First Americans. This case, known as the Winters Case,
became the fundamental doctrine of Indian water rights. The Courts
assert that Congress MUST HAVE INTENDED to reserve water for the Indian
Reservation at the time of its creation.
One hundred years after this important case, only 21 Indian water
rights claims have been resolved or are nearing resolution. There are
four bills addressing Indian water rights settlements currently before
Congress and we are expecting 9 more this session. As Western
communities face more demands for water, we can expect that more tribes
will assert their water rights.
Today we are happy to welcome all of our witnesses. Thank you for
being here today. I would also like to thank Mr. Bogert and his staff
in the Indian Water Rights office for being forthcoming with me and the
subcommittee. I hope that we can continue the same candor in our
discussions this afternoon.
Our goal for this hearing is for Congress to better understand how
these settlements start, are negotiated, and come to finality. This is
only the beginning of our conversation on this issue, and I hope to
continue learning more in talking with you all in the future.
______
Mrs. Napolitano. With that, I welcome my colleagues for any
statement they may have, and I will now ask my acting Ranking
Member, Adrian Smith, to please take the mike.
STATEMENT OF THE HONORABLE ADRIAN SMITH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEBRASKA
Mr. Smith. Thank you, Madam Chairwoman, for holding this
important hearing.
We certainly have water supply uncertainty everywhere in
the West. Population growth, environmental mandates, activist
judges masquerading as biologists, and drought constantly put a
strain on water and power resources.
Unsettled litigation on Native American water rights is
also a cause of much uncertainty. Like most observers, I
strongly believe litigation does little to solve water
problems. Tribal and nontribal communities deserve long-term
certainty in where their water is coming from and how much they
will have.
As long as today's hearing is not about partisan finger
pointing, I think it will be a productive first step in
settling litigation and bringing about more water certainty.
Every Republican and Democratic administration, just like every
Republican and Democratically controlled Congress, will have to
wrestle with funding water priorities. As we have seen with all
water infrastructure, funding is a bipartisan problem.
The same has been true, and will be true, with funding
water rights settlements. Historically, most water rights
settlements passed by Congress are consensus based. I hope that
remains true for future settlements. This hearing can help
reflect that positive tone.
I hope today's hearing will bring about more transparency
in how the settlement process is conducted and how both tribal
and nontribal communities are impacted in this process.
Congress does not have, nor should it have, all of the answers,
but if this hearing helps provide a better roadmap for
resolution of claims, then this hearing will have been a
success.
I thank the witnesses for their time and efforts to appear
before this Subcommittee and look forward to your testimony.
Thank you.
[The prepared statement of Mr. Smith follows:]
Statement of The Honorable Adrian Smith, a Representative in Congress
from the State of Nebraska
Thank you, Madame Chairwoman, for holding this important hearing.
We have water supply uncertainty everywhere in the West. Population
growth, environmental mandates, activist judges masquerading as
biologists, and drought constantly put a strain on water and power
resources.
Unsettled litigation on Native American water rights is also a
cause of much uncertainty. Like most observers, I strongly believe
litigation does little to solve water problems. Tribal and non-tribal
communities deserve long-term certainty in where their water is coming
from and how much they will have. As long as today's hearing isn't
about partisan finger-pointing, I think it will be a productive first
step in settling litigation and bringing about more water certainty.
Every Republican and Democrat Administration--just like every
Republican or Democrat-controlled Congress--will have to wrestle with
funding water priorities. As we've seen with all water infrastructure,
funding is a bipartisan problem. The same has been true--and will be
true--with funding water rights settlements. Historically, most water
rights settlements passed by Congress are consensus-based. I hope that
remains true for future settlements. This hearing can help reflect that
positive tone.
I hope today's hearing will bring about more transparency in how
the settlement process is conducted and how both tribal and non-tribal
communities are impacted in this process. Congress doesn't have--nor
should it have--all the answers, but if this hearing helps provide a
better roadmap for resolution of claims, then this hearing will have
been a success.
I thank the witnesses for their time and efforts to appear before
this Subcommittee and look forward to their testimony.
______
Mrs. Napolitano. Thank you, Mr. Smith. Mr. Costa?
STATEMENT OF THE HONORABLE JIM COSTA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Costa. Thank you very much, Madam Chairwoman, for this
timely hearing. You are to be commended for your efforts to
bring greater transparency to an issue that is troublesome in
many parts of the country, as it relates to Native American
tribes, but as we all know, water is the lifeblood of our
ability to sustain life, and, therefore, as it relates to water
issues, not only in the West but throughout the country, we
oftentimes have contentious issues. Your desire to be Solomon-
like in trying to bring the various parties together for
clarification on these issues and to try to reach settlement
agreements, notwithstanding the complication of those
settlement agreements, is something that I think we all want to
associate ourselves with.
So I want to thank you again for holding this very timely
hearing this afternoon, and we will continue to work with you
and all of the various Native American sovereign nations that,
like other parts of our country, have difficult challenges when
it comes to ensuring not only their current water needs, their
appropriated or riparian water rights, but their long-term
water needs as climate changes and our population growth
increases. Thank you very much.
Mrs. Napolitano. You are very welcome, sir. I beg the
indulgence of the panel of witnesses and others because it
looks like we may have a vote in about 15 minutes, which means
we will take leave and return to continue the hearing.
Now, we will proceed to hear from our witnesses. We have
two panels, whose witnesses will be introduced before they
testify. After we hear from our first panel, we will have a
question-and-answer period before we move on to the second
panel.
All of your submitted prepared statements will be entered
into the record, so if you can--I know because I read one of
them, it took me a little while--if you condense it to the most
salient points you want to make, that would be greatly
appreciated because you will run out of time by the time you
get to the fifth page. Then you have 12 more.
All witnesses will be asked to summarize high points of
your testimony, limit your remarks to five minutes. The timer
will be used. That also applies to all of the questioning from
the Members. If there are additional questions, I am sure we
will have a second go-around.
For our first panel, we have Michael Bogert, Chairman of
the Working Group on Indian Water Rights at the Department of
the Interior in Washington; Susan Cottingham, Director of the
Montana Reserved Water Rights Compact Commission from Helena,
Montana. She will be testifying on behalf of the Western States
Water Council and the Western Governors' Association.
Third, we have John Echohawk, Executive Director of the
Native American Rights Fund in Boulder, contracting officer;
and, finally, John F. Sullivan, General Manager of the Salt
River Project of Phoenix, Arizona, and welcome to our panel.
I would like to have us begin with Mr. Bogert, sir.
STATEMENT OF MICHAEL BOGERT, CHAIRMAN OF THE WORKING GROUP ON
INDIAN WATER RIGHTS, U.S. DEPARTMENT OF THE INTERIOR,
WASHINGTON, D.C.
Mr. Bogert. Madam Chairwoman, thank you. As a preliminary
matter, I wanted to extend the Secretary's warmest greetings,
and we appreciate the opportunity to have been invited to speak
with you today.
With your indulgence and on my time, I would like to
introduce, if I could, Madam Chairwoman, my Indian Water Rights
staff.
Mrs. Napolitano. Please do.
Mr. Bogert. I would like to introduce Pam Williams, who is
our Director of the Indian Water Rights Office; Cynthia Reid
from our Legislative Affairs Unit; Bella Sewald, soon to be in
the Solicitor's Office, but she has been part of our team on
the water rights settlement front. I think Frank Frieman is
here from our team.
Madam Chairwoman, we appreciate the opportunity to
introduce our good people at Interior. They are the heart and
soul of our team that deals on a daily basis with these water
rights. We greatly appreciate your accommodation in letting us
help you become a little bit more familiar with our team.
Mrs. Napolitano. With one proviso, sir. We need their phone
numbers.
Mr. Bogert. We will provide those, Madam Chairwoman.
Mrs. Napolitano. Thank you, sir.
Mr. Bogert. As another matter of protocol, I wanted to make
sure that the Committee and the Chair knew that the Secretary
extends his greetings to President Shirley, one of our great
tribal leaders across the country. He values the president's
friendship, and we appreciate that he is here today, and the
Secretary sends his warmest greetings.
Chairwoman Napolitano and distinguished Members of the
Subcommittee, thank you for the opportunity to visit with you
this afternoon about the administration's policy on probably
some of the most important work that we can ever do within the
administration and on Capitol Hill.
Madam Chairwoman, we appreciate your leadership on this
issue. We appreciate the fact that we have a chance to delve
little bit further into the details of how these settlements
are put together and how we can work with you here in Congress.
Our experience is that tribal governments increasingly seek
quantification of their water rights as a way to confirm and
protect their interests in vital and culturally significant
water resources. We also know that Indian water settlements
have the great potential to bring much needed economic
development to struggling reservation economies.
States involved in these negotiations increasingly seek
quantification of the Indian water rights in order to provide
certainty for holders of state-based water rights, clarify
state authority to manage water resources within their borders,
and plan for the future.
The water rights that the tribal governments own, under the
U.S. Supreme Court Winters doctrine, Madam Chairwoman, that you
identified in your remarks, have been described by some legal
scholars as ``a shadow body of law'' and are often viewed as
looming large over existing uses in many water basins of the
west where Indian water rights have yet to be decreed.
Non-Indian communities relying on increasingly scarce water
supplies realize that their water rights cannot be secure if
their claims are not compatible with Indian water rights, and
no agreement has been reached.
This administration, like previous administrations,
believes that, whenever possible, negotiated Indian water
rights settlements are preferable to protracted litigation over
Indian water rights claims. A judicial decree does not get
``wet water,'' as we describe it in the trade, or actual water,
water that can be used for on-reservation uses by our tribal
governments to tribes, nor does it provide new infrastructure
or do anything to necessarily encourage improved water
management in the future.
Negotiated settlements, on the other hand, can, and
generally do, address these critical issues. For tribes,
assertion of water rights is a reaffirmation of their
sovereignty and a step toward economic self-sufficiency. For
states, these negotiations can be an opportunity to resolve
outstanding issues that local and state agencies have been
unable, for whatever reasons, to conclude or successfully
administer in the past.
Many communities favor settlement because they are fed up
with top-down governmental agency and judicial decision-making
and desire to attempt to control their own destiny as much as
possible.
Thus, settlement negotiations allow everyone a place at the
table and a chance to participate in the decisions that will
impact the future.
When negotiating and evaluating Indian water rights
settlements, the administration follows the criteria and
procedures, longstanding policy guidance on Indian water
settlements followed by all administrations since 1990. Among
other considerations for Federal participation in the
negotiation of Indian water rights settlements, the criteria
provide guidance on the appropriate level of Federal
contribution to settlements, incorporating consideration of
calculable legal exposure plus costs related to Federal trust
or programmatic responsibilities.
The criteria are best viewed as standards and guidance that
the Federal government can use to weigh the merits of a
settlement. In some cases, a settlement that falls short with
respect to one or more of the factors described in the criteria
may be so heavily weighted with respect to other factors that
the administration may decide that settlement should generally
be supported, despite misgivings about some aspect of the
proposed agreement.
Assessing the value of potential claims against the United
States also requires calibration to the particular
circumstances and the problems that the settlement seeks to
address. Achieving a settlement is about compromise from all
sides on fundamentally held beliefs in the name of purchasing a
workable agreement.
Madam Chair, I was just remarking with Susan and John, who
have been through many of these, that those who believe that
collaboration is an easy path; they have not truly collaborated
in these contexts, so maybe we could talk a little bit more
about that.
Accordingly, each settlement is inherently imperfect for
all of the parties, and, instead, these agreements are about
sharing the burdens, the risks, and the benefits.
Since the Secretary became the 49th Secretary of the
Interior, we have traveled all over the West in the last two
years to provide technical assistance and support for our
negotiating teams. Secretary Kempthorne has personally directed
these teams to engage closely in an effort to purchase solid
achievements rather than just maintain the status quo.
To provide a secure foundation for these commitments, we
are taking steps to permanently establish the Indian Water
Rights Office within the Office of the Secretary at the
Department of the Interior. We believe this would improve the
institutional capacity of the office and confirm its importance
to Interior programs and the future of the West.
Madam Chairwoman, we appreciate your interest and
leadership and that of the Subcommittee on Indian Water Rights
Settlements. As I said earlier, and as we have visited
privately, this is some of the most important work that we can
do with you and Congress.
We look forward to close coordination with your fine staff
and the Subcommittee over the coming year. This completes my
statement, Madam Chairwoman. I have one more staff member, John
Bezdek, of our Solicitor's Office, who is also very valuable to
us in our Indian water rights settlements, and thank you for
your time.
[The prepared statement of Mr. Bogert follows:]
Statement of Michael Bogert, Chairman of the Working Group on
Indian Water Settlements, U.S. Department of the Interior
Chairwoman Napolitano and members of the Subcommittee, I would like
to thank you for the opportunity to appear before you today to discuss
this Administration's policy on Indian water rights settlements. Tribes
increasingly seek quantification of their water rights as a way to
confirm and protect their interests in vital and culturally significant
water resources and bring much-needed economic development to
struggling reservation economies. States increasingly seek
quantification of Indian water rights in order to provide certainty for
holders of State-based water rights, clarify State authority to manage
water resources within their borders, and plan for the future. The
water rights that Indians own under the U.S. Supreme Court's Winters
doctrine have been described by Professor Charles Wilkinson as ``a
shadow body of law'' 1 and are often viewed as looming over
existing uses in many water basins of the West where Indian water
rights have yet to be decreed. Non-Indian communities, relying upon
increasingly scarce water supplies, realize that their water rights
cannot be secure if their claims are not compatible with Indian water
rights and no agreement has been reached.
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\1\ Charles F. Wilkinson, The Future of Western Water Law and
Policy, in Indian Water 1985: Collected Essays 51, 54-55 (Christine L.
Miklas & Steven J. Shupe eds., 1986).
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My experience shows that instead of being a threatening Sword of
Damocles hanging over State water rights regimes, Indian water rights
can serve as a needed spur towards cooperation. Indian water rights
negotiations have the potential to resolve long-simmering tensions and
bring neighboring communities together to face a common future. I saw
this happen with the Nez Perce settlement agreement in my home state of
Idaho. It is happening today in Arizona, Montana, Nevada, Washington,
Utah, and other States with completed Indian water right settlements.
I would like to begin this statement by describing the event held
in Arizona one month ago to celebrate the Arizona Water Settlements Act
of 2004. The event was attended by almost 400 people from all over the
State, ranging from members of the tribes whose water rights were
settled through the agreements underlying the act to the mayors of the
cities whose municipal supplies were secured to representatives of
irrigation districts whose farming rights were protected to U.S.
Senator Jon Kyl and other congressional representatives to State and
Federal dignitaries. People who had for many years seen each other as
rivals for a limited resource came together in celebration of success
after a decades-long struggle to craft an agreement that promises to
provide sufficient water to meet their future needs and provides a
framework for sharing shortages and funding needed investments in a
common future.
As noted by the Secretary's remarks on the occasion, delivered by
Assistant Secretary--Indian Affairs Carl Artman, the Arizona settlement
marked ``an important victory in an on-going struggle that will only
broaden and intensify in the coming decades.'' It is undoubtedly true
that more communities will struggle with water shortages in the years
to come, with drought and climate change exerting pressures to adapt
long-term water management to new realities. This Administration, like
previous Administrations, believes that when possible, negotiated
Indian water rights settlements are preferable to protracted litigation
over Indian water rights claims. But achieving a settlement is about
much more than seeking Federal funding. It is about compromise, from
all sides, on fundamentally held beliefs in the name of producing a
workable agreement. It is about newfound understandings between
neighbors regarding the ways in which their long-term interests are
similar, and the ways in which these interests and visions for the
future may be different. It is about sharing the burdens, as well as
the benefits, that can arise from investments in infrastructure. It is
about facing harsh realities about the total resources that are
available and about making decisions that will reverberate for future
generations of tribal members and non-Indians alike.
The remainder of this statement will focus on two of the
fundamental questions regarding Indian water rights settlements. First,
I will discuss the reasons settlements are generally preferable to
litigation. Then, I will discuss the policies underlying the
Administration's guidance on developing a position on proposed Indian
water rights settlements, and explain the need for this framework for
negotiating settlements. I will end by discussing the need for closer
cooperation between different parts of the Federal government in
promoting sound settlement policy.
Settlement versus Litigation
Indian water rights are especially valuable in the West for two
reasons: first, Indian water rights cannot be lost due to nonuse, and
second, Indian water rights have a priority date no later than the date
of the creation of a reservation. Because most reservations were
established prior to the settlement of the West by non-Indians, even
very senior non-Indian water rights are often junior in priority to
Indian water rights. Because tribes have lacked resources to develop
their own domestic water supply systems, irrigated agriculture or other
industry to make use of their water resources, their ability to use
their water rights has been limited. As a result, water that would
almost certainly be decreed to tribes if an adjudication were held has
often been used for years by neighboring non-Indian interests and
communities.
In a typical Western stream adjudication, a presiding judge can
decree that a Tribe has a right to a certain amount of water of a
certain priority date. Even though a judicial decree provides absolute
certainty with respect to who owns what water, when compared with the
status quo, adjudication may cast an even greater pall of uncertainty
over existing water uses in the system with a junior priority date to
the tribal water right because those users have no way of knowing when
the tribe will begin to use its water. A judicial decree does not get
``wet water'' to tribes, nor does it provide new infrastructure or do
anything to necessarily encourage improved water management in the
future. Negotiated settlements, on the other hand, can, and generally
do, address these critical issues. Through a settlement, parties can
agree to use water more efficiently or in ways that obtain
environmental benefits, or to share shortages during times of drought.
In exchange for settlement benefits, tribes can agree to subordinate
use of their water rights so that existing water uses can continue
without impairment. Parties to negotiations can agree to terms for
mutually beneficial water marketing that could not otherwise occur
because of uncertainties in Federal and State law. Settlement
negotiations foster a holistic, problem-solving approach that contrasts
with the zero-sum logic of the courtroom, replacing abstract
application of legal rules that may have unintended consequences for
communities with a unique opportunity for creative, place-based
solutions reflecting local knowledge and values.
As I have traveled around the country to meet with the tribes and
States and local governments that are involved in Indian water rights
settlement negotiations, I have heard certain themes repeatedly. First,
for tribes, assertion of water rights is a re-affirmation of their
sovereignty and a step towards economic self-sufficiency. Second, for
States, these negotiations can be an opportunity to resolve outstanding
issues that local and state agencies have been unable to conclude or
administer successfully in the past. Third, it is clear that many
communities favor settlement because they are fed up with top-down
governmental decision-making. They want to take their future into their
own hands and certainly do not want their future to be decided by the
stroke of a judge's pen. Settlement negotiations allow all stakeholders
a place at the table and a chance to participate in the decisions that
will impact their futures.
For all these advantages, settlement does pose certain risks.
Tribes risk being awarded less water than they may be able to obtain
through litigation in exchange for other settlement benefits which may
be difficult to quantify. Non-Indian communities risk losing a status
quo in which they are able to use Indian water without compensating the
Tribes. And the Federal government risks being asked to foot the bill
for costly water infrastructure projects that will allow existing water
users to continue to use the water in the way that built State and
local economies while still allowing tribes the right to use water that
belongs to them but that they have been unable to use in the past.
The Federal government should provide incentives for stakeholders
to consider mutually beneficial settlement rather than rancorous
litigation where possible. But there is a line between a reasonably
tailored incentive and being placed on the hook for costs that are
disproportionate to the benefits of settlement. The next section of
this statement discusses the policy guidance that the Executive Branch
has used since 1990 to establish a basis for negotiation and settlement
of claims related to Indian water resources.
The Role of the Criteria and Procedures
There is no cookie-cutter solution to the complex struggles
involving tribal, environmental, domestic, industrial, and agricultural
claims on limited water supplies that are arising all over the country.
However, there are some common challenges in settlements that call for
some generally applicable standards to guide the Federal government's
participation in settlement negotiations and to inform a decision on
whether a proposed settlement should be supported.
When negotiating and evaluating Indian water rights settlements,
the Administration follows longstanding policy guidance on Indian water
settlements found at 55 Fed. Reg. 9223 (1990), Criteria and Procedures
for the Participation of the Federal Government in Negotiations for the
Settlement of Indian Water Rights Claims (Criteria). These Criteria
have been followed by all Administrations since 1990. Among other
considerations for Federal participation in the negotiation of Indian
water rights settlements, the Criteria provide guidance on the
appropriate level of Federal contribution to settlements, incorporating
consideration of calculable legal exposure plus costs related to
Federal trust or programmatic responsibilities.
The Criteria call for Indian water rights settlements to contain
non-Federal cost-sharing proportionate to the benefits received by the
non-Federal parties, and specify that the total cost of a settlement to
all parties should not exceed the value of the existing claims as
calculated by the Federal Government. These principles are set out in
the Criteria so that all non-Federal parties have a basic framework for
understanding the Executive Branch's position. The Criteria also set
forth consultation procedures within the Executive Branch to ensure
that all interested Federal agencies have an opportunity to collaborate
throughout the settlement process.
The Criteria are best viewed as standards that the Government can
use to weigh the merits of a settlement. In some cases, a settlement
that falls short with respect to one or more of the factors specified
in the Criteria may be so heavily weighted with respect to other
factors that the Administration may decide that the settlement overall
should be supported, despite misgivings about some aspect of the
proposed agreement. Assessing the value of potential claims against the
United States also requires calibration to the particular circumstances
and the problems that the settlement seeks to address. Furthermore, as
legal doctrines involving not only Indian water rights but also
applicable environmental statutes such as the Endangered Species Act
and Clean Water Act evolve, this liability assessment must also evolve.
Two of the specifically enumerated factors in the Criteria reflect
an overarching goal of this Administration in evaluating a proposed
settlement, which I think of as ``peace in the valley.'' Criterion 7
holds that ``[s]ettlements should be structured to promote economic
efficiency on reservations and tribal self-sufficiency.'' In addition
to the inherent value of sovereignty to tribes, successful reservation
economies are crucial to long-term good relationships between tribal
and non-tribal communities. Settlements that can overcome cycles of
poverty and hopelessness on reservations will do a great deal of good
in the long term, helping to revive industry and tourism in places that
are really struggling as well as furthering the U.S. goal of Tribal
self-sufficiency and sovereignty. Another key criterion, criterion 10,
addresses the goal of fostering cooperation more directly, stating that
``Federal participation in Indian water rights negotiations should be
conducive to long-term harmony and cooperation among all interested
parties.'' This criterion calls upon the federal government to use its
influence to provide parties with incentives to work together to
identify creative solutions rather than be consumed in endless
conflict.
Given Interior's historic role as the architect of many of the
Congressionally-enacted policies that led to the development of the
West, and as the trustee of Federally recognized tribes, the ``peace in
the valley'' factors remain fundamental to this Administration's
evaluation of proposed settlements. But we must also take a hard look
at the cost-related factors included in the Criteria as well in order
to ensure that the interests of U.S. taxpayers are being protected.
Settlement should not be a blank check for a region to obtain a Federal
subsidy that may fairly be viewed as wasteful or excessive. One of the
advantages of the cost sharing requirement under the Criteria is that
the willingness of settling parties to cost share for a project is a
good indicator of how truly invested they are in the proposed solution.
It is all too easy to be in favor of a plan that comes at the sole
expense of the Federal government and all taxpayers. But a settlement
to which many interests are contributing deserves to be taken more
seriously and given more favorable treatment by both Executive branch
and Congressional reviewers.
The Need for Cooperation among Agencies and Branches of Government
The Criteria were written to ensure coordination and common purpose
among the relevant executive branch agencies--particularly Interior,
the Department of Justice, and OMB, but also sometimes including Indian
Health Service, the Forest Service, and others. The procedural
provisions of the Criteria also reference providing briefings for
Congress consistent with the Administration's negotiation position on
settlements.
As a practical matter, many settlement proponents are finding that
the process outlined under the Criteria takes a long time and that the
Federal position on funding is very different than the levels of
funding and non-Federal cost share that they had expected. In this
situation settlement proponents have decided that their energies would
be better spent convincing Congress to enact their settlement
legislation without the support of the Administration. As this
Subcommittee wrestles with these requests, we urge caution. The
settlements that have been introduced in this Congress so far are still
the tip of the iceberg. It is Interior's estimate that as many as 9
settlement bills may be introduced before this session ends. At this
time, three of the anticipated 9 have been introduced and have already
had hearings in the last year: authorizing legislation for the Duck
Valley (S. 462/H.R. 5293), Soboba (H.R. 4841), and Navajo-San Juan (S.
1171/H.R. 1970) settlements.
Since 2002, three bills authorizing Indian Water Rights settlements
have been enacted with either the full or qualified support of this
Administration: Zuni (P.L. 108-34), Nez Perce (P.L. 108-447), and the
Arizona Water Settlements Act (P.L. 108-451). We have testified in
favor of a fourth settlement, the Soboba settlement (H.R. 4841), which
we hope will be enacted shortly, and against authorizing legislation
for two other settlements, the Navajo-San Juan (S. 1171/H.R. 1970) and
Duck Valley (S. 462/H.R. 5293) settlements. Enactment of all 9 of the
bills that are expected to be introduced this Congress with the funding
levels being proposed by non-Federal settlement proponents would
subject the Federal government to billions of dollars of additional
authorizations.
In considering proposed settlements, we believe it is important to
remember the dynamics of settlement. By this I mean that each enacted
settlement establishes a benchmark that influences the course of
ongoing settlement negotiations in other places. There are currently 19
Federal negotiation teams that have been established to support
settlement negotiations, and we have received 7 requests for new teams
and believe that more requests will be forthcoming. If this Congress
were to proceed to enact numerous settlement bills over the
Administration's objection with provisions, including cost share
provisions, that are not consistent with the Criteria, it would be very
difficult in the future for Federal negotiators to participate in
settlement negotiations, set realistic expectations, and convincingly
hold the line on settlement costs.
In closing, I would like to emphasize the commitment of the
Department of the Interior to successful negotiation of these
settlements. When nominating then-Governor Kempthorne to serve as the
49th Secretary of the Interior, President Bush specifically noted that
one of Governor Kempthorne's qualifications to serve was his previous
work to resolve a long-standing water rights issue, which was, of
course the Nez Perce agreement in Idaho. The Secretary has made
supporting the Indian water rights settlement negotiation process one
of his priorities. His staff has travelled all over the West over the
last two years to provide technical assistance and support to
negotiating teams.
Secretary Kempthorne has personally directed these teams to engage
closely in an effort to produce solid achievements rather than just
maintain the status quo. To provide a secure foundation for these
commitments, we are taking steps to establish the Indian Water Rights
office permanently within the Office of the Secretary at the Department
of the Interior. This would improve the institutional capacity of the
office and confirm its importance to Interior programs and to the
future of the West.
Madame Chairwoman, we appreciate your interest in Indian water
rights settlements. We look forward to close cooperation with this
Subcommittee over the coming year. This completes my statement. I am
happy to answer any questions the Subcommittee may have.
______
Mrs. Napolitano. Thank you, sir. I appreciate your
introducing your staff, and, do not forget, we will want your
phone numbers. Thank you so very much for your testimony, and
now we have Susan Cottingham.
STATEMENT OF SUSAN COTTINGHAM, DIRECTOR, MONTANA RESERVED WATER
RIGHTS COMPACT COMMISSION, HELENA, MONTANA, ON BEHALF OF THE
WESTERN STATES WATER COUNCIL AND WESTERN GOVERNORS' ASSOCIATION
Ms. Cottingham. Good afternoon, Madam Chairwoman. My name
is Susan Cottingham. I am Director of the Montana Reserved
Water Rights Compact Commission.
This commission was established by the Montana legislature
nearly 30 years ago to negotiate Indian water rights
settlements rather than litigate them, and, over the years, we
have concluded agreements with six out of the seven Indian
tribes in Montana. We currently have three settlements that are
being readied for congressional approval this year.
In this capacity as Director of the commission and as a
member of the Ad Hoc Group on Indian Water Settlements, I have
worked for 22 years on Indian water settlements.
I am very pleased today to be appearing with Mr. Bogert. We
have appreciated so much the energy of him and always the
continuing energy of the Indian Water Rights Office, who have
worked very, very hard on these settlements over the years
under some very difficult political situations. We understand.
I am also honored to be here with John Echohawk, who is one
of my colleagues on the Ad Hoc Group on Indian Water
Settlements, and they have been a leader in working on these
settlements around the West.
The Western Governors have consistently had a policy, over
the last couple of decades, of supporting these negotiated
settlements. There are many benefits for the settlements, and I
think Mr. Bogert touched on some of them. I know, from our
point of view, the settlements have avoided very costly and
lengthy litigation.
We have been able to come up with some very practical
solutions to very difficult water-allocation issues because, as
you can imagine, in many of these watersheds we have had
unquantified tribal reserved water rights and also non-Indian
water users who have made many big investments in developing
water, and so we have to come up with some very practical
solutions to these settlements.
They have fostered some very sound management practices. We
have looked at conservation and other measures to try to
produce water for these settlements, and, maybe most
importantly, they have provided some cooperative partnerships
between the non-Indians and the tribes which were not there
before, and that we are very proud of.
So I just wanted to touch briefly on those. I think a
couple of the major issues that you will see in everyone's
written testimony and that we will be discussing today are
funding the Indian water settlements and the negotiation
process over the years--and how it has worked, or what
difficulties we have had with it. I just want to touch on those
briefly in the time that I have.
The funding issue is one that we have grappled with over
the years. Each individual settlement comes and is dealt with
on its own merits, but because there are criteria procedures
that the United States follows, sometimes we find ourselves in
the position of the United States, opposing our settlements
because the dollar figures are too high.
So we have worked, over the years, to try to find funding
mechanisms. I think the key issue there is we want to make sure
that the Indian water settlements are funded but not at the
expense of other important tribal programs. We do not want
tribes to be competing against each other or other Interior
programs, so we have really looked for a funding mechanism. I
think the efforts now, this year, to look at the Reclamation
Fund and perhaps use some of the money from the Reclamation
Fund to begin to fund those settlements is a very exciting
development, and we hope that your Committee will take a look
at those issues as well.
The other issues are the negotiating process, and I think
you will hear, from some of the case studies today, that it is
a long and difficult process. It is one in which the Federal
government's involvement has been a mixed bag. Sometimes we
have great negotiating teams that are involved early on; other
times, we have negotiating teams that come in at the last
minute, and the tribes and states have agreements, and we have
to sort of battle it out at the last minute.
So I think we are hopeful that the Federal negotiating
teams get some decision-making authority early on in the
process so that they can be very active players in that
process. We understand that the Indian Water Rights Office's
budgets often do get cut, and they do the best they can, but we
think that it really needs to be addressed. It really is an
issue that frustrates a lot of us out West.
I think it is clear that if we fail to conclude these
settlements, we are going to go to litigation, which is not
going to serve the tribes well, to get them money for their
water development or the non-Indian water users in the states
who are looking for certainty.
There is a finite number of settlements that are left, and
I think the main issue we need to deal with is, even though
they seem expensive now, they are going to be even more
exorbitantly expensive 10 or 20 years down the road, and they
are an obligation that the United States has to these tribes
and to the western communities.
So we are deeply grateful for your attention to this issue,
and we hope to work with you and your staff on coming up with
some solutions on how we might get through some of these
hurdles and move forward in the future. Thank you again.
[The prepared statement of Ms. Cottingham follows:]
Statement of Susan Cottingham, Director, Montana Reserved Water Rights
Compact Commission, on Behalf of the Western Governors' Association and
the Western States Water Council
Good afternoon. My name is Susan Cottingham. I am director of the
Montana Reserved Water Rights Compact Commission. In this capacity, and
as a member of the Ad Hoc Group on Indian Water Settlements, I have
worked to promote these Indian Water Rights Settlements for nearly 22
years.
I appear before you today representing the Western Governor's
Association (WGA) and the Western States Water Council, WGA's water
policy arm.
First: let me thank the Subcommittee, not only for the opportunity
to appear but more importantly, for recognizing the importance of these
settlements to Western communities and providing a forum for discussing
the difficulties currently impacting their ultimate success.
For the past two decades, the Western Governors have strongly and
consistently supported the negotiated settlement of Indian reserved
water rights. Their most recent policy statement reads: ``The Western
Governors continue to support negotiated rather than litigated
settlement of Indian water rights disputes. The federal government has
major responsibility for ensuring successful conclusion of the process,
including providing information and technical assistance to tribes,
providing federal negotiating teams to represent one federal voice and
further the process, seeking approval of agreements, fully funding the
federal share, and ensuring that the settlements are implemented.''
The western states' sovereign counterparts, the Indian nations
claiming water rights, have also supported negotiated settlement of
these difficult legal issues. The National Congress of American Indians
(NCAI) ``believes that the settlement of tribal water and land claims
is one of the most important aspects of the United States' trust
obligations to Indians and is of vital importance to the country as a
whole.'' My colleague John Echohawk will be speaking in more depth
today from the tribal perspective. I also want to note with
appreciation Mr. Bogert's sincere efforts, with the support of the
Indian Water Rights Office at Interior, to further the settlement
process in the context of various negotiations ongoing in the West,
reflecting a commitment Secretary Kempthorne made early in his tenure
as Interior Secretary.
Over the past 25 years, 20 Indian water rights settlements have
been reached in the western states and approved by Congress. At the
time these settlements were approved, very few were supported by the
governing administration. Although progress has been made, many more
settlements will need to be addressed in the future. These settlements
have provided practical solutions, infrastructure and funding, while
saving millions of dollars of private and public monies by avoiding
prolonged and costly litigation. They have also fostered conservation,
sound water management practices, and established the basis for
cooperative partnerships between Indian and non-Indian communities.
However, over the years, federal fiscal and legal policies have
hindered this successful process. Under the ``Criteria and Procedures''
adopted in 1990, the Department of Interior has continued to espouse
settlement while the administration has taken an increasingly narrow
view of its trust responsibilities to tribes and its willingness to
fund settlements that benefit non-Indians. In coordination with the
Office of Management and Budget (OMB) and the Department of Justice
(DOJ), the Department of Interior has been asserting that its
contribution to settlement should be no more than its calculable legal
exposure. Even this can be narrowly drawn so that often its financial
obligation is little or none.
In addition to a narrow view of trust responsibilities, budgetary
policy can also frustrate the settlement process. Under current
budgetary policy, funding of water right settlements must be offset by
a corresponding reduction in some other discretionary component of the
Interior Department's budget. It is difficult for the administration,
the states, and the tribes to negotiate settlements knowing that
funding may only occur at the expense of some other tribal or other
essential Interior Department program. The WGA and WSWC believe that
Congress should take steps to ensure that any settlement authorized by
the Congress and approved by the President will be funded and
implemented without a corresponding offset to some other tribal or
essential Interior Department program.
It has long been the accepted premise that meeting the cost of
Indian water and infrastructure in Indian water rights settlements is
the trust responsibility of the federal government. In this regard, the
WGA and the WSWC believe opportunities to more fully utilize revenues
accruing in the Reclamation Fund should be explored as an appropriate
source for this funding.
While federal support is an essential part of these settlements,
the western states acknowledge that they should bear an appropriate
share of the settlement costs, especially those corresponding to non-
Indian benefits. In Montana over $56 million has been appropriated for
existing settlements. More than an additional $20 million could
potentially be authorized in the next session. In New Mexico the
legislature has appropriated over $36 million for Indian water rights
settlements. In addition to contributing monies to fund the
settlements, many states have devoted significant in-kind resources to
cover the administrative costs associated with the negotiations
process.
The states and the federal government must work together to jointly
design and fund settlements projects that provide the greatest benefit
for Indian and non-Indian water users alike. Instead, the western
states and tribes have continued to work hard to conclude water
settlements in a virtual vacuum of meaningful federal participation and
financial commitment. Although federal negotiating teams have been
appointed, in practice they are often given little authority for
substantive policy decisions until late in the process. Settlements in
Montana and New Mexico have languished, in part, because the Interior
Department has pulled back its funding commitments. Granting greater
decision-making authority to federal negotiating teams throughout the
settlement process could significantly streamline future negotiations
and administration approval. In addition, providing the Interior
Department with sufficient funding to properly staff negotiating teams
with needed personnel will reduce the strain on existing teams and
facilitate future settlement.
Failure to conclude meaningful water settlements will undermine the
western states' planning for sustainable growth and disrupt their
ability to meet long-term water demands. State and tribal commitment to
pursue these settlements may be jeopardized if federal support is not
forthcoming. Litigation could also substantially disrupt non-Indian
uses. Further, if tribes are forced to litigate their water rights,
their eventual quantification may be meaningless without federal
dollars to develop their water supplies for their homelands.
The national obligation to Indian water rights settlements is a
finite list of pending problems, one that grows shorter with each
settlement. It is a national obligation that can be met in full, once
and for all, by concluding settlements with those tribes and pueblos
whose rights have not yet been adjudicated. But, while the number of
pending settlements is set, the cost of implementing them will continue
to rise. Postponing this duty only increases its cost to the nation, as
it perpetuates the hardship to Indian people unable to enjoy the full
use of their water rights and the inability of non-Indian governments
to plan for water use in the absence of firm data on respective use
entitlements.
I'd like to briefly use Montana's experiences with these issues as
illustration.
The first compact to be evaluated through the Criteria and
Procedures was Northern Cheyenne in 1991. The parties spent three years
in intensive negotiations. In April of that year, the federal team
supported the compact in the Montana legislature. By May when the
working group first looked at it, the administration had changed its
position and began actively opposing the compact. The State of Montana
and the Tribe were forced to end run the administration's opposition
(as has happened with other settlements since) and Congress approved
the settlement later that year. Although former President Bush signed
the bill, the United States didn't officially sign the compact until
over two years later.
In contrast, the Rocky Boys settlement was approved with the
support of the administration in 1999 some eight years later. The
administration worked closely with the Tribe to propose $50 million in
settlement funds by taking a broader view of the United States' trust
responsibility.
Montana now has three settlements awaiting Congressional approval.
Although we have been working with administration officials to deal
with concerns they have with the bills, we do not believe they will
support any of these settlements (some of which have been in the works
for 20 years). Because of the United States' continued refusal to fund
these agreements in any meaningful way, we again expect the Tribes and
State to come to Congress without administration support.
The two major issues before us today, the federal decision-making
process and the funding necessary for settlement, are inextricably
connected. Instead of engaging early in the negotiating process to come
up with creative and meaningful solutions to these difficult allocation
problems, the administration uses an increasingly narrow view of its
legal exposure to oppose these settlements after the States and Tribes
have labored to conclude an agreement. We sincerely hope this
Subcommittee's historic hearing will call attention to the difficulties
we are facing and help to foster a new dialogue on how to fund these
settlements so vital to our Western future.
______
Mrs. Napolitano. Thank you, Ms. Cottingham. [Off mike.]
We have a very short time to get to the vote, but we will
be back probably--it is going to be, at least, half an hour,
maybe 40 minutes because there are about five votes. So hold
tight for us, and we will be back. Thank you.
[Whereupon, at 2:23 p.m., a short recess was taken.]
Mrs. Napolitano. The Committee has now reconvened, and,
again, I apologize for the delay but, as you know, we had to go
and do some voting.
Now, we will move on to the third witness, and that is Mr.
John Echohawk, Executive Director, Native American Rights Fund,
Boulder, Colorado.
STATEMENT OF JOHN ECHOHAWK, EXECUTIVE DIRECTOR, NATIVE AMERICAN
RIGHTS FUND, BOULDER, COLORADO
Mr. Echohawk. Thank you, Madam Chairwoman. I am a member of
the Pawnee Nation of Oklahoma. I am a lawyer, and I have been
working on these Indian water rights settlements for 38 years,
and we have, I think, had some progress, but we have got quite
a ways to go yet.
We are currently working on behalf of four tribes. In
addition to our work on behalf of these individual tribes, in
the last 26 years, we have been privileged to be part of the Ad
Hoc Group on Indian Water Rights and, as such, representing
tribes and their interests in meetings with the states and
businesses from the West. It has been a pleasure to work with
Susan Cottingham and the Western Governors' Association, the
Western States Water Council, for the last 26 years.
The reason we have come together in this ad hoc group is
because we have determined that we have got a common interest--
the tribes and the states and the businesses in the West--a
common interest in coming together and advocating in Washington
for the United States government to fund its fair share of
Indian water rights settlements when they have been negotiated.
It has been our experience that the funding issue is the most
difficult issue in these Indian water rights negotiations.
This has been a problem that we have had through all of the
various administrations in the last 26 years and the various
Congresses. No matter who is in power in the administration or
in the Congress, the issues is always the same, and that is
funding: How are these settlements going to be funded? That
remains the issue today. We feel like the United States
government has moral and legal responsibilities, under the
trust's responsibility, to fund its fair share of these
settlements.
We have found ourselves, in the West--the states, the
tribes, and the private parties--in litigation in courts
staring at each other, knowing that, in the end, there are
going to be winners and losers and wondering why we are doing
that--because we did not cause this problem. The Federal
government caused this problem. They did not protect Indian
water rights as trustee. At the same time, they encouraged the
states to move forward with development, under state law, and
that is what they have done. So now we are pitted against each
other in a situation that was not of our making.
So to resolve this situation, we think it is only fair that
the Federal government ought to pay its fair share of those
settlement costs, and trying to find a way to do that has
always been the major focus of the ad hoc group. As Susan
pointed out, we have searched constantly for a funding
mechanism. As she referenced, I think maybe we have a
possibility here of a funding mechanism coming up on the Senate
side in the legislation.
They are starting to move forward on the New Mexico tribal
water rights settlements, and, as I understand it, that
involves the use of the Reclamation Fund, and I would encourage
the Subcommittee to follow that carefully and see if that might
be a way that we could identify a funding mechanism, at least
for those parts of these settlements that involve the Bureau of
Reclamation and use of the Reclamation Fund.
In addition to the funding issue relating to the
settlements, we have always had another funding issue that is
peculiar to the tribes, and that is the issue of Federal
funding for the negotiations themselves. These tribes are, in
most instances, not able to fund the full cost of the
participation of their lawyers and their experts in these
negotiations and have always relied on support from the Federal
government, through their trust responsibility, to enable the
tribes to be at the negotiating table as well.
Unfortunately, over the years, the funds set aside for
those negotiations have dwindled to the point now where many
tribes cannot meaningfully participate in those negotiations.
So we also need to work together on a way to get more funds to
tribes for their negotiations.
With that, Madam Chair, I want to thank you again for
holding these hearings, and I will be glad to answer any
questions you may have.
[The prepared statement of Mr. Echohawk follows:]
Statement of John Echohawk on behalf of the
Native American Rights Fund
Good afternoon, my name is John Echohawk, and I am the Executive
Director of The Native American Rights Fund (NARF), located in Boulder,
CO. NARF is a legal defense fund for Native American tribes,
organizations and individuals. Since 1970, NARF has tackled the most
important and pressing legal issues facing Native Americans in court
rooms and in the halls of Congress. We are honored to be asked to
provide testimony to the House Subcommittee on Water and Power
regarding the challenges of securing tribal water rights settlements.
Water rights issues have been one NARF's most consistently pursued
program priorities due to the paramount importance of providing
reliable, clean water supplies to our Native American communities. The
process of securing water supplies is very cumbersome and expensive and
proves to be a costly challenge to many tribes who need their water
today. Through this testimony, I will highlight the challenges of
securing tribal water rights settlements, and also present potential
solutions to be pursued.
I have worked on Indian water issues for over 38 years, during
which time NARF has represented tribes throughout the West in water
rights adjudications and settlement negotiations. Through our
experiences in the past three decades we have encountered one
consistent challenge: the federal government's inability to commit
adequate financial and human resources to resolving tribal water rights
claims. For centuries, the federal government has promoted and
subsidized non-Indian water rights to the detriment of vested tribal
water rights. In the past four years alone, the Bush Administration
spent $2.3 billion on water infrastructure in Iraq, $1.6 billion on
water related issues in other countries, and $2.5 billion on water
rights claims in the West outside of Indian Country.
The lack of federal commitment to developing tribal water rights is
especially troubling considering the conditions we see across Indian
Country: unemployment consistently above 50%, health care and education
lagging far behind non-tribal communities, limited opportunities for
economic development, and infrastructure either old or non-existent. It
is not uncommon for tribal members to drive over 50 miles to haul water
for their homes, many which still have no access to electricity. It is
as if Native Americans fell through the web of the federal system that
is charged with ensuring our well-being under the trust responsibility.
Significant obstacles exist across our tribal communities, but access
to a clean reliable water supply should not be one of them.
As these issues cross state and tribal borders, most tribes and
states have created partnerships to address the water problems in
Indian country. We recognized we had a common interest in making sure
the federal government paid its faire share of the costs of resolving
Indian water rights. Despite their best efforts, the federal commitment
to Indian water rights settlements remains inconsistent, and the lack
of federal funding plagues the settlement process. Coming from a state
with a large Native American population, your colleagues, New Mexico
Senators Domenici and Bingaman, are familiar with these issues.
Recently, in S. 1711, they proposed to create a permanent funding
mechanism for Indian water right settlement by using the Reclamation
Fund. We strongly urge this Committee to support the New Mexico
Senators on this issue. We believe securing a permanent funding
mechanism will resolve most of the problems of settling Indian water
rights throughout the West.
A. Treaties and the Trust Responsibility
For centuries prior to European contact, Native Americans had
sufficient land and water to provide for their needs. The rivers ran
free of dams, impoundments and artificial waterways, allowing for the
ecosystem to support itself naturally. Many tribes, especially in the
Pacific Northwest, lived off fish runs, harvesting them only at levels
that supported their people while sustaining the fish populations.
Other tribes in the Southwest had complex irrigation and water
purification systems to use the limited water most efficiently. The
water policy of all Native American tribes was to protect this sacred
resource. Tribal ceremonies celebrated water and cultural values to
protect and honor water were practiced from generation to generation.
By the 1700s the United States government, fueled by settlement
pressures, engaged in treaty making with tribes to resolve conflicts as
non-Indians moved into Indian lands in the West. The intent of the
treaties was to provide protection, stability and peace between the
governments. The treaties were a reservation of rights in which the
tribes retained specific land and associated water interests the United
States government agreed to protect. Congress has recognized the
federal government's trust responsibility created by the treaties to
protect Indian water rights, and to assist where necessary in the
administration of such resources. The Department of Interior has
expressly acknowledged its duty to protect tribal water rights. Despite
these acknowledgements, the federal government never fulfilled
adequately its trust duty to protect tribal water interests. The
National Water Commission, in 1973, stated that ``[i]n the history of
the United States Government's treatment of Indian tribes, its failure
to protect Indian water rights for use on the reservations it set aside
for them is one of the sorrier chapters.'' Natl. Water Commn., Water
Policies for the Future: Final Report to the Resident and to the
Congress of the United States, 475 (Govt. Prtg. Off. 1973); see also
Robert T. Anderson, Indian Water Rights and the Federal Trust
Responsibility, 46 Nat. Resources L. 399 (2006). For political and
institutional reasons, federal policy since the time of treaty making
has systematically deprived the tribes of their water rights.
B. State Water Rights and Winters v. United States
The doctrine of prior appropriation directed most allocation of
water in the West at the beginning of the 20th century during westward
expansion. Prior appropriation was the principle that the first parties
to physically divert and use the water for ``beneficial use'' should
have the first right to the water. Subsequent rights to the same water
were only entitled to water not used by those with senior rights. This
principal governs state water law, and created a priority system for
water allocation. However, tribal water rights are not governed by
state law.
Indian water rights are based on federal law because they were
reserved in the treaties and executive orders that created the
reservations. The Supreme Court acknowledged federal reserved water
rights for Indian reservations in the 1908 case, Winters v. United
States, 207 U.S. 564 (1908). Winters came from a dispute between tribes
on the Fort Belknap Reservation and upstream non-Indian water users on
the Milk River in Montana. During drought conditions, large diversions
by the upstream users inhibited Indian diversions on the Reservation.
The United States, on behalf of the tribes filed a lawsuit in federal
court in 1905 to enjoin the upstream diversion. On review, the Supreme
Court held that treaties created an implied water right, a ``Winters
right'', necessary to meet the purposes of the reservation, and
prohibited uses of water by non-Indians that interfered with the
tribes. Winters accomplished this by establishing a priority date for
tribal reserved water rights as of the date the reservation was
created. Since most Indian reservations were created prior to outside
settlement by non-Indians, Winters rights usually gave tribes the
earliest priority date and most senior rights.
The Supreme Court in 1963 established that Winters water rights are
quantified by determining how much water is necessary to irrigate the
arable acreage on the reservation. Know as the ``PIA'' standard, it
assumes the federal government set aside Indian reservations with the
singular purpose of developing agrarian societies. In recent years, the
courts have broadened the purposes behind establishing reservations. In
Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981),
for instance the Ninth Circuit Federal Court of Appeals noted the
general purpose of the Reservation was to provide a homeland for the
Indians. It claimed this was a broad purpose and must be liberally
construed to benefit the Indians. The court supplemented the PIA
standard with water for instream flows to support tribal fisheries. In
United States v. Adair, 723 F.2d 1394 (9th Cir. 1983), the same court
rejected the notion of Indian reservations having one singular agrarian
purpose, and also awarded water for agriculture and instream flows. In
Gila River, 35 F.3d 68 (Ariz. 2001), the court rejected the singular
purpose PIA standard to adopt the multi-purpose homeland standard which
provides for livestock watering, municipal, domestic and commercial
water uses. Most notably the Supreme Court in Arizona v. California,
373 U.S. 546 (1963), and Menominee Tribe v. United States, 391 U.S. 404
(1968), made it is clear that Indian reservations were intended to
serve as homelands where tribes could create livable self-sustaining
communities whether the purpose be agrarian or to support other ways of
life. These cases demonstrate that each reservation can have several
purposes for which it was reserved that require broad interpretation to
meet tribal water needs.
C. Federal Water and Tribal Water Rights
During the early and mid 1900s the United States entered into a
period of mass water infrastructure development in the arid West to
simulate the depressed economy and to accommodate population growth.
Although these projects affected tribal water rights, they were
developed with little to no consideration or assertion of such rights.
As a result, private water users, businesses, and government entities
have enjoyed the benefits of water development while in most instances
tribes have been left wanting. The lack of development of senior tribal
water rights, however, has created significant uncertainty in the
Western system of water allocation and use. Because many tribes have
not yet asserted their prior and paramount Winters water rights, non-
Indian irrigation and other commercial interests in many parts of the
United States have cause to be concerned about the durability of their
junior water rights.
Moreover, in most cases large-scale water projects in the West were
built to the detriment of tribal water rights since they allocate the
majority of water available to non-Indian users. The National Water
Commission in 1973, for example recognized that the federal government
had promoted and subsidized non-Indian water development at the expense
of vested tribal rights. The Klamath Irrigation Project in Southern
Oregon is a prime example of this. Created in 1902, the project
irrigates thousands of agricultural acres by diverting water from the
Upper Klamath Lake in Southern Oregon which flows into the Klamath
River in Northern California. The project provides subsidized water to
non-Indian farmers but disregards senior tribal water rights. The
Klamath River, through its journey from the high desert to the ocean,
supports the Klamath, Yurok, Karuk and Hoopa Tribal fisheries. The
project does not accommodate water for instream flows for tribal
fisheries, but instead diverts water to support the irrigation project.
In 2003, the largest fish kill in American history, occurred on the
Klamath River when 60,000 salmon died due to lack of adequate water
flows after a large diversion was made up river for the Irrigation
Project. The federal government has known of the potential
environmental consequences of these diversions but refused to alter its
course despite its trust obligation to protect Tribal fisheries. The
Native American Rights Fund represents the Klamath Tribes in litigation
over this situation.
D. Water Problems in Indian Country
a. Water Shortages and Poor Water Quality
The lack of water supply and related infrastructure has plagued
Indian communities for over a century. In New Mexico over 40 percent of
the people on the Navajo Reservation haul water for domestic use. In
Kansas, the Kickapoo Tribe in times of frequent drought is forced to
haul water to provide basic domestic water supplies for their members,
despite repeated requests for government assistance. Represented by the
Native American Rights Fund, the Tribe in 2006, out of frustration,
initiated litigation against the federal government for failure to
protect its water supply. Poor drinking water quality has created
health problems on reservations across the country, and inadequate
water supplies have caused tribes to forgo economic and community
development opportunities that hinge on water availability. For decades
tribes have made repeated requests to the federal government for
assistance in resolving their water problems. Although the federal
government may provide limited remedial assistance, the federal
response is not adequate nor is it made in a timely manner.
In the West, the Tule River Tribe of California has been engaged in
settling its water rights on the South Fork Tule River for nearly 40
years. During this time the community lacked an adequate water supply
to provide fire protection, housing and economic opportunities to
tribal members. The tribal housing authority has 200 pending housing
applications, but is unable to act due to the lack of water supply. In
1922, the federal government entered into a water sharing agreement
with non-Indian water users downstream on the South Fork Tule River.
Although the South Fork Tule River runs through the heart of the Tule
Reservation, the Tribe was not a party to the agreement. The agreement
left the Tribe without a dependable water supply in the dry months of
the year. In 1970, the Tule River Tribe began corresponding with the
federal government regarding the precarious status of its water
situation and later secured the representation of the Native American
Rights Fund. The Tribe made repeated requests to the federal government
to appoint a negotiation team to formally initiate water settlement
talks. A team was not appointed until Congress directed the
Administration to do so in 2000. Recently the Tribe signed a water
settlement agreement with downstream water interests. The United States
appointed representatives to the negotiations, but at the end of the
process would not sign the agreement, citing a lack of statutory
authority. After almost 40 years of consistent effort, the Tule River
Tribe still does not have an adequate water supply to meet its
community needs. Progress is being made but progress is slow. The Tribe
is hampered by a lack of federal leadership and financial resources.
These stories demonstrate universal themes. Tribes across the
country are unable to provide basic government services or protect the
general health, welfare and safety of their communities due to an
inadequate water supply. Despite repeated requests made over several
decades to the federal government, the tribes' trustee refuses to
dedicate the financial and human resources necessary to resolve water
problems in Indian country.
b. Degradation of Tribal Cultural and Natural Resources and Climate
Change
Over-appropriation of water supplies has resulted in the
degradation of tribal trust natural resources. Traditional lifestyles
continue to be the primary source of survival and sometimes income for
tribal members who rely on subsistence hunting and fishing. Over-
allocation of water has diminished the stability of many Pacific
Northwest tribal fisheries as there is not sufficient water available
to protect fish and human interests. The Klamath River home to the
Klamath, Yurok, Karuk and Hoopa Tribal fisheries was once the third
largest salmon producing river in the Pacific Northwest. Over-
allocation of the water to the Klamath Irrigation Protect has severely
reduced the salmon runs making it nearly impossible to continue the
Tribal members' fishing way of life.
The effects of climate change further threaten the natural
environment of Indian reservations across the country. Climate change
threatens to alter the hydrology of all streams and rivers, affecting
water quantity, temperature and resulting quality. Already Native
American communities are suffering from the effects of climate change.
Native villages in Alaska are being forced to move to higher elevations
due to rising sea levels. The fishing tribes of the Pacific Northwest
are witnessing smaller salmon runs. The Northeastern tribes ice fishing
season has shortened due to increasing temperatures. The Southwestern
tribes are witnessing the introduction of invasive plant species
depriving native plants of limited water sources. Tribal water rights
must be secured to protect our communities from these pressing
immediate threats to our way of life.
E. Resolution of Indian Water Rights
The foregoing challenges in Indian Country all connect to water.
Their solutions lie in water. Water is sacred. Tribes have proven they
are very capable partners and players in water adjudication and
settlement frameworks, when they have financial resources to
participate meaningfully. Most tribes and their down-stream neighbors
prefer to negotiate water settlements since they provide the
flexibility to resolve long-term water problems using environmental
solutions that are not available in the court system while saving time
and money that would have been expended in litigation. Settlements
remove water uncertainty by defining the scope and priority date of
each water users rights without employing the adversarial roles of
litigation. Between 1978 and 2007, Congress ratified the following 20
Indian water rights settlement acts into law:
1. Snake River Water Rights Act of 2004, Pub. L. No. 108-447 118
Stat. 2809 (Nez Perce Tribe).
2. Arizona Water Settlements Act of 2004, Pub. L. No. 108-451,
118 Stat. 3478.
3. Zuni Indian Tribe Water Rights Settlement Act of 2003, Pub. L.
No. 108-34, 117 Stat. 782.
4. Shivwits Band of the Paiute Indian Tribe of Utah Water Rights
Settlement Act of 2000, Pub. L. 106-263, 114 Stat. 737.
5. Chippewa Cree Tribe of the Rocky Boy's Reservation Indian
Reserved Water Rights Settlement and Water Supply Enhancement Act of
1999, Pub. L. No. 106-163, 113 Stat. 1778.
6. Jicarilla Apache Tribe Water Rights Settlement Act of 1992,
Pub. L. No. 102-441, 106 Stat. 2237, as amended, Pub. L. No. 104-261,
110 Stat. 3176 (1996), as amended, Pub.L. No. 105-256, Sec. , 112 Stat.
1896 (1998).
7. Yavapai-Prescott Indian Tribe Water Rights Settlement Act of
1994, Pub. L. No. 103-434, title I, 108 Stat. 4526, as amended, Pub. L.
No. 104-91, Sec. 201, 110 Stat. 7 (1996).
8. Northern Cheyenne Indian Reserved Water Rights Settlement Act
of 1992, Pub. L. No. 102-374, 106 Stat. 1186, as amended, Pub. L. No.
103-263, Sec. Sec. 1-1(a), 108 Stat. 707 (1993).
9. Ute Indian Rights Settlement Act of 1992, Pub. L. No. 102-575,
title V, 106 Stat. 4600.
10. San Carlos Apache Tribe Water Rights Settlement Act of 1992,
Pub. L. No. 102-575, title XXXVII, 106 Stat. 4600, as amended, Pub. L.
No. 103-435, Sec. 13, 108 Stat. 4566 (1994), as amended, Pub. L. No.
104-91, Sec. 202, 110 Stat. 7 (1996), as amended, Pub. L. No. 104-261,
100 Stat. 3176 (1996), as amended, Pub. L. No. 105-18, Sec. 5003, 111
Stat. 158 (1997).
11. Fort Hall Indian Water Rights Act of 1990, Pub. L. No. 101-
602, 104 Stat. 3059.
12. Fallon Paiute Shoshone Indian Tribes Water Rights Settlement
Act of 1990, Pub. L. No. 101-618, title I, 104 Stat. 3289, as amended,
Pub. L. No. 109-221, Sec. 104, 120 Stat. 336 (2006).
13. Fort McDowell Indian Community Water Rights Settlement Act of
1990, Pub. L. No. 101-628, 104 Stat. 4469.
14. Truckee-Carson-Pyramid Lake Water Rights Settlement Act of
1990, Pub. L. No. 101-618, title II, 104 Stat. 3289.
15. Colorado Ute Indian Water Rights Settlement Act of 1988, Pub.
L. No. 100-585, 102 Stat. 2973, as amended, Pub. L. No. 104-46, 109
Stat. 402 (1995), as amended, Pub. L. No. 106-554, title III, 114 Stat.
2763 (2000).
16. Salt River Pima-Maricopa Indian Community Water Rights
Settlement Act of 1988, Pub. L. No. 100-512, 102 Stat. 2549, as
amended, Pub. L. 102-238, 105 Stat. 1908 (1991).
17. San Luis Rey Indian Water Rights Settlement Act, Pub. L. 100-
675, title I, 102 Stat. 4000 (1988), as amended, Pub. L. No. 102-154,
105 Stat. 990 (1991), as amended, Pub. L. No. 105-256, Sec. 11, 112
Stat. 1896 (1998), as amended, Pub. L. No. 106-377, Sec. 211, 114 Stat.
1441 (2000).
18. Southern Arizona Water Rights Settlement Act of 1982, Pub. L.
No.97-293, title III, 96 Stat. 1261, as amended, Pub. L. No. 102-497,
Sec. 8, 106 Stat. 3255 (1992).
19. Seminole Indian Land Claims Settlement Act of 1987, Pub. L.
No. 100-228, Sec. 7, 101 Stat. 1556, incorporating Seminole Water
Rights Compact, reprinted in Seminole Land Claims Settlement Act:
Hearings on S. 1684 Before the Senate Select Comm. On Indian Affairs,
100th Cong. 83-122 (1987).
20. Ak-Chin Indian Community Act of 1978, Pub. L. No. 95328, 92
Stat. 409, as amended, Pub. L. No. 98-530, 98 Stat. 2698 (1984), as
amended, Pub. L. No. 102-497, Sec. 10, 106 Stat. 3258 (1992), as
amended, Pub. L. No. 106-285, 114 Stat. 878 (2000).
There are currently 19 sets of settlement negotiations underway
according to Interior Department figures. They are:
1. Aamodt (Pueblos of Nambe, Pojoaque, San Ildefonso & Tesuque).
2. Abousleman (Pueblos of Jemez Zia & Santa Ana).
3. Blackfeet (Blackfeet Tribe).
4. Crow (Crow Tribe).
5. Duck Valley (Shoshone-Paiute Tribes).
6. Flathead (Confederated Salish & Kootenai Tribes).
7. Fort Belknap (Gros Ventre & Assiniboine Tribes).
8. Kerr McGee (Pueblos of Acoma & Laguna).
9. Little Colorado River (Navajo Nation, Hopi Tribe & San Juan
Southern Paiute Tribe).
10. Lummi (Lummi Nation).
11. Navajo Nation Colorado River (Main Stream).
12. Navajo-San Juan (Navajo Nation).
13. Soboba (Soboba Band of Luiseno Indians).
14. Taos (Pueblo of Taos).
15. Tule River (Tule River Indian Tribe).
16. Upper Gila River/San Carlos (San Carlos Apache).
17. Walker River (Walker River Paiute Indian Tribe, Bridgeport
Indian Colony & Yerington Paiute Tribe).
18. White Mountain (Apache Tribe).
19. Zuni/Ramah (Pueblo of Zuni & Navajo Nation).
Nine tribal water rights settlement bills have been either
introduced or are being prepared to be introduced to Congress with a $3
billion combined price tag. Requests for federal involvement in Indian
water rights settlements have been constant since 1978 and they are
going to continue to increase. The federal government must be prepared
to respond with adequate resources to the water crisis occurring in
America.
a. Litigation of Indian Water Rights
Historically tribal water rights claims were resolved in the court
systems. Federal courts have jurisdiction over tribal water rights
claims unless the state has initiated a general stream adjudication on
a waterway utilized by a tribe. In such cases, the state court has
jurisdiction over tribal water rights claims pursuant to the McCarran
Amendment. Lengthy litigation often results in ``paper water'' rights
with no funding for water infrastructure development. Moreover, the
aggressive nature of litigation divides the community of water users
into adversarial camps and thereby reinforces old political debates
over water usage. For all parties, litigation is expensive and can take
decades. For these reasons most tribes, states and private water users
over time have learned through experience to favor negotiated
settlements of water rights.
b. Settlement of Indian Water Rights
The process of settling water rights claims allows the community of
water users to address an array of water problems using creative
solutions that are not available through litigation. This flexibility
provides incentives for all water users on a waterway to be privy to
the negotiations. In most cases, the settlement of water rights claims
becomes part of a larger water bill that includes agricultural,
economic, and government water rights claims. The Snake River Water
Rights Act of 2004 settled water rights claims on the Snake River of
Idaho including those of several federal agencies and departments, the
Nez Perce Tribe, represented by the Native American Rights Fund, the
State of Idaho, agricultural and timber producing interests. The Snake
River Settlement Agreement accommodated non-Indian Upper Snake River
interests by honoring an existing water release agreement from the
Upper Snake River, and by providing habitat protection and restoration
in the Salmon and Clearwater basins under Section 6 of the Endangered
Species Act. The Tribe secured a reliable water supply, instream flows,
the transfer into trust of BLM on-reservation land, right to access 600
hundred springs and fountains on federal land off-reservation and the
authorization of $90 million for tribal domestic water and sewer, and
habitat improvements. Instream flows in over 200 streams and rivers
were decreed under state law. The Settlement benefited all parties by
providing stability regarding the scope of water rights on the Snake
River, and by providing funding to develop such rights. Additionally,
the parties obtained more benefits through land and water transfers
with funding to develop such interests under the Settlement than would
have been possible in court.
Throughout the West states, tribes and private water users are
recognizing settlements as an opportunity to resolve long term water
and related environmental problems. No longer are these just Indian
water rights settlements, they are basin wide agreements that resolve
long standing problems experienced by all water users.
c. Ad Hoc Group on Indian Water Rights
In 1982, the Ad Hoc Group on Indian Water Rights was formed. Its
membership consists of the Native American Rights Fund, the Western
Governors Association, the Western States Water Council and the Western
Business Roundtable (formerly the Western Regional Council). Although
the Ad Hoc Group's constituents were pitted against each other in
litigation over Indian water rights claims, the Ad Hoc Group came
together because they realized they had a common interest in making
sure the federal government paid its fair share of the costs of Indian
water rights settlements that were negotiated in order to avoid
litigation. The Ad Hoc Group felt the federal government should pay its
fair share of the settlement costs because they were the primary cause
of the litigation between Indians and non-Indians in the West since
they had not protected the Indian water rights as trustee for the
Indians, but instead had encouraged states and non-Indians to develop
and use water as previously explained.
Over the years, the Ad Hoc Group has worked with each
Administration and Congress to educate them on the importance of having
favorable federal policies on Indian water rights settlements. Their
efforts have been successful; 20 Indian water rights settlements have
been enacted into law. The experience of the Ad Hoc Group on these
issues leads to the conclusion that securing the federal funding to pay
for the federal government's fair share of the cost is the most
difficult problem to be overcome in an Indian water rights settlement.
Each Administration and Congress must work together to come up with the
federal government's fair share of each negotiated Indian water rights
settlement.
d. Administration
The Criteria and Procedures for the Participation of the Federal
Government in Negotiations for the Settlement of Indian Water Rights
Claims governs the role and contribution of the federal government in
such settlements. Generally, under the Criteria and Procedures a tribe
requests a federal team to be appointed to settlement negotiations. The
federal team is composed of representatives from federal departments
and agencies, including the Department of Justice. The team is not
allowed to take a position on the settlement during negotiations nor is
it authorized to bind the United States to the agreement. Once a
settlement agreement is reached, the federal team presents it to the
Administration and the Office of Management and Budget (OMB) for an
evaluation of the federal liability and a position by the
Administration.
The first Bush Administration adopted the Criteria and Procedures
without tribal consultation in 1990. After its adoption, it was
presented as a flexible internal document that was merely guidelines to
provide consistency in the federal participation in settlement
negotiations. But to the contrary, the Criteria and Procedures have
been used inconsistently to benefit the position of the United States.
The following provides more information as to how the United States has
used the Criteria and Procedures to limit the federal role in and
contribution to Indian water rights settlements.
i. Limited Federal Role
The Criteria and Procedures limit the participation of the federal
government in resolving Indian water rights settlements because federal
negotiation teams are not allowed to take a position regarding
provisions of the settlement agreement or on the entire settlement
during negotiations. This process is flawed because it does not allow
the parties to adjust their positions to accommodate federal interests
and concerns. Only when the negotiating parties, except for the federal
government, reach an agreement does the federal negotiation team
present the settlement agreement for approval to the Administration and
OMB.
Last year, the New Mexico Rural Water Project Act was introduced by
Senators Domenici and Bingaman from New Mexico. The bill, S.1711,
includes the settlement of the Navajo claims in the San Juan River
Basin. Senator Domenici expressed his frustration with the process,
``[S]ix years ago, I asked the Interior Department to get involved with
negotiations and I was told a team was assigned to participate. Now the
department is claiming they weren't involved. That just doesn't make
sense to me.'' See, http://domenici.senate.gov/news/
regionrecord.cfm?id=278073®ion=
RegionNWNM. The Senator's statement highlights the need for more
meaningful participation early on in the process by higher-level
officials who are vested with the authority to negotiate on behalf of
the United States government. It is simply unacceptable to have Indian
tribes and others spending precious time and resources over decades
negotiating water rights settlements only to be told at the end of the
process the Administration opposes the settlement.
ii. Limited Federal Funding
The 1990 the Criteria and Procedures also created several financial
impediments to resolving Indian water rights settlements. They created
a formula to calculate the United States' liability to tribes for
damages to their water resources that is used to determine the federal
contribution to the settlement. The calculation includes: the United
State's legal exposure; potential litigation costs and judgment
obligation if the case is lost; Federal and non-Federal exposure
calculated in present value and the likelihood of loss, plus additional
costs related to Federal trust or programmatic responsibilities. Too
often those factors are narrowly and technically construed by the
Administration simply to avoid fiscal costs associated with a fair and
honorable settlement.
Yet, consistently, the various Administrations oppose these bills
not because of substantive issues but merely because they acknowledge
federal wrong doing and legal exposure, and the consequent fiscal
outlays. The federal government's opposition to Indian water
settlements particularly is politically unwarranted when a settlement
is a portion of a larger bill that settles all disputes in a drainage
or watershed beyond the narrow resolution of water rights. More often
today parties are looking to bundle water settlements with other
environmental solutions such as those related to endangered species.
These settlements empower local water users to find progressive
solutions to resolving long-term water problems in the West and in
doing so they generate broad support from all parties involved and
local political players. The Administrations should be a part of the
support for these bills as opposed to contesting them to avoid fiscal
responsibilities.
e. Congress
Congress becomes involved in settlements only after it is finalized
and is presented for Congressional approval. Congruently, the
Administration takes a position on the settlement. Often settlement
bills pass due to the strength of their support in Congress, despite
the Administration's opposition. In these cases, parties attempt to
work within the bounds of the Criteria and Procedures but are left to
work to override the Administration's opposition to the settlement with
their delegation. Senator Domenici acknowledge this very problem in a
recent statement made regarding his experience with the New Mexico
Rural Water Project Act:
``I am so frustrated with the Office of Management and Budget
and its near total stonewalling on our water settlements. This
is, I believe, preventing Interior Secretary Kempthorne and his
departments from keeping his commitment to make the Navajo
settlement a priority--to finally solve the problem. I say we
charge ahead and force the administration to be part of the
solution.''
The Executive Branch, as trustee, is vested with the primary
obligation to tribes to solve their water conflicts once and for all
times. To the extent the Criteria and Procedures have become a tool of
political manipulation, which only frustrates the legal and moral
obligations of this Nation, Congress should direct that they be
modified and re-interpreted.
F. Recommendations for Fiscal Change--A Permanent Funding Mechanism
for Indian Water Settlements
It is now time for a change. The federal government must prioritize
settling tribal water rights claims, and it must consider options to
accommodate a growing number of settlements. Indian Country can no
longer tolerate the lack of water and water infrastructure that has
inhibited them from developing their communities. The federal
government has an obligation as trustee to assist in the development of
tribal water rights and Congress must look to create a permanent
funding mechanism for tribal water settlements.
The Reclamation Fund is an appropriate mechanism to fund tribal
water rights settlements, as part of its mandate is to fund tribal
water settlements. With more attention and development, the Reclamation
Fund could provide the majority of funding for tribal water
settlements. Congress has already recognized the Reclamation Fund for
these means, as New Mexico Senators Domenici and Bingaman currently
propose to use the Reclamation Fund to develop a water delivery system
on the Navajo Reservation.
Historically, Reclamation Fund monies have not been equitably
expended on Indian water rights development. Since its creation a
minimal percentage of the Fund has used for Indian water rights
projects despite its mandate. Once non-Indian water development slowed
down, the funds were not appropriated to other projects. Instead, the
funds were left un-appropriated not for lack of need, but for lack of
political pressure to direct the funds to the tribal communities that
needed it. Today, we strongly urge this Committee to request monies
from the Reclamation Fund to support tribal water rights settlements.
G. Department of Interior, Indian Water Rights Office
Under the Department's Indian Water Rights Office, there are
supposed to be teams of negotiators representing the various interests
of the United States, not the least of which is the clear legal
fiduciary responsibility owed to federally recognized tribal
governments. A decade ago these negotiation teams were quite active and
there were a number of serious water rights negotiations ongoing in
various parts of the country. Today we see these negotiation teams are
continuing to do good work, however, they are struggling because of
dwindling resources. The lack of resources makes it increasingly
difficult for negotiation teams to fully participate in a meaningful
way. This trend could become an obstacle to tribes in negotiating their
water rights if not addressed immediately.
H. Funding for Tribes for Negotiations
I also want to point out that negotiating and quantifying their
water rights is perhaps one of the most important and long lasting
actions that a tribal government can ever undertake. It will bind them
and future generations of tribes and will likely forever impact future
development on their homeland. It is therefore important for tribes to
be able to have the financial ability to undertake the technical
studies that are a mandatory prerequisite to any negotiation. Issues
such as stream flow data, aquifer analysis, fish and wildlife needs and
potential for commercial and residential development all must be
undertaken for an Indian tribe to enter the difficult and highly
technical arena of water rights negotiations. Funding available to
tribes from the BIA for these type of studies has been steadily
shrinking in recent years and this putting tribes in a very difficult
position. Funding for tribal participation in settlement negotiations
must be increased.
I. Conclusion
The federal government has a legal obligation set forth in the
treaties to protect and develop Indian water rights. Although the
federal government's historical treatment of Indian water rights was
less then adequate, this Congress has the opportunity to take a new
direction. The future of Indian Nations depend on a consistent
commitment from the federal government to develop water supplies and
infrastructure in their communities. Many states, in recognition that
their water problems are inextricably tied to tribal water problems
have already made this guarantee.
Today in this testimony we have set forth suggestions for the
future commitment of the federal government to Indian water
settlements. Our 38 years of experience working with tribes and states
on these issues has convinced us that obtaining funding is the largest
impediment to resolving water problems in the West. We request that
Congress to remove this obstacle and create a permanent funding
mechanism for Indian water rights settlements. Two of your colleagues
have already stepped to the plate to suggest the Reclamation Fund as a
potential funding source. We urge other Members of Congress to join
Senators Domenici and Bingaman to make the federal commitment
consistent by using the Reclamation Fund as a permanent funding
mechanism for Indian water settlements. In doing so, this Congress can
join their constituents to help resolve water problems in the West.
We thank the Committee for providing us with the opportunity to
discuss these issues. We look forward to working together to bring
clean reliable water supplies to Indian Country.
______
Mrs. Napolitano. Thank you so very much for your testimony,
Mr. Echohawk, and we will move on to Mr. John Sullivan.
Before I move forward, I just wanted to let you know that,
while I am the only one here--Mr. Miller was on the Floor just
now speaking, Mr. Baca is at the farm conference on the Senate
side, and Mr. Costa is in a markup, but their interest is very
heavy in these issues. So while they may not be present--I am
sure my colleagues on the other side are the same way--they a
have a great interest in this. So your testimony here is very
valuable and will be very seriously considered by the
Subcommittee.
So now, thank you, we move on to Mr. John F. Sullivan,
general manager of the Salt River Project in Phoenix, Arizona.
STATEMENT OF JOHN F. SULLIVAN, GENERAL MANAGER, SALT RIVER
PROJECT, PHOENIX, ARIZONA
Mr. Sullivan. Thank you, Madam Chairwoman. I appreciate the
promotion that you just gave me, but I am the associate general
manager of the Water Group at SRP. I just want to make that
clear for my boss.
I also serve on the Board of Directors of the National
Water Resources Association and on the Advisory Committee for
the Family Farm Alliance. Both groups have a definite interest
in this very timely issue that you have raised today.
The Salt River Project operates seven dams and reservoirs
that impound runoff from multiple watersheds and deliver about
a million-acre feet of water annually to municipal, industrial,
and agricultural water users in what is now the Phoenix
metropolitan area. We also operate a number of deep wells that
provide drought protection for the Phoenix area and serve about
900,000 electric customers in the Phoenix metropolitan area.
Over the past four decades, SRP has worked with numerous
tribes and stakeholders to resolve water rights disputes in a
manner that benefits both the Indian communities and their non-
Indian neighbors. As you can see from the map that is
projected, we have reached settlements with the Salt River
Pima-Maricopa Indian Community, the Fort McDowell Yavapai
Nation, the San Carlos Apache Tribe, and the Zuni Indian Tribe.
Our commitment to the negotiating process has yielded
significant successes for us, and today's hearing, combined
with these past experiences, is a great way toward meeting the
challenges of future quantifications and settlements.
Just last month, in Arizona, we celebrated the completion
of the Gila River Indian Community and the Tohono O'odham
Nation water rights settlements.
We want to give our thanks to you, Chairwoman Napolitano,
also to Congressman Grijalva, and Ranking Member McMorris
Rodgers for the leadership you have provided in steering those
settlements through the Congress. We do very much appreciate
that.
We also appreciate the efforts of Senators Kyl and McCain
and the Gila River Indian Community in providing that
settlement agreement, a very complicated one.
I am very pleased to report that we continue to work
diligently toward completion of other settlements of water
claims, particularly with the White Mountain Apache Tribe, who
have claims to water from the Gila and Little Colorado River
Basins, as well as claims of the Navajo Nation and the Hopi
Tribe. We have also initiated discussions with the Yavapai
Apache Nation on the Verde River watershed.
Our experience has shown firsthand that productive
solutions and mutual benefits can occur when tribes and other
stakeholders work collaboratively. Most important among those
benefits is water supply certainty for not only the Indian
tribes but also for the non-Indian community.
The negotiation process is also beneficial because it moves
away from often costly and contentious litigation. The obvious
primary benefit of avoiding litigation is the savings of money
and resources that can be used for a more useful purpose.
In addition, we have seen improved communication and trust
occur between the various parties to these settlements.
While progress on settling Indian water rights claims has
been on many fronts, there are still many outstanding disputes
that must be resolved. I have a few thoughts about what must be
done to solve those.
First, water supply is at the heart of every settlement
agreement. We have had the advantage, in Arizona, of having
Central Arizona Project water available to be part of the
equation to solving these problems.
As we move forward with other settlements, it is necessary
to be creative and to find other water resources so that all of
the parties can benefit from a settlement.
Additionally, a collaborative and trustworthy process needs
to be maintained in future settlements. We particularly
encourage the administration to use the Office of Indian Water
Rights, that they be actively involved early, and consistently
throughout the progress.
Last, obviously, money. Money is very important and also in
short supply. So I would encourage that this Committee
seriously consider creative ways to bring money to the table
for these settlements.
Madam Chairwoman, I thank you for the time you have allowed
me to address the Subcommittee, and I would be happy to answer
questions.
[The prepared statement of Mr. Sullivan follows:]
Statement of John F. Sullivan, Associate General Manager,
Salt River Project
Madam Chairwoman and members of the subcommittee, my name is John
Sullivan and I am the Associate General Manager, Water Group, at the
Salt River Project (SRP). In my capacity of Associate General Manager,
I also serve on the board and advisory committee of the National Water
Resources Association (NWRA) and the Family Farm Alliance,
respectively. Thank you for the opportunity to testify today before the
subcommittee on Indian water rights settlements. We appreciate the
subcommittee's attention to this timely issue that is important to SRP,
its customers, and water users throughout the West.
Over the four past decades, SRP has worked with numerous tribes and
stakeholders to resolve water rights disputes in a manner that benefits
both Indian communities and their non-Indian neighbors. Attached to my
testimony is a map that shows the location of the settlements we have
been involved with. Our commitment to the negotiations process has led
to significant successes, and today's hearing combined with our past
experience is a great step toward meeting the challenges of future
quantifications and settlements.
Just last month in Arizona, we celebrated the completion of the
Gila River Indian Community and Tohono O'Odham Nation water rights
settlements, which were passed as part of the Arizona Water Settlements
Act in 2004. Completion of these settlements is a landmark achievement,
and I would like to thank Congressman Grijalva, Chairwoman Napolitano,
Ranking Member McMorris-Rodgers, and other members of the Natural
Resources Committee for your part in initially passing and subsequently
amending the Act. In addition, I would again like to thank Senators Kyl
and McCain, the Gila River Indian Community, the Tohono O'Odham Nation,
the State of Arizona, the Central Arizona Water Conservation District,
the City of Phoenix and all of the others that were instrumental to the
success of these settlements.
I am also pleased to report that we are continuing to work
diligently towards the completion of the settlement of the claims of
the White Mountain Apache Tribe to surface water and ground water from
the Gila and Little Colorado River Basins, as well as the claims of the
Navajo Nation and the Hopi Tribe to surface water and ground water from
the Little Colorado River Basin and to water from the Lower Colorado
River. In the near future, we hope to culminate our negotiations with
these tribes into settlement agreements that can then be presented to
the Congress for its approval.
The Salt River Project
SRP is composed of the Salt River Valley Water Users' Association
(``Association'') and the Salt River Project Agricultural Improvement
and Power District (``District''). Under contract with the federal
government, the Association, a private corporation authorized under the
laws of the Territory of Arizona, and the District, a political
subdivision of the State of Arizona, provide water from the Salt and
Verde Rivers to approximately 250,000 acres of land in the greater
Phoenix area. Over the past century, most of these lands have been
converted from agricultural to urban uses and now comprise the core of
metropolitan Phoenix.
The Association was organized in 1903 by landowners in the Salt
River Valley to contract with the federal government for the building
of Theodore Roosevelt Dam, located some 80 miles northeast of Phoenix,
and other components of the Salt River Federal Reclamation Project. SRP
was the first multipurpose project approved under the Reclamation Act
of 1902. In exchange for pledging their land as collateral for the
federal loans to construct Roosevelt Dam, which loans have long since
been fully repaid, landowners in the Salt River Valley received the
right to water stored behind the dam.
In 1905, in connection with the formation of the Association, a
lawsuit entitled Hurley v. Abbott, et al., was filed in the District
Court of the Territory of Arizona. The purpose of this lawsuit was to
determine the priority and ownership of water rights in the Salt River
Valley and to provide for their orderly administration. The decree
entered by Judge Edward Kent in 1910 adjudicated those water rights
and, in addition, paved the way for the construction of additional
water storage reservoirs by SRP on the Salt and Verde Rivers in Central
Arizona.
Today, SRP operates six dams and reservoirs on the Salt and Verde
Rivers in the Gila River Basin, one dam and reservoir on East Clear
Creek in the Little Colorado River Basin, 1,300 miles of canals,
laterals, ditches and pipelines, groundwater wells, and numerous
electrical generating, transmission and distribution facilities. The
seven SRP reservoirs impound runoff from multiple watersheds, which is
delivered via SRP canals, laterals and pipelines to municipal,
industrial and agricultural water users in the Phoenix metropolitan
area. SRP also operates approximately 250 deep well pumps to supplement
surface water supplies available to the Phoenix area during times of
drought. In addition, SRP provides power to nearly 900,000 customers in
the Phoenix area, as well as other rural areas of the State.
Past Arizona Indian Water Rights Settlements
Salt River Pima--Maricopa Indian Community--The Salt River Pima-
Maricopa Community reservation consists of approximately 53,000 acres
of land on the northeast corner of the Phoenix metropolitan area, at
the confluence of the Salt and Verde Rivers. In the early-1980's, as
part of the ongoing water rights adjudication in the state court, the
Community and the United States asserted claims to approximately
185,000 acre-feet of water annually from the Salt and Verde rivers.
Negotiations involving the United States and numerous municipalities
and water districts, including the Salt River Project, began in the
mid-1980s and eventually led to the Salt River Pima-Maricopa Indian
Community Water Rights Settlement Act of 1988. The settlement resolved
the concerns of both the Community and the other settling parties by
securing 122,400 acre-feet annually of a dependable water supply, and
the funds needed to utilize the resource, in exchange for the Community
agreeing to waive any additional water rights claims or claims for
money damages.
The Salt River Project was integrally involved in negotiating this
settlement and SRP water and facilities are an important piece of the
final agreement. First, to allow the Community to utilize more of its
historic entitlement from the Salt River, the settlement requires that
a portion of the New Conservation Space behind Roosevelt Dam, completed
in 1995 and now operated by SRP, be made available for the storage of
7,000 acre-feet of the Indian Community's early entitlement to water
from the Salt River. The agreement also entitles the Indian Community
to divert up to 26,000 acre-feet of SRP stored water annually for use
on the reservation lands, depending on the amount of water stored in
SRP reservoirs on May 1 of each year.
Fort McDowell Yavapai Nation--The Fort McDowell Yavapai Nation,
formerly called the Fort McDowell Indian Community, has a reservation
23 miles northeast of Phoenix. The Verde River runs through the
reservation. In the early 1980s, the United States asserted claims to
water on behalf of the Community in the amount of 31,500 acre-feet per
year plus instream flows. Both the United States and Community
indicated that they intended to assert larger claims in the future. The
Fort McDowell Indian Community Water Rights Settlement Act of 1990 was
negotiated between the Community and several non-Indian parties,
including SRP, and was signed into law in November of 1990. In exchange
for a waiver of the Community's claims for water rights or injuries to
water rights, the Act provides an annual entitlement of 36,350 acre-
feet of water to be used on the Community's reservation. In addition,
the Act authorized the federal appropriation of $23 million and a $13
million loan pursuant to the Small Reclamation Projects Act.
SRP was actively involved in negotiating the Fort McDowell Indian
Community Settlement. The settlement agreement requires that SRP make
available 3,000 acre-feet of storage space behind Bartlett and
Horseshoe dams, to allow the Community to regulate and better utilize
its historic entitlement to the diversion of water from the Verde
River. As part of the agreement, the Indian Community is also entitled
to divert up to 6,730 acre-feet annually of SRP stored water from the
Verde River, depending on the amount of water stored in SRP's
reservoirs on May 1 of each year, and SRP provides a minimum of 100 cfs
except during extreme droughts.
San Carlos Apache Tribe--The San Carlos Apache Tribe has a
reservation located in east-central Arizona, near the city of Globe.
The United States filed claims in the Gila River Adjudication on behalf
of the Tribe for over 292,000 acre-feet of water annually from the Salt
and Gila rivers, their tributaries and ground water. In October of
1992, Congress enacted the San Carlos Apache Tribe Water Rights
Settlement Act. The Act recognized the Tribe's right to divert 7,300
acre-feet annually from the Salt River or from the Black River, which
is a tributary to the Salt River upstream from SRP's reservoirs, with a
priority date of 1871. In addition, the Act allocated to the Tribe
approximately 64,000 acre-feet annually from the Central Arizona
Project and recognized the Tribe's right to use water from all on
reservation tributaries, as well as groundwater beneath the
reservation. In exchange for these sources of water and the Settlement
Act's establishment of a$38.4 million tribal trust fund for on-
reservation economic development, the Tribe agreed to waive its claims
on the Salt River and its tributaries. The Act did not resolve the San
Carlos Apache Tribe's claims to water from the Gila River, however, and
the Tribe continues to assert these claims in the adjudication
currently pending in the Arizona courts.
SRP was heavily involved in the negotiation of this settlement,
which required almost a decade to complete. Other major participants
included several major cities in Maricopa County, irrigation districts
and industrial users in central Arizona.
Zuni Indian Tribe--The Zuni Heaven Reservation, located in eastern
Arizona in the Little Colorado River Basin, was authorized by Congress
in legislation enacted in 1984 and amended in 1990. The purpose of the
reservation was to recognize longstanding religious and sustenance
activities by the Tribe on these lands along the Little Colorado and
Zuni rivers in the vicinity of St. Johns, Arizona. In 2003, Congress
enacted the Zuni Indian Tribe Water Rights Settlement Act. The Act
confirmed the terms of a settlement agreement entered into among the
Tribe, the United States, the State of Arizona and several local water
users and utilities, including SRP. The settlement agreement
permanently resolved the Tribe's water rights claims and provided
resources to restore wetlands and the Sacred Lake on the Zuni Heaven
Reservation.
To restore the wetlands and lake on the Zuni Heaven Reservation for
its religious and sustenance needs, the settlement act authorized the
Tribe to acquire the rights to up to 3,600 acre feet of surface water
annually, from willing sellers in the Norviel Decree area of eastern
Arizona. The Tribe also was permitted to pump a maximum of 1,500 acre-
feet of groundwater per year to supplement surface water during times
of shortage. The Settlement also established the Tribe's right to
existing surface water supplies in the amount of 1,935 acre-feet
annually. The Zuni Indian Tribe Water Rights Settlement Act provided
federal funding for the acquisition of water rights, and for facilities
construction and related costs, in the amount of $19.25 million. The
State of Arizona and the Arizona Game and Fish Commission also provided
a total of $6.6 million in funding for the settlement for wetland
restoration and enhancement of instream flow and riparian areas.
Further, SRP contributed $1 million toward providing a water supply for
the Sacred Lake and the reestablishment of riparian vegetation on the
reservation. In exchange for these benefits, the Zuni Tribe and the
United States on its behalf agreed to waive their objections to all
existing uses of surface water and groundwater in the Little Colorado
River Basin, as well as objections to certain future uses, as outlined
in the agreement.
Gila River Indian Community--The Gila River Indian Community's
Reservation encompasses approximately 377,000 acres of land in central
Arizona. Most of the lands within the Reservation are located within
the Gila River watershed, while a small portion of the lands lie within
the Salt River watershed, west of Phoenix and several miles downstream
from SRP's reservoirs. In the Gila River Adjudication, pending before
the Arizona courts, the Indian Community had asserted claims to water
from Salt and Gila Rivers, their tributaries and ground water totaling
more than 2.7 million acre-feet annually. As I have mentioned, the Gila
River Indian Community Water Rights Settlement was passed as title two
of the Arizona Water Settlements Act in 2004. The settlement resolves
all outstanding water related litigation between the Indian Community
and the other settling parties, and settles, once and for all, the
water rights of the Indian Community to surface water and ground water
in the Gila River Basin.
Under the settlement agreement, the Community is entitled to an
average of 653,500 acre-feet of water annually from a number of
sources. Of that total, up to 35,000 acre-feet annually will come from
SRP stored water, and up to an additional 328,500 acre-feet of water
from the Central Arizona Project (CAP). Under specified conditions,
portions of the Community's CAP water will exchanged with SRP for the
storage of the same amount of Salt and Verde River water in SRP
reservoirs. The Arizona Water Settlements Act also provided federal
funding in the amount of $200 million to be used for the rehabilitation
of the Community's existing water system, for rehabilitation of past
subsidence damages on the reservation, to defray some of the operation,
maintenance and replacement costs of the CAP water to be delivered to
the Community, and to implement a program to monitor water quality on
the reservation.
Benefits of Settlements
Madam Chairwoman, as you can see, the Salt River Project has a
history of negotiating and settling Indian water rights disputes, and
we have seen the productive solutions and mutual benefits that can
occur when tribes and other stakeholders work collaboratively.
Most important among the benefits is water supply certainty, which
is a fundamental outcome of any water rights settlement. In order to
realize this certainty, it is critical that settlements contain
comprehensive waivers of water rights claims. The assurance of a
consistent long-term supply gives all water users the confidence to
invest in conveyance infrastructure or make capital expenditures, such
as permanent crops or commercial and residential development, needed
for the most effective and valuable utilization of their water supply.
The negotiation process is also beneficial because it moves away
from often costly and contentious litigation. In the courts, water
rights claims can be, and have been, contested for decades. The obvious
primary benefit of avoiding litigation is the savings of money and
resources that can be used for a more useful purpose. However, there
can be additional benefits of settling water rights claims through the
settlement process. Securing a water entitlement through litigation
will not of itself provide the funding or assistance needed for tribes
to put their water to use. By working through the settlement process, a
framework can be put in place to ensure that an entitlement results in
delivered water, rather than only a paper water right.
In addition, the improved communication and trust produced by a
negotiated settlement has allowed Indian communities and their
neighbors to improve water management regionally. The Gila Indian
Community settlement is an example of how, by maintaining a positive
relationship, opportunities have become available for cities to
increase water supply by entering into lease and exchange agreements
with the Indian Community for presently unused water resources. When
parties are treated fairly and have a stake in the solution, these
types of arrangements, which maximize the benefit of our water
resources, are more readily attainable.
Continued Challenges and Recommendations:
While progress on settling Indian water right claims has been made
on many fronts, there are still outstanding disputes in Arizona and
throughout the West that tribes and water users are working to address.
In fact, some of the most difficult issues associated with all Indian
water rights settlements are becoming even more complicated. Moving
forward, there are several important challenges that need to be given
attention.
Process--While each settlement negotiation has its own
characteristics and unique challenges, the themes of collaboration and
a trustworthy process, and the goals of certainty and a definitive
resolution can remain the constant. SRP has found that it takes an
inclusive process to produce the kind of creative solutions needed to
settle complex and wide-ranging water rights claims. Involving members
of the federal team, such as Interior's Office of Indian Water Rights,
at an early point in the process is essential to a favorable outcome.
Water Supply--Many water basins in the West are already over-
appropriated. As growth and drought persist, constructing water budgets
for future settlements that are operable for all the parties involved
becomes increasingly complex. The availability and dedication of
Central Arizona Project (CAP) water was instrumental in several of the
more recent Indian water rights settlements in Arizona. It is important
that water providers and the federal government continue to take
advantage of opportunities to develop new sources of water and stretch
existing supplies. Without incremental growth of supply and increased
conservation, the ability to find water to dedicate to future Indian
settlements, without injuring other parties, will become limited.
Funding--Funding is often needed to build or improve water
infrastructure needed by tribes to deliver and beneficially use the
water they are entitled to under a settlement. As water users
throughout the West know, state and federal budgets are tight and
relying on the appropriations process to fund projects can be
uncertain. In many cases, the inability to fully fund projects prolongs
construction and raises the total price.
In response to the questions posed in my invitation to testify, I
believe having a source of funding dedicated to Indian water rights
settlements would greatly improve the opportunity for successful
agreements moving forward. I also recognize that this is easier said
than done. Non-traditional funding sources may be needed to meet the
financial need, and the water and tribal communities need to engage
this question, along with the federal and state governments, to ensure
that there is an ability to pay for needed features of future
settlements.
Support from the Department of the Interior--As I have already
mentioned, the Secretary of the Interior's Office of Indian Water
Rights is important for technical support and it is important for it to
be involved early and consistently throughout the process. I urge the
Interior Department, in this and subsequent administrations, to
continue engaging in negotiations and making Indian water rights
settlements a priority.
Madam Chairwoman and Members of the Subcommittee, thank you once
again for the opportunity to testify before you today. I would be happy
to answer any questions.
______
Mrs. Napolitano. Thank you, Mr. Sullivan, and we could not
agree with you more. There are a number of questions that come
to mind in reading the testimony from all of you, insofar as it
was a little hurriedly because there was a lot of reading to
do. But the message seems to be the same: There has not been
adequate focus on addressing Indian water rights, whether it is
the funding, whether it is the teams, you know, it is all in
one, from looking at the testimony.
But in looking at what is going to be proposed, in
establishing an Indian Water Rights Committee, would that be
not setting another bureaucratic group in motion? Would that be
able to handle it because if you do not fund it, then it is not
going to do you any good, or if you fund it only partially?
Would any of you address that, please.
Mr. Bogert. Madam Chairwoman, are we talking about the
establishment of the Water Rights Office?
Mrs. Napolitano. Correct. That is correct.
Mr. Bogert. A wonderful question. Let me just clarify what
our intentions are. We have had, for quite a while, before even
this administration came into office, the Secretary's Indian
Water Rights Office, which has been a function of the
Department of the Interior, and it has been funded through
contributions by several of the bureaus and agencies that make
up the Department.
What we indicated in our testimony is that what we are
developing now is the formalization of this office. It is a
functioning office, and it has been referred to by some of the
other testimony now. Pamela Williams is its Director. It is the
focus by which we are coordinating presently 19 outstanding
water rights settlements, 13 implementation teams.
Our point is that we think that it is not necessarily more
bureaucracy but a better function within the Department if we
decide, and if the Secretary agrees, that we ought to formally
make it a part of the Secretary's office and to provide the
aura and the leadership out of the Secretary's office to help
coordinate what the administration's position will be on these
settlements.
Our experience is that we have many hallways at Interior to
coordinate in terms of trying to develop a common position on
water rights settlements. There was a lot of discussion today
about the Bureau of Reclamation. We work very closely with the
Assistant Secretary for Indian Affairs, the Bureau of Indian
Affairs.
We have several constituencies, Madam Chairwoman, at the
Department of the Interior that we must coordinate with on a
daily basis. Also, I would say we coordinate with the Justice
Department. We also coordinate with the Office of Management
and Budget outside of the Department of the Interior.
Mrs. Napolitano. How would that help resolve the issue that
they have clearly pointed out in their testimony, and that is
that there is not enough funding to be able to carry it because
some of them go back 30, 40 years?
Mr. Bogert. Madam Chairwoman, the issue of funding, we
think, is an outstanding issue in its whole orbit. We
acknowledge that that is an issue. We had a meeting that
involved--Susan was there, John was there, and several of the
folks on the ad hoc working group in the Secretary's office--
almost a year ago when this issue came up. I think we have done
an excellent job of identifying this as a key issue.
I think, Madam Chairwoman, in our testimony when we talk
about formalizing the Secretary's Indian Water Rights Office,
it is our effort at making sure that, at least as far as the
Department of the Interior is concerned and the Secretary and
future Secretaries of the Interior are concerned, that Indian
water rights settlements deserve the priority that they are
entitled to at the Department of the Interior, and Secretary
Kempthorne would concur with that assessment.
Mrs. Napolitano. Would this then require legislation to
either clarify or be able to put extra teeth so that we would
be able to put not only the funding but the emphasis and the
focus on it?
Mr. Bogert. Madam Chairwoman, I think the function of how
we manage our settlements--I will just say, with our team here
in committee--we are fiercely proud of the work and the
coordination that we have done. I would say, and I think my
colleagues here on the panel would concur, we have never had,
if you will, more attention on water rights settlements maybe
since Indian water rights have been in existence. We think, and
we have discussed this----
Mrs. Napolitano. Let me put it another way. What will help
expedite those water rights that have been out there for a long
time and take care of those that are coming before us, which
nine apparently will be coming before us shortly, and then take
care of some of the other issues that they have faced, address
them before they become issues and languish another 20 or 30
years?
No aspersions on your staff, but, again, we go back to the
issue of funding and everybody working on the same page to be
able to address those rights and address them timely so that
they will not have to go through the system but come to
Congress for resolution?
Mr. Bogert. Madam Chairwoman, the very conversation we are
having today is the first start and the first step. We may end
up having over $4 billion in tribal water rights settlements up
here on Capitol Hill. This very conversation about how we are
going to try to stay ahead of the curve with the tight fiscal
restraints that we have; we think that this is the first step
in a very good conversation and a very relevant conversation.
Mrs. Napolitano. I am glad to hear you are finally having a
conversation, which probably has been long coming but, again,
what do you need from us--any clarification of the guidelines,
any support to be able to clarify the Winters mandate? What is
it that you need to be able to not have that again become
another decade or two before we again have to look at it and
begin to say, ``Well, we looked at it 10 years ago, 20 years
ago, and we are still in the same boat?''
Mr. Bogert. Madam Chair, I think the first step is a
healthy debate with the administration and with our friends in
Congress about whether we can reconcile perspectives that these
settlements--this is my view----
Mrs. Napolitano. Are you talking about OMB? Let us call it
what it is.
Mr. Bogert. This, I think, is the policy issue that we will
have to work with you in Congress on. There is one school of
thought that, as these settlements mature, that often it is the
personalities of the Members of Congress and the seniority of
the Members of Congress that ultimately are the indicia of
whether or not a settlement may succeed.
There is another school of thought, and this is what we
talk about all of the time at Interior, and we are discussing
this with the Secretary now, whether there should be a more
programmatic, institutional approach to managing the
settlements. Madam Chair, if we had had this conversation a
year ago, with your leadership and this discussion, we would
have had maybe one and a half settlements that would be ready
to have attracted the attention of Congress. We may have 11.
So we have gone from one and a half to 11 in the course of
one year for factors that are very difficult to try to
handicap, some of which, and Susan is here, the work of the
Montana Compact Commission has to be completed; therefore, we
may be reviewing Montana compacts.
We think that the ebb and flow of these negotiations, and
this was our experience back home, sometimes you have movement
and momentum in discussions that are warranting of immediate
attention and immediate action on Capitol Hill to authorize,
confirm, and ratify these agreements. We happen to be in an
environment today, in 2008, where we have a lot of settlements,
many settlements, more than some of us have ever seen before,
that are ready for attention, and, Madam Chair, it is very
difficult, I think, to predict the outcome of these
negotiations.
I can tell you that we have attended to these, we
understand where these settlements are, and we have discussed
the 19 that we are having to manage. We are just hopeful that
the summer brings great energy and enthusiasm and longevity to
the work that we can pour into these.
Mrs. Napolitano. Well, I appreciate your candor, and
anything we can do to help, sir. That is one of the things that
has been evident in this Subcommittee in the past. I have been
on the Subcommittee for almost 10 years, and I have seen very
few of them having to come before us. When I am beginning to
look at the background, that they have to come to Congress for
resolution, something is wrong.
I have only been the Chair a year and a half. My staff,
because of what has been transpiring in the Subcommittee,
brought to my attention that we were not dealing with water
rights for the Native Americans, and this was one of the
reasons that we began to delve into it. We look forward to
being able to work with you, sir, in being able to help you in
any manner, shape, or form, whether it is through legislation
or otherwise, to be able to move this forward, and I would like
to recognize Mr. Baca for a short opening statement.
STATEMENT OF THE HONORABLE JOE BACA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Baca. Well, thank you very much, Madam Chair. First of
all, I appreciate your leadership and your sincerity in trying
to deal with the problems that affect Native Americans,
especially as we look at water, and I know what it is like
because currently I am serving on the Agriculture Committee,
and we are going through a conference committee, and one of the
things that I have done is to make sure that I have put in the
additional funding for Native American institutions as well
that should be receiving the additional funding.
As I realize that not only do we look at northwestern New
Mexico, and I am familiar with New Mexico because I am
originally from New Mexico and that area, so I know that water
is important. It is not a strange problem to us, especially in
the--where we have had a lot of problems, and we know very well
that you need good quality of water not only for individuals in
that area, and that is why the settlements are very important.
I appreciate the endeavors that the Chairwoman has taken to
make sure that we look at the problem of securing enough funds
to implement water settlement agreements and learning how
reclamation funds can also help.
That becomes very important because everyone should have
access to water in our communities. It does not matter where we
are at. Whether we are on a reservation or off the reservation,
it is important that we do what is necessary, and it takes
leadership like our Chairwoman here, who has really taken on
the leadership, under Water and Power, to address this issues.
I thank the Committee for coming and stressing the importance
of what it means to your area and what it means for other
tribal members that we will hear from the in the future as
well. Thank you.
Mrs. Napolitano. Thank you, Mr. Baca. Could I have any of
you answer any of the questions that I had to Mr. Bogert
before? Any comments on that?
Ms. Cottingham. If I might, Madam Chairwoman, I guess I
would just like to emphasize, I think the two main issues that
we have tried to identify for you here today are, one, the long
and sometimes difficult negotiation process that the parties go
through to try to get to these settlements and some of the
difficulties that the states and tribes have had getting the
Federal folks engaged at an early stage.
I think it is very intimately tied to the funding issue
because we do not have a permanent settlement fund and because
these settlements, as they come to Interior, compete with other
programs, I think sometimes the Federal groups come to the
table with a mind-set that, you know, how much are we going to
have to spend here, rather than coming with the parties and
trying to figure out what it is we are trying to solve. What
are the difficult allocation issues? Let us be creative, and
then we will worry about how we are going to fund it later.
So I guess what we are trying to say is that the whole
negotiation process and the funding; they are sort of a cart-
and-horse issue, but I think if we can move forward on the
funding issue and try to get something that would perhaps
relieve the pressure on the Federal government to--I mean, you
know OMB. As you pointed out, to try to take a narrower view of
what Federal obligations are going to be, then we can really
start to identify, are we going the enlarge a reservoir? Are we
going to do some conservation measures, and, if so, then what
is it going to take to take?
I would say for the record that the states have recognized
that we need to be a part of the funding solution. Montana has
spent over $50 million on the settlements that we have so far,
including all of the administrative money to get these done. So
the states are putting up money as well.
So I think it is sort of a difficult issue, but I think, if
we could get some resolution and get a permanent fund, it would
relieve some of the pressure on the Federal folks to come in
and sort of juggle the whole funding issue and really come in
with some creative ideas.
Mr. Sullivan. Madam Chairwoman, I would agree that if there
was a dedicated fund for Indian water rights settlements, that
would help enhance the discussions.
I can also say, from our experience in the negotiations
with the Gila River Indian Community, we started in those
negotiations in 1988. Serious negotiations did not take place,
though, until probably late in the 1990s, and what it took was
a commitment from the then-Secretary of the Interior, Bruce
Babbitt, to the negotiations, and the addition of the Federal
negotiating team actively at the table added the kind of
synergy we needed to complete those negotiations. Also, the
fact that you had a Senator from Arizona, John Kyl, in
partnership with the Secretary of the Interior, saying, ``You
need to resolve your differences on water rights and how the
settlement would be implemented,'' was very helpful. So the
active involvement of the administration at the table added to
those negotiations.
Similarly, in our negotiations with the White Mountain
Apache Tribe, we see a similar dedication by the Federal
negotiating team. Their active involvement is very helpful in
kind of bringing issues to closure.
Mrs. Napolitano. Thank you. Mr. Echohawk?
Mr. Echohawk. Madam Chairwoman, I would just like to
emphasize a point that our friend, Michael Bogert, made, and
that is that he has got pending requests for another 13
additional negotiation teams besides the 19 that he has going,
and I think that, again, illustrates the magnitude of the issue
that we still have before us, and for the Department to be able
to staff those requests, put together 13 more negotiation
teams, they are going to need more support over at the Office
of Indian Water Rights.
Again, as both Susan and John have said, before we really
get serious in those negotiations, we are going to have to have
some light at the end of the tunnel on the funding issue, or
all of those negotiations are going nowhere.
Mrs. Napolitano. Thank you so very much. I am going into an
area where it is the inconsistent application of the criteria
and procedures, so, Mr. Bogert, you are on my hot seat right
now.
There were two comments that were repeated in almost every
testimony for today's hearing, and the first is, with your
appointment as Secretary's Water Counselor, the level of
Federal participation in the process has improved
significantly, so that is to your credit, sir, a testament to
your water team's hard work and diligence, and you are to be
commended.
The second set of comments deal with the criteria and
procedures, and I completely agree with you, Mr. Bogert, that
we should not have a cookie-cutter formula for the settlement.
However, these were published to provide a consent standard,
and I do not believe that standard has been applied to the
criteria and procedures in their implementation in a consistent
or transparent manner.
For instance, when we look at cost share, you are currently
requesting a ``proportionate'' cost share. What was the cost
share for Arizona water settlement and the Snake River
settlement?
Mr. Bogert. Madam Chair, first of all, let me clarify. We
have been engaged because Secretary Kempthorne has directed
this engagement. As a former Governor who was part of the Nez
Perce agreement--John Echohawk's firm represented the Nez Perce
Tribe--we came into these positions at Interior, once the
Secretary was confirmed, with, we think, as transparent an
understanding of the importance of these settlements.
So the Secretary knows firsthand, from having helped and
led the negotiations back home, how important these are. I
needed to make sure that the Committee understood that that is
a part of our mission.
Mrs. Napolitano. Understood.
Mr. Bogert. Second, Madam Chairwoman, by the time this
administration leaves office, we should have four separate
settlements with financial commitments of almost $3 billion to
the water rights settlements.
I think, to the extent that the criteria and procedures and
discussions and appropriate examination of just exactly how the
criteria and procedures have been involved to provide the
framework for those settlements and those negotiations, first,
our view is that the criteria and procedures are not a rigid,
inflexible, unyielding framework by which we evaluate what the
administration's positions will be on settlements.
I think, if one were to take a look at the criteria and
procedures, the criteria and procedures indicate that, for
example, part of our evaluation, to the extent that tribal
governments can achieve economic self-sufficiency as a result
of a settlement, to the extent there is economic value, to the
extent that there is a breadth of peace in the valley, if you
will, we think that the criteria and procedures are not an
inflexible means by which we view through the lens of the
United States what our position should be.
But that having been said, Madam Chairwoman, part of our
issue and part of our debate around the criteria and procedures
is what weight of authority should they be given? Are there
some parts of the criteria and procedures that should carry
more importance in terms of the hierarchy? We would say that is
a wonderful discussion to have. We have them all of the time,
Madam Chairwoman, because we view each settlement separately,
we view each settlement as a means by which tribal governments
are achieving a means to an end, economic self-sufficiency, at
times, being part of them.
But, Madam Chair, our view has never been that the criteria
and procedures are a rigid, inflexible means by which we
negotiate. Indeed, we would say that it brings discipline to
the discussions, it brings sequence to the issues that need to
be negotiated, and a means by which we can focus on the key
issues of the moment, which internally we must debate in the
administration formally before taking a position on
legislation.
Mrs. Napolitano. I know, but you still have not answered my
question: What was the cost share for Arizona water settlement
and the Snake River settlement?
Mr. Bogert. I believe the State of Idaho, in terms of the
nonFederal participation----
Mrs. Napolitano. I am not talking state; Federal share.
Mr. Bogert. The Federal share? I am sorry, Madam Chair.
Mrs. Napolitano. Federal and state, both.
Mr. Bogert. Snake River was, I believe, close to $200
million. The programmatic obligations are $170 million. There
was no direct state cost share.
Madam Chair, part of the individual circumstances for that
particular settlement, and I know it well because we were
involved in the negotiations back home in Idaho, is that
fundamentally that settlement was driven by considerations
under the Endangered Species Act--and the expense of imposition
of the ESA on the good people of Idaho.
In terms of two of the Section 6 ESA components to that
settlement, the State of Idaho was obligated to commit a 25-
percent cost share in order to enter into the ESA constructs
that were part and parcel of that settlement, and these were
in-kind services and programmatic obligations that were assumed
by the State of Idaho, which is an appropriate consideration,
under the criteria and procedures.
Mrs. Napolitano. Well, we have another vote. I would
certainly ask that you submit, and you did not answer the one
about the Arizona water settlement, but you can put that in
writing for me, please submit to the Subcommittee the
documentation on how that was arrived at, please, so that we
can better understand.
Mr. Bogert. It would be our pleasure.
Mrs. Napolitano. I would appreciate it. I have got 12
minutes to get to the Floor. Just one vote, which means I have
got to travel five minutes to give a vote and five minutes
back. I will move forward because I have got, at least, another
five minutes.
Mr. Echohawk and Ms. Cottingham, from a tribal and state
perspective, how has the implementation of the criteria and
procedures changed the cost share for Federal and state
governments, and could you give us some examples, as briefly as
you can so I can get to a vote?
Ms. Cottingham. Madam Chairwoman, I guess when we talk
about the inconsistent application, you know, for a state like
Montana, some of the tribes do not have very rich water
resources. They have some poor soils. They do not have a lot of
water initially, and when the OMB and the Interior Department
analyze what the potential legal exposure of the United States
might be, which is, really, their main part of how they analyze
these settlements, places like Montana really get the short end
of the deal.
I appreciate the fact that, in Nez Perce, there were major
environmental issues involved, but I think if each settlement
was approached with the same kind of flexibility to look at the
needs--the economic needs, the drinking water needs----
Mrs. Napolitano. Are you saying that it is not applied
evenly?
Ms. Cottingham. I do not believe it has been. I think, over
the years, it has gotten to be narrower perhaps in response to
the fact that there is less Federal money to dole out, but I
think there are some places in Montana where, if they looked
just at what they might face legally in court, if this went to
court, it does do a disservice to the Montana settlements,
which may not have the same kind of legal calculus. That is
just my view of it.
Mrs. Napolitano. Mr. Echohawk?
Mr. Echohawk. Madam Chair, when the criteria and procedures
were announced in 1990, they were presented by the
administration to the tribes as a document that was going to be
flexible, could be flexibly interpreted to evaluate the
settlements. Over the years, it has come down to the point
where the only factor being considered now is the so-called
``legal exposure of the United States'' in case they get sued
for breach of trust. In our view, that is not the flexibility
in the interpretation of the criteria and procedures that was
promised.
Mrs. Napolitano. Do you have an example? Do you have an
example of this?
Mr. Echohawk. Well, I think the position of the
administration in some of these settlements in recent years,
where they have come forward and testified in opposition to
settlements, the basis of that opposition has been their
calculation of this legal liability.
Mrs. Napolitano. Thank you. On the basic settlement process
and its effectiveness, there have been 21 water rights
settlements since 1978. That is almost one a year, in
calculation, you know.
To Mr. Sullivan, the Salt River Project played a key role
in the Arizona Water Settlement Act. How do you think this
process can be improved?
Mr. Sullivan. Well, I think, as I answered earlier, one of
the things was, once we got the Federal team actively involved
in the negotiations, they added synergy to that process. I
think we have learned from that because the Federal team has
become actively involved in the White Mountain Apache
settlement, the one we are currently working on, much quicker,
and I think that is fruitful for everyone involved because, as
we work out issues like water budgets and the financial issues,
the administration and the Federal government is at the table
as we discuss those issues.
It helps frame those issues better when we come back to
Congress to discuss these settlements. So I think that is one
thing we learned from the negotiations in the Arizona water
settlement with two different Indian tribes, two different
claims, and two different settlements was the act of
involvement of the Federal team was a good thing, and we would
certainly encourage that in other settlements that we are
actively involved in.
Again, having the Secretary of the Interior committed to
get that done was a major commitment.
Mrs. Napolitano. Mr. Echohawk and Ms. Cottingham, how do
you think the Federal, state, and tribal partnerships have
changed over the years?
Ms. Cottingham. Madam Chairwoman, that is an excellent
question. I would have to think about that for a minute.
I think, when we first embarked in Montana on the
settlement process, and our process is very clearly laid out--
it is a three-sovereign process--tribe, state, and Federal
government--that we wanted to bring to the table, and I think
most of us, especially the tribes, probably thought that the
U.S. would be the trustee for the tribes and that they would
maybe be working in partnership across the table from the
state.
I think what has happened over the years is we have found,
with one exception, that, on these settlements, the tribes and
the state come together and get their settlements agreed to and
then come back and try to go to Congress with or without the
support of the Federal government. So I think it is interesting
that the dynamic has changed over the years. I think any
reference to 21 settlements; I think there are probably only a
handful of those that actually had the support of the
administration at the time. Again, I emphasize, it is not this
administration. I have been working on these since 1991.
But I do think it has been an interesting dynamic that the
parties that are on the ground tend to be the ones that are
coming up with the settlement and then either coming back and
going to Congress without the support of the administration. I
think we have tried to work much more closely with Mr. Bogert
and his staff on a lot of these issues.
It has been an interesting change over the years to see how
the dynamics worked with the trustee. The state and tribe
often, and I do not think it is just in Montana--in many
states--becoming the partners and then coming back and trying
to convince Congress that they have a good deal.
Mrs. Napolitano. So you think it is changing for the
better.
Ms. Cottingham. I think now it has been changing for the
better, but I think, over the years, it has been an interesting
dynamic because, again, often the Federal negotiating teams do
not have the authority to work on the issues early on. I think
that has changed under the last administration, and they are
trying to do it sooner rather than later, but it has still been
a difficult process.
Mrs. Napolitano. I have one more question, if you really
can just give it a minute. How do you think the Federal, state,
and tribal partnership has changed over the years? Has it
changed?
Mr. Echohawk. When the Native American Rights Fund was
started in the 1970s, Madam Chairwoman, we were focused
primarily on having the Indian water rights claims filed in
conjunction with our trustee, the Federal government, and we
have had a very good partnership with the Federal government.
We were able to bring all of these claims forward, got many of
them filed, started the litigation process.
When we then got into the negotiation process, we, again,
expected the Federal government to be there with us and to be
ready to bring their fair share of the settlement costs to the
table, but we found out that that created a whole new dynamic.
The Federal government was not willing to do that, and, as
a result of that, we had to create new partnerships with the
states and the non-Indian water users to help us get the
political leverage to make the Federal government pay its fair
share of these settlement costs, and, in that sense, the
dynamic had changed, and that is still the dynamic that is
going on today and that we are talking about here today,
getting the Federal government to pay its fair share of these
settlement costs is still the most important issue that we are
facing.
Mrs. Napolitano. And to take a leadership role.
Mr. Echohawk. Yes, ma'am.
Mrs. Napolitano. Well, thank you. You have 10 days to
submit any further comments for the record or questions, and,
with that, I thank all of the witnesses. I am going to run. I
have got three minutes to get across the street. I will return.
I will recess for 15 minutes. It is one vote. I shall return.
[Whereupon, at 4:15 p.m., a short recess was taken.]
Mrs. Napolitano. For the second panel, we have Jeanne S.
Whiteing, Tribal Counsel of the Blackfeet Tribe from Browning,
Montana; second, The Honorable Joe Shirley, Jr., President of
the Navajo Nation from Window Rock, Arizona; and the third
guest, Rodney B. Lewis, former General Counsel of the Gila
River Indian Community, from Sacaton, Arizona, and welcome to
all three of you.
I would like to have you start with the testimony. I have
maybe 15 to 20 minutes when I have to run back, but I wanted to
come back and hear your testimony so that it goes on the
record. So if you would, ma'am, Ms. Whiteing, please.
STATEMENT OF JEANNE S. WHITEING, LEGAL COUNSEL AND MEMBER,
BLACKFEET TRIBE, BROWNING, MONTANA
Ms. Whiteing. Thank you, Madam Chair. Good afternoon. I
would like to convey the greetings of the Blackfeet Tribal
Chairman, Earl Old Person, to the Committee, who sends his
thanks as well to you and the Committee for holding this
hearing.
I do want to correct one thing. I am Jeanne Whiteing, and I
serve as Legal Counsel to the Blackfeet Tribe in their water
rights negotiations. I am also a member of the tribe. I am not,
however, a member of the tribal council. That is a much more
difficult job than mine, and, fortunately, I am not a member of
the council.
Mrs. Napolitano. OK. I have you as Tribal Counsel and a
member of the Blackfeet Tribe.
Ms. Whiteing. Legal counsel, yes. Madam Chair, as I said, I
represent the Blackfeet Tribe in their water rights
negotiations, but I have been working in the water rights field
for over 30 years, and I have been struck by the testimony this
afternoon, struck by the fact that the issues that we are
discussing today--the funding issues and the process issues--
are exactly the same issues that were encountered in the first
water settlement that I worked on, and that is the water
settlement for the Northern Cheyenne Tribe that was enacted by
Congress in 1992.
The issues there were funding and process. The
administration, after the negotiation was fully completed,
opposed the settlement on the funding. The process was also at
issue because the negotiation did go forward with the Federal
team. The Federal team thought that they had authority to
negotiate the settlement but found, in the end, that the
decisions were actually made by OMB, and the work that had been
put into the settlement, as far as the Federal team was
concerned, was for naught because it did not mean anything in
the end.
The key, in my opinion, is a clear and firm funding
mechanism. It frees up the Department to be involved in the
settlements in a more substantive way, and it frees up the
Department to come up with creative solutions to what are some
very difficult water rights issues.
Moreover, we believe that this would facilitate the trust
responsibility to the tribes, the tribes' responsibility to
protect and preserve tribal water rights by allowing the
Department to become involved in the process in a more
meaningful way.
I want to emphasize why this is important for another
reason, and that is many of the significant water rights issues
that we are negotiating on behalf of the Blackfeet Tribe, as
well as other tribes, are really the making of the United
States, as far as we are concerned. The Blackfeet Tribe has
been involved in negotiations of its water rights for almost
two decades, and, fortunately, in the last two years, we have
been able make significant progress so that we expect to have a
compact ready for congressional introduction in the very near
future.
In our written testimony, we detail the history of the
tribe and the history of the water rights issues facing the
tribes, but despite the significant water resources on the
reservation, the tribe has been unable to benefit, in any
meaningful way, from the water on the reservation.
On the other hand, others have benefitted from those water
resources. In 1909, the St. Mary's and Milk River were divvied
out between the United States and Canada in the 1909 Boundary
Waters Treaty. The St. Mary's River has been diverted off of
the reservation for almost 100 years for use far downstream,
over 200 miles downstream, for the Milk River Project, which is
a Bureau of Reclamation project.
We are hopeful that the tribe will finally begin to benefit
from its water rights through better community water systems,
through rehabilitated and increased irrigation, and through
other uses. However, the Federal negotiation process has made
the road to Congress a very rocky one, and we are particularly
concerned that that is so because, as I say, many of the issues
that we are having to deal with are caused by either the
actions or inactions of the Federal government.
We believe that the criteria and procedures have been used
as an actual impediment to settlements. The narrow manner in
which the criteria and procedures have been interpreted to
allow for involvement of the negotiation teams and the very
narrow view in terms of how the funding is viewed. A very
strict legal liability standard is utilized. We believe that
that standard has been applied inconsistently. It has not been
utilized in some settlements but has been utilized in others.
Almost all of the settlements require a Federal
contribution. However, the criteria and procedures and the
manner in which that contribution has been calculated has
definitely proved to be an impediment to almost all
settlements. In fact, we do not believe that there are many
settlements that have actually been supported by the
administration.
Mrs. Napolitano. Could you describe [off mike].
Ms. Whiteing. Yes. We would want to mention just one issue
that we do not believe has been mentioned in this process up to
this point in time, and that is that we believe that there has
to be a clear process for handling conflicts within the Federal
government in terms of the various competing Federal water
rights that exist in the negotiation process, and we would urge
that that conflict-of-interest issue be addressed by the
Department and a clear policy for resolving those issues be set
out.
Thank you, Madam Chair, and we appreciate the opportunity
to testify here.
[The prepared statement of Ms. Whiteing follows:]
Statement of Jeanne S. Whiteing on behalf of the Blackfeet Tribe of the
Blackfeet Indian Reservation, Montana
On behalf of the Blackfeet Tribe, I would like to thank the
Subcommittee on Water and Power for holding this Oversight Hearing on
Indian Water Rights Settlements, and for inviting the Blackfeet Tribe
to present testimony. My name is Jeanne Whiteing, and I serve as Legal
Counsel to the Blackfeet Tribe in its water rights negotiations. I am
also a member of the Tribe.
The Blackfeet Tribe has been involved in negotiations to resolve
its water rights with the State of Montana and the United States for
almost two decades. In the last two years, significant progress has
been made and I am pleased to report that a water rights compact has
been completed with the Montana Reserved Water Rights Compact
Commission, subject to the approval of the Blackfeet membership, the
Montana Legislature and Congress.
Water is the most important resource issue for the Blackfeet Tribe
today, and the Tribe welcomes the opportunity to provide comment on the
settlement process and the funding of settlements. In order to put
these issues in context, I would first like to provide some background
on the Blackfeet Reservation, the water resources of the Reservation,
and the water rights issues faced by the Tribe.
The Blackfeet Reservation
The Blackfeet Tribe is a sovereign Indian Nation residing on the
Blackfeet Indian Reservation in Montana and exercising jurisdiction and
regulatory control within the Reservation. The Reservation was formally
established by Treaty with the United States on October 17, 1855. As
originally set aside, the Blackfeet Reservation encompassed most of the
western and northern part of what is now the State of Montana. It was
gradually reduced to the present 1.5 million acre Reservation through
various executive orders, agreements and an act of Congress. The
Reservation is bordered on the north by Canada.
The Reservation was allotted under two separate allotment acts in
1907 and 1919. With the advent of allotment, land ownership within the
Reservation was irrevocably altered. Currently, approximately 65% of
the Reservation is owned by the Tribe or individual Tribal members, the
remainder being held by non-Indians. There are 15,200 enrolled members
of the Blackfeet Tribe, about half of whom reside on the Reservation.
Water is critical to Reservation communities for drinking water
supplies, for commercial and industrial purposes, and for the
maintenance and development of local economies
The Blackfeet Economy
The Blackfeet economy is heavily dependent on agriculture and stock
raising. A large percentage of land on the Reservation is utilized for
agricultural purposes, both irrigated agriculture and dry land farming.
The Tribe and tribal members own large numbers of cattle, and regularly
lease land to pasture cattle for others. Stock raising and agriculture
provide the mainstay of the economy, and both are directly dependent on
water in order to be viable activities. The reservation also contains
significant oil and gas reserves and timber resources that
substantially contribute to the tribal economy. Notwithstanding its
significant resources, unemployment on the Reservation regularly runs
over 60%.
Water Resources and Water Rights
Under the Winters Doctrine, the Blackfeet Tribe has reserved rights
to the water resources of the Reservation with a treaty priority date
of 1855. These rights are held by the United States in trust of the
Tribe, and they are tribal trust resources subject to the trust
responsibility of the United States.
Several watersheds are encompassed within the Reservation,
including St. Mary River, Milk River, Cut Bank Creek, Two Medicine
River, Badger Creek and Birch Creek. The St. Mary River is part of the
Hudson Bay drainage; all other streams on the Reservation are part of
the Missouri River Basin. The average annual water supply on the
Reservation is approximately 1.1 million acre feet.
Adjudication/Negotiation of Blackfeet Rights
In April 1979, the State of Montana enacted a statewide water
rights adjudication system sometimes referred to as Senate Bill 76. In
the same month and year, the United States filed a case on behalf of
the Blackfeet Tribe in the Federal Court in Montana to adjudicate the
Tribe's water rights. The Blackfeet case was one of several federal
court cases filed by the United States on behalf of Montana tribes. The
jurisdictional conflict that ensued between the state adjudication and
the federal cases was ultimately decided in favor of state court
adjudication in Arizona v. San Carlos Apache Tribe, 463 U.S. 545
(1983).
In enacting its adjudication system, the Montana Legislature
uniquely indicated its intent that federal water rights, including
Indian water rights, should be resolved through negotiated compacts,
MCA 85-2-701, and established the Montana Reserved Water Rights Compact
Commission to negotiate such compacts, MCA 2-15-212.
The Blackfeet Tribe initiated negotiations with the Compact
Commission in 1989. The negotiations proceeded in fits and starts until
about three years ago when the negotiations gained significant
momentum. The Tribe and the Compact Commission agreed to a compact last
fall for presentation for approval by Congress, the Montana Legislature
and the Blackfeet membership.
The Issues for Negotiation
While the actual resolution of Indian water rights is a
straightforward process of determining quantity, purpose and priority
date, the process for reaching that point is anything but
straightforward, The parties to a negotiation must engage in a delicate
balance of compromise of water rights, utilization of existing water
supplies and creation of additional water supplies to satisfy rights
and mitigate impacts, and other creative alternatives. As is the case
for many other tribes, the process at Blackfeet is further complicated
by the fact that the critical disputes and controversies that must be
resolved through the negotiations are, for the most part, the result of
actions and inactions of the Federal Government. A description of the
primary issues at Blackfeet illustrates this.
Boundary Waters Treaty and the Milk River Project. The St. Mary and
Milk Rivers are allocated between the United States and Canada under
the 1909 Boundary Waters Treaty.. Prior to entering into the Boundary
Waters Treaty, the Bureau of Reclamation's predecessor, the Reclamation
Service, had begun plans for an irrigation project utilizing St. Mary
River water in order to justify an allocation under the Treaty. The
Project was authorized in 1902, and soon after the completion of the
Boundary Waters Treaty, the Reclamation Service, constructed the Milk
River Project which diverts the United States' share of the St. Mary
River off the Reservation to serve water users on the Milk River over
two hundred miles downstream from the Reservation.
Although the Winters case had been decided in 1908, before the
Boundary Water Treaty was completed and the Milk River Project was
constructed, and although the Winters case involved the Milk River, the
United States never consulted with the Blackfeet Tribe and never
considered the effect of the Treaty or the Project on the water rights
of the Tribe. In the 1896 negotiations leading to the relinquishment of
the Tribe's western lands, the Tribe was promised that it would benefit
from the Project, but no benefit has ever materialized and no
Reservation lands are served by the Project. Early Milk River Project
documents show that as part of the planning process, a Reservation
project had been identified as feasible, but the Reclamation Service
rejected the Reservation project in favor of the downstream non-Indian
project.
For nearly a hundred years, the United States' share of the St.
Mary River has been diverted off the Reservation by the Bureau of
Reclamation for use by the Milk River Project. St. Mary water is
diverted into a 29 mile canal on the Reservation before it discharges
into the North Fork of the Milk River. The water then flows into Canada
for 216 miles before it returns to the United States and is stored in
Fresno Reservoir to serve the 121,000 acres of the Milk River Project.
Although the Tribe has never received any benefit from the Milk
River Project, the Project facilities utilize Tribal lands and the
Tribe has suffered the environmental consequences of the facilities,
including frequent flooding, the silting in of the pristine alpine St.
Mary's Lake, and impacts to Reservation fisheries particularly in
Swiftcurrent Creek and St. Mary Lake. Various problems also result from
the seepage of the canal and other aging structures. Presently, the
Milk River Project facilities on the Reservation include Lake
Sherburne, Swiftcurrent Dike, St. Mary Diversion Dam, and the 29 mile
St. Mary Canal, which includes two large sets of siphons and a series
of five large concrete drop structures near the lower end of the canal.
In the Water Resources Development Act of 2007 (WRDA), Congress
authorized $153 million for the rehabilitation of the diversion
facilities located on the Reservation.
Other Issues. In the 100 years since the Winters decision,
significant non-Indian development has occurred on and off the
Blackfeet Reservation to the detriment of the Blackfeet Tribe, but
without any answer from the United States as trustee for the Blackfeet
Tribe, with the exception of the 1908 Conrad Investment case affecting
Birch Creek. The result is that negotiation of Blackfeet water rights
in the face of such non-Indian uses is substantially more difficult,
and in some cases requires mitigation measures for such users in order
for settlement to occur. On Birch Creek, the Tribe and the State have
had to negotiate a separate agreement to mitigate impacts to the local
water users who now irrigate 70-80,000 acres directly off the
Reservation.
The Blackfeet Irrigation Project. The BIA Blackfeet Irrigation
Project was authorized in the 1907 Blackfeet allotment act. The Project
has 38,300 assessed acres in three units that presently include both
Indian lands (65%) and non-Indian lands (35%). Like most other BIA
irrigation projects, the Blackfeet project has major condition
problems. A low estimate of deferred maintenance costs for the project
is $29,130,222. GAO, Report on Indian Irrigation Projects (February
2006). In addition, the project remains uncompleted a hundred years
after it was authorized.
The Federal Negotiation Process
Since 1989, it has been the policy of the Administration that
Indian water rights should be resolved through negotiated settlements.
In 1990, the Department of the Interior, therefore, established a
Working Group on Indian Water Rights settlements and published criteria
and procedures for Department involvement in negotiations. Working
Group in Indian Water Settlements; Criteria and Procedures for the
Participation of the Federal Government in Negotiations for the
Settlement of Indian Water Rights Claims, 55 Fed. Reg. 9223 (March 12,
1990). These Criteria and Procedures have remained the policy of the
Administration since their publication.
A Blackfeet Federal Negotiating Team was appointed in 1990. The
Team includes representatives from Bureau of Indian Affairs, Interior
Solicitor's office, Department of Justice, Bureau of Reclamation, Fish
and Wildlife Service, and the Forest Service. The Team, along with the
Tribe and the State, has put in countless hours in the Blackfeet
negotiations, and has worked on settlement in complete good faith. The
appointment of Michael Bogert, Counselor to the Secretary, has brought
a welcome interest to the Blackfeet settlement, and the Tribe is
especially pleased that Mr. Bogert paid a visit to the Reservation to
express the Department's interest. Nevertheless, the process that the
Team has been required to follow has presented a number of problems
that have made the negotiations difficult, and have, at times, impeded
the negotiations. As a result, we have not reached final agreement with
the Department.
This situation is not unusual among Indian water settlements. Of
the approximately twenty Indian water rights settlements enacted to
date by Congress, only a small number of them have been supported by
the Administration. We have identified a number of reasons for why this
is so at Blackfeet.
1. The Narrow Role of the United States in the Process
First and foremost, the Department of the Interior (Interior) views
its role in settlements very narrowly. Rather than taking a broad
problem solving approach to settlement that seeks to find and sustain a
full and lasting resolution, the United States takes a narrow view of
its role that focuses on minimizing its responsibility and involvement.
Fundamentally, it is an approach that seeks to deny any responsibility
for the problems or any responsibility for fixing them, even though the
disputes and conflicts involved are often the making of the Federal
Government. The Department's approach is to require the Tribe, the
State and the water users to resolve the issues with little input and
few resources from the Department.
Thus, the Federal Team is involved in the negotiations but is not
authorized to take any positions. In effect, the Federal Team is a mere
observer to the process. While the Team can and does identify issues or
concerns of the Federal Government, the Team rarely identifies
solutions or make proposals because it has no authority to do so. This
means that no real negotiation takes place with the Federal Government,
and it is often not until the settlement is completed by the other
parties, that an Administration position is formulated.
The Department's narrow approach to settlement makes the
negotiation particularly difficult if, as in the case at Blackfeet, the
issues to be resolved are fundamentally federal issues. As described
above, the fundamental water disputes and conflicts that require
resolution through the settlement process are disputes and conflicts
that trace to the actions and inactions of the Federal government. It
is exactly these conflicts that present the most significant challenge
to reaching a settlement of the Tribe's water rights. Without full
participation of the Department and a willingness to fully engage in
the process, and without some acceptance of responsibility in the
matter, there is little prospect of negotiating a settlement that is
likely to meet with the approval of the Administration.
2. The Liability Approach to Funding Settlements
Almost all settlements include a federal contribution to
settlement, and the criteria and procedures focus in large part on the
manner in which such contributions will be considered and calculated.
Under the criteria and procedures, the federal contribution is limited
to Acalculable legal exposure@ and Acosts related to Federal trust or
programmatic responsibilities,@ provided that the latter cannot be
funded through normal budget process. Few settlements have met these
criteria, and this has been the most significant factor in the lack of
Administration support for settlements when they reach Congress.
Over the years, the Administration's interpretation of the funding
criteria has varied. In more recent years, any consideration of trust
or programmatic responsibilities has been de-emphasized or eliminated
in favor of an analysis of the United States' narrow legal liability,
unless the trust or programmatic responsibilities can be funded through
the normal budget process. More recently, it now appears that even
trust or programmatic items must be justified by a showing of legal
liability. This has created large discrepancies between settlement
costs proposed by the parties and the Department's calculation of its
legal liability. This discrepancy has hindered the prospect of reaching
final agreement with the Administration, and has resulted in strong
Administration opposition to settlements rather than a mere lack of
support.
Further, many of the potential claims are historic claims, and the
Administration frequently concludes that the claims are barred by the
statute of limitations or other limitations. Therefore liability is
significantly discounted or denied altogether.
The Administration's policy of basing settlement funding strictly
on a finding of legal liability for claims against the Federal
Government leads to inequitable results, and does not allow for
realistic solutions to significant water rights and water related
problems. It is particularly disturbing that this policy is applied
even to matters that are within the programmatic obligations of the
Department and within the Department's trust responsibility to Tribes.
Application of a strict legal liability standard appears to be
confined to Indian water rights settlements. Where other issues and
concerns are involved, the Administration appears to be willing to take
a more flexible approach, and a strict legal liability approach is
rarely applied to other kinds of project such as the recent
authorization in the 2007 WRDA legislation of $153 million for the
rehabilitation of the St. Mary diversion facilities for the Milk River
Project.
3. The Inconsistent Application of the Criteria
The above discussion illustrates a third point we would like to
make, and that is, the Department is not consistent in the manner in
which it approaches settlement or the manner in which it applies the
criteria and procedures to the federal contribution to settlement. One
additional area of inconsistency we would mention relates to how the
Department requires or determines a state or local contribution bears
comment as well. In some settlements, no state contribution has been
required; in others, the state contribution has been determined by the
Department to be inadequate. There does not appear to be a consistent
application of the requirement of a state contribution, or any
consistent method for determining the amount of an appropriate state
contribution. The Department's consideration of the state contribution
issue also fails to take into account the circumstances of a
settlement, i.e. whether the issues to be resolved are primarily
federal because they are the result of the actions and inactions of the
Federal Government.
We are not clear why the Administration strictly applies the
criteria and procedures to some settlements, but not others. Such
inconsistency is inequitable, and often results in a broad rejection of
the criteria and procedures by those engaged in settlement.
4. Conflicts Among Federal Water Rights
One matter that is not addressed in the criteria and procedures is
the manner in which conflicts between or among federal water rights
will be resolved. This matter has particular significance at Blackfeet,
and we are concerned that there is not a clear process for considering
and resolving such conflicts.
Blackfeet is affected by water rights compacts that have been
negotiated and finalized for Glacier National Park and Lewis and Clark
National Forest, which are immediately adjacent to and upstream from
the Blackfeet Tribe. The Department has also participated in the Fort
Belknap Compact which involves a separate Tribe on the Milk River, a
stream that arises on and flows through the Blackfeet Reservation. The
United States also holds state water rights for the Bureau of
Reclamation Milk River Project and the Bureau of Reclamation Tiber Dam,
a large storage facility immediately downstream from the Blackfeet
Reservation. The Department also filed separate state water right
claims for the BIA Blackfeet Irrigation Project.
There is no clear process for resolving potential conflicts among
federal rights. In some instances, the Blackfeet Tribe has received
considerable pressure from the Department to subordinate its water
rights to the water rights of other Federal entities. And, in some
cases, the attorneys for other Federal entities have become involved in
the negotiations outside of the Federal Team process. These conflicts
have seriously impacted the Blackfeet negotiations.
5. Funding for Tribal Participation in Settlement
The Bureau of Indian Affairs funds tribes to participate in water
rights negotiations, and provides funds for tribal technical experts.
Such funding is critical to the process. The Blackfeet Tribe would be
unable to participate in the process without such funding. And, because
the Department does not provide technical experts for the Blackfeet
negotiations, the Tribe's technical experts are essential to the
settlement process.
Funding has varied significantly from year to year, and in some
cases no funds have been made available. Inconsistent funding has
significantly delayed the process. The Blackfeet Tribe believes that
when negotiations have reached the stage when settlement is more likely
than not, the Department should shift funds that it currently expends
on litigation to settlement.
6. Lack of a Clear Funding Mechanism for Settlements
Last, but certainly not least, the lack of a clear mechanism for
funding Indian water rights settlements has been and continues to be a
major impediment to Administration approval and congressional approval
of settlements. The problem has substantially increased as the number
of pending settlements has increased in the last several years.
It has been suggested that Indian water settlements be funded
through Indian programmatic budgets, for example, community water
systems should be funded by the Indian Health Service, etc. However,
such budgets are inadequate or non-existent to begin with and are
getting smaller, while competition among tribes for such funds has
increased. Requiring all of Indian country to bear the burden of the
costs of Indian water settlements is no solution when such budgets are
already grossly inadequate.
We know that others witnesses are focusing on this issue, but we
want to emphasize the importance of this issue to the Blackfeet Tribe.
Thank you for the opportunity to present testimony on this very
important issue. We deeply appreciate the Chairman Grace Napolitano's
interest in these issues, and look forward to assisting the
Subcommittee in addressing these issues.
______
Mrs. Napolitano. Thank you for your testimony. The
Honorable Joe Shirley, Jr., please.
STATEMENT OF THE HONORABLE JOE SHIRLEY, JR., PRESIDENT, NAVAJO
NATION, WINDOW ROCK, ARIZONA
Mr. Shirley. The Honorable Chairwoman Napolitano and
Members of the Subcommittee, greetings from the Navajo Nation.
The Navajo Nation has considerable experience with water
rights settlement. We were pleased to provide testimony before
your Subcommittee last year on H.R. 1970, and we appreciate the
continued efforts of your staff to thoroughly grasp and
investigate the magnitude of the water needs facing Navajo
people, as well as Native Americans.
We are currently involved in finalizing a settlement with
the State of New Mexico, and we are in discussions with the
States of Arizona and Utah to quantify our water rights through
negotiated settlements rather than through litigation.
I have submitted my written testimony for the record and
want to summarize my responses to Congressman Napolitano's six
questions.
First, the role of the Federal government should be as an
aggressive trustee of our water rights. The Navajo Nation is
concerned that the strict application of the criteria and the
procedures for the participation of the Federal government in
negotiations may create incentives for the U.S. to not advocate
aggressively for the interests of Native American tribes in the
settlement and litigation of tribal water rights claims.
As a general proposition, minimizing the claims of the
tribes reduces the U.S.'s potential liability and thereby
reduces the level of Federal contribution to water rights
settlement under the current interpretation of the criteria and
procedures.
This creates a conflict between the role as trustee and the
role of minimizing Federal financial responsibility under the
criteria and procedures.
In the case of Arizona, the U.S. has neglected the Navajo
Nation's water rights claims to the Colorado River and has
pursued a wide variety of activities concerning the management
and allocation of the waters of the river without accounting
for the needs of the Navajo Nation. The Navajo Nation believes
that its position in these discussions would be enhanced if the
U.S. would affirmatively pursue the adjudication of these
claims in Federal court. The U.S. has refused this request.
Nevertheless, the Federal negotiation team was appointed,
and settlement discussions are ongoing. The effectiveness of
the Federal team is severely hampered by the conflict between
its competing roles. The tribal role in the quantification of
water rights is difficult and challenging.
The objective of the Navajo Nation is to obtain a water
supply that meets the needs of future generations of Navajos to
live and thrive in the Navajo Nation as their permanent
homeland.
These efforts, whether through negotiation or litigation,
require the expenditure of significant resources for attorneys
and experts. With the reduction in Federal funds available for
tribes to pursue these claims, we can no longer rely on the
U.S. to fund the tribal efforts.
The state governments also play a vital role in the
quantification efforts, including the adjudication of water
rights in state courts. However, the states face the same
fiscal limitations as the Federal government, and, as a result,
most of the water rights adjudications proceed at a snail's
pace.
Second, the benefits of the settlement process is that the
three sovereigns involved negotiate as sovereigns. We sit down,
we negotiate, and find a solution that best meets the need of
the people we represent. The costs of litigation beyond expense
of the allocation of scarce tribal resources is that litigation
forces the parties to push themselves into corners rather than
look for common solutions concerning the use of water.
In litigation, the most that tribes can receive is their
paper water rights pursuant to a judicial decree, but, through
water settlements, tribes have been able to obtain wet water
through the development of infrastructure to put water to use
on our homelands. In the case of the Navajo Nation, we need
reliable, safe drinking water.
Third, I cannot say that the settlement process has removed
water uncertainty because the Nation does not currently enjoy a
finalized settlement. I do know that the settlement process has
allowed us to build relationships with non-Navajo parties who
also want to see our settlement succeed.
Fourth, the effectiveness of the Department's Indian Water
Rights Office varies. At times, the office has been extremely
helpful, and, at other times, it has been an obstacle. In the
case of the New Mexico settlement, the Indian Water Rights
Office appointed both assessment and settlement teams to
participate in negotiations between the Navajo Nation and the
State of New Mexico. However, the Department was unable to
formulate a position with respect to the settlement and advised
the parties that its hands were tied by OMB. Eventually, the
U.S. disappeared from the negotiations, and the final agreement
was hammered out without Federal participation.
With the appointment of Michael Bogert in 2006 as the
Secretary's Water Counselor, the level of Federal participation
in this process improved significantly, and we are grateful for
the assistance of the office in helping to revise and improve
the substance of our proposed settlement legislation. We are
also grateful for Mr. Bogert and his staff personally visiting
the Navajo Nation on several occasions and for witnessing
firsthand our critical need for a drinking water
infrastructure.
Despite Mr. Bogert's efforts, we were disappointed when the
Department of the Interior testified against H.R. 1970 before
this Subcommittee on June 27, 2007.
Mrs. Napolitano. [Off mike.]
Mr. Shirley. Well, I am trying to answer your six
questions, Honorable Chairwoman, but I think you understand
what we are trying to go through, and, of course, Mr. Bogert
has been there and has relayed back to the U.S. Government what
our needs are, so thank you very much.
[The prepared statement of Mr. Shirley follows:]
Statement of President Joe Shirley, Jr., Navajo Nation
Thank you, Chairwoman Napolitano and members of the Water and Power
Subcommittee of the House Committee on Natural Resources. My name is
Joe Shirley, Jr., and I am President of the Navajo Nation, a federally
recognized Indian nation with the largest reservation in the United
States. I appreciate this opportunity to share with you the Navajo
Nation's perspective on Indian Water Rights Settlements, a topic of
vital importance to the Navajo Nation.
The Navajo Nation has considerable experience with Indian Water
Rights Settlements. Most recently, I was pleased to provide testimony
before this subcommittee on H.R. 1970--the Northwestern New Mexico
Rural Water Projects Act which would authorize a settlement of the
Navajo Nation's water rights in the San Juan River basin in New Mexico,
and would authorize the Navajo-Gallup Water Supply Project to provide
much needed potable water supplies to the Navajo Nation. The Navajo
Nation is currently involved in discussions with the states of Arizona
and Utah to quantify our water rights through negotiated settlements,
rather than through the adjudication process.
Chairwoman Napolitano has posed several questions to frame the
discussion of Indian Water Rights settlements, and I will address each
one using the experiences of the Navajo Nation as a foundation for my
testimony.
First, what do you see are the respective roles of the federal
government including Congress, as well as state, local and tribal
governments in dealing with Indian Water Rights adjudication and
settlement?
The role of the federal government, including the Congress, is to
be an aggressive trustee of our water rights. The Navajo Nation is
concerned that the present application of the Criteria and Procedures
for the Participation of the Federal Government in Negotiations creates
incentives for the United States to oppose the interests of Indian
tribes in both the litigation and settlement of tribal water rights
claims. As a general proposition, minimizing the claims of the tribes
reduces the United States' potential liability and thereby reduces the
level of federal contribution to water rights settlements under the
current interpretation of the Criteria and Procedures which almost
always looks solely to the question of federal liability in determining
the merits of a particular settlement.
In the case of Arizona, the United States has neglected the Navajo
Nation's water rights claims to the Colorado River and has pursued a
wide variety of activities concerning the management and allocation of
the waters of the river without accounting for the needs of the Navajo
Nation. As a result of this neglect, the Navajo Nation sued the
Secretary of the Interior in March of 2003. Since that time, we have
been engaged in settlement discussions with the United States, the
State of Arizona, and others concerning a possible quantification
through a negotiated settlement. The Navajo Nation believes that its
position in these discussions would be enhanced if the United States
were to affirmatively pursue the adjudication of these claims in
federal court; however, the United States has refused the request of
the Navajo Nation to pursue such claims. Nevertheless, a federal
negotiation team has been appointed pursuant to the aforementioned
Criteria and Procedures and settlement discussions are on-going. The
effectiveness of the federal team is severely hampered by the conflict
between the role of the Department of the Interior as trustee for the
Navajo Nation and its job under the Criteria and Procedures to minimize
federal financial responsibility, as well as the lack of federal
resources to devote to the settlement effort.
The tribal role in the quantification of water rights is difficult
and challenging. The objective of the Navajo Nation in the adjudication
and negotiation process is to obtain a water supply that meets the
needs of future generations of Navajos to live and thrive on the Navajo
Nation as their permanent homeland. These efforts, whether through
litigation or negotiation, require the expenditure of significant
resources for attorneys and experts. Over the past several decades, the
federal funding to pursue these efforts has been reduced significantly.
Tribes can no longer rely on the United States to fund the tribal
efforts and the funding for the federal government's participation in
this process has been significantly reduced as well.
The state governments play a vital role in the quantification
efforts, including the adjudication of water rights in state courts.
However, the states face the same fiscal limitations as the federal
government, and as a result, most of the water rights adjudications
proceed at a snail's pace. This serves to continue the status quo in
terms of the utilization and allocation of water supplies which
typically favor the non-Indian water users to the detriment of Indian
tribes. In the settlement process, the Navajo Nation seeks to form
partnerships with the states in order to build necessary water
infrastructure on our homeland, while seeking a balance between the
needs of the Navajo People and the water needs of our neighbors. This
is a difficult exercise because the water supplies available are
generally over-allocated. The federal government can greatly assist in
this process by providing the resources to help pay for the water
infrastructure needed to equitably allocate the use of water among all
of the water users. Again, we are concerned that by focusing almost
exclusively on the issue of federal liability, the current
interpretation of the Criteria and Procedures is being used to limit
the role of the United States, rather than to further the announced
federal policy in support of settlements..
Second, what are the costs and benefits of the settlement process
when compared to litigation?
The benefit of the settlement process is that the three sovereigns
involve act like sovereigns. We sit down, negotiate, and find a
solution that best meets the needs of the people we represent.
In addition to being extremely expensive, litigation forces the
parties to push themselves into corners, bounded by the rules of
litigation, rather than look for common solutions concerning the use of
water, the most precious resource to human beings. In litigation we end
up creating enemies whereas with settlement we create partners.
In litigation, the most the tribes can receive is a ``paper water
right'' pursuant to a judicial decree. But through water settlements,
tribes have been able create ``wet water'' through the development of
infrastructure to put water to use on our homelands. In the case of the
Navajo Nation, we need reliable, safe drinking water. All of our
settlement efforts are premised on the proposition that we are willing
to compromise our ``paper water rights'' in exchange for sustainable
drinking water projects. These projects come at a significant cost, and
we remain concerned that the Criteria and Procedures are not applied in
a manner that undermines our settlement efforts.
Third, how has the settlement process helped remove water
uncertainty for the tribes and the non-Indian communities?
This is a theoretical question for me, because the Nation does not
currently enjoy a finalized settlement. I do know that where we have
reached agreement with the State of New Mexico concerning the San Juan
River, I see something that can be hard for some to believe. We have
non-Indian friends in the basin, particularly in the City of
Farmington. In the 1970s, the City of Farmington was the site for a
very violent crime committed against Navajo people. Today, because of
the settlement, we have friends in and around Farmington who support
H.R. 1970 because the settlement is a good thing for the non-Indian
water users, as well as for the Navajo Nation.
Fourth, how effective is the Department's Indian Water Rights
Office and how can they be improved?
This is a difficult question, because at various times the Indian
Water Rights Office has been extremely helpful and at other times has
been an obstacle in the settlement process. In the case of the New
Mexico settlement, the Indian Water Rights Office first appointed an
assessment team and later appointed a full settlement team to
participate in the negotiations between the Navajo Nation and the State
of New Mexico. Despite the appointment of these teams, the United
States was unable to formulate a position with respect to the
settlement and typically advised that the Navajo Nation and the State
of New Mexico would have to negotiate with the Office of Management and
Budget. Eventually, the United States disappeared from the negotiations
and the final agreement was hammered out without federal participation.
The Navajo Nation and the State of New Mexico executed the settlement
agreement on April 19, 2005.
With the appointment of Michael Bogart as the Secretary's Water
Counselor, the level of federal participation in this process improved
significantly, and we are grateful for the assistance of the Indian
Water Rights Office in helping to revise and, in many instances, to
improve the substance of our proposed settlement legislation. We are
also grateful for Mr. Bogart and his staff for personally visiting our
Navajo Nation on several occasions and for witnessing firsthand our
critical need for drinking water infrastructure. Mr. Bogart personally
traveled the route where the proposed Navajo-Gallup Water Supply
Project will hopefully be built, and he met with many Navajo residents
who currently haul water from distant water points in order to have
potable water in their homes. Despite Mr. Bogart's efforts, we were
disappointed when the Department of the Interior testified against H.R.
1970 before this subcommittee on June 27, 2007. We suspect that the
Indian Water Rights Office is convinced that the proposed settlement
represents an appropriate resolution of the water rights of the Navajo
Nation; however, the official position of the United States is not
informed by the Indian Water Rights Office, but by the Office of
Management and Budget (OMB) which is opposed to the expenditure of
large amounts of federal dollars even in the face of the critical lack
of drinking water infrastructure on the Navajo Nation.
We believe that the Indian Water Rights Office is well-intentioned
and committed to helping improve the conditions in Indian Country
through the implementation of water rights settlements; however, the
Office's effectiveness is severely constrained by OMB policies.
Senators Bingaman and Domenici have raised concerns that the
Administration's water policies are being dictated by OMB and that the
Criteria and Procedures have been applied in an inconsistent manner
that has favored certain settlements to the exclusion of others. The
Navajo Nation shares these concerns and supports the Senators' request,
that OMB reconsider its position, as expressed in the attached letter
of June 15, 2007.
As a leader, I want us to move forward and not dwell on the past.
We are committed to working with the Indian Water Rights Office, and we
have pledged to provide Mr. Bogart with an analysis of the how H.R.
1970, despite its substantial costs, is consistent with the Criteria
and Procedures and why the settlement should be supported by this
Administration.
In addition to our settlement efforts with the States of New Mexico
and Arizona, the Navajo Nation has enjoyed productive negotiation
discussions with the State of Utah, but those settlement efforts are
hampered due to the lack of any federal presence, and the Indian Water
Rights Office is reluctant to appoint a Federal Team. In light of the
Department's testimony on H.R. 1970 that it could not support a
settlement that the United States did not actively participate in, both
the Navajo Nation and the State of Utah are hesitant to proceed much
further in the settlement process without the appointment of a Federal
Team. We understand the huge commitment of resources that the Indian
Water Rights Office has made in our efforts with the States of New
Mexico and Arizona, but we cannot believe our trustee would allow a
settlement to fail with the State of Utah for lack of any federal
participation.
Fifth, most Indian Water Rights Settlements require Congressional
approval or funding. When should representatives of the relevant
Congressional and Committee Offices become involved in a particular
settlement?
From our experience, there is no question that the availability of
federal funding to pay for drinking water infrastructure is the key to
whether a settlement will succeed or fail. After the local parties have
reached a conceptual agreement, the relevant Congressional and
Committee offices should become involved to provide advice on what
level of federal funding may be achievable. The involvement by these
offices should include a field visit to understand the resources
involved, including the physical and human landscape.
As Madam Chairwoman knows, the Navajo Nation has enjoyed a close
relationship with your staff and we appreciate the efforts of your
staff to facilitate a hearing on H.R. 1970. We are grateful that your
staff was able to visit the Navajo Nation and to witness firsthand, the
plight of the Navajo People who lack potable water supplies.
Sixth, would it be helpful if Congress established a ``budget'' or
a target amount for Indian Water Rights Settlements over a period of
time, and if so, how would that budget be allocated between
settlements?
We believe that Congress must set aside funds to be used
exclusively for Indian Water Rights Settlements. In the absence of such
set asides, funding for water rights settlements will compete with
funding for other programs out of the Bureau of Indian Affairs budget
which provides essential services in Indian County. We do not wish to
fund any Indian water settlement at the expense of other important
programs to the Navajo Nation and to other Indian tribes. H.R. 1970
provides one such mechanism through the creation of a Reclamation Water
Settlement Fund. This fund will not be sufficient to fund all future
settlements but it represents the kind of approach that we favor
because it does not take money from other tribal programs.
Finding monies to fund water settlements represents a significant
challenge for Congress. Trying to ascertain a target amount of money is
equally daunting. The Navajo Nation is a participant in the ad hoc
group, the Joint Federal-Tribal Water Funding Task Force, which
periodically meets with Congressional staff to discuss the funding
needs for Indian Water Rights Settlements. We believe that constant
dialogue with the tribes is essential. Finally, we suggest that any
mechanism that creates a pool of money for funding settlements be
viewed as a tool to facilitate settlements and not as an absolute
barrier or limit to the amount of funding that can be made available.
It is difficult to project all of the future needs of the tribes, and
we respectfully suggest that settlements may become more difficult, and
potentially more expensive, as the available water supplies become less
and less.
The Navajo Nation appreciates the efforts of this Subcommittee to
address the challenge of Indian Water Rights Settlements. We look
forward to continued dialogue with the Subcommittee concerning the
settlements throughout Indian Country and we hope that our discussions
with the States of Arizona and Utah will also succeed so that we may
bring these settlements to this Subcommittee for its consideration in
the future.
______
Mrs. Napolitano. Thank you for your testimony. I am very
well aware of some of the background that has been provided to
us from some of the tribes, so it is very, very clear.
Yes. We go on to Mr. Lewis, please.
STATEMENT OF RODNEY B. LEWIS, FORMER GENERAL COUNSEL, GILA
RIVER INDIAN COMMUNITY, SACATON, ARIZONA
Mr. Lewis. Good afternoon, Madam Chairwoman. I am Rodney
Lewis. I am the former General Counsel of the Gila River Indian
Community and also a member there. I have been engaged in the
process of Indian water rights settlements for over 30 years.
During that time, I was fortunate to be able to work with this
Committee in its consideration and approval of the Gila River
Indian Community's settlements of its claims to water in 2004.
I am honored to have the opportunity to share some of my
experience with you today in hopes that it may be helpful in
your consideration of how to improve the Federal negotiation
and approval process for the settlement of these critical
tribal claims.
First, in his testimony, Mr. Bogert focused on the Gila
River Indian Community settlement as a model example of the
kinds of compromises necessary to produce workable settlements.
I could not agree more. However, from my experience, the
community's ability to consider meaningful compromises is
predicated on its confidence in the process that produced these
compromises.
The confidence was instilled by the fact that the
community, with strong, Federal financial support at the
outset, was able to participate in the legal court battles and
negotiation proceedings as a full partner and participant. With
Federal funding, particularly in the beginning, the community
was able to hire the lawyers and experts necessary for it to
prosecute its claims itself in court with the United States and
to negotiate actively in its own behalf as a separate party.
Without its own team of experts and professionals, the
community would have been forced to rely solely on the United
States, and oftentimes the United States is limited in its
resources and its capacity to assist in these negotiations.
As Mr. Bogert's testimony also makes clear, however, the
United States has multiple roles in this process.
First, the United States is the tribe's trustee and, in
that capacity, must serve as an active advocate for the tribe
and its water rights. The United States also has a trust
responsibility to the tribe to develop the tribe's water
resources. However, as Mr. Bogert stated in his testimony, this
administration has served the role of ``holding the line on
settlement costs.''
I certainly understand and appreciate the role, but the
United States has the trust responsibility itself to advocate
for tribes and the fiscally responsible role to advocate
against them. You can, I think, see why tribes seek and must
have their own team of advisers to assist them in crafting fair
and appropriate compromises. Otherwise, tribal councils, such
as my own, could never feel comfortable approving settlements
for the fear that somehow the United States might not have
balanced these conflicting roles appropriately in their
instance.
So Federal negotiations, Federal financial support for
negotiations and litigation is absolutely essential. Federal
support was essential for us, and it is for tribes currently
seeking the success we were able to achieve. Compromise,
otherwise, is impossible to achieve.
In addition to the importance of Federal financial support
for tribal participation in prosecuting and settling their
water rights, one area where tribes are currently suffering is
the amount of resources and personnel made available within the
Federal departments themselves, particularly the Department of
the Interior for the Federal negotiation teams who represent
and coordinate the settlement efforts. There are currently 19
Federal water settlement teams, with seven more requested by
tribes and more requests to come.
This sounds impressive, but, in my experience, too often
the Federal negotiation teams are short staffed where the same
people serve on multiple teams. This means that the Federal
negotiation teams can often be negotiation teams in name only.
Too often, we hear from Federal officials that they cannot
clone themselves, and other settlements are on the front
burner.
As General Counsel for the tribe with a department of my
own to manage for 30 years, I understand prioritization of
tasks and opportunities. However, I can tell you that the
problem now is that these teams are not adequately staffed, and
Congress should seek to emphasize to the administration that
they should ensure that the teams established, and the teams to
be established, should be sufficiently staffed so that progress
and compromise can be achieved.
That concludes my oral testimony today. I would like to
underscore again how deeply grateful I am for the opportunity
to appear before you today, not just to share my experience in
an area I have worked in for so long but also to express again
the gratitude and appreciation of the Gila River Indian
Community and myself for the work that you and other Members of
this Committee made in making our dream of settlement a
reality. I hope that this hearing leads to the opportunity for
other tribes to have their own dreams realized. Thank you.
[The prepared statement of Mr. Lewis follows:]
Statement of Rodney B. Lewis, Former General Counsel,
Gila River Indian Community
Chairwoman Napolitano and distinguished Members of the
Subcommittee, thank you for the opportunity to submit testimony on the
topic of Indian water rights settlement agreements. I am Rodney B.
Lewis, former General Counsel of the Gila River Indian Community (``the
Community''), a position in which I served from 1972 to 2005. During
that period, I served as the Principal Negotiator on behalf of the
Community in negotiations to settle the Community's significant claims
to water from the Gila River and its tributaries, as well as its claims
for injuries to the Community's water rights.
BACKGROUND
On December 10, 2004, President George W. Bush signed into law the
Arizona Water Settlements Act of 2004, Pub. L. No. 108-451, 118 Stat.
3479 (the ``Settlement Act''), which, at least to date, represents the
largest settlement of Indian water rights in U.S. history. It also
represents the culmination and fulfillment of the century-old hopes and
dreams of the two tribes that comprise the Community, the Pimas (Akimel
O'otham or ``River People'') and the Maricopas (Pee Posh). The
patience, steadfastness and dedication of the Pimas and Maricopas
throughout this century of conflict and, ultimately, reconciliation,
resulted in the passage of the Settlement Act and then in the
publication in the Federal Register on December 14, 2007 of the
Secretary's finding that all the conditions to the enforceability of
the Community's settlement had been met.
On that momentous day in December 2007, our settlement became fully
enforceable. The Settlement Act will partially rectify years of
deprivation of a fair water supply upon which the Community was wholly
dependent. Water was and is the life blood of the Pimas and Maricopas.
Water was the key to the Community's agriculturally dependent economy
and absolutely essential to survival in arid central Arizona. Justice
Black in Arizona v. California, 373 U.S. 456 (1963) described the
situation of Arizona Tribes in central Arizona vividly when he stated,
``that most of the lands [in central Arizona] were of the desert kind--
hot, scorching sands--and that water from the river would be essential
to the life of the Indian people and to the animals they hunted and
crops that they raised.''
Diversions upstream of the Community's Reservation by non-Indian
users began shortly after the end of the Civil War. Ultimately, these
illegal diversions caused Gila River water to cease to flow, preventing
the irrigation of the fertile fields of the Pimas and Maricopas. The
resulting shortage of water caused irreparable damage to the Community,
not only to its agricultural economy, but also to the health and
welfare of a once prosperous people. The resulting economic poverty and
inadequate health care caused numerous health problems, including an
epidemic of diabetes. The Community currently has one of the highest
rates of diabetes in the world. The key to our future, as it was to our
past, is retrieving for the Community its legitimate entitlement to a
fair water supply to revive our once vibrant agricultural economy.
WATER RIGHTS LITIGATION
The Community's long road back began in 1925, with the filing of an
action in federal court by the United States, after repeated requests
and urging by various leaders of the Pima people. The United States
settled certain of the Community's claims in this action, over the
objection of the Community, in 1935, resulting in a consent decree that
is known as the ``GE 59 Decree.'' This consent decree, however, did not
address all of the Community's claims to water and did not immediately
result in redress for most of the Community's claims.
Congress, too, played an early role in starting a process that
would ultimately bring some measure of restitution and redress for the
Community's lost water. In 1924, Congress passed the San Carlos Indian
Irrigation Project Act, Act of June 7, 1924, 43 Stat. 475. In this Act,
Congress authorized the construction of an irrigation project that
would be comprised of 50,000 acres of developed land within the
Community's Reservation and 50,000 acres of developed land for non-
Indian farmers just outside the Community's Reservation.
Predictably perhaps, the promise of this early congressionally
authorized irrigation project for the Community's farmers was never
fulfilled. Although the SCIIP Act required that the Indian portion of
the project be built first, it was never completed, and the off-
Reservation portion of the project took priority, resulting in
increased depletions of water from the Gila River at the expense of the
Community's farmers. To make matters worse, the federal government
failed to maintain adequately those portions of the Community's
irrigation project that actually were built. Thus, as the Community
entered the 1970s, it remained in a position of extreme poverty and
without any adequate water supply.
At this point, the federal government, again at the urging of the
Community, began a new enforcement proceeding against the non-Indian
diverters in the Upper Valley of the Gila River. Moreover, the
initiation of a state court adjudication of all rights to the Gila
River, including the Community's, brought the Community's significant
claims to the Gila River and all its tributaries to the forefront. This
constituted the beginning of a thirty year struggle to vindicate the
Community's claims for water and at least partially rectify the
tremendous damage done to the Community and its people by the
misappropriation of its water and the United States failure to protect
the Community or assist adequately in the development of the
Community's water resources on-Reservation.
WATER SETTLEMENT PROCESS
The water settlement process for the Community really began in the
1980s after the Community intervened on its own behalf in both the
enforcement proceedings against upstream diverters and to assert its
own claims, with the United States, in the state court adjudication of
the Gila River. It was at this point that I became substantially
involved in the negotiation process as the Community's officially
designated Principal Negotiator.
Early on, the federal government played an essential role in
assisting the Community, both with funds to assist the Community in the
engagement of its own experts and lawyers, but also in providing key
technical and legal assistance itself, including adding the clout of
the U.S. Government's participation in the process. From my own
experience, this assistance is critical to any tribe seeking to
vindicate its water rights and, as I mention in my recommendations
section below, is an area in which the U.S. Government can and should
do better.
The initial years of negotiations were frustrating and protracted.
With so many State parties affected by our claims, it was, at times,
difficult to obtain the focus and attention of a core group with
sufficient critical mass to come to terms with us. Again, the role of
the United States in this was critical. Ultimately, in 1985, the
Community was able to come to terms on a proposed water budget with the
State parties and the United States set at 653,500 acre-feet per year
as the basis for compromising the Community's claims to water from the
Gila River and its tributaries. Around this same time, Congress also
authorized, as part of the Central Arizona Project build-out, a major
irrigation project (the Pima-Maricopa Irrigation Project), which was
intended to supplement and complement the one originally authorized,
but never fully built or adequately maintained, in 1924. These two
developments would serve as the foundation for the ultimate settlement
reached.
Throughout the next years, the Community and the United States
continued to negotiate with individual and groups of State parties in
an effort to confirm the sources of water that would ultimately fill
out the Community's water budget, as well as the means by which the
Community was to receive the ``wet'' water that was to comprise its
water entitlement.
The United States role in this part of the process, again, was
critical. In this process, the United States Department of Interior
recognized its trust responsibility (and concomitant legal exposure) to
the Community (and all other Arizona tribes) and determined that, as
part of its necessary contribution to the Community's overall
settlement, the United States would need to make its portion of the
water supply from the Central Arizona Project generally available to
tribes in replacement of the water that they had otherwise lost because
otherwise State parties would never be willing to settle. Moreover, the
Department also recognized that its responsibility included relieving
tribes, including the Community, of the responsibility to pay expensive
rates for CAP water which was essentially replacing free water to which
the Arizona tribes would otherwise have been entitled.
As a result, in 1995, the Community, the United States, the State
of Arizona, and the Arizona state parties came to agreement, not only
on the water budget for the Community and an amount necessary to
rehabilitate the SCIIP project, but also on a framework by which the
funds used to repay the federal government for the construction of the
CAP would be used to pay for at least a portion of the costs of the CAP
water that the Community and other tribes would obtain as replacement
water for the water rights non-Indian users had taken.
Throughout this period, the Community and the United States
simultaneously pursued the action in federal court to enforce the
Community's existing water rights and the Community's claims to water
in the state court adjudication. This meant that the United States not
only devoted resources to its own prosecution of these actions and
claims, but also that it provided critical financial support to the
Community for it to participate as a full partner in them. Because this
was a period well before the Community began to develop any means of
its own, this financial support was critical to the overall process.
Without it, the Community would not have been able to participate as a
full partner and would never have been in a position to confirm that
the negotiated settlement ultimately reached was a full and fair
compromise of its claims.
Beginning in the late 1990s and through 2004, the Community entered
a new phase in the pursuit of its settlement. As the outlines of its
proposed settlement became clearer, it became essential that the
Community finalize a settlement agreement and settlement legislation
for Congress to consider. In the process, the United States continued
to play an important role, though perhaps less significant than in
previous years. This was due, in part, to the Community stepping up its
involvement and support for its own efforts, as well as to the fact
that the Department of Interior was of the view that it would review
and negotiate the U.S. participation in the final agreements and
legislation, but would otherwise only support and monitor the
Community's extensive and protracted drafting process.
Ultimately, in 2003, with the strong support of Senator Kyl and the
entire Arizona congressional delegation, a nearly final settlement
agreement and legislation was developed. At that juncture, the
Department of Interior fully and completely engaged in a final review
and negotiation of the United States' role in the settlement overall.
This resulted in a version of both that Congress would ultimately
consider and approve in December 2004.
The implementation phase of the Community's settlement then began.
This also required substantial U.S. involvement as it entailed the
amendment of the draft agreement to conform to the legislation enacted,
and the approval of the settlement agreement overall by the federal
court in which the Community was seeking to enforce its existing
rights, as well as by the state adjudication court in which the
Community was pursuing its overall claims to water rights. Throughout
this period, the United States, through the federal negotiation team
established by the Secretary of Interior, participated and assisted in
the process. Federal financial support for the Community's efforts in
this process dwindled during this period, as it has for all tribes, a
regrettable circumstance and one that the Congress should rectify if
possible.
Finally, as noted above, in December 2007, the Secretary finally
published in the Federal Register the notice confirming that the
Community's water settlement was fully and finally enforceable, thus
ending a nearly 30 year process of negotiation and compromise. As the
Community faces the daunting task of implementation of this, the most
significant and largest Indian water rights settlement to date, the
United States must and hopefully will remain fully engaged to ensure
that promises made in this settlement do not prove as ephemeral as the
authorized irrigation project in 1924.
POLICY RECOMMENDATIONS
In many ways, the Community is one of a lucky handful of tribes
that has survived a long and arduous process that at least partially
vindicated its water rights claims. Our experience demonstrates both
how hard and long the process is, but also the critical role that the
United States plays in such a ``success story''. Overall, we all should
be proud of the accomplishment achieved. However, there are some areas
that could clearly benefit from congressional review and improvement:
First, Congress should review and significantly increase the
financial support that the United States provides to tribes to support
them in their full participation in water rights claims and settlement
negotiations. As noted above, the funding for such financial support
has decreased consistently in recent years, even as the number of
tribal water rights claims continues to rise. I cannot underscore
enough how important this financial support is, particularly to tribes
as impoverished as the Community was at the outset of its negotiation
process in the 1980s.
Second, Congress should also provide sufficient funding and support
to the Department of Interior overall to fully fund sufficient federal
negotiation teams for all tribes that meaningfully seek them. Even as
the number of tribes seeking a federal negotiation team to support them
in a possible negotiation process has increased, funding levels overall
for such negotiation teams appears to have decreased and this trend
must be reversed. As I noted above, participation by the United States
in negotiations is critical, not only to draw state parties to the
table, but to supplement the clout of the tribes in the overall
negotiation process so that the end result is a fair and balanced deal
and not one of adhesion for the tribe.
Third, Congress should also seek ways to increase its oversight
over the water settlement process overall and declare it to be a clear
priority for the Department of Interior. This will improve both the
accountability for the Department in making progress in difficult
negotiations, but also hopefully help to accelerate the overall
progress in protracted ones. Nothing makes for progress better than
having to explain what has happened (or not) and why. It would also
help to clarify for all which settlement negotiations are truly
feasible, and which ones are perhaps not ripe, thereby allowing for
meaningful prioritization of settlement possibilities by the Department
and others.
Oversight might include not only hearings such as this one today,
which is an excellent step in the right direction, but also an overall
annual report by the Department to Congress on all federal negotiation
teams and all formal requests for such a team.
Fourth, Congress should also require the Department to clarify its
own guidelines for appointment of federal negotiation teams. The
guidelines issued by the Department are not only vague, they provide no
basis for discontinuation of federal negotiation teams for tribal
settlement negotiations that are going nowhere. This is important as we
all realize that no matter how high a priority Congress may set on
settlement of Indian water rights claims, pragmatic cost considerations
will limit what is truly doable. Congress should require the Department
to review and determine, with a fair pragmatic eye, whether any
existing federal negotiation team could perhaps be dissolved due to a
lack of progress in the preceding years and a lack of viable prospects
for any progress in the near future.
Finally, Congress should also require the Department to clarify its
process for determining an appropriate federal contribution to an
Indian water rights settlement. Particularly in the years after our
settlement was enacted in 2004, the overriding consideration for the
federal government has been solely how to limit its legal exposure to a
possible claim by a tribe against it. While perhaps predictable, this
limitation of the U.S. contribution to a tribal water settlement
unfairly ignores the United States' trust role for tribes and the
complicity of the United States in the misappropriation of tribes'
water rights by non-Indian users.
The Community's experience is again illustrative. In the 1924 SCIIP
Act, Congress specifically required that the irrigation project on the
Community's Reservation be built before the non-Indian portion of the
project. This never occurred. Instead, the United States fully funded
and constructed the non-Indian portion of the project, largely ignoring
the congressional requirement to the contrary.
As former General Counsel, I am aware of the exigent legal
precedent that governs claims for breach of trust against the United
States. In our instance, the Community may very well have had a
justiciable and winnable claim against the United States for its
egregious breach of this statutorily imposed responsibility. But I also
know how difficult it would have been to successfully prosecute such a
claim to its conclusion.
Think how difficult it will be for all the other tribes in similar,
but perhaps weaker legal positions vis-a-vis their own trustee. And
more importantly, think of whether the United States should measure its
honor and obligation in such a parsimonious and dishonorable a fashion.
Understanding that money is tight and only so much can be done,
Congress should support and require a process that does not require
tribes to routinely to bear this burden without stepping up to the
United States' overall trust responsibility in this regard, regardless
of the strict legal exposure.
Finally, Congress should review its own role in funding water
rights settlements. The significant number looming on the horizon and
their sheer size makes it clear that Congress must develop some
mechanism that allows for settlements to be approved and funded with
minimal regard for the budgetary implications. These are, after all,
settlements of legal claims and they should have a priority for funding
that is analogous to that of claims funded by the Judgment Fund. To
that end, Congress should consider some budgetary mechanism or
legislation that either makes all settlements fundable through either
the Judgment Fund or some similar kind of mechanism that alleviates the
budgetary restraints that will almost certainly foreclose any real
possibility of settlement of these larger water rights claims.
CONCLUSION
I want to thank the Chairman and the Members of this Committee for
the honor and privilege of testifying before you today. I believe that
your attention to this often over looked area of Indian rights is
critical to beginning a renewed push toward settlement of these
longstanding claims to water. I hope you make this a priority for the
United States in the coming years.
I also want to thank you all personally for your support and
passage of the Community's settlement in 2004. Madame Chair, and
Members of the Committee, from the bottom of my heart I thank you for
your support for my Community at such a critical time in our history.
You will forever have the gratitude and appreciation of our people.
______
Mrs. Napolitano. Thank you so very much.
For the record, I want to introduce a letter that was sent
on June 15th to then-Director of OMB Rob Portman, signed by
both Senators Bingaman and Domenici, specifically asking for
the hopes of initiating a constructive dialogue with OMB
regarding several pending Indian water rights, and it goes on
to request information.
I do not know whether that has been answered, but we are
going to issue a follow up to find out where we are with it and
try to see where we can work with the Senate to be able to
bring a little more clarity to this.
Because I have a few minutes to get to the Floor, there are
various questions--actually there are four--I would like to
have you submit for the record in writing since there will not
be time for me to sit here and go through them. It is unique
because all of you represent a different native nation. My
staff will get this information to you.
One: When was your settlement process initiated?
Two: What have you seen as the biggest impediment to the
settlement process, from your vantage point?
Third, when did, or do you expect your settlement process
to be finalized?
And, fourth, what has been the value in working with a
negotiating team?
We understand the other issues about the funding, about
some of the criteria, all of that, and that will be taken into
consideration, but, from you, those are the main issues that I
would like to have in writing for this Committee to be able to
read and be able to digest, if you will, what are the nations,
what are the tribes, looking at?
With that, I thank the witnesses very much for your
patience, your indulgence, and I trust we will be working a lot
more with Mr. Bogert and with the tribes in order to be able to
continue working on this issue that is so critical to not only
the Native Americans but to this country's well-being.
This concludes the oversight hearing on Indian water rights
settlements. There will be others. Our thanks to all of our
witnesses for being here today. Your testimonies and expertise
have, indeed, been very enlightening and helpful, and, under
Committee Rule 4[h], additional material for the record should
be submitted within 10 business days after this hearing.
Your cooperation, and certainly Mr. Bogert's and his
staff--thank you for bringing them and introducing them to us--
you are very welcome any time to come before the Subcommittee,
and replying promptly to any questions submitted to you in
writing would be greatly appreciated, and this hearing is now
adjourned. Thank you very much and God bless.
[Whereupon, at 4:55 p.m., the Subcommittee was adjourned.]
[The letter to former OMB Director Rob Portman submitted
for the record by Chairwoman Napolitano follows:]
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