[House Hearing, 110 Congress]
[From the U.S. Government Printing 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/
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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
                                 ------                                

                    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

                              ----------                              
                                                                   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''

                              ----------                              


                       Wednesday, April 16, 2008

                     U.S. House of Representatives

                    Subcommittee on Water and Power

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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 [email protected] 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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