[Senate Hearing 112-492]
[From the U.S. Government Publishing Office]
S. Hrg. 112-492
S. 134, S. 399, S. 1327, AND S. 1345
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
ON
S. 134, MESCALERO APACHE TRIBE LEASING AUTHORIZATION ACT
S. 399, BLACKFEET WATER RIGHTS SETTLEMENT ACT OF 2011
S. 1327 A BILL TO AMEND THE ACT OF MARCH 1, 1933, TO
TRANSFER CERTAIN AUTHORITY AND RESOURCES TO THE UTAH DINEH CORPORATION,
AND FOR OTHER PURPOSES
S. 1345, SPOKANE TRIBE OF INDIANS OF THE SPOKANE
RESERVATION GRAND COULEE DAM EQUITABLE COMPENSATION SETTLEMENT ACT
__________
OCTOBER 20, 2011
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. AKAKA, Hawaii, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington MIKE CRAPO, Idaho
JON TESTER, Montana MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
Loretta A. Tuell, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on October 20, 2011................................. 1
Statement of Senator Akaka....................................... 1
Statement of Senator Barrasso.................................... 21
Statement of Senator Bingaman.................................... 5
Statement of Senator Cantwell.................................... 5
Statement of Senator Tester...................................... 2
Statement of Senator Udall....................................... 3
Prepared statement........................................... 4
Witnesses
Abrahamson, Hon. Greg, Chairman, Spokane Tribal Council.......... 71
Prepared statement........................................... 75
Chino, Hon. Mark R., President, Mescalero Apache Tribe........... 26
Prepared statement........................................... 28
Jim, Hon. Rex Lee, Vice President, Navajo Nation................. 48
Prepared statement........................................... 50
Laverdure, Donald ``Del'', Principal Deputy Assistant Secretary--
Indian Affairs, U.S. Department of the Interior................ 7
Prepared statement........................................... 9
Maryboy, Hon. Kenneth, San Juan County Commissioner.............. 67
Prepared statement........................................... 68
Show, Hon. Terry J., Chairman, Blackfeet Nation.................. 29
Prepared statement........................................... 30
Tweeten, Chris, Chairman, Montana Reserved Water Rights Compact
Commission..................................................... 39
Prepared statement........................................... 41
Appendix
Baucus, Hon. Max, U.S. Senator from Montana, prepared statement.. 107
King, Hon. Tracy ``Ching'', President, Fort Belknap Indian
Community Tribal Council, prepared statement................... 109
Navajo Nation, resolutions....................................... 116
Nez, Hon. Jonathan, Vice Chairperson, Budget and Finance
Committee, Navajo Nation Council, prepared statement........... 108
Philemon, Susie, Member, Navajo Tribe, Aneth Chapter, prepared
statement...................................................... 114
S. 134, S. 399, S. 1327, AND S. 1345
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THURSDAY, OCTOBER 20, 2011
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 3:12 p.m. in room
628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. DANIEL K. AKAKA,
U.S. SENATOR FROM HAWAII
The Chairman. The Committee will come to order.
Aloha. Today, the Committee will hold a legislative hearing
on four bills dealing with issues that will have significant
impacts on the ability of Tribes to control and use their own
resources.
Two of these bills deal with water. The Committee held a
roundtable discussion in June on Tribal water issues. What we
heard from Tribal leaders was that Tribal access to and control
over water resources is instrumental in supporting Tribal self-
determination and self-governance.
The third bill deals with the transfer authority over trust
funds put in place to benefit the Navajo people.
The final bill would compensate a Tribe for the use of a
plan by the Federal Government to produce hydropower.
The first bill, S. 134, the Mescalero Apache Tribe Leasing
Authorization Act, was introduced by Senator Bingaman and
Senator Udall. I am pleased that we have Senator Bingaman here
with us today to testify on this bill, and I am sure Senator
Udall will also say more about this important bill during his
opening statement.
The second bill we will consider is S. 399, the Blackfeet
Water Rights Settlement Act of 2011. Senators Tester and Baucus
have been working hard on this bill for several years. So
today, the Committee will be able to learn about the progress
made as a result of their efforts.
The third bill we will consider, S. 1327, deals with the
transfer of authority of the Utah Navajo Trust Fund. This bill
was introduced by Senator Hatch. I look forward to hearing
testimony from those on both sides of this issue.
Finally, we will consider S. 1345, a bill that was
introduced by Senators Cantwell and Murray. This bill would
provide fair and just compensation to the Spokane Tribe whose
land was used by the United States for the development of
hydropower, but was never fairly compensated for that use.
So, today we will hear from the Administration, the
affected Tribes and other parties to the legislation. I
encourage any other interested parties to submit written
comments to the Committee. The hearing record will remain open
for two weeks from today.
I know that my good friends, Senators Tester, Udall, and
Cantwell, have done a significant amount of work on these
bills. So I would like to hear from them at this time.
Senator Tester?
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman. I want to thank
you for holding this hearing on all the bills, but particularly
the Blackfeet water rights settlement. It is a very important
bill to the folks with the Blackfeet Tribe there in Montana. It
is important to me. It is important to the United States and
Senator Baucus also.
First of all, I want to welcome our witnesses from Montana
Blackfeet Nation, Chairman T. J. Show. He is new to the job,
but he is certainly not new to this issue. He knows it very,
very well.
Mr. Chris Tweeten, Chairman of the Montana Reserved Water
Rights Compact Commission. Chris has been at this job for a
very long time. He has the best mind when it comes to water
rights settlements from a Compact Commission standpoint around,
and a true pleasure to have him here, too.
They are joined by colleagues and staffs from Montana. I
want to welcome them all. And I would also like to welcome Del
Laverdure from the Department of Interior. He is the Principal
Deputy Assistant Secretary of Indian Affairs from the
Department of Interior, also a Montanan. And we should have an
interesting discussion on this because we are kind of on
opposite sides of this bill, but I know Del well. He is a good
friend and hopefully through good conversation, we will be able
to get on the same sheet.
I also want to note that Senator Baucus and I are
cosponsoring this bill, as you have already said, Mr. Chairman.
He has submitted a statement for the record in full support. He
and I have cosponsored bills the last two sessions of Congress
to get this done.
And as we talk about improving life in Indian Country,
specifically Blackfeet Territory, I would be remiss to not take
a moment to recognize the passing of Elouise Cobell. Elouise
was a member of the Blackfeet Tribe. She fought tirelessly to
hold government accountable for the promise it made to American
Indians. She was a friend of mine. She was a friend to all
Native Americans. I will absolutely miss her, as will thousands
and thousands of other people around the Country. And I just
want to take just a brief moment. I don't know if it is
appropriate or not, but I hope so, just to think about all that
Elouise Cobell had done for Indian Country in the United
States.
Thank you for that, Mr. Chairman.
We are here to talk about the Blackfeet Water Rights
Settlement Act. This bill is the right thing to do. It will
create jobs in Blackfeet Reservation and it will improve
reservation infrastructure for generations to come.
Water is the foundation of life for every community, but
particularly in rural communities. This bill will provide clean
drinking water for Tribal communities. It will provide good
Montana water for irrigation, for livestock, for other economic
development opportunities.
The bill is the right thing to do because it is the product
of a complex negotiation to fulfill a trust responsibility that
the United States has to the Blackfeet Nation. In 1908, the
U.S. Supreme Court in its decision in Winters v. United States
said that the government must provide sufficient water to
reservations that it creates.
The purpose of creating the Blackfeet Indian Reservation in
1855 was to create a permanent homeland for the Blackfeet
people. This bill fulfills the promise to provide the water it
needs. It will create jobs building water infrastructure
necessary to, in turn, pay for water rights in the quantified
Blackfeet Water Compact into usable water for all Montanans
that live on the Blackfeet Reservation.
Rather than fight it out in court, Tribal, State and
Federal officials worked on a government-to-government basis to
negotiate this contract. The Montana Legislature approved the
water compact in 2009. The State of Montana supports this bill
and has agreed to appropriate $35 million to enact it. Now, we
need support from our end at the United States Federal level.
Senator Baucus and I have been asking the Department of
Interior to comment on the proposed legislation in an effort to
gain their support. I know they have been busy working on other
settlements, including the Montana Crow Water Settlement, which
we passed last year, and I want to thank you for your work on
that, but now it is time to fully engage on the Blackfeet bill.
I look forward to everybody's testimony today. And of
course, I am going to have some questions for them when it gets
done.
Thank you all for traveling here. I appreciate your
commitment to Indian Country.
And thank you again, Mr. Chairman, for giving our bill the
Committee's attention.
The Chairman. Senator Udall?
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Akaka.
Just as Senator Tester has done, I thank you very much for
holding hearings on all these bills today.
And let me also welcome President Chino and his lovely
wife, who is the First Lady of Mescalero.
I am especially pleased that the Committee will be
considering the merits of S. 134, the Mescalero Apache Tribe
Leasing Authorization Act, a bill that will allow the Mescalero
Apache Tribe in Southern New Mexico to lease their adjudicated
water to communities in New Mexico that are in great need of
water.
I would like to welcome Senator Bingaman, with whom I have
been working closely to move Mescalero water legislation
forward. Senator Bingaman has long been a great advocate of
Tribal water legislation and has been persistently diligent in
moving this and other important pieces of water legislation
through Congress.
Last year, we celebrated final passage of two 40-plus-year
water settlements, and this year we continue to press the
Administration and Appropriations Committees to ensure that
projects related to these and other Tribal water settlements
are funded.
Senator Bingaman is truly an expert on Tribal water issues
and I look forward to hearing his testimony.
I hope that through the testimony we hear today, my
colleagues on the Committee will, number one, understand the
need for flexible and innovative approaches to water management
in the arid west; and number two, appreciate the simple and
logical nature of the Mescalero Apache Tribal Leasing
Authorization Act; and number three, recognize the great
benefits that the Mescalero Apache Tribe Leasing Authorization
Act will be to the Mescalero Tribe and the neighboring
communities.
I look forward to hearing from the witnesses and thank my
colleagues for their careful attention and support of the
Mescalero Apache Tribe Leasing Authorization Act.
And I yield back, Mr. Chairman, and thank you again.
Prepared Statement of Hon. Tom Udall, U.S. Senator from New Mexico
President Chino
Introduction
I am please to introduce my good friend, Mescalero Apache President
Mark Chino to the Senate Committee on Indian Affairs.
President Chino has diligently served the Mescalero Apache as
president for years. He is currently finishing his 3rd two year term as
President of the Tribe, and has led his Tribe in many great efforts.
With a focus on economic development, President Chino continues to
build ties with neighboring communities, and to advocate for federal
contracts and other economic development opportunities for the Tribe.
Public service is a family tradition for the Chinos. President Mark
Chino is the son of President Wendall Chino, an icon in Mescalero
history, who led the Tribe for over 40 years. I look forward to
President Chino's continued leadership of the Mescalero Apache, and
thank him for his dedication to his constituency.
The Mescalero Apache Tribe Leasing Authorization Act presents great
opportunities for President Chino and the Mescalero Apache to bolster
economic development, while helping neighboring communities. I thank
President Chino for his willingness to participate in today's hearing
and look forward to hearing from him.
Vice President Jim Introduction
I am please to introduce my good friend, Navajo Nation President
Rex Lee Jim to the Senate Committee on Indian Affairs.
Formerly the Ranking Member of the Judiciary Committee, and
Chairman of the Public Safety Committee in the 21st Navajo Nation
Council, Vise President Jim was sworn in with President Joe Shirley on
January 11, 2011.
Vice President Jim was raised in the Rock Point in Arizona, where
he returned to teach at the local community school after graduating
from Princeton University. Beyond being an educator, Vice President Jim
is an author, playwright, and medicine man. He has long been a
dedicated public servant and continues be a strong leader of the Navajo
Nation.
I thank Vice President Jim for his willingness to participate in
today's hearing, and give testimony on S. 1327, a bill to amend the Act
of March 1, 1933, to transfer certain authority and resources to the
Utah Dineh Corporation.
The Chairman. Thank you very much, Senator Udall.
Before I call on Senator Cantwell, I would like to call on
Senator Bingaman for his statement and welcome him as a good
friend and a brother. He will serve as our first panelist
today, speaking about S. 134, the Mescalero Apache Tribe
Leasing Authorization Act.
Senator Bingaman, will you please proceed?
STATEMENT OF HON. JEFF BINGAMAN,
U.S. SENATOR FROM NEW MEXICO
Senator Bingaman. Thank you very much, Chairman Akaka, for
your courtesy. And thank you for the chance to speak in favor
of this bill.
Senator Udall did a good job of summarizing what is
involved here. I join him in welcoming President Chino who is
here today, and who I believe will be testifying here before
your Committee in a few minutes.
The Mescalero Apache Tribe I believe will benefit from this
legislation, which is called the Mescalero Apache Tribe Leasing
Authorization Act.
In 1993, the New Mexico Court of Appeals adjudicated about
2,300 acre-feet of water to the Mescalero Apache Tribe as part
of the Pecos River Adjudication. But without specific
Congressional approval, the Tribe is not authorized to lease
those water rights to others. So that is what this legislation
would provide. It would provide that authorization.
S. 134 will allow the Tribe to lease its water rights to
other communities in their part of New Mexico, in the
southeastern part of New Mexico, and central New Mexico, that
have significant water supply needs. We are still in a drought
situation in New Mexico. We have been now for well over a year.
This last year has been one of the worst on record in our
State's history, and unfortunately that circumstance may not
change that quickly.
There are various communities such as the Village of
Ruidoso, the Village of Cloudcroft, the City of Alamagordo that
will be able to negotiate to lease some of this water from the
Mescalero Apache Tribe if we are able to pass this legislation.
So this will be beneficial to the Tribe, of course. It will be
beneficial to these communities.
All of this is done under our State law in New Mexico,
under a process that is overseen by the New Mexico State
Engineer, who has overall responsibility for water transactions
and water rights in our State.
This will also help to strengthen the relationship which is
already a very good one between Indian and non-Indian
communities in our State. The bill will greatly benefit all
concerned, and I appreciate your willingness to consider the
legislation at this hearing, and I hope you are able to act
favorably upon it.
Again, thank you for letting me testify. It is an honor to
work with Senator Udall on this legislation. I think it is a
good piece of legislation and one that we need to pass and send
to the President for signature.
The Chairman. Thank you, Senator Bingaman, for your
insights on this bill. And thank you for being here and for
being patient, and we wish you well. Thank you.
And now, we will hear from Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman. And I appreciate
your determined advocacy for Indian Country and the leadership
of this Committee.
I thank you for having this very important hearing today on
several pieces of legislation, specifically the Spokane Tribe
and having the Department of Interior here on S. 1345,
legislation to provide compensation to the Spokane Tribe for
the building of a Federal dam on their land 70 years ago, and
the continued impacts of that today.
The Grand Coulee Dam project destroyed Tribal schools,
roads, sacred sites and salmon runs critical to the Tribe's
livelihood, and culture. This legislation fulfills the Federal
Government's moral and equitable obligation to treat the
Spokane Tribe honorably and fairly by finally settling their
claims and providing the Tribe with just and equitable
compensation.
Let me begin by welcoming the Chairman, Greg Abrahamson,
who is going to be on one of the panels that we have today. He
has traveled over 2,000 miles to be here from Washington State
and I thank you for doing that. He has testified in the past on
similar legislation to S. 1345 and today he is going to be
making comments about changes to this legislation since the
last Congress.
For more than a half-century, the Columbia Basin Project
has made incredible contributions to our Nation. It has helped
pull the economy out of the Great Depression. It provided
electricity that provided aluminum to build airplanes and many
other things. The project continues today to produce enormous
revenues and it is a key component of the agricultural economy
in Eastern Washington, helping to irrigate over 600,000 acres
of land and provide about 11 percent of the electricity needed
by various towns across various areas of our State and the
Pacific Northwest.
However, these benefits come at a great direct cost to
Tribal property that have been inundated when the U.S.
Government built the Grand Coulee Dam. And before dam
construction, the free flow of the Columbia supported a robust
and plentiful salmon run that provided virtually all of the
subsistence of the Spokane Tribe.
After construction, the Columbia and its Spokane River
tributary flooded the Tribal communities and sacred places,
schools and roads, and to this day the effects of the flooding
are being felt by the Spokane Tribe.
To date, the Tribe has received only $4,700 for the damages
that have been done. By comparison, the Colville, whose
reservation lies just to the west of the Spokane Tribe
Reservation, received well over $53 million for the losses it
suffered and continues to suffer as a result of the Columbia
Basin Project.
It is an injustice that the Spokane Tribe has not received
fair and equitable compensation for suffering from similar
damage, and this legislation would fulfill our obligations to
the Spokane Tribe. Getting to this point today has been a long
and evolving process, but I believe the language in this
legislation addresses any concerns the Department of Interior
has previously raised and I look forward to hearing their
testimony today.
We have also made some key changes to the legislation to
satisfy the concerns of the Bureau of Reclamation expressed
during the last hearing on this legislation and in
correspondence to the Committee in 2008. The Spokane Tribe
spent several months this year working with the Bureau of
Reclamation to address their concerns and with the overall
settlement agreement.
So I want to thank you, Mr. Chairman, for allowing this to
be on the agenda today and for the Spokane Tribe coming here
today to talk about this legislation. I know that there will be
many people working on this legislation within the Northwest
delegation, and so I just look forward to working with my House
and other Senate colleagues, Senator Murray, and other House
colleagues on this legislation.
I want to say that I have received letters from different
local counties, the Governor, the Mayor of Spokane, and many
others in support of this legislation.
So I look forward to hearing today's testimony.
The Chairman. Thank you very much, Senator Cantwell.
And now, I would like to invite the second panel to the
witness stand, Mr. Del Laverdure, the Principal Deputy
Assistant Secretary for Indian Affairs at the Department of
Interior; and Ms. Pamela Williams is accompanying Mr. Laverdure
today.
So welcome, Mr. Laverdure, again and please proceed with
your testimony.
STATEMENT OF DONALD ``DEL'' LAVERDURE, PRINCIPAL
DEPUTY ASSISTANT SECRETARY--INDIAN AFFAIRS, U.S.
DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY
PAMELA WILLIAMS, DIRECTOR, INDIAN WATER RIGHTS
OFFICE
Mr. Laverdure. Good afternoon, Mr. Chairman.
The Chairman. Good afternoon.
Mr. Laverdure. And Members of the Committee. My name is Del
Laverdure. I am the Principal Deputy Assistant Secretary for
Indian Affairs at the Department of the Interior.
I am here today to provide the Department's position on S.
134, the Mescalero Apache Tribe Leasing Authorization Act; S.
399, the Blackfeet Water Rights Settlement Act of 2011; S.
1327, a bill to transfer certain authority and resources to the
Utah Dineh Corporation; and S. 1345, the Spokane Tribe of
Indians Equitable Compensation Settlement Act.
But first before I begin, I would like to do, as Senator
Tester did, and acknowledge the passing of a very significant
Indian leader, Elouise Cobell, and in fact the Assistant
Secretary, Larry Echo Hawk, is in flight out there to be
attending services. Otherwise, he might be here today.
As far as the testimony, it is important to begin by
stating that the Administration strongly supports the
principles of self-determination and self-governance, and
recognizes that intrinsic to these principles is Tribal control
over Tribal resources.
Like Tribal homelands, water is essential to the health,
safety and welfare of Native people and Tribal governments are
in the best position to determine how their water will be used.
S. 134 would enable the Mescalero Apache Tribe to lease its
adjudicated and quantified water rights for use within the
State of New Mexico for up to 99 years. The bill to lease water
rights under S. 134 is consistent with the department's
longstanding support for leasing quantified water rights
recognized in Indian water rights settlements.
Leasing is an important and acceptable way for which Tribes
may achieve economic value from the use of their resources. The
Department believes that the policy on approval of water leases
should parallel aspects of its policies on approving leases of
land. Therefore, the department supports S. 134, the Mescalero
Apache Tribe Leasing Authorization Act, with the amendments
discussed in my full statement for the record.
It is also important to note that this Administration
supports the resolution of Indian water rights claims through
negotiated settlement. Our general policy of support for
negotiations is premised on a set of general principles that
include the following.
That the United States participate in water settlements
consistent with its responsibilities as trustee to Indians,
that Indian Tribes receive equivalent benefits for rights which
they and the United States may release as part of the
settlement; that Indian Tribes should realize value from
confirmed water rights resulting from a settlement; and that
settlements are to contain appropriate cost-sharing
proportionate to the benefits received by all of the parties
benefitting from the settlement.
I want to affirm the Administration's support for settling
Indian water rights where possible. However, as discussed more
fully in my written statement, the department cannot support S.
399 as introduced. S. 399, the Blackfeet Water Rights
Settlement Act of 2011, would provide approval for and
authorization to carry out a settlement of the water rights
claims of the Blackfeet Tribe of the Blackfeet Indian
Reservation in Montana.
The Department's major concerns with S. 399 include the
following. Number one, the high cost of implementing this bill,
including $591 million of specifically authorized costs and
unspecified, but significant, additional costs from several
obligations imposed on the Federal Government without specific
authorization of funds; number two, the settlement does not
include a reasonable State cost share to reflect the benefits
that would enure to the non-Federal and the non-Tribal
beneficiaries; number three, the lack of information regarding
what infrastructure projects the Tribe would pursue under the
settlement and the actual costs for such proposed projects;
number four, the requirement that the United States establish a
mitigation fund to benefit a non-Tribal beneficiary; and number
five, that the settlement does not achieve finality in
resolving contentious water management issues in the relevant
basins.
These are not all of the concerns the Department has with
S. 399, but they are the most significant concerns as are
discussed in my written statement submitted for the record.
The Department believes that the settlement can be
accomplished in a manner that protects the rights of the Tribe
and also ensures that the appropriate costs of the settlements
are borne proportionally. While we do not support S. 399 as
introduced, the Administration is committed to working with
Congress and all parties concerned in developing a settlement
that the Administration can support.
Consistent with the Administration's strong support for the
principles of self-determination and self-governance, and our
recognition that the intrinsic to those principles is Tribal
control over Tribal resources, the department opposes S. 1327,
a bill to transfer certain authority and resources to the Utah
Dineh Corporation. S. 1327 would amend the 1933 Act and its
subsequent 1968 amendments by identifying the Utah Dineh
Corporation as the trustee of the former Utah Navajo Trust
Fund.
Consistent with our government-to-government relationship
with the Navajo Nation, the department acknowledges and
respects the position of the Navajo Nation as it pertains to
the Utah Navajo Trust Fund. The Department understands that the
Navajo Nation would like to manage the trust and disburse the
funds to the Utah Navajo beneficiaries consistent with the
current disbursements and percentages.
We also understand that the Navajo Nation opposes this bill
and has opposed a similar version in the 111th Congress. At
this time, the department believes it is more appropriate for
the Navajo Nation to manage the trust and disburse the funds
consistent with and to further the intent of the 1933 Act.
And finally, Mr. Chairman, S. 1345, Spokane Tribe of
Indians of the Spokane Reservation Grand Coulee Dam Equitable
Compensation Settlement Act. S. 1345 would provide compensation
to the Spokane Tribe for the use of its land for the generation
of hydropower by the Grand Coulee Dam. Specifically, S. 1345
would require the Secretary of the Interior to deposit $99.5
million over five years into a trust fund held by the United
States Treasury for the Spokane Tribe.
The Department is encouraged by significant progress made
in recent months towards resolving issues of concern to the
Administration. An example of significant progress is the
Department's support for the removal of the land transfer
provisions that were included in previous legislation.
However, the Administration cannot support S. 1345 in its
current form. With respect to section five of S. 1345, titled
Settlement Fund, we believe the basis for the settlement has
not been established by legal claim of the Spokane Tribe. Since
the Spokane Tribe has no legal claim, the Department does not
believe that legislation is appropriate as a settlement of
claims.
However, the Department could examine with the Tribe and
Congress other avenues to address the concerns of the Spokane
Tribe. The Department, in consultation with the Bonneville
Power Administration, would be pleased to work with the
Committee on substitute language or amendments to the
legislation that we believe could meet the needs of the Spokane
Tribe and the United States.
This concludes my statement and I would be happy to answer
any questions the Committee may have.
[The prepared statement of Mr. Laverdure follows:]
Prepared Statement of Donald ``Del'' Laverdure, Principal Deputy
Assistant Secretary--Indian Affairs, U.S. Department of the Interior
S. 134
Good afternoon Mr. Chairman, Vice-Chairman Barrasso and Members of
the Committee. My name is Del Laverdure. I am the Principal Deputy
Assistant Secretary for Indian Affairs at the Department of the
Interior (Department). I am here today to provide the Department's
position on S. 134, the Mescalero Apache Tribe Leasing Authorization
Act.
The Administration strongly supports the principles of self-
determination and self-governance, and recognizes that intrinsic to
these principles is tribal control over tribal resources. Like tribal
homelands, water is essential to the health, safety, and welfare of
Native people, and tribal governments are in the best position to
determine how their water will be used. Accordingly, the Department
supports S. 134 with the amendments discussed below.
S. 134 would enable the Mescalero Apache Tribe to lease its
adjudicated and quantified water rights for use within the State of New
Mexico for up to 99 years. The term ``adjudicated water rights'' is
defined as those rights adjudicated to the Tribe in State v. Lewis, 861
P. 2d 235 (N.M. Ct. App. 1993). In leasing its adjudicated water
rights, the Tribe would have to comply with New Mexico laws and
regulations. In addition, the bill expressly states that the Tribe may
not permanently alienate any of its adjudicated water rights.
The ability to lease water rights under S. 134 is consistent with
the Department's long-standing support for leasing quantified water
rights recognized in Indian water rights settlements. Leasing is an
important and acceptable way for which tribes may achieve economic
value from use of their resources. The Department believes that the
policy on approval of water leases should parallel aspects of its
policies on approving leases of land. The Department recommends
including language in the bill that provides that the Tribe shall
develop tribal water leasing standards and submit such standards to the
Secretary of the Interior for approval. The tribal water leasing
standards should include provisions under which the tribe would
identify and mitigate impacts that could potentially result from water
leasing. Following this one-time approval of tribal water leasing
standards, the Tribe would then have the authority to approve its own
leases of water. In addition, the Department recommends that language
should be added clarifying that the bill applies to water leases off
the Tribe's reservation.
S. 399
The Department's position on S. 399, the Blackfeet Water Rights
Settlement Act of 2011, which would provide approval for, and
authorizations to carry out, a settlement of the water rights claims of
the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.
I. Introduction
This Administration supports the resolution of Indian water rights
claims through negotiated settlement. Our general policy of support for
negotiations is premised on a set of general principles including that
the United States participate in water settlements consistent with its
responsibilities as trustee to Indians; that Indian tribes receive
equivalent benefits for rights which they, and the United States as
trustee, may release as part of a settlement; that Indian tribes should
realize value from confirmed water rights resulting from a settlement;
and that settlements are to contain appropriate cost-sharing
proportionate to the benefits received by all parties benefiting from
the settlement. I want to affirm the Administration's support for
settling Indian water rights where possible.
Disputes over Indian water rights are expensive and divisive. In
many instances, Indian water rights disputes, which can last for
decades, are a tangible barrier to progress for tribes, and
significantly, hinder the rational and beneficial management of water
resources. Settlements of Indian water rights disputes break down these
barriers and help create conditions that improve water resources
management by providing certainty as to the rights of all water users
who are parties to the dispute. That certainty provides opportunities
for economic development, improves relationships, and encourages
collaboration among neighboring communities. This has been proven time
and again throughout the West as the United States has pursued a policy
of settling Indian water rights disputes whenever possible. Indian
water rights settlements are also consistent with the Federal trust
responsibility to American Indians and with Federal policy promoting
Indian self-determination and economic self-sufficiency. For these
reasons and more, for nearly 30 years, federally recognized Indian
tribes, states, local parties, and the Federal government have
acknowledged that negotiated Indian water rights settlements are
preferable to protracted litigation over Indian water rights claims.
A Blackfeet water settlement would bring an end to Federal and
state court litigation that has been ongoing for more than thirty
years, and resolve conflicts over water use that began more than 100
years ago. It would open a path forward for the Blackfeet Tribe to
manage its water and related natural resources in a manner most
beneficial to its members and future generations, and provide certainty
to the communities that surround the Reservation. The Department
recognizes the substantial work and effort that have been put into
negotiating this settlement by the Blackfeet Tribe and the State of
Montana. We would like to continue to work with the parties and the
sponsors to address certain concerns, including those discussed in this
statement (such as appropriate non-Federal cost share) that could make
this a settlement that the Administration could support.
As discussed below, however, we cannot support S. 399 as
introduced. Our major concerns with this legislation include: (1) the
high cost of implementing this bill, including $591 million of
specifically authorized costs and unspecified but significant
additional costs from several obligations imposed on the Federal
government without specific authorizations of funds; (2) that the
settlement does not include a reasonable State cost share to reflect
the benefits that would inure to the non-Federal and non-tribal
beneficiaries; (3) the lack of information regarding what
infrastructure projects the Tribe would pursue under this settlement
and the actual costs for such proposed projects; (4) the requirement
that the United States establish a mitigation fund to benefit a non-
tribal beneficiary; and (5) that the settlement does not achieve
finality in resolving contentious water management issues in the
relevant basins. We have other concerns with this legislation; only the
most significant of our concerns are discussed in this statement.
However, before we address our significant concerns it is important to
acknowledge the historical background associated with the water rights
of the Blackfeet Tribe.
II. Historical Context
The history of the relationship between the Blackfeet Tribe and the
United States is not one of which the United States can be proud. The
Treaty with the Blackfeet in 1855 encompassed some 27,500 square miles
of Blackfeet tribal lands in what was to become Montana. The discovery
of gold in the early 1860s brought the first wave of non-Indians into
the territory, along with increasing pressure to open the Reservation
to non-Indian settlement. A series of executive orders reduced and
reconfigured the Reservation and then in 1888, it was divided into
three separate and smaller reservations: the Fort Belknap Reservation,
the Fort Peck Reservation, and the Blackfeet Reservation. The Blackfeet
Reservation was further diminished in 1895 (Agreement of September 19,
1895, ratified on June 10, 1896, 29 Stat. 321, chapter 398, hereafter
``1895 Agreement''), when the United States purchased from the Tribe
800,000 acres of land along the western boundary of the Reservation,
with the Tribe reserving rights to hunt, fish and cut wood and remove
timber on the ``ceded lands,'' so long as they remained ``public
lands'' of the United States. The land was thought to have contained
valuable deposits of gold, silver, and copper, but the mineral reserves
did not prove out. Instead, a plan to establish a national park on the
land moved forward. The rights retained in the ceded lands by the Tribe
in the 1895 Agreement almost immediately became an issue between the
Tribe and Glacier National Park and have remained so to the present.
In the 1895 Agreement, the United States promised that the
Reservation would not be allotted without the consent of the adult men
of the Tribe (Article V), and, that if the government were to build a
canal to control the abundant supply of water available seasonally in
the St. Mary River, the canal would be constructed to provide
irrigation water for the Reservation (Article III and Meeting Minutes).
Within just a few years, the Reservation was opened to allotment;
construction of a canal to capture the supply of the St. Mary River had
begun, which was done in conjunction with land purchases by the Bureau
of Reclamation; and the canal was designed and constructed to divert
St. Mary water off of the Reservation for the benefit of the Milk River
Project, which is located some 200 miles away, and not for the benefit
of the Tribe. In 1909, the United States entered into a treaty with
Canada apportioning the waters of the St. Mary and Milk Rivers. This
Treaty did not specifically address the water rights of the Blackfeet
Nation and other Tribes, even though it was concluded just after the
United States Supreme Court handed down its 1908 decision in Winters v.
United States--a case involving the Milk River, which established the
doctrine of Federal Indian reserved water rights.
There is an abundant supply of water arising on or near the
Blackfeet Reservation, but much of it is diverted off the Reservation,
which along with a lack of storage capacity for on-Reservation use and
a limited growing season, creates numerous challenges for the Tribe.
These challenges in part account for the high unemployment and
devastating poverty rate that has plagued the Reservation for
generations. Securing control of and actively managing Reservation
water resources would be an important step towards improving economic
conditions on the Reservation and creating the homeland envisioned in
the numerous treaties and agreements that serve as the foundation of
the United States and Blackfeet Tribe's relationship.
III. Blackfeet Montana Water Rights Compact and Proposed Legislation
S. 399 would approve a Compact entered into by the Blackfeet Tribe
and the State of Montana in an effort to settle all the Tribe's water
rights claims in Montana. The legislation specifically authorizes
funding of $591 million, but the actual cost to the United States of
implementing S. 399 would be substantially higher because the
legislation requires the United States to carry out a number of actions
spending ``such sums as may be necessary.'' Major costs would be
incurred to carry out the requirements of section 5(a) related to the
St. Mary River, section 5(b) related to compensation to the Tribe for
Milk River Project Rights-of-Way and easements, and section 11
regarding Milk River water rights. S. 399 as introduced does not even
attempt to quantify the amounts that the United States would be
required to pay to satisfy the requirements of these sections.
Likewise, S. 399 is silent on the amount required for the Birch Creek
Mitigation Fund that would be established under section 9.
Of the $591 million that are specifically authorized, $466 million
are slated for the Blackfeet Land and Water Development Fund
established in section 8(a) of S. 399. This trust fund would be used by
the Blackfeet Tribe to carry out activities at its option. The list of
authorized uses in section 8(a) is extremely broad. $125 million is
authorized for the Secretary of the Interior to carry out
rehabilitation and improvement activities for the Blackfeet Irrigation
Project and Four Horns Dam and Reservoir. The legislation does not make
clear what would happen if $125 million is not enough to complete the
work called for in section 5(d) of the Act, although the Tribe may be
able to use funds provided to it through the Land and Water Development
Fund to complete the work. As will be discussed further below, this
needs to be clarified so that the Secretary does not face open-ended
and unfunded mandates and the United States does not face continuing
liabilities, instead of finality, despite the expense and breadth of
this settlement.
The settlement would recognize a tribal water right to
approximately 750,000 acre-feet per year of surface water from the flow
of several rivers on the Reservation, including the St. Mary River, the
Milk River, Cut Bank Creek, Two Medicine River, Badger Creek and Birch
Creek. Citizens of the State of Montana benefit under the settlement as
non-irrigation State based water rights are protected under the Compact
in each of these basins, while irrigation State based water rights are
protected for a period of ten years in the Cut Bank Creek and Milk
River Basins and are then subject to a call by the Tribe.
The remainder of this testimony will summarize a number of
significant concerns regarding S. 399 as introduced.
IV. Major Concerns
A. Federal Cost
The Department has serious concerns with the amount of the
appropriations that would be needed to carry out this settlement.
Section 14 authorizes appropriations in the amount of $591 million plus
additional sums as may be necessary to resolve the St. Mary and Milk
River conflicts and to implement the Birch Creek Agreement discussed
above. Aside from just the sheer magnitude of the cost of this proposed
settlement, there is little information regarding the projects the
Tribe plans on funding using the trust fund that would be established
under legislation. The Department has made it clear to the Tribe that
it needs much greater detail and certainty along with a more realistic
level of funding before it will be able to support S. 399.
As a practical matter, the size of the Federal obligation created
under S. 399 in relation to the Department's budget presents
significant challenges. As an example, the Bureau of Reclamation
currently has a backlog of more than $2 billion in authorized but
unfunded rural water projects. This is in addition to other authorized
but unfunded Reclamation projects. Moreover, the breadth of the many
benefits that would flow to the Blackfeet Tribe and the non-tribal
beneficiaries under the settlement at almost exclusively Federal cost,
such as the rehabilitation and improvement of the Blackfeet Irrigation
Project and significant funding for unspecified and open-ended water
and economic development projects, raises serious concerns because of
the precedent that enactment of such a large settlement could set for
future Indian water rights settlements.
B. Non-Federal Cost Share
S. 399, as introduced, authorizes almost $600 million in Federal
appropriations. Significantly, the legislation authorizes $125 million
of this cost for the rehabilitation, improvement, and expansion of the
Blackfeet Irrigation Project and Four Horns Dam and Reservoir. Many of
the benefits from Four Horns Dam and Reservoir would go to secure a
guaranteed water supply for the Birch Creek water users associated with
Pondera County Canal and Reservoir Company (PCCRC), a private off-
Reservation irrigation company south of the Reservation. Birch Creek
forms the southern boundary of the Blackfeet Reservation and was the
subject of Conrad Inv. Co. v. United States, 161 F. 829, 831 (9th Cir.
1908), where ``the paramount rights of the [Blackfeet] Indians'' to
Birch Creek were decreed. If the Tribe develops the full Birch Creek
water right it negotiated under the Compact with Montana, the water
supply available to PCCRC will decrease.
The Birch Creek Agreement between the State and the Tribe attempts
to solve this problem by authorizing the construction of a new pipeline
to deliver 15,000 AF/yr to PCCRC, water that is made available by the
enlargement of Four Horns Dam, a Bureau of Indian Affairs (BIA)
irrigation project facility. Though the Tribe's consultant estimates
that full implementation of the cost for the Four Horns project will
cost as much as $215 million, S. 399 authorizes only $125 million for
the Secretary to pay for both Four Horns Dam and Reservoir and
expansion of the Blackfeet Irrigation Project. Any additional required
funding for this project would need to come from the Tribe's water
development fund, although this is not clear from the language used in
S. 399 and would require clarification. The Administration estimates
that about half of the full implementation cost of $215 million is
attributable to non-tribal water users. Montana agreed in the Birch
Creek Agreement to pay the Tribe $14.5 million for its deferral of its
Birch Creek water right for a period of up to 15 years during
construction of the Four Horns Dam enlargement and associated
infrastructure, then for its delivery of 15,000 AF/yr to PCCRC for 25
years. Additionally, the State, during water rights negotiations, paid
the Tribe $500,000 to conduct appraisal level designs of the Four Horns
enlargement project. The State also will contribute an additional $20
million towards construction of the PCCRC pipeline for a total cost
share by the State of $35 million, just 6 percent of the specifically
authorized costs of the settlement and around 33 percent of the
Administration's estimate of the State's share of the capital cost of
this project.
Additional benefits to State users in the Compact arise from the
Tribe's agreement to protect junior state water rights holders,
especially in the St. Mary and Milk River basins. These benefits are
substantial although not quantified in the settlement. The Department
is confident that settlement benefits, e.g., protecting existing non-
Indian water users, securing the Tribe's water rights, and empowering
the Tribe to control and manage its water resources, can be achieved at
a lower cost than the Birch Creek Agreement contemplates. The United
States has engaged experts to identify alternatives, and working in
collaboration with the Tribe, is preparing an alternative proposal for
consideration by the State. While the Department supports the goal of
preserving existing water uses whenever possible, substantial Federal
outlays that benefit non-Indian water users are not acceptable.
C. Lack of Information Regarding Proposed Use of Trust Fund and
Infrastructure
Projects
Section 8 of S. 399 authorizes the Tribe to use a $466 million Land
and Water Development Fund for: (1) the acquisition of land or water
rights; (2) water resources planning, development, and construction,
including storage and irrigation; (3) agricultural development; (4)
restoring or improving fish or wildlife habitat; (5) fish or wildlife
production; (6) any other water storage project, land or land-related
project, or water or water-related project; (7) cultural preservation;
(8) the operation and maintenance of water and water-related projects
and environmental compliance related to projects constructed under this
Act; (9) development of administrative infrastructure to implement this
Act, including development of the tribal water code; (10) design and
construction of water supply and sewer systems and related facilities;
(11) measures to address environmental conditions on the Reservation;
and (12) water-related economic development projects. The authorized
uses of this fund are so broad that it is difficult for the United
States to evaluate whether the fund is sized appropriately.
Likewise, the Department does not have sufficient information
regarding the infrastructure projects that the Tribe wants to carry out
under this settlement. Without this information, we cannot evaluate the
Tribe's estimated costs for the proposed projects or determine an
appropriate Federal cost share. The $125 million authorized for the
Secretary to carry out infrastructure projects would not be sufficient
to complete the actions called for under section 5(d) of S. 399 as
introduced. The legislation should clarify the respective
responsibilities of the Secretary and the Tribe under the legislation.
It is our understanding that the Tribe would be responsible for
completing these infrastructure projects using funds provided to the
Tribe under this settlement after the Secretary has spent the amount
specifically authorized in section 14 for these purposes.
The Blackfeet Irrigation Project (Project) was authorized for
construction in 1907 at 106,000 acres but only 51,000 acres have been
completed. Sixty percent of the Project's land is in trust owned by
either the Tribe or individual tribal members and about 40 percent is
owned by non-Indians. The BIA estimates the Project's total deferred
maintenance costs at over $29 million. About 38,300 acres are being
assessed operation and maintenance fees. Section 5(d)(1) of the
legislation calls for full build out of the Project to the authorized
acreage. The rehabilitation of the Project includes plans to enlarge
Four Horns Reservoir and associated delivery systems, including the
Birch Creek portion of the Project discussed above. The legislation
lacks specifics with respect to the proposed rehabilitation projects
the Tribe plans to undertake. The Department has expressed its concerns
about the scope and cost of the proposed rehabilitation of the Project,
and the Tribe is working with us to more narrowly focus its plans for
rehabilitation. The Tribe is also considering the Department's proposal
that after completion of an agreed upon rehabilitation and improvement
of the Project, the United States would transfer to the Tribe title to
the Project.
Although not specifically referenced in the legislation, it is
understood that the Tribe intends to develop a regional drinking water
system using funding provided under this settlement. Parts of the
Blackfeet Reservation have been under a ``boil order'' for more than a
decade. While the Tribe has been working to develop and construct a
regional water supply system, only portions of it are complete. The
$466 million Blackfeet Land and Water Development Fund authorized in
this legislation could be used by the Tribe for funding the proposed
regional water system, which according to the Tribe's estimates will
cost around $110 million. If the actual costs of construction are
higher than that, the Tribe would need to use more of the Fund for this
purpose. Assuming that the system would serve over 25,000 users, the
$110 million estimate reflects a cost per person of approximately
$4,300 for the system, which compares favorably with costs associated
with other projects in the region. The Tribe is considering how to
modify its proposal, however, in view of the Department's concerns
about the expense of the project. Our respective technical experts are
exploring ways to achieve cost savings through possible redesign of
certain elements of the proposed regional water system. We are
confident that a better, more efficient design is possible.
D. Mitigation Fund to Benefit non-Indians
The State and the Tribe entered into a side agreement, which the
proposed legislation would approve and to which it would bind the
United States, to secure a permanent supply of water for the PCCRC,
which supplies irrigation water to its members as well as the municipal
supply to the City of Conrad. Under this side agreement, the State will
pay the Tribe to defer its use of Birch Creek for a period of up to 15
years while infrastructure is built to guarantee delivery of water to
the PCCRC. Once the infrastructure is completed, the Tribe will supply
15,000 AF/yr for 25 years to PCCRC. Moreover, Section 9 of this bill
requires the United States to establish a fund ``to be used to mitigate
the impacts of development of the tribal water right . . . on the Birch
Creek water supplies of the PCCRC Project'' and authorizes the
appropriations of ``such sums as are necessary'' for this purpose. The
United States strongly opposes this unprecedented inclusion of a fund
to benefit non-Indian beneficiaries in a settlement using scarce
Federal dollars. While Indian water rights settlements routinely seek
to protect existing non-Indian water uses so as not to unduly impact
local economies, they have not to date included Federal funds to
compensate non-Indian water users if the future exercise of a tribe's
established water rights causes an impact on future non-Indian water
uses. The United States cannot afford this sort of precedent, and it is
unclear what additional potential liabilities this may impose on the
United States.
E. Lack of Resolution in the St. Mary and Milk River Basins
The proposed legislation leaves important matters involving the
Tribe's water rights in the St. Mary River and Milk River Basin
unsettled, imposing upon the Department the obligation to develop
solutions to these problems after the settlement is enacted. This
guarantees that there will be significant obstacles to ever achieving
realistic solutions to these problems. The Department is committed to
developing real solutions to the issue of Tribe's water rights in the
St. Mary River and the Milk River before a settlement is enacted. The
two main concerns of the Department are found in sections 5 and 11 of
the Blackfeet legislation, although we have other concerns with the
indefiniteness of some of the legislation's provisions as discussed
more fully below. Section 5 of the legislation directs the Secretary to
allocate to the Tribe 50,000 AF/yr of stored water in Lake Sherburne
Reservoir free of any charges and to agree to lease the water back from
the Tribe at an undetermined price for an indefinite period of time.
The provision's apparent goal is to have the Department find a way to
provide the Tribe with a firm supply of 50,000 AF/yr on a permanent
basis and use the lease provision as a stop gap measure while the
effort to find the additional supply is underway. This requirement is
complex and raises difficult issues, including feasibility and future
liability. Water rights in the Milk River Basin for both the Blackfeet
Tribe and the Ft. Belknap Indian Community are set forth in their
respective Water Rights Compacts with Montana and Section 11 directs
the Secretary to resolve conflicts that may arise between the two
tribes.
Taken together, these issues create real and significant conflicts
over water use and water availability and will create difficult
problems for the United States and for the communities that are
affected by this proposed settlement. They must be resolved before the
Administration will be able to lend its support to the Blackfeet water
rights settlement. The purpose of a water rights settlement is to
create the conditions for harmonious working relationships among the
parties, but these goals will not be achieved if a settlement creates
significant new liabilities and leaves significant conflicts over water
use and water availability unresolved.
F. Additional Concerns
We have other concerns with the proposed legislation, including but
not limited to the following. First, the waivers as set forth in
section 12 of the legislation are inadequate, particularly given the
broad nature of this legislation. The Administration has developed
language that we believe is appropriate for waivers in Indian water
rights settlements and such language should be followed here. Second,
further analysis is needed with respect to the rights of allottees. The
Administration has an obligation to protect allottees and the language
of Section 7(b) does not contain the certainty that we require so that
allottees are fully protected under the settlement. Third, the
Department, including the National Park Service (NPS), believes that
the water rights (including instream flows) that Glacier National Park
had quantified in the 1994 Water Rights Compact with the State of
Montana and the water rights that the Tribe seeks to have confirmed in
its water rights settlement generally are consistent. The Department is
working with the Tribe and the NPS to seek a resolution to several
concerns with the legislation, including water rights of the park,
potential impacts of the settlement, if any, on park resources, or
other issues related to the park.'' Lastly, Section 7(f) permits the
Tribe to lease ``any portion of the tribal water right'' for use off
the Reservation. While the Department has supported authority for
tribal water leasing in several prior settlements, it is concerned with
the broad and uncertain aspects of this language.
V. Conclusion
S. 399 and the underlying Compact are the products of a great deal
of effort by many parties and reflect a desire by the people of
Montana, Indian and non-Indian, to settle their differences through
negotiation rather than litigation. This Administration shares that
goal, and hopes to be able to support a settlement for the Blackfeet
Tribe after a full and robust analysis and discussion of all aspects
and ramifications of this large settlement.
The Administration is committed to working with the Tribe and other
settlement parties to reach a final and fair settlement of the Tribe's
water rights claims. This settlement, when completed, will provide
certainty to the State of Montana and non-Indian users and will enable
the Blackfeet Tribe to put its water rights to use for the economic
benefit of the Blackfeet Reservation and its residents. If the parties
continue to negotiate in good faith, we are hopeful that an appropriate
and fair settlement can be reached that will contribute to long-term
harmony and cooperation among the parties.
We believe settlement can be accomplished in a manner that protects
the rights of the Tribe and also ensures that the appropriate costs of
the settlement are borne proportionately. While we do not support S.
399 as introduced, the Administration is committed to working with
Congress and all parties concerned in developing a settlement that the
Administration can fully support.
S. 1327
The Department opposes S. 1327, a bill to amend the Act of March 1,
1933, to transfer certain authority and resources to the Utah Dineh
Corporation, and for other purposes.
Background
In 1933, Congress established the Utah Navajo Trust Fund (UNTF),
Pub. L. No. 72-403, 47 Stat.1418 (1933 Act), which designated Utah as
the trustee. UNTF's corpus was derived from 37.5 percent of net
royalties from the extraction of oil and gas deposits under the Navajo
Reservation's Aneth Extension. According to the statute, the 37.5
percent net royalties are to be paid to the State of Utah, for the
health, education and general welfare of the Indians residing in the
Aneth Extension. In 1968, Congress expanded the beneficiary class to
include all Navajos living in San Juan County, Utah, Pub. L. No. 90-
306, 82 Stat. 121. The Navajo Nation has managed 62.5 percent of the
net royalties since the initial development of oil and gas on the
Navajo Reservation.
In approximately 1959, oil and gas wells in the Aneth Extension
began producing in paying quantities, and the Department, through oil
and gas mining leases on the Navajo land, began collecting oil and gas
royalties. The leases are between the Navajo Nation and the producer,
and are subject to approval by the Secretary of the Interior. \1\ The
State of Utah is not a party to the tribal leases for these oil and gas
royalties.
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\1\ See, e.g., 25 U.S.C. 396a (provision in 1938 Indian Mineral
Leasing Act allowing tribe to lease unallotted Indian land for mining
purposes, subject to Secretary of Interior approval); 25 C.F.R. Pt. 211
(Leasing of Tribal Lands for Mineral Development).
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In 2008, the State of Utah decided to resign as trustee of the
UNTF, and allowed UNTF, as a state agency, to sunset. The State moved
the responsibility to fulfill the liabilities and obligations of the
repealed UNTF to the State of Utah's Department of Administrative
Services. The State also provided for a transition process until the
United States Congress designates a new administrator of the 37.5
percent of the Utah Navajo royalties identified in the 1933 Act.
The Office of Natural Resources Revenue (ONNR) receives the Report
of Sales and Royalty Remittance from the royalty payor and prepares a
monthly summary of the reported royalties for 21 Aneth leases.
Currently, the royalties are paid to the ONRR, the same as all other
Indian leases. The ONRR then forwards the funds to the Navajo Nation,
and simultaneously reports to the Navajo Regional Office of the Bureau
of Indian Affairs (BIA) on the respective funding amounts due to Navajo
Nation and to the State of Utah Navajo trust entity. The BIA then
forwards correspondence to the Navajo Nation recapitulating the ONRR-
calculated funding split and directing Navajo Nation to forward the
appropriate amount to the Utah Navajo trust entity.
Department's Concerns with S. 1327
S. 1327 would amend the 1933 Act and its subsequent 1968 amendments
by identifying the Utah Dineh Corporation as the trustee of the former
UNTF. Consistent with our government-to-government relationship with
the Navajo Nation, the Department acknowledges and respects the
position of the Navajo Nation as it pertains to the UNTF. The
Department understands that the Navajo Nation would like to manage the
trust and disburse the funds to the Utah Navajo beneficiaries
consistent with the current disbursement and percentages. We also
understand that the Navajo Nation opposes this bill and has opposed a
similar version in the 111th Congress. The Department, therefore,
opposes S. 1327. At this time, the Department believes it is more
appropriate for the Navajo Nation to manage the trust and disburse the
funds consistent with and to further the intent of the 1933 Act.
Furthermore, without additional background or definition of whom,
or what makes up, the Utah Dineh Corporation, the Department is
concerned with the designation of the Utah Dineh Corporation as the
trustee for the 37.5 percent. We are also concerned with the deletion
of a significant portion of the 1933 Act and its subsequent amendments
that required ``planning of expenditures'' in cooperation with the
appropriate department, bureaus of the United States and with the
Navajo Nation. The planning and cooperation would not be required by
the Utah Dineh Corporation under S. 1327. Also, the Department is
concerned that S. 1327 would eliminate the reporting requirement of the
1933 Act, whereby an annual report was sent to the Navajo Area Regional
Director of the BIA.
Again, for the above stated reasons, the Department opposes S.
1327. This concludes my statement. I would be happy to answer any
questions the Committee may have.
S. 1345
Thank you for the opportunity to present the Administration's views
on S. 1345, the Spokane Tribe of Indians of the Spokane Reservation
Grand Coulee Dam Equitable Compensation Settlement Act.
S. 1345 would provide compensation to the Spokane Tribe of Indians
for the use of its land for the generation of hydropower by the Grand
Coulee Dam. Specifically, S. 1345 would require the Secretary of the
Interior to deposit $99.5 million over 5 years, $23,900,000 for fiscal
year 2012 and $18,900,000 for the following 4 fiscal years, into a
trust fund held by the United States Treasury for the Spokane Tribe.
The Department is encouraged by significant progress made in recent
months toward resolving issues of concern to the Administration,
however, the Administration cannot support S. 1345 in its current form.
As an example of the significant progress, the Department supports
the removal of the land transfer provisions that had been included in
prior legislation. Section 9 (a) of S. 1345, ``Delegation of
Authority,'' presents an alternative approach for addressing the
Spokane Tribe's interest in reestablishing its law enforcement
authorities within the boundaries of the Spokane Reservation. While the
Department supports the concept of providing a clear delegation of
authority to the Tribe to achieve its law enforcement goals, we are
concerned that the language in S. 1345 is overbroad and could be
construed to delegate more than just the authority intended by the
Tribe. The Department is willing to work with the Committee or the
Tribe to craft acceptable language for this provision, and,
alternatively, is willing to accomplish the intent of this provision of
the legislation administratively through a written delegation letter
from the Secretary to the Spokane Tribe.
With regard to Section 5 of S. 1345, ``Settlement Fund,'' the basis
for this settlement has not been established by a legal claim of the
Spokane Tribe. Since the Spokane Tribe has no legal claim, the
Department does not believe this legislation is appropriate as a
settlement of claims. However, the Department could examine with the
Tribe and Congress other avenues to address the concerns of the Spokane
Tribe.
Finally, although the Department is concerned with this legislation
being styled as a settlement act, settlement acts generally should
include a provision that requires the Tribal government to ratify and
approve this legislation as a complete settlement prior to the Act
becoming effective.
The Department, in consultation with the Bonneville Power
Administration, would be pleased to work with the Committee on
substitute language or amendments to the legislation that we believe
could meet the needs of the Spokane Tribe and the United States.
Mr. Chairman, this concludes my written statement. I would be
pleased to answer any questions the Committee may have.
The Chairman. Thank you very much, Mr. Laverdure.
For each bill that we are hearing about today, can you tell
me how the Department will work with sponsors and this
Committee so that we can all move forward legislatively, while
still addressing the concerns of the Department and not
delaying the legislation?
Mr. Laverdure. Thank you, Mr. Chairman.
With respect to the Blackfeet Water Rights Settlement Act,
our Secretary's Indian Water Rights Office has been working
closely with the Blackfeet Tribe over this past year to try to
resolve Federal concerns. Our testimony today makes clear that
the Department still has several significant problems with the
legislation as introduced, but that we are committed to working
with the Tribe to find solutions so that the Administration can
support a Blackfeet settlement.
With respect to the Spokane Equitable Compensation Act, the
Department's Associate Deputy Secretary, Meghan Conklin, has
been working closely with Senator Cantwell's office to resolve
our concerns and we will continue to do so.
In addition, the Department would be happy to work with the
sponsors of the Mescalero Water Leasing Authorization Act,
which we support, and on S. 1327 regarding the management of
the trust fund and the Utah Dineh Corporation.
The Chairman. Thank you.
Let me call for questions from Senator Tester.
Senator Tester. Thank you, Mr. Chairman.
And thank you for being here today, Del. I appreciate your
testimony.
You had mentioned one of your first concerns is the high
cost, $591 million. And then you talked about unspecified
dollars without specific authorization. Could you flesh that
out a little bit for me? What are you talking about?
Mr. Laverdure. Yes, Senator Tester. On page three of the
formal written testimony submitted to the Committee, the
paragraph under section three talks about the phrase on a
number of actions of spending ``such sums as may be necessary''
and that is in several of the provisions so that it doesn't
have a finite number. And that is in addition to the $591
million price tag in the bill as introduced.
Senator Tester. And so what you are looking for is a
conversation between the Department and the Tribe to put actual
numbers in those areas, instead of the verbiage such sums as
necessary?
Mr. Laverdure. Yes.
Senator Tester. Okay.
Chris, when you get up, I am going to ask you why that
language is in there so remind me if I forget. Okay?
The other question I had was, look, I have a lot of respect
for you. I think you are a good guy. We need somebody in the
Department that is going to sit down and negotiate in good
faith with the Tribe and with us. Who is that going to be? Is
that going to be you? Is that going to be somebody else?
Mr. Laverdure. We send the entire Federal water rights team
out to Browning just I think two and a half to three weeks ago.
If I hadn't had a prior commitment, I would have went myself
personally, but I can commit to you today that I would be happy
to be the person heading the Federal water rights team to go
out there and try to resolve the issues of concern that we
have.
Senator Tester. That is good because if we have a point
person, when we have a point person and you don't get ping-
ponged around. So I appreciate that.
Do you know of or have you proposed any alternatives to the
Tribe or the State to address some of the five major comments
that you had negative about it? Have we got to that point yet?
Mr. Laverdure. I would like to turn to my colleague, Pam
Williams. She is the head of the Secretary's Indian Water
Rights Office and I know she works closely with all of the
negotiating teams, so she can answer with specificity the
questions you have.
Senator Tester. Okay.
Ms. Williams. Senator Tester, we have been working with the
Tribe closely, very intensely in the last few months. And only
recently we received some proposals from the Tribe that we find
to be very useful, I think progressive, and we are very excited
about some of those concepts. And we are looking forward to
beginning a dialogue immediately with the Tribe on those new
concepts with them.
Senator Tester. I appreciate that. Is it within your, I
mean, negotiations are something that you kick stuff back to
them. This is a possible solution; this is an idea that could
work. Have you guys done any of that? Have you guys proposed
any solutions for the problems that you see?
Mr. Williams. Yes, we have proposed a number of
alternatives in the settlement.
Senator Tester. Okay, good.
Let me go back to some of the concerns. The size of the
project, for one. The second one was there wasn't a reasonable
amount of State dollars. I think about $35 million, correct?
And hasn't there been water compacts that have been passed that
had no State match in them whatsoever?
Number one, what is a reasonable amount? And number two, I
will say it the way I see it. Why are we holding Blackfeet to a
higher standard than we hold some of the other water
settlements to?
Mr. Laverdure. Three things, Senator Tester. Number one,
the State contribution is roughly 6 percent of the total amount
that is proposed in the introduced bill. In addition, the
Department, to my knowledge, has had concerns with every Indian
water rights settlement that came from Montana and Montana's
proportional contribution. And all of them I think have been
deemed insufficient in the records in each of the testimonies.
In fact, I had experienced the same when I was on another side
of the table.
And with respect to the $35 million that you mentioned, $15
million was to go for the deferral of 15 years for the call
right of the Blackfeet, the senior water rights for the
irrigation project just south of the reservation boundary. And
then the $20 million was meant for the outlay of the pipeline
coming from the, to increase the capacity of the irrigation
project to go down to the community south, which is all to
benefit a community south of the reservation, as opposed to the
Blackfeet directly.
Senator Tester. So what are you saying? Are you saying that
$35 million isn't being spent correctly? Or are you saying that
$35 million isn't an adequate amount?
Mr. Laverdure. We are saying that the $35 million, when the
State provides proportional contribution, that it should be to
the benefit of the Blackfeet Nation and its citizens.
Senator Tester. Okay. If we get this water settlement
through, and no matter how that $35 million is spent, you
understand better than anybody in this room what kind of
benefit it is going to be to the Blackfeet people. Okay.
I have run out of time. If we have a second round, I have
more questions.
The Chairman. Senator Cantwell?
Senator Cantwell. Thank you, Mr. Chairman.
Mr. Laverdure, are you speaking on behalf of the entire
Interior Department? I mean, is the Bureau of Reclamation
satisfied with this legislation since they are the ones who had
issues or concerns and actually run Lake Roosevelt from a
reservoir perspective?
Mr. Laverdure. Senator Cantwell, I am speaking on behalf of
the Department, and Reclamation's concerns are partially
included in the written statement that we provided, which was
fairly short.
Senator Cantwell. So even though we have heard from the
Bureau of Reclamation that they don't have any concerns, you
are now saying they do?
Mr. Laverdure. Actually, there were two underlying issues
submitted in the formal written statement. One was some law
enforcement provisions that thought could be taken care of
better outside of some of the underlying Acts that created
Grand Coulee Dam or authorized it.
In specific law enforcement, we thought that the Secretary
could simply delegate the law enforcement authority that the
Spokane Tribe is seeking, rather than in this legislation where
there are a number of other non-law enforcement delegations
that could be provided under that.
And the second was that this was titled as a settlement act
from claims and that from the Department's perspective, it is
more of an equitable compensation because of the long history
dealing with the Indian Claims Commission Act and the fact that
Colville was able to amend its underlying claim to include the
hydropower value and the fisheries issue. Whereas, the Spokane
Tribe was unable to include that. And that is the piece of the
equitable compensation.
Senator Cantwell. But are those Bureau of Reclamation
issues, the law enforcement and the claim issue?
Mr. Laverdure. The claim issue is from the Department of
Justice's perspective; the legal claim issue.
Senator Cantwell. So does the Bureau of Reclamation, are
they satisfied with the legislation as it relates to the Lake
Roosevelt Reservoir?
Mr. Laverdure. Except the law enforcement aspect of it.
Senator Cantwell. Okay.
And then back to this issue, the second issue that you are
raising. Do you see any difference between the damage to the
Spokane Reservation, to its way of life, and the damage that
was done to the Colville Tribe? Do you see any difference in
the damage?
Mr. Laverdure. No.
Senator Cantwell. No, okay. So the damage was the same.
And the fact that the Colville received a settlement in
1994 for the exact same harm. You know, they lost access to
salmon and land and burial sites and all sorts of thing. That
settlement, my understanding is, had Department of Justice
support despite the assertion that the Tribe had no legal
claim, a position that it had argued for many years. Is that
correct?
Mr. Laverdure. My understanding, and it was included in the
2000 GAO report, that Colville actually was able to amend its
underlying Indian Claims Commission filing and it did include
the fisheries, as well as the hydropower value. Whereas the
Spokane were seeking outside the legal ICC claims and were
unable to amend their underlying claim to include that.
That was my understanding of the basis of the Colville
settlement in the mid-1990s.
Senator Cantwell. So you are saying that the technicality
of how they reached the agreement and what it was called at the
time, the Department of Justice basically was supporting the
agreement because of the structure.
Mr. Laverdure. I think because of that history that there
was less objection to that.
Senator Cantwell. Well, they either objected that they had
no legal claim, or they did. So I am just trying to understand.
Do you think the Department of Justice objected to the
settlement, because they didn't object to it, so I am trying to
understand that they didn't object to it, what are they, they
also, what are they saying about the fact that Colville had no
legal claim?
Mr. Laverdure. Actually, Senator, I think they did have a
legal claim, the Colville, because they were able to amend
their original ICC claim to include the two things that Spokane
unfortunately did not get to amend their underlying claim to
include.
Senator Cantwell. Well, I appreciate that you at least have
testified today that the damage done to both is exactly the
same. So at least thank you for that.
I don't have any more questions. I will have questions for
the Spokane Tribe when they are before us, Mr. Chairman. Thank
you.
The Chairman. Thank you very much, Senator Cantwell.
Let me welcome and ask our Vice Chair here to make any
statement and questions that he may have.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman. I
appreciate both the business meeting that we have been working
on together and I look forward to continue working with you on
those matters. And thank you for holding the discussion and the
hearings today.
I note that in the third panel, the Honorable Kenneth
Maryboy from Monticello, Utah will be here, and Senator Hatch
and I had a chance to visit at lunch and he is unable to be
here to welcome Kenneth Maryboy, but wants to extend that
welcome and I will do that on Senator Hatch's behalf.
I do have a couple of questions, if I could, Mr. Chairman.
And it goes back to a 1930s report of advisers on irrigation on
Indian reservations. We are going back now quite a few years.
So it was submitted to this Committee over 80 years ago and it
questioned the viability of the Blackfeet project.
The report noted that adequate preliminary investigations
and studies would have condemned the irrigation project as
unfeasible. And then in 2006, the GAO cited that report, that
report from 1930, raising very similar concerns about this
project. So we hear it in 1930 and then we hear it again in
2006.
So I realize that the earlier report really is over a half-
century old, but in light of the recent GAO report, the one
from 2006, I would like to know: Is it a wise use of taxpayer
funds to rehabilitate the Blackfeet project?
Mr. Laverdure. Thank you, Vice Chairman Barrasso.
I don't dispute some of the background and the factual
information you provided on that. In fact, we have that. I
think from the beginning there was 106,000 acres, but only
roughly half was completed. And you cite some of the conditions
of it.
My understanding is there has been some new movement on
whether in fact aspects of the Blackfeet irrigation project
would be part of the settlement going forward. That has not
been changed in the bill as introduced, but that is my
understanding. And I think that our view is that we would
tentatively agree without knowing all the details right now.
Senator Barrasso. Yes, because I was wondering what may
have changed since that 1930 report to make this project now a
viable consideration under the water settlement.
Mr. Laverdure. To my knowledge, I don't think anything has
changed.
Senator Barrasso. And I didn't know if there was any BIA or
other interagency financial feasibility studies of all of the
projects contemplated by S. 399. Is there such a study? Do you
know?
Mr. Laverdure. No.
Senator Barrasso. Thank you.
Thank you, Mr. Chairman. I appreciate the time. Thanks.
The Chairman. Thank you very much, Senator Barrasso.
Senator Udall?
Senator Udall. Thank you, Chairman Akaka, and I thank you
for the witnesses being here today. And let me also echo what
several Members of the Committee said in terms of Elouise
Cobell. It is a big loss, I think, to all of us. She was a
great lady and I think we will all miss her very much.
Del, I am asking you now about the Mescalero Apache Tribal
Leasing Authorization Act. Is there a precedent of Tribes being
able to lease their adjudicated water rights for up to 99
years?
Mr. Laverdure. Yes, Senator. The majority of
Congressionally approved Indian water rights settlements
contain leasing provisions. However, each marketing provision
is unique and often tailored to the agreements among the
settling parties. A 99-year lease term is not unusual and all
of the Arizona water rights settlements allow them in some way,
shape or form.
At this time, the Department doesn't have a precise list of
all of those that allow a 99-year term because each
settlement's marketing provisions are worded differently and
sometimes the key details are omitted from the Federal
legislation and are in the relevant language within the
underlying settlement documents.
Senator Udall. Could you provide to the Committee a rough
idea of how many Tribes have this authority?
Mr. Laverdure. We are going to have to go back and look at
not only the Federal legislation, but the underlying
agreements, but we can provide that to the Committee.
Senator Udall. Thank you very much.
How has water leasing authority been beneficial or
detrimental to Tribes?
Mr. Laverdure. I think in general, allowing Tribes to
receive economic value from their resources is beneficial in
untold ways, including having direct exercise over control over
their own resources and receiving much-needed revenues. And I
fully anticipate that the panel afterwards will be able to
explicate many of the other reasons that they could utilize
that authority for.
Senator Udall. In your testimony, you make the
recommendation that the Mescalero Apache Tribal Leasing
Authorization Act be changed to include language that provides
that the Tribe, and I am quoting now, your testimony, ``shall
develop Tribal water leasing standards and submit such
standards to the Secretary of Interior for approval.''
Will you flesh that out a little bit, expand on your idea
for the Committee? What would these water leasing standards
entail?
Mr. Laverdure. Today, the Department is considering an
individual bill that will allow a Tribe to lease its water off
the reservation without secretarial approval of the underlying
lease. And that is a novel and new issue for the Department.
The Department has consistently held the view that 25 USC
Section 177, the restraint on alienation of lands, also applies
to the water resource as well. So to make water leasing
consistent with the Department's policy on legislation that
allows Tribes to lease their own land, the Department believes
it is prudent for the Secretary to approve standards for the
leasing of Indian water rights.
And in terms of detailing those types of standards, they
would include things like identify and mitigate any
environmental impacts; ensuring that the fair market value is
received that could potentially result from this water leasing;
and more or less things like that that are of a transactional
business nature, as opposed to regulatory nature.
Senator Udall. Do you consider these to be part of the
Department's trust responsibilities vis-a-vis the Tribe?
Mr. Laverdure. Yes.
Senator Udall. And I know Senator Tester asked a question
who, and President Chino is here, I mean who should the
Mescalero Apache Tribe be dealing with? Will they be dealing
with you in terms of the expectation on the standards? Or with
Ms. Williams?
I know I am going to be asking President Chino. Make sure,
President Chino, that I ask you about this. And I don't know if
this is the first time you have heard this or not, but we want
to make sure that you have somebody to work with so that we
don't get ourselves in a situation where standards are
developed and then they aren't acted on quickly, and we can't
move things along.
So, it would be you or Ms. Williams or both?
Mr. Laverdure. Yes, I mean, if you want one point person,
if it came to me, then I would make sure that we have the legal
and the policy review of the standard so it doesn't get caught
up.
Senator Udall. Great. Are there standards that you have in
mind right now that are in other water settlements that would
be able to be looked at right off the bat?
Mr. Laverdure. Because this is a novel issue, we don't have
those necessarily there. One, the types of concerns that could
be utilized are from the Navajo Nation who took over its own
leasing where they had their leasing of land regulations
developed and they have some of those concerns listed in there
that could be utilized in standards.
Senator Udall. I think both Navajo and Jicarilla Apache,
both have provisions allowing off-reservation leasing. And so
that may be an area to look at, too. I think you both are
nodding in agreement to that.
So thank you very much, Mr. Chairman.
The Chairman. Thank you very much, Senator Udall.
Before I move to the third panel, let me ask whether our
Members have a second round of questions?
Senator Tester. I do, Mr. Chairman, if I might.
The Chairman. Senator Tester?
Senator Tester. Okay. First thing, Del, could you, and you
don't have to do it today, if you could get it to me, if you
don't have it today. If you have it, I would love to hear it.
What specifically, or maybe this is for Ms. Williams, what
specifically has been offered up to the Tribe as far as
solutions from the Department?
Mr. Laverdure. I think we will have to get back to you on
that because it is a moving target, from what I understand.
Senator Tester. That would be fine. Good.
Well, your recommendations shouldn't be a moving target,
though. I mean, the negotiations should be a moving target, but
your recommendations to the negotiations shouldn't be a moving
target.
Mr. Laverdure. That is correct.
Senator Tester. Okay. Good.
I didn't have anything about the 1930 irrigation project so
I have to do this first. Things change in 80 years. I have a
1931 Model A and I have a 2011 GMC pickup and they are a whole
lot different as far as what is available to them.
So I am going to approach this from a little different
perspective. You are familiar with the Bureau of Reclamation
design, engineering and construction review process? Okay.
It is my belief that the Bureau sent a review team to the
reservation to review and analyze the project's information
before issuing a report on those projects. Is that correct?
Mr. Laverdure. Yes, I think there has been a DEC review.
Senator Tester. Yes, and my understanding is that the DEC
review came out fine. Right?
Ms. Williams. My understanding, Senator, is when the Bureau
of Reclamation DEC review took place, they found there wasn't
sufficient information to conclude that the costs were
realistic or not realistic. There was simply not enough
material developed to make definitive determinations.
I think they found that the material developed was
accurate, but it simply wasn't enough.
Senator Tester. Okay. Did they make a request of the Tribe
for more information? Do you know? If there wasn't enough
information, did they make that request?
Ms. Williams. I think they talked about the need for
additional studies.
Senator Tester. Okay. Well, that is cool, I just don't want
to end up, I mean we can go back to the timeline. I think the
Department got involved with this settlement in 1991, if I am
not mistaken. And the timeline then means we are going on 20
years. Correct me if I am wrong.
And I think that if they need information, we need to get
them information. Another study isn't exactly what I think we
need here myself, my opinion.
One of the last things you said, Del, was that this
settlement wasn't finished. And let me tell you what I think I
heard, then you tell me if I was right, that if you supported
this settlement and this settlement was ratified, the water
settlement wasn't finished. Is that correct?
Mr. Laverdure. Senator Tester, just the finality piece was
more are all the legal claims tucked into the settlement and
finalized as all the benefits then go in commensurate to that.
And my understanding was that not all of the provisions that
are typically required in these settlements were in there.
Senator Tester. Okay. Well, look, if the Department's right
on that, we need to get that fixed because the settlement is
exactly what it is. It is a settlement. And if it isn't a
settlement, if we are going to come back to this in 20 years or
50 years or 100 years, then it is not a settlement.
So if that is not fixed, we definitely, absolutely need to
get it fixed. So I would just say that.
Just in the last, just very much in closing, you know
unemployment in Indian Country, Montana. I mean, you know, the
challenges that are out there and you know what impact water
can have on opportunity. And I would just say that if there are
ways that Senator Baucus and myself can work with the
Department or with the commission, can work with the Tribe,
especially the Tribe, so we can all get on the same page, it is
something that needs to be done. You know that. We can't
continue to keep saying no. What we have to do is try to find
ways we can say yes.
So I appreciate your being here today and thank you for
your input, and hopefully we can roll up our sleeves and get
after it.
Thanks.
Mr. Laverdure. Thank you, Senator Tester. And we are
absolutely committed for the resources to deploy and work on
all of those things.
The Chairman. Thank you very much, Senator Tester.
Are there any further questions?
Senator Cantwell. Yes, Mr. Chairman.
The Chairman. Senator Cantwell?
Senator Cantwell. Yes, I just had one last question for Mr.
Laverdure.
In your testimony, you say that the Department would
examine other ways that Tribes and Congress could, avenues for
concerns of the Spokane. What were you thinking?
Mr. Laverdure. In the discussions in the Department, I
think the idea was, at least from a policy perspective, the one
that I have was to seek some type of measure of justice or
compensation for the Spokane, just like the Colville did,
without running into the issues that are listed.
We are committed to sitting down and working with your
office and the Spokane Tribe and trying to resolve those issues
so that they have their share of the equitable settlement.
Senator Cantwell. And are you saying that that is something
that is done legislatively or not done legislatively?
Mr. Laverdure. It would still be accomplished
legislatively, but we would just work on the language so that
we alleviated these concerns to get to where I think you and
the Spokane people would like to be.
Senator Cantwell. Because you think the word claim sets a
precedent?
Mr. Laverdure. The legal team has reviewed it and believes
that there is no legal claim and the filing was not made at the
right time.
Senator Cantwell. Even though they thought the same thing
on the substance of the Colville?
Thank you, Mr. Chairman. I got the answer I needed. Thank
you.
The Chairman. Thank you.
Any further second-round questions?
Thank you. And let me say thank you very much to Mr.
Laverdure and Pamela for your testimony and your responses. We
certainly appreciate it. Thank you.
Mr. Laverdure. Thank you, Mr. Chairman. I appreciate it.
The Chairman. Now, I would like to invite the third panel
to the witness table. On our third panel is the Honorable Mark
Chino, President of the Mescalero Apache Tribe; the Honorable
Terry Show, Chairman of the Blackfeet Nation; Mr. Chris
Tweeten, Chairman of the Montana Reserved Water Rights Compact
Commission; the Honorable Rex Lee Jim, Vice President of the
Navajo Nation; the Honorable Kenneth Maryboy, the San Juan
County, Utah Commissioner; and the Honorable Greg Abrahamson,
Chairman of the Spokane Tribal Council.
We welcome all of you here to this hearing. Thank you for
being here. We look forward to your testimony and your
responses.
President Chino, will you please proceed with your
statement?
STATEMENT OF HON. MARK CHINO, PRESIDENT, MESCALERO APACHE TRIBE
Mr. Chino. Thank you, Mr. Chairman.
Good afternoon, Chairman Akaka and Members of the
Committee. I bring greetings from the great State of New Mexico
and also from the Mescalero Apache people. I am pleased today
to be joined by three members of our Tribal Council who are
here to offer a little moral support and also support of our
testimony before the Committee today.
Thank you for having this hearing on S. 134, which was
introduced by Senator Bingaman and Senator Udall, which would
authorize the Mescalero Apache Tribe to lease its adjudicated
water rights. The Mescalero Apache Tribe is located on the
Mescalero Apache Indian Reservation in the White and Sacramento
Mountains of South-Central New Mexico, which is within our
aboriginal territory.
The reservation is home to a majority of the Mescalero
Apache Tribal members and we are known for our natural beauty
and abundant resources which we are obviously very thankful
for.
We are a treaty Tribe, having entered into a treaty with
the United States on July 1st, 1852. Our treaty is called the
Treaty with the Apaches. And it promised specifically that the
Tribe would have a permanent homeland in our aboriginal
territory and impliedly reserves sufficient water rights or
sufficient water to meet the Tribe's historic, current, and
future water requirement.
In 1975, the State of New Mexico sued the United States in
State court to determine a certain portion of the water rights
of the United States and of the Mescalero Apache Tribe in the
Pecos Stream system. The suit, which was State ex rel Reynolds
v. Lewis et al, was filed pursuant to the McCarran Amendment,
43 USC Section 666.
First, the court had to determine whether the McCarran
Amendment, which waived the United States' sovereign immunity
from suit in State court to determine the water rights in the
stream system, allowed for the adjudication of the right of the
Mescalero Apache Tribe.
In 1975, after the lease was appealed, the New Mexico
Supreme Court held that the waiver contained in the McCarran
Amendment did allow for adjudication of the Tribe's water
rights. The case was then remanded to the State District Court
in Chaves County, New Mexico for a determination of our water
rights.
The Mescalero Apache Tribe intervened in that particular
action as a party defendant and a trial was held to determine
the Tribe's water rights. After the trial, on July 11th, 1989,
the State court held that the Tribe was entitled to consumptive
water rights for its historic, present, and future requirements
in the amount of 2,322.4 acre-feet per year.
But the State court held that the Tribe would have five
different priority dates. On appeal, the New Mexico Court of
Appeals affirmed the consumptive water rights amount and
reserved the five different priority dates. The Court of
Appeals held that the Tribe's priority date is that of our
Treaty with the Apaches, July 1st, 1852.
After many years of litigation, a portion of the Tribe's
water rights in the Pecos Stream system have been adjudicated.
At present, the Tribe has been approached by our governmental
neighbors to lease water. There is a need for water that the
Tribe can meet. Additionally, the Tribe will be able to use the
proceeds from water rights leasing legislation to fund basic
governmental services.
Federal law imposes certain restrictions on the alienation
of the Tribe's property. In particular, the Tribe cannot lease
our water without Federal legislation specifically authorizing
us to do so. S. 134 will provide such Federal legislation and
the Tribe will be authorized to lease our adjudicated water
rights for a period not to exceed 99 years.
There are no budgetary concerns with the passage of S. 134
as implementation of the bill does not require any
appropriations or expenditures. The legislation holds the
United States harmless if there is any loss or other detriment
resulting from any lease, contract or other arrangement entered
into pursuant to the bill if passed.
The other treaty Tribes in New Mexico have been authorized
to lease their water rights for a period not to exceed 99
years. Under State law, owners of water rights can lease their
water rights. The Mescalero Apache Tribe is simply seeking the
same rights to lease our adjudicated water rights.
Lastly, Mr. Chairman and Members of the Committee, I am
pleased to inform the Committee that I have met in person with
Mr. John D'Antonio, the New Mexico State Engineer, and he has
informed me that the State of New Mexico does not oppose this
bill. In fact, Mr. D'Antonio stated that he saw this
legislation as a win-win situation for the State and for the
Tribe.
Lastly, Mr. Chairman and Members of the Committee, I am
disappointed and dismayed that the Department of the Interior
has in fact tried to propose amendments to this legislation.
The Tribe was not informed of their intent to do so. In fact,
we were led to believe that the Department of Interior had no
specific concern and did not intend to offer any specific
amendments. And I am disappointed that they have seen fit to do
so today.
And with that, Mr. Chairman and Members of the Committee,
that does conclude my written testimony. I will be pleased to
answer any questions that the Committee may have.
Thank you very much, sir.
[The prepared statement of Mr. Chino follows:]
Prepared Statement of Hon. Mark R. Chino, President, Mescalero Apache
Tribe
Chairman Akaka and Committee Members:
Thank you for having this hearing on Senate Bill 134, introduced by
Senator Bingaman and Senator Udall, to authorize the Mescalero Apache
Tribe to lease its adjudicated water rights.
The Mescalero Apache Tribe is located on the Mescalero Apache
Indian Reservation in the White and Sacramento Mountains of south
central New Mexico, which is within the Tribe's aboriginal territory.
The Reservation is home to the majority of Mescalero Apache Tribal
members and is known for its natural beauties and abundant resources.
We are a treaty tribe, having entered into a treaty with the United
States on July 1, 1852. Our treaty, known as the ``Treaty with the
Apaches,'' promised that the Tribe would have a permanent homeland in
its aboriginal territory and impliedly reserved sufficient water to
meet the Tribe's historic, current and future water requirements.
In 1975, the State of New Mexico sued the United States in state
court to determine a certain portion of the water rights of the United
States and the Mescalero Apache Tribe in the Pecos Stream System. The
suit, State ex rel. Reynolds v. Lewis et al., was filed pursuant to the
McCarran Amendment, 43 United States Code, Section 666. First, the
court had to determine whether the McCarran amendment, which waived the
United States' sovereign immunity for suit in state court to determine
water rights in a stream system, allowed for the adjudication of the
rights of the Mescalero Apache Tribe. In 1975, after the issue was
appealed, the New Mexico Supreme Court held that the waiver contained
in the McCarran Amendment did allow for adjudication of the Tribe's
water rights.
The case was remanded to the state district court in Chaves County,
New Mexico, for a determination of the Tribe's water rights. The Tribe
intervened in the action as a party defendant and a trial was held to
determine the Tribe's water rights.
After the trial, on July 11, 1989, the state court held that the
Tribe was entitled to a consumptive water right for its historic,
current and future requirements in the amount of 2,322.4 acre feet per
year. But, the state court held that the Tribe would have five
different priority dates. On appeal, the New Mexico Court of Appeals
affirmed the consumptive water rights award of 2,322.4 acre feet per
year and reversed the five different priority dates. The Court of
Appeals held that the Tribe's priority date is that of the ``Treaty
with the Apaches,'' July 1, 1852. See 116 N. M. 194.
After many years of litigation, a portion of the Tribe's water
rights in the Pecos Stream System have been adjudicated.
At present, the Tribe has been approached by its governmental
neighbors to lease water. There is a need for water that the Tribe can
meet. Additionally, the Tribe will be able to use proceeds from water
rights leasing to fund basic governmental services.
Federal law imposes certain restrictions on the alienation of the
Tribe's property. See 25 United States Code, Section 177. In
particular, the Tribe cannot lease its water without federal
legislation authorizing the same.
Senate Bill 134 will provide such federal legislation. The Tribe
will be authorized to lease its adjudicated water rights for a period
not to exceed 99 years. There are no budgetary concerns with the
passage of Senate Bill 134 as implementation of the bill does not
require any appropriations or expenditures. The legislation holds the
United States harmless if there is any loss or other detriment
resulting from any lease, contract or other arrangement entered into
pursuant to the Bill, if passed.
The other treaty tribes in New Mexico have been authorized to lease
their water rights for a period not to exceed 99 years. See the Navajo
Nation Settlement Act, Public Law 111-11, Act of March 30, 2009, and
the Jicarilla Apache Tribe Settlement Act, Section 7 of Public Law 102-
441, 106 Stat. 2239. Under state law, owners of water rights can lease
their water rights. The Mescalero Apache Tribe is seeking the same
right to lease water.
Lastly, I am pleased to inform the Committee that I met with John
D'Antonio, New Mexico State Engineer, and he informed me that the State
of New Mexico does not oppose this Bill. Mr. D'Antonio stated that he
saw this legislation as a win--win situation for the State and the
Tribe.
This concludes my written testimony.
The Chairman. Thank you very much, Mr. Chino.
All or your full statements will be entered into the
record.
Mr. Show, please proceed with your testimony.
STATEMENT OF HON. TERRY J. SHOW, CHAIRMAN, BLACKFEET NATION
Mr. Show. Thank you, Mr. Chairman. I feel too that on
behalf of the Blackfeet People, that I also recognize Elouise
Cobell. She was a Blackfeet Tribal member and to me she was the
epitome of a Blackfeet member. And I believe she is the epitome
of all Native people.
With that, Mr. Chairman and Members of the Committee, my
name is T. J. Show. I am the Chairman of the Blackfeet Tribal
Business Council. I am honored to be here on behalf of the
Blackfeet Tribe in support of the Blackfeet Water Rights
Settlement Act, a bill that is crucial to the future of the
Blackfeet people.
With me today are Council Member Shannon Augerre and Reese
Fisher; our Director of Research Monitoring Jerry Lunak; and
our Water Rights Attorney Jeanne Whiteing.
I want to thank the Committee for holding this hearing. I
also want to thank Senator Max Baucus and Senator Jon Tester
for their strong support of the Tribe in introducing this bill,
and their understanding of the importance of this settlement to
the Blackfeet Tribe. I also want to thank their staff and their
Committee staff for their hard work on this bill.
The Blackfeet water rights settlement is a culmination of
over two decades of work by the Tribe, the State, and the
Federal Government. It represents an historic breakthrough in a
Tribe's over century-long battle to secure and protect its
water rights.
S. 399 ratifies the Blackfeet Montana Water Rights Compact,
resolves certain water-related claims against the Federal
Government, and provides critical resources for development of
a self-sustaining economy in a permanent homeland for the
Blackfeet people.
The Blackfeet Reservation was established by treaty in
1855. The reservation originally encompassed much of the State
of Montana, but was reduced in size by various Federal actions
to the present 1.5 million acres. The reservation is located
along the Rocky Mountains in North-Central Montana along the
U.S.-Canadian border and adjacent to Glacier National Park to
the west.
Our reservation is renowned for its protecting mountains,
majestic plains, abundant national resources and our pristine
streams and lakes. Over 518 miles of streams and 180 bodies of
water, including eight large lakes, are located on the
reservation. More than 1.5 million acre-feet of water arrives
on or flows through the Blackfeet Reservation on an annual
basis, the St. Mary River alone contributing to over one-third
of the total supply.
Water is critical to the continuing survival of the
Blackfeet people culturally, spiritually, and economically. We
have over 18,000 members, about half who live on the
reservation. Safe and clean drinking water supplies are
essential for our Tribal communities to grow and thrive.
Our reservation economy is heavily dependent on
agriculture, stock raising, requiring substantial stable water
supplies. Reservation unemployment can run as high as 70
percent to 80 percent, however, and our economic future
increase depends on development of our natural resources, along
with alternative energy resources including hydropower and wind
energy, all which requires significant water supplies.
At the same time, the Tribe is committed to preserving our
unique and special environment and is mindful of conserving the
quality and quantity of our resources for generations to come.
Historically, water has been a controversial issue on the
Blackfeet Reservation, beginning with the 1909 Boundary Waters
Treaty that divided the St. Mary and Milk River between the
United States and Canada without consideration or even mention
of the Blackfeet water rights.
The treaty facilitated diversion of the United States'
share of the St. Mary's water off-reservation for 100 years for
the use of the Bureau of Reclamation Milk River Project. Early
conflicts on the Birch Creek, the southern boundary of the
reservation, resulted in a 1908 Federal water rights decree in
the Conrad Investment case, a case brought by the United States
at the same time as the Winters case. The case spawned efforts
to obtain allotment of the reservation as a means of
controlling the water through ownership of land.
Given the historical water rights issues on the
reservation, the Blackfeet Water Rights Compact is truly a
milestone achievement. The compact, together with S. 399,
represents a comprehensive settlement of the Blackfeet water
rights and related issues and achieves three important goals.
First, it confirms the Tribe's right to surface and
groundwater on the reservation and provides for an allocation
of water from the Bureau of Reclamation's Tiber Dam. Second, it
provides for Tribal administration of Tribal water rights,
along with protection for State water users. Third, it provides
funding for projects that are critical to the implementation of
the Tribe's water rights and homeland purpose of the
reservation.
These projects include long-term municipal water systems
for reservation communities, irrigation and water storage
improvements on the reservation, energy development, and land
acquisition.
The compact was approved by the Montana Legislature in
April of 2009, two and a half years ago. At that time, the
State submitted $20 million to the contribution of the
settlement, which is now fully authorized and available. In
addition, the 2007 Legislature appropriated $15 million for
Birch Creek mitigation, for a total of $35 million, the State's
largest contribution to a Montana settlement. A vote of the
Tribal membership is also required to give final approval.
I thank the Committee and the staff, and look forward to
responding to any questions you may have.
Thank you.
[The prepared statement of Mr. Show follows:]
Prepared Statement of Hon. Terry J. Show, Chairman, Blackfeet Nation
Mr. Chairman, and members of the Committee, my name is T.J. Show. I
am Chairman of the Blackfeet Tribal Business Council. I am honored to
be here on behalf of the Blackfeet Tribe in support of the Blackfeet
Water Rights Settlement Act.
I want to thank the Committee for holding this hearing on S. 399, a
bill that is critical to the future of the Blackfeet People. I also
want to thank Senator Max Baucus and Senator Jon Tester for their
strong support of the Tribe in introducing this bill, and their
understanding of the importance of this bill to the Blackfeet Tribe. I
also want to thank their staffs and the Committee staff for their hard
work on this bill.
The Blackfeet Water Rights Settlement is the culmination of over
two decades of work by the Tribe. It represents an historical
breakthrough in the Tribe's over century long battle to secure and
protect its waters rights. S. 399 ratifies the Blackfeet-Montana Water
Rights Compact, resolves significant water related claims against the
Federal Government and most importantly provides the critical resources
needed for the development of a self-sustaining economy on the
Blackfeet Reservation and a permanent homeland for the Blackfeet
People.
The Blackfeet Reservation and the Blackfeet People
The Blackfeet Reservation was established by treaty in 1855. The
Reservation is located along the Rocky Mountains in north central
Montana adjacent to Glacier National Park. Our Reservation is renowned
for its spectacular mountains, majestic plains and abundant natural
resources. The Blackfeet People have occupied this area since time
immemorial. As we say: ``We know who we are and where we come from. We
come from right here. We know, and have always said, that we have
forever lived next to the Rocky Mountains.''
Our treaty, known as Lame Bull's Treaty, was signed in 1855.
Executive orders and statutes followed, each taking large areas of our
traditional land. In the end, we ended up with the land that was most
sacred to us: our present day reservation
In 1896, the Northern Rockies were taken from us because
speculators believed there were rich minerals to be had. When mineral
riches did not materialize, this most sacred part of our homeland
became part of Lewis and Clark National Forest and a portion later
became part of Glacier National Park in 1910. To this day we question
the legitimacy of the 1896 transaction. While the Tribe retained
hunting, fishing and timbering rights in the area taken, we hope that
one day our claims to this area will be resolved.
The present Blackfeet Reservation is about 1.5 million acres.
Although the United States had promised our reservation would never be
allotted in the 1896 Agreement by which the Northern Rockies were lost,
the Federal Government went back on its word and lands within the
reservation were allotted to individual Tribal members under allotment
acts in 1907 and 1919.
The Tribe now has over 16,000 members, about half of whom live on
the Reservation. Our people have worked hard to survive in the
sometimes harsh climate of the Rocky Mountains, and to live in the
modern world while maintaining the cultural and spiritual ties to the
land and its resources.
The Critical Importance of Water
Water is critical to the Blackfeet People. It is central to our
culture and our traditions. It is an essential element of our way of
life, and is crucial to our continuing survival culturally,
traditionally and economically. Six different drainages are encompassed
within the Reservation: the St. Mary, the Milk, Cut Bank Creek, Two
Medicine River, Badger Creek and Birch Creek. These are the veins and
arteries of the Reservation and provide life to the Blackfeet People
and bind us together as a People.
Water is the source of creation to the Blackfeet People. We believe
that rivers and lakes hold special power through habitation of
Underwater People called the Suyitapis. The Suyitapis are the power
source for medicine bundles, painted lodge covers, and other sacred
items. Contact with supernatural powers from the sky, water and land is
made through visions and dreams and manifests itself in animals or
particular objects. The beaver ceremony is one of the oldest and most
important religious ceremonies, and beaver bundles have particular
significance. The ceremonial importance of water is especially present
in the use of sweat lodges as a place to pray, make offerings and
cleanse and heal. The sweat lodge remains a part of the religious and
spiritual lives of many tribal members.
Water is truly the lifeblood that sustains the Blackfeet people and
our way of life. The water resources of the Blackfeet Reservation are
essential to make the Reservation a productive and sustainable homeland
for the Blackfeet people and for our communities to thrive and
proposer. Safe and clean drinking water supplies are vital for the
growing population on the Reservation, and water is critical to our
economy which is heavily dependent on stock raising and agriculture.
The Blackfeet Reservation's location along the eastern Rocky
Mountain Front makes it the home of abundant fish and wildlife, which
depend directly on the water resources of the Reservation to support
them and allow them to thrive. Large game animals, including moose,
elk, and deer abound. The Reservation provides significant habitat for
grizzly bears and other bears, and for other animals such as lynx, pine
marten, fisher, mink, wolverine, weasel, beaver, otter, grey wolf,
swift fox and others. Numerous bird species are also found on the
Reservation including bald eagle, golden eagle, osprey, ferruginous
hawk, northern goshhawk, harlequin duck, piping plover, whooping crane,
and all migratory and shoreline birds, as well as game birds such as
the sharptail grouse, ringnecked pheasant, mountain dove, Hungarian
partridge and two species of grouse. The fishery on the Reservation is
renowned, and includes the west slope cutthroat trout, northern pike,
lake trout, rainbow trout, mountain white fish, lake white fish, brook
trout, brown trout, Yellowstone cutthroat trout, walleye, and many
others. The threatened bull trout is also be found on the reservation.
The habitats of these wildlife and fish species depend directly on the
water resources of the Reservation to support them and allow them to
thrive.
The Reservation also possesses significant timber, and oil and gas
resources and other natural resources. Oil and gas production has
occurred on the Reservation since the 1930s, and the Tribe has recently
experienced a significantly increased interest in new development on
the Reservation. The Tribe has also been working hard to develop wind
energy and the hydroelectric potential on the Reservation. All of these
activities are dependent on adequate supplies of water.
Fortunately, we are blessed with an abundant supply of water. Over
518 miles of stream and 180 water bodies, including eight large lakes,
are located on the reservation. More than 1.5 million acre-feet of
water arise on or flow through the Blackfeet Reservation on an annual
basis, the St. Mary River alone contributing over one-third of the
total supply. Despite the significant water supply, or maybe because of
it, historically others have sought to appropriate it for themselves,
and water has become a precious resource in more modern times.
Historical Water Conflicts
In 1909, the United States entered in to the Boundary Water Treaty
with Canada, which among other things, divided the Milk River and St.
Mary River between the two countries. However, not a word in the
Treaty, or the negotiations leading to it, mention the Blackfeet, that
these streams arise on or near the Blackfeet Reservation, or that the
Blackfeet have rights to water in these streams.
Not long after the Boundary Waters Treaty, the United States
withdrew significant lands on the Blackfeet Reservation under the 1902
Reclamation Act, and began construction of the St. Mary facilities that
would divert most of the United States' share of the St. Mary River off
the Reservation for use by the Milk River Project over a hundred miles
away, notwithstanding that there was an equally feasible project on the
Blackfeet Reservation to which the water could have been brought. The
diversion is accomplished through facilities on the Reservation,
including Sherburne Dam, and a twenty-nine mile canal through the
Reservation that eventually empties into the Milk River. The Milk River
flows north into Canada and then back into the United States near
Havre, Montana, where it is heavily utilized by the Milk River Project
and by the Fort Belknap Reservation. There are few historical acts,
other than loss of land, that have engendered more passion and outrage
than this wholesale transfer of Reservation water to serve non-Indians
far downstream, without a word about or any consideration of Blackfeet
Tribe's water rights or the Blackfeet water needs. The Tribe is left
not only with no access to and no benefit from its own water, but a
tangled web of confusing and non-existent rights of way and easements
for the St. Mary Diversion facilities on the Reservation.
At the same time that the St. Mary diversion was taking place, non-
Indian water users south of the Reservation built a dam on Birch Creek,
the southern boundary of the Reservation, which was intended to
appropriate Birch Creek water for use by the non-Indian water users off
the Reservation. In Conrad Investment Company v. United States, decided
by the Ninth Circuit in 1908, the same year as the Winters case, the
court upheld the Tribe's prior and paramount right to the water. But
the court did not award the full amount of water necessary to irrigate
all of the Tribe's irrigable lands, leaving it open for the Tribe to
claim additional water in the future. United States v. Conrad
Investment Company, 156 Fed. 123 (D. Mont. 1907), aff'd Conrad
Investment Co. v. United States, 161 Fed. 829 (9th Cir. 1908). In the
meantime, Birch Creek has been fully appropriated through non-Indian
development of 80,000 acres of irrigation immediately off and adjacent
to the Reservation.
In an attempt to control the water through the land, the Conrad
Investment case served as the springboard to the first Blackfeet
allotment act in 1907. Over a span of two congresses, the Blackfeet
allotment act moved forward with various water rights provisions
intended to make Blackfeet water rights subject to state law, to enjoin
the United States from prosecuting any further suits against water
users, and to give preference to settlers on surplus lands to
appropriate water on the Reservation. See, John Shurts, Indian Reserved
Water Rights: The Winters Doctrine in its Social and Legal Context,
1880s-1930s (University of Oklahoma Press, 2000). These efforts largely
failed, thanks in part to a veto from President Theodore Roosevelt, but
the 1907 Allotment nevertheless became law notwithstanding the promise
that the Reservation would never be allotted. See Agreement of
September 26, 1895, ratified June 10, 1896, 29 Stat 321, 353, Art. V.
Allotment brought the third serious conflict between the Tribe and
non-Indian water users. The Bureau of Indian Affairs Blackfeet
Irrigation Project was authorized in the 1907 Allotment Act. However,
many of the prime irrigation lands both within the Project and in other
areas of the Reservation on Cut Bank Creek and the Milk River quickly
went out of trust. The Tribe's water rights have gone unprotected from
the use of water by non-Indian development on former allotments.
Numerous disputes have arisen over the years of varying severity, and
the need to resolve the Tribe's water rights has increasingly become
critical. At the same time, the BIA built the Blackfeet Irrigation
Project with undersized and inadequate delivery systems and storage
facilities, thereby ensuring that the economic promise of the Project
would be unfulfilled for the Tribe and Tribal members.
Traditionally, the Tribe has taken the approach of sharing the
resource cooperatively, but increased shortages during the late
irrigation season in both the Milk and Cut Bank Creek, and the
dilapidated condition of the Blackfeet Irrigation Project have become
serious impediments to water use within the Reservation. Plans to
rehabilitate the hundred year old St. Mary Diversion facilities have
further raised water right concerns, and have emphasized the need for
the Tribe to finally resolve its water rights.
Water Rights Compact
Given the historical water rights issues on the Reservation, the
Blackfeet Water Rights Compact is truly a milestone achievement after
nearly two decades of negotiations among the Tribe, the Montana
Reserved Water Rights Compact Commission and the Federal Government.
The Compact was complete in December 2008. It was approved by the
Montana Legislature in April, 2009 (85-20-1501 MCA), and it is now
before this Committee for ratification in the Blackfeet Water Rights
Settlement Act. It will further require approval of the Tribe through a
vote of the Tribal membership. In general, the Compact confirms the
Tribe's water rights to all streams on the Reservation, bringing
certainty to the Tribe's water rights and the ability to protect and
use the water for the Tribe's growing population and needs to make the
Reservation a productive and sustainable homeland. The Compact:
Establishes the Tribe's water right as all surface and
groundwater less the amount necessary to fulfill state water
rights in all drainages except for the St. Mary River and Birch
Creek.
Establishes a St. Mary water right of 50,000 acre-feet, and
requires the parties to identify how the water will be provided
to fulfill the Tribe's water right.
Establishes a Birch Creek water right of 100 cfs, plus 25
cfs for in stream flow during the summer and 15 cfs during the
winter.
Protects state water right non-irrigation use and some
irrigation uses through ``no-call'' provisions.
Provides for water leasing off the Reservation.
Closes on-reservation streams to new water appropriations
under state law.
Provides for Tribal administration of the Tribal water, and
State administration of state law water rights, and creates a
Compact Board to resolve disputes
Provides for an allocation of water stored in Tiber
Reservoir (in an amount to be determined by Congress).
Mitigates the impacts of the Tribe's water rights on Birch
Creek water users through a separate Birch Creek Agreement by
which the Tribe defers new development on Birch Creek for 15
years and provides 15,000 acre-feet of water per year to Birch
Creek water users from Four Horns Reservoir, the total
agreement not to exceed 25 years.
Additional identification and study of alternatives to provide the
Tribe's St. Mary water right will be necessary and are included as part
of the legislation. As described above, nearly the entire United
States' share of the St. Mary River is diverted off the Reservation to
the Bureau of Reclamation's Milk River Project. In the meantime, S. 399
provides that the Tribe will receive its water right through an
allocation of Sherburne Dam, the Milk River Project storage facility on
the Blackfeet Reservation. The Tribe will lease back the water to the
Project, until a permanent water supply is identified and implemented
for the Tribe. Such an arrangement is the only way to ensure that the
water rights of both the Tribe and the Milk River Project are
fulfilled.
Upon completion of the Compact, a separate concern was raised by
the Fort Belknap Indian Community relating to the Milk River, and the
potential for conflict between the Blackfeet and Fort Belknap Milk
River water rights. While the Blackfeet Tribe believes that the
potential for conflict is extremely minimal, the two tribes met on a
number of occasions to resolve any possible conflict. Language was
agreed upon to be inserted in our respective settlement legislation.
The language requires the Secretary to insure that the water rights of
both tribes are fulfilled. This is a particular federal responsibility
due to the United States trust responsibility to both tribes, and
particularly because the Federal Government was party to the
negotiations of both tribes.
State Approval and State Contribution
As described above, the Blackfeet water rights compact was approved
by the State Legislature in April 2009. The State of Montana has
committed to contribute $20 million to the Compact. These funds were
fully authorized and are available when the Compact becomes final. In
2007, the Montana Legislature also appropriated $15 million for Birch
Creek mitigation. Of these funds, $14.5 million has been placed in an
escrow fund for the Tribe as part of the Birch Creek Agreement, and
$500,000 was used for engineering studies for the Four Horns
enlargement. Therefore, the State has committed to a $35 million
contribution to the Blackfeet settlement. This is very major
contribution on the part of the State, and the largest for an Indian
water rights settlement in Montana.
Blackfeet Water Rights Settlement Act
S. 399 carries forward the terms of the Blackfeet Water Rights
Compact, and addresses issues of particular federal responsibility and
federal concern. The bill would do the following:
Approves and ratifies the Compact and the associated Birch
Creek Agreement.
Authorizes the allocation of Tiber Dam water.
Provides 50,000 acre feet of Sherburne Dam water to the
Tribe in fulfillment of the Tribe's St. Mary water right and
authorizes necessary investigation and studies to provide a
firm supply to the Tribe.
Requires resolution of all rights of way issues related to
the Milk River Project facilities, involving tribal lands and
allotted land.
Authorizes the rehabilitation and improvement of the
Blackfeet Irrigation Project, including the enlargement of Four
Horns Reservoir.
Establishes a Blackfeet Water Settlement Fund and authorizes
$125M for the Blackfeet Irrigation Project and $93.2 for each
of five years for other water projects and water related
projects.
Provides for a waiver of water related claims against the
Federal Government.
The Tribe has identified a number of projects that are critical to
the implementation of the Tribe's water right under the Compact. These
projects include a regional water system to provide a long term
municipal water supply to Reservation communities, improvements to
irrigation and water storage on the Reservation associated with the
Bureau of Indian Affairs' Blackfeet Irrigation Project including
enlargement of Four Horns Reservoir as provided for in the Birch Creek
Agreement, putting new lands outside the Project into production
through new irrigation facilities and small water storage projects,
stock water and domestic water developments, energy development
projects, and acquisition of lands on the Reservation that have gone
out of trust. Settlement funds would also fund the implementation of
the Compact and the administration of the Tribal water right through
the Tribal Water Code.
In particular, it is critical to establish a long term supply of
water to Reservation communities. The Tribe has continually had to
address community water supply problems by cobbling together short term
fixes. At the same time, the Reservation population has significantly
increased, and projections are that such increases will continue. A
long term supply will provide the necessary stability that will allow
for long term community growth.
For many years, East Glacier has been under a boil order issued by
EPA. The Town of Browning has had frequent problems with its current
water supply which is provided by groundwater wells. These wells have
experienced supply and quality problems that have affected a continuous
water supply for Browning. The Seville water supply is currently
provided through an agreement with the City of Cut Bank. However, the
ability of Cut Bank to continue to provide water to this reservation
community given the City's own water supply problems is in doubt.
The Blackfeet Tribe, Indian Health Service (IHS) and other entities
have designed and are currently constructing a Phase 1 regional water
system within the Reservation. The source is at Lower Two Medicine
Lake, with an associated water treatment plant, with water service
pipelines going to the towns of East Glacier and Browning. The Phase I
project focuses on current needs. The proposed project would provide a
50 year water long-term community water supply and would include
enlarging the treatment plant and Phase 1 pipelines and extending the
pipeline from Browning to serve Indian communities to the eastern
boundary of the Reservation, including the Star School and Seville
areas.
The Cost of Settlement
The Tribe's technical consultant, DOWL HKM of Billings, Montana,
has assisted the Tribe in the development of the above projects and has
prepared reports on each of the projects and the associated costs.
Separate costs have been developed for each of the projects.
The cost of settlement is fully justified by the needs of the
Reservation and the potential Tribal claims against the United States
associated with (1) the one-hundred year old diversion of St. Mary
water off the Reservation to the Milk River Project over a hundred
miles away, (2) the environmental and resource damages caused by the
St. Mary diversion facilities, (3) claims relating to the 1909 Boundary
Waters Treaty, (4) the United States promise to construct a new storage
facility on Two Medicine after a catastrophic flood in the 1960's, (5)
the failure of the United States to properly operate and maintain the
Blackfeet Irrigation Project, and (6) the failure of the United States
to protect the Tribe's water right from development by others,
particularly on Birch Creek, Cut Bank Creek and Milk River.
Conclusion
The Blackfeet Water Rights Settlement has critical importance to
the future of the Blackfeet people and represents decades of hard work
by many people. The legislation will secure the water rights of the
Tribe through ratification of the Tribe's water rights compact, and
will also provide the necessary funding for the development of vital
reservation water projects, including drinking water projects, water
storage projects and irrigation and stock development. The settlement
will significantly contribute to the development of a strong
Reservation economy, jobs for Tribal members, and a better life for the
Blackfeet people.
Even though the Department of the Interior was involved in our
negotiations every step of the way in the decades long process, and was
intimately involved in the drafting of the Compact, the Administration
has raised a number of issues relating to S. 399. We are engaged in
discussions with the Department of the Interior to address these
concerns, and expect they will be resolved in a satisfactory manner to
both parties.
We thank the Committee and Committee staff and look forward to
responding to any questions you may have.
______
Suppemental Prepared Statement of Hon. Terry J. Show
Mr. Chairman, and members of the Committee, we appreciate the
opportunity to provide this Supplemental Testimony in support of S.
399, Blackfeet Water Rights Settlement Act. This supplemental testimony
provides additional information about the Settlement, and responds to
certain issues raised at the hearing on the bill held on October 20,
2011.
As stated in our hearing testimony, the Blackfeet Water Rights
Settlement is the culmination of over two decades of work by the Tribe,
and represents an historical breakthrough in the Tribe's over century
long battle to secure and protect its waters rights. S. 399 ratifies
the Blackfeet-Montana Water Rights Compact, resolves certain water
related claims against the Federal Government and provides the critical
resources needed for the development of a self-sustaining economy on
the Blackfeet Reservation and a permanent homeland for the Blackfeet
People.
Cost of the Settlement
The Department of the Interior has expressed concern about the cost
of the Blackfeet settlement. In particular, Interior has expressed
concern about the precedent the settlement would set for future water
settlements. However, the cost of the Blackfeet settlement is
consistent with other Indian water rights settlements involving
reservations of similar size, water allocations, types of resources and
Bureau of Indian Affairs irrigation projects. For example, the cost of
the recently enacted Crow Tribe Water Rights Settlement, Title IV, P.L.
111-291, 12 Stat. 3097 (2010) is $464.99 million, principally for an
MR&I water system and rehabilitation of the Crow Irrigation Project.
The total cost of the recent Navajo San Juan Settlement, Subtitle B,
P.L. 111-11 (2009), is $934.1 million principally for the Navajo-Gallup
Water Supply Project ($870M), conjunctive use wells ($30M), and for
irrigation projects ($34.1M).
Since the Blackfeet water rights compact was completed in 2007, the
Blackfeet Tribe has consistently indicated a willingness to enter into
discussions with the Administration to further refine the costs of
settlement. However, the Administration only recently began discussions
with the Tribe in July of this year (2011).
Otherwise, we are unaware that the Department of the Interior's
consideration of Indian water rights settlements is intended to or
should take into account any backlog for appropriated but unfunded
Bureau of Reclamation projects as Interior suggests in its testimony.
Whether and to what extent the Bureau of Reclamation has a backlog has
nothing to do with the settlement of Indian reserved water rights and
the Federal Government's trust responsibility to ensure that the
Tribe's water rights are fully established and protected.
Information Regarding Settlement Project
The Department of the Interior also expressed concern about the
level of information regarding the Tribe's projects funded under the
settlement. Interior requested and the Tribe provided a list of
projects and estimated costs for each proposed project for purposes of
a BOR review. However, the level of information required by BOR is not
possible without the expenditure of millions of dollars upfront. For
example, the $500,000 spent on studies for just one project--the Four
Horns project--was not adequate, according to BOR, to verify cost
estimates. We believe the issue has to do with the Departments attempt
to treat Tribal settlement projects like BOR projects. BOR projects are
developed for funding by Congress over many years. By the time BOR
proposes funding for its projects, it has already received millions of
dollars in appropriations to develop the project. For Indian water
settlements, federal funds are not available for development of
projects to the degree BOR prefers. Nevertheless, Congress has
consistently funded tribal projects. See e.g., P.L. 111-291 (2010),
which authorizes funding four Indian water rights settlements,
including funding for MR&I projects and irrigation projects with
similar levels of information to the Blackfeet projects.
Four Horns Enlargement Project
As part of the Birch Creek Agreement entered into between the State
and Tribe, the Tribe agrees to mitigate impacts to Birch Creek water
users for a 25 year period by providing 15,000 acre feet of water from
an enlarged Four Horns Reservoir through a pipeline to Birch Creek. The
Department of the Interior's testimony states that the total cost of
implementing the Birch Creek agreement is $215 million, half of which
is attributable to benefits to Birch Creek water users. Interior has
significantly misinterpreted and misstated the costs.
The $215 million cost is the cost for the complete rehabilitation
and improvement of the Badger-Fisher unit of the Blackfeet Irrigation
Project, including full build out and enlargement of Four Horns and the
pipeline to provide water to Birch Creek. However, the Tribe has not
proposed full rehabilitation and build-out of the Badger-Fisher unit.
Instead, the Tribe has proposed to spend $125 million for the Badger-
Fisher unit, including partial rehabilitation of the unit and the Four
Horns enlargement and pipeline. Of this amount, the pipeline to provide
the 15,000 acre feet of water to Birch Creek plus a proportionate share
of an increased feeder canal is approximately $36 million. Therefore,
the amount attributable to non-Indian benefits at the high end is $36/
$125 or 28 percent. Taking into account the State contribution of $20
million, the amount attributable to non-Indian benefits from federal
funds is $16 ($36-$20)/$125 or 13 percent. Further, taking into account
that the benefit is only for 25 years and after that time the Tribe
would receive 100 percent of the benefit from the enlarged Four Horns,
and assuming a life expectancy of 100 years (the age of the current
project), the amount attributable to non-Indian benefits from federal
funds is reduced to a little over 3 percent (one-fourth of 13 percent).
In addition, under the Birch Creek agreement, the Tribe receives a
payment from the State of $14.5 million to provide the 15,000 acre feet
of water for the 25 year period. In effect, the Tribe is marketing the
15,000 acre feet to Birch Creek paid for by the State. Taking the State
payment to the Tribe into account, the federal funds benefit to Birch
Creek water users is effectively reduced to zero.
We are requesting the Department of the Interior to correct its
statement to the Committee on this issue.
We also point out that the reason mitigation is necessary for Birch
Creek water users is the failure of the United States to fully ensure
and protect the Blackfeet Tribe's water rights in Birch Creek. Pursuant
to a 1908 federal court decree in Conrad Investment Co. v. United
States, 161 F.829 (9th Cir. 1908), contemporaneous with the Winters
case, the Tribe's water rights were partially quantified based on its
then existing uses. However, the court made clear that the Tribe could
obtain additional water for additional irrigable lands when needed. In
the meantime, the Birch Creek users developed over 70,000 acres of land
immediately adjacent to the Reservation, fully utilizing all remaining
water in Birch Creek. The United States never took steps to limit such
development or to go back to court to obtain a complete adjudication of
the Tribe's water rights in the face of such development until the
1970s. Indeed, the Birch Creek water users argue that the United States
facilitated the development of their lands through the 1894 Carey Act.
Additional Benefits to Non-Indians
The Department of the Interior also argues that there are
additional benefits to state users through protections to junior state
water users in the St. Mary and Milk Rivers, and that the costs
relating to such benefits are unquantified. Nevertheless, Interior
insists that such unquantified benefits can be secured at a lower cost.
However, Interior fails to mention that the largest beneficiary from
the protections for the junior state water in the St. Mary River is the
Bureau of Reclamation's Milk River Project. The Milk River Project
diverts the entire U.S. share of the St. Mary River off the Blackfeet
Reservation through a 29-mile canal and uses it over a hundred miles
downstream for the benefit of non-Indian water users. It is the Bureau
of Reclamation that insisted the Tribe protect its junior state water
rights in the St. Mary for the benefit of the Milk River Project and
its water users. Indeed, BOR wanted stronger language in the Tribe's
water rights compact for this purpose.
The only protection for junior state water users in the Milk River
is for non-irrigation uses such as domestic water supplies and stock
water uses. The Tribe agrees to not make a call on such uses. There is
no cost relating to such protection, and we are unclear why Interior
objects to such protections for domestic and stock uses.
Resolution of St. Mary/Milk Issues
The Milk River Project's use of the entire U.S. share of the St.
Mary River is the reason why the Tribe's 50,000 acre feet of St. Mary
water is problematic to the Department of the Interior. In addition, a
question has also been raised as to whether the Blackfeet Tribe's Milk
River water right and the Fort Belknap Tribe's Milk River water right
can both be fully satisfied. While the Tribe believes that the
potential for such conflict between the Tribes is extremely remote,
since the Department of the Interior participated in the negotiations
of both Compact, both Tribes feel that if there is an issue, it is an
issue for the U.S. to resolve. The Fort Belknap Compact was completed
in 2001; the Blackfeet Compact was completed in 2007. The Department
has made no attempt to determine whether a conflict exists, and if so,
the extent of such. Again, however, the Blackfeet Tribe believes that
such a conflict is extremely remote.
Because the St. Mary/Milk issues are uniquely federal issues that
the Department has not yet resolved, the exact costs, if any, are not
yet known. However, Interior cannot complain since it is within its
authority to fully resolve the issues and to determine any costs
involved.
Non-Federal Cost Share
As previously set out in our testimony, the State contribution to
the settlement is $35 million. Of this amount, $15 million was
appropriated and made available by the Montana Legislature in 2009--
$14.5 million has been put into an account for the Tribe as part of the
Birch Creek agreement, and $500,000 already has been utilized for
studies relating to the Four Horns enlargement. The 2011 Legislature
authorized the issuance of bonds for the remaining $20 million. The
State contribution is therefore fully available.
The $35 million state contribution to the Blackfeet settlement is
also the largest Montana contribution to a settlement. The contribution
to the Crow settlement was $15 million. The State contribution to the
Rocky Boys settlement was $550, 000, $400,000 of which is in the form
of State services. There was a $16.5 million contribution to the
Northern Cheyenne settlement which the State paid in the form of a loan
from the Federal Government. We are aware of other settlements where
there has been no federal contribution at all. For example, there is no
state contribution at all in the Nez Perce Snake River Basin
Settlement, Div. J, Title X, P.L. 108-447 (2004), a settlement of over
$120 million. Indeed, in the Nez Perce settlement, the State of Idaho
received federal funds of over $25 million for a habitat fund.
Mitigation Fund for PCCC
At the request of the Pondera County Canal and Reservoir Company,
located on Birch Creek south of the Reservation, a mitigation fund was
included in the present bill for the purpose of mitigating any impacts
at the end of the 25 year term of the Birch Creek Agreement. The Tribe
supports this provision, but it is up to PCCRC and the United States to
resolve any issues relating to it. We note however, that
notwithstanding Interior's statements that such a fund is
unprecedented, such provisions have been included in other Indian water
rights settlements. Indeed, settlements have routinely included funding
for mitigation. For example: (1) the Taos Pueblo Indian Water Rights
Settlement, Title V of P. L. 111-291 (Sec. 509(c)(1)(B)), authorizes
$38 million to mitigate impacts non-Indian water users, a portion of
which is a mandatory appropriation; (2) the Soboba Band of Luiseno
Indian Settlement Act, P.L. 110-297 (2008) (Sec. 5a and Sec. 6)
authorizes $10 million for the San Jacinto Restoration Fund to operate
and maintain a recharge project (this is compared to the total
appropriation for the Tribe of $11 million); and (3) the Snake River
Water Rights Act of 2004 (Nez Perce), P.L. 108-447, Div. J., Title X
(Sec. 5(b)(1), authorized $2 million for mitigation for local
governments.
The Tribe also notes that while the United States has criticized
the Tribe for including certain protections for non-Indian water uses,
it states in this section of its discussion of the PCCRC mitigation
fund, that Indian water rights settlements ``routinely seek to protect
existing non-Indian water user so as not to unduly impact local
economies.'' We agree.
Additional Concerns
We believe the additional concerns raised by Interior are all
matters that are easily resolved through discussions between the Tribe
and Interior. We note that the nature of many of these concerns arise
from the Department's many conflicts of interest in seeking to
represent and protect water rights of various federal entities like the
Bureau Reclamation and the Park Service, as well as other Tribes and
allottees, and its conflicts of interest in limiting its own liability
relating to failures to protect the Tribe's water rights while at the
same time purporting to protect such rights in the context of this
present settlement.
The Chairman. Thank you very much, Mr. Show, for your
testimony.
We will now hear from Chris Tweeten. Please proceed with
your statement.
STATEMENT OF CHRIS TWEETEN, CHAIRMAN, MONTANA RESERVED WATER
RIGHTS COMPACT COMMISSION
Mr. Tweeten. Thank you, Mr. Chairman, Members of the
Committee.
First of all, I would like to remind the Committee that we
saw the United States' objections to this bill for the first
time within the last 24 hours, so we obviously have not had an
opportunity to fully develop our reactions to those objections.
And with your permission, we would like to submit a
supplemental statement in which we will fully respond to those
objections as we understand them.
The Chairman. Without objection.
Mr. Tweeten. One, I would like to respond briefly to
Senator Barrasso's observation regarding the lack of recent
studies with respect to the feasibility of the improvements
that are recommended in this legislation. As part of our $15
million appropriation that Chairman Show referred to a minute
ago, $500,000 was set aside and expended for a feasibility
study with respect to the feasibility of the enlargement of the
Four Horns Reservoir and the improvement of infrastructure to
deliver water trans-basin from Badger Creek into the Birch
Creek drainage.
That study was done. The conclusion was that the
improvement of Four Horns and the creation of that
infrastructure was both technologically and financially
feasible. So, that part of the expenditures in the bill at
least has been studied and we would be happy to provide
whatever further information we can gather with respect to
those studies for the Committee's consideration.
With respect to Senator Tester's question regarding the
objection as to the open-endedness of certain aspects of the
compact, the inclusion of language regarding the expenditure of
such sums as may be necessary was not, obviously, original to
this compact. That language appears in lots of other Federal
legislation, as I understand it. Those projects that are being
discussed, of course, are projects that are going to be
designed and developed by the Blackfeet Tribe. And so we would
like to have an opportunity to visit with them specifically
about those before we respond more directly to Senator Tester's
question and we will include that in our supplemental
statement.
The Blackfeet Compact is a linchpin of the settlement of
water rights for Native American Tribes that covers virtually
the entire northern half of Montana east of the Rocky
Mountains. The Blackfeet Tribe is the northern headwaters of
the Missouri River. It also provides the headwaters for the
Milk River, which in our written statement we explain begins on
the reservation, goes into Canada.
It is the subject of an international treaty apportionment.
It then comes back into the United States, where its waters are
collected in Fresno Reservoir, which is a Bureau of Reclamation
project, and then distributed to irrigation interests
downstream. One-seventh, I believe, of the storage in Fresno
Reservoir has been allocated by the bureau to the Tribes at
Fort Belknap.
So when you consider that there are four Indian
reservations across northern Montana that touch upon the Milk
River, beginning with Fort Peck in the east and then ending at
the headwaters with the Blackfeet Tribe, you can understand how
complicated and interrelated all these water rights issues are
and how important it is for us to obtain finality with respect
to the issues surrounding the Blackfeet water rights.
We agreed wholeheartedly with Senator Tester's observation
about the importance of economic development on the Indian
reservations in Montana in general, and on the Blackfeet
Reservation specifically. It provides intrinsic benefits to the
people of the Blackfeet Reservation who are among the poorest
residents of the State of Montana.
The State of Montana develops whenever economic development
occurs within our boundary, whether it is on an Indian
reservation or not. Economic development on our reservations is
economic development for the State.
And finally, and most importantly, the uncertainty that
surrounds the unquantified nature of Indian reserve water
rights is eliminated when those rights are compacted and those
compacts are brought to the Congress and ratified by the
Congress.
So the benefits to the State of Montana from this bill,
both economically and in terms of creating certainty for our
water development going forward, are substantial incentives for
the State.
Hopefully, Senator Tester will ask me a question and give
me an opportunity to respond to the United States' concern
regarding the adequacy of the State's cost share. As Mr.
Laverdure said, the United States has objected to the cost
share in all of our compacts that have come before Congress.
Congress has seen fit to overrule all of those objections. And
as I hope to be able to explain, it ought to overrule that
objection here as well.
Thank you, Mr. Chairman. I look forward to questions.
[The prepared statement of Mr. Tweeten follows:]
Prepared Statement of Chris Tweeten, Chairman, Montana Reserved Water
Rights Compact Commission
Chairman Akaka and distinguished members of the Senate Committee on
Indian Affairs, I thank you for the opportunity to provide written
testimony on this important matter. My name is Chris Tweeten, and I am
the Chairman of the Montana Reserved Water Rights Compact Commission. I
am here to testify on behalf of Attorney General Steve Bullock, the
Commission, the State of Montana and Governor Brian Schweitzer, in
support of Senate Bill 399, the Blackfeet Water Rights Settlement Act
of 2011, and to urge your approval of this bill.
The Montana Reserved Water Rights Compact Commission was created by
the Montana legislature in 1979 to negotiate, on behalf of the
Governor, settlements with Indian Tribes and federal agencies claiming
federal reserved water rights in the state of Montana. The Compact
Commission was established as an alternative to litigation as part of
the statewide water adjudication. It is charged with concluding
compacts ``for the equitable division and apportionment of waters
between the state and its people and the several Indian tribes'' and
the Federal Government. (Mont. Code Ann. 85-2-702 (2011)).
Montana has been remarkably successful in resolving both Indian and
federal reserved water rights claims through settlement negotiations.
To date, we have concluded and implemented water rights Compacts with
the tribes of the Fort Peck, Northern Cheyenne, and Rocky Boy's
Reservations, as well as with the United States Forest Service,
National Park Service, Agricultural Research Service, Bureau of Land
Management, and several units of the Fish and Wildlife Service. The
Congress has previously ratified the Northern Cheyenne, Rocky Boy's,
and Crow Compacts. The Northern Cheyenne and Rocky Boy's Compacts are
substantially implemented, and both tribes have seen substantial
economic and social benefits from the completed settlements. We are now
working actively on the implementation of the Crow Nation's settlement,
and we expect similar economic and social benefits to follow
implementation. In addition, we have reached a Compact agreement with
the tribes of the Fort Belknap Reservation that is in preparation for
submission to Congress for ratification. The Blackfeet Tribe-Montana
Compact has already been approved by the Montana legislature (Mont.
Code Ann. 85-20-1501 (2011)), and is now before Congress for
ratification pursuant to S. 399.
Montana has also been extremely proactive in contributing to these
Indian water rights settlements. In the early 1990s, Montana spent
$21.8 million as part of the Northern Cheyenne settlement. The State
spent $550,000 as part of the smaller Rocky Boys settlement, and $15
million as part of the Crow Tribe settlement. The State has also made-
and almost fully funded-commitments for the two settlements that have
been ratified by the Montana legislature but not yet approved by
Congress. The State has committed $17.5 million to the Fort Belknap
settlement, $14.5 million of which has already been appropriated or
authorized: $1 million in cash, $9.5 million in bonding authority and
$4 million of in-kind contributions in the form of modeling and other
hydrology work that has already been implemented. Finally, as will be
discussed in greater detail below, Montana has fully funded its $35
million commitment to the Blackfeet water rights settlement.
Concurrent with the initiation of the Montana general stream
adjudication and the establishment of the Compact Commission in 1979,
the United States filed suit in federal court to quantify the rights of
tribes within the State, including the Blackfeet Tribe. Those federal
cases have been stayed pending the adjudication of tribal water rights
in state court. Should the negotiated settlement of the Blackfeet
Tribe's water right claims fail to be approved, then the claims of the
Blackfeet Tribe will be litigated before the Montana Water Court. The
Blackfeet Tribe has always had the senior water rights in the basins
that are the subject of the settlement embodied in S. 399_this Compact
does not create those rights, it simply quantifies them.
The Blackfeet Indian Reservation is located in north-central
Montana, bounded by Glacier National Park and the Lewis and Clark
National Forest to the west, Canada to the north and prairies and
farmland to the east and south. The Reservation encompasses 1.5 million
acres (roughly one and a half times the size of Rhode Island), making
it one of the largest in the United States. The Reservation is home to
approximately half of the 16,000 enrolled Tribal members. Unemployment
on the Reservation is estimated at being up to 70 percent. The region
is arid, with approximately 13 inches of average annual precipitation.
Ranching and farming are the major uses of land on the Reservation,
with the principal crops being wheat, barley and hay.
The provisions in S. 399 will recognize and quantify water rights
as well as off-Reservation storage allocations that will allow the
Blackfeet Tribe to provide for its growing population and to develop
its natural resources. The State of Montana and the Blackfeet Tribal
Business Council agree that this is a fair and equitable settlement
that will enhance the ability of the Tribe to develop a productive and
sustainable homeland for the Blackfeet People. We appreciate the
efforts of the Tribe and the Federal Government to work with the State
to forge this agreement, and, in doing so, to listen to and address the
concerns of non-Indian water users both on and off the Reservation.
This settlement is the product of over two decades of negotiations
among the parties, which included an intensive process of public
involvement.
The primary sources of water on the Blackfeet Indian Reservation
are the St. Mary River, the Milk River, the Two Medicine River, and
Badger, Birch and Cut Bank Creeks. (See Attachment A.) Collectively,
these watercourses discharge approximately 1.5 million acre-feet per
year (AFY) of water, with the St. Mary River alone accounting for
roughly one-third of that total. The St. Mary River originates in the
mountains of Glacier National Park and flows north and east across the
Reservation before crossing into Canada. The Two Medicine River and
Badger and Birch Creeks originate in the mountains to the west of the
Reservation and flow east, ultimately uniting to form the Marias River
just east of the Reservation. Birch Creek delineates the Reservation's
southern boundary. The Milk River and Cut Bank Creek are prairie
streams. The Milk River flows from the Reservation northeast into
Canada before re-entering the United States just west of Havre,
Montana, while Cut Bank Creek flows south and east until it joins the
Marias River. The St. Mary and Milk Rivers are both subject to an
apportionment agreed to between the United States and Canada in the
1909 Boundary Waters Treaty (BWT), and implemented by a 1921 Order of
the International Joint Commission that was established by the BWT.
Indian water rights were not considered during the negotiation or
implementation of the BWT. The Bureau of Indian Affairs (BIA) manages
the Blackfeet Irrigation Project on the Reservation. The Blackfeet
Irrigation Project serves land in the Birch Creek, Badger Creek, Two
Medicine River and Cut Bank Creek drainages.
The Blackfeet Tribal Water Right is quantified separately for each
drainage basin within the Reservation. The Tribal Water Right for the
St. Mary River drainage within the Reservation is 50,000 AFY, not
including the flows of Lee and Willow Creeks. It is worth noting that
this quantified amount of 50,000 AFY is almost exactly what the United
States claimed for the Tribe in its November 14, 1997, More Definite
Statement of Claim filed in the Montana Water Court. * The Tribe's
water right is subject to the limitation that its exercise may not
adversely affect the water rights held by the Bureau of Reclamation's
Milk River Project (MRP). The MRP diverts almost the entire United
States' BWT share of the St. Mary River into the Milk River for use by
MRP irrigators in northern Montana approximately 200 miles downstream
of the Reservation. The balance between tribal rights and MRP needs,
and the protection of these off-Reservation water users, was a critical
aspect of the negotiations of this settlement.
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* A copy of the information referred to has been retained in
Committee files.
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In 1902, when Congress authorized, and the Bureau of Reclamation
began to develop, the MRP, insufficient attention was given to the
senior water rights of the Blackfeet Tribe. The Tribe has received
neither benefits from nor compensation for the St. Mary River water
used by the MRP, which can account for up to 90 percent of the MRP's
water supply in dry years. At the same time, water users in the Bureau
of Reclamation's MRP have for generations depended on the St. Mary
River water delivered to Project facilities for their livelihoods. This
settlement addresses these two factors by providing for an interim
allocation to the Tribe of 50,000 AFY of St. Mary River Water stored in
Sherburne Reservoir, which is located contiguous to the Reservation and
just inside Glacier National Park. That water is to be leased by the
Tribe back to the Bureau of Reclamation for use by the MRP, at a rate
to be negotiated between the Tribe and the United States, while studies
are conducted to identify a permanent solution capable of satisfying
the Tribe's water rights while keeping the MRP whole. The Tribe is also
entitled to groundwater in the St. Mary drainage that is not subject to
the BWT's apportionment, as well as the entire United States' share
under the BWT of the natural flow of Lee and Willow Creeks (which are
located in the St. Mary River drainage), except for the water in those
streams that is subject to existing water rights under state law. The
Tribe has agreed to afford protections for those existing water rights
under state law through the inclusion of a no-call provision.
The Blackfeet Tribal Water Right in the Milk River is quantified as
the entire United States' share under the BWT of the Milk River on the
Reservation, as well as all non-BWT groundwater in the Milk River
drainage on the Reservation, except for the water that is subject to
existing water rights under state law. In addition, the Tribe has
agreed to afford protections for those existing water rights under
state law, including a no-call provision for uses other than
irrigation, and a 10 year phase-in for new development of tribal
irrigation. The tribes of the Ft. Belknap Indian Community also claim
water rights in the Milk River downstream of the point at which the
Milk River re-enters the United States from Canada. Staff for the
Compact Commission has evaluated the potential of competing demands on
the Milk River between the Blackfeet Tribe and the Ft. Belknap Indian
Community and has concluded that the possibility of actual conflict is,
as a matter of hydrology, exceedingly remote. Nevertheless, the
Blackfeet Tribe and the Ft. Belknap Indian Community have negotiated a
memorandum of understanding over Milk River water uses pursuant to
their respective settlements, which contemplates that the Secretary of
the Interior shall, with the consent of the tribal governments,
identify and implement alternatives to resolve any such conflict that
might someday arise. This provision is included in S. 399 as well.
The Blackfeet Tribal Water Right in Cut Bank Creek is quantified as
all of the water (both surface and underground) in that drainage within
the Reservation, except for the water that is subject to existing water
rights under state law. The Tribe has also agreed to afford existing
water rights under state law in the Cut Bank Creek drainage the same
protections as are provided for in the Milk River drainage. The
quantifications of the Tribal Water Right in the Two Medicine River and
Badger Creek drainages are done in the same fashion as the Cut Bank
Creek quantification, though the protections accorded by the Tribe to
existing water rights under state law in these two drainages, as on the
streams in the St. Mary drainage, extend the no-call protection to all
existing water rights under state law, not just non-irrigation water
rights.
The Tribe's water rights in Birch Creek were judicially recognized
as early as the 1908 Ninth Circuit Court of Appeals decision in the
Conrad Investment Company case (161 F. 829 (9th Cir.1908)), which was
decided very shortly after the United States Supreme Court ruled in the
seminal Indian water rights case Winters v. United States (207 U.S. 564
(1908)). The Blackfeet Irrigation Project diverts water from Birch
Creek for project water users on the Reservation, but historically the
Tribe has taken far less water from Birch Creek than it was legally
entitled to take. There is also extensive non-Tribal water resource
development immediately to the south of Birch Creek, where roughly
80,000 irrigated acres, as well as several municipalities, are served
by the facilities of the Pondera County Canal and Reservoir Company
(PCCRC), a privately owned irrigation company. PCCRC also operates
Swift Dam, which abuts the southwest corner of the Reservation. During
the irrigation season, PCCRC's use diverts nearly all of the water
available in Birch Creek. Since the unconstrained development of the
Tribe's Birch Creek water right recognized in this settlement has the
potential to cause significant impacts to existing users, the balance
between tribal and off-Reservation water use from Birch Creek was a
major component of the negotiations.
The settlement quantifies a substantial Tribal Water Right in Birch
Creek. The quantification consists of a senior irrigation right of 100
cubic feet per second (cfs) of Birch Creek natural flow, a seasonably
variable in-stream flow right (25 cfs from October 1 to March 31, and
15 cfs from April 1 to September 30), and all groundwater in the Birch
Creek drainage that is not hydrologically connected to Birch Creek. In
addition, the Tribe is entitled to the remainder of the water in Birch
Creek after full satisfaction of existing uses under state law. As part
of the protection of existing water rights under state law for which
the State bargained, the Tribe agreed in the Compact to limit the
development of its Birch Creek irrigation right to the Upper Birch
Creek Drainage. There are also very specific administration provisions
in the Compact concerning the manner in which the Tribe may change the
use of its Birch Creek irrigation right to other beneficial purposes.
In addition, a Birch Creek Management Plan has been appended to the
Compact, which commits the Tribe, the BIA and the operators at PCCRC to
meet prior to each irrigation season to develop management plans to
maximize the beneficial use of Birch Creek for all water users, and to
adapt those plans as conditions warrant during the course of each
irrigation season. *
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* A copy of the information referred to has been retained in
Committee files.
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When the Compact Commission initially presented this proposed
settlement framework at public meetings south of the Reservation, the
response was overwhelmingly negative, as stakeholders believed that the
risks posed to their livelihoods by full tribal development of its
Birch Creek water rights were insufficiently mitigated. Consequently,
the parties returned to the negotiating table and entered into an
Agreement Regarding Birch Creek Water Use (the Birch Creek Agreement)
on January 31, 2008. The Birch Creek Agreement * is a critical
component of the overall settlement. Under the Birch Creek Agreement,
the State agreed to put $14.5 million into an escrow fund payable to
the Tribe after final approval of the Compact by the Montana Water
Court. (In anticipation of settlement, the 2007 session of the Montana
legislature fully funded this amount.) In the interim, the Tribe is
entitled to receive the interest from that fund, up to $650,000 per
year. In exchange for these payments, the Tribe agreed to defer any
development of its Birch Creek water rights beyond their current use
for a period of 15 years from the effective date of the Birch Creek
Agreement. In addition, the Tribe agreed to prioritize in this
settlement authorization and funding for the Four Horns Project.
The Four Horns Project involves the repair and improvement of the
Four Horns Dam and Reservoir and associated infrastructure, features of
the Blackfeet Irrigation Project located on the Reservation in the
Badger Creek drainage. Preliminary engineering studies, funded by a
$500,000 appropriation from the State legislature, indicate that the
storage capacity of the reservoir can be substantially increased in a
cost effective fashion, and that a delivery system can be constructed
economically to move excess water from the reservoir across to Birch
Creek for the benefit of all Birch Creek water users. The studies
suggest that this can be accomplished without reducing the access of
Badger Creek water users, including those within the Blackfeet
Irrigation Project, to the quantity of water currently stored in Four
Horns that they use. The State has committed to spend $20 million
toward the construction of this Four Horns Project, a commitment which
has been fully funded by the Montana legislature in the form of a $4
million cash appropriation in 2009, and $16 million of bonding
authority approved by the Legislature during its 2011 session. These
monies, coupled with the $14.5 million that the State has already put
in escrow for the Tribe as part of the Birch Creek agreement comprise
the $35 million State contribution to this settlement.
One of the essential mitigation benefits secured by the State in
exchange for the financial and other commitments made in the Birch
Creek Agreement is the Tribe's agreement to deliver 15,000 AFY of water
from Four Horns to Birch Creek, for the benefit of Birch Creek water
users, from the time construction is completed on the facilities
necessary to make such deliveries possible until a date 25 years from
the effective date of the Birch Creek Agreement. This provision of
supplemental water is expected to offset the impacts of the Tribe's
development of its Birch Creek water rights after the expiration of the
15 year deferral period. In addition, the existence of infrastructure
capable of bringing Four Horns water across to Birch Creek provides the
Tribe with a potential market for surplus water from Four Horns into
the future. With the Birch Creek Agreement in place, PCCRC and other
off-Reservation stakeholders supported ratification of the Compact by
the Montana legislature in 2009.
The settlement also includes provisions allowing the Tribe to lease
to water users off the Reservation those portions of its water rights
that it has stored or directly used. The Tribe must offer water users
on Birch Creek, Cut Bank Creek, the Milk River and the St. Mary River,
respectively, a right of first refusal on water leased from those
drainages to users downstream. The Tribe may lease water from Birch
Creek, Cut Bank Creek and the Milk River, all of which are within the
Missouri River Basin, but only for use at other locations within the
Missouri River Basin.
In addition, under S. 399, the United States will allocate to the
Tribe a portion of the water in the Bureau of Reclamation's storage
facility on Lake Elwell, located along the Marias River in central
Montana. The bill provides for the Tribe's allocation to be all water
not yet allocated from that storage facility, less the quantity of
water agreed to by the Tribe and the Ft. Belknap Indian Community that
may be allocated to Ft. Belknap in the future pursuant to its own water
rights settlement. The bill further provides that nothing in this
allocation to the Blackfeet Tribe requires the United States to provide
any facility for the transportation of the Tribe's allocation from Lake
Elwell to any point, and also that nothing in this allocation to the
Blackfeet Tribe diminishes the allocation from Lake Elwell that was
made to the Chippewa Cree Tribe of the Rocky Boys Reservation as part
of the Rocky Boys water rights settlement which was ratified by
Congress in 1999. S. 399 authorizes the Blackfeet Tribe to lease water
from its Lake Elwell allocation so long as it is for use within the
Missouri River Basin.
The Blackfeet water rights settlement also closes all of the on-
Reservation basins to new appropriation under Montana law. In all
cases, both under Tribal Code and State law, the development of new
small domestic and stock uses are not precluded by the basin closures.
For all on-Reservation basins, water rights under state law will become
part of the Tribal Water Right if the Tribe reacquires the land and the
appurtenant water right. This structure will allow the Tribe to
reconsolidate both land and water resources within the Reservation.
The Tribe will administer the Tribal Water Right. The State will
administer water rights recognized under state law. The Blackfeet
Irrigation Project will use part of the Tribal Water Right and will
continue to be administered by the BIA under applicable federal law.
The Blackfeet Tribe will enact a Tribal Water Code to provide for
administration of the Tribal Water Right in conformance with the
Compact, this Act, and applicable federal law. In the event a dispute
arises, the Compact provides for an initial effort between the water
resources departments of the State and the Tribe to resolve the
dispute. Should the informal process fail to reach resolution, the
Compact establishes a Compact Board to hear disputes. Decisions of the
Compact Board may be appealed to a court of competent jurisdiction.
The Compact will recognize and protect the Blackfeet Tribe's water
rights and provides for the improvement of agricultural water systems
and tribal economic development. The Compact promotes development for
the benefit of the Blackfeet Nation while protecting other water uses.
The Compact is the full and final settlement of all of the Tribe's
water rights claims within the Blackfeet Reservation and the Tribe
waives any claims to water rights not contained or reserved in the
Compact. We urge your support in ratifying the Compact by passage of
this Act.
Supplemental Prepared Statement of Chris Tweeten
Chairman Akaka and distinguished members of the Senate Committee on
Indian Affairs, I thank you for the opportunity to provide additional
written testimony on this important matter.
This testimony is in direct response to several points raised in
both the written and oral testimony presented to you by the United
States at the Hearing on S. 399, the Blackfeet Water Rights Settlement
Act of 2011, that this Committee held on October 20, 2011.
In both its written and oral testimony, the United States attacked
the State of Montana's contribution to this settlement as inadequate.
The State takes great issue with this characterization. The $35 million
that the State has committed to this settlement and that, in a
demonstration of our commitment to the success of this settlement, has
already been fully funded, represents one of the largest contributions
a state has ever made to any Indian water rights settlement. Indeed
there have been many water settlements that have been enacted with no
state contribution whatsoever. Montana's contribution to this
settlement is also the largest contribution the State has made to any
Montana settlement. As a point of contrast, the State contributed $15
million to the Crow Tribe water rights settlement, a settlement that
this Administration supported before the Congress less than a year ago,
and which the Congress enacted last December.
Part of the United States' position on state contribution appears
to stem from its view of the Four Horns rehabilitation project
contemplated by the settlement as being ``for the benefit of the
community south of the reservation, instead of the Blackfeet
directly,'' as Principal Deputy Assistant Secretary for Indian Affairs
Donald Laverdure stated at the hearing on October 20, 2011. But this
statement, the substance of which is repeated in the United States'
written testimony, reflects a fundamental mischaracterization of the
Four Horns project, and of the structure of the settlement itself.
According to analysis conducted by the Tribe's technical consultant
and independently evaluated by the Montana Reserved Water Rights
Compact Commission's technical staff, the Four Horns Project will
capture roughly 50,000 acre-feet per year more water than the dam,
which the BIA has allowed to fall into a state of disrepair, can store.
The Project will also address some significant sedimentation and other
repair issues that dramatically limit the utility of the infrastructure
at present. The majority of the water made available by the Four Horns
Project will provide a firm source of supply for the Badger-Fisher Unit
of the Blackfeet Irrigation Project, a Bureau of Indians Affairs
project located on the Reservation.
According to the same analysis, this more reliable supply has the
capacity to increase the productivity of the lands served by that unit
of the Blackfeet Irrigation Project, and thus the value of the crops
grown, by nearly $10 million per year. Preliminary engineering
analysis, funded by a $500,000 contribution from the State, has
indicated that this enlargement is a feasible and economically
reasonable project. Moreover, the Tribe's technical consultant has
determined that the incremental cost of engineering the Four Horns
Project to be capable of delivering water to Birch Creek is roughly $25
million. The State intends to contribute $20 million to the design and
construction of this infrastructure.
The State's contribution reflects more than a fair amount for the
benefits that will be received by non-Indians from this infrastructure.
Pursuant to the Birch Creek Agreement, the substance of and context for
which are addressed in my written testimony submitted to the Committee
in advance of the Hearing on October 20, 2011, the Tribe has agreed to
defer development of new uses of its Birch Creek water right for a
period of 15 years, and to provide 15,000 acre-feet per year of water
to non-Indian water users on Birch Creek for a period of 10 years, in
exchange for a payment from the State of $14.5 million. The tangible
benefit provided by the State to the Tribe concerning the use of its
water rights. At the end of the 25 year period covered by the Birch
Creek Agreement, the Tribe has no further obligation to supply water
for the benefit of non-Indians. But the infrastructure to bring water
from Four Horns to Birch Creek will remain under the Tribe's control
and is available for its benefit should it choose to lease some portion
of its water rights to Birch Creek water users or others.
The economy on and around the Blackfeet Reservation is such that
Birch Creek water users constitute perhaps the most optimal market for
the Tribe to lease its water. As Mr. Laverdure noted in his testimony
concerning S. 134, the Mescalero Apache Tribe Leasing Authorization
Act, heard by this Committee at the same hearing that considered the
Blackfeet Water Rights Settlement Act, leasing is an important
mechanism by which a tribe can receive economic benefits from a water
rights settlement. The State's contribution of roughly 80 percent of
the cost of the infrastructure to bring water from Four Horns to Birch
Creek is thus of direct and significant benefit to the Blackfeet Tribe.
Thus, contrary to the misperception of the United States, the State
contribution directly benefits the Blackfeet Tribe. By benefitting the
Tribe, it also protects the non-Indian water users. This is exactly the
sort of win-win arrangement that underpins successful settlements.
In its written testimony, the United States also asserts that the
State contribution is inadequate because it does not fully account for
the ``[a]dditional benefits to State users in the Compact arise from
the Tribe's agreement to protect junior state water rights holders,
especially in the St. Mary and Milk River basins.'' This statement
completely ignores the fact that it is the United States itself
(through the water rights claims filed by the Bureau of Reclamation for
its Milk River Project) which is overwhelmingly the largest ``junior
state water rights holder'' in those two basins. It is wholly
inappropriate for the United States to claim that the protection of its
own water rights is a ``non-federal'' benefit. Montana believes that
the United States bears significant responsibility for those costs, and
likewise for the benefits achieved in the Blackfeet water rights
settlement for protecting that project's water rights--particularly
where it is the United States that concomitantly developed that Project
over a century ago while failing to safeguard the Tribe's water rights.
The United States has also expressed concern with the ``broad and
uncertain aspects'' of the provisions in S. 399 regarding the Tribe's
ability to lease its water rights. It is difficult to see what is
uncertain about the leasing provisions. Section 7(f) of S. 399 provides
that the Tribe, consistent with expressed United States policy about
water leasing, will have the right to lease portions of its water right
``in accordance with article IV.D.2 of the Compact for use off the
Reservation within the Missouri River Basin, subject to the tribal
water code and the terms and conditions of the Compact and applicable
Federal law.'' Article IV.D.2 of the Compact provides a lengthy
explanation (the provision runs three full pages) of both the processes
and the conditions whereby the Tribe may lease its water rights. The
United States ought to be fully familiar with these provisions, as
members of the Blackfeet Federal Negotiating Team participated in
scores of public and staff-level meetings and conference calls,
including several marathon drafting sessions where all of the Compact
language was discussed in extreme detail. Thus it is at best indicative
of poor communication within the Department of the Interior and at
worst highly disingenuous for the United States to raise before this
Committee vague and unsubstantiated ``concerns'' on an issue of this
sort. If the United States has difficulty with specific terms with the
language in the Compact, that would obviously be important information
to have. The generalized nature of its written testimony is unhelpful
if we are to be able meaningfully to address the United States'
concerns.
The State of Montana, the Blackfeet Tribe and the United States
have been working on reaching this settlement for fully two decades. It
is disappointing for the United States, in its testimony before this
Committee, to act as though it is a latecomer to the settlement
process. Nevertheless, the State of Montana is heartened by the United
States' commitment to this Committee that it intends to work diligently
on this settlement and to put forward its own proposals for how it
would like to resolve the issues it has raised. The State is eager to
receive those proposals, and to do all it can to ensure the successful
ratification of the Blackfeet Water Right Settlement Act of 2011.
The Chairman. Thank you very much, Mr. Tweeten, for your
statement.
Mr. Rex Lee Jim, please proceed with your testimony.
STATEMENT OF HON. REX LEE JIM, VICE PRESIDENT, NAVAJO NATION
Mr. Jim. Good afternoon, Chairman Akaka and honorable
Members of the Committee. Senator Cantwell, Senator Tester, and
Senator Udall, thank you for your time.
My name is Rex Lee Jim. I am the Vice President of the
Navajo Nation. I am here before you today to discuss the Navajo
Nation's position concerning potential changes to the Utah
Navajo Trust Fund pursuant to S. 1327. I will quickly summarize
the Navajo Nation's position.
Through oil and gas revenues, the Navajo Nation Trust Fund
provides much-needed funding for Utah Navajos. As a result of
negotiation between the Navajo Nation, the State of Utah and
the Federal Government, 37.5 percent of royalties received
through oil and gas development go to the State of Utah to be
administered for the benefit of Utah Navajos. The UNTF is
funded with royalties from Navajo Nation oil and gas leases on
Navajo trust lands. Those funds come first to the Navajo Nation
and then are paid out of the trust fund for the Navajo Nation's
general funds account.
Utah passed legislation in 2008 that effectively ends both
disbursements from the UNTF and ends the trust fund
administration. In finding a new trustee, Congress should focus
on finding a trustee capable of managing and growing the fund
to ensure the fund's long-term survival for the ongoing benefit
of Utah Navajos. Congress should not appoint a trustee without
a record of such management and without independent capital or
assets.
The Navajo Nation believes that, consistent with principles
of self-determination, the Navajo Nation should be appointed as
the new trustee for the Utah Navajo Trust Fund. The Navajo
Nation has a successful record of managing and increasing its
own trust fund; has a highly developed legal system that
respects the rule of law; and has a well-established budgeting
and auditing process for the appropriation of funds.
Finally, the Navajo Nation is concerned about how the
process of developing legislation and assigning a new trustee
will take place. In a process that so greatly affects the vital
interests of the Navajo Nation and Utah Navajos, Congress needs
to respect our sovereign status and our government-to-
government relationship.
In spite of the Navajo Nation's considerable interest in
the future of the Navajo Trust Fund, including who will be
designated as the new trustee, S. 1327 was introduced by the
Honorable Senator Hatch without adequate consultation by the
Senator or his staff with the Navajo Nation government or the
beneficiaries. In the previous 111th Congress, Senator Bennett
from Utah also did not consult the Navajo Nation when he
introduced a near carbon copy of this legislation.
With me today are Jonathan Nez, the Council Delegate
representing the Utah Chapters of Navajo Mountain, an objector
whose statement I also would like to submit for the record,
with your permission of course; John Billie, President of Aneth
Chapter; Linda Brown, Secretary of the Aneth Chapter; and
Andrew Tso, a beneficiary who lives in the Aneth Extension, and
who all also oppose this legislation drafted and introduced
without their knowledge or consent.
Designating the Navajo Nation as trustee of the UNTF is the
only position consistent with the policy established by the
United States Congress to recognize the sovereignty of the
Navajo Nation and the right of the Navajo Nation to self-
determination in matters which concern the nation's land,
resources and citizens.
The Navajo Nation is committed to ensuring that the UNTF
continues to grow and benefit current and future generations.
In developing parameters of the trust, the Navajo Nation will
consult closely with the local Utah Navajo community,
considering first and foremost their interests and the critical
importance of local control. Moreover, we Navajos will resolve
any conflicts internally by talking things out in conformity
with our culture and laws.
S. 1327 was introduced without adequate consultation with
the Navajo Nation and government or the beneficiaries and would
give the important Federal trust responsibility over the
nation's resources and citizens to an unproven nonprofit
corporation. S. 1327 does not respect the Navajo Nation's
sovereignty and right to self-determination, and this Committee
should oppose it.
Chairman Akaka and honorable Members of the Committee, on
behalf of the Navajo Nation, I wish to express my appreciation
for this opportunity to provide testimony to the Senate
Committee on Indian Affairs on a government-to-government
basis.
Thank you and I look forward to your questions.
[The prepared statement of Mr. Jim follows:]
Prepared Statement of Hon. Rex Lee Jim, Vice President, Navajo Nation
Good Morning Chairman Akaka, Honorable Members of the Committee on
Indian Affairs. I am Rex Lee Jim, Vice President of the Navajo Nation.
I am here to provide testimony in regard to the future of the Utah
Navajo Trust Fund (UNTF) and Senate Bill 1327 introduced by the
Honorable Senator Orrin Hatch.
As the Committee knows, the State of Utah has declared its desire
to withdraw as trustee of the UNTF. The State of Utah passed
legislation in 2008 that effectively ends most disbursements from the
UNTF, ends the trust fund administration, and moves the trust assets to
a new fund pending selection of a new trustee. The Utah legislation
specifically calls on Congress to appoint a new trustee for the UNTF.
The Navajo Nation no longer has a role in the planning of expenditures
from the UNTF, as is mandated under the 1933 Act. Consistent with
federal policy toward Indian tribes, the Navajo Nation is requesting
that Congress designate the Navajo Nation as the new trustee of the
UNTF.
Please be aware that the Navajo Nation has many elected officials
at various levels of government, all of whom have individual agendas
that may or may not coincide with the broader goals and policies of the
Navajo Nation. However, the Navajo Nation has its own law that governs
who may speak on behalf of the Navajo Nation and our People. Pursuant
to Navajo Nation law, only the testimony today is representative of the
Navajo Nation in this matter. See Exhibit A, Navajo Nation Position
Statement.
History of Utah Navajo Lands and UNTF
The Utah portion of the Navajo Nation has a complex history of
additions, withdrawals, restorations and exchanges. The United States
added the lands in the Utah Territory that lay south of the San Juan
and Colorado rivers by Executive Order on May 17, 1884. Navajo People
have a historic tie to this area and have continuously occupied this
land since long before the captivity of Navajos in 1864. On November
19, 1892, four years before Utah was awarded statehood, then President
Benjamin Harrison, by executive order, took back those lands in the
Utah portion of the Navajo Nation which lay west of the 110 parallel
(what is called ``the Paiute Strip''), and placed those lands back in
the public domain. Navajo lands in the Utah Territory which lay east of
the 110 parallel remained part of the Navajo Nation. On May 15, 1905,
by executive order, President Theodore Roosevelt added the Aneth area
in Utah to the Navajo Nation. In 1908, the Department of the Interior
made an administrative withdrawal of the Paiute Strip from the federal
public domain, designating those lands again for exclusive use by the
Navajo. In 1922, the Department of the Interior again took the Paiute
Strip away from the Navajo, and put the lands back into the public
domain. The Paiute Strip was again withdrawn from the public domain in
1929.
The federal legislation that created the UNTF was the result of
negotiation and agreement between the Navajo Nation, the State of Utah,
and the United States Government. In 1930 and 1931, the Navajo Tribal
Council asked the Commissioner of Indian Affairs to negotiate on its
behalf to permanently restore the Paiute Strip to the Navajo Nation,
based on the previous set asides of this area by the federal government
and on historic Navajo occupation. On July 7 and 8, 1932, at its annual
meeting in Fort Wingate, the Navajo Nation Council gave its support to
proposed federal legislation which would restore the Paiute Strip to
the Navajo Nation and to add lands to the Aneth area of the Nation,
between Montezuma Creek and the Colorado border (what is referred to as
the Aneth Extension).
After Utah citizens voiced opposition to the proposed addition of
the Aneth Extension and the Paiute Strip to the Navajo Nation, the
Commissioner of Indian Affairs negotiated on behalf of the Navajo
Nation with a Utah committee made up of San Juan County representatives
to satisfy their concerns. In order to gain the Utah committees'
support for the 1933 Act, the Commissioner of Indian Affairs made
several concessions to the Utah committee. These concessions included
prohibitions on further Native American homesteads or allotments in San
Juan County, fencing of Native allotments outside the new Navajo Nation
boundaries, fencing of the Aneth Extension's northern boundary, and
agreement that state game laws would apply to Navajos hunting outside
the Nation's boundaries. The proposed legislation also included an
unusual provision that in the event oil and gas was discovered in the
Aneth Extension and the Paiute Strip, instead of all net oil and gas
royalties going to the federal government to administer on behalf of
Navajo citizens, 37\1/2\ percent of those royalties would instead go to
the State of Utah to be administered for ``the tuition of Indian
children in white schools and/or in the building of roads across [the
newly added lands], or for the benefit of the Indians residing
therein.'' A final concession to Utah in the proposed legislation
provided that Utah could exchange any state school trust lands inside
the Aneth Extension and the Paiute Strip for equivalent federal lands,
and that any fees or commissions for the exchange would be waived.
Congress enacted the legislation Congress in 1933, as Pub. L. No. 403,
47 Stat. 1418 (1933) (``1933 Act'').
In 1958, by Act of Congress, the Navajo Nation was further expanded
within San Juan County. Under the 1958 Act, the Navajo Nation and the
United States government exchanged Navajo Nation lands at Glen Canyon
Dam and Page, Arizona for federal lands northwest of and adjacent to
the Aneth Extension, including the McCracken Mesa area. In 1949 and
1998, with the Navajo Nation as party to the negotiations, state school
trust lands within the Navajo Nation were made Navajo Trust Lands in
exchange for other federal lands given to Utah. Currently, negotiations
are under way to exchange school trust lands in the Aneth Extension
with other federal lands under authority of the 1933 Act.
In 1968, Congress amended the 1933 Act, redefined the purposes of
the UNTF, and expanded its class of beneficiaries to include all
Navajos in San Juan County. The amended legislation provided that trust
monies can be used ``for the health, education and general welfare of
the Navajo's residing in San Juan County.'' The 1968 Amendments also
provided that trust funds could be used for projects off the Navajo
Nation provided that the ``benefits'' were proportional to the
expenditures from the trust. This vague term ``proportional'' provided
one of the main vehicles for mismanagement of the trust monies.
The Navajo Nation Has Sovereignty Over Its Lands, Resources and
Citizens
The Navajo Nation is a sovereign Native Nation located in the
southwestern United States with territory in the States of New Mexico,
Arizona and Utah. Numerous Executive Orders, Acts of Congress and
Treaties have guaranteed the rights of our Nation to the surface use,
and the subsurface mineral resources, of much of our traditional lands.
For over forty years, the Navajo Nation has enjoyed a government-to-
government relationship with the United States, respectful of the
Nation's sovereignty and self-determination in its own affairs, and
free of the policies of paternalism which have blemished the past. It
remains critical to the sovereignty and self-determination of the
Navajo Nation that the United States respect our government-
togovernment relationship in deciding matters that uniquely concern and
affect Navajo lands, resources and citizens. It is also crucial to the
integrity of our Nation and its political institutions that passage of
any federal legislation directly affecting our interests is done with
the consent of the Navajo Nation government.
The Utah Navajo Trust Fund is capitalized completely by royalties
from Navajo Nation mineral leases on Navajo Nation lands in Utah which
were added to the Navajo reservation in 1933. Since the 1970s, the
Navajo Nation has been the fiscal agent for all UNTF royalties,
distributing money every year to the State of Utah out of the Nation's
general funds, for investment in the UNTF. The beneficiaries of the
UNTF are those Navajo citizens residing in San Juan County, Utah. Only
members of the Navajo Nation are eligible beneficiaries of the UNTF.
The future of the UNTF is clearly a Navajo Nation issue and Congress
should respect our sovereignty in this matter.
The Navajo Nation Was Never Consulted and Is Adamantly Opposed to
Senate Bill 1327
In spite of the Navajo Nation's considerable interest in the future
of the Utah Navajo Trust Fund, including who will be designated as the
new trustee, Senate Bill 1327 was introduced by the Honorable Senator
Hatch without adequate consultation by the Senator or his staff with
the Navajo Nation government or the beneficiaries. See Exhibits A and
B, Aneth Chapter and Red Mesa Resolutions. In the previous 111th
Congress, Senator Bennett from Utah also did not consult the Navajo
Nation before submitting his bill.
The Navajo Nation is adamantly opposed to Senate Bill 1327. Senate
Bill 1327 would give the federal trust responsibility for royalties
from Navajo Nation mineral leases to a nonprofit corporation, the Utah
Dineh Corporation. Senate Bill 1327 would give control over
approximately thirty (30) million dollars in trust funds and assets, as
well as an additional 6 to 8 million dollars a year of royalties from
Navajo mineral leases, to a corporation with zero experience as a
trustee, and absolutely no outside capital. In the event of any breach
of trust by the Utah Dineh Corporation, the beneficiaries would have no
remedy against the corporation. Senate Bill 1327 fails to ensure any
accountability or transparency in the use of trust fund monies and
fails to ensure that the trust will exist into perpetuity for the
benefit of future generations of Navajo beneficiaries. Senate Bill 1327
broadly expands the original purposes of the trust and could lead to
misuse and misappropriation of trust funds. Senate Bill 1327 would
violate the common law of trusts by designating a handful of
beneficiaries as the trustee and causing countless conflicts of
interest.
On the other hand, the Navajo Nation would be an accountable,
responsible and transparent trustee of the Utah Navajo Trust Fund. The
Navajo Nation has been the fiscal agent for royalties of the UNTF for
over 30 years. The Navajo Nation has a successful record of managing,
investing, and increasing the value of multiple Navajo Nation trust
accounts, including many multi-million dollar accounts. The Navajo
Nation has a well established budgeting and auditing process for the
appropriation of funds. Importantly, unlike the Utah Dineh Corporation,
the Navajo Nation has sufficient outside assets to be accountable to
the beneficiaries and can be sued in Navajo Nation Court with consent
of the Navajo Nation Council. Our vision includes further consultation
with the local Navajo Chapters and Utah Navajo communities in
developing the parameters of the trust.
The Oil and gas revenue for the trust will not last forever. The
trust must be grown and managed successfully not only to pay for needed
expenditures in the short term, but for the benefit of future
generations of Navajos in San Juan County as well. The trust also
should be managed to ensure its survival in perpetuity. The Navajo
Nation is committed to ensuring that the UNTF continues to grow and
benefit current and future generations of Utah Navajos and the Navajo
Nation should be made the new trustee. Senate Bill 1327 does not ensure
a trust corpus in perpetuity.
Conclusion
Designating the Navajo Nation as trustee of the UNTF is the only
position consistent with the policy established by the United States
Congress to recognize the sovereignty of the Navajo Nation and the
right of the Navajo Nation to self-determination in matters which
concern the Nation's lands, resources and citizens. Senate Bill 1327
was introduced without adequate consultation with the Navajo Nation
government or the beneficiaries and would give the important federal
trust responsibility over the Nation's resources and citizens to a non-
profit corporation. Senate Bill 1327 does not respect the Navajo
Nation's sovereignty and right to self-determination and this Committee
should oppose it.
I appreciate this opportunity to provide testimony to the Senate
Committee on Indian Affairs. The Navajo Nation looks forward to working
with the Committee and the Utah delegation in a government-to-
government relationship as reasonable legislation is introduced to
secure the future of the Utah Navajo Trust Fund. Thank you.
Attachments
The Chairman. Thank you very much, Vice President Jim, for
your testimony.
Commissioner Maryboy, please proceed.
STATEMENT OF HON. KENNETH MARYBOY, SAN JUAN COUNTY COMMISSIONER
Mr. Maryboy. Greetings, good afternoon, aloha, Mr. Akaka.
Happy birthday, Chairman, a little bit late.
Senators Cantwell, Udall, good afternoon.
My name is Kenneth Maryboy. It is an honor to come before
you the second time. I am on the Navajo Nation Counsel. This is
going to be my fourth and last term on the Navajo Nation
Council and I am one of the lucky 24 to go back on the Navajo
Nation Council. I am in a second term as a San Juan County
Commissioner for the San Juan County, Utah.
I represent 10,500 Navajos in the State of Utah, and of
course, 300,000 Navajo Nation in Arizona, New Mexico and Utah,
as well as the Chairman of the five Tribes in Utah, which is
the Paiute, Shoshone, Goshu, Ute, and the Navajo.
So with that, it is truly and honor to be able to address
you this afternoon regarding the Senate bill 1327. This
Committee is important to the Dineh. We are grateful for your
insight, of your willingness to listen to the people. We are
specifically grateful for the opportunity to shed light on some
of the questions surrounding the Utah Dineh Corporation.
The beneficiary of Utah Trust Fund, the certain state of
trust, and various functions have an interest in the outcome of
this process. In 1933, the United States Congress signed into
law an Act which created the Utah Navajo Trust Fund. The Act
added the section of Federal land known as an Aneth Extension
to the existing Navajo Reservation.
In regard to the 1933 final Act, the United States District
Court explained in order to compensate the State for the
resulting loss of tax revenues and the increase in the need for
the government services to the Act to provide internal ally,
that the 37.5 percent of the net royalty of oil and gas
production within extension would be paid to the State of Utah
provided by the 37.5 percentile.
Of said royalties shall be expanded to the State of Utah in
the tuition of Indian children in school and white schools and
other building maintenance, roads across the reservation in
lands described section and hereafter of all the benefits of
Indians residing there, 47 State, 14, 18, 19, 33.
This was an argument of the State of Utah to benefit the
Indians living in the Aneth Extension. In 1968, an amendment
expanded beneficiary, including the Navajos living in San Juan
County, Utah. The Navajo Nation wasn't overlooked in 1933 Act.
In 1968 amendment, they were given 62.5 percent of the
royalties from those trust fund wells of many other wells
located in the Utah portion of the Navajo Reservation.
The Tribe received 100 percent of the royalty in addition
to the agreement was amazed at the royalty paid to the Utah
would be based on the fixed price at $45 per barrel. This means
that when the oil and the selling at $90, that the trust fund
received the equivalence of royalties of only 18.75 percent.
And the Tribe received 8l.25 percent.
It is not my purpose today to argue whether these past
agreements are fair or equitable. They are the laws and we are
bounded by laws and the State of Utah has asked Congress to
relieve them of their duties over the trust funds. Normally in
such cases, if the beneficiary or legal ages, they would be
required to select a new trustee.
It is true that we are citizens of the Navajo Nation. We
are proud to be the citizens. We are also citizens of the State
of Utah. We are also citizens of the San Juan County, Utah. It
is our citizenship of San Juan County.
So with this, I submitted my testimony and I stand to
answer questions from the Committee.
[The prepared statement of Mr. Maryboy follows:]
Prepared Statement of Hon. Kenneth Maryboy, San Juan County
Commissioner
Honorable Chairman Akaka, Vice Chair Barrasso, Members of the
Committee, Senator Hatch,
My name is Kenneth Maryboy. I am a Navajo Nation Delegate, and a
County Commissioner for San Juan County, Utah:
This is truly an honor to be able to address you in this morning in
regard to Senate Bill 1327. This Committee is important to the Dineh.
We are grateful for your insight and for your willingness to listen to
the people. We are especially grateful for the opportunity to shed
light on some of the questions surrounding Utah Dineh Corporation, the
beneficiaries of the ``Utah Navajo Trust Fund,'' the current state of
the trust fund, and the various factions who have an interest in the
outcome of this process.
In 1933, the Unites States Congress signed into law the Act which
created the Utah Navajo Trust Fund.
That Act added a section of federal land, known as the Aneth
extension, to the existing Navajo Reservation.
In regard to the 1933 final Act, the United States District Court
explained:
In order to compensate the State for the resulting loss of tax
revenues and increased need for governmental services, the Act
provided, inter alia, that 37\1/2\ percent of net royalties
from oil and gas production within the Extension were to be
paid to the State of Utah: ``provided that the 37\1/2\
percentum of said royalties shall be expended by the State of
Utah in the tuition of Indian children in white schools and/or
in the building of maintenance of roads across the lands
described in section 1 hereof, or for the benefit of the
Indians residing therein.'' 47 Stat. 1418 (1933).
This was an agreement with the State of Utah for the benefit of the
``Indians'' living on the Aneth Extension.
The 1968 amendment expanded the beneficiaries to include Navajos
living in San Juan County, Utah.
The Navajo Nation was not overlooked in the 1933 Act or in the 1968
amendment; they were given 62\1/2\ percent of the royalties from those
``Trust Fund'' wells. Of the many other wells located on the Utah
portion of the Navajo Reservation, the Tribe receives 100 percent of
the royalties. In addition, an agreement was made that the royalties
paid to Utah would be based on a fixed price of $45 per barrel. This
means that when oil is selling for $90, that the Trust Fund receives an
equivalent royalty of only 18\3/4\ percent and the Tribe receives 81\1/
4\ percent.
It is not my purpose today argue whether these past agreements are
fair or equitable. They are the law, and we are bound by the law. The
State of Utah has asked Congress to relieve them of their duty as the
trustee over the Trust Fund. Normally, in such a case, if the
beneficiaries are of legal age they would be required to select a new
trustee.
It is true that we are citizens of the Navajo Nation. We are proud
to be citizens. We are also Citizens of the State of Utah. We are also
Citizens of San Juan County, Utah. It is our citizenship in San Juan
County along with our Race, which qualifies us as beneficiaries of the
Utah Navajo Trust Fund.
There is some disagreement among Utah Navajos about who should be a
beneficiary, or who should be the Trustee. Fortunately we have
political sub-units which help to determine the ``mind'' of the people.
Our Chapter governments have had their say in the formation of the Utah
Dineh Corporation. They have had their say in the appointment of board
members. And they will have their say in the reorganization of the
board once the Corporation is charged with the responsibilities of
Trustee.
We cannot expect a consensus on such a matter any more than
Congress would expect a consensus on the matters on which they vote.
But we do have the ability to hear all concerns and to put the matter
to a vote. We have resolutions from all but the Aneth Chapter in favor
of appointing Utah Dineh Corporation as trustee. There is more of a
division on this matter in Aneth because they were named as
beneficiaries in the 1933 act, and many there believe that the 1968
amendment was a mistake. I acknowledge their concern. I share their
frustration. But the 1968 amendment was made for a wise purpose. Over
time as the population has shifted from one place to another; as
generation has come and gone, to isolate the beneficiaries to a small
geographic area like the Aneth extension would cause many more problems
than it would ever solve.
Utah Dineh Corporation
In July 2010, this same issue was heard by the Natural Resources
Committee. At the time Mr. Ross O Swimmer suggested two possible
options for the beneficiaries; to allow the Navajo Nation to step in as
Trustee, or have the Utah Navajos form a private non-profit
organization to manage the trust. This was the genesis of the Utah
Dineh Corporation. Other existing non-profits were also considered, but
it was determined that if this was going to be done right, the new
beneficiary should be a new entity with no prior history. A fresh new
company has been formed. It is fully at the mercy of the Utah Chapters.
Until it is named as the trustee, it will remain a dormant shell. The
board that is in place was put there by the chapters. Or, in the case
of the Aneth Chapter, by a volunteer until an appointment became
necessary.
Currently Utah Dineh does not even have a checking account. It
never has had a checking account. There is not possibility of
mismanagement, because it has not been activated other than as a shell
corporation formed in the State of Utah. It has articles of
incorporation, and bylaws. Its current board members serve with not
promise of compensation. Travel expenses are born by the individual
board members, or by a sponsor.
I am confident that Utah Dineh Corporation can take full advantage
of the current management of the Utah Navajo Trust Fund Holding
Account. We also have the promise of support from the State of Utah,
including the people who were involved with the previous administration
of the fund. We have the support of several key people with the Navajo
Nation and hope that once this matter is decided in favor of Utah Dineh
Corporation that we will have the full support and cooperation of the
Navajo Nation as well.
Naturally a transition from the current Trust Fund Holding Account
to a new trustee will not happen in an instant. We anticipate an
orderly transition.
In the future, we expect that the Trust Fund will provide
opportunities for matching funds from Utah's Community Impact Board;
from federal program grants such as education, housing, etc; from State
and Federal highway funds; from the Navajo Nation for programs that
they would like to see offered to members of the tribe in Utah.
With the ``Holding Account'' simply accumulating money, the people
are suffering from lack of services. There is much good that needs to
be done, but for the past three years, there has not been an entity
authorized by Congress to act. This cannot continue. The people have
spoken as a majority. Utah Dineh Corporation is well structured and
still in its original wrapper waiting to be used. All we lack is the
nod from this Committee.
The Navajo Nation, if they were the trustee would have a distinct
advantage of sovereign immunity. It would be nice to lay aside any
concerns about potential future law suits. While this is of great
benefit to the trustee, it is not of benefit to the beneficiaries who
should have legal recourse to ensure accountability of the trustee.
Utah Dineh Corporation is not immune from full accountability. Charging
them with the fiduciary role of trustee is the correct course for this
Committee.
Thank you.
The Chairman. Thank you very much, Commissioner Maryboy,
for your testimony.
Chairman Abrahamson, will you please proceed with your
testimony?
STATEMENT OF HON. GREG ABRAHAMSON, CHAIRMAN, SPOKANE TRIBAL
COUNCIL
Mr. Abrahamson. Thank you, Chairman Akaka, Senator Cantwell
and other Members of the Committee. My name is Gregory J.
Abrahamson. I am Chairman for the Spokane Tribe of Indians. I
appear before the Senate Committee on Indian Affairs to testify
on S. 1345. With me today are Tribal Council Members Michael
Spencer, Rudie Peone, David C. Wynecoop, Jr., and Rodney W.
Abrahamson.
I would also like to thank Senator Murray and Senator
Cantwell for their support on this legislation.
We are here today as a full Tribal Council with the
authority from the general membership to act on behalf of the
Tribe to finally resolve this matter. We are shocked and
dismayed with the statement submitted by DOI and are frankly
blindsided by their position, particularly because we had
reached agreement with the Bureau of Reclamation and the
Bonneville Power Administration and understood that DOI
supported S. 1345.
Apparently, the Department has once again failed its trust
responsibility to the Tribe. We came here today on behalf of
the Spokane Tribe to finally conclude our efforts to work with
the Untied States to recognize and fulfill its trust
responsibility to keep the promises of the United States to the
Tribe, finally treat the Spokane Tribe fairly and honorably,
recognize the contributions the Spokane Tribe continues to make
for the benefit of our Nation, compensate the Tribe for the use
of its land and injuries caused by the construction and
operation of Grand Coulee Dam.
I came here today to summarize the written statement for
the record submitted by the Tribe and the critical need for
this important legislation. Unfortunately, I feel compelled to
recount the history one more time of the false promises that
underscore the DOI's lack of good faith to resolve this matter.
Spokane Tribe has struggled to protect our reservation
since agreement with the United States in 1877. This settlement
must be viewed with historic context for over more than 130
years. We therefore have submitted a detailed statement.
The Spokane Reservation is located in Eastern Washington at
the confluence of the Spokane and Columbia Rivers. These two
rivers are expressly and legally part of our reservation and
remain in Tribal ownership today. Our life, culture, economy,
and religion center around the rivers. We are river people. We
were fishing people. We depended heavily on the rivers and the
historic salmon runs they brought to us. We were known by our
neighbor Tribes as salmon eaters.
The Spokane River, which is named after our people, was and
is the center of our world. We call it the path of life. Our
best lands and fishing sites are at the bottom of Lake
Roosevelt. Our salmon runs have been destroyed. The history of
the last 70 years have led to the systematic destruction of the
Spokane Indian people's culture and way of life.
We continue to survive, but the time has come for the
United States to recognize the profound effect the construction
of Grand Coulee Dam has had on us. The Spokane Tribe has
suffered enormous and catastrophic losses due to the project.
In short, the construction of Grand Coulee Dam project was
deadly for the members of the Spokane Tribe. We lost our salmon
runs, which devastated our culture and our lives. Over 3,000
acres of land, Tribal communities, schools, roads, orchards,
farms were flooded. Burial sites were flooded. Access across
river was blocked. The historic trade and commerce was lost and
forced physical relocation of households.
And those impacts continue today. Grand Coulee is operated
for many purposes, power, irrigation, salmon flows, and flood
control. Lake Roosevelt fluctuates seven feet or more every
year. These operations flush our fish, disrupt our enterprises,
erode our lands, impair recreation, affect water quality, among
other things.
The Grand Coulee project, more than any other economic
asset available to Washington State or the Pacific Northwest,
has provided extraordinary levels of benefits, not just for the
Northwest, but for the entire Nation.
The Spokane Tribe and its members lost a lot to Grand
Coulee. The inability of the Spokane Tribe to receive just
compensation for the seizure of our lands has severely impacted
the ability of the Tribal government to provide for the basic
needs of our members. The extreme disparity between the losses
suffered by the Spokane people and the contrast to the enormous
benefits Grand Coulee provides to the Nation and the Northwest
is inconceivable and continues to reflect an extremely sad
chapter in America's history.
There is simply no way the United States can ever make up
for the damage caused. The United States repeatedly promised to
compensate both the Spokane and the Colville Tribes for the use
of their Tribal lands. These promises became the basis of U.S.
settlement with the Colville Tribe. Only one Tribe has been
compensated.
Some Federal agencies have said we did not file Coulee
claims within the 1951 deadline. Neither did the Colvilles.
They were allowed to amend their original claim in 1975 to add
Coulee hydropower claims, but neither Tribe had a legal claim.
Both Tribes have a moral, equitable claim, yet only Colville
Tribe is compensated.
Technical defenses by the Federal agencies are not fair,
honorable or just. Congress recognized that the legislation is
the fair and honorable thing to do. The settlement was approved
by the Senate in the 108th Congress, by the House in the 109th
Congress. Over the years, the Tribe has amended the legislation
to address many concerns and has done so once again.
Despite numerous concessions by the Tribe in this effort to
resolve this issue, the efforts of key legislators such as
Senators Cantwell, Murray, Inouye and others, and agreement
with BPA and BOR, the United States has simply failed to
fulfill its trust responsibilities to the Tribe.
In 1994, Congress approved a settlement with the Colville
Tribe. The Spokane settlement is based on the Colville
Settlement. The Spokane Tribe lost 39 percent of its land in
proportion to the Colvilles. The payments to the Spokane in the
bill before the 106th Congress was set at 39 percent of the
Colvilles.
In the 108th Congress, at the request of Members of
Congress, the Spokane Tribe was reduced from 39 percent to 29
percent of the Colvilles for return of lands taken by the
reclamation of the project, including an enlarged Spokane River
outside reservation boundaries known as the far or the south
bank of the river.
In the 108th Congress, the Senate passed a bill directing
the return of these lands. In the 109th Congress, the House
passed a bill directing return of these lands. In the 110th
Congress, return of the south bank of the river to the Tribe
was removed from the bill. The bill still called for return of
the lands within the reservation taken for the project that
included portions of the river within the reservation.
Now to satisfy the Bureau of Reclamation concerns regarding
erosion and landslides, no lands are to be returned to the
Tribe, in exchange for the confirmation and delegation of
authority by the Department of Interior set forth in the 1990
Lake Roosevelt Cooperative Management Agreement with respect to
the land within the boundaries of Spokane Indian Reservation.
So now we do not get our land back, yet our payment is 29
percent, not 39 percent of the Colvilles.
Section 9 provides for the protection of the Bureau of
Reclamation and project operations. Section 9 leaves intact the
authority of the National Park Service over the lands taken
from the Tribe. The Spokane and Colville Tribes have agreed to
a disclaimer regarding reservation boundaries in section 9 that
remain from earlier versions of the bill.
We were promised our reservation and our rivers in 1877.
Our rivers have been flooded. We have endured enormous impacts
to our lands, culture, and way of life. The United States
promised to compensate us, but continues to changes it position
and creates more obstacles in an effort to avoid reaching an
agreement.
The Colvilles have been compensated for the same wrongs we
have suffered. The time has come to treat us equally. We
deserve fair and honorable treatment by our trustees in the
region and this Country for the use of our lands that are used
to generate such enormous benefit at our expense.
I thank you for this opportunity and am open to any
questions.
Thank you.
[The prepared statement of Mr. Abrahamson follows:]
Prepared Statement of Hon. Greg Abrahamson, Chairman, Spokane Tribal
Council
The Chairman. Thank you very much.
I will defer my questions and let me call on Senator
Cantwell for her questions.
Senator Cantwell. Thank you, Mr. Chairman. Thank you. I
appreciate it.
Chairman Abrahamson, good to have you here and your
testimony is much appreciated. We heard from the BIA earlier
about the filing of claims. Could you explain where the Spokane
Tribe was in 1951 when this deadline was supposed to have
transpired?
Mr. Abrahamson. Yes, thank you, Senator.
We at that time our Tribe was just splitting. The Colville
Tribe was over the Spokane Tribe, our agency, at that time
because of the ruralness of where we were at. Their agency was
there and we just moved away from the Colville agency and was
establishing our own reservation and we didn't have our lawyers
or anybody intact at that time. Our government was just being
formed there.
Senator Cantwell. So they are penalizing you not because
you weren't impacted, but because of the fact that you weren't
properly formed at the time?
Mr. Abrahamson. Yes, at that time, the government at that
time should recognize and brought it up to our leadership at
that time to file something or to at least acknowledge that the
Tribe should do something with that body of water there.
Senator Cantwell. And that was 16 days before the filing? I
mean, we are talking about a small period of time. Is that
correct?
Mr. Abrahamson. Yes.
Senator Cantwell. Okay. And you mentioned fair and
honorable dealing standards of the ICCA.
Mr. Abrahamson. Yes. We recognize that we don't have a
legal claim and that it is just a moral claim. And it is one
that was done by a colloquy when the 1994 legislation was done.
And Senator Inouye, Senator Murray, Senator Bradley, and
Senator McCain was four of them that did a colloquy to deal
with the Spokane Tribe fairly during that legislation.
Senator Cantwell. And is that your understanding of what
the Department of Interior was also saying today, that they
believe that there should be an equitable settlement?
Mr. Abrahamson. We would hope that is what the intent was,
but our people have been coming back here since the 1940s. We
had a delegation of leadership that came back and that was just
when the war happened. And they told our delegation leadership
that we have a war to fight; we will deal with you later. That
has been 71 years ago there, so.
Senator Cantwell. Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Cantwell.
Senator Tester?
Senator Tester. Thank you, Mr. Chairman.
We will get right to it. One of the things that Mr.
Laverdure said from Interior was the State's share not being
reasonable. Being prompted slightly on this, could you talk
about the adequacy of the State's share, Mr. Tweeten?
Mr. Tweeten. Senator Tester, thank you for the question.
I think any fair reading of the bill and the compact would
suggest that the proportion of benefits flowing to the Tribe
and the State tremendously favors the Tribe. Objections have
been raised in prior settlements to the idea of taking projects
that States want and trying to ``hide them under the Indian
blanket,'' I think was the phrase that was used. There are no
such projects in this compact.
The expenditures that the State makes in the compact are
specifically designed for the mitigation of the effects of the
compact on non-Indian water users, but the benefits of those
mitigation efforts flow directly to the Tribe. For example, the
compact provides for deferral on the part of the Tribe in the
development of its water right on Birch Creek.
In consideration of that agreement to defer, the State has
set aside a fund of $14.5 million that will be payable to the
Tribe when certain conditions are fulfilled. That is
functionally the equivalent of a lease of that water in the
sense that there is a payment on the part of the State to
protect the flow of that water going downstream.
But as Mr. Laverdure said, allowing the Tribe to receive
value for resources is beneficial in many ways, and that
provision provides the Tribe the opportunity to directly
receive value for the use of its resources. So I think it is
directly beneficial to the Tribe.
The Four Horns project is the same. The Tribe has deferred
or agreed to provide water downstream for a period of years for
the use of the Pondera Canal Company, but once that period of
years expires, the use of the Tribe's water is completely up to
the Tribe and the canal company has no legal or equitable claim
on it.
The hope is, of course, on the part of the canal company,
is that the Tribe will agree to negotiate a lease of some of
the water in the Four Horns Reservoir to flow downstream to the
Pondera Canal Company at a fair market rate. But the Tribe is
under no obligation to make that lease and once that mitigation
period of 25 years expires, the water in the expanded Four
Horns project belongs to the Tribe.
So I think the argument that the State's cost share doesn't
somehow contribute to the benefit of this compact and
legislation for the Tribe is completely misplaced.
Senator Tester. Let me get to that point, and this can be
for either one of you, T.J. or Chris. When you do these kinds
of negotiations, are people from the Federal Government usually
at the table when you are doing these negotiations?
Mr. Show. Thank you, Mr. Chairman.
To my knowledge, they have been there every step of the
way. They have participated to my knowledge in everything. That
is kind of what is disheartening about this whole process is
they have been intricately and intimately part of this process.
Senator Tester. That is a good sign on one hand. Did they
ever provide you with a written list of concerns?
Mr. Show. Not that I know of.
Senator Tester. Okay. Did they ever present you any
alternatives to the compact?
Mr. Show. No. To my knowledge, the only thing that was ever
brought up is problems.
Senator Tester. Okay. One of the things that, it was either
you or Mr. Tweeten said, I think it was you, that the
objection, this was the first time you had seen them happened
in the last 24 hours. That is correct, right?
Mr. Tweeten. Senator, that is correct.
Senator Tester. And Ms. Williams, I am glad you are still
here. I hope there are other folks from the Department here. I
am not going to call you up to talk. Don't worry. But I would
just say that the only way you solve problems around this place
is to talk and to discuss and to negotiate, whether we are
negotiating among this Committee or you are negotiating with
the Tribes. I would just tell you that for the objections to be
heard for the first time by these guys in the last 24 hours is
totally unacceptable. It is just totally unacceptable. It just
doesn't cut it.
So I would hope that we can ramp that up in the future.
What is done is done, but the communication needs to be much
better if that is the case. And I don't mean to lecture. It is
just a fact that we are not going to get anything done if that
doesn't happen. Good communication is that.
Just a last thing, and I know, T.J., it is hard to predict
what the Tribe is going to do, but how was the support for this
so far among the people on the Blackfeet Reservation?
Mr. Show. Mr. Chairman, it is my belief that when the
people know what I know, and this is an education process that
we all go through, I believe that they will support this and I
believe they do support this. You will always have opposition.
That is granted. But I believe they do support this and I do
support this.
Senator Tester. Good. Let's go to another Tribe. Let's go
to Fort Belknap because I think that you guys talked about the
headwaters of the Milk and its impacts on the Fort Belknap
Tribe about 150 miles away from you guys. Have you worked with
them to resolve problems with them in regards to this water?
And either one of you can answer it.
Mr. Tweeten. I think Chairman Show can probably talk more
directly about the specific discussions, but we have done on
the State side considerable study with respect to the
possibility of the provisions of the Blackfeet Compact somehow
affecting flows that we have agreed to compact with the Fort
Belknap Tribe downstream. And we think the possibility, as a
hydrologic matter, of those conflicts is extraordinarily slim.
Senator Tester. Do they think that, too?
Mr. Tweeten. Mr. Chairman, I won't speak for them about
that. Perhaps Chairman Show can talk about it.
Senator Tester. Okay. T.J.?
Mr. Show. We have sat down with the Fort Belknap Tribe and
we both have come to the same conclusion that the Secretary
kind of put us in this situation. We believe it is him that
needs to help make a decision to get us out, so to speak, I
guess.
Senator Tester. Okay, all right.
Thank you, Mr. Chairman. I ran over time.
Just as kind of a sidebar, I want to thank Richard Litsey
for being here from Senator Baucus's office.
Thank you very much, Mr. Chairman.
The Chairman. Thank you very much, Senator Tester.
Senator Udall?
Senator Udall. Chairman Akaka, thank you very much. I can't
tell you how honored I am to see two of our distinguished
Native American leaders here before the Committee. I have
prepared longer statements about both of them, about President
Mark Chino and also about Vice Chairman Rex Lee Jim, which I
will put in the record. We are late in the day here and I want
to get directly to the questions. But I was going to flatter
both of you greatly and I will do that in the record and try to
get directly to questions so that we can resolve the business
of the Committee.
And also, of course, welcome Selena, the wife of President
Mark Chino, the First Lady of the Mescalero. Good to have you
here, and all the other officials with both Tribes.
I would also, and I don't know what the timing was here in
terms of when the Department learned it was going to take a
position on specific bills, but I find it a little bit striking
to hear all of the leaders say that this is the first time they
heard from the Department about objections. I agree with what
Senator Tester said.
It seems to me a simple phone call, even if the timing, the
Department knows it is going to appear at the hearing; the
leaders know they are going to be here. To at least receive
some kind of notice that the Department is going to take a
position on a piece of legislation that has been working its
way through is a reasonable way to work.
It is meant more as a comment to try to urge better
communication in the future, so that we can get fully to the
issues. Some of the questions, President Chino, that I am going
to ask, I don't want you to respond too hastily because I think
you need to look at this and hear from the Department about
this proposal in terms of standards and that kind of thing. And
I don't want to put you in a position to have to take a
position against it right now. So if you want to defer on that,
that will be fine.
But let me start with President Chino. Would you describe
for the Committee the water situation in the region surrounding
the Mescalero Apache Nation? What is the size of the
surrounding communities? What is the availability of water?
Have any of your neighbors expressed interest in leasing the
Tribe's adjudicated water? And does the Mescalero Apache Tribe
have a surplus of water?
Mr. Chino. Thank you, Senator Udall.
As you and Senator Bingaman are well aware, we are located
in a resort area of the State of New Mexico. To a certain
extent, we are isolated, and not only our economy, but the
economies of the communities surrounding us rely very heavily
on tourism and travel. U.S. 70 is a major east-west route
through the reservation that brings a lot of traffic into our
area.
And we have been approached, Senator, by the City of
Alamagordo, by the village of Cloudcroft, by the village of
Ruidoso and the Ruidoso Downs as to the possibility of leasing
our adjudicated water rights.
So as Senator Bingaman alluded to in his remarks, the State
of New Mexico has been in a very serious drought situation for
the better part of a year and a half and we are very much in
the middle of that. And the communities' interest in acquiring
some of our water certainly indicates to us that not only is
there an interest, but there is a very definite need and a very
severe need of those surrounding communities for this very
precious resource which we have and which we would very much
like the ability to interact with those communities and to
enter into some type of agreement that would be mutually
beneficial.
Senator Udall. And it would obviously be an economic
benefit to the Mescalero Apache Tribe to be able to lease your
water to these communities.
Mr. Chino. Very much so, Senator. The Tribe would use the
proceeds, for example, to provide college scholarships for our
students who wish to go on and pursue a higher education. We
would use it to fund our fire and rescue. We would use it to
provide various services that any government would provide to
its citizens. So it would be very beneficial to us, Senator,
yes.
Senator Udall. President Chino, I want to ask a question
about Mr. Laverdure's testimony where he said that he would
like to see language included providing that the Tribe ``shall
develop Tribal water leasing standards and submit such
standards to the Secretary for approval.''
But I don't want to force you into a situation to take a
position now if you don't want to. The record I believe the
Chairman will say will be open for a week or more and you could
make a comment like that. But if you want to comment today, I
would be happy to hear it.
Mr. Chino. I definitely would like to comment, Senator.
Senator Udall. Please.
Mr. Chino. The notion that the Department of Interior
provided to the Committee that the water leasing requirement
should be consistent with land leasing requirements is
virtually a new policy that certainly the Tribe has never heard
of from the Department of the Interior. And I feel very
strongly, and I believe I can speak for the Tribal Council as
well, that we believe that this is nothing more than an effort
on the Department of the Interior to implement new policy at
the expense of the Mescalero Apache Tribe's legislation.
In fact, the record will show that the Department of
Interior has a precedent of never involving itself in
requesting these so-called water use codes and standards of any
Tribe. Our cousins at Jicarilla were not subject to the same
requirements, nor was the Navajo Nation.
So we feel that it is very, very unfair, grossly unfair to
subject us to these requirements when other Tribes weren't
subjected to the same. It is simply a matter of fairness,
Senator.
Senator Udall. And it appears to me that Mr. Laverdure's
testimony was that this was a first in time. This was a
precedent. Do you agree or disagree with that in terms of the
leasing situation? He seemed to be describing that this had
never been done before. Do you agree or disagree on that one?
Mr. Chino. Well, I think, Senator, with respect to the
leasing, I don't think that that particular aspect is new. I
think the concept of equating water rights to land leasing
requirements by the Department is certainly a new concept. And
as I said, to our knowledge, it has never been put forth as an
issue until now.
And our concern is that it is being put forth now in the
context of requiring our Tribe to submit to these requirements
and to formulate water codes and other things that other Tribes
have not been subjected to and requirements have not been made
of those Tribes.
Senator Udall. Thank you.
Mr. Chairman, I have already run over. I have a couple more
questions that I can ask and then I will be complete and won't
need a second round or anything. Would that be all right?
The Chairman. Will you please continue.
Senator Udall. Okay. Thank you.
These questions here are both to Vice President Rex Lee Jim
and also to Commissioner Maryboy.
Based on the original 1993 statute, is there any way the
Navajo Nation could legally divert these royalties outside of
Utah?
Mr. Jim. Senator Udall, thank you for that question.
It is not possible because it is mandated by the U.S.
legislation and the Navajo Nation has proven over the years
that it has always paid out that amount to the trust.
Senator Udall. Commissioner Maryboy?
Mr. Maryboy. Senator Udall, it is an Act that was re-
amended in 1968 and furthermore the 1933 Act stands as the body
here that was initially enacted in 1933. So with that, I stand
on behalf of the Utah Navajos that it is about time we
administer our funding. For many years, we never laid a hand on
this until now.
Senator Udall. Which Navajo Nation chapters in Utah support
the Utah Dineh Corporation as trustee and which chapters
support the Navajo Nation as trustee? And this is also a
question for both of you.
Mr. Maryboy. Senator, we have board members from Navajo
Mountain all the way down to Aneth. As a matter of fact, I have
the former chapter president, Leonard Lee, which is a part of
the board member to the Utah Dineh Corporation. And as far as I
know, all the chapters are in support of keeping the money in
Utah.
Senator Udall. Now, I have information here, and it may be
incorrect and I want both of you to speak to this. There are
seven chapters in Utah. Is that correct?
Mr. Maryboy. Seven chapters.
Senator Udall. Both of you are nodding, so I assume that is
correct. And apparently, three support the Navajo Nation as
trustee. So that would mean there is a split between these
chapters.
Is that correct or incorrect, Vice President Jim?
Mr. Jim. Thank you. With me today is Honorable Jonathan
Nez, who represents Navajo Mountain and whose chapter opposes
the current bill. I spoke to members in Dennehotso and Mexican
Water, they also oppose the current bill. We do have a
resolution from Red Mesa and Aneth who oppose this bill. We
have a process that we go through at the local chapters. It is
put on the agenda and discussed and a motion invoked, and that
is what we have. Thank you.
Senator Udall. Thank you.
Mr. Maryboy?
Mr. Maryboy. Mr. Chairman, for the record, the resolution
was submitted from all seven chapters and I just barely got a
email and a text from Alex Bitsinnie, which is with the Navajo
Mountain Chapter, as well as James Adakai for the record, with
Oljato Chapter asking and pleading to continue to support the
bill.
Senator Udall. Vice President Jim, what kind of
accountability would the Navajo Nation have if it were trustee?
Mr. Jim. First of all, we have a legal system that is in
place. So we do have the Navajo judicial branch who oversees
the laws and interprets them. And recently, they have been able
to challenge some of the actions of the Council in order to
maintain integrity and we have that in place. And we have
several trust funds in the multimillions of dollars that we
oversee. So we have an auditing process in place to keep us
accountable.
And should for any reason, the Navajo Nation violate the
trust fund, then the beneficiaries have the ability to take us,
the Navajo Nation, to court. And the Navajo Nation Council has
agreed to waiver, and with the assets that we have, it would
cover anything that may have been misspent.
Mr. Maryboy. Senator?
Senator Udall. Yes?
Mr. Maryboy. The former President, the same question was
raised and he refused to waive the sovereign immunity if there
is any wrongdoing to the trust fund. Furthermore, there is a
legal opinion that was drafted by the former Attorney General
which is Lewiston Atocci, telling the Navajo Nation that this
is something that the Utah Navajos can do themselves.
And on top of that, I think we have capable and able
educated students, young men, that have been looking for jobs
elsewhere for the longest time, and are able to do this as
well. We have 67.5 percent which is already going into the
Navajo Nation, which we hardly or don't see. And outside the
wells, 100 percent of that is going to the Navajo Nation we
hardly see or don't see.
So we have our own independent medical facilities and we
have been doing things on our own for so long.
Senator Udall. Well, I very much appreciate both of your
answers and at this point I think the best thing from my
perspective is submit some additional questions for the record
for you to answer outside of the hearing, and then we will be
able to see everything fully in the record and work with both
of you on this issue.
Mr. Chairman, I want to just thank you very much. I realize
I went way over and thank you for your courtesies. This has
been a long hearing, but I think it has been an important one.
And I would thank all of the witnesses here today. I think
you have made an excellent case in your testimony and you have
given us a lot to think about. And Chairman Akaka has been very
aggressive about moving the agenda on bills. And I think, once
again, we have had a very good hearing day here.
Thank you very much.
The Chairman. Thank you very much, Senator Udall, for your
questions and your cooperation here.
I want to add my thanks to all of you, my warm mahalo thank
you very much to all the witnesses in today's hearing. I do
have questions for you that I will defer and place in the
record for you. The record will be open for two weeks so other
Members may add questions as they have them and concerns that
they can communicate with you.
The whole effort here is to try to work together and
resolve some of these issues that have been pending these years
and try to resolve them at this point in time.
I want to also thank the Administration for providing their
views on these bills, and especially I want to thank the Tribal
representatives and the affected parties who are here. It is
very important for the Committee to hear from all of you, and
that is what I am trying to do, to give more of you an
opportunity to let us know how you feel about these issues.
And I would tell you thank you so much for adding to that
and we will continue to do this with other issues as well, but
ask you to please work closely with us, with the Committee and
also with the Administration. In some cases, communication is a
problem and we will continue to work on that as well and try to
improve that, but we can do it only if we work together and it
is happening.
Again, I want to thank you for all of this.
The hearing is adjourned.
[Whereupon, at 5:12 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Max Baucus, U.S. Senator from Montana
Chairman Akaka, thank you for holding this hearing on an extremely
important bill.
A wise man from Indian Country once said, ``I do not think the
measure of a civilization is how tall its buildings of concrete are but
rather how well its people have learned to relate to their environment
and fellow man.'' This bill speaks to both lessons.
The Blackfeet Water Rights Settlement Act is a critical step in two
decades of negotiations between the Blackfeet Nation, the State of
Montana, and the U.S. The bill ratifies the water rights compact with
the Blackfeet Nation. It confirms that the United States is a nation
that honors its commitments to all its citizens, including those who
belong to Tribal Nations.
The Blackfeet people call the mountains of their homeland the
``backbone of the world.'' Yet even the strongest back will bend
without water. The backbone of the world is at the same time a
wellspring. It is this crucial resource that makes the high plains
habitable, and it is this crucial resource before us today. Water is
critical for the variety of land uses that occur on the reservation:
farming, ranching, timber, oil and gas development, and tourism. These
activities also harken back to the efforts of our recently departed
friend Elouise Cobell, who forced a long-standing resolution to the
payments and royalties of these activities.
In the same spirit as Eloise's legacy, the creation of the
Blackfeet Reservation a century and a half ago implied a commitment on
the part of the United States to reserve sufficient water to satisfy
both present and future needs of a Tribe. With this hearing, we are
taking the next step on the slow march toward fulfilling that
commitment.
By ratifying this compact, Congress will both establish the federal
reserved water rights of the Tribe and authorize funds to construct the
infrastructure necessary to make the water available for use. This
infrastructure includes rehabilitation of the Blackfeet Irrigation
Project and construction of other water projects. It also mitigates the
impacts of the Tribe's water rights on current non-tribal water users.
The Blackfeet Water Compact has already been ratified by the State of
Montana. As this Committee knows well, the obligation is now on
Congress to complete the settlement.
Four out of seven tribal water compacts in Montana have already
been ratified by Congress. I look forward to diligent work with the
other tribes to complete theirs. The wheel is turning, and every
compact will be addressed. I am confident, for instance, that any
overlapping claims in this bill with the Gros Ventre and Assiniboine
Tribes' Milk River allocation are resolvable.
I look forward to cooperating immediately with the Obama
Administration, the Tribe, the state, and other stakeholders to
strengthen the bill in order to move forward. The Blackfeet have a
bright future, and it will be brighter still with this settlement.
______
Prepared Statement of Hon. Jonathan Nez, Vice Chairperson, Budget and
Finance Committee, Navajo Nation Council
______
Prepared Statement of Hon. Tracy ``Ching'' King, President, Fort
Belknap Indian Community Tribal Council
______
Prepared Statement of Susie Philemon, Member, Navajo Tribe, Aneth
Chapter
We strongly feel that Senate bill 1327 should be constructed and
enacted with these amendments for the following reasons:
1. Massive drilling and exploration for oil and gas had devastated
our Aneth community, livelihood and health.
2. Fifty-four (54) years of oil and gas extraction had polluted and
contaminated our surface and underground fresh drinking water. Nearly
all natural springs and artesian wells in Aneth Greater Oil Field are
unsafe for human consumption therefore many families still haul
drinking water from border towns, 25 to 80 miles away.
3. Half of the land area in Aneth community is impacted and ruined
due to clearing of natural vegetation for drilling sites, network of
roads, oil pits and holding trances and exposed pipelines. Drilling
site constructed every \1/4\ of miles apart throughout Aneth community.
4. Miles of high powered electricity lines criss-crossing Aneth
land to operate every oil pumps to 1,000 wells. Pipelines are
everywhere as well, some unused but still buried underneath the ground.
5. Pollution, contamination and land damaged at this multitude had
impacted the health of Aneth residents.
6. Navajo Nation, Utah State, and federal government has
consistently ignored and has offered no protection, relief, or solution
to the people's health and devastation of our community. In fact Navajo
Tribal government designated Aneth community as a ``sacrificial area.''
7. Despite enormous wealth and revenues from oil, aneth community
has no stable economy that would offer decent living. There are only
two convenience stores, high price of gasoline which high than the
national average, potholes of one central paved road and many families
are still lack modern conveniences of electricity and indoor plumbing.
8. For over fifty (50) years, Navajo Nation had flourished on Aneth
oil wealth but they never gave serious thought to the problems or to
work with us to our desire to grow as a community.
9. Aneth area is still open market for drilling which current
tribal administration is strongly advocating for it.
10.We like to have Indian Senate Committee to consider the revision
of the Lease Agreement within Aneth Greater Oil Field.
Report No. 91-10 to Utah State Legislature--November 1991 has
been retained in Committee files.
______