[Senate Hearing 112-634]
[From the U.S. Government Publishing Office]
S. Hrg. 112-634
INDIAN WATER RIGHTS: PROMOTING THE
NEGOTIATION AND IMPLEMENTATION OF
WATER SETTLEMENTS IN INDIAN COUNTRY
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
MARCH 15, 2012
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PRINTING OFFICE
75-973 PDF WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
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
----------
Page
Hearing held on March 15, 2012................................... 1
Statement of Senator Akaka....................................... 1
Statement of Senator Barrasso.................................... 9
Statement of Senator Tester...................................... 11
Statement of Senator Udall....................................... 10
Witnesses
Bogert, Michael, Senior Counsel, Crowell & Moring................ 42
Prepared statement........................................... 44
Echohawk, John, Executive Director, Native American Rights Fund.. 22
Prepared statement........................................... 23
Hayes, David J., Deputy Secretary, U.S. Department of the
Interior; accompanied by Mike Connor, Commissioner, Bureau of
Reclamation, and Del Laverdure, Principal Deputy Assistant
Secretary--Indian Affairs...................................... 2
Prepared statement........................................... 4
O'Brien, Maria, Legal Committee Chair, Western States Water
Council........................................................ 26
Prepared statement........................................... 27
Royster, Judith V., Professor/Co-Director, Native American Law
Center......................................................... 37
Prepared statement........................................... 39
Appendix
Cuch, Hon. Irene C., Chairwoman, Business Committee of the Ute
Indian Tribe of the Uintah and Ouray Reservation, prepared
statement...................................................... 72
Dalton, D. Lynn, Community Services Administrator, Hotevilla
Village , prepared statement................................... 74
Dorame, Charles J., Chairman, Northern Pueblos Tributary Water
Rights Association, prepared statement......................... 56
La Jolla, Rincon, San Pasqual, Pauma, and Pala Bands of Mission
Indians, and the San Luis Rey River Indian Water Authority,
prepared statement............................................. 53
Murphy, Hon. Charles W., Chairman, Standing Rock Sioux Tribe,
prepared statement............................................. 58
Navajo Nation, prepared statement................................ 75
Pino, Henry, Board President, Blackwater Community School,
prepared statement............................................. 70
INDIAN WATER RIGHTS: PROMOTING THE
NEGOTIATION AND IMPLEMENTATION OF WATER SETTLEMENTS IN INDIAN COUNTRY
----------
THURSDAY, MARCH 15, 2012
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:15 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.
I want to say aloha and welcome to all of you here today,
especially our Committee witnesses today. As you know, we are
here to conduct a hearing on Indian water rights. We have three
people on our panel who probably can answer all the questions
we will have, and keep us straight according to the laws and
all of that.
So it is good to have a hearing promoting the negotiation
and implementation of water settlements in Indian Country.
The settlement of Indian water rights has benefits that
extend far beyond the boundaries of Indian reservations. Over
100 years ago, the Supreme Court affirmed that in reserving
homelands for their people, tribes also reserved the water
rights on and off reservations. In order to fulfill its trust
responsibility, Congress plays an integral role in the tribal
water rights settlements.
Congress has approved over two dozen water settlements in
the past 35 years. Last Congress, we enacted legislation that
settled the water rights for seven tribal nations.
Collectively, these seven tribes spent nearly a century
litigating their water rights in court before having their
settlements approved by Congress. Can you imagine this?
In determining water rights claims, a tribe and other
stakeholders may pursue either litigation or negotiation.
Negotiating to reach a settlement in Indian water rights claims
is advantageous for all parties. It is cheaper, takes less time
and is more flexible than litigation. Negotiations may also
foster better working relationships between all parties. This
can have positive outcomes for not only the tribes but for the
surrounding non-Indian communities as well.
Before the communities can see the benefits of their
settlement, several challenges remain. These include
Congressional ratification securing funding and implementation.
Successful implementation leads to secure and reliable access
to water, economic development and alleviates uncertainty of
unsettled Indian water rights claims.
Tribes have made tremendous sacrifices to protect and
ensure access to water, a sacred resource. Congress must
continue to review the settlement negotiation process, find
funding mechanisms, then ensure that congressionally-ratified
settlements are properly implemented. These issues were raised
in the first session of this Congress at the Committee's
Roundtable on Indian Water Rights. Today we are here to
continue discussions and seek solutions.
It is important that the Committee hears from all
interested parties on these matters. I would like to encourage
stakeholders to submit comments or written testimony for the
record, and therefore the hearing record will remain open for
two weeks from today.
I would like now to invite our first panel to be ready for
the questions and we will begin, of course, with the statements
and testimony. But let me introduce them. The Honorable David
Hayes, Deputy Secretary of the Interior. And accompanying
Secretary Hayes are Mike Connor, who is the Commissioner of the
Bureau of Reclamation, and Mr. Del Laverdure, who is the
Principal Deputy Assistant Secretary of Indian Affairs at the
Department of Interior.
Again, welcome, gentlemen. Let me ask Mr. Hayes to, if you
will please, to proceed with your testimony.
STATEMENT OF DAVID J. HAYES, DEPUTY SECRETARY,
U.S. DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY MIKE CONNOR,
COMMISSIONER, BUREAU OF RECLAMATION, AND DEL LAVERDURE,
PRINCIPAL DEPUTY ASSISTANT
SECRETARY--INDIAN AFFAIRS
Mr. Hayes. Thank you very much, Senator. And thank you very
much for holding this important hearing. We very much
appreciate the opportunity to talk about the Obama
Administration's commitment to Indian water rights settlements.
As you mentioned, I am accompanied here by Del Laverdure,
the Principal Assistant Secretary for Indian Affairs, and Mike
Connor, the Commissioner of Reclamation. I would like to make a
few comments and ask that my testimony be submitted for the
record. And with your indulgence, I would also, after I make a
few comments, ask that Del and Mike have an opportunity to say
a few words as well.
The Chairman. Please proceed.
Mr. Hayes. Thank you, Senator.
Our Administration, Senator, agrees with everything that
you just said in your opening statement. We understand how
water is such a sacred and valuable resource for our First
Americans. We as representatives of the Federal Government are
committed to addressing the water needs of Native Americans
through our Indian water rights settlements.
As you said in your opening statement, these settlements
not only secure tribal water rights, but they help to fulfill
the promise of the United States to tribes that Indian
reservations would provide their people with permanent
homelands. Indian water rights settlements help us achieve that
goal, while at the same time ending decades of controversy and
contention among tribes and neighboring communities over water.
They provide certainty and foster cooperation in the management
of water resources.
As you noted, Mr. Chairman, in the last Congress, this
Administration supported four Indian water rights settlements
for seven tribes. We thank you for this Committee's bipartisan
support for these settlements. All told, those settlements
resolved a century of litigation and bitter disputes.
Those four settlements will support the maintenance of
permanent water supplies and enhance economic security for the
Taos Pueblo and four other pueblos in New Mexico, the Crow
Tribe in Montana, of which Del Laverdure is a member, and the
White Mountain Apache Tribe of Arizona. They enable the
construction and improvement of domestic reservation water
systems, a regional multi-pueblo domestic water system and a
codified water-sharing arrangement between Indians and
neighboring communities.
We are also working right now to implement the release of
$21 million in federal funding under the Soboba Settlement Act
which was enacted in 2008, another historic settlement.
And as you know, when the President first came into office
in March of 2009, he signed the Omnibus Public Lands Management
Act, which included the Northwestern New Mexico Rural Water
Project Act that settled longstanding water rights claims of
the Navajo Nation within the San Juan River Basin in New Mexico
That act authorizes the construction of the Navajo-Gallup Water
Supply Project, which will bring a clean and sustainable water
supply to the Navajo Nation, where an estimated 40 percent of
the residents are dependent upon hauling water for use in their
homes. And that settlement also will help to augment the City
of Gallup's drinking water system, which is facing decreasing
water supplies.
I would note that this project is one of 14 infrastructure
projects that our Administration has selected to be expedited
through permitting and environmental review processes. The
Bureau of Reclamation will initiate construction of the
pipeline this spring.
We know our work is not done. We are continuing to be
active participants in 16 additional negotiations. In
particular, Blackfeet and the Navajo-Hopi Little Colorado River
rights settlements are the subject of pending legislation. Both
of these bills are the products of a great deal of effort by a
multitude of parties. We are hopeful that we can move those
toward resolution.
We are also working on many other settlements currently,
including a settlement with the Pechanga Tribe in California,
among others.
I would like to very briefly just describe how we operate
in the Government, Mr. Chairman, in terms of implementing these
water rights settlements. First of all, this is handled at the
top of the Interior Department. Secretary Salazar is personally
involved in these matters. My counselor and the chair of the
working group on Indian Water Rights Settlement, Letty Belin,
who is with us today, along with the assistant secretaries of
Indian Affairs and Water and Science, the Commissioner of
Reclamation, our solicitor, we work as a team to bring these
issues to fruition.
The Secretary's Indian Water Right Office has been in place
for over two decades. And we are fortunate to have Pam
Williams, who is also with us, who heads up that Water Rights
Office, reporting to Letty Belin.
We are operating under criteria and procedures that have
been in place now for more than 20 years. We know how to do
this and what it takes is will and effort and the cooperation
of the Congress. We have all of those today, thanks in part to
this Committee's unfailing support for trying to settle these
matters instead of litigating them.
We have currently 16 appointed Federal Indian water rights
negotiation teams active in negotiating water rights claims and
an additional 20 teams are working on implementation of
already-approved water rights settlements, including the four
just enacted in 2010.
In terms of the future, we know there is much more work to
be done. Our negotiating teams are working with both Indian and
non-Indian interests in terms of resolving outstanding water
rights. These are difficult issues to resolve. They often
require substantial financial resources in order to finance the
delivery of wet water to tribes. It is no good to simply have a
settlement that provides a paper water right. We are committed
to making this truly a right that is realized by tribes in
terms of wet water on their reservations and on their
homelands.
In recent years, the Congress has been very creative about
finding mandatory funding availability for Indian water rights.
This is incredibly important because these settlements cannot
be funded out of discretionary funds at the Bureau of Indian
Affairs. We applaud the work of the Congress in finding
reliable funding streams for these settlements.
With that, Mr. Chairman, I would ask, with your indulgence,
that Del Laverdure provide a comment or two, followed by
Commissioner Connor. Thank you.
[The prepared statement of Mr. Hayes follows:]
Prepared Statement of David J. Hayes, Deputy Secretary, U.S. Department
of the Interior
Chairman Akaka and Vice-Chairman Barrasso, and, Members of the
Committee, my name is David J. Hayes, and I am the Deputy Secretary of
the Department of the Interior (Department).
Thank you for the opportunity to appear before you today to discuss
this Administration's policy on Indian water rights settlements. As you
may know, I served first as Counselor to then-Secretary of the
Interior, Bruce Babbitt, and later as Deputy Secretary during the
Clinton Administration. In those capacities, I chaired the Department's
Working Group on Indian Water Settlements and played a leadership role
in the Department's Indian water rights program. During those years, we
worked on numerous water settlements. Some of the settlements,
including the Zuni Indian Tribe Water Rights Settlement; the Shivwits
Band of the Paiute Indian Tribe of Utah Water Rights Settlement; the
Chippewa Cree Tribe of the Rocky Boy's Reservation Indian Reserved
Water Rights Settlement; the Yavapai-Prescott Indian Tribe Water Rights
Settlement: the Confederated Tribes of the Warm Springs Reservation
Water Rights Settlement; the Las Vegas Paiute Settlement; and major
amendments to the Colorado Ute Indian Water Rights Settlement Act, came
to fruition during that time. Significant groundwork was also laid on
other important settlements that occurred later, including the Arizona
Water Rights Settlement; the Soboba Band of Luiseno Indians Settlement;
and the Snake River Water Rights Act.
I. Introduction
The Obama Administration recognizes that water is a sacred and
valuable resource for Indian people and therefore has re-energized the
Federal Government's commitment to addressing the water needs of Native
American communities through Indian water rights settlements. Water
settlements not only secure tribal water rights but also help fulfill
the United States' promise to tribes that Indian reservations would
provide their people with permanent homelands. Indian water settlements
help achieve that goal, while at the same time ending decades of
controversy and contention among tribes and neighboring communities
over water. Indian water settlements provide certainty, which fosters
cooperation in the management of water resources.
In the last Congress, this Administration supported four Indian
water rights settlements for seven tribes at a total federal cost of
more than $1 billion. All told, these settlements resolved well over a
century of litigation and bitter disputes. These settlements were
enacted into law in the Claims Resolution Act of 2010, Pub. L. No. 111-
291 (Dec. 9, 2010). Support for four Indian water rights settlements
that were ultimately enacted during one Congress is an unprecedented
achievement. This Administration's active involvement in the
negotiations of these settlements led to both significant improvements
in the terms of the settlements and reduction in their federal costs,
which ultimately led to our support for them. Our support for these
four settlements clearly demonstrates that settling Indian water rights
disputes is a high priority for this Administration and confirms that
we would support Indian water settlements that result from negotiations
with all stakeholders including the Federal Government, and that come
with a reasonable federal price tag and good cost share contributions
from states and other benefitting parties.
Effective implementation of the four settlements in the Claims
Resolution Act will support the maintenance of permanent water supplies
and enhance economic security for five Pueblos in New Mexico, the Crow
Tribe of Montana, and the White Mountain Apache Tribe of Arizona. The
agreements enable the construction and improvement of domestic
reservation water systems, irrigation projects, and a regional multi-
Pueblo domestic water system, and also will codify water-sharing
arrangements between Indian and neighboring communities. These four
settlements intend to usher in a new chapter on water in these
regions--one marked by certainty, harmony, and economic activity.
In addition to its work to enact these four settlements, this
Administration is working with the parties to allow the release of $21
million in federal funding under the Soboba of Luiseno Indians
Settlement Act, Pub. L. No. 110-297 (July 31, 2008), marking the final
step in an historic water rights settlement and fulfilling promises
made to the Soboba Band and southern California communities when the
Act was approved by Congress in 2008. The implementation of the
settlement is expected to stabilize water supplies in the region and
enhance economic development opportunities for the Band and neighboring
communities.
In March 2009, President Obama signed the Omnibus Public Lands
Management Act, Pub. L. No. 111-11 (Mar. 30, 2009), which included the
Northwestern New Mexico Rural Water Projects Act that settles the long
standing water rights claims of the Navajo Nation within the San Juan
River Basin in New Mexico. The act authorizes the construction of the
Navajo Gallup Water Supply Project which will bring a clean and
sustainable water supply to the Navajo Nation, where an estimated 40-
percent of residents are dependent upon hauling water for use in their
homes, and will help to augment the City of Gallup's drinking water
system, which is facing decreasing water supplies. The Navajo-Gallup
Water Supply Project is a major component of the Navajo Nation's water
rights settlement with the State of New Mexico and was selected by the
Administration as one of 14 infrastructure projects across the country
to be expedited through the permitting and environmental review
processes. The Bureau of Reclamation will initiate construction of the
project this spring. The Navajo Gallup Water Supply Project will
include the construction of two water treatment plants, 280 miles of
pipeline, 24 pumping plants, and numerous water regulation and storage
facilities.
Our work is not done, however, and we continue to be active
participants in 16 additional negotiations. Two of these, Blackfeet (S.
399/H.R. 3301) and the Navajo-Hopi Little Colorado River Water
Settlement (S. 2109/H.R. 4067), are the subject of pending legislation.
Both the Blackfeet and Navajo-Hopi bills are the products of a great
deal of effort by a multitude of parties and reflect a desire by the
people of Montana and Arizona, Indian and non-Indian, to settle their
differences through negotiation rather than litigation. This
Administration shares that goal and we are currently working at the
highest levels within the Department to craft settlement provisions
that the Administration will be able to support.
II. The Impetus for Water Rights Settlements
Disputes over Indian water rights are expensive and divisive. In
many instances, Indian water rights disputes, which can date back 100
years or more, are a tangible barrier to socio-economic development for
tribes, and significantly hinder the management of water resources.
Settlements of Indian water rights disputes can break down these
barriers and help create conditions that improve water resources
management by providing certainty as to the rights of major water
rights holders who are parties to the disputes. 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
general federal trust responsibility to American Indians and with
federal policy promoting Indian self-determination and economic self-
sufficiency. For these reasons and more, for more than 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.
Indian water rights are especially valuable in the West for many
other reasons, including the fact that Indian reserved water rights
cannot be lost due to nonuse, and Indian water rights have a priority
date no later than the date of the creation of the reservation with
which they are associated. Because most reservations were established
prior to the settlement of the West by non-Indians, even very senior
non-Indian water rights are often junior in priority to Indian water
rights. Because most tribes have lacked resources to develop their own
domestic water supply systems, irrigated agriculture or other industry
to make use of their water resources, their ability to use their water
rights has been limited. As a result, Indian water rights have often
been used for years by neighboring non-Indian interests and communities
with the unfortunate effect of reliance by non-Indians on water to
which Indians have the senior rights.
Simply litigating title to water rights has not proven to be an
effective solution for tribes or their non-Indian neighbors. Litigation
often lasts for decades at great cost to all parties: the Federal
Government, tribes, states and local water users. Even when litigation
is concluded and a court decrees that a tribe has a right to a certain
amount of water of a certain priority date, uncertainty persists. If a
tribe cannot put its water rights to immediate use, Western water law
principles allow other junior users to take advantage of the water
until such time as a tribe can put the water to use. This, of course,
casts a pall of uncertainty over a water system because junior users
have no way of knowing when the tribe will be in a position to use its
water.
A judicial decree does not get ``wet water'' to tribes, nor does it
provide new infrastructure or do anything to encourage improved water
management in the future. Negotiated settlements, on the other hand,
can, and generally do, address these critical issues. Through a
settlement, parties can agree to use water more efficiently or in ways
that result in environmental benefits, or to share shortages during
times of drought rather than relying on strict principles of seniority
in priority date. In exchange for settlement benefits, tribes can agree
to subordinate use of their water rights so that existing water uses
can continue without impairment. Parties to negotiations can agree to
terms for mutually beneficial water marketing that could not otherwise
occur because of uncertainties in Federal and State law. Settlement
negotiations foster a holistic, problem-solving approach that contrasts
with the zero-sum logic of the courtroom, replacing abstract
application of legal rules that may have unintended consequences for
communities with a unique opportunity for creative, place-based
solutions reflecting local knowledge and values.
III. The Department's Indian Water Rights Office
This Administration's commitment to Indian water settlements is
reflected in the leadership at the Department. Secretary Salazar's
vision and the work of so many at the highest levels of our Department
make our Indian water rights program a success. My Counselor and the
Chair of the Working Group on Indian Water Settlements (Working Group),
Letty Belin, along with the Assistant Secretaries of Indian Affairs and
Water and Science, the Commissioner of Reclamation, the Office of the
Solicitor, and the Secretary's Indian Water Rights Office, work as a
team to achieve results that make a real difference, not only for
tribes but for all the communities involved.
The Secretary's Indian Water Rights Office (SIWRO) was formally
established as part of the Secretariat in 2009, but it has been in
existence for more than two decades. The Director of SIWRO leads,
coordinates, and manages the Department's Indian water rights
settlement program in consultation with the Office of the Solicitor.
The current Director, Pamela Williams, reports to Letty Belin,
Counselor to the Deputy Secretary, who also serves as the Chair of the
Secretary's Working Group on Indian Water Settlements (Working Group).
The Working Group consists of the Solicitor and the Assistant
Secretaries and makes recommendations to the Secretary regarding the
position of the United States in negotiations. As the Deputy Secretary,
I have taken a strong interest in supporting settlement efforts,
helping to steer settlement parties towards workable solutions and
personally participating in settlement negotiations that seemed to be
stuck. The Department works with other federal agencies, including the
Office of Management and Budget and the Department of Justice, in
preparing the settlement negotiation positions of the United States.
The Federal Government is guided in negotiations by the Criteria
and Procedures for the Participation of the Federal Government in
Negotiations for the Settlement of Indian Water Rights Claims (55 FR
9223, March 12, 1990) (Criteria and Procedures). The Department and
other federal agencies participate in settlement discussions at the
local level primarily though federal negotiation teams. The teams
interact with settlement parties, explain federal policies on
settlement and, when possible, help mold the parameters of a
settlement. The SIWRO interfaces with the teams through Team Chairs
appointed to each team in the field. The SIWRO works directly with the
Chairman of the Working Group and provides policy direction to the
teams throughout negotiations. A representative from the Department of
Justice is appointed to each team, as are representatives from other
federal agencies having an interest in a particular negotiation.
Once a settlement is enacted into law, SIWRO oversees its
implementation, primarily through federal implementation teams, which
function much like the federal negotiation teams only with a focus on
helping the Indian tribe and the other parties implement the enacted
settlement.
Currently, there are 16 appointed Federal Indian Water Rights
Negotiation Teams active in negotiating water rights claims in the
western United States. An additional 20 Federal Indian Water Rights
Implementation Teams work on implementing congressionally enacted
settlements, including the four enacted in 2010. With increasing
drought conditions in the United States and pressure from an expanding
population, the number of requests for the appointment of new
negotiation teams continues to grow.
In the last ten years, six bills authorizing Indian Water Rights
settlements with fourteen Indian tribes have been enacted: Zuni, Pub.
L. No. 108-34, Nez Perce, Pub. L. No. 108-447, and the Arizona Water
Settlements Act, Pub. L. No. 108-451 (Dec. 10, 2004) (Gila River Indian
Community, Tohono O'odham Nation), Soboba Indian Tribe, Pub. L. No.
110-297 (July 31, 2008), Omnibus Public Land Management Act, Pub. L.
No. 111-11 (Mar. 30, 2009) (Navajo-San Juan, and Shoshone-Paiute Tribes
of the Duck Valley Reservation), and the Claims Resolution Act Pub. L.
No. 111-291 (Dec. 9, 2010) (White Mountain Apache Tribe, Crow Tribe,
Pueblo of Taos, Pueblo of Nambe, Pueblo of Pojoaque, Pueblo of San
Ildefonso, and Pueblo of Tesuque). Of the six bills, President Obama
signed two of the bills, which settled water rights claims for nine
Indian tribes.
IV. Future Challenges
We recognize that much work remains to be done in this area.
Through the Federal Negotiation Teams, we are actively participating in
ongoing negotiations to settle water rights claims in a number of
States including Arizona, Montana, New Mexico, and California. As I
stated previously, legislation to approve the Blackfeet and the Navajo-
Hopi settlements is currently pending in Congress. We look forward to
working with this Committee and the stakeholders of these settlements
to produce strong settlements that the Administration can support.
During the litigation, assessment and negotiation phases, the
Bureau of Indian Affairs' (BIA) Water Resources and Water Rights
Litigation and Negotiation Programs provides technical and factual work
product in support of the Indian water rights claims. This program
provides the major financial support for the United States to defend
and assert Indian water rights. The funds are used by the United States
and tribes for activities associated with establishing or defending
Indian water rights through negotiations and/or litigation. Program
funding is critical to supporting and advancing on-going Indian water
rights litigation cases and the federal and tribal negotiations being
conducted to secure adjudicated water rights in lieu of litigation. In
the Indian water rights litigation cases, BIA water programs staff
coordinate with the Department of Justice and Interior's Office of the
Solicitor to provide expert witnesses and consultants' studies to meet
court and other deadlines. In addition to providing negotiation and/or
litigation support for Indian water rights claims, funds are used for
technical research and studies to develop and substantiate the United
States' claims for Indian trust water rights. For fiscal years 2010 to
2012, funding for this program averaged around $8 million. For FY 2013,
the budget request is for $8.6 million.
Another program within the Department that provides assistance for
Indian water rights claims is the Native American Affairs Program
(NAAP) within the Bureau of Reclamation (Reclamation). NAAP provides
technical support for Indian water rights settlements, and to assist
tribal governments to develop, manage and protect their water and
related resources. This office also provides policy guidance for
Reclamation's work with tribes throughout the organization in such
areas as the Indian trust responsibility, government-to-government
consultations, and Indian self-governance and self-determination. For
fiscal years 2010 to 2012, funding for this program averaged around
$6.8 million. For FY 2013, the budget request is for $6.4 million.
One of the questions that we must wrestle with, and that we would
like to engage this Committee and other stakeholders in further
discussions of, is how to fund Indian water rights settlements going
forward. Until recently, water rights settlements generally were funded
through the Department's discretionary appropriations. Work to be
performed under the settlements by Reclamation has come out of
Reclamation's budget, and other settlement costs generally have come
out of the BIA's budget.
Recognizing that discretionary budgets have been coming under
increasing pressure in these tight budget times, Congress recently has
included provisions for a variety of innovative funding mechanisms in
water rights settlements. The Claims Resolution Act, for example,
provided approximately $650 million of direct funding for the water
rights settlements enacted therein, plus an additional $180 million of
funding for the Navajo-San Juan settlement enacted in Pub. L. No. 111-
11 (Mar. 30, 2009). Consistent with the budget rules established by the
Statutory Pay-As-You-Go Act of 2010 (PAYGO), Pub. L. No. 111-139 (Feb.
12, 2010), Congress must provide for offsets of direct spending
contained in legislation in order to avoid increases in projected
deficits, and all spending contained in the Claims Resolution Act was
fully offset.
Another approach that Congress took in section 10501 of Pub. L. No
111-11 (Mar. 20, 2009) was the creation of the Reclamation Water
Settlement Fund. Starting in 2020, this fund will provide a limited
level of funding in Indian water rights settlements enacted by Congress
involving a role for Reclamation. Because funds from this source are
direct spending not subject to further appropriation, increased use of
this fund would require offsets to meet the requirements of statutory
PAYGO. Congress also provided some funding for future Indian water
rights settlements through provisions of the Arizona Water Rights
Settlement Act of 2004, Pub. L. No. 108-451 (Dec. 10, 2004), providing
that $250 million be made available from the Lower Colorado River Basin
Development Fund to fund Indian water rights settlements in the State
of Arizona. Again, since it provides for direct spending, increased use
of this fund would require offsets to meet the requirements of
statutory PAYGO.
Another issue that settlements face is the need to raise awareness
of the value of these settlements to all sides, including at the
federal level. Some in Congress are now questioning whether Indian
water rights settlements represent an overall benefit to taxpayers when
balanced against the potential consequences and costs of continued
litigation over Indian water rights claims. In the settlements that
this Administration has supported, and that we would support in the
future, I can tell you that we believe the answer is a resounding yes.
The consequences and costs of litigation are different for every
particular settlement and, as discussed in the Administration's
testimony presented on Indian water rights settlement bills in the last
Congress, are not always susceptible to simple quantification. They
include the rancor between neighbors that contested litigation can
cause, which may last long after the water rights have been
adjudicated, as well as the prolonged uncertainty due to the time it
takes to litigate complex stream adjudications. Both rancor and
uncertainty can have substantial economic consequences for both Indian
and non-Indian communities, preventing needed investments in businesses
and infrastructure that require reliable water supplies in order to
function.
To be clear, Indian water rights settlements should not be
categorized as ``earmarks.'' The U.S. Supreme Court's Winters doctrine
establishes the senior rights of Indian tribes to water to fulfill
reservation purposes. Water rights and related resources are trust
assets of tribes, and water rights settlements enable the Federal
Government to protect and enhance those assets. As described in this
testimony, the Department has an established program that guides the
process of negotiating Indian water rights settlements that satisfy
federal criteria. Under the Criteria and Procedures, the Administration
carries out careful analysis of the appropriateness of the costs of the
settlement. Our support is not provided lightly; we have come to this
Committee and testified regarding our concerns with proposed water
rights settlements that we do not find to have met our requirements for
reducing costs, including appropriate cost shares, and producing
results. Settlements that are approved through this process are not
earmarks.
V. Conclusion
State and local governments, as well as Indian tribes, favor water
rights settlement because they can be directly involved in shaping
their own destinies, rather than having their fate to be decided by the
stroke of a judge's pen. The Federal Government should continue to
encourage these local efforts to resolve outstanding issues and
establish water management regimes that can be the basis for, rather
than a drag upon, strong local economic development.
Protracted litigation does not, ultimately, provide solutions to
the real problems that communities are facing. Indian water rights
settlements can spur desperately needed cooperation. From shortage
sharing to water marketing to protection of instream flows, settlements
allow people to identify the needed mechanisms to enable investments in
a common future. In addition to establishing the basis for the courts
to decree rights, these settlements often include infrastructure
projects allowing tribes to make use of their water. Recent settlements
have provided for projects that will provide desperately needed access
to safe drinking water on reservations. These projects can improve
public health, providing basic foundations for improving, health
indicators such as infant mortality rates, and stimulating and
sustaining economic development and growth in tribal communities.
According to the Indian Health Service (IHS), today, less than 1
percent of the population in the United States is without access to
safe water, while more than 12 percent of American Indian and Alaska
Native homes are without access to safe water. \1\ As a result, for the
young and old, water-hauling is a way of life on some reservations--a
full-time job that limits economic opportunities and perpetuates a
cycle of poverty. In these communities, tribal members routinely truck
water from storage tanks at stock ponds, or other non-potable or
contaminated sources, raising serious public health concerns. According
to IHS, many of the homes without access to safe water are at an
extremely high risk for gastrointestinal and respiratory diseases at
rates similar to developing countries. \2\
---------------------------------------------------------------------------
\1\ See Testimony of Robert McSwain, Deputy Director, Management
Operations, Indian Health Service, before the United States Senate
Committee on Banking and Housing, Oversight Hearing on: Coordination
between Federal Agencies Involved in Native American Housing and/or
Infrastructure Development (Mar. 8, 2012) at 4.
\2\ Id.
---------------------------------------------------------------------------
In conclusion, I want to underscore how important this
Administration believes these settlements to be. Secretary Salazar is a
strong supporter of Indian water rights settlements, and he has been
personally involved in efforts to make these settlements a reality. As
discussed in this testimony, Indian water rights settlements, when they
are done right, produce critical benefits for tribes and bring together
communities to improve water management practices in some of the most
stressed water basins in the country. Moreover, Indian water
settlements ensure that Indian people have safe, reliable water
supplies and the means to develop their homelands. I hope that I have a
chance to work with this Committee and with all the stakeholders
assembled today on additional settlements that can accomplish these
worthy goals.
The Chairman. Thank you. May I ask you to wait a few
minutes here? I would like to, before moving to Mr. Laverdure,
to ask the Vice Chairman of the Committee and Senator Udall for
his opening statement. And we will proceed back to Mr.
Laverdure.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you, Mr. Chairman. I am very
pleased to be with you and thank you for holding this hearing
on Indian water settlements. Water is a vital resource, as we
know, in any community, including Indian communities. We all
know that a community cannot thrive without an adequate,
reliable supply of water.
And yet many Indian reservations lack the basic water
supply and water delivery systems that many of us living in
non-Indian communities almost take for granted. Safe and
adequate water supply facilities are lacking in approximately
12 percent of American Indian and Alaska Native homes. That
compares to 1 percent of the homes for the general population
of the United States. The lack of reliable, potable water
supplies contributes to a wide range of health, social and
economic problems on many Indian reservations.
Last year, Mr. Chairman, we held a field in Wyoming on the
topic of deferred maintenance on the Wind River Irrigation
System. Irrigation is a very important component of the Wind
River economy. It means income for the tribes and for many
tribal members. At that hearing, we learned that the water
delivery system on the Wind River Reservation, like many other
reservations, is in a state of significant disrepair.
Chronically deferred maintenance leads not only to an under-
performing irrigation system, in some cases it threatens the
system's future viability.
Water settlements are one way of addressing these issues,
at least on some reservations. I must point out, however, that
not all Indian tribes have a pending water settlement as a
mechanism for funding the repair of their water systems. But
that certainly does not mean that their water infrastructure
needs are less urgent. They are not less urgent or less
important. Not at all. Perhaps, Mr. Chairman, we can take a
look at that topic at a future hearing.
I want to thank the witnesses for being with us today, and
I look forward to the remaining testimony and then the
questions. Thank you, Mr. Chairman.
The Chairman. Thank you very much for your statement.
Senator Udall, your opening statement.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you very much, Chairman Akaka and Vice
Chairman Barrasso, for holding this important hearing. I can't
think of anything more important to Indian Country than the
settling of water rights. It is such a serious issue and
significant federal issue across the Country and in New Mexico.
It is wonderful to see the great team, David Hayes, that you
have pulled together to work on this: Letty Belin, I know has
extensive experience, Pam, all the others, and Mike Connor is
also no doubt very capable. Part of the reason is some of the
great experience he got up here on the Hill.
So thank you for doing that, we really appreciate it.
I think we all recognize the large cost that goes into
negotiating settlements, paying for legal counsel and
implementing the infrastructure components included in many
settlements. Despite the large costs, I believe these
settlements are vital to tribes and the surrounding
communities. I believe that ensuring that tribal water rights
are secure is a trust responsibility of the Federal Government.
In the current atmosphere of fiscal conservatism, I hope
that we can still commit to negotiating and implementing water
settlements without pitting tribe against tribe in a
competition for funds. Such tension, I think, is wholly
inappropriate. I think that we also recognize the time that it
often takes to get these settlements negotiated and
implemented. I was pleased to work with many of my colleagues
over the last several years to finalize the Navajo, Aamodt,
Abeyta water settlements. Each of these took decades to
complete, with Aamodt and Abeyta each representing 40 years of
litigation. It is my hope that we can identify ways to make the
process of settling tribal water claims faster and that we can
help to ensure that water claims continue to be given due
attention by this Administration and future Administrations.
I applaud what Interior and this team has done on all these
settlements. Thank you for being here and I look forward to the
questioning.
I see now that my colleague from Montana, there are a lot
of water settlements in Montana, and my colleague here, Senator
Tester is here to speak up on that issue. So I would yield.
The Chairman. Thank you very much, Senator Udall.
Senator Tester, please proceed with your statement.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Chairman Akaka. I want to
welcome three of my favorite people from the Department of
Interior here to the Committee today. I very much appreciate
the work that you do and have done and will continue to do
moving forward. You have a tough job, particularly when it
comes to water. Water in the west, you guys know all the
sayings that revolve around it. But it is very important, it is
indeed the foundation of life.
When we talk about Indian Country and us having the duty to
supply them with adequate sources of water for drinking,
irrigation, residential, municipal uses, the list goes on, it
is a big issue. It for the most part deals with water and
dollars and both are getting to be in short supply. It deals
with a lot of hard work being done at the State level, a lot of
hard work being done at the local level and Indian Country. And
ultimately, it involves an investment for the long term.
In Montana's case, in an area that needs all the economic
opportunity that we can help provide them with and water is a
foundational resource for economic development.
We have done a lot of work in the State of Montana. We
still have a lot of work to do. We have had our share of
successes. But we have our share of logjams, too. I look
forward to working with the people sitting at this table and
others in Indian Country and throughout the State of Montana
and within the Administration to make some of these critical
long-term investments a reality. It is one of the most
important issues in Indian Country, and there are a lot of
important issues in Indian Country.
So thank you all for being here, I appreciate it. I look
forward to the questions and answers when we get to them.
The Chairman. Thank you very much, Senator Tester.
And now we will return to our witnesses, and follow the
order that Mr. Hayes is suggesting, and call on Mr. Laverdure
for your comments.
Mr. Laverdure. Thank you, Mr. Chairman, Mr. Vice Chairman
Barrasso, Senator Tester and Senator Udall.
I think most of what I had to say has already been stolen
in the opening statements. So the only thing I will mention is
just personal experience and having been through that process.
Water truly is the foundation for life. It is sacred, and there
are many prayers and ceremonies that many people across the
Nation pray for, that they have safe and reliable drinking
water, and their next generation and their next generation will
be protected.
So some of these successes that the Administration has had
I have been happy to be a part of them. I was of course recused
from Crow, but I was involved in the legislation very early
some years ago, when Senator Tester took the torch and really
ran with it, and Senator Baucus came through, as well as many
others.
But most importantly, these water settlements, in securing
them and delivering them, make a real impact on the daily lives
of Indian people. I can't think of anything more important than
helping to develop water systems in order for people not to go
without and to increase housing, to provide the opportunity for
economic and energy development.
I know sitting back in the old condemned IHS hospital in
Crow Agency, we used to sit and talk amongst each other, as
Crow people. What we would constantly do is debate what we
would do if we could ever get our water settlement. Certainly
that day finally did come, through a number of people's
efforts, including David Hayes here and Secretary Salazar as
well.
I remember when we were talking, we would discuss, I had to
haul my own water even before my appointment up here, as did
many of my relatives. Just the fact that we had to go mile and
miles and miles with our cisterns and fill those up and come
back, just to have it so we could make it week by week, and if
you are fortunate, a couple weeks at a time, and hauling your
own trash and the like.
So I just want to say that I have walked the walk, I have
lived it. I can only emphasize how important not only the
subject matter is, and the successes that we have had, but we
have a long way to go for many other Indian nations. I think
that at the end of the day when we look back, I hope that all
of us collectively working together can say that we finally
fulfilled that treaty promise of so many generations ago, and
that from this point forward, we can look forward to others
having what so many others have taken for granted, as said
earlier.
Thank you for the opportunity to provide those words.
The Chairman. Thank you very much.
Mr. Connor?
Mr. Connor. Mr. Chairman, Vice Chairman Barrasso, Senator
Tester, Senator Udall, it is a pleasure to be here with you
today.
It is always problematic for me to have to follow David
Hayes and Del Laverdure, particularly when Del speaks from his
own personal experiences. But I will give it my best, and try
and stay focused very briefly on what the Bureau of
Reclamation's role is with respect to Indian Water rights
settlements.
As David mentioned, we are part of a team that helps
negotiate these settlements. We have a role, we have access to
expertise and we have access to water, which is very important
to settle these claims. So we are glad to participate and be
active members of the negotiation process.
But what our real focus is these days, and we think we have
a special responsibility at the Bureau of Reclamation, is to
implement these settlements. We have been charged with
significant responsibilities in developing infrastructure that
is critical to successfully implement these settlements. So
those responsibilities and those benefits are what a lot of you
have already mentioned in your opening statements. We want to
make progress quickly in allowing tribes to realize the
benefits of these settlements. We are focused on the need not
to be lackadaisical about the longstanding lack of water in
Indian Country. We want to make sure that we help ensure the
certainty that these settlements are intended to provide, both
to the tribes in access to safe, reliable water supplies as
well as for the surrounding communities with the resolution of
claims.
Then finally, we think we have a role in promoting
prosperity in Indian Country through the implementation of
these settlements. We take that very seriously. What I mean by
that is it is both the short-term and the long-term role that
we have. We look at the settlement responsibilities that we
have right now through the Claims Resolution Act, the Navajo-
San Juan settlement that we are responsible for and other
matters going on in Arizona, the Arizona Water Settlement Act.
We will be needing to expend, over the next decade, on a
consistent basis, somewhere in the neighborhood of $150 million
to $200 million per year to develop the infrastructure needed
to implement those settlements. If you look at those levels of
dollars and you take the figures that we used in the Recovery
Act about job creation, $92,000 per job, we are looking at
consistently over the next decade sustaining 1,600 to 2,200
jobs per year, and expending that kind of money in developing
the infrastructure.
That has short-term benefits in Indian Country, plus as all
of you have mentioned here, there are long-term economic
benefits from having the foundation of water that is so
critical to many communities, to have long-term economic
benefits. So we have substantial resources in hand, as David
mentioned, through the mandatory funds we have available. That
is not to say we don't have budget challenges in the future,
but at the Bureau of Reclamation, we are very much focused on
getting to work right now and helping to realize the benefits
of these settlements in Indian Country.
Then finally, I would just note that I have had a lot of
terrific experiences as Commissioner of the Bureau of
Reclamation, but none have been more meaningful than the
celebrations, the ceremonies that I have gotten to participate
in in celebrating these recent settlements, whether it is in
Navajo Country, whether it was on the Crow Reservation, and the
Aamodt celebration that we had in Santa Fe. It is so meaningful
to so many of these tribal communities to know that they are
going to have access to long-term clean water supplies and that
makes this very rewarding.
Thank you very much.
The Chairman. Thank you very much, Mike, for your comments.
I am going to ask Secretary Hayes two questions, then I am
going to defer to the Committee and come back, because I have
further questions for you as well.
Secretary Hayes, can you please elaborate on why it is in
the best interest of the United States to pursue negotiated
water settlements instead of litigating Indian water claims?
Mr. Hayes. Yes, Mr. Chairman, and I notice that there are
poster boards here that have stolen my thunder. The reality is
that, in our judgment, settlements are the way to go. Why?
Because Indian water rights affect not only tribal members, but
also non-Indians. A lot of the issues associated with
unresolved Indian water rights include the uncertainty that
non-Indians encounter when they have been relying for many
decades on water supplies. It is very important that in a
settlement, we not only resolve the Indian water rights, but we
also provide certainty to the non-Indian as well. You can only
do that through a settlement.
Secondly, as I referred to in my testimony, judges cannot
provide wet water. At most, they can confirm the water right.
But you have a whole other step to get water to the
reservation. We think it makes sense working closely with the
Congress to handle both of those issues. Because what this is
all about, as Assistant Secretary Del Laverdure commented, is
about fulfilling the trust responsibility. And we feel this is
a key part of it.
For other elaboration, I simply refer everyone to the
excellent poster boards. Thank you, Mr. Chairman.
The Chairman. Thank you for your response.
Secretary, once a settlement is in the implementation
stage, if the parties have a breakdown of communications, what
happens to get them back on track? Is there a role for Congress
when conflicts like that develop?
Mr. Hayes. Senator, there can be. We understand that
implementation is an incredibly important part of the exercise
of delivering the benefits of Indian water rights settlements.
That is why we have implementation teams. We do not stop with
the passage of the law. These teams are multi-disciplinary.
They include lawyers from the Department of Justice. We work
very hard to work through those issues and to effectuate the
intent of the Congress as written in the legislation.
Occasionally we have to come back to the Congress, but we
view that as certainly not ideal. What we try to do is
implement the will of the Congress as we see it.
The Chairman. Thank you very much.
Senator Barrasso?
Senator Barrasso. Yes, Mr. Chairman, if I could, I just
wanted to follow up, because I think it is an excellent chart
of the settlements versus litigation. The thing that caught my
eye was the component that it is less time-consuming on the one
side, of the settlement. The litigation, it takes decades to
resolve. I just wonder if you could share with the Committee a
little bit about really what the differences are, how quickly
we could hope for settlements versus what your history is of
how long some of these have really taken to resolve.
Mr. Hayes. Mr. Vice Chairman, Senator Barrasso, I think it
is an excellent point. I will give one vignette. When I was the
Deputy Secretary before in the late 1990s, I went to a judicial
conference of judges who do water settlements. And the judge
who was handling the Aamodt settlement in New Mexico stood up
and said, this is the longest-standing federal case in the
entire Country. And I don't want to hear anything more about it
the rest of this conference.
That was 14 years ago. And that is an example. These things
can go on for decades, in part, I think, Senator, because the
parties cannot, through litigation, get what they need. None of
the parties can get what they need. And what happened in that
case, in the last two or three years, was with the prospect of
an interested bipartisan Congress wanting to solve it, and an
interested Administration, we were able to break through in a
matter of months.
So if there is will, if there is Congressional support, as
we have had here, we have enjoyed on a bipartisan basis, you
can cut decades off of what otherwise would be a very expensive
and a non-productive litigation.
Senator Barrasso. Thank you. Thank you, Mr. Chairman.
The Chairman. Thank you very much.
Senator Tester?
Senator Tester. I appreciate that, Senator Udall. The
reason I appreciate that is because Del will be able to know
this, Montana is playing Wisconsin right now.
[Laughter.]
Senator Tester. So I need to know what is going on there.
I just wanted to visit with you a little bit, Secretary
Hayes, on negotiating teams. The Department and other federal
agencies participate in settlement discussions at the local
level through federal negotiating teams. I see Susan Cunningham
here who was a State rep, has done a great job negotiating for
the State.
However, from the federal level, I often hear that these
teams participate in discussions, that they really have no
decision-marking authority so they make little progress and
negotiations drag on. Is that what it was intended to be, is
advisory only? And do you think it would be beneficial to
change that? I personally do, but I would like to get your
perspective.
Mr. Hayes. Senator, we actually work hard to provide the
negotiating teams with access to decisions from the Department.
And the way we do it is through the shy intervention of Pam
Williams, who is the Director of the Secretary's Water Rights
Office, and an old hand at these things. And with Letty Belin,
my counselor, as overall in charge of this effort, when
negotiating teams are at a critical stage and they need input,
they can get it. And if, Senator, there are occasions where you
are hearing that is not the case, please let me personally
know. Because it is important that we be able to provide real
guidance to these negotiating teams.
Senator Tester. Okay. I now want to talk a little bit about
appropriate non-Federal, State, that is, costs. Several times
in the past, well, DOI opposed one of my settlement bills
because, at least the reason was given, inefficient non-Federal
or State cost share. Obviously the State of Montana thought
their cost share was plenty adequate.
Do you have, is there a formula that you guys use in
finding out what that number is? Is there any guidance you can
give the State ahead of time saying, if you are going to have a
$500 million settlement, you need $50 million or $100 million
or $250 million to get this thing through?
Mr. Hayes. Senator, we don't have a formula, because each
settlement is different, one against each other. The idea here
is that to the extent that you have special benefits going to
non-Indians, in addition to the certainty, but in terms, for
example, of infrastructure, et cetera, there is a view that
there should be a State share.
We try to work this out collaboratively with the State
parties. We have had good success, including with Susan
Cunningham, the aforementioned, and other representatives of
the State of Montana. We have an open door policy to try to
work through these issues.
Senator Tester. I appreciate that. We could flesh that out
a little more, but if that would have been the case, the State
share shouldn't have been the problem, then. It was one of the
problems in that. And I don't mean to put you on the spot. But
that was an issue.
In 2008, and I remember this very well, Congress included
an emergency fund for Indian safety and health in the global
AIDS/HIV bill. Authorized some $600 million to fund these
settlements. It was a fair amount of dough. I just want to
know, is it true that these programs have never been set up to
take advantage of this appropriation?
Mr. Hayes. Senator, as you know, it is an authorization,
not an appropriation. But we have been working on this, in
fact, we are going to be delivering a letter to the Hill
tomorrow that lays this out. As you know, three different
departments are involved. And we very much appreciate the
opportunity to lay out the needs, both for health issues, water
issues, as well as public safety issues.
Senator Tester. I appreciate the correction. I was just
checking to see if you were listening.
[Laughter.]
Senator Tester. The other thing is, is the agency set up in
a position so they can make the request once the money is
appropriated?
Mr. Hayes. I believe so. We are good at making requests,
Senator.
[Laughter.]
Senator Tester. That is good.
Del, I would be remiss if I didn't at least ask you a
question or two. I will leave it to probably a couple. Last
fall, you offered to be the Department's point man on
negotiations with the Blackfeet water settlement. We are still
hoping to get a final product done as soon as possible. We are
in the middle of March. Can you give me an update on how things
are going with the Blackfeet water settlement and with a
potential estimated time line?
Mr. Laverdure. Yes, thank you, Senator Tester. I am
conflicted on the Montana-Wisconsin game. I went to school in
Wisconsin and taught there, but I know where my roots are.
Senator Tester. That is right, Montana go.
Mr. Laverdure. You had asked me and I affirmed that I would
be the point person. We have had some half dozen in-person
meetings out at Blackfeet itself, and we are scheduled to
actually be there next week in Great Falls. We are going to
meet with the tribe again and deliver some of our reactions to
some of the numbers that have had the technical reports behind
them. We have consistently had conference calls, probably three
or four with your staff and Senator Baucus' staff, even during,
in between all those meetings, to give updates.
So I think, and they consistently ask for some certain
deadline. But is always dangerous to even promise that. The
only thing I can assure you is that it has all the time and
attention of some half dozen people working all the time on
Blackfeet. That is one of only a handful to have that kind of
resources devoted to it. So however the tribe reacts to the
reactions that we have to the underlying dollar amounts I think
is going to have a lot of impact on that timing.
Senator Tester. Well, I appreciate that attention and sorry
I didn't ask you some questions, Mike, but thank you for being
here.
The Chairman. Thank you very much, Senator Tester.
Senator Udall?
Senator Udall. Thank you, Chairman Akaka.
I wanted to ask the panel a question about the, if you
reach an impasse about negotiation, and it reminds me that we
have in the audience back here the new Governor of the Zia
Pueblo. His name is Governor Shije, it is good to have you
here. And I know that the Zia Pueblo, Santa Ana and the Jemez
Pueblos have been negotiating a water settlement with the
Administration and the State for five years now, and are
getting close to an agreement. I just want to recognize that
Governor, you are here, and I know the former Governor and
tribal administrator Pete Pino is here, good to see you. And
the head of your legal team, I think your legal team headed up
by David Mielke, I think is also here.
So this question kind of goes to folks that are in the
process, not a settlement that we have already gotten into. In
your experience, what happens when the parties to a settlement,
which would typically be the United States and one or more
tribes, reach an impasse? Particularly if the impasse is over
the Government's legal position on an issue. How does this
typically get resolved? Any of the panelists that want to jump
in here. I know that you have been very effective at resolving
some of these. So maybe you could give a sense to folks that
are looking in from the outside, David, and trying to get a
sense, how do they break through on these kinds of impasses.
Mr. Hayes. Senator, I will take a quick effort at that and
ask Mike and Del to give their observations.
We do have the Department of Justice involved, if there is
a legal issue, a purely legal issue, we work with the
Department of Justice on our team. If there are differences in
the federal family, we will bring those, elevate those issues
up the Justice Department chain, just like at Interior.
There are occasions when we come to a view that is at odds
with the tribe and we cannot resolve them. And generally, we
sometimes have to put them aside for a while and see if we can
return to them. But we try very hard to be as flexible as we
can. We are moving toward, on the issue of waivers, for
example, standard approaches, so that folks going into the
negotiations understand where we are and where we need to be.
And we hope that helps.
But I would ask Del, perhaps, to give his view, and Mike.
Mr. Laverdure. Senator Udall, just very briefly, I know I
have been part of a number, and I am sure Pam and Letty here
could add into the experience. I have found that when the
tribes have position of, it could be any number of things,
whether it is a dollar amount or a certain item needs to be
included in the legislation, we typically reconvene the entire
team that you see here when we have these logjams. Then we get
pretty much the best practices and perspective and experience
of folks who probably have decades and decades of previous
experience resolving disputes. Then we just brainstorm to see
what is the real bottom line and the federal concern here, and
is there any way we can make movement on that, or can we
reframe this in a different way in order to find out if we can
get past that impasse.
I have seen it happen on a number of occasions, and there
are some where we just have to agree to step aside for a while
and let the positions kind of stay where they are until we can
go back at them, if we have seen any other experiences. So I
can just reiterate what the Deputy Secretary has said.
Mr. Connor. Senator Udall, I think I would just be
reiterating also that the idea, particularly what I wanted to
touch on that David had mentioned was the expectations aspect
of it, whether it is waivers or it is the criteria for Indian
water rights settlements that we use. I think going through the
four settlements and negotiating those to a place where the
Administration, I can tell you, we ran into impasses
consistently in the two years leading up to the Claims
Resolution Act.
I think what really helped is through that process, we, as
the Obama Administration, really defined how we were
interpreting those criteria. Once we had these basic principles
that we were trying to adhere to, the expectations were set and
then we could let the creative juices flow. And borrowing on
earlier settlements, as Del mentioned, people with experience,
about how we could address that principle through some creative
mechanism in the negotiation. I think we were able to do that.
Because you are asking the question here, I thought you
would probably want me to make a plug that New Mexico State and
UNM are both in the tournament later on today.
[Laughter.]
Senator Udall. That is correct. Very good.
Chairman Akaka, I have one more question that I can wait
until you ask yours and then go to mine. So if we are doing
another round, whatever you would prefer.
The Chairman. Thank you. Why don't you go ahead?
Senator Udall. Thank you.
Because David Hayes brought up the issue of the waivers, I
wanted to focus in on that a little bit. But I also want to
compliment David, because tribal leaders across the Country
were gratified to hear his words delivered in early November to
the National Congress of American Indians, when he said that
the Department will not, and I think I am quoting you
accurately now, David, will not allow ``legalistic
interpretations of the law to stand in the way of extending
basic Indian rights.''
I think that is what your testimony has been all about
today, is really showing that you want to focus on those basic
Indian rights. This Senator really appreciates that.
Now, one of the really positive things about individually
settling tribal water claims is that the settlement can be
tailored to meet the needs of the tribe or tribes involved, and
the non-native communities involved. On the other hand, I
understand through our work on Aamodt and Abeyta and the Navajo
settlements that the Administration is trying to keep these
settlements as uniform as possible, to keep equity in the
process and streamline the process. I believe this is
especially true regarding waivers that are generally included
in the final settlements.
Am I accurate in my description of the direction the
Administration is moving? Could you describe any efforts to
make this a more uniform process, considering the virtue of
settlements tailored to meet the needs of each tribe? Has there
been any loss of flexibility as your department has tried to
streamline these settlements as much as practical?
Mr. Hayes. Senator, we are in the waiver area trying to be
more clear that we want these settlements to be final
settlements, and to resolve all issues associated with the
quantities of water involved. We think that is in everyone's
interest. And the reason we are doing this in part is so that
we can get Administration support for these settlements. There
have been long periods of time when Administrations have really
not been players when it comes to trying to make settlements
happen. We think that the activist role the Obama
Administration has played in getting the President's approval
for settlements, and coming to you with Administration support
materially advances the likelihood of getting those
settlements.
And our ability to get Administration support, in turn,
relies on our ability as Mike was referring to, to demonstrate
that we are being even-handed, given the flexibility that is
needed from case to case, but nonetheless to have some
consistency. So we are working on that and we hope we are being
helpful in that regard.
Senator Udall. Thank you. I don't know if Mike or Del have
anything to add on that front? Okay. Thank you.
Thank you, Chairman Akaka. I really appreciate it. This
first panel I think is an excellent, very, very good panel.
The Chairman. Thank you very much, Senator Udall.
Let me ask a follow-up question here to Mr. Connor. Mike,
and this has to do with, again, several different capacities
throughout your career. You have worked on tribal water rights
and from your experiences, can you please discuss areas in
which the negotiation process can be made more efficient?
Mr. Connor. I think the efficiency in the negotiation
process goes to the discussion that we were just having. It is
really important that particularly the federal expectations are
known to the parties negotiating the settlements. What
typically has happened in my experience is that the parties get
together at some point in time during the litigation when they
acknowledge that maybe there is a better path to addressing
their needs and concerns.
They start having discussions among themselves, I think
even at that early stage, it is very important that they
understand what role the Federal Government can and is willing
to play. That is part, of what we have tried to do, not only in
the negotiations that we have been intimately involved in, but
also for those negotiations that are subsequently occurring
that they know what the expectations are with respect to
waivers, with respect to non-federal contribution, with respect
to parameters associated with the federal contribution.
So I think those expectations and then involving a federal
negotiation team as early as possible in that process really
starts to build some efficiency into the process. And of
course, part of getting a federal negotiating team is the
representation and the understanding that all the parties that
need to be involved in the process are willing to negotiate,
actively want to see a negotiation. That is one of our criteria
for putting together a team. And that is just incredibly
important to the process, to get everybody at the table as
early as possible.
The Chairman. Thank you for your response.
Mr. Laverdure, early financial support is an essential
ingredient to initiate settlement questions. What federal
resources are available to tribes in the early stages of water
settlements, and considering the economic conditions of the
Country, what alternative sources of seed funding are or should
be made available?
Mr. Laverdure. Thank you, Chairman Akaka.
In terms of the funding that is out there, we have really
three sources. The first is water resources planning, the
second is water rights litigation and negotiation and then the
final is the implementation. I think you heard quite a bit
about it from the Commissioner on implementation. So I will
focus on the first two.
Currently, and for our fiscal year 2013 budget, we have
$5.73 million in water resources planning requests and then in
the litigation-negotiation pile, we have about $8.6 million,
for a total of $14.3 million. As you heard, the number of teams
with up to 16 appointed negotiating teams, those dollars are
made available depending on which phase of the settlement that
they may be in. Sometimes it may be very early on, where they
are going to need an assessment. They will then utilize the
funds on a competitive grant basis to hire technical experts to
generate the studies, reports, the hydrology, the water
allocations, et cetera, so that they can begin the next phase,
which would be the negotiation phase.
That is when you have the second pot of funds. Typically
there is a variety of factors that are put into the grant
process. But they have pending legislation or longstanding
litigation, there is a priority that is provided. So a number
of other factors are taken into account. But those are the
primary pools of funds to start and then execute negotiations
for that senior tribal water right.
The Chairman. Thank you very much for that. That is always
good information that tribes can seek to use here.
Let me ask Secretary Hayes, can you reiterate why Indian
water settlements are not considered earmarks?
Mr. Hayes. Gladly, Senator. And I address this in my
written testimony. We clearly state in that written testimony,
which you have accepted for submittal, thank you, that water
rights settlements are not earmarks. Why? We are resolving
fundamental legal rights of American citizens. We are doing so
because we have a trust responsibility. We have a special trust
responsibility and it leads us to fulfill our legal obligations
and our moral obligations. We are looking to do that across the
Nation, without regard to locality, without regard to
individual circumstance. This is a broad, national imperative
that we have in the U.S. Government as trustee.
So there is no earmark quality to Indian water rights
settlements, in our judgment.
The Chairman. Thank you. Thank you very much for that
explanation.
I would like to ask Senator Udall whether you have any
further questions.
Senator Udall. I don't have any additional questions. Thank
you, Mr. Chairman.
The Chairman. I want to thank you so much. Your responses
will be helpful. And of course, each of us has said, there is
so much more to do on this. A kind of problem we have had in
the past was, we have let it go. And before you know it, a
century has gone by. We need to do better than that, and really
deal with some of the issues that are preset. That is what I am
trying to do, is bring them up and flush it out and try to find
answers as to how we can do it.
Of course, funding has been always a basic resource that is
needed. Maybe it is about time we not only depend on the
Federal Government to come across with those. But maybe we need
to leverage other resources as well, in trying to deal with
these issues and challenges that we will be facing.
But we have to work on this together. I am so glad that we
have personnel and people whose hearts are in the right place,
and we need to just continue to press for solutions to these
and to make it clear, so we know what the problem is, and try
to deal with it.
So it has been good to hear from you about, from your
experiences and your responsibilities, what is the best way of
dealing with this. So again, I am saying all of this to say
thank you so much, mahalo nui loa for your efforts and I look
forward to working with you. Thank you.
Mr. Hayes. Mr. Chairman, I want to thank you for your
leadership, and Senator Udall, for your leadership in these
matters. We cannot do this without your leadership and we very
much thank you again for calling this hearing and providing us
the opportunity to remind the American people collectively of
what our mission is and what we must do. Thank you.
The Chairman. Thank you very much. Thank you, Del and Mike.
Now I would like to invite the second panel to the witness
table. Mr. John Echohawk, who is Executive Director of Native
American Rights Fund. And Ms. Maria O'Brien, Chair of the Legal
Committee of the Western States Water Council. I want to
welcome both of you and look forward to working with you. We
would like to hear your testimony. So I am going to ask Mr.
Echohawk, thank you very much, you have quite a huge and great
background over the years. We always look forward to your
comments and look forward to that today. So will you please
proceed with your testimony?
STATEMENT OF JOHN ECHOHAWK, EXECUTIVE DIRECTOR, NATIVE AMERICAN
RIGHTS FUND
Mr. Echohawk. Thank you, Mr. Chairman, and Senator Udall,
for calling this hearing today and inviting me to testify.
As you said, Mr. Chairman, I have been around a while and
have a lot of experience in this area. As I think you know, the
Native American Rights Fund was started 42 years ago, as the
National Indian legal defense fund, and with tribal leadership,
identified the major legal issues that tribes needed to
address. So few of them had legal counsel back then, and had so
many rights that were really not being protected.
Tribal water rights was one of those issues that was
identified for us to work on, and we have been doing that for
the last 42 years. We have represented tribes in nine of the
cases that so far have been settled out of the 27 that have
been settled. So we have been through a lot, and we have more
to go. We are currently representing six tribes on their water
right issues.
For the past 30 years, we have had the honor and privilege
of working with the Ad Hoc Group on Indian water rights, which
is composed of the Western States Water Council and the Western
Governors Association. I am pleased to be on this panel today
with Maria O'Brien, who is representing the Western States
Water Council and this coalition, this partnership that we have
been able to form with the States on these tribal water rights
issues, has really been invaluable in terms of generating the
atmosphere for consideration of favorable Indian water rights
settlement policies. We continue to work with them in that
regard. I know Maria's testimony focuses on some of that
history and some of the specific issues that we are working
together with the Western States Water Council on now, so I
will leave that to her.
What I would like to do in my testimony, which I want to
submit for the record and just summarize here, is just to give
a broad overview of these tribal water rights issues and talk a
little bit about the future of these water issues for tribes.
As was discussed extensively in the last panel, we
certainly have something here that is a federal responsibility.
In practical terms, what happens out west is Indians and non-
Indians started staring each other down in court, and wondering
as neighbors why we had to do that. And we just looked around
and got a better understanding of the situation and really came
to the common realization that we were there because of what
the Federal Government did to us.
We have substantial rights as tribes that are held in trust
by the Federal Government that went unprotected. At the same
time, the Federal Government allowed States and others, through
federal laws and policies, to develop this water that we had a
prior right to. But as we tried to get it back, we saw that it
was being used.
So it set up the conflict. We came to the clear
understanding that the Federal Government put us in this
situation, so they have an obligation to help us find a way
out. And this settlement route that we have been following here
for the last 30 years is the way to go, and we are hoping that
we can continue in that vein.
As we talked about in the last panel, too, the cost of the
litigation is overwhelming, not only financially, but also in
terms of the tribal feelings about this whole process. The
water is sacred to the tribes, and having to deal with this
issue and carve up that resource is a very difficult thing to
do. We have a number of challenges before us as we look to the
future. We have to try to get around the status quo, because
that only helps the current water users depend more and more on
that water, and makes it more difficult for tribes to ever get
access to any water. So the status quo does not work for us.
When I say us, I am talking about many, many tribes across
the country. We have made a lot of progress, but there are many
more to go. We have these negotiation teams in place, but there
are more requests, more tribes that need to get involved in
this process and move forward.
It is made all the more important these days because of the
implications of climate change and how that is affecting
everything. There is more of a need to get all the tribes
involved and to deal with these issue as quickly as we can, so
we can reach that certainty that we need. And we look forward
to working with the Committee as the Native American Rights
Fund and as a member of the Ad Hoc Group on Indian Water Rights
to help the country move forward to resolve these issues.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Echohawk follows:]
Prepared Statement of John Echohawk, Executive Director, Native
American Rights Fund
Mr. Chairman, I want to thank you for holding this hearing and
giving me an opportunity to testify. I am John Echohawk, a citizen of
the Pawnee Nation of Oklahoma. I am a lawyer and Executive Director of
the Native American Rights Fund, the national Indian legal defense fund
headquartered in Boulder, Colorado.
Among the many important Native American legal issues that we have
been addressing in the past 42 years of our existence has been tribal
reserved water rights. During that time, we have been involved in nine
tribal water rights cases that have resulted in negotiated settlements
that have been approved by Congress. We are currently representing six
tribes on their water rights claims.
For the past thirty years, the Native American Rights Fund has
worked with the Western Governors Association and the Western States
Water Council to promote favorable tribal water rights settlement
policy. I am pleased to be on this panel today with Maria O'Brien who
is representing the Western States Water Council. Her testimony covers
how our two organizations have worked together to promote tribal water
rights settlements and some of the specific issues that we are focusing
on today. In my testimony, I want to give the Committee a broad
overview of tribal water rights issues and the future of water in
Indian country.
Federal Responsibility
Indian tribes possess substantial claims to water to support viable
reservation homelands and, in some cases, off-reservation stream and
river system ecosystems necessary to support fishing, hunting,
gathering, ceremonial and cultural rights specifically reserved by
tribes as part of 19th century treaty negotiations with the United
States. These reserved rights to land and other natural resources were
part of a bargained for exchange in which the United States sought and
received the perpetual relinquishment of land to open vast territory
for westward expansion and settlement--millions of acres of land. So,
too, the tribes expected then and continue to have a right today to
expect the United States will hold to its promises.
A cornerstone component of the promise is the trust relationship;
the United States holds as trust assets these land and natural
resources and is imbued with the affirmative obligation to protect the
asset base for tribes.
During the same historical era as the treaty and reservation era,
the United States also enacted laws and implementing policies in the
19th century and early 20th century to encourage the settlement of arid
western lands and the development of the scarce water resources in what
became ``former'' Indian territory. Such laws included those permitting
the homesteading of ``surplus'' Indian reservation lands, when
reservations were allotted under the authority of the General Allotment
Act of 1884; the Homestead Acts beginning first in 1862; and the
Reclamation Act of 1902. (These laws were silent on their effect on
prior, pre-existing Indian tribal rights to the use of water, and such
rights cannot be abrogated without express consent of Congress.)
Thus, the United States created the conflict over the development
and use of western water resources and the recognition and respect of
reserved Indian water rights. These conflicting tribal and settler
rights and expectations must ultimately be resolved. It is therefore
the responsibility of the United States to facilitate and fund the
resolution of such conflicts consistent with its trust responsibility
to Indian tribes, irrespective of whether in a litigation or settlement
context.
Costs
Complex water rights litigation has cost tribes millions of dollars
in technical and legal costs with no apparent end in sight. Several
federal cases in New Mexico have spanned five to six decades. The Gila
River and other tribes in Arizona have been involved in state water
litigation since 1974, with at least nine trips to the Arizona Supreme
Court (not all involving Indian water issues, per se, but the tribes
are parties to the litigation and presumably have had to actively
participate). The Wind River Tribes in Wyoming have suffered a similar
litigation fate, fighting in state court since 1977 with almost as many
trips to the Wyoming Supreme Court. The Confederated Salish and
Kootenai Tribes in Montana have been on a similar path, but recent
press accounts hold out promise for a negotiated resolution to their
water conflicts.
Despite and against all odds, Indian tribes have still secured
about two and a half dozen water settlements over the past 35-40 years,
since federal Indian policy encouraged settlement as opposed to
prolonged litigation. Dozens more tribes are either in various stages
of the negotiation process or are in the queue waiting for the
resources to engage in the process. Dozens more after them have not the
resources to understand the nature and extent of their Reservation
water resources, the hydrology of the river systems upon which they
depend, or of the extent of the state-law-based water rights and
competing uses that are squandering the resource. Sadly, in the last
10-15 years we have seen a general trend toward the dwindling of these
federal resources at a time when enhanced resources could have seen
more settlements mature, ripen and come to fruition.
Litigation and settlement over a resource as sacred to Indian
tribes and Indian people as water will always be emotional. Tribes will
always view these processes as a two-edged sword. While on the one hand
there are benefits to be gained from quantifying and decreeing Indian
water rights--the delivery of wet water--there are costs. Because of
the McCarran Amendment, tribes are in the perilous position of having
claims to water rights waived if they do not participate in state court
water adjudications. And there is always the feeling that something
else of importance to Indian people is being taken away by the majority
society; like in the treaty era of the 19th century, the work of
Manifest Destiny continues largely unabated.
The United States, by investing more money in Indian water
litigation and settlement, would actually save time--more of the work
of protecting Indian water rights and resources would be completed in a
more expeditious manner. Although, we still are talking decades to
resolve all of these claims, not years. What is the likelihood of a
greater investment in Indian water litigation and settlement occurring
in this era of intense pressure on domestic budgets? Slim. With
significantly fewer human and financial resources to invest, the United
States will not be able to speed up the work of finishing the ultimate
task.
Challenges
Many may not want the United States to speed up the process,
though. The passage of time advances non-Indian water resource
interests. Watersheds with unquantified and un-decreed Indian water
rights have typically been viewed as having a ``cloud'' on the
availability of the resource. That has been the impetus, in large
measure, for states to commence general stream adjudications and to
haul federal and Indian interests into state court to sort out rights.
But state governments are as financially hard pressed, if not more so,
than the Federal Government, and adjudications are very expensive. The
result is the protection--sometimes unwittingly, sometimes
intentionally--of the status quo, in the face of unresolved Indian
claims. The giving away of more and more water in river systems for
non-Indian purposes-either through state regulation or, equally
insidiously, the non-regulation of groundwater development or small
pond/impoundment proliferation--ultimately advances the interests of
some of those who oppose Indian water rights. And with each molecule of
water that is given away to non-Indian interests as tribes await the
assistance of the United States to assert, litigate and/or settle their
water rights, the ultimate resolution of competing claims to water in
any watershed becomes more difficult.
Tremendous progress has been made to date in the settlement and
sorting out of Indian water rights, but much more work remains.
Consider the remaining challenges: The remaining tribes with claims to
water from the Colorado River; California and its more than 100
federally recognized tribes; Oklahoma with its 39 tribes sharing
essentially two river systems; the other Midwestern tribes with similar
concerns to those in Oklahoma over groundwater over-development and
water quality impairment; the tribes of the Dakotas and their reliance
on the Missouri River system which, with the Mississippi, is the most
heavily regulated commercial river in the United States; the coastal
tribes in California, Oregon and Washington with their enormous
cultural and economic interest in salmon fisheries and related habitat,
many of them with express treaty-reserved fishing rights; the Great
Lakes Tribes with off-reservation fishing and gathering habitat
protection interests; and the tribes of the northeast and southeast
which share many of the concerns faced by their brothers and sisters in
the rest of the country. And do not forget the tribes and Native
villages in Alaska, and the Native Hawaiian community in the Pacific.
Given the finite and very limited ground and surface water
supplies, particularly in the West, one tried and true method in past
successful Indian water settlements has been the reliance on water
infrastructure--primarily in the form of concrete--to increase the size
of the pie available to the stakeholders to a settlement. The several
Arizona Indian water settlements are largely dependent on the
construction of the Central Arizona Project. The new Navajo-Gallup
settlement depends on building a pipeline several hundred miles in
length. Of the remaining several hundred Indian tribes without
quantified and decreed water rights, will we be dependent on a new era
of dam and other infrastructure construction--more concrete? Is that
even possible with federal laws such as the Endangered Species Act in
place and not going anywhere soon?
There are also real concerns about some of the current ``rules of
the game'' that work a disservice to Indian interests. State courts
have traditionally been viewed as hostile to Indian rights and
interests, and the McCarran ``waiver'' of federal and tribal sovereign
immunity continues the possibility that Indian water rights will be
looked upon unfavorably by patriotic state court judges. The popular
election of state trial and appellate judges only enhances such
outcomes. The Practicably Irrigable Acreage (PAI) standard for
quantifying Indian reservation water rights also can unfairly
disadvantage tribes with reservation lands that either are not
economically irrigable due to soil or arid climatic conditions, and, as
we consider the claims of tribes east of the 100th Meridian,
disadvantage tribes with reservation lands not typically viewed as
requiring irrigation to make them agriculturally productive.
Finally, climate change looms as the wildest of wild cards. We know
for a fact that climate change and consequential drought will likely
not spare any region of the country. The recent water wars between
Georgia and Florida are but a presage to pressures to come. Will the
seven states of the Colorado River Basin ever be able to live on a
sustainable water budget that includes tribes? How will tribes'
interests play out against these larger forces?
State and local governments are already busily engaged in studying
the effects of global warming on already limited and over-stressed
water supplies. And planning the changes necessary to prepare for and
manage/mitigate the effects thereof. Tribes typically lack the
resources to conduct the same level of planning and preparation, and so
will be even more disadvantaged in litigating, negotiating and settling
their water rights in this ever-shifting context. The United States is
not doing enough to prepare tribes, in terms of mitigation and
adaptation resources and strategies.
Solutions
Real solutions must come from the United States. Some will involve
financial capital, but others lie in structural and organizational
changes made within the Federal Government to effectuate a more just
and expeditious resolution of Indian water claims. There must be put in
place internal federal mechanisms and the means to level the playing
field for tribes. Tribes must be given access to all necessary data and
information from which they can make informed decisions and set
priorities about protecting and asserting their water rights. This will
enable them to more fully engage their state and local partners in the
resolution of Indian water rights.
One state-created model is the Montana Reserved Water Rights
Compact Commission. Since its creation in 1979, the Commission has
completed 10 compacts with five tribes and three federal agencies in
Montana. Are there useful lessons to be learned from the Montana Indian
tribes' experiences with the Montana Compact Commission, and ways to
improve on it as a federal model? Any such federal compacting process
must necessarily avoid the unfavorable legacy of the Indian Claims
Commission which operated between 1946 and 1978.
The Native American Rights Fund and our clients stand ready to work
with the Senate Indian Affairs Committee to achieve meaningful
solutions.
The Chairman. Thank you very much, Director Echohawk, for
your testimony.
And now, Ms. O'Brien, please proceed with your statement.
STATEMENT OF MARIA O'BRIEN, LEGAL COMMITTEE CHAIR, WESTERN
STATES WATER COUNCIL
Ms. O'Brien. Thank you, Chairman Akaka, Senator Udall.
I am testifying today on behalf of the Western States Water
Council, as chair of the legal committee for the Council. And I
appreciate and the council appreciates the opportunity to
discuss the importance of Indian Water rights settlements to
western States and thanks the Committee for your leadership in
addressing this important and significant issue.
The Council is a non-partisan advisory body on water
policy, which is comprised of the 17 western States and is
affiliated with the Western Governors Association. My testimony
today is based on official Council reports, statements and
positions, as well as the Council's longstanding collaboration
with the Native American Rights Fund to support federal
policies that facilitate the negotiated resolution of Indian
water rights claims.
Today I will emphasize just a few of our interests and
concerns. I have attached to my written testimony the Council's
most recent position on Indian water rights. I will try to
summarize really three main points that are in that written
testimony. Most if not all of those points have been made
today. But I think it is important to note the position of the
Western States Water Council, representing 17 western States,
in essence supports much of what has been said here today by
Administration officials, from Committee members and from the
Native American Rights Fund.
Those points are this: quantification and resolution of
Indian water rights claims is absolutely critical to the
stability and certainty of State western resource management.
Second, resolution should be through settlement as opposed to
litigation wherever possible. And finally, the Federal
Government, as has been noted, has a trust obligation to
provide federal funding to assist in both the negotiation and
the implementation of these settlements.
Although Congress has authorized 27 Indian water rights
settlements to date, the water rights claims of many more
tribes remain unquantified, and the complexity as well as the
cost of resolving these claims is increasing. While there have
been recent successes, as has been noted, obtaining the federal
funding that is absolutely essential to resolve Indian Water
right claims has proven to be difficult.
I think in order to understand why this issue is so
critical to western States, I will just briefly note how State-
based water rights interface or really in some cases do not
interface with Indian claims to water. Water use west-wide is
based primarily on the notion of beneficial use. Who puts it to
use first gets a priority to use that in times of shortage.
Most non-Indian water development in the west occurred after
federal treaties and establishment of reservations.
Indian water rights were not included in State-based
appropriation systems and State users developed those rights
and the economies associated with that development independent
of any recognition of any pre-existing potential federal
rights. As was noted in prior testimony, or excuse me, Mr.
Chairman, in your opening statements, long ago in 1908 the
Supreme Court recognized that in creating reservations, tribes
did in fact have claims to water based on federal law necessary
to fill the purposes of treaties and reservations.
So these federal rights exist as federal enclaves in what
are in essence State systems based on historic federal creation
of reservations and treaties. Significantly, the rights are not
based on beneficial use and remain unquantified, uncertain and
in large part unknown until litigated in the context of a
general stream adjudication or until settled.
The unquantified nature of these rights therefore creates
great uncertainty to State-based systems and creates a lack of
stability for existing uses and western State economies. This
is because, again, these rights are based on present and future
needs of the reservations and have priority dates that
correspond to the date of the reservation, which is going to be
much prior to most State-based uses.
Because of this legal overlay, the resolution of Indian
water rights claims is therefore critical to western States.
Resolving Indian water rights claims is critical because of
their seniority and because these claims can be potentially
large, thus creating the real possibility of displacement of
long-established State-based rights. This is obviously
especially problematic in the water-short west, as many Indian
claims arise in river systems that are already fully allocated
to State-based uses.
Again, therefore, that unquantified nature of these Indian
water rights claims creates great uncertainty with regard to
State-based uses, and can in fact serve as an impediment to
local, State and regional economic development.
Mr. Chairman, I realize my time is up. If I can wrap up
quickly or continue through my points at your pleasure.
[The prepared statement of Ms. O'Brien follows:]
Prepared Statement of Maria O'Brien, Legal Committee Chair, Western
States Water Council
I. Introduction
Chairman Akaka, Ranking Member Barrasso, and members of the
Committee, my name is Maria O'Brien and I am an attorney with Modrall
Sperling, P.A. in Albuquerque, New Mexico. I am testifying on behalf of
the Western States Water Council (WSWC) in my official capacity as the
Chair of the WSWC's Legal Committee. I appreciate the opportunity to
discuss the importance of Indian water rights settlements to western
states and thank you for your leadership in addressing this important
issue.
The WSWC is a non-partisan advisory body on water policy issues
closely affiliated with the Western Governors' Association (WGA). Our
members, including myself, are appointed by the Governors of 18 states.
My testimony is based on official WSWC reports, statements and
positions, as well as efforts involving the WSWC's longstanding
collaboration with the Native American Rights Fund (NARF) to support
federal policies that facilitate the negotiated resolution of Indian
water rights claims. I will emphasize just a few of our interests and
concerns and have attached the WSWC's most recent position on Indian
water rights settlements (No. #336).
For three decades, the WSWC, WGA, and NARF have worked together as
part of an Ad Hoc Group on Indian Water Rights to support the
negotiated settlement of Indian reserved water rights claims. Although
Congress has authorized 27 Indian water rights settlements, the water
rights claims of many more tribes remain unquantified and the cost and
scope of resolving these rights is increasing sharply. However,
obtaining federal funding necessary to resolve these claims has proven
to be difficult. Providing the federal funding needed to negotiate and
implement Indian water rights settlements is a trust obligation that is
critical to the well-being of western states, Indian Country, and the
Nation as a whole. Funding is also necessary to settle major claims
against the United States.
II. The Prior Appropriation and Indian Water Right Claims
For well over a century, the doctrine of prior appropriation has
governed the allocation of water in most western states. Under this
system, the right to divert water from a stream is based on the notion
of ``first in time, first in right,'' which means that the first
parties to physically divert and use water for ``beneficial use'' have
priority to use the water. Thus, senior water right holders with
earlier priority dates (the date the water was first put to beneficial
use) can force users with junior priority dates to curtail or stop
their use in times of shortage.
Most non-Indian water development in the West occurred after the
Federal Government entered into treaties with tribes to establish
permanent homelands, or reservations, for the tribes. These treaties
typically did not specify the tribes' water rights, an issue which the
U.S. Supreme Court addressed in its 1908 decision in Winters v. United
States, 207 U.S. 564 (1908). The Court held that tribal treaties
impliedly reserved water rights necessary to meet the purpose of a
tribe's reservation. These reserved rights, or ``Winters rights,'' and
other kinds of tribal water rights arising under federal law, exist as
federal enclaves within state legal systems and differ from prior
appropriation rights because they arise independently of beneficial
use; are indeterminate in amount until adjudicated; are measured by the
present and future supplies needed to fulfill the purpose of a
reservation instead of past uses; and have priority dates that
correspond to the date the Federal Government created the reservation.
III. The Need To Resolve Tribal Water Rights Claims
Resolving Indian water rights claims is critical for western
states, because tribal rights typically have priority dates that are
senior to non-Indian uses, and therefore have the potential to displace
established state-issued rights. This is especially problematic where
tribal rights pertain to river systems that are fully-appropriated for
non-Indian uses. The unquantified nature of many tribal rights creates
great uncertainty with regard to existing state-based uses and can
serve as an impediment to local, state and regional economic
development. Given that water supplies are increasingly stressed due to
prolonged drought, reduced snowpack, and other factors, including
growing demands, quantifying Indian water rights claims and determining
their impacts on state-issued rights is essential for western states to
address increasing water demands related to growing populations and to
provide certainty as to state-based water uses. Moreover, the
quantification of tribal claims may provide a mechanism to allow for
water marketing between tribes and non-Indian users such as fast
growing western cities.
IV. Why Settlements Are Preferred
Settlements are the preferred manner of resolving tribal water
rights claims. First, they give states and tribes certainty and control
over the outcome of water rights adjudications, whereas litigated
outcomes are fraught with uncertainty. Second, settlements build
positive relationships between states, tribes, and the Federal
Government, which are essential because water is a shared resource that
all parties must cooperatively manage after adjudication. Third, Indian
water rights claims are extremely complex and settlements enable tribes
and non-Indian neighbors to craft mutually-beneficial solutions
tailored to their specific needs, including the development of water
infrastructure and water markets which increase available water
supplies for all users. Fourth, settlements can provide mechanisms that
enable tribes to turn quantified rights into ``wet water,'' while
litigation typically provides tribes with ``paper rights'' only. Fifth,
settlements are often less costly and time-consuming than litigation,
which can last for decades and can be extremely expensive for all
parties.
V. The Need For Federal Funding
The Federal Government holds Indian water rights in trust for the
benefit of the tribes and is joined as a party in water rights
adjudications involving tribes. This means that the Federal Government
has a fiduciary duty to protect tribal water rights and has a
responsibility to help tribes adjudicate their rights and ensure that
settlements are funded and implemented. It also means that each
settlement must be authorized by Congress and approved by the
President.
In many cases, tribes have significant breach of trust claims
against the Federal Government for failing to protect their water
rights. Generally, as part of a settlement, tribes will waive these
claims and a portion of their claimed water rights in consideration for
federal funding to build needed drinking water infrastructure, water
supply projects, and/or tribal fishery restoration projects.
Consequently, the obligation to fund settlements is analogous to, and
no less serious than, the United States' obligation to pay judgments
rendered against it.
Nevertheless, interpretations of the federal trust responsibility
vary from one Administration to another and require intensive
discussions often on a settlement-by-settlement basis. Some prior
Administrations have taken a narrow view of this trust responsibility
and settlements that benefit non-Indians, asserting that federal
contributions should be no more than the United States' calculable
legal exposure which is difficult to determine. It has long been an
accepted premise that the Federal Government should bear the primary
responsibility for funding tribal settlements. Congress should consider
the Federal Government's fiduciary duty towards the tribes and ensure
that appropriations for authorized settlements are sufficient to ensure
timely, fair and honorable resolutions of tribal claims. Such an
approach not only serves the interest of the United States in ensuring
successful resolution of tribal rights, but assists western states in
resolving these difficult and potentially disruptive claims.
A. Funding During the Settlement Process
Tribes need federal funding to retain attorneys and experts to
undertake the complex and costly legal and technical studies that are a
mandatory prerequisite to any negotiation. States and tribes also rely
on federal negotiating teams under the Indian Water Rights Office
within the Department of the Interior, which provide one federal voice
and expedites the settlement process. Failing to adequately fund these
programs hinders the resolution of tribal claims, thereby prolonging
uncertainty regarding state-issued rights. Thus, Congress and the
Administration should fully fund the Indian Water Rights Office and
provide tribes with sufficient resources to participate in the
settlement process.
B. Authorizing Funding to Implement a Settlement
In the arid West, where water is scarce and tribal rights often
pertain to fully-appropriated stream systems, settlements often require
the construction of water storage and delivery projects to augment or
allow existing water supplies to be used more advantageously by all
water users. These projects generally do not reallocate water from
existing non-Indian water users, but allow tribes to develop additional
water supplies in exchange for foregone claims. Without federal
monetary resources to build these projects, settlements are simply not
possible in many cases.
While federal support is essential to settlements, a number of
western states have also acknowledged that they are willing to bear an
appropriate share of settlement costs. To this end, western states have
appropriated tens of millions of dollars for existing settlements and
devoted significant in-kind resources, including the administrative
resources associated with the negotiation process and the value of
their water rights.
C. Appropriating Funding For Settlements
Congressionally-authorized settlements are receiving funding, but
there is a need for increasing appropriations. Moreover, the House
Republican Conference adopted a moratorium on earmarks in the 112th
Congress that apparently includes Indian water rights settlements.
Settlements are not earmarks benefiting a specific state or
congressional district, but represent trust obligations of the United
States. They involve a quid-pro-quo in which tribes receive federal
funding in exchange for waivers of tribal breach of trust claims
against the Federal Government. If Congress is unable to implement
settlements as a result of earmark reform, litigation will be the
primary means of resolving tribal water right claims. This could result
in decades of associated legal expenses and court-ordered judgments
against the United States that would likely exceed the total costs of
settlement, thereby increasing costs for federal taxpayers.
In addition, current budgetary policy (pay go) requires water
rights settlement funding to be offset by a corresponding reduction in
some other discretionary program. It is difficult for the
Administration, states, and tribes to negotiate settlements knowing
that funding is uncertain or may only occur at the expense of some
other tribal or essential Interior Department program. Consequently,
Congress should consider the unique legal nature of settlements, namely
that the United States is receiving something of value in exchange for
appropriating settlement funds and fulfilling its tribal trust
responsibility, thereby avoiding potentially costly litigation.
D. The Reclamation Water Settlements Fund
In addition to the tool of direct appropriations which Congress has
available to it to fund Indian Water Rights settlements, Title X of the
Omnibus Public Lands Management Act, which became law in 2009,
established a Reclamation Water Settlements Fund in the U.S. Treasury
to finance Reclamation projects that are part of Congressionally-
approved Indian water right settlements. The Fund will provide up to
$120 million per year for ten years with money transferred from the
Reclamation Fund and prioritized for settlements in New Mexico,
Montana, and Arizona. However, the Fund will not begin receiving money
until FY 2020, leaving a significant gap in funding for various
projects, the costs of which may increase significantly by FY 2020.
E. The Emergency Fund for Indian Safety and Health (EFISH)
One way Congress might address this gap is by appropriating money
to the Emergency Fund for Indian Safety and Health (EFISH), authorized
by Title VI of the United States Global Leadership Against HIV/AIDS,
Tuberculosis, and Malaria Reauthorization Act 2008. EFISH currently
authorized about $600 million for water supply projects that are part
of Indian water settlements approved by Congress over a five-year
period beginning October 1, 2008. This funding is above amounts made
available under any other provision of law.
EFISH funding is only authorized through FY 2012, and the
Administration has not yet requested money for EFISH in its budget
requests. It is still in the process of creating a required spending
plan for these funds. One way to address the absence of a federal
spending plan might be for Congress to promptly appropriate authorized
money into Reclamation's Settlements Fund, which already prioritizes
funding in specified amounts for approved settlements.
VI. The Consequences of not Funding Settlements
If settlements are not authorized and funded, tribes may have no
choice but to litigate their water claims. This is problematic because
it may give them ``paper rights,'' but may not provide them with a way
of turning those rights into ``wet water.'' Litigated outcomes could
also provide tribes with senior water rights that could displace
established state-issued water rights that are essential to meet non-
Indian industrial, residential, and municipal needs in the West.
For instance, the Navajo Nation's settlement with New Mexico, which
Congress has authorized, provides the Nation with an amount of water
within New Mexico's Colorado River Compact allocation. The settlement
still requires court-approval and could fail for a lack of appropriated
funds. If it fails, the Navajo Nation would have little choice but to
litigate its water rights claims. The United States has already filed
claims on behalf of the Navajo Nation that exceed New Mexico's Colorado
River apportionment under the Compact. If the United States and the
Navajo Nation were to prevail on these claims, the allocation of water
between the seven Colorado River Basin states could be jeopardized,
disrupting the entire Southwestern economy.
Montana has also reached settlements with the Fort Belknap and
Blackfeet Tribes as part of a state-wide adjudication process aimed at
resolving its federal reserved water rights claims by 2020. However,
until Congress authorizes these settlements, state-issued water rights
in basins where these tribes have claims will remain in limbo. If
Congress delays authorization, the tribes may litigate their claims in
court, which could disrupt established non-Indian uses.
In addition to the previously mentioned costs associated with
litigated outcomes, postponing the implementation of Indian water
rights settlements will be far more expensive for the Federal
Government in the long-run because increasing water demands, decreasing
water supplies, and other factors will only increase the costs of
resolving these claims.
VII. Conclusion
The national obligation to Indian water rights settlements is a
finite list that grows shorter with each settlement. Nevertheless, the
cost of implementing them will only continue to rise. Postponing this
duty only increases its costs to the Federal Government, perpetuates
hardships to Indians, and creates uncertainty for all water users,
hindering effective state and regional water planning and development
and economic investment and security. The WSWC appreciates the
opportunity to testify on this important matter and looks forward to
working with the Committee and Congress to support the negotiated
resolution of Indian water rights claims.
Attachment
Resolution of the Western States Water Council (Position No. 336)
in support of indian water rights settlements
idaho falls, idaho--october 7, 2011
WHEREAS, theWestern States Water Council, an organization of
eighteen western states and adjunct to theWestern Governors'
Association, has consistently supported negotiated settlement of Indian
water rights disputes; and
WHEREAS, the public interest and sound public policy require the
resolution of Indian water rights claims in a manner that is least
disruptive to existing uses of water; and
WHEREAS, negotiated quantification of Indian water rights claims is
a highly desirable process which can achieve quantifications fairly,
efficiently, and with the least cost; and
WHEREAS, the advantages of negotiated settlements include: (i) the
ability to be flexible and to tailor solutions to the unique
circumstances of each situation; (ii) the ability to promote
conservation and sound water management practices; and (iii) the
ability to establish the basis for cooperative partnerships between
Indian and non-Indian communities; and
WHEREAS, the successful resolution of certain claims may require
``physical solutions,'' such as development of federal water projects
and improved water delivery and application techniques; and
WHEREAS, the United States has developed many major water projects
that compete for use of waters claimed by Indians and non-Indians, and
has a responsibility to both to assist in resolving such conflicts; and
WHEREAS, the settlement of Native American water claims and land
claims is one of the most important aspects of the United States' trust
obligation to Native Americans and is of vital importance to the
country as a whole and not just individual tribes or States; and
WHEREAS, the obligation to fund resulting settlements is analogous
to, and no less serious than the obligation of the United States to pay
judgments rendered against it; and
WHEREAS, Indian water rights settlements involve a waiver of both
tribal water right claims and tribal breach of trust claims that
otherwise could result in court-ordered judgments against the United
States and increase costs for federal taxpayers; and
WHEREAS, current budgetary pressures and legislative policies make
it difficult for the Administration, the states and the tribes to
negotiate settlements knowing that they may not be funded because
either they are considered earmarks or because fundingmust be offset by
a corresponding reduction in some other expenditure, such as another
tribal or essential Interior Department program;
NOW, THEREFORE, BE IT RESOLVED, that the Western States Water
Council reiterates its support for the policy of encouraging negotiated
settlements of Indian water rights disputes as the best solution to a
critical problem that affects almost all of the Western States; and
BE IT FURTHER RESOLVED, that the Western States Water Council urges
the Administration to support its stated policy in favor of Indian land
and water settlements with a strong fiscal commitment for meaningful
federal contributions to these settlements that recognizes the trust
obligations of the United States government; and
BE IT FURTHER RESOLVED, that Congress should expand opportunities
to provide funding for the Bureau of Reclamation to undertake project
construction related to settlements from revenues accruing to the
Reclamation Fund, recognizing the existence of other legitimate needs
that may be financed by these reserves; and
BE IT FURTHER RESOLVED, that Indian water rights settlements are
not and should not be defined as Congressional earmarks; and
BE IT FURTHER RESOLVED, that steps be taken to ensure that any
water settlement, once authorized by the Congress and approved by the
President, will be funded without a corresponding offset, including
cuts to some other tribal or essential Interior Department program.
The Chairman. Thank you. Thank you very much, Chairwoman.
Let me ask you each a question and I will defer to Senator
Udall. Mr. Echohawk, in your testimony you mention that NARF
has been involved in tribal water rights settlements for
decades. Can you please discuss how settlements have evolved
over time with respect to funding, cost and the parties
involved? And has the process improved or not improved?
Mr. Echohawk. Over the 30 years that we have worked with
the Western Sates Water Council on this issue, we have always
found that the funding is the most difficult issue. And of
course over that period of time, the Federal Government has
gone through a lot of ups and downs in terms of its budget, the
monies that are available and funding mechanisms to fund these
settlements.
I remember one of the first battles that we fought was
basically trying to make sure that funds that went to the
tribal water rights settlements were not taken directly out of
the Bureau of Indian Affairs budget, where basically the tribes
had to fund their own settlements. So that was one of the
battles that we had to fight early on. It just kind of
progressed over the years. But finding the funding has always
been the issue. It is frankly still the major issue today.
The Chairman. I see. We are always looking for a solution
to that. I would take that we still are looking for a better
solution. Maybe together we can try to work this out.
Ms. O'Brien, you mentioned that differences in the way
various Administration have interpreted the federal trust
responsibility have prolonged the settlement process. Given
your experience working in the field, what would you recommend
to shorten the lengthy negotiation process?
Ms. O'Brien. Mr. Chairman, I think that in his testimony,
or in answer to a question, Commissioner Connor touched upon
some of the essentials to the answer to your question. I think
for purposes of State and all stakeholders participating in the
negotiation process, clarity from the federal teams, from the
Administration in terms of what will be appropriate and
supportable in terms of settlements from the beginning is
absolutely essential. Full engagement of federal teams from the
commencement, with clear communication throughout the various
arms of the Federal Government is absolutely essential.
So I think it is both clarity and engagement. Some of that
requires funding, some of that requires clear policy that is
not just clear internally to the Federal Government and the
Administration, but clear to stakeholders who are trying to
work collaboratively and cooperatively with the federal teams.
The Chairman. Thank you for your responses.
Senator Udall?
Senator Udall. Thank you, Chairman Akaka. It is great to
have two very able witnesses with us, and Maria O'Brien, great
to have you here. I know you have worked extensively in this
area, and you are with a New Mexico firm. I was reading through
your bio here, you have been involved in many of these issues.
So it is good to have your expertise here today.
Just before I start into my questions, I was just
wondering, both of you sat here, you listened to the first
panel. Is there anything that you heard on the first panel that
you either take issue with or that you would want to expand
upon or some kind of complementary theme or anything along that
line? John, do you want to start?
Mr. Echohawk. Well, I want to commend the Administration
for their commitment and their hard work on these tribal water
rights settlement issues. I thought it was an excellent panel.
I know that they are doing the best they can with what they
have.
But as I highlighted in my testimony, the needs out there
are still great. Many unmet needs exist and the Administration
does what it can with the budget that it has, the figures that
Del Laverdure cited are fine and I know they are trying to
increase that. But that funding level is down from what it used
to be. Tribes are not able to participate in this process at
the level that they need to. The Administration itself does not
really have the manpower that is needed in the Indian Water
Rights Office to do all the work that needs to be done. I know
they can't really say much about that, but I certainly can. It
would be great to see more people working on these issues in
the Department and more tribes able to participate in that
process with federal support.
Senator Udall. So you are urging us to really take a hard
look at the budget and try to make sure that we fund in areas
that are like this that could really make a difference for
tribes?
Mr. Echohawk. Yes, it would be great to give them what they
ask and more.
Senator Udall. Thank you. Maria?
Ms. O'Brien. I would support everything that Mr. Echohawk
said, and I would again state that, I think full funding of the
Indian Water Right Office is absolutely essential, both for
purposes of the negotiation process as well as in the
implementation. Implementation due to collective recent
successes is absolutely critical in numerous States now in the
west. But we cannot be complacent. We need to ensure that the
resources are allocated at the federal level sufficient to
bring those successes to actual fruition.
Senator Udall. And a lot of times it is the actual funding
of the settlement that makes a difference, to move the
settlement forward, isn't it? I mean, you can come to an
agreement. But if the Federal Government isn't willing to step
up and put funding into it, then the settlement really doesn't
mean anything. Would you agree with that?
Ms. O'Brien. Senator Udall, I would wholeheartedly agree
with that. And it is also critical, most if not all of the
settlements have certain time frames in which certain things
need to be accomplished. And if those things are not
accomplished in those time frames, significant issues in terms
of potentially having to come back to Congress, if not total
failure of the settlements, will occur. So funding needs to be
there and it needs to be timely. federal teams need to be
sufficiently coordinated to expend that funding appropriately
and in the appropriate time frame.
Senator Udall. On this chart here, we are looking at
settlements and litigation. I thought, John, one of the things
on the litigation side, it says only makes lawyers rich.
[Laughter.]
Senator Udall. I was thinking of you when I saw that. I
thought, well, you know, then John Echohawk should be a
billionaire, because he has been in these vineyards for so
long. I am not sure you are there yet, are you?
Mr. Echohawk. No, we are not, Senator. As you know, as a
non-profit organization, most of the representation we do is at
no cost or reduced cost. It is increasingly difficult to try to
maintain that level of representation that we do provide to our
tribes. Some of them are able to contribute something in terms
of fees but we are barely hanging on in terms of the
representation of the six tribes that we currently represent.
Senator Udall. One of the, and I will do some other
questions, Mr. Chairman, after you have finished some of yours,
too, if we do another round, but one of the things that should
be emphasized, and I think it is important what your
organization stands for is the idea that in the water rights
situation, if there is a status quo situation, frequently that
is hurting the tribes. The other non-Indian users are gaining
water. And the status quo ends up hurting the tribes.
So if it wasn't for litigators like you and others that are
out there who weigh in on behalf of tribes and file litigation
and do all the hard work in the litigation vineyard, if that
doesn't happen, you don't have the ability to preserve and then
finally get to a settlement. So I think we need to also
recognize that there are organizations like yours and people
like you who are really committed to these causes over the
years that have made a real difference. So it is true, when you
weigh it out, you have this settlement litigation. But on the
other hand, at certain points, if we didn't have litigation,
tribes could have lost it all.
So I just compliment you for your work. I am not asking for
a comment on that one.
Chairman Akaka, I have a few more questions here, but my
time has run out on this round, I think.
The Chairman. Thank you very much. We will have another
round here, Senator.
Mr. Echohawk, in your opinion, see, I am always going back
to your experience, because you have been long enough to see
these develop or not develop, but in your opinion, what kind of
structural and organizational changes within the Federal
Government would result in more just and timely resolutions of
Indian water claims?
Mr. Echohawk. Mr. Chairman, I commended the Administration
for all the efforts that they put forth in terms of moving
these issues forward in the recent years. But again looking at
the big picture and the future, that effort is still not
enough. Senator Udall asked about legal representation. Well,
there are many tribes out there who still are unrepresented on
this issue, tribes that have valuable water rights that are at
stake that want to participate in this process, but they don't
have the wherewithall to do that.
Even though it is difficult in these budget times to try to
ramp things up and increase funding in this area, that is
really what needs to be done, a real increased commitment to
resolve these tribal water rights issues throughout the
Country.
The Chairman. Yes, I think it is important that we continue
to look at the Federal Government and see that its structure
can help the cause or try to lead to resolutions that are
needed, of course. So thank you for your response.
Ms. O'Brien, in your testimony you mention, and the big
word is unquantified, tribal Water rights creates great
uncertainty. And of course, it has. Can you please discuss the
potential for economic development and job creation once tribal
water rights are quantified?
Ms. O'Brien. Yes, Mr. Chairman. First to start with kind of
the flip side of that, about the potential disruption if those
claims are litigated instead of coming up with a workable
solution in terms of where tribes get what they deserve in
terms of quantification of their claims and State-based
longstanding uses can be accommodated in that context.
I know Stanley Pollock is here, water counsel for the
Navajo Nation, but I am going to talk a little bit about the
Navajo Nation's claims in the San Juan River Basin in New
Mexico. In that context, as you well know, Mr. Chairman, the
claims of the Navajo Nation were recently congressionally
approved through a settlement with the Federal Government and
the State of New Mexico.
Absent settlement and subject to litigation, if the Navajo
Nation's claims in the San Juan Basin, if even a fraction of
those claims which are claimed were recognized, it would blow
the top off of New Mexico's entitlement under the Upper
Colorado River compact. It would thereby disrupt the economy of
that region. It would disrupt, potentially disrupt the water
supply to power generating stations on the San Juan River,
which are a cornerstone of the southwestern power grid, which
relies on water from the San Juan Basin.
The settlement of those claims will allow for certainty in
the basin. It recognizes, due to the tribe's subordination of
their earlier priority date to other water uses, existing
essential uses for the municipalities in that basin. It
secures, in essence, the water supply for the power generating
stations and the coal mining operations, significant industrial
uses there. It then allows additional water, through the
quantification of the tribe's claims, to be made available
within New Mexico, within the Basin, for leasing for additional
economic development, whether that be for power generation or
for other uses in the Basin. Because now it is known what is
the tribe's claim.
So the tribe gets economic benefit from the quantification
of their claim, and then now their partners, the other water
users in the Basin, can have access to additional water
supplies as needed and necessary both for additional economic
development as well as, in times of shortage, to shore up
supplies for essential economic uses.
The Chairman. Thank you very much.
Let me then ask Senator Udall for his further questions.
Senator Udall. Thank you. Maria, you hit on something that
I think, if we move towards settlement, we end up building
relationships, too, in many other areas. You mentioned that
settling, in your testimony, Native American Water claims, has
had the added benefit of building positive relationships
between States, tribes and the Federal Government, which is
essential in dealing with a shared resource.
Could you expand on this idea? Do you have examples of how
these relationships have been built and what the results have
been?
Ms. O'Brien. Yes, Senator Udall. I think another example I
would offer is also from New Mexico, in terms of partnerships
going forward. That is the settlement of the Aamodt litigation
north of Santa Fe. That was noted as one of the, at least in
one point in time, the longest-running litigated case on the
federal docket. So there was clearly decades and decades of
acrimony and dispute among non-Indian users and Indian users
within the Basin over a very finite yet shared resource.
These are communities that live together and that will need
to and want to continue to live together going forward. So it
is actually essential to figure out how to share this vital
resource that is necessary for communities to figure out how to
use together.
The economies of tribes and local communities are now
intertwined. They are just by the very nature of the way
growing populations have worked, they are intertwined.
Therefore developing, not just because it is a shared resource,
but developing partnerships on the shared resource is
absolutely essential.
So after decades of fighting on the shared resource, one of
the solutions in Aamodt that the parties were able to come and
agree upon was the construction of a regional water system that
will serve both Indian and non-Indian users. And that regional
water system will be operated by four pueblos and the county of
Santa Fe. So it will be in fact a joint government to
government, community to community, regional water system that
will again serve both Indian and non-Indian resources going
forward.
So it will support further economic development, because it
will allow additional supplies to be brought into this region,
where water is very scarce. And it will allow the pueblos to
develop the resources that were quantified to them after these
many, many years of both litigation and settlement. So I think
that is a prime example of a very intractable, difficult
problem, given how scarce water is in the region where the
Aamodt settlement occurred, and in developing a strategy and
tailoring it to solve the problem. That could not have been
done through litigation or without the significant federal
funding that was required to support that settlement.
Senator Udall. Thank you. I think that is a great example.
John Echohawk, it is my understanding that the negotiation
team in the Indian Water Rights Office is the federal voice in
water settlements being discussed today. Do you believe the
Indian Rights Water Office and its team of negotiators are
functioning effectively? Is there any need for improvement or
changing or expanding the voice of the Federal Government?
Mr. Echohawk. Well, I think they are doing a great job,
Senator, with the resources they have. As we talked about,
there are ins and outs, ups and downs in all those
negotiations. I think they do the best job they can with the
resources they have. But the federal resources available to
them, both in terms of being able to staff their own team and
to have the tribes who need to be there to involve the tribes
in that process and then once that settlement is reached, then
to get the federal funding to do that, that is still the big
challenge. We have come a long way, but there is so much more
to do and resources are short. But they do the best they can
with what they have.
Senator Udall. Thank you. I think you have highlighted the
fact that it is clear we need additional resources in a number
of areas here in order to really bring justice to Native
American water rights claims.
Thank you, Chairman Akaka. Thank you very much. I have
completed my questioning for this panel.
The Chairman. Thank you very much, Senator Udall, for your
part in this hearing.
I would like to thank our panelists here for what you ave
contributed already and we again, my plea to you is, we need to
continue to work together on this to try to find resolutions
that have been out there for, well, I guess it is true, if I
can say, for centuries, and seven tribes or eight tribes doing
something about it. But we have 500 tribes. So we have lots of
work to do, and we need to continue to press toward trying to
get this resolved for the indigenous people of this continent
and this Country.
Thank you very much for your participation here.
Now I would like to invite the third panel to the witness
table. And that is Ms. Judith Royster, who is Professor and Co-
Director of the Native American Law Center at the University of
Tulsa College of Law in Tulsa, Oklahoma, and Mr. Michael
Bogert, Senior Counsel at Crowell and Moring in Washington,
D.C.
Welcome to you, and thank you so much for being here and
taking the time to be here with us at this hearing. Ms.
Royster, please proceed with your testimony.
STATEMENT OF JUDITH V. ROYSTER, PROFESSOR/CO-DIRECTOR, NATIVE
AMERICAN LAW CENTER
Ms. Royster. Thank you, Mr. Chairman, and Senator Udall. I
am very pleased to have been invited to be here.
My written testimony is mostly about the drawbacks of
litigation and the upsides of negotiation. And I noticed this
poster, which covers most of those points. So I would like to
take this time to bring up just a couple of things that I think
aren't necessarily on that list or other things to consider.
Ms. O'Brien talked about the fact that the litigation of
Indian water rights is primarily in State court as part of
these massive general stream adjudications. And the uncertainty
that results from that I think is in part from the fact that
you have a number of State courts interpreting federal
precedent which is not itself clear. So you get, in these
general stream adjudications, out of State courts, a great
variability in their understanding of federal law.
That is, the Supreme Court charged the State courts with
following federal law in the determination of tribal water
rights. But there is a lot of room for interpretation. And you
are getting significant variance, which is not tied to the
particular needs of the parties, but to differences in
interpretation in the law, which I think is one of the things
that negotiated settlements can help resolved.
That negotiated settlements, the sort of second point I
want to make that is an expansion on what is here, is that
there seemed to me to be sort of three interrelated issues with
the water rights. There is the determination of water rights,
and then there is the implementation through funding and the
construction of water delivery systems and the like. Then there
is a third issue of administration. You have the water, now
what do you do with it and how do you manage it.
And the primary drawback, I think, of litigation is that
litigation only covers the first of those. Litigation gives you
the determination of the water right, but it doesn't do
anything in terms of the access to wet water or to the further
issues of the management and administration of water rights. A
number of the commentators today have talked about the wet
water issue and the importance of having the funding and the
promise of wet water and the authorization for projects.
But beyond that, there are things that can come up in
settlements, that do come up in most of the settlements, that
sort of go to a third stage of this issue, which is the use and
administration and management of water rights. I would like to
use just a couple of examples.
The first of those are tribal water codes for the
administration of the reserved water rights. Under current law,
there is at least technically a moratorium on federal approval
of tribal water codes that has been in place since 1975. It
makes it difficult for those tribes that wish to develop water
codes to do so. Most of the settlement acts, a significant
number of them, build in provisions for tribes to develop water
codes and in many cases for secretarial administration of water
rights until the tribes do so, an issue that can't possibly be
resolved in the course of litigation.
A second type of issue like this, which is dealt with in
many of the settlements, perhaps most of the settlements, is
the question of water marketing and the ability of tribes to
participate in a growing western use of putting water to
perhaps a higher economic and beneficial use without depriving
the water rights holder of the economic value, without taking
the value away from the person who holds the water.
There is a serious question under federal law as to whether
tribes can engage in water marketing without congressional
approval. But congressional approval has been built into a
number of these water rights settlements, so that tribes that
have water which they wish to share with non-Indian communities
or which they are not yet able to put to use can market that
water. And it is often marketed to off-reservation
municipalities, which are in serious need of water at a
reasonable cost.
By building in those matters and those flexibilities into
the settlements, the settlements can reach beyond those first
two stages of determination and wet water to the sort of third
issue of the administration and management of water rights.
Thank you.
[The prepared statement of Ms. Royster follows:]
Prepared Statement of Judith V. Royster, Professor/Co-Director, Native
American Law Center
Good afternoon. My name is Judith Royster, and I am a professor and
co-director of the Native American Law Center at the University of
Tulsa College of Law in Tulsa, Oklahoma. Thank you, Mr. Chairman, for
inviting me to testify before the Committee at this oversight hearing
on Indian Water Rights: Promoting the Negotiation and Implementation of
Water Settlements in Indian Country. I am honored to be here.
Although consent decrees involving tribal water rights date back at
least to 1910, the modern era of tribal water rights settlements begins
in 1978 with the settlement act for the Ak-Chin Indian Community in
Arizona. Since 1978, Congress has enacted 27 Indian water rights
settlement acts into law, affecting tribes in eight western states and
Florida. This shift from litigation of tribal water rights to
negotiated settlements is in significant part a reaction to the
drawbacks of state general stream adjudications for determining tribal
reserved rights to water.
Indian Reserved Right To Water
Indian tribes have, as a matter of federal law, rights to
sufficient water to fulfill the purposes for which their reservations
or other lands were set aside. In 1908, in Winters v. United States,
\1\ the U.S. Supreme Court determined that when lands were set aside
for the use and occupation of Indian tribes, sufficient water was
impliedly reserved as well. Without water, the reservations could not
support liveable communities. Water is necessary to life.
---------------------------------------------------------------------------
\1\ Winters v. United States, 207 U.S. 564 (1908).
---------------------------------------------------------------------------
The Winters doctrine of tribal reserved water rights provides that
because water is impliedly reserved with the land, the priority of
Indian water rights is the date that the lands were set aside. As a
result, tribal reserved water rights are prior and paramount to later-
created state law water rights. Unlike rights created under state law,
Indian water rights are not forfeited or abandoned for non-use. Today,
in consequence, Indian tribes without adjudicated decrees or negotiated
settlements hold large, but unquantified and generally unused, rights
to water.
In addition to Winters rights, some tribes may hold water rights
under the approach of the 1905 decision in United States v. Winans. \2\
In Winans, the Court construed a treaty that guaranteed the tribes the
right to continue their aboriginal practices: in that case, the right
to take fish. The Court determined that the treaty rights included
certain implied rights, such as access to the fishing places, necessary
to ensure that the right to fish can be exercised. Thus, if a treaty,
statute, or agreement confirms aboriginal practices that require
water--such as fishing or traditional agriculture--the right to
sufficient water for those practices was impliedly reserved as well.
These rights carry a priority date of time immemorial.
---------------------------------------------------------------------------
\2\ 198 U.S. 371 (1905).
---------------------------------------------------------------------------
State General Stream Adjudications and Indian Water Rights
All western states have a process to determine rights to water
under state law. Historically, however, the state courts and
administrative agencies did not have jurisdiction over the property
rights, including the water rights, of Indian tribes or the Federal
Government. Instead, tribal and federal water rights, which arise under
and are governed by federal rather than state law, were determined in
federal court proceedings.
In 1952, Congress enacted the McCarran Amendment, which expressly
permits the United States to be joined as a party in a state lawsuit
``for the adjudication of rights to the use of water in a river system
or other source.'' \3\ These state proceedings, known as general stream
adjudications, are large, complex, comprehensive lawsuits intended to
determine all rights to water in a river system. At the end of the
adjudication, the state should have a record of all water rights owners
within that river system, their priority dates, points of diversion,
permitted uses, flow rates, quantity of use, and so forth.
---------------------------------------------------------------------------
\3\ 43 U.S.C. 666(a).
---------------------------------------------------------------------------
In 1976, the U.S. Supreme Court held that the United States could
be joined as a party in a general stream adjudication not only to
adjudicate federal water rights, but Indian tribal reserved water
rights as well. \4\ The Supreme Court also determined that, as a
general matter, federal courts should abstain from hearing Indian water
rights cases, in favor of state general stream adjudications. It noted,
however, that state courts must apply federal law to determine the
nature and extent of both tribal and federal water rights.
---------------------------------------------------------------------------
\4\ Colorado River Water Conservation District v. United States,
424 U.S. 800 (1976).
---------------------------------------------------------------------------
Nothing in the McCarran Amendment provides that Indian tribes can
be joined as parties in state general stream adjudications. Because the
Federal Government can be joined, however, and required to represent
tribal rights, \5\ most tribes choose to waive their sovereign immunity
to suit and voluntarily join as parties in order to represent their
rights. As a result, most adjudications of Indian water rights since
the mid-1970s have taken place in state court, as part of general
stream adjudications.
---------------------------------------------------------------------------
\5\ Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983).
---------------------------------------------------------------------------
Drawbacks To Using State General Stream Adjudications To Determine
Indian Water Rights
The use of state general stream adjudications to determine Indian
reserved rights to water has proved to have a number of well-documented
drawbacks.
One significant drawback arises from the nature of general stream
adjudications. Because they are comprehensive proceedings, often
involving thousands of water rights, general stream adjudications may
run for literally decades. The costs of such prolonged litigation are
extensive, running into the tens of millions of dollars. During the
course of the litigation, tribal and federal resources are devoted to
the proceedings rather than to other uses and priorities. A state may
permit new state-law uses to begin during the adjudication, further
complicating the process.
Moreover, state court may be an unfriendly forum for tribes. State
judges are, in most states, ultimately answerable to the voters. To the
extent that tribal water rights are in conflict with, or perceived to
be in conflict with, the water rights of state users, state courts may
favor state users. In addition, in a majority of western states, the
state water agency is more than simply a party to the water rights
litigation. In most of the states, the water agency makes at least
preliminary findings and determinations. Where the state water agency
is both a representative of state interests and a preliminary fact-
finder, tribes may well distrust the process to fairly consider tribal
interests.
In addition to the historic conflict between states and tribes,
state court rulings in general stream adjudications have varied
significantly. Although the U.S. Supreme Court cautioned states to
follow federal law in determining tribal water rights, state court
interpretations of federal law are not uniform. For example, one state
finds that the only purpose for which a reservation was created was
agriculture, while another finds a broad purpose of creating a viable
homeland. One state restricts the uses that tribes may make of their
water rights, while others do not. One state determines that Indian
water rights do not extend to groundwater, while others find that
groundwater may, at least under certain circumstances, be used to
fulfill the tribal right. These variances in the application of federal
reserved water rights principles are not necessarily tailored to the
needs of the parties, but rather to the various state courts'
interpretation of federal precedent.
A final and crucial drawback to litigation of Indian water rights
is the end result. The ultimate purpose of litigating Indian water
rights is not only a declaration of those rights, but the ability to
put the water to uses that best serve the needs of the Indian
community. In general stream adjudications, Indian tribes receive
determinations of water rights, but those rights are paper rights only.
At the end of a long, costly litigation process, the tribe has a
recognized water right, but not ``wet'' water or the means of putting
the decreed water to actual use. Moreover, given that the tribe itself
may spend upwards of a million dollars to obtain the paper right, few
if any tribal resources remain available to fund water projects and
delivery systems. Similarly, the Federal Government may spend
considerable resources helping to litigate Indian water rights, without
being able to offer financial assistance for water projects after the
water rights are determined.
Advantages of Water Rights Settlements
In light of these substantial drawbacks of state general stream
adjudications, negotiated settlements of Indian rights to water have
significant advantages.
First, the settlement acts resolve tribal claims to water with
respect to both the states and the Federal Government. At the heart of
every settlement act is a quantification of the tribal right to water.
Tribes waive their reserved rights to water under the Winters doctrine
and their water claims against the United States. They agree, in
general, to a lesser quantity of water than they could receive under
the Winters approach of securing sufficient water to fulfill the
purposes for which the land was set aside. In exchange, the tribes
receive guarantees of financial assistance in developing their water
resources.
Thus, the second and crucially important advantage of negotiated
settlements is the promise of ``wet'' water. Every settlement act
authorizes appropriations for water development or management projects,
or more generally for economic development purposes. A few more recent
settlements include mandatory appropriations. Costs are shared among
the various interested parties, including the tribes, the states, and
the Federal Government. The importance of this feature cannot be
overstated. Tribes with litigated paper rights to water face enormous
obstacles in getting that water into use; tribes with negotiated rights
have some guarantee that financial assistance is forthcoming.
Third, water rights settlements are faster and less expensive than
litigation through a general stream adjudication. Negotiated
settlements are by no means quick or cheap. But compared to
adjudications, negotiated settlements take less time and use fewer
tribal, state, and federal resources to conclude. As settlements become
more common, parties have greater expertise in the process, and prior
settlements may serve as models for future negotiations.
Fourth, water settlements are flexible and tailored to the needs
and circumstances of the parties. Unlike variances in adjudication
decrees that result from inconsistent state court interpretation of
federal law, variances in negotiated settlements serve the interests of
all parties. Settlement acts often clarify issues that are not entirely
resolved under federal precedent. For example, a significant number of
settlement acts protect tribal uses of water for other than
agricultural irrigation. Some settlements specify that the water rights
may be used for any purpose, while others protect the tribe's ability
to use part of its water rights for an instream flow to ensure that
sufficient water remains in the river itself. Similarly, settlement
acts may specifically address groundwater rights. Settlements in the
Southwest tend to do so, while settlements in the Northern Plains tend
not to, indicating the relative importance of the groundwater issue in
those regions.
As part of their flexibility, settlement acts often address issues
that are outside the scope of a general stream adjudication. Often
these involve issues of water use and administration for which there is
currently no general statutory or regulatory authority. For example,
the Secretary of the Interior placed a moratorium on the approval of
tribal water codes back in 1975, pending the adoption of federal
regulations. No regulations were ever issued, and thus tribes that
require federal approval of their laws face a serious roadblock in
regulating water rights. Several of the settlement acts address this
issue directly, providing for the creation of a tribal water code to
administer water rights, often with the Secretary of the Interior
administering tribal water rights until the adoption of a tribal code.
As another example, tribes' ability to engage in water marketing is
open to question under current law. Water marketing, generally defined
as the lease or sale of water rights to another user, is gaining wide
acceptance in western states as a means of ensuring that water is put
to the most economic and beneficial use, without requiring the water
rights holder to forego the value of the right. Water marketing can be
enormously beneficial to tribes, ensuring that tribes receive the
economic value of their water rights, particularly during times when
the tribe itself is not able to put the water right to actual use.
States and state-law water users may also benefit from tribal water
marketing by having a reliable source of additional water at a
reasonable cost.
Under current federal law, the sale or encumbrance of Indian
property requires federal consent. \6\ Because tribal water rights are
property 6 rights, it is likely that the lease of these rights requires
congressional authorization. While no statute generally permits tribal
water marketing, most of the settlement acts do. The tribes' ability to
market their water rights is generally subject to certain limitations.
Virtually all of the acts prohibit the permanent sale of tribal water
rights, but rather authorize leasing. A significant number restrict the
lease term to no more than 99-100 years. Tribes are often limited to
marketing water from certain sources or, more often, to certain users
such as nearby municipalities, benefitting local governments as well as
the tribes. In most cases, the marketed water is expressly subject to
state law during the period it is used off-reservation by the non-
tribal users.
---------------------------------------------------------------------------
\6\ Nonintercourse Act, 25 U.S.C. 177.
---------------------------------------------------------------------------
On occasion, water rights settlements address other water-related
issues outside the scope of litigation. For example, one settlement
included a hiring preference for tribal members in connection with a
water project. Another addressed tribal-state relations in connection
with water quality standards under the Clean Water Act.
The final advantage of water rights settlements over litigation is
harder to quantify. Parties in litigation are in conflict with one
another. It is the nature of litigation to have winners and losers.
Even in a general stream adjudication, the proceedings can be
adversarial. Negotiated settlements, at their best, are less so. The
aim of a negotiated settlement is to reach a result that is beneficial
to and acceptable to all parties. States, tribes, and the Federal
Government must necessarily work together to reach a settlement before
it is presented to Congress. The parties may not emerge from the
process as friends, but a good process fosters respect and
understanding. If negotiated water settlements lead to greater
cooperation in state-tribal relations, that alone is an advantage worth
pursuing.
Disadvantages of Water Settlements
Negotiated water settlements are not without their disadvantages.
As noted above, faster and cheaper does not mean fast and cheap.
Moreover, implementation of water settlements has been slow. Further
proceedings are often necessary, funding must be appropriated, water
projects designed and constructed, and so forth. The specific needs and
means of fostering implementation of water rights settlements I leave
to others at this hearing.
Conclusion
Tribal water rights will be determined, whether through general
stream adjudications in state court or in negotiations among the
parties. Despite some disadvantages to negotiated water settlements,
the advantages of settlements to all parties--tribes, the Federal
Government, the states, and often municipalities as well--as well as
the relative advantages of settlement over adjudication argue in favor
of increased use of Indian water rights settlements.
Even in this time of federal retrenchment, Indian water rights
negotiations and settlements should not be abandoned. A significant
number of tribes have successfully concluded settlements, but many more
tribes are now in the process or even just beginning to consider
negotiations. Those tribes should not be disadvantaged by the timing.
The Federal Government has a trust responsibility for Indian water
rights. In the Western Water Policy Review Act of 1992, Congress
``recognize[d] its trust responsibilities to protect Indian water
rights and assist Tribes in the wise use of those resources.'' \7\ The
Department of the Interior, in its criteria and procedures for
participation in tribal water settlements, similarly states that
``Indian water rights are vested property rights for which the United
States has a trust responsibility.'' As trustee for Indian tribes and
property, the Federal Government should assure that the process of
negotiated water rights settlements, including federal funding for
water projects, is available to later-settling tribes as well as to
those that have already settled their water rights.
---------------------------------------------------------------------------
\7\ Pub. L. No. 102-575, 3002(9), 106 Stat. 4600, 4695.
The Chairman. Thank you very much, Ms. Royster.
Mr. Bogert?
STATEMENT OF MICHAEL BOGERT, SENIOR COUNSEL, CROWELL & MORING
Mr. Bogert. Thank you, Mr. Chairman.
I appear before you, and I appreciate the invitation to
speak, as a recovering federal trustee. I held the position
that Letty Belin, who is behind us, and I had the privilege and
honor of serving with Pam Williams in the Secretary's Indian
Water Right Office in the Bush Administration. Many of the
colleagues and the people who have been a part of these
settlements for years were partners in our Administration, when
we were doing this.
So Mr. Chairman, my initial image of this problem began
right here in this Committee almost eight years ago, with our
water settlement in the great State of Idaho, with the Nez
Perce Tribe. We brought before you the most unlikely group of
constituencies in the State of Idaho. We brought before you our
water user communities, the leadership of the tribe itself. We
brought forward our timber interests. We asked this Committee
to take a look at what we believe is the most innovative
approach to Indian water rights settlements perhaps that this
Committee has ever considered in 2004.
And to address some of the issues of the benefits of
proceeding with a settlement as opposed to litigation, that
settlement, Mr. Chairman, gave Mike Connor 30 years of
protection for his Bureau of Reclamation projects in our Upper
Snake for a biological opinion under the ESA. Mike is the
beneficiary of the foresight of that settlement, one that this
Committee reviewed and approved.
We worked with the tribe to work on habitat restoration
that ultimately, with our great State of Idaho, two-thirds
belonging to the Federal Government, is assisting the United
States in its Endangered Species Act obligations under several
biological opinions, due to the operation and the impact of the
ESA on our home State.
Mr. Chairman, we ultimately resolved, as Maria O'Brien so
eloquently described, what was the cloud over our system of
State water law as a result of our settlement. We had over
150,000 initial claims in the Snake River Basin adjudication,
and ultimately through our settlement, we were able to remove
the cloud of uncertainty over our system of water law. Maria
referred to the Winters claims that cloud State law systems as
potential poor displacement. I think there are some that would
use the term potential violence to the system of prior
appropriations that the States understand.
So for us, Mr. Chairman, there was no other alternative
than to negotiate, than to bring in the Federal Government and
to work with the tribe to try to resolve these uncertainties.
Indeed, one of the great beauties of the McCarran Amendment is
the opportunity to grab the federal agencies by the lapels and
bring them to the negotiating table, because you can. Because
the McCarran Amendment says the Federal Government must come to
a State law process.
To the extent of negotiation versus litigation, why not
take that opportunity in one of the few moments of a waiver of
sovereign immunity that Congress has afforded us in that
process?
So Mr. Chairman, we decided, at the risk of desecrating the
almost sacred words of Chief Joseph, that we wanted to fight no
more forever. We decided we wanted to bring our people before
you and take a look at the settlement and determine whether
Congress would bring it forward. I think by any measure, Mr.
Chairman, it has withstood the test of time.
Senator Udall, you asked about relationships. Back home in
Idaho, the tribe brought forward a list of streams that they
wanted protected in our State. The tribe is fiercely proud of
their land stewardship and their relationship and their culture
with listed species, salmon, the gray wolf. We brought them in
and integrated them into our State process with our State water
board. As a result of our being at the table with the tribe,
they were a full participant in a State law system of
dedicating in-stream flows through the Idaho State water board.
I can assure you, Senator, that that would not have been
possible had we litigated and had we attempted to defeat what
the tribe's claims were in our general stream adjudication, the
Snake River Basin Adjudication.
Mr. Chairman, this settlement back home is so powerful that
when I look at your list of winners and losers, I can't even
imagine what it would have been like if we had defeated the Nez
Perce Tribe in court. I can't even imagine what it would have
been like, all of the benefits and all of the opportunities and
all of the relationships that we have had as a result of that
settlement. I can assure you, it would have been ten times
worse to listen to some of the voices who said, let's litigate.
Let's just bring this through the courts and let's protect what
we can from the claims, the honorable claims of the tribe.
With that, Mr. Chairman, I am, and thank goodness I didn't
have to have OMB clear my testimony for you today.
[Laughter.]
Mr. Bogert. Another great honor of being a recovering
trustee. Those are, if you will, my comments. I submit my
testimony to the Committee, Mr. Chairman, and I look forward to
your questions.
[The prepared statement of Mr. Bogert follows:]
Prepared Statement of Michael Bogert, Senior Counsel, Crowell & Moring
Chairman Akaka, Vice Chairman Barrasso and distinguished members of
the Committee, thank you for the opportunity to appear before you today
and discuss promoting the negotiation and implementation of water
rights settlements in Indian Country.
I. Introduction
The perspective I bring to the Committee today is framed by three
separate modes of practical experience with Indian water settlements.
First, through the steady discipline and progress of the Snake
River Basin Adjudication in my home state of Idaho, we worked with the
Nez Perce Tribe, our water user and agriculture community as well as
both the Clinton and Bush Administrations to achieve success in our
Indian water rights settlement Agreement. The Snake River Water Rights
Act of 2004, Pub. L. No. 108-44 7, 118 Stat. 2809, 3431 ( div. J.,
title X of Consolidated Appropriations Act of2005), is perhaps the most
innovative Indian water rights settlement ever enacted by Congress.
Second, when Governor Kempthorne was asked to serve as Secretary of
the Interior, I was invited to join his team and participate in the
Bush Administration's management of over eighteen separate Indian water
rights settlements.
Third, as a private citizen now observing the continued evolution
of these important water matters, the nature and the magnitude of both
the problems and the proposed solutions to these settlements are at
times astonishing. But they are not insurmountable and there are some
things we can discuss to improve the process.
II. Discussion
A. The Problem Set
The path through Indian water rights settlements leads to
transformation.
In Idaho, we went from litigation to celebration of our Agreement
with the Nez Perce Tribe on the banks of the Boise River. It was
inspiring.
In New Mexico, we heard first-hand about the longest-active Federal
litigation, the Aamodt case (originally filed in 1966!). At one point,
we were advised, the case couldn't even progress through litigation
because, through the sheer passage of time, the court could not
determine what the appropriate law was in order to rule on a summary
judgment motion. This was confounding.
In Navajo Country, we spoke with ``the water haulers,'' good people
who make several round trips a week to put quarters into a machine that
dispenses potable water into large receptacles on their trucks for
their domestic needs. The images were overpowering.
There are many issues that occupy the daily calendars of Members of
Congress. The boots-on-the-ground moments described above support a
reasonable proposition that perhaps there is nothing more important in
the Federal Government than resolving the issue of water rights in
Indian Country.
This proposition became personally elucidating when, during a 2007
tribal leaders conference, a Pueblo Governor, upon hearing about how
the Aamodt, Taos and Navajo pipeline settlement discussions were
enthusiastically proceeding, took to the floor and asked our Federal
team when was it going to be his Pueblo's turn to begin work on their
water settlement, and by the way, would there be any water left? There
was not a really good answer to his question then and there still might
not be a good answer to this day.
The problem set before the Committee is simple: whatever water
there is, and wherever it is (either above or below ground), there is
not enough of it and what water remains is subject to intense
competition. Then, whatever water is available on the margins needs to
be delivered to Indian Country through a fiscally-sound means.
I believe these issues are too complex to be resolved by any other
process than negotiation. It is essential that the process itself and
resulting Indian water rights settlements be supported on Capitol Hill.
There is no other sensible alternative.
B. What is at Stake in these Settlements
So, what is there to negotiate, and why negotiate in the first
place?
As this Committee is well aware, the doctrine established by the
U.S. Supreme Court in Winters v. United States, 207 U.S. 564 (1907),
holds that when a reservation is set aside for an Indian tribe, an
implied right to water in an amount sufficient to fulfill the purposes
of the reservation is also created. Unsettled Winters claims consign
uncertainty over state-law systems of water management. The
intersection of these interests and the potential violence to state
management of water has been eloquently articulated by this Committee:
Generally speaking, in states that have adopted systems based
on prior appropriation, the ownership and priority of water
rights in a particular stream originate with the act of
diverting water for beneficial use. Tribal reserved water
rights (including the water rights of those who hold allotted
trust lands located within Indian reservations) and their dates
of priority, on the other hand, arise from the creation of the
reservation, and are not dependent on diversion for beneficial
use. Because in many areas the establishment of Indian
reservations preceded the initiation of most non-Indian water
uses, Indian reserved water rights often have priority over the
rights of other water users whose rights are based in state
Jaw. Accordingly, if Indian tribes were to exercise long-
dormant but senior Winters rights at times when there are
insufficient flows available to satisfy the needs of all users,
Indian and non-Indian alike, existing non-Indian water users
with rights based on the state-law systems of prior
appropriation would often face the subordination of their
rights to divert and use water.
S. Rpt. No. 108-389, at 2 (2004). In Indian Country, so much is at
stake with infrastructure, actual water, and future funding hanging on
a decision to resolve--forever--a tribe's Winters rights. These are the
biggest decisions tribal leadership will ever make and they certainly
should not be taken lightly. There is a mirror image of similar
difficult decisions for the non-Federal participants to the same
settlement, and often additional pressures of other Federal law such as
the Endangered Species Act and the Clean Water Act enter into the
calculus.
What are the benefits of a negotiated outcome? During the summer of
2004, thenGovernor Dirk Kempthorne provided his views on the Snake
River Water Rights Act to this very Committee. For us, the return on
our investment in the Nez Perce Agreement was incalculable:
This agreement protects Idaho's sovereignty by maintaining our
system of water law and our existing water rights, which is a
process familiar to this committee in traditional water rights
settlements.
It provides certainty for the Nez Perce Tribe by resolving
their water rights, as well as certainty for our Idaho water
user community and important stakeholders our natural resource
economy because of the protections contained in the agreement
for the next 30 years.
It provides opportunity by setting forth a new way of going
about protecting endangered species while preserving access to
State and private timber lands for our resource-based
industries and the rural communities that depend on Idaho's
forests.
NezPerce-Snake River Water Rights Act: Hearing on S. 2605 Before
the S. Comm. on Indian Affairs, 108th Cong. 47 (2004) (statement of
Dirk Kempthorne, Governor of Idaho).
When Governor Kempthorne became Secretary Kempthorne, we were truly
educated about the legal obligations of a Federal Trustee. In that role
we were called to Capitol Hill to account for our management of the
pending multiple water settlements, and, as we did with the Snake River
Act, we touted the significant benefits of the negotiation model:
Through [an Indian water] settlement, parties can agree to use
water more efficiently or in ways that obtain environmental
benefits, or to share shortages during times of drought. In
exchange for settlement benefits, tribes can agree to
subordinate use of their water rights so that existing water
uses can continue without impairment. Parties to negotiations
can agree to terms for mutually beneficial water marketing that
could not otherwise occur because of uncertainties in Federal
and State law. Settlement negotiations foster a holistic,
problem-solving approach that contrasts with the zero-sum logic
of the courtroom, replacing abstract application of legal rules
that may have unintended consequences for communities with a
unique opportunity for creative, place-based solutions
reflecting local knowledge and values.
Statement of Michael Bogert, Chairman of the Working Group on
Indian Water Settlements, before the House Subcommittee on Natural
Resources (April 16, 2008). These observations hold true to this
moment.
With this understanding of the benefits should a negotiation effort
succeed, what about the negotiating opportunity itself?
If for no other reason, this setting should be exploited because it
is one of the precious few opportunities where Congress has afforded
non-Federal parties a perfectly lawful place at the negotiating table
with Federally-recognized tribes and the United States Government. In
addition to a few provisions of the Indian Gaming Regulatory Act where
Congress ceded authority to Governors to negotiate Class III gaming
compacts directly with gaming tribes, see, e.g., 25 U.S.C.
2710(d)(3)(a), likewise, the McCarran Amendment diverts the United
States and tribes into a State-law process through a rare, express
waiver of sovereign immunity. See 43 U.S.C. 666.
There are voices in Indian Country, legitimately perhaps,
distrusting of state-law infrastructure as a means to ultimately
determine their fate as sovereigns. However, history shows that more
often than not, McCarran Amendment proceedings are a unique and
valuable relationship-building tool even if, in some instances, the
journey begins with a shotgun wedding. Governor Kempthorne often said
during our settlement negotiations with the Nez Perce that while the
Tribe was, of course, a sovereign tribal government, he also considered
them fellow Idahoans.
C. Can this Process Be Better?
The traditional model for the success of Indian water rights
settlements consists of several stages.
First, if the settlement discussions germinate in a state with a
disciplined general stream adjudication, perhaps a fortunate confluence
of timing and ripeness materializes.
Then, if a settlement successfully makes its way through the state
law process and becomes embodied in Federal legislation, hopefully
there are senior members of the Congressional Delegation to deftly
maneuver the legislation through the process. No small amounts of
divine inspiration and perspiration are invested to make Indian water
settlements succeed. Hopefully there is always room around the margins
for improvement, and the following are a few observations and
suggestions on how the process might be made better.
1. Earlier Funding
Much has been debated--as it should--about the cost to the Federal
Government of funding Indian water rights settlements. For now, the
Criteria and Procedures for the Settlement of Indian Water Rights
Claims, 55 Fed. Reg. 9223 (March 12, 1990), a policy that was very much
a focus of discontent in Indian Country when we were at the Department
of the Interior, has withstood the test of time. The Criteria and
Procedures guide Executive Branch decisions on water settlements and
affirm that the taxpayers are entitled to a sound financial resource
allocation and a reasonable return on its investment for peace with
Indian water rights.
So, while legitimate debate over the cost-justification for these
settlements continues, at least one answer to the New Mexico Pueblo
Governor mentioned earlier might be with early funding supporting the
development of outstanding water rights claims in Indian Country.
There was always a long line outside the door of the Secretary's
Indian Water Rights Office for seed funding for lawyers, hydrologists
and other experts to assist tribes in developing their claims. Even
before formal negotiations commence, a tribe's Winters claims can only
be ascertained, evaluated and prioritized with this essential seed
funding. This early financial support is an essential ingredient and
the foundation for the future success of Indian water settlements, and
it should be actively supported on Capitol Hill.
2. Trustee Agency Coordination
Our Federal Government can always be better coordinated. Also, it
is not necessarily intuitive that the agencies housed at the Department
of the Interior share trustee responsibility with other Cabinet-level
departments, including the Environmental Protection Agency. I served as
the Regional Administrator in EPA Region 10 in 2005 and 2006, and the
tribal outreach programs there are a model. As the EPA Region with the
largest accumulation of Federally-recognized tribes (271), Region 10 is
rightfully proud of its work in Indian Country.
I believe more can be done on a cross-Federal agency basis to
maximize the resources dedicated to assist developing Indian water
rights settlements, through, for example, cooperative programs,
interagency staffing agreements, or similar tools. Trustee
responsibility in the area of water settlements should not solely be
the burden of the Department of the Interior, especially with water
quality being mentioned more often in the same breath as water
quantity.
3. Is the System Built for Partial Settlements?
As was recognized by this Committee in its 2004 report on the Snake
River Water Rights Act, the process of resolving Indian water
settlements can be arduous. ``[T]he general stream adjudication process
has proven itself to be an unwieldy, expensive and, above all, slow
method for resolving the competing water rights claims in a stream or
watershed.'' S. Rpt. 108-389 at 2. Is there an alternative to the years
needed to resolve broader Winters claims, by all parties, in Indian
Country?
In some cases, non-Federal parties and Tribes may be in an
advantageous position to begin negotiating their separate peace with
each other in various local watersheds. As noted earlier, unlike Idaho
with its Snake River Basin Adjudication (and now the North Idaho
Adjudication), other states are less fortunate in their ability to
simply call upon its state water law construct to accommodate
negotiations between Tribes and other parties to settle outstanding
water rights claims.
Certainty is a vital component of an Indian water rights
settlement. However, with certainty comes the painstaking process of
identifying any and all possible claims to be resolved in exchange for
waivers and the blessing of Congress that there was finally ``Peace in
the Valley.''
We should begin a conversation about whether it is possible to make
incremental progress on settlements where the parties can resolve key
elements of what eventually becomes a much broader discussion of the
full satisfaction of a Tribe's Winters claims.
For example, if water settlement discussions can be focused on
certain divisible components and resolved prior to the much tougher and
more robust negotiations over broader Federal reserved water rights,
then they should proceed with all speed. It does not make sense to
wait--perhaps years--for a larger settlement construct to emerge if
parties can resolve their differences and provide much needed resources
to Indian Country as a result of a partial settlement with a tribe.
These ``mini-settlements'' should be supported as a matter of policy by
the Executive Branch and welcomed by Congress if an agreement is
appropriately scaled and satisfies the interest of the tribe and the
other settling parties.
III. Conclusion
In closing, I want to dispel a few myths about Indian water
settlements.
A. Myth Number 1: Collaboration is Easy
It is awfully easy to talk about bringing collaborative processes
to Indian water settlements, but the warm and fu
y feelings that surround the term ``collaboration'' is really a
false impression. Collaboration is tougher than it looks and is not for
the faint of heart.
Collaboration is tough because it requires sitting at a negotiating
table with dislikable people and listening to positions that are
antithetical to yours. It is tough because often, one has to retreat
and seriously contemplate one's genetic makeup and dearly-held values
of the people one represents.
Collaboration sometimes requires battling with people that you once
believed were your friends (in Idaho, we had to overcome opposition to
the Nez Perce Agreement by the state Farm Bureau). \1\ And,
collaborative processes are extremely uncertain as to where the ebb and
flow of the discussions will lead and when the negotiations will end.
In short, collaboration is not for the meek; if is not difficult, it is
not being undertaken correctly.
---------------------------------------------------------------------------
\1\ For more on the Nez Perce Agreement, see Laurence Michael
Bogert, The Future Is No Place To Place Your Better Days: Sovereignty,
Certainty, Opportunity, and Governor Kempthorne's Shaping of the Nez
Perce Agreement 42 IDAHO L. REV. 673 (2006).
---------------------------------------------------------------------------
Contrast collaboration to litigation. Dedicating the outcome of a
water controversy to the courts is the best resolution if there is
simply nothing left to lose. Certainly, there is a time and a place to
litigate, but courts cannot address the relationships that may be
irreparably injured in the wake of an adverse decision. And, with all
due respect to the judicial branch of government, courts are least-
equipped to rearrange local and regional economies.
Finally, courts are incapable of awarding the types of settlement
benefits that were described earlier in Governor Kempthorne's statement
on the Snake River Act. No long-term ESA protection, no delegated
timber programs, and no state partnerships with the Tribe. These types
of benefits and investment in the future are forgone with litigation.
B. Myth Number 2: There Are No Heroes in This Process
It is sometimes great sport to bash Federal bureaucracy in an
oversight environment, and perhaps there might be an inclination to do
the same with respect to water settlements in Indian Country.
My experience is different. Having been a part of this work in
Idaho and at the Department of the Interior, the Committee should be
advised that there is a dedicated group of career Federal public
servants that truly understand what is at stake in these settlements.
The day-to-day work that ultimately leads to success in resolving
Indian water rights claims is incremental, unseen and unsung. But
because it is not conspicuous does not mean that good work is not being
accomplished.
Because of the decentralization of the Department of the Interior's
settlement assessment and negotiation teams, there are many quiet
heroes who make the work of advancing stakeholder development--in
Indian Country and elsewhere--as some of the most fulfilling work they
do as Trustee agency representatives.
A final concluding thought. The Academy Award winning documentary
``Man on Wire'' is the epic drama of Philippe Petit, a French high wire
artist who walked between the World Trade Center Twin Towers in 1974.
The many months of planning this maneuver began with Petit
remarking to his compatriots that: ``It's impossible that's sure . . .
let's start working.'' The only thing that kept Petit from his demise
was the cable strung between the towers, and yet he dramatically
defeated the ``impossible.''
Some may speak of water rights, water supply, water quality and
allocation of water in Indian Country in the near fatal terms that
Petit approached his walk between the Twin Towers.
I disagree. There is a choice, but it requires enduring the messy
collaborative process and attempting to develop the relationships
necessary to give the process a chance. These are opportunities to test
the boundaries of the human spirit and they must be chosen.
The challenges with water settlements in Indian Country may seem
impossible, but failure will be a fait accompli if the hard work is not
even attempted.
The Chairman. Thank you very much, Mr. Bogert.
Let me begin by asking Professor Royster, over the past 35
years, more than two dozen Indian water rights claims have been
resolved through settlement. To your knowledge, how many claims
have been resolved through litigation during that time? And
what is the end product of a settlement negotiation versus that
of litigation?
Ms. Royster. Mr. Chairman, I was trying to add up in my
head as you talked. I think I can perhaps safely say fewer than
27. But off the top of my head, I am thinking about five or
six, but I am sure there are more.
But with respect to the end result, I think the end result
that you get is the difference between a determination that
water rights exist, that is one level from litigation, versus
the possibility, at least, of all three levels from settlement
that you get not only a determination, but you get
authorization for funding, you get implementation through the
implementation process, and you get the additional ability to
address issues that would not ordinarily be able to be
addressed in the course of litigation, but that benefit not
just the tribes but the States and surrounding communities as
well.
The Chairman. Thank you.
Counsel, we held a hearing on emergency preparedness that
discussed the need for greater coordination and utilization of
federal resources. You mentioned these same needs with regard
to water settlements. Can greater coordination and utilization
of federal resources make the settlement process more
efficient?
Mr. Bogert. Mr. Chairman, in my testimony I describe that
having served at the Environmental Protection Agency, the great
enthusiasm, particularly Region X in Seattle, for the 170-plus
federally-recognized tribes that they have responsibility for,
the answer, unequivocally, is yes. I believe that good
government can always be better government. And to the degree
that the fierce dedication of, for example, the Environmental
Protection Agency to clean water in Indian Country, I think has
the same synergy and energy that we still have with the good
career people at the Department of Interior that work on
settlements.
And Mr. Chairman, I touched on this very briefly in my
testimony. One of the emerging issues that you are seeing in
these settlements is the notion that there is a potential cause
of action in Indian Country for the failure of the United
States to maintain clean water for the duration, potentially,
of their trust obligations from the creation of the
reservation.
My experience with the good people that are enthusiastic
about discharging their trust obligations in the Federal
Government, Mr. Chairman, is they should be coordinated. Their
interests are perfectly aligned to the needs in Indian Country,
both with respect to supply as well as clean water. I have
witnessed it, having worked at the Environmental Protection
Agency and seeing the similar enthusiasm that they have to
bring good work to Indian Country.
The Chairman. Professor, in your opinion, can enabling
tribes to market their water lead to economic development and
job opportunities for tribal and surrounding communities?
Ms. Royster. Mr. Chairman, I think absolutely yes. The
marketing of water really allows the tribes to participate in
something which is widespread now across the west and in which
most water holders can participate, and really to recover the
economic value of their water resources in cases where the
tribe either is not yet in a position to put that water to use,
or wishes not to put it to use. It benefits the tribe
enormously in terms of economic development, and most of the
settlements that allow this provide that the water will be sold
to local municipalities.
I am thinking in particular of some of the Arizona
settlements where the water is provided, marketed to
municipalities at a rate which may be a little below fair
market value, but the tribe gets an economic value, the
municipality gets a deal and a guaranteed additional water
supply.
The Chairman. Counsel, from your experience, can you please
discuss the Federal Government's role during the implementation
of PHASE? What were some of the key challenges during your
tenure at the Department of Interior?
Mr. Bogert. Mr. Chairman, I guess I have two perspectives
on this. One, having come from a state with our own settlement,
and then having the opportunity to be a part of managing the
settlements at the Department of Interior, first, it is very
easy when we are back home in Idaho to fall prey to the notion
that our settlement is the most important settlement in the
world, and it should be the only one that folks in Washington,
D.C. should be paying attention to. That is what I thought,
that is what I used to think.
Then having come to Washington and understanding pressures
on individual hallway budgets, Bureau of Reclamation, Bureau of
Land Management. I gained a better appreciation for the issues
of implementation.
Mr. Chairman, often, and again, having served with good
career people at the Department of the Interior and
understanding their fierce dedication to advancing these
settlements, which is still as enthusiastic today as it was
when we were there, often these issues come down to just simply
how many bodies you can get on the playing field from the
reaches of these federal agencies. For example, we have been
talking about assessment teams and negotiating teams.
Mr. Chairman, these people have other duties within their
agencies. Their role on these teams are merely a part of what
their full-time portfolio is. One of the great quandaries of
these settlements, Mr. Chairman, is the sheer serendipity of
them, when they are ready, how they make their way through the
system and ultimately how much pressure there is, both on the
Department to act and on Congress, to give it the blessing.
I think so much of this is dogged determination on
implementation and in our own case in Idaho, we are eight years
down the road on our settlement on a Section 6 agreement under
the ESA where the State of Idaho would have a delegated program
under the Endangered Species Act. It is still in a relative
middle phase, Mr. Chairman, it is a problem.
But to the degree that critical needs have to be linked,
probably, with those deliverables, I think it is a matter of
prioritization and a renewal of commitment to getting the work
done.
The Chairman. With your experiences here, working for the
Department and also addressing these problems over the years, I
just want to ask both of you whether you have any further ideas
as to how we can deal with the challenges of this.
Mr. Bogert. One thing in particular, and having been out of
government for a while, I was very spoiled in Idaho with our
very disciplined general stream adjudication. Yes, it took us a
bit to get through the process of resolving the Nez Perce
claims, and now there is a North Idaho adjudication. But what I
found, Mr. Chairman, is that often other States have a less
convenient means of bringing people together through the
discipline of a general stream adjudication.
One of the ideas that I think might be worth further
discussion is the notion that if you have parties that have
developed a relationship with the tribe, non-federal parties,
other State entities that are cultivating the framework of a
potential settlement with a tribe, but it is potentially self-
sustainable, outside of the larger Winters claims, or the
larger water rights that attach to ultimately providing the
needs of the reservation, we should be able to partially settle
those, Mr. Chairman.
To the extent that, for example, Senator Kyl ran a bill in
2008 that provided a loan to the White Mountain Apache Tribe
that began to develop in the feasibility studies for their
water treatment facility. I think that finality and certainty
goes into a much larger conversation about broader settlements
and certainty, I think, Mr. Chairman, if we think about this,
we should be able to pick off portions of a settlement that
ultimately can be resolved while the parties continue to work
on the larger claims.
Whether this fits with the notion of certainty and finality
or what the Criteria and Procedures say about this, I think it
is a conversation worth exploring, Mr. Chairman. Because I
believe the parties that are willing to cultivate the
relationship and put terms of making a separate peace with
respect to their relationship, they shouldn't have to wait for
the machinery of a general stream adjudication to make its way
through a process.
The Chairman. Thank you.
Professor, do you have any comments further?
Ms. Royster. Mr. Chairman, just one or two quick comments,
which is, I think that this idea of a partial settlement is
intriguing, and a really interesting thing that perhaps the
parties and Congress could pursue.
The only thing that I would add is something that was
raised earlier. My memory fails me, sir, as to whether it was
your point, but simply that we are in a time of federal
retrenchment on budgets. And it would be a shame if the
momentum on settlements were to be lost, that these are
crucial, crucial for tribes, crucial for the surrounding
communities, crucial for the certainty of western water rights.
And that the tribes, the great majority of tribes who do not
yet have their water rights quantified, should have the ability
to have their settlements enacted and funded as well.
Thank you.
The Chairman. Well thank you very much for your responses.
We look forward to continuing to work with you on these issues.
We know how complex the problem is. It is not only, what do we
do with the water, but in some places, where do we get the
water or how can we get the water. And delivery becomes another
thing to think about. So it is very complex.
But we need to deal with these so that we can have more
certainty among the tribes as to what they can do with their
water, water problems. And because the Country is so different
throughout the continent, there are different sites in the
Country where they may have similar problems but separated. We
need to put all of these together and see what we can do to
help the population of indigenous people.
Thank you so much for your part. We really appreciate it.
Again, I want to express my mahalo, my thank you, to you and
all the other witnesses. And today we heard about the benefits
of settlement negotiations and the challenges in funding and
implementing Indian water rights settlements. Our distinguished
witnesses raised many ideas and potential solutions to more
effectively negotiating and implementing tribal water rights
settlements. I look forward to continuing these conversations
with the Administration, with tribal leaders, tribal
organizations, other interested parties and stakeholders here.
Finally, I would like to express the importance of hearing
from all interested stakeholders on these matters. So
therefore, the hearing record will remain open for written
testimony for two weeks from today. So thank you again, mahalo
for participating with us, and mahalo for your interest. And of
course, you know that we have roundtable discussions as well as
other discussions where we want to hear from the tribes and
people about these issues.
So we look forward to that and try to do the best we can
together. So thank you very much, this hearing is adjourned.
[Whereupon, at 4:39 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of the La Jolla, Rincon, San Pasqual, Pauma, and
Pala Bands of Mission Indians, and the San Luis Rey River Indian Water
Authority
Chairman Akaka, Vice Chairman Barrasso, and Members of the U.S.
Senate Committee on Indian Affairs, this written testimony is submitted
to the Committee on behalf of the La Jolla, Rincon, San Pasqual, Pauma,
and Pala Bands of Mission Indians, and the San Luis Rey River Indian
Water Authority.
The subject of the Committee's March 15th hearing is embodied in
the provisions of the San Luis Rey Indian Water Rights Settlement Act
of 1988, in which the Congress authorized the parties to litigation
involving the use of the waters of the San Luis River Basin to engage
in negotiations that would lead to the settlement of water rights
claims in that litigation as well as address issues in proceedings
before the Federal Energy Regulatory Commission. While our Bands long
ago elected to pursue a negotiated settlement of our water rights
claims, we believe that our experience in the negotiation and
implementation of the San Luis Rey Indian Water Rights Settlement Act
may be instructive to other tribal governments and the Committee.
Background
In the latter part of the nineteenth century and the early part of
the twentieth century, the United States established reservations for
the La Jolla, Rincon, San Pasqual, Pauma and Pala Bands of Mission
Indians along and in the vicinity of the San Luis Rey River in northern
San Diego County pursuant to Executive Orders and the Mission Indian
Relief Act of 1891, and the United States reserved sufficient water to
fulfill the purpose of each reservation under the Winters Doctrine.
However, beginning in 1894, the United States also allocated the
same waters of the San Luis Rey River to the predecessors of the City
of Escondido and the Vista Irrigation District through a series of
Federally-issued and Federally-approved agreements, rights-of-way and
licenses, for the construction of facilities to store and divert the
waters of the San Luis Rey River originating above the five Bands'
reservations. Using those facilities, the City and the District
(collectively referenced as ``the Local Entities'') historically
diverted 90 percent of the flow of the San Luis Rey River away from the
five reservations to the communities served by Escondido and Vista. The
water is conveyed to Escondido and Vista through a canal that traverses
three of the reservations--La Jolla, Rincon, and San Pasqual--as well
as Bureau of Land Management lands.
In the late 1960's and early 1970's, the five Bands and the United
States initiated proceedings before the U.S. District Court for the
Southern District of California and what is now the Federal Energy
Regulatory Commission (FERC) seeking monetary, injunctive and other
relief against Escondido and Vista. Following fifteen years of
litigation, the Supreme Court issued a decision in 1984, accepting some
arguments for each side, rejecting others, and remanding the case to
the Federal Energy Regulatory Commission. \1\ Rather than pursuing
further litigation, the United States, the Bands and the Local Entities
entered into settlement negotiations which culminated in the enactment
of the San Luis Rey Indian Water Rights Settlement Act in 1988.
---------------------------------------------------------------------------
\1\ Escondido Mutual Water Co., v. La Jolla Band of Mission
Indians, 466 U.S. 765 (1984).
---------------------------------------------------------------------------
The Act provides that the settlement of water rights disputes shall
take effect when the parties (the United States, the Local Entities and
the Bands) have entered into a settlement agreement providing for the
complete resolution of all claims, controversies, and issues involved
in all of the pending proceedings among the parties in the U.S.
District Court for the Southern District of California and the Federal
Energy Regulatory Commission, and stipulated judgments or other
appropriate final dispositions have been entered in those proceedings.
The Act also authorizes the establishment of the San Luis Rey
Tribal Development Fund in the Treasury of the United States, and
addresses the duties of the United States in providing a supplemental
water supply for the benefit of the Bands and the Local Entities,
subject to the provisions of the settlement agreement. Specifically,
the Act authorizes and directs the Secretary of the Interior to arrange
for the development of not more than a total of 16,000 acre feet per
year of supplemental water to be shared by the Bands and the Local
Entities.
The basic idea of the settlement is that the Local Entities would
be made whole, and that the Bands would have rights to sufficient water
from both the San Luis Rey River and the supplemental water to meet
their present and future needs, in order to assure that the Bands would
have the full original measure of their Federally-reserved rights to
water before 90 percent of their water had been diverted away from
their reservations, and the same water had been allocated to the Local
Entities.
We provide this summary of the Act to the Committee as a context
for understanding what the parties to the Settlement Act have been
trying to achieve in the process of negotiations designed to reach a
settlement agreement.
Challenges
Unfortunately, our experience with the merits of negotiation versus
litigation has not been consistent with the benefits that are
customarily ascribed to the negotiated settlement of tribal water
rights claims. For instance, as stated above, while 15 years of
litigation culminated in a ruling by the U.S. Supreme Court, and 4
years of negotiations led to the enactment of our 1988 Settlement Act,
we have now been in the implementation and further negotiation phase
for 24 years, and we still have no settlement agreement that would
bring about the complete resolution of the claims that cannot be
dismissed until a settlement agreement is signed.
Thus, for us, the negotiation process has not been less time-
consuming than litigation, or less expensive than litigation, and the
process certainly has not achieved certainty and access to water
rights.
We would like to be able to say that the negotiations process
encourages collaboration amongst the parties, but collaboration between
the United States and the Bands was more evident in the litigation
phase than it has been in the negotiation process. And while we would
also like to attribute more flexibility to a negotiation process in
which the parties can craft mutually beneficial solutions, the United
States has adopted a legal position based on the government's
construction of the Act which it believes constrains the government's
flexibility and ``ties its hands'' when it comes to preserving the
Bands' pre-existing Federally-reserved rights to water on our
reservations and within the San Luis Rey River basin.
One of the first challenges we encountered in our dealings with the
United States is that our Settlement Act was enacted into law 24 years
ago, and it thus apparently doesn't conform to what the government now
requires of contemporary Indian water rights settlements. For instance,
our Settlement Act was a settlement of claims in litigation amongst the
parties--it wasn't a general adjudication of the rights of the other
thousands of San Luis Rey River water users--and the scope of the Act
is limited to those parties--the United States, the five Bands, and the
two Local Entities.
Our Settlement Act was intended to remedy the fact that the
government was responsible for diverting water away from our
reservations, and the purpose of the Act was to make the parties
injured by the government's actions whole--by importing water into the
San Luis Rey basin for the Bands and the Local Entities to supplement
the supply of water to which both the Bands and the Local Entities have
prior existing legal rights.
And as explained more extensively in his 1986 letter to the
Chairman of the Senate Select Committee on Indian Affairs, \2\
Assistant Attorney General John R. Bolton advised the Committee that
the United States supported enactment of the San Luis Rey Indian Water
Rights Settlement Act because it ``would bring to an end all costly
litigation--both existing and prospective--involving the past and
future use of waters of the San Luis Rey River between the Bands,
Mutual, and Vista'' (the Local Entities) and that ``pending and
potential claims against the United States would be settled''.
---------------------------------------------------------------------------
\2\ August 11, 1986 letter from Assistant Attorney General, John R.
Bolton, U.S. Department of Justice, to the Honorable Mark Andrews,
Chairman, U.S. Senate Select Committee on Indian Affairs.
---------------------------------------------------------------------------
Nonetheless, twenty years later, when the United States asks us
``what is in this settlement for us?''--we think that the Congress
answered that question in 1988 with the enactment of our Settlement
Act, and that Assistant Attorney General Bolton was clear that bringing
about the end of existing and prospective costly litigation was one of
the principal benefits that the Congress conferred upon the government
in the Settlement Act.
Today however, the government construes the 1988 Settlement Act to
mean that the Act was intended to extinguish the Bands' Federally-
reserved rights to the waters running through our reservations and to
the surface and ground waters in the San Luis Rey watershed, as the
price we must pay for the provision of supplemental water that the Act
directs the Secretary to deliver to the San Luis Rey basin.
Naturally, because we and representatives of the Local Entities
were working closely with members of Congress in the years leading up
to the enactment of our Settlement Act, and we know exactly what the
underlying circumstances were that the Congress sought to address in
the Act, we have had to contest the government's construction of the
history of our Settlement Act.
We know, for instance, that there is nothing in our Settlement Act
that extinguishes the Bands' pre-existing Federally-reserved rights--
nor is there any provision in the Act in which the Congress authorized
the Executive branch of the government to interpret the Act as an
extinguishment or termination of the Bands' existing Federally-reserved
rights to water on our reservations or in the San Luis Rey River basin.
Nor is there any language in the Act which relieves the United States
of its trust responsibility to protect the Bands' existing Federally-
reserved rights.
The reality is that by the Federal Government's action, 90 percent
of the water to which we have a Federally-reserved right, was diverted
away from our reservations. Congress sought to restore to us that water
which was lost to us through diversion. The Congress didn't say--and
there is nothing in the Act to support the proposition--that the
Congress' true (but well hidden and unstated) objective was to strip us
of, or restrict us from, exercising the rights to what little water we
had left.
The truth is that the Congress authorized the delivery of enough
water to restore to the Bands and the Local Entities--the same amount
of water that had been diverted away from the Bands' reservations and
allocated to Local Entities in breach of the government's
responsibility to preserve and protect the Bands' Federally-reserved
water rights. Everything else was to remain the same.
On March 1, 2012, the government declared that our negotiations
have reached an impasse and that there was no purpose to be served by
further discussions or negotiations. So while the Congress has
appropriated the funds authorized in our Settlement Act, and the
supplemental water is now poised to be delivered to the San Luis Rey
River basin to make the parties whole--exactly the result that the
Congress intended to achieve--the government is using its new ``legal
position'' to frustrate the will of the Congress.
Our only options now seem to be to return to the Congress to seek a
clarifying amendment to our Settlement Act, or to return to litigation
in an effort to preserve and protect our Federally-reserved rights to
sufficient water to sustain life and fulfill the purposes for which our
reservations were established as permanent homelands for our people.
Questions
In conclusion, our experience prompts us to offer some questions
for other tribes to consider about tribal water settlements generally--
What are the government's priorities in reaching a negotiated
settlement? What are the principal interests the government is seeking
to satisfy if those interests are not related to the United States'
execution of its trust responsibilities for Indian lands and resources?
If there is a conflict between the government's commitment to other
interests and its trust responsibility for Indian lands and resources,
does the government have a higher duty to protect tribal lands and
resources as trustee?
How do tribal governments achieve some equal footing with the
government in the negotiation process?
How much does the potential for liability affect the government's
substantive positions?
What happens when there is an impasse declared between a tribe and
a Federal team--is there a mechanism for having the issues in
controversy heard at a higher level or by an impartial third party?
What recourse does a tribe have if the government adopts a legal
position that is certainly not expressly stated in the governing
statute, and then issues a ``take it or leave it'' ultimatum?
These, we think, are crucial questions for a tribe to ask and have
answered before entering into a negotiation process--because if our
experience is any example, the government's highest priority appears to
be protecting the United States at all costs, even if that self-
protection comes at the expense of those who have been injured by the
government's actions.
We have a close and strong working relationship with the City of
Escondido and the Vista Irrigation District. We have worked together
for years to craft a water management system that will serve all the
water users in the San Luis Rey River basin--one which will fulfill the
intent of the Congress as expressed in our Settlement Act and our
settlement agreement--and which will enable us to assure that our
children and our grandchildren and future generations will have the
water that we all need to sustain life.
So when the government asks us,''what's in it for us?'', we wonder
what the government's interests are, and why they are seemingly so
different from ours.
We thank the Committee for affording us the opportunity to share
our experience and our views with the Committee.
______
Prepared Statement of Charles J. Dorame, Chairman, Northern Pueblos
Tributary Water Rights Association
Introduction
Members of the Committee, my name is Charles J. Dorame. I am a
former Governor of the Pueblo of Tesuque in New Mexico, and Chairman of
the Northern Pueblos Tributary Water Rights Association (NPTWRA or
Association). The NPTWRA is made up of the Pueblos of Nambe, Pojoaque,
San Ildefonso and Tesuque. The four Pueblos are parties in the water
adjudication captioned State of New Mexico v. Aamodt, et al., filed in
the federal district court in New Mexico in 1966. The Aamodt case was
filed to determine the nature and extent of Pueblo Indian Water Rights.
The Aamodt Litigation Settlement Act (ALSA) became law as part of
the Claims Resolution Act of 2010, Title VI, Public Law 111-291. The
ALSA approved the Settlement Agreement and Cost Sharing and System
Integration Agreement negotiated by the government parties and
representatives of individual water rights holders in the Pojoaque
River Basin, a tributary of the Rio Grande north of Santa Fe New
Mexico. On behalf of the four Pueblos, we appreciate the support
provided by the United States in helping our Indian Water Rights
Settlement reach its present status. This statement is submitted to
share perspective on the settlement of the leading case with the only
published opinions on Pueblo Indian Water Rights.
Our water settlement will provide water and infrastructure to need
the needs of our future generations.
Promoting Negotiation
2.1. Litigation Background. The State of New Mexico filed the
Aamodt water adjudication in 1966 in federal court. The United States
waived sovereign immunity for itself and the four Pueblos and had those
five parties realigned as plaintiffs-in-intervention. After the federal
district court in 1973 made an initial determination of Pueblo water
rights, the United States appealed and the Pueblos intervened. The
Tenth Circuit Court of Appeals ruled in 1976 that the Pueblos were
entitled to independent representation, and that Pueblo Indian Water
Rights were not measured based on state law. State of New Mexico v.
Aamodt, 537 F.2nd 1102 (10th Cir. 1976) (``Aamodt''). In 1985, the
federal district court ruled that Pueblo Indian Water Rights on Pueblo
grant lands arose from our aboriginal sovereignty and concluded that
the aboriginal root for these water rights remained unextinguished,
except to the extent affected by the 1924 Pueblo Lands Act, 43 Stat.
636. Aamodt II, 618 F.Supp. 993 (D.N.M. 1985). In 1987, the Court
issued Findings of Fact on the Historically Irrigated Acreage (HIA)
within each Pueblo's grant boundary which are still owned by the
Pueblo. In 1994, the New Mexico Court of Appeals ruled that Pueblo
Indian Grant Lands are not entitled to water rights measured according
to the ``Winters doctrine'', relying on the Aamodt rulings. State v.
Kerr McGee, 120 N.M. 118 (N.M. Ct.App. 1995).
2.2. Starting Negotiations. After a series of trials before a
Special Master in the 1990s, where the federal district judge rejected
the special master reports on Pueblo ``replacement rights'' grounded in
section 19 of the 1924 Act, and Winters doctrine rights for the Nambe
Pueblo reservation, the parties in the Aamodt case represented by
active counsel requested court-ordered mediation. That Order halted
further litigation on the case. The court appointed a settlement judge.
The court-ordered mediation, and the presence of a settlement judge
were essential ingredients in moving the negotiation process forward in
the Aamodt case. The United States through the Department of Justice,
and the State of New Mexico shared the costs for the settlement judge.
The settlement moved ahead based on prior court rulings, and the
expectation of additional water for use in the Basin, and a regional
water system to deliver it to Pueblo and other county residents,
thereby protecting existing water uses.
The Settlement Agreement was signed in 2006 by each of the four
Pueblos, the County of Santa, City of Santa, and the State of New
Mexico. The United States said it would not sign the Settlement
Agreement unless directed by Congress.
The federal role in promoting negotiated settlement of the Aamodt
case was essential. It provided funds for technical studies, and other
support which contributed to the negotiation of the 53 page Settlement
Agreement. The Department of Justice lawyer in the settlement
negotiations had responsibility for drafting terms of the Settlement
Agreement as they were negotiated. The federal water rights negotiating
team also contributed significantly. Both staff and funding through the
Bureau of Indian Affairs Southwest Regional Water Office provided
technical and other support. The Bureau of Reclamation authored a
Settlement Study published in 2004, with over 20 appendices containing
additional technical reports that contributed to that Study of options
for a Regional Water System.
2.3. Legislation. We worked for years with our New Mexico
Congressional Delegation to develop legislation that would approve the
negotiated Settlement Agreement. The draft legislation was revised
through the years to address concerns raised from congressional staff.
Then, in 2009, the Administration took a more active role and
negotiated additional changes in the proposed legislation in order to
advance its goals of uniformity in certain key sections across several
Indian Water Rights Settlements. Those changes were included in the
final version of the Aamodt Litigation Settlement Act, which, together
with three other Indian Water Rights Settlements, were part of the
Claims Resolution Act of 2010, Public Law 111-291.
Thus the Aamodt settlement took 10 years to accomplish formal
federal approval of our Indian Water Rights Settlement. The court-
ordered mediation, the court rulings on Indian Water Rights priority
and amount, were critical components to the success of the settlement.
Funding and staff support through the Department of Justice and the
Department of Interior for the settlement process, as well as
independent representation for each of the four Pueblos, were also
essential elements of this settlement. Financial commitments by the
State of New Mexico and Santa Fe County contributed importantly to
securing Administration support for passage of our Settlement by
Congress.
3. Implementation of Water Settlement of the Aamodt Litigation
Water Settlement. The Aamodt Litigation Settlement Act approved the
Settlement Agreement and Cost Sharing and System Integration Agreement,
provided they are conformed to change as required by that Act, that Act
provided $81.8 million of mandatory appropriations to move the
settlement forward. $56.4 million were made available to the Bureau of
Reclamation to begin design, engineering, and environmental work for
the Regional Water System which is an essential element of the
settlement. This is a majority of federal funds authorized and required
to design and build the Regional Water System needed to implement our
settlement. The remainder of the mandatory appropriations were to pay
for sources of water supply to be delivered through the Regional Water
System, to provide for future needs of the four Pueblos. Another
component of the Aamodt Pueblos' Settlement Fund is for improving
Pueblo water infrastructure.
The Pueblos are grateful to have the mandatory appropriations for
almost half of the federal share required to implement the Aamodt
Litigation Settlement Act. We have been working closely with the
federal implementation team and the Bureau of Reclamation to conform
the Settlement Agreement and the Cost Sharing and System Integration
Agreement to the Aamodt Litigation Settlement Act. That process is
essentially complete. We still need to craft language for a Partial
Final Decree on Pueblo Indian Water Rights, and an Interim
Administrative Order so that the court process for approval of the
Settlement Agreement and entering of a Partial Final Judgment on Pueblo
Indian Water Rights resume, and move to completion. The ALSA requires
not only approval of those documents by the court, but also entry of a
final decree of all rights in the case by June 30, 2017. The law allows
that date to be moved by consent of the government parties, if
necessary.
3.1. Need for Additional Funds to Complete Settlement; $37.5
million needed through BIA by 2017; Additional $50 million through
Reclamation needed by 20121. The Aamodt Litigation Settlement Act
provides that if the Regional Water System required by the Act and the
Settlement Agreement have not been completed by June 30, 2021, one or
more Pueblos may ask the Secretary of Interior to consult and then make
a finding on whether that Regional Water System has been substantially
completed. This Act provides a window of three years between June 30,
2021, and June 30, 2024, for one or more Pueblos to ask the court to
vacate the Final Decree, and resume litigation, if the Regional Water
System is not substantially complete. We want to avoid that situation,
if at all possible.
Therefore, the Pueblos are concerned that the five year federal
timeline for environmental compliance and federal appropriations of at
least $37.5 million need to be completed by 2017, and the remaining $50
million for the federal share of construction for the Regional Water
System need to be appropriated so that construction can be complete by
June 30, 2021.
The four Pueblos continue to work cooperatively with the federal
implementation team and others to help that happen. We look forward to
working with our congressional delegation, and appropriate committees
and Congress, as well as current and future administrations to assure
that the significant federal support that has brought our Indian Water
Rights Settlement to this point will be joined by appropriations in the
future sufficient to implement our Settlement Agreement and the Aamodt
Litigation Settlement Act.
3.2. Trust Responsibility. We are concerned that federal staffing
and support for Indian Water Rights Settlements generally, and the
Aamodt Litigation Settlement in particular are adequately funded in the
future at a level to maintain the federal trust responsibility to
protect Pueblo Indian water resources. Our contacts with people both in
the Department of Justice and the Department of Interior, particularly
the Bureau of Indian Affairs, indicate that budget limitations
currently in place have resulted in challenges for staff in those
agencies to provide the time and resources to implement not only the
Aamodt Litigation Settlement, but others as well. We are also concerned
that several sources of funding within the BIA that have provided a
financial support for settlements in the past are shrinking. We see
this as a trend in the wrong direction.
Successful implementation of the Aamodt Litigation Settlement Act
requires federal financial support for robust tribal involvement. That
includes support for Pueblo governmental representatives, as well as
technical and legal experts to give the greatest chance for success for
implementing our Indian Water Rights Settlement. Having a decree that
recognizes enough senior first priority rights, combined with
additional water through the Regional Water System means that each of
our four Pueblos will have water to meet our present and future needs.
Constructing the infrastructure in a way that works for each Pueblo,
and our Santa Fe County parties, so that so that our water rights may
be available for use as our Pueblos grow into the future is an
essential part of our settlement.
We urge Congress to make the necessary resources available so that
the Aamodt Litigation Settlement can be fully implemented. That means
providing an additional $37.5 million through the BIA before 2017, and
an additional $50 million through the Bureau of Reclamation for the
rest of the federal share to construct the Regional Water System and
make it substantially complete prior to 2021.
On behalf of the Pueblos of Tesuque, San Ildefonso, Pojoaque, and
Nambe which together make up the Northern Pueblos Tributary Water
Rights Association, we appreciate the opportunity to submit this
statement to the Senate Indian Affairs Committee regarding negotiation
and implementation of water settlements in Indian country. Our water
rights settlement on the Pojoaque River Basin Tributary of the Rio
Grande in New Mexico is vital to the survived, future growth and
development of our Pueblos.
We look forward to working with all branches of the Federal
Government, as well as State and County governments, to accomplish the
requirements for our Indian Water Rights Settlement in the Pojoaque
River Basin in New Mexico. We trust Congress will take the necessary
steps to provide the federal resources needed to fully implement our
settlement.
______
Prepared Statement of Hon. Charles W. Murphy, Chairman, Standing Rock
Sioux Tribe
Chairman Akaka and members of the Committee on Indian Affairs, my
name is Charles W. Murphy. I serve as Chairman of the Standing Rock
Sioux Tribe of North Dakota and South Dakota. Standing Rock is
currently engaged in negotiations with the two states for a
comprehensive water rights agreement. Our Tribe is on the front lines,
working to secure water for our present and future needs.
Accordingly, I appreciate that the Committee is conducting this
oversight hearing. I respectfully request that my statement be included
in the Committee record.
The lack of positive involvement by the Secretary of the Interior
has impeded the establishment of a negotiation framework to resolve
Standing Rock's water rights issues. Meanwhile, the Army Corps of
Engineers' operations under the Missouri Basin Pick-Sloan Program and
the recently-released Draft Garrison Dam/Lake Sakakawea Surplus Water
Report (2010) jeopardize our current water uses and our efforts to
secure a negotiated settlement of our reserved water rights.
Standing Rock's experience has been as follows:
The process of getting a federal team appointed to assist
with water settlement negotiations is inequitable and
arbitrary.
The Secretary fails to comply with the existing stated
policy of supporting negotiations rather than litigation.
The Criteria and Procedures for the Participation of the
Federal Government in Negotiations for the Settlement of Indian
Water Rights Cases should be reviewed and updated. The Criteria
impose conflicting duties upon the Secretary by tying federal
funding for the implementation of settlements to federal
liability toward the affected Tribe. (55 Fed. Reg. 9223).
The Secretary appears unwilling to address conflicts,
between the reserved water rights of the Standing Rock Sioux
Tribe and the Pick-Sloan Missouri Basin program operations, and
the resulting potential liabilities of the United States. This
conflict is evidenced by the Army Corps of Engineers' Draft
Garrison Dam/Lake Sakakawea Surplus Water Report (2010), which
suggests that the future water withdrawals from the Missouri
River main stem are to be limited to ``surplus water,'' to be
defined by the Corps.
Increased funding is needed for technical and litigation
support to Tribes that are engaged in water negotiations, as
well as for implementation of existing settlements.
The Secretary should formally rescind the Moratorium on the
Approval of Tribal Water Codes (January 15, 1975).
Standing Rock Request for Appointment of Federal Team--Arbitrary and
Inequitable Treatment at DOI
The Standing Rock Sioux Tribe is a signatory of the Fort Laramie
Treaty of September 17, 1851 (11 Stat. 749) and the Fort Laramie Treaty
of April 29, 1868 (15 Stat. 635). The Standing Rock Reservation was
originally part of the Great Sioux Reservation, established in Article
II of the 1868 Treaty. Our Reservation is comprised of 2.3 million
acres of farm and range lands in the central plains of North Dakota and
South Dakota, along the Missouri River. Agriculture and livestock
comprise our main economic base.
At present, the Standing Rock Tribal Farm enterprise operates
irrigation on approximately 5,000 acres of Reservation farm land. The
Tribe seeks self sufficiency through expanded agricultural and economic
development. Article VI of the 1868 Fort Laramie Treaty commits the
United States to assist with the cultivation of our farm land, and
evidences an intent that agriculture is a primary purpose for the
establishment of our Reservation. (15 Stat. 636).
Accordingly, under the Winters Doctrine, \1\ Standing Rock
possesses extensive water rights to the Missouri River, its tributaries
on and bordering our Reservation, and the basin's groundwater. The
Tribe should receive federal support in our efforts to address our
claims and to receive tangible benefits from them.
---------------------------------------------------------------------------
\1\ See Winters v. United States, 27 U.S. 564, a case in which the
United States Supreme Court held the Fort Belknap Indian Reservation
may reserve water for future use in an amount necessary to fulfill the
purpose of the reservation, with a priority dating back to the treaty
that established the reservation. The Winters doctrine established that
when the Federal Government created Indian reservations, water rights
were reserved in sufficient quantity to meet the purposes for which the
reservation was established.
---------------------------------------------------------------------------
In April, 2010, I contacted then-Governor John Hoeven of North
Dakota and thenGovemor Mike Rounds of South Dakota and proposed a
multi-party negotiation for the purpose of addressing Standing Rock's
water rights claims. They agreed and appointed state negotiating teams
to work with Standing Rock to negotiate a comprehensive water rights
agreement. On December 6, 2010, I, South Dakota Governor Michael
Rounds, South Dakota Attorney General Marty Jackley, and North Dakota
Attorney General Wayne Stenjhem, signed a Rule 408 Agreement, to
preserve the confidences of the negotiating parties.
The Tribe and local stakeholders have sought federal participation,
from the start of the negotiation process. I wrote to Interior
Secretary Salazar on September 3, 2010, requesting the appointment of a
federal negotiating team, to assist the Tribe with reaching a
negotiated settlement. (Exhibit A, attached hereto). South Dakota
Governor Dennis Daugaard wrote to Secretary Salazar on February 7,
2011, requesting the appointment of a federal team. (Exhibit B). On
June 9, 2011, North Dakota Governor Jack Dalrymple made a corresponding
request. (Exhibit C).
On November 7, 2011, the Office of the Secretary responded to my
September, 2010 letter. The Counselor to the Deputy Secretary wrote to
me,
While North Dakota and South Dakota have submitted letters
supporting the Tribe's request, the path towards a binding
resolution of tribal water claims in the two states is not
precisely clear. In addition, while there is an apparent
abundant supply of water in the Missouri River Basin, the
diverse interests of stakeholders and the numerous
jurisdictional issues are quite complex, and the (Secretary's)
Working Group is not convinced that appointment of a Federal
Negotiating Team is appropriate at this time.
(Exhibit D).
The Standing Rock Sioux Tribe's ``path towards a binding
resolution'' is no different than that of any other Tribe that enters a
negotiated settlement, to be approved by Congress. Nevertheless, the
Counselor implies that litigation is necessary for the appointment of a
federal team. Of course, the Secretary's Indian Water Policy states in
part, ``It is the policy of this administration . . . that disputes
regarding Indian water rights should be resolved through negotiated
settlements rather than litigation.'' (Working Group in Indian Water
Settlements; Criteria and Procedures for the Participation of the
Federal Government in Negotiations for the Settlement of Indian Water
Rights Cases, 55 Fed. Reg. 9223, March 12, 1990).
The fact that the Tribe and local stakeholders developed a
negotiation framework, without engaging in litigation, is being used by
the Secretary's office to justify inaction. This contravenes the
Secretary's published criteria, and undermines the ability of Standing
Rock and the North and South Dakota negotiation teams to succeed in
reaching a comprehensive settlement.
With respect to Standing Rock's current negotiations, the
Secretary's Office has requested that the Tribe produce water rights
data that is the subject of our Rule 408 Agreement with the governors
and state attorneys general. I have, in turn, requested that the United
States execute the agreement; to date, it has refused to do so.
Consequently, the United States remains a non-entity in important water
settlement negotiations involving the main stem of the Missouri River.
Standing Rock is the first Tribe in the Great Plains region of the
Missouri Basin to pursue a comprehensive framework for a negotiated
water settlement. We are working with technical and legal teams
appointed by the governors of North Dakota and South Dakota, addressing
present and future beneficial water uses on the Standing Rock
Reservation and the potential liabilities of the United States arising
from the infringement of our reserved water rights under the Missouri
Basin Pick-Sloan program. Congressional approval of a negotiated
settlement will benefit the Standing Rock Sioux Tribe, address
uncertainty for all water users in the region, and benefit the United
States, by addressing liabilities and resolving conflicts arising under
Pick-Sloan.
In 1986, an independent commission appointed by then-Secretary
Donald Hodel, the Joint Tribal Advisory Committee, issued a report
which contained recommendations for the mitigation of Pick-Sloan's
impacts on our Tribe. (U.S. Department of the Interior, Final Report of
the Joint Tribal Advisory Committee, May 23, 1986). The repot1
identifies ``Protection of Reserved Water Rights,'' as a major item
requiring the Secretary's consideration. (JTAC Final Report, p. 51).
Thus, a Secretarial Commission released a report 25 years ago,
recommending action to protect Standing Rock's reserved water rights.
Yet the Secretary's office denied my request for appointment of a
federal team to assist in our efforts, for reasons that remain unclear.
There is a Need to Update the Secretary's Criteria for Federal
Participation in Indian Water Settlements
This highlights major problems with the Secretary's Criteria for
Federal Participation in Indian Water Settlements. The criteria limit
the Secretary's discretion to agree to the federal investment of
funding to implement a settlement based upon the United States'
exposure to liability. (55 Fed. Reg. 9223). It imposes conflicting
duties upon the Secretary. The Secretary is tasked to act, ``consistent
with the Federal Government's responsibilities as trustee to Indians,''
while at the same time ensuring that, ``Federal contributions to a
settlement should not exceed the sum of . . . calculable legal exposure
. . . `` (Sec. 5, 55 Fed. Reg. 9223).
These conflicting duties create both procedural and substantive
problems for Tribes. They result in an institutional inertia, which we
see in the response to my request for appointment of a federal
negotiating team for Standing Rock. Substantively, they place DOl in an
adversarial position to the Tribes, as the United States acts to limit
its potential liabilities.
The Secretary should review and update the criteria. The process
for resolving conflicts arising from federal water development needs to
be clarified. The constraints on the federal investment of funds for
Tribal development as part of settlements must be re-examined.
The lack of a coherent response to my request for the appointment
of a federal negotiating team enhances the challenges facing our Tribe.
We are involved in important discussions on reserved water rights to
the Missouri River and its major tributaries in the upper Great Plains.
The Missouri River Basin has been developed by the Army Corps of
Engineers under the Pick-Sloan Missouri Basin Program, and potential
liabilities of the United States are at issue. Rather than working
cooperatively with Standing Rock, Secretary Salazar's office failed to
research the pertinent issues, denied my request for the appointment of
a federal team, and then provided a vague and incomprehensible
rationale for its actions.
The reference in the Office of the Secretary's letter that ``there
is an abundant water supply in the Missouri River Basin,'' demonstrates
a misunderstanding of the issues facing our Tribe. (See A. Dan Tarlock,
The Missouri River: The Paradox of Conflict without Scarcity: 2 Great
Plains Nat. Resources J. 1 (1997)). The waters of the Missouri River on
the Standing Rock Sioux Reservation are impacted by the Pick-Sloan
Missouri Basin Program. Congress authorized the Pick-Sloan Program in
the Flood Control Act of December 22, 1944. (58 Stat. 887). It consists
of six massive dams on the Missouri River main stem, operated by the
Corps for flood control, navigation and hydropower; and numerous
Reclamation projects on the tributaries to the Missouri. The main stem
reservoir with the largest multi-purpose storage pool, Oahe, overlays
the Standing Rock Reservation.
During the recent drought of the early 2000s, the Oahe Reservoir
declined in elevation by approximately 15 feet, due to on-going water
releases for downstream navigation. On November 23, 2003, our
Reservation public water system was rendered inoperative. For a period
of 12 days, three communities on our Reservation, with a cumulative
population of 5,777, were forced to rely on bottled water. Our kidney
dialysis patients at the Fort Yates Hospital were forced to travel to
Bismarck, North Dakota, 65 miles away. Low water created a public
health crisis on our Reservation.
This was a direct result of the Pick-Sloan program. It demonstrates
the need for strong and positive federal participation in our water
negotiations with North Dakota and South Dakota. This should include
representatives of both the Secretary of the Interior and the Secretary
of the Army because the Corps of Engineers operates the Pick-Sloan
program dams on the main stem of the Missouri River.
The Army Corps of Engineers' Pick-Sloan Program Infringes on Standing
Rock Water Rights to the Missouri River
The Corps of Engineers operates the six Missouri River main stem
dams pursuant to the Missouri River Master Water Control Manual
(``Master Manual''). The Corps of Engineers updated the Master Manual
in 2004. The Master Manual prescribes the operational criteria for the
dams. The Corps recently released the Draft Garrison Dam/Lake Sakakawea
Surplus Water Report, which prescribes the quantity of water that all
water users may divert from the Garrison project on the Missouri River,
subject to storage fees.
The Master Manual and the Draft Surplus Water Report threaten the
reserved water rights of the Standing Rock Sioux Tribe. These documents
fail to account for the impacts, on our water rights, of the Corps'
operation of the Missouri River main stem dams. They encourage
downstream economic investment and development and overall reliance on
the vested, prior, and superior water rights of the Tribe.
Downstream navigation, metropolitan areas, nuclear power plants and
other water users rely on the water flows supplied by the Corps of
Engineers. These waters are subject to the claims of the Standing Rock
Sioux Tribe. Nevertheless, the Corps of Engineers has taken no steps to
acknowledge, on behalf of the United States, the need to preserve and
protect our reserved water rights.
I have expressed my concerns to Assistant Secretary of the Army for
Civil Works, Joellen Darcy. I am encouraged that staff from the Corps
of Engineers' Northwestern Division Office and Omaha District recently
attended a Standing Rock/North Dakota/South Dakota water rights
meeting; however, Assistant Secretary Darcy has stopped short of
appointing a formal member to the negotiating team. In a letter to me
dated February 2, 2012, she identified the Secretary of the Interior as
the official with the responsibility of appointing a federal team for
Standing Rock. (Exhibit E).
But it is the Corps of Engineers' operations under the Pick-Sloan
program which impact Standing Rock's water rights to the Missouri
River. Consequently, the Corps should participate as a primary member
of a federal negotiating team, for Standing Rock. I urge the Committee
to inquire of the Corps of Engineers the process necessary for the
assignment of agency staff and legal counsel to approve the Rule 408
Agreement and participate in the Standing Rock I North Dakota I South
Dakota water rights negotiations.
The Corps of Engineers' Draft Garrison Dam/Lake Sakakawea Surplus
Water Report (December 2010) underscores the continuing irreparable
damage to the Winters Doctrine water rights of the Standing Rock Sioux
Tribe. The report concludes that the Missouri River contains a specific
quantity of water, of very small proportion relative to its natural
flow, which is surplus to the purposes of the Pick-Sloan program. The
Corps is proposing to limit future water diversions to the quantity of
water identified as ``surplus water,'' in order to protect downstream
navigation flows. This infringes on our reserved water rights at
Standing Rock.
The threat to our water rights is evidenced by the state of
Missouri's contention to the Corps of Engineers that there is no
surplus water available in the Missouri River for future diversions.
The state bases its position on the fact that the Corps reduced
navigation flows during the recent drought. But the navigation service
targets in the Master Manual, unlike the reserved water rights of the
Standing Rock Sioux Tribe, are not property rights under federal law.
Nevertheless, the waters of the Missouri River that are subject to
the Winters Doctrine claims of the Standing Rock Sioux Tribe, are also
claimed by the state of Missouri as needed for its navigation use under
the Pick-Sloan program. The state has invested in metropolitan water
use and navigation infrastructure, in reliance upon the continued
availability of the Tribe's unused, reserved water rights. Under these
circumstances, it becomes extremely difficult for the Standing Rock
Sioux Tribe to protect its water rights for future uses.
This mirrors the failure of the United States to protect the waters
of Indian Tribes, in other water basins. For example, the Salt and Gila
Rivers, water sources needed for the reserved water rights of Indian
Tribes in the Southwest, were developed to benefit real estate
speculation in the Sun Belt economy, and for the Bureau of Reclamation.
As a result, the water available for some Tribes has been limited to
contract water imported from the Colorado River, with an inferior
priority date, and subject to Colorado River water shortages. (e.g. San
Carlos Apache Tribe Water Rights Settlement Act of 1992, 106 Stat.
4740).
In the Missouri River Basin, there is an opportunity to resolve
Indian water rights issues. This will require the United States to take
corrective steps before downstream investments and reliance precludes
this opportunity. Instead, the Corps of Engineers is proposing actions
that will make things worse.
The definition of ``surplus water'' in the Draft Surplus Water
Report complicates the water rights settlement discussions of the
Standing Rock Sioux Tribe. The states of North Dakota and South Dakota
are unsure of the quantity of water in the Missouri River that is
surplus to current uses, in light of the Corps of Engineers' definition
of ``surplus water.'' The uncertainty resulting from the Surplus Water
Report enhances the challenge facing the Standing Rock Sioux Tribe, as
we attempt to reach an agreement on our water rights.
The natural flow of the Missouri River, as it leaves South Dakota,
is 28.4 million acre-feet per year. (United Sioux Indian Tribes,
Missouri River Basin Water Supply and Water Requirements of the United
Sioux Indian Reservations 2-11 (1979)). The water depletions for
irrigation and municipal and industrial water supplies in the upper
Missouri basin are far less than the natural flow. (See U.S. Army Corps
of Engineers, Final Environmental Impact Statement, Missouri River
Master Water Control Manual, Review and Update 3-115 (2004)). The
finding by the Corps in its Surplus Water Report of an absence of a
significant quantity of ``surplus water'' in the Missouri River is not
supported by the facts. Vast quantities of water flow through the
Dakotas and the Standing Rock Indian Reservation in the Missouri River.
The report raises other important questions. The Standing Rock
Sioux Tribe does not know if, under the Pick-Sloan program, the Corps
of Engineers is claiming all natural flow of the Missouri River. We
also do not know the degree to which the Corps of Engineers claims that
the reserved water rights of the Tribe are included within its
definition of Pick-Sloan project water. The draft report confuses the
issues of whether there is ``surplus water'' in the natural flow of the
Missouri River, ``surplus water'' in storage in the reservoirs, or
``surplus water'' in excess of PickSloan project purposes. This
confusion exacerbates the difficulty we face in seeking an out-of-court
resolution to the reserved water rights claims of the Standing Rock
Sioux Tribe.
There is a Need for Enhanced Funding
The Committee on Indian Affairs can assist our Tribe by enacting
legislation to enhance the funding available for Tribes that are
currently engaged in settlement discussions on water. There is a
significant need for funding for technical and legal support for Tribes
such as Standing Rock. In our case, we are working with two states,
both of which possess far greater resources than our Tribe.
Enhanced funding shall be necessary for Tribes such as Standing
Rock to succeed in reaching future water agreements. Funding should be
available for technical and legal support to Tribal negotiating teams.
The Bureau of Indian Affairs is providing minimal funding for technical
investigations, and no funding for litigation support to Standing Rock.
I am informed that $0 funds have been provided to Tribes in Fiscal Year
2012 for this purpose. This imposes significant burdens on our Tribe as
we address complex technical and legal issues. It jeopardizes our
ability to reach a settlement and may have the effect of significantly
increasing the costs of resolving these issues in the long-term.
The Secretary Should Rescind the Moratorium on Tribal Water Codes
Moreover, the Secretary of the Interior should formally rescind the
moratorium on the approval of Tribal Water Codes. (Memorandum from
Secretary Rogers C.B. Morton to the Commissioner of Indian Affairs,
January 15, 1975). The outdated policy of refusing to approve water
codes contravenes the subsequently-adopted policy to support Indian
water settlements, because Tribal water codes are integral to the
implementation of settlements. The 1975 Memorandum should be formally
rescinded, and the Bureau of Indian Affairs should fully fund the
implementation of water codes by Tribes.
At Standing Rock, the Tribal Council enacted our Water Code in
1983. (Standing Rock Sioux Tribe Code of Justice, Title XXXIV). It is
an integral aspect of the management of water and natural resources on
the Standing Rock Indian Reservation. It will be an important component
of the implementation of a comprehensive water agreement for our Tribe.
Conclusion--Urgent Federal Action is Needed for the Protection of
Standing Rock Reserved Water Rights in the Missouri River Basin
In conclusion, the Secretary's Office of Indian Water Rights has
provided no assistance to the Standing Rock Sioux Tribe, in our complex
water negotiations with the states of North Dakota and South Dakota.
The response to my request for the appointment of a federal negotiating
team demonstrates a lack of understanding of the issues facing the
Tribe. The process of attempting to work with the Secretary has been
uneven, with a lack of accountability to our Tribe.
In the short-term, the Secretary should comply with Indian water
policy and assist Tribes in complex water negotiations, such as those
facing Standing Rock. In the long-term, the Secretary's published
Criteria for Federal Participation in Indian Water Settlements needs to
be substantially revised.
The Corps of Engineers, which built and operates the Pick-Sloan
projects on the Missouri River main stem, should also assist with the
Tribal/state negotiations because the operations of the Corps, under
the Pick-Sloan program, have caused serious long-term harm to the
waters of the Standing Rock Reservation.
Historically, our war chiefs, such as Sitting Bull and Gall,
defended the rights of our people. That is the legacy of our Tribe. We
will continue to fight for our Treaty rights and our valuable water
rights.
Our Tribe is committed to working with local stakeholders to reach
a mutually beneficial agreement. The United States must fulfill its
responsibility as well. My experience in the Standing Rock Sioux Tribe
water negotiations leads me to believe that the executive branch is
unwilling to do so. This is very troubling for the Standing Rock Sioux
Tribe, and it could have adverse ramifications throughout Indian
Country in the upper Missouri River Basin.
On behalf of the Standing Rock Sioux Tribal Council, I thank the
Committee on Indian Affairs for your consideration of my testimony.
Pila miya.
Attachments
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Prepared Statement of Henry Pino, Board President, Blackwater Community
School
Dear Chairman Akaka:
I am writing on behalf of the Blackwater Community School, a
tribally operated school funded by the Department of the Interior,
located in Coolidge, Arizona on the Gila River Indian Community.
Blackwater Community School (BWCS) educates children from birth through
grade two. BWCS has been in existence since 1939 and has an enrollment
of 239 students. BWCS has met the Adequate Yearly Progress (AYP)
standard since the passage of the No Child Left Behind Act and recently
was recognized by the state of Arizona as a Title 1 Distinguished
School, one of two schools recognized by the state of Arizona. We are a
high achieving school and take our education responsibilities
seriously.
We are writing to express our deep concern for the recent FY 2013
budget submitted to Congress by the Bureau of Indian Education (BIE),
Department of the Interior. Our school depends solely on funding by the
Federal Government, as we do not have a tax base on which to depend. In
the past four years we have seen a decline in funding by the BIE in the
basic instructional support program, the Indian School Equalization
Program (ISEP). This program provides for teacher's salaries,
instructional materials, computers, desks, paper, pencils, professional
development, in short, all of the necessary requirements to provide a
quality education program. Sufficient ISEP funding is critical to
maintaining the quality of the BIE schools' instructional program. The
ISEP funding in FY 2010 was $391 million dollars; for FY 2011 $390
million dollars; for FY 2012 $390 million dollars; and the BIE is
proposing a funding amount of $389 million dollars for FY 2013, an
actual decrease from the previous fiscal year. In other words while
costs increase to educate students-the Consumer Price Index has
increased 11 percent over the past four years-the BIE is proposing a
decrease in funding for the basic education of its students! The BIE is
comprised of 173 schools of which 50 are making AYP according to the
BIE, a percentage of 30 percent. This is an abysmal statistic. The BIE
is proposing to decrease funding for its instructional program but
expects higher achieving schools! The core of a school is the quality
of it teachers, staff, and instructional leaders. It is impossible to
attract and retain high quality teachers and staff if adequate funding
is not available. We recommend the ISEP funding level be set at 11
percent more than what is proposed by the Department of the Interior,
to match the last four year's Consumer Price Index increase. This would
mean an increase of no less than $42 million dollars. Realizing this
may be difficult in the short term due to budget constraints, we
propose to increase ISEP over the next five years by $8.4 million each
year. If BIE expects to see an improvement in its education program it
must provide sufficient funds for its classrooms.
Student Transportation
The BIE is also proposing a decrease in transportation costs. This
fund pays for bus drivers and fuel for school buses and has never been
adequately funded. The cost of gasoline has increased dramatically
since fiscal year 2008 as noted by the U.S. Energy Information Agency-
more than 35 percent over the past three years. The cost for diesel
fuel has increased by over 41 percent during the same time period.
However the transportation funding provided by the BIE in this budget
will actually decrease by half a percent. This means our school has to
absorb the cost of the transportation program elsewhere from our
already constrained budget. In fact, there really isn't anywhere else
to make up the difference except from the instructional program, which
is already underfunded. We recommend the transportation line item be
increased by no less than 35 percent over the next five years. This
will require an increase of $3.6 million each year.
Family and Child Education Program
Blackwater Community School also operates the Family and Child
Education Program (FACE). This exemplary family literacy program
provides parents and children with a high quality early childhood,
adult education, and parenting program. It is highly successful and has
improved the lives of thousands of children and families. We have
operated a FACE program over 18 years and have been selected as the
outstanding FACE site twice. Our staff has been recognized to be
exemplary by the National Center for Family Literacy. However, this
program is woefully underfunded. The program has not received an
increase in funding to match current operating costs for the past four
years. This means it is impossible to replace materials for children;
computers for the adult education program; increase staff salaries;
provide staff development, and increase student enrollment. We have a
waiting list each year. The FACE funding in FY 2008 was $15,028 million
and the current FY 2013 budget request is $15,388 million-less than a 3
percent increase over the past five years! In today's dollars, the
funding has actually decreased by over 8 percent. It is impossible to
maintain a high level of service when budgets do not keep even with
actual costs. We recommend the FACE budget be increased no less than 11
percent for FY 2013 to $16,681,000, an increase of $1.3 million
dollars.
Tribal Grant Support
While we applaud a FY 2013 budget request of $2 million for this
program this will meet only 62 percent of need according to the BIE's
budget justification. They also project there may be an additional
three schools that will become grant schools by 2013. If that occurs,
the level of need will decrease to less than 60 percent. This will lead
to the possibility of more audit exceptions because schools are unable
to adequately address internal financial controls. This will also
preclude schools from implementing adequate procurement and financial
programs. We suggest the BIE increase its funding level to no less than
70 percent of need and increase this program over the next five years
to meet 100 percent of need. This will require an additional funding
amount of $4.6 million dollars per year for the next five years.
Education Program Enhancements
While we applaud the BIE's focus on supporting school improvement
and realize there are many schools that need help, there are 50 schools
that are currently meeting A YP that receive no additional support. We
propose that a portion of this funding be set aside for those schools
currently making AYP. This will ensure schools have additional
financial support to maintain their A YP status as the current ISEP
formula is not adequate and there aren't other funds to address this
need. We propose twenty percent of the Education Program Enhancement
funding, or $2.4 million dollars, be set aside for schools meeting AYP.
At present the only way to receive additional funding is to not attain
AYP!
Facilities Operation/Maintenance and School Construction
The BIE is requesting insufficient resources to provide adequate
facilities for new school construction and school replacement, and have
again with this budget request, requested insufficient funds to
maintain facilities in their current inventory. The facility operations
fund is currently meeting only 50 percent of need while utility costs
continue to rise. Everyone realizes that utility costs such as
electricity, propane and fuel oil will continue to increase. They
certainly will not decrease! As an example, our school's electrical and
propane have increased 10 percent over the past year and our water and
waste management have increased more than 90 percent over the same time
period. The maintenance fund has not been increased for the past five
years and in fact will decrease next year, at the FY 2012 level. This
level of funding will cause facilities to fall further into disrepair
and require larger expenditure of funds in the long term. The backlog
will continue to rise and the need for school replacement and new
construction will increase dramatically. It will be impossible to keep
the facilities operational at the requested funding level and could
lead to an overall facility emergency situation when this budget is
implemented. We propose that the operations and maintenance fund be
increased over the next five years by increasing the maintenance fund
by $2.2 million and the operations fund by $6.7 million each year.
We are also disappointed with the lack of funding for new school
construction and school replacement funds. Our school is grossly
overcrowded having increased enrollment by 70 percent over the past
three years. Our school was constructed for 100 students and we
currently have 239 students. Our school is too small to house our
present student enrollment yet the Bureau's budget does not provide
additional resources to address this situation. While we appreciate the
efforts of the Bureau to provide temporary housing via modular
classrooms, we currently have more students educated in modular
classrooms than in permanent construction. We currently have ten
modular classrooms and a modular kitchen/cafeteria. We have more
temporary housing square footage than permanent construction! Our
school requires, according to the Bureau's own calculations, new
construction totaling more than 22,000 square feet. The BIE's Acting
Director in 2008 documented our need for a multi-purpose facility to
include other program space such as classrooms, administrative space,
and a kitchen/cafeteria. We request school replacement construction be
increased to provide funding at no less than the FY 2011 level.
Administrative Provision
Finally we propose the following Administrative Provisions language
be eliminated, ``Appropriations made available in this or any other Act
for schools funded by the Bureau shall be available only to the school
in the Bureau school system as of September 1, 1996. No funds available
to the Bureau shall be used to support expanded grades for any school
or dormitory beyond the grade structure in place or approved the
Secretary of the Interior at each school in the Bureau school system as
of October 1, 1995.'' Blackwater Community School has been a
kindergarten through grade two school for many years. Parents have
requested we continue to educate their children beyond grade two, as
they are still too young to successfully transition to public schools
off the reservation. Our students have not completed their primary
grade education when they are required to move to a different school.
We are unable to continue our children's education beyond grade two
because of this provision that has been in effect since 1996 even
though the community has requested that we do so. We have documented
our ability to provide a quality education for children who attend our
school. The community believes it to be in the children's best interest
if we provide a continuum of education through the first five grades.
We request this language be eliminated or modified to allow us to
continue to meet the education needs of our community.
Thank you for allowing us to provide our views on the FY 2013
budget request submitted by the Bureau of Indian Education. Please
contact me if you require us to provide more information.
______
Prepared Statement of Hon. Irene C. Cuch, Chairwoman, Business
Committee of the Ute Indian Tribe of the Uintah and Ouray Reservation
Chairman Akaka, Vice Chairman Barrasso, and Members of the Senate
Committee on Indian Affairs, my name is Irene Cuch. I am the Chairwoman
of the Business Committee of the Ute Indian Tribe of the Uintah and
Ouray Reservation in northeastern Utah. The Tribe appreciates the
Committee's attention to the need to complete the work of settling
Indian Reserved Water Rights.
With ever-increasing competition for water, especially acute on the
Colorado River and its tributaries, both tribes and non-Indian water
users benefit from the certainty that results from Indian Water Rights
settlements. For several decades now, federal policy has recognized the
benefit of settling Indian Reserved Water Rights rather than resorting
to decades of expensive litigation with uncertain results.
Nevertheless, many tribes have yet to realize the benefit from this
federal policy. Too many tribes are still waiting for Congressional and
state recognition of the quantity of their reserved water rights. Too
many tribes have yet to settle the past government failures to protect
and develop Indian reserved water in order to fulfill its trust
responsibility to the tribes. The Ute Indian Tribe is one of those
tribes still waiting for the finality that settled reserved water
rights can bring to our reservation and our people by providing
valuable support to develop our water and reservation economy.
The Ute Indian Tribe is made up of several bands, one of which is
indigenous to Utah, and several of which were placed on the Reservation
during the nineteenth century as the result of a federal policy to move
the Ute Indians out of the State of Colorado. The three Ute Bands are:
the Uintah, the Whiteriver, and the Uncompaghre Bands. The Uintah and
Ouray Reservation was initially made up of two separate reservations:
the Uintah Valley Reservation, which was established by Executive Order
in 1861, and subsequently confirmed by Congress in 1864; and the
Uncompahgre Reservation, which was established by executive order in
1882. Together they encompass more than 4.5 million acres of Indian
land, fee land, and federal land. Indian Trust lands comprise
approximately 1.2 million acres. There are approximately 3,157 members
of the Ute Indian Tribe who live within the Reservation.
Every tribe has its own unique course of dealings with the United
States government as it relates to securing its Reserved Water Rights.
In 1923, the Ute Indian Tribe was the beneficiary of the leadership the
United States assumed by filing two lawsuits in its capacity as trustee
to adjudicate part of the Indian Reserved Water Rights of our Tribe and
its allottees. The lawsuit successfully enjoined junior appropriators
from interfering with water diversions under the 1906 Uintah Indian
Irrigation Project, sourced from tributaries of the Duchesne River.
This, however, was only a fraction of the total quantity of the Tribe's
Reserved Water Rights. It also remains a ``paper'' right, while the
settlement of all of the tribe's water rights remains elusive. A
century of government control of the Tribe's practically irrigable
acreage and related Reserved Water Rights, illustrated in well-
documented historical records, reveals that the Federal Government has
failed to address the well-known fact that the Ute Tribe and its
allottees cannot achieve the full benefit of its Reserved Water Rights
without storage facilities.
After the 1923 federally-decreed water rights were issued by the
court, the Tribe's fate with regard to the development of its reserved
water rights became entwined with the harnessing of the Colorado River
and the passage of the Colorado River Storage Project Act of 1956. This
reclamation project authorized the initial phase of the Central Utah
Project (``CUP''). Shortly after that, the State obtained an agreement
with the United States to stay any further adjudication of the Indian
and non-Indian water rights of the Uintah and Green River Basins
pending the outcome of a negotiated agreement about (1) the Ute Tribe's
quantified Water Rights, (2) the purposes for which the Tribal Waters
can be used, and (3) the Tribe's authority to administer its Tribal
Waters within the State--rather than expend a significant amount of
money and time fighting for or against Tribal Water Rights in court,
with an uncertain outcome.
The earliest description of the Central Utah Project (which was
designed to utilize Utah's apportioned share of Upper Basin Colorado
River water), acknowledged the need to ``borrow'' Indian water flowing
into the Uintah and Ouray Indian Reservation. At this point in time,
the Tribe relied on its trustee, the United States, when it agreed in
1965 to the government's request that it defer the development and use
of some of its irrigable lands, 15,242 acres of Indian land west of the
Green River, in order to benefit the development of water for non-
Indians on the Utah Wasatch Front and the growing population of Salt
Lake City. The Deferral Agreement, as it became known, has been
recognized by the United States as the ``cornerstone'' of the CUP,
without which the ``Secretary of the Interior [could not] certify to
the Congress that an unchallenged water right existed so that
construction could proceed on the Bonneville Unit of the Central Utah
Project.'' Memorandum of the Regional Solicitor to the Superintendent
of the Uintah and Ouray Reservation, dated September 9, 1988.
Promises were made to the Ute Indians that they would have full and
complete recognition of their water rights, with a priority date of
1861, and that the Tribe's quantified water rights west of the Green
River would be recognized without resort to litigation. In exchange for
supplying critically needed water to Salt Lake City and its environs,
the Ute Tribe was to receive, over time, its full quota of Colorado
River water, as well as the promised vital storage facilities, as part
of the Central Utah Project, which we need to develop and obtain the
full beneficial use of our Reserved Water Rights. We relied on the
representations of the United States--and, yet, we still do not have a
final Water Compact and comprehensive water settlement.
In 1992, Congress enacted the Ute Indian Rights Settlement Act in
order to settle the Federal Government's failure to comply with the
requirements of the 1965 Deferral Agreement. The 1992 Act compensated
the Tribe (1) for our loss of economic benefits over a period of about
25 years of deferred development of some of our irrigable lands, (2)
for our agreement to defer the development and use of certain irrigable
lands with their related Reserved Water Rights in perpetuity for the
benefit of non-Indians on the Wasatch Front, and (3) for the
government's contractual failure to build vital storage facilities for
the Tribe and allottees as promised. However, the Tribe still does not
have a Water Compact that has been approved by Congress and ratified by
the Tribe and the State of Utah. And, importantly, we still do not have
``wet'' water, which is the ultimate goal of a water settlement that
allows us to use our Reserved Water Rights, even though the
quantification of these rights has been recognized by the United States
and the State of Utah since 1965.
To the dismay of the Tribe, it appears now that the Department of
Interior wants to call the 1992 Settlement Act a comprehensive water
settlement of the Ute Tribe's Reserved Water Rights. It clearly is not.
We are currently using our best, good faith efforts to dissuade the
Department and the water rights team that the 1992 Act was such a
comprehensive water settlement because it did not contemplate nor
address the Tribe's critical need for storages. We believe that we
retain a right to a comprehensive water rights settlement that will
include the Tribe's well-recognized right to and need for storage.
The Water Compact revised by Congress and approved in the 1992 Ute
Indian Rights Settlement Act moves over 132,000 acre feet of water per
year of diversion rights to the Green River. However, on its way
through that part of the Reservation, the Green River flows within a
deep canyon. As a result, the Tribe is physically limited in its
ability to use Green River water on Tribal lands. Thus, in transferring
some of the Tribe's Water Rights to the Green River, the government in
essence assured that the Tribe would hold only a ``paper'' water right,
rather than a ``wet'' water right for any real use of this water. The
only feasible option for the Tribe to make beneficial use of its
``paper'' Green River water rights is through water leasing, in
particular, to the Lower Colorado River Basin states.
This brief history of a long and complicated course of dealings
between the Ute Tribe and the United States with regard to the Tribe's
use of and benefit from its Reserved Water Rights is intended to
highlight an important principle for the United States' participation
and leadership role in Indian Reserved Water Rights negotiations--
reliability and dependability. The Ute Tribe has, unfortunately, not
been able to rely on the representations of its trustee over a century
of dealings and is concerned that it cannot now depend on its trustee
to do the right thing and resolve the fundamental legal rights of our
Tribe and people.
We are encouraged, however, by this Committee's effort to focus
attention on the long-standing problems of settling tribes' Reserved
Water Rights, and with the current Administration's increased effort to
bring these long-standing disputes to a successful resolution.
Congressional support to fund water settlements will go a long way to
achieving this end. We remain committed to the process of negotiating a
settlement of our Reserved Water Rights with the assistance of the
federal team, and look forward to finalizing these negotiations in the
near future with the type of Congressional support this Committee can
provide.
Thank you for the opportunity to testify on this important subject.
______
Prepared Statement of D. Lynn Dalton, Community Services Administrator,
Hotevilla Village
Honorable Daniel Akaka, Chairman; and Honorable Members of Senate
Committee on Indian Affairs:
This testimony is submitted on behalf of the Hotevilla Village
Board of Directors and the members of the village.
We urge and request that Congress continue to acknowledge tribal
water rights. It is not the tribes who negatively affect non-Indian
water users, rather it is non-Indian water users who have and will
continue to negatively impact tribes with regard to access and use of
precious, and sacred, water resources. The federal trust responsibility
is not be taken lightly. Claims by the states that tribes will harm
state rights and development is ludicrous.
When states cry out that tribal economic development should be
limited with regard to use of water, they first need to apply those
standards to themselves. Historically, the tribes have conserved and
used water responsibly and within their means. The dominant society
needs to follow the examples of the tribes. If water resources are not
available, communities must stop or limit development. Allowing
unsustainable growth is irresponsible and fosters an adversarial
climate among tribal and non-tribal communities.
To shorten the settlement process, Indian water rights settlements
should address Indian water rights only. It is unfair to tribes to
place them in an adversarial position with state and private entities.
Tribes have the same need for water as on-tribal entities. The ability
of tribes to exchange or bank water should be applied uniformly.
Tribes have been an easy target for sacrifice--land, natural
resources, limited economic and social opportunities. Do not require
tribes to sacrifice their ``honorable'' rights to their fair share of
water through unfair legislation.
On February 14, 2012, Senator McCain introduced S. 2109, entitled
``Navajo-Hopi Little Colorado River Water Rights Settlement Act of
2012.'' Reflected in S. 2109 are provisions that benefit Peabody Coal,
Navajo Generating Stations, and APS. The continued presence of these
entities are being forced upon the Hopi and Navajo Tribes in what is,
essentially, blackmail through water rights settlement legislation.
There is strong data available that supports the finding that our N-
Aquifer has been irreparably damaged by the over pumping by Peabody
Coal. There has been damage to the quality of our water on Hopi. We
cannot support any legislation that requires us to waive our rights to
claim damages to our water system and water quality ``from time
immemorial, past, present, future, and forever.'' Before we move
forward with any settlement, the Secretary of Interior must declare
material damage to our N-Aquifer and require Peabody Coal to repair
damage that bas been done, as called for in their current lease.
S. 2109, in its current form, is not a water rights settlement for
Hopi, but rather, is a water claims settlement. Wet water from the
Little Colorado River has not been quantified for Hopi. Hopi is
expected to subsist with the water available from the N-Aquifer. Our
springs have dried up and the water quality of our eastern villages is
unacceptable.
The statement that settlements help meet the needs of tribes is, in
this specific case, untrue. If the goal is to move away from litigation
as a method for resolving water rights; tribal rights and claims must
be given due priority and respect and reflected accordingly in the
settlement agreements. As in the case of S. 2109, the lengthy waivers
and unclear benefits of the settlements make litigation appear more
attractive.
Thank you for the opportunity to submit this testimony.
______
Prepared Statement of the Navajo Nation
The Navajo Nation appreciates the opportunity to submit additional
comments for the record on the matter of settlement of Indian water
rights. The Navajo Nation is grateful for the participation of the
United States in the efforts to settle the Nation's water rights
claims. The federal implementation team for the Navajo Nation New
Mexico San Juan River settlement has been instrumental in moving the
settlement forward, including the commencement of construction of the
Navajo-Gallup Water Supply Project, the cornerstone of the settlement
approved by Congress in the Omnibus Public Land Management Act of 2009
(Public Law 111-11). The federal team assigned to the negotiations
concerning the claims of the Navajo Nation and Hopi Tribe to the Little
Colorado River (LCR) Basin in Arizona also played a critical role,
particularly in negotiations over trust resources jointly held by
tribes. Legislation to approve and implement this settlement was
recently introduced, first in the Senate as S. 2109 and shortly
thereafter in the House as H.R. 4067.
With that preface, the Nation submits that lack of formal
involvement of the United States in water rights negotiations should
not be a deterrent to a final water rights settlement when a tribe and
other affected parties have reached agreement. The Navajo Nation is
located in three states and multiple water basins requiring the Nation
to adjudicate its water rights claims in multiple forums. The Nation
and the State of Utah executed a Memorandum of Understanding in 2003
committing, if possible, to the amicable resolution of the Nation's
water rights claims in the State without litigation. In 2007, the
President of the Navajo Nation and the Governor of Utah each requested
that the Secretary of the Interior appoint a federal negotiating team
to assist with the negotiations. No negotiation team has been appointed
despite renewed requests by the leaders of both the State and the
Nation in early 2010. The Nation's supplemental request to the
Department, dated August 10, 2010, for a federal team was unsuccessful,
despite efforts by the Nation to fully address the factors established
by the Working Group on Indian Water Rights Settlements to be
considered for the establishment of new negotiation teams. Undeterred,
representatives of both the State and the Nation have approached
Department officials at virtually every opportunity to continue to
advocate for the appointment of a federal negotiating team, or in the
alternative, some less formal federal presence to address those issues
in the settlement in which the United States has a particular interest
or responsibility.
Representatives of the Navajo Nation and the State of Utah have
reached agreement regarding the Nation's water rights claims in the
State, and proposed legislation to approve and implement the settlement
has been drafted. The settlement agreement and proposed legislation are
largely modeled on the four Indian water rights settlements recently
approved by Congress as part of the Claims Resolution Act of 2010. The
Nation is anxious to have settlement legislation introduced which would
also authorize much-needed drinking water infrastructure for Navajo
communities in Utah. However, we have been informed that the Department
of the Interior may oppose the settlement because of the lack of
federal involvement in the negotiations.
The Nation understands that the Department has limited financial
and personnel resources to devote to federal negotiating teams, and the
Department provided compelling testimony for the need for additional
resources during the oversight hearing. However, agency resource
problems should not be an excuse for opposing a water rights settlement
negotiated by a tribe without formal federal participation when such
settlement is otherwise consistent with the Department's policies and
is in the best interests all parties concerned, including the United
States. If settlement of Indian water rights claims is truly the policy
of the United States, surely any attempt by the Department to oppose a
settlement negotiated without a formal federal negotiation team would
violate that policy.
The Navajo Nation is grateful to the Committee for holding this
important oversight hearing and appreciates this opportunity to provide
insight to the Committee on the difficulties that may lie ahead for
proposed legislation to authorize the Navajo Nation's settlement with
the State of Utah.