[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




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                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. AKAKA, Hawaii, Chairman
                 JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota            JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington           MIKE CRAPO, Idaho
JON TESTER, Montana                  MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
      Loretta A. Tuell, Majority Staff Director and Chief Counsel
     David A. Mullon Jr., Minority Staff Director and Chief Counsel










                            C O N T E N T S

                              ----------                              
                                                                   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


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                                 ______
                                 
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.

                                  
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