    [Senate Hearing 113-143]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 113-143

       S. 1448, THE SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION
                                   EQUITABLE
    COMPENSATION ACT; S. 1219, THE PECHANGA BAND OF LUISENO MISSION INDIANS
      WATER RIGHTS SETTLEMENT ACT; AND S. 1447, A BILL TO MAKE TECHNICAL
                CORRECTIONS TO THE NATIVE AMERICAN WATER RIGHTS
                     SETTLEMENTS OF THE STATE OF NEW MEXICO

    =======================================================================

                                    HEARING

                                   before the

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               SEPTEMBER 10, 2013

                                   __________

             Printed for the use of the Committee on Indian Affairs

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                          0COMMITTEE ON INDIAN AFFAIRS

                     MARIA CANTWELL, Washington, Chairwoman
                     JOHN BARRASSO, Wyoming, Vice Chairman
    TIM JOHNSON, South Dakota            JOHN McCAIN, Arizona
    JON TESTER, Montana                  LISA MURKOWSKI, Alaska
    TOM UDALL, New Mexico                JOHN HOEVEN, North Dakota
    AL FRANKEN, Minnesota                MIKE CRAPO, Idaho
    MARK BEGICH, Alaska                  DEB FISCHER, Nebraska
    BRIAN SCHATZ, Hawaii
    HEIDI HEITKAMP, North Dakota
            Mary J. Pavel, 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 September 10, 2013...............................     1
    Statement of Senator Cantwell....................................     1
    Statement of Senator Udall.......................................     3

                                   Witnesses

    Macarro, Hon. Mark, Chairman, Pechanga Band of Luiseno Indians...    47
        Prepared statement...........................................    49
    Peone, Hon. Rudy J., Chairman, Spokane Tribe of Indians;
      accompanied by Marian Wynecoop, Tribal Elder...................    13
        Prepared statement...........................................    15
    Stone, Matthew G., General Manager, Rancho California Water
      District.......................................................    68
        Prepared statement...........................................    69
    Washburn, Hon. Kevin, Assistant Secretary--Indian Affairs, U.S.
      Department of the Interior.....................................     3
        Prepared statement...........................................     6

                                    Appendix

    Luhan, Hon. Ernesto C., Governor, Taos Pueblo, prepared statement    73
    Motsinger, Thomas, President/Founder, PaleoWest Archaeology,
      prepared statement.............................................    79
    Response to written questions submitted by Hon. Tom Udall to Hon.
      Kevin Washburn.................................................    81
    Shelly, Hon. Ben, President, Navajo Nation, prepared statement...    78

       S. 1448, THE SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION
       EQUITABLE COMPENSATION ACT; S. 1219, THE PECHANGA BAND OF LUISENO
                                    MISSION
       INDIANS WATER RIGHTS SETTLEMENT ACT; AND S. 1447, A BILL TO MAKE
     TECHNICAL CORRECTIONS TO THE NATIVE AMERICAN WATER RIGHTS SETTLEMENTS
                           OF THE STATE OF NEW MEXICO

                                  ----------

                          TUESDAY, SEPTEMBER 10, 2013

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 2:30 p.m. in room
    628, Dirksen Senate Office Building, Hon. Maria Cantwell,
    Chairman of the Committee, presiding.

               OPENING STATEMENT OF HON. MARIA CANTWELL,
                      U.S. SENATOR FROM WASHINGTON

        The Chairwoman. The Senate Committee on Indian Affairs will
    come to order.
        This afternoon, the Committee had scheduled a business
    meeting for consideration of the funding resolution for the
    period of October 1, 2013, through February 28, 2015. However,
    due to the absence of a quorum at this point in time, I am
    going to recess that part of today's executive session, subject
    to the call of the Chair, and then go into our formal
    legislative hearing that we are also scheduled for today.
        We are honored to have the Honorable Kevin Washburn here,
    Assistant Secretary of Indian Affairs, from the U.S. Department
    of Interior. Also joining him are tribal members from three
    different tribes, the Chairman of the Spokane Tribe, Rudy
    Peone, and tribal elder Mrs. Marian Wynecoop. They are joined
    by the Chairman of the Pechanga Band of Luiseno Indians from
    California, Mr. Mark Macarro, and Mr. Matthew Stone, from the
    Rancho California Water District.
        So this is our first hearing after the summer recess. I
    just wanted to mention that some of you may have noticed some
    changes in the Committee room. I wanted to make sure that the
    Committee room had an opportunity to currently reflect some of
    the constituents of our member colleagues. That is why we have
    selected some Edward Curtis photographs. Seattle native Tim
    Egan recently wrote a book about Curtis' journey among tribes
    for more than 30 years in the 1990s. His photographs documented
    almost 80 tribes west of the Mississippi River, from Mexico to
    the Alaskan north. So these photographs represent the various
    regions of members of this Committee.
        Now to the business of the Committee today. This afternoon,
    the Committee is holding a legislative hearing on three
    different bills. The first is S. 1448, the Spokane Tribe of
    Indians of the Spokane Reservation Equitable Compensation Act.
    The second is S. 219, the Pechanga Band of Mission Indians
    Water Rights Settlement Act. And the third is S. 1447, a bill
    to make technical corrections to the Native American Water
    Rights Settlements of the State of New Mexico.
        At the core of the principles of tribal self-governance and
    self-determination is the ability of tribes to exercise
    jurisdiction over their lands and their resources. Often,
    legislation is necessary to ensure that tribes can exercise
    those rights and to bring resolution and certainty to decades-
    old disputes.
        S. 1448, the Spokane Tribe of Indians of the Spokane
    Reservation Equitable Compensation Act is a bill that I, along
    with Senator Murray, have introduced in previous sessions and
    introduced again in this Congress. We hope that this Committee
    will move this bill forward. The bill is vitally important to
    the Spokane Tribe. The bill would compensate the tribe for the
    past and continued use of tribal lands by the Federal
    Government. The lands were taken by the Federal Government to
    build the Grand Coulee Dam. The dam construction caused the
    flooding of over 3,000 acres of Spokane tribal lands, and those
    had significant economic, cultural and spiritual significance
    to the Spokane people.
        For over 60 years, the tribe has sought resolution to this
    issue, and all other means of the settlement have been
    exhausted. So that is why this bill reflects the compromise
    between the Spokane Tribe and the Administration and those in
    Congress.
        The bill that we will also hear about today, the second
    bill, is the Pechanga Water Settlement bill. That bill will
    ratify a settlement reached by the Pechanga Band and the United
    States and several California state water districts. This bill
    will bring certainty to all water users and end a dispute that
    began in 1951 over the Band's water rights. The bill was
    introduced by our colleagues, Senators Boxer and Feinstein, and
    I look forward to working with both of them in bringing this
    legislation to a vote in the Committee.
        The final bill we will hear today is S. 1447, a technical
    correction bill that revises three prior New Mexico water
    rights settlements. These minor clarifications can only be made
    through Congress but are important to ensure that the prior
    water settlements are implemented as Congress intended. This
    bill was introduced by Senators Udall and Heinrich, and I look
    forward to working with them on the passage of that legislation
    as well.
        So I am especially pleased to have all of these individuals
    with us here today. I am now going to turn to my colleague from
    New Mexico to see if he has an opening statement.

                     STATEMENT OF HON. TOM UDALL,
                      U.S. SENATOR FROM NEW MEXICO

        Senator Udall. Thank you, Madam Chair. I very much
    appreciate the Chairwoman and the Ranking Member for quickly
    bringing S. 1447, the New Mexico Native American Water
    Settlements Technical Corrections Act, before this Committee
    for review. This bill makes technical corrections to three
    tribal water settlements that were approved by Congress in the
    111th Congress. These include the Taos Pueblo Indian Water
    Rights Settlement, the Aamodt Litigation Settlement and the
    Navajo Water Settlement.
        All of the changes to these settlements proposed in S. 1447
    are technical in nature and reflect the original intent of
    Congress and the parties to the settlement. Technical
    corrections outlined in the bill include correction of spelling
    and numerical errors, and clarification on how funding for
    infrastructure projects can be used and how long funding will
    be available.
        The technical corrections outlined in S. 1447 are important
    to continue to carry out the provisions of the Taos, Aamodt and
    Navajo water settlements. I understand the Administration
    supports the effort to make technical corrections to these
    settlements and is committed to working with me and the parties
    to the settlement to ensure that the changes are amenable to
    the parties.
        I would urge the Administration to work quickly with the
    parties to resolve any concerns raised today. It is important
    that these corrections be made in a timely manner. Again, I
    thank the Committee members for their attention to this bill
    and would urge swift passage.
        Thank you, Madam Chair, for acting on this so quickly.
        The Chairwoman. Thank you.
        We will now turn to our witnesses. First, I am going to
    have Assistant Secretary Washburn make his testimony. Thank you
    for being here today. Then maybe we will ask you questions and
    then continue down the line of our other witnesses.

              STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT
           SECRETARY--INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
                                INTERIOR

        Mr. Washburn. Thank you, Madam Chairman. It is an honor to
    be here. Thank you, Senator Udall.
        Let me first testify on S. 1219, the Pechanga Water Rights
    Settlement Act. I want to say that the Administration remains
    very committed in the second term to getting water rights
    settled for Indian tribes. This is very important for the
    Federal trust responsibility towards tribes. We remain very
    committed to doing so, as I said in my testimony before the
    Committee back in May, I believe it was, on the Blackfeet Water
    Settlement.
        The Department is committed to working with the Pechanga
    Bands, the State of California, the local parties and this
    Committee in trying to get this water settlement completed. We
    are still in the process of analyzing S. 1219, and frankly, we
    are still negotiating with the tribe in some respects. So we
    are not stating a position of support at this point, but we
    want to congratulate the tribe and Chairman Maccaro for his
    leadership in working so well with the water districts in his
    neighborhood and also with the other tribes that are in the
    Santa Margarita River Watershed.
        We do have some issues that we have yet to work out with
    the Pechanga Band, and we are committed to working with
    Chairman Macarro to work through those issues. We appreciate
    his dialogue. We appreciate the Chairwoman and the Committee
    for moving the ball forward on this settlement. We have seen
    some progress since the last time this bill was filed,
    including, for example, just the decrease in the Federal
    contribution to the water rights settlement.
        So things are moving in the right direction with this
    settlement. I will be happy to answer more specific questions
    about any remaining concerns that we have during my question
    and answer period.
        Let me move on to the New Mexico Technical Amendments bill
    at this point. First of all, the Aamodt settlement, which
    benefitted the Nambe, Pojoaque, San Ildefonso and Tesuque
    Pueblos, I first would like to thank Senator Udall for his
    leadership in getting this very, very important water rights
    settlement through Congress and continuing to ensure that the
    settlements get attention, so that we can continue to make sure
    that they are finalized successfully and implemented
    successfully. We have been looking at these technical
    corrections and for the Aamodt litigation settlement, we see
    that it largely deals with indexing and costs for this bill.
    Indexing is very important, because the value of money changes
    over time, it usually lessens. And we have to make sure that
    the money has purchasing value, so we are able to complete
    these settlements.
        So we are happy to look carefully at those provisions with
    your staff, Senator Udall, and see what we can do with regard
    to making sure that we are doing the appropriate thing with
    regard to the Aamodt water rights settlement.
        As to the Navajo Water Settlement, Senator Udall, we are
    fully in favor of the things that you have recommended in the
    technical amendments bill for the Navajo Water Rights
    Settlement Act. I could go through them one by one, but I
    believe we are supportive of each of those changes, and happy
    to do that. Again, thank you for keeping your attention on this
    settlement as well, to keep it moving forward.
        As to the Taos Pueblo Indian Water Rights Settlement, one
    of the things that this technical amendment does is deal with
    so-called early money, money that we get to the tribes before
    the settlement is final, so that they can begin projects. One
    of the things that your technical amendments do here is to
    expand the purposes for that early money. We have negotiated
    the purposes for the early money and those were careful
    negotiations. We generally, the Administration does not like to
    provide early money for several reasons, not least of which
    because it takes some of the pressure off getting the thing
    finalized. Once people start having money to spend, the
    pressure isn't so great to getting the settlement finalized and
    it has to go to the court and all that.
        So we don't like to do it too much, but we are looking at
    your changes, your proposed changes, and we would be happy to
    talk to you more about those. I suspect you may have some
    questions, so let me stop there. I thank the Committee and
    Senator Udall for your leadership on keeping these water
    settlements moving forward so that they will be successful.
        Now, Chairwoman Cantwell, let me turn to S. 1448, the
    Spokane Bill. This is the bill that I am most well acquainted
    with, because I have been working on it for many months now. As
    you know, Grand Coulee Dam in the State of Washington is one of
    our Nation's most important hydroelectric resources. Our
    Country has been earning revenues from hydropower there for
    decades, and we have been using land and opportunities taken
    from two tribes, the Confederated Colville Tribes and the
    Spokane Tribe.
        The Colville Tribes were compensated for their loss and the
    payments to the Colville Tribes have been a very important
    resource to the Confederated Tribes. They received $53 million
    back in the 1990s, and have been receiving well over $10
    million a year since that time, since Congress enacted their
    settlement act.
        The Colville Tribes obtained this settlement because they
    amended their Indian Claims Commission case to include a claim
    for lost hydropower revenues. They amended their claim many
    years after the date had expired to file new claims and long
    after the Spokane Tribe had already settled its claims in its
    own ICC, Indian Claims Commission case. As a result, it was not
    possible for the Spokane Tribe to then amend its case to bring
    these claims.
        And so in essence, the Colville Tribes got their day in
    court, but the Spokane Tribe never really did. It is thus
    largely an accident of history that one tribe was compensated
    and another tribe was not compensated for the very same loss.
    While this outcome can be explained legally and historically,
    it is difficult to justify morally, frankly.
        So for at least three reasons, the Administration is proud
    to announce today that it supports S. 1448. First, it is
    because it is the right thing to do. For the reasons mentioned
    above, the Spokane Tribe deserves equitable compensation for
    this taking of something from their reservation that has great
    value. Second, the Spokane Tribe has shown patience and engaged
    in good cooperation to try to reach a reasonable and just
    result.
        The fiscal climate is not good for these sorts of
    settlements, as everybody knows. And I congratulate Chairman
    Peone and the rest of the council, some of whom are here today,
    and former Chairman Abramson, for their leadership, but also
    for being reasonable and hoping to obtain a fair result, but
    also one that is achievable in the current fiscal climate.
        So finally, Chairwoman Cantwell, one of the other reasons I
    would add is your own persistence. You have filed a bill like
    this, this bill or one similar, in several past Congresses. I
    am proud to say, Chairwoman Cantwell, that I have personally
    worked on this issue with your very hard-working staff on a
    very regular basis since the beginning of this Congress. I
    congratulate you for your persistence.
        I am not going to thank you for your patience, because I
    haven't seen much.
        [Laughter.]
        Mr. Washburn. But if there was any patience, I suspect it
    was used up with past inhabitants of my office. But I do want
    to thank your staff, because it has been an absolute joy to
    work with them on basically a weekly basis since this Congress
    has begun. They deserve a lot of credit for moving this
    forward.
        So on behalf of Secretary Jewell and the Administration, I
    am proud to support this bill. Thank you.
        [The prepared statement of Mr. Washburn follows:]

    Prepared Statement of Hon. Kevin Washburn, Assistant Secretary--Indian
                    Affairs, U.S. Department of the Interior

    S. 1448, SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION EQUITABLE
                                COMPENSATION ACT

        Chairwoman Cantwell, Vice-Chairman Barrasso, and Members of the
    Committee, my name is Kevin Washburn, and I am the Assistant Secretary
    for Indian Affairs at the Department of the Interior. Thank you for the
    opportunity to present the Department's views on S. 1448, the Spokane
    Tribe of Indians of the Spokane Reservation Equitable Compensation Act.
        S. 1448 would provide a measure of justice for a historical wrong
    by providing equitable compensation to the Spokane Tribe for water
    power values from riverbed and upstream lands taken by the United
    States as part of the Grand Coulee Dam development in the 1930s and
    1940s. The Tribe's claim is an equitable one because the Tribe missed
    its opportunity to make a legal claim with the Indian Claims
    Commission. In 1994, Congress remedied similar claims by the
    Confederated Tribes of the Colville Reservation which had been pending
    before the Indian Claims Commission. Although the Colville Tribes
    received compensation for their lost water power values, the Spokane
    Tribe never received similar compensation because they were foreclosed
    from doing so. While this outcome can be explained legally, it is
    difficult to justify morally.
        S. 1448 utilizes a compensatory framework similar to the Colville
    settlement in an attempt to compensate the Spokane Tribe for the same
    type of damages for which the Colville Tribe was already compensated.
    Similar to the resolution achieved for Colville, S. 1448 would
    establish a Trust Fund in the Department of the Treasury and require
    the Secretary of the Interior to maintain, invest and distribute the
    amounts in the Trust Fund to the Spokane Tribe. S. 1448 provides a fair
    result for the Spokane Tribe. S.1448 does not set a precedent for any
    other Federal hydropower facilities or installations because of the
    unique fact set presented by the development of Grand Coulee Dam as
    explained further below. The Administration supports S. 1448.
    Background
        The Colville and Spokane Indian reservations were established in
    1872 and 1877, respectively, on land that was later included in the
    state of Washington. The 155,000 acre Spokane Reservation was created
    by an agreement between agents of the federal government and certain
    Spokane chiefs on August 18, 1877. That Agreement was later confirmed
    by President Hayes' executive order of January 18, 1881.
        The Grand Coulee Dam was constructed on the Columbia River in
    northeastern Washington State from 1933 to 1942 and when finished, the
    550-foot high dam was the largest concrete dam in the world. It is
    still the largest hydroelectric facility in the United States. Lake
    Roosevelt, the reservoir created behind the dam, extends over 130 miles
    up the Columbia River and about 30 miles east along the Spokane River.
    The reservoir covers land on the Spokane Reservation along both the
    Columbia and Spokane rivers. The federal government, under a 1940 act,
    paid $63,000 to the Colville Tribes, and $4,700 to the Spokane Tribe
    for tribal land used for the dam and reservoir.
        Subsequently, the Spokane Tribe and the Colville Tribes appeared
    before the Indian Claims Commission (ICC). The ICC was created on
    August 13, 1946, to adjudicate Indian claims, including ``claims based
    upon fair and honorable dealings that are not recognized by any
    existing rule of law or equity.'' Under section 12 of the Act, all
    claims had to be filed by August 13, 1951. Settlement awards of ICC
    claims were paid out of the U.S. Treasury.
        The Spokane Tribe filed a claim with the ICC just days before the
    statutory deadline. The claim sought compensation for land ceded to the
    United States under an agreement dated March 18, 1887. It also asserted
    a general accounting claim. Both claims were jointly settled in 1967
    for $6.7 million and neither of the claims referenced the Grand Coulee
    Dam.
        The Colville Tribes' claims with the ICC, also filed in 1951 and
    designated as Docket No. 181, included broad, general language seeking
    damages for unlawful trespass on reservation lands and for compensation
    or other benefits from the use of the Tribes' land and other property.
    The Tribes' original petition did not specifically mention the Grand
    Coulee Dam. In November 1976, over 25 years after the original filing
    of Docket No. 181, and nearly a decade after the Spokane had settled
    its claims, the ICC allowed the Colville Tribes to amend their 1951
    petition to seek just and equitable compensation for the water power
    values of certain riverbed and upstream lands that had been taken by
    the United States as part of the Grand Coulee Dam development.
        In 1994, Congress recognized that the water power values were
    compensable and settled with the Colville Tribes, enacting the
    Confederated Tribes of the Colville Reservation Grand Coulee Dam
    Settlement Act (P.L. 103-436, Nov. 2, 1994). The Act settled the claims
    filed in 1976 by the Tribes' amended petition. The Act provided the
    Colville Tribes a lump sum payment from the U.S. Treasury of $53
    million for lost hydropower revenues and, beginning in 1996, annual
    payments that have ranged between $14 million and $21 million for their
    water power values claim. The cost of the annual payments is shared
    between the Bonneville Power Administration, which markets the power
    generated at the dam, and the Treasury.
        There is no dispute that the Spokane Tribe suffered a loss arising
    out of the same set of actions by the United States that formed the
    basis of the Colville Tribes' amended claims filed in 1976. The Spokane
    Tribe had settled its ICC claim nearly 10 years before the Colville
    Tribes were allowed to amend their ICC claims to include a specific
    water power values claim. Thus, when these water power claims were
    recognized by Congress in 1994 as valid, compensable claims, the
    Spokane Tribe's case had long since been settled and thus there was no
    vehicle for the Spokane Tribes to raise a similar claim. As a result,
    it is partly an accident of history that the Colville Tribes received
    compensation and the Spokane Tribe did not.
    S. 1448
        S. 1448, the Spokane Tribe of Indians of the Spokane Reservation
    Equitable Compensation Act, is designed to provide the Spokane Tribe
    with an equitable and comparable compensation similar to compensation
    the Colville Tribes received almost two decades ago from the federal
    government for the Colville Tribe's lost water power values. S. 1448
    establishes a Recovery Trust Fund and directs the Secretary for the
    Department of the Treasury to deposit $53 million into the fund. The
    Secretary of the Department of the Interior is directed to maintain,
    invest, and distribute the funds to the Spokane Tribe after the Spokane
    Tribe submits a distribution plan to the Secretary of the Department of
    the Interior. We note that expenditure of these funds would be subject
    to the Statutory Pay-As-You-Go Act of 2010.
        S. 1448 provides that the Bonneville Power Administration
    (Bonneville) shall pay to the Spokane Tribe an annual amount equal to
    25 percent of the Computed Annual Payment, defined in the bill as
    certain payments calculated pursuant to provisions of the Coleville
    Settlement Agreement, for FY 2013 and provides for subsequent payments
    to the Spokane Tribe, from 2015 to 2023, 25 percent of the Computed
    Annual Payment for the preceding fiscal year, and from 2024 and each
    year thereafter, an amount equal to 32 percent of the Computed Annual
    Payment for the preceding fiscal year. The bill, starting in 2023, also
    provides Bonneville with $2.7 million in interest credits from the
    Department of the Treasury for every year that Bonneville pays the
    Spokane Tribe pursuant to this legislation. These percentage payments
    by Bonneville and interest credits to Bonneville are the same as in the
    previous versions of the bill and therefore the Department has no
    concern related to these percentages or interest credits, nor the
    duration of payments to be made by Bonneville to the Spokane Tribe.
    Finally, the bill includes a provision extinguishing all monetary
    claims by the Spokane Tribe regarding the Grand Coulee Dam project.
        In the 112th Congress, the Department expressed concern with
    Section 9(a) of S. 1345, which was the bill introduced during the 112th
    Congress to address this issue. While the Department supported the
    concept of providing a clear delegation of authority to the Tribe to
    achieve its law enforcement goals, the Department was concerned that
    the language was broad and could be construed to delegate more than
    just the authority intended by the Tribe. The Department's concern has
    been addressed with the removal of former Section 9(a) of S. 1345.
        Although the Administration did not support previous legislation,
    in part, because the Tribe had not established a legal claim to settle,
    the Administration supports equitably compensating the Spokane Tribe
    for the losses it sustained as a result of the federal development of
    hydropower at Grand Coulee Dam. The facts and history show that as a
    matter of equity the Spokane Tribe has a moral claim to receive
    compensation for its loss. The compensation provided by S. 1448 is
    commensurate with the compensation provided to the Colville Tribes for
    the losses arising out of the same actions. The Department supports S.
    1448.

     S. 1219, THE PECHANGA BAND OF LUISENO INDIANS WATER RIGHTS SETTLEMENT
                                      ACT

        Good afternoon Madam Chairwoman, Vice-Chairman Barrasso, and
    Members of the Committee. My name is Kevin Washburn. I am the Assistant
    Secretary for Indian Affairs at the Department of the Interior
    (Department). I am here today to provide the Department's views on S.
    1219, the Pechanga Band of Luiseno Indians Water Rights Settlement Act,
    which would provide approval for, and authorizations to carry out, a
    settlement of all water rights claims of the Pechanga Band of Luiseno
    Indians (Band) in the Santa Margarita River Basin in southern
    California. At this point, we are unable to support S. 1219. However,
    based on the progress by the parties to date, the Administration is
    committed to achieving a settlement that can be supported by all
    parties.

    I. Introduction
        Negotiating settlements of Indian water rights claims has been and
    remains a high priority for this Administration. Indian water rights
    settlements help to ensure that Indian people have safe, reliable water
    supplies and are in keeping with the United States' trust
    responsibility to tribes. They promote cooperation in the management of
    water resources and encourage communities to work together to resolve
    difficult water supply problems. The Administration's policy on
    negotiated Indian water settlements has been set forth in detail in our
    support for the settlements enacted into law in the Claims Resolution
    Act of 2010, Pub. L. No. 111-291 (Dec. 9, 2010), which benefitted seven
    tribes in three different states, and in the testimony I gave before
    this Committee in May 2013 on the proposed Blackfeet Water Rights
    Settlement Act of 2013. I will not restate this policy or the
    principles that underlie it, except to note that Secretary Jewell
    continues to make the negotiation and implementation of Indian water
    rights settlements a high priority for the Department. The Department
    understands that Indian water rights and related resources are trust
    assets of tribes, that water rights settlements enable the Federal
    government to protect and enhance those assets, and that when Congress
    enacts an Indian water rights settlement it is fulfilling its unique
    obligation to Indian tribes. The Department is committed to working
    with the Band, the State of California, the local parties, this
    Committee, and the sponsors of S. 1219 to craft a settlement that we
    all can support.
        The Department is still in the process of analyzing S. 1219 and is
    able to offer only preliminary comments on the bill at this time.
    Before I discuss the settlement agreement and address Federal concerns,
    however, I do want to recognize the significant efforts of the Band
    over many years to protect its water rights and to secure a safe and
    adequate supply of water for its community. These efforts have led to
    this proposed settlement, which reflects a creative and cooperative
    approach to solving problems of water supply and water quality on and
    near the Pechanga Reservation. One of the most positive features of
    this settlement is how it builds upon prior agreements to establish a
    long term cooperative arrangement for sustainable ground water
    management in the Santa Margarita basin.
        S. 1219 would approve a settlement negotiated among the Band and
    the Rancho California Water District (RCWD), the Eastern Municipal
    Water District (EMWD), the Metropolitan Water District (MWD), and the
    United States. The settlement would resolve water rights claims for the
    Band that the United States brought nearly 60 years ago in United
    States v. Fallbrook Public Utility District, the general stream
    adjudication of the Santa Margarita river system. The United States
    also brought water rights claims for two other Indian tribes in the
    same river system, the Cahuilla Band of Mission Indians and the Ramona
    Band of Cahuilla Mission Indians. Separate settlement discussions are
    underway with respect to those claims and our Federal Team, which has
    been in place since 2008, is working closely with each of the Bands.

    II. Federal Concerns
        We testified about the complexity of this settlement and the issues
    that need to be addressed on September 16, 2010. I won't repeat our
    testimony on that earlier version of the legislation, H.R. 5413, other
    than to say that we will continue to analyze those issues as well as
    the related issue of non-Federal cost share. S. 1219 includes some
    positive changes and we appreciate that the Band is willing to work
    with the Department to address our concerns, including our concerns
    with Federal obligations, cost, cost share, water quantity, and water
    quality.
        The proposed legislation would recognize a Federal reserved water
    right in the Band in the amount of 4,994 acre feet, to be made up of
    water from various sources, including imported water and recycled water
    that would be furnished under contracts between the Band and the local
    parties. These various sources include (1) 1,575 afy of local
    groundwater; (2) 525 to 700 afy of imported recycled water; and (3) up
    to 3,000 afy of imported potable water. S. 1219 calls for a Federal
    settlement contribution of $40.19 million for a number of purposes,
    including $12.23 million to assist the Band in purchasing potable water
    imported from MWD and $27.96 million for infrastructure that would
    treat and deliver imported recycled and potable water to the
    Reservation.
        Overall, the requested Federal monetary contribution in S. 1219 is
    down just over $10 million from prior versions of the legislation
    ($50.242 million to $40.192 million. Other changes in the legislation
    include the elimination of the demineralization and brine disposal
    facility, which had been a critical element of the settlement
    previously. Funding for that facility now appears to have been
    transferred to a general water quality account ``to fund groundwater
    desalination activities'' by the Band. The Department has requested
    that the Band provide more information about the rationale supporting
    these changes.
        In addition, the Band's Reservation also includes a small portion
    of land in the San Luis Rey watershed. In the interest of achieving a
    comprehensive settlement of all of the Bands water rights claims, we
    are weighing whether principles of finality would better be achieved by
    including water rights for that parcel of land in the settlement.
        Because of scarcity and tremendous competition, water rights in
    southern California are extremely expensive. In these circumstances,
    great care must be given to the decision to include imported and
    recycled water as part of the Band's Federal reserved water rights. We
    are continuing to examine cost and other issues associated with how the
    settlement treats imported water. While we are unable to support S.
    1219, based on the progress by the parties to date, the Administration
    is committed to working with the Band and the local parties to
    achieving a settlement that can be supported by all parties.
    III. Conclusion
        The Pechanga Band and its neighbors are to be credited for working
    towards a negotiated settlement of their dispute over water rights.
    After years of litigation, this settlement lays out a potential
    framework for resolving the Band's Federal reserved water rights
    claims, and achieving other goals such as managing groundwater,
    addressing water quality issues, and alleviating water shortages in the
    basin.
        We look forward to working with the Band and the local parties to
    finalize a settlement that appropriately secures the Band's water
    rights and defines clearly the roles and responsibilities of each party
    to the settlement.

        S. 1447, NEW MEXICO NATIVE AMERICAN WATER SETTLEMENTS TECHNICAL
                                CORRECTIONS ACT

        S. 1447, the New Mexico Native American Water Settlements Technical
    Corrections Act, proposes amendments to three Indian water rights
    settlements: the Taos Pueblo Indian Water Rights Settlement Act (Public
    Law 111-291) (Taos Settlement Act); the Aamodt Litigation Settlement
    Act (Public Law 111-291) (Aamodt Settlement Act); and the Navajo water
    rights settlement provision of the Omnibus Public Land Management Act
    of 2009 (Public Law 111-11) (Navajo Settlement Act).
        Some of these proposed amendments are minor, consisting of
    corrections in spelling and section numbering. Other amendments are
    more substantive and could have budgetary impacts. The Department of
    the Interior continues to be fully committed to implementing these
    Congressionally enacted water rights settlements, and we recognize and
    appreciate that the goal of this bill is to make targeted fixes to
    these statutes in order to facilitate implementation. Many of the
    amendments proposed in the bill are helpful and could make the work of
    the implementation teams on the ground much easier by eliminating
    unclear language in the original enacted bills.
        However, at this time the Department and its sister agencies have
    not yet completed a full assessment of the potential impacts of this
    legislation, particularly the budgetary and fiscal impacts. Once we
    complete this analysis, if there are provisions that the Administration
    does not support as currently drafted, we would welcome the opportunity
    to work with the sponsors and bill proponents to address out concerns.
    The changes to each settlement proposed by S. 1447 are discussed below.
    Aamodt Litigation Settlement
        The Aamodt Settlement Act provides for indexing of mandatory
    appropriations in two places, Sections 617(a) and (c). Like the
    provisions in the Taos Settlement Act, discussed below, both of these
    provisions would allow for multiple indexing adjustments over a
    specified period of time--between Fiscal years 2011 and 2016. Section
    3(b)(1) of S.1447 would remove these time limitations.
        The Department believes that indexing continuing throughout the
    construction period (ending in 2024) for the municipal water system
    that is the center of this settlement could help to ensure complete
    implementation of this settlement. The current limitations on indexing
    could put completion of the water system and, thus, the settlement
    itself, in jeopardy. However, at the same time we believe that the
    changes in indexing will have impacts on the Treasury and could trigger
    mandatory offset requirements. As noted above, the Administration is
    still reviewing this legislation and therefore is not taking a position
    on these provisions at this time.
        The elimination of any reference to years for indexing of the
    Aamodt Settlement Pueblos' Fund in Section 3(b)(2) of S. 1447 may have
    a similar effect but analysis of this proposed provision is complicated
    by virtue of other cost adjustment provisions. Additionally, we note
    that section 615 of the Aamodt Settlement Act provides that the funds
    appropriated under section 617(c) are to be invested by the Secretary
    of the Interior following the date the waivers become effective under
    section 623 of that Act. After section 623 is triggered, the funds
    would be earning interest, which will help maintain the purchasing
    power of the funds and make indexing less necessary.
        Finally, section 3(a) of the bill refers to ``Section 615(c)(7)''
    of the Settlement Act. Because there is no section 615(c)(7) in the
    Act, we assume this should be a reference to ``Section 615(d)(7)''. The
    goal of this language seems to be to allow the Tribe to use its OM&R
    fund earlier in some situations, but always after the enforceability
    date. The Department has no objection to this particular provision.
    Navajo Water Settlement
        Section 4 of S. 1447 would amend the Navajo Settlement Act in
    several respects. The first two amendments are non-substantive in
    nature and are supported by the Department.
        Section 4(c) of the bill would amend section 10604(f)(1) to allow
    the Navajo Nation to begin receiving groundwater (non-project water)
    through Project facilities without triggering the 10 year operation and
    maintenance (O&M) payment waiver provision of Section 10603(c)(2)(A) of
    the Settlement Act. This amendment benefits the United States in that
    it would prevent the Navajo Nation from requesting O&M payment waivers
    (which would require the Department to pay O&M costs) until Project
    water from the San Juan River is delivered to the Navajo Nation. The
    Navajo Nation has the responsibility for paying O&M costs of non-
    Project water delivery under Section 10602(h)(1) of the Settlement Act.
        Section 4(d)(1) of the bill would amend Section 10609 of the
    Settlement Act to allow funding identified for the Conjunctive Use
    Wells in the San Juan River Basin and in the Little Colorado and Rio
    Grande Basins to be used for planning and design as well as
    construction and rehabilitation of wells. Without the amendment only
    construction and rehabilitation are authorized uses of the funds.
    Because costs are capped, this change will have no effect on the final
    costs of the settlement. The Department believes that using this
    funding for planning and design is useful, since only a coarse level of
    planning, and no design work, has been done for these wells.
        Section 4(d)(2) of the bill would amend the Settlement Act by
    increasing the amount of Project funding that can be spent on cultural
    resources work from two to four percent of total project costs. The
    Project area is rich in cultural resources and significant work must be
    done in this area, so the proposed increase appears to be reasonable
    and appropriate. Correspondingly, section 4(d)(3) would reduce the
    percentage of funds that may be spent on fish and wildlife facilities
    from four percent to two percent. Based on current information, this
    change also appears to be reasonable and appropriate. Both of these
    proposed changes are consistent with the Project cost estimate included
    in the FEIS and, when taken together, they do not increase the cost of
    the Project.
        Finally, section 4(e) of the bill would correct language in the
    Settlement Act that, absent amendment, could be interpreted to mean
    that the court in the stream adjudication had jurisdiction over the
    Project contract between the United States and the Navajo Nation. The
    Department supports this clarification which comports with existing
    law.
    Taos Pueblo Indian Water Rights
        S. 1447 proposes to amend two provisions of the Taos Settlement
    Act. Section 2(a) of the bill would modify Section 505(f)(1) of the
    Taos Settlement Act by expanding the list of allowable purposes for
    which $15,000,000 in ``early money'' provided by Section 505(f) could
    be used. The Section 505(f) funding made available for immediate
    expenditure by Taos Pueblo represents an exception to the Department of
    the Interior's general policy that all settlement benefits should flow
    at the same time, only after settlement enforceability conditions are
    met.
        Accordingly, the purposes for which the money could be spent under
    Section 505(f) were carefully negotiated with the Pueblo to make some
    funds available to the Pueblo for specific high priority purposes, such
    as protection of sacred wetlands known as the Buffalo Pasture and
    purchase of State-based water rights that are rapidly increasing in
    cost. Expanding the purposes for which ``early money'' can be expended
    removes the distinctions between Section 505(f) and Section 505(a),
    which sets forth the full list of allowable purposes for which the Taos
    Pueblo Water Development Fund can be expended once the settlement is
    final and enforceable. The Administration wishes to work with the
    Pueblo and the bill's sponsors to determine exactly what problems the
    Pueblo needs to address.
        The second amendment to the Taos Settlement Act is a proposed
    change to the indexing of mandatory appropriations for settlement
    funding in the current version of the Act. Section 509(c)(1) of the Act
    provides that mandatory appropriations are subject to indexing but
    allows such indexing only between fiscal years 2011 and 2016. S.1447
    would remove the time limitations for indexing.
        The Administration is still analyzing this amendment but believes
    that the changes in indexing will have impacts on the Treasury and
    could trigger mandatory offset requirements. Moreover, we note that
    section 505 of the Taos Settlement Act provides that the Fund at issue
    is to be invested by the Secretary of the Interior following the
    enforceability date of the settlement. Therefore, the funds at issue
    will already be able to earn interest beginning not later than 2017,
    which will help maintain the purchasing power of the funds provided and
    make indexing less necessary.
        The final amendment to the Taos Settlement Act would remove the
    requirement contained in Section 509(c)(2)(A)(i) that $16,000,000 of
    mandatory funding for grants to non-Indian parties be transferred from
    Treasury between fiscal years 2011 and 2016. The full $16,000,000 has
    already been transferred from Treasury to the Bureau of Reclamation and
    will be available for distribution upon the enforceability date of the
    settlement. The Department believes that the purposes of this amendment
    have already been achieved.
    Conclusion
        The Department agrees that technical amendments to the Taos, Aamodt
    and Navajo Settlement Acts should be made. We stand ready to work with
    the sponsors, the bill proponents and this Committee to craft a
    technical corrections bill that accomplishes the goals of the sponsors
    in a manner that the Administration fully supports.
        This concludes my statement and I am happy to answer any questions
    the Committee may have.

        The Chairwoman. Thank you, Assistant Secretary Washburn,
    and thank you for your testimony today on all three bills, and
    for your hard work. Obviously, these water rights settlements
    are time-consuming. They involve a lot of history and a lot of
    sorting out of policy. We appreciate the challenges on all of
    them. But we also know that in many instances, these
    communities are coming to us with a resolution that is a much
    better process than legal battles over many, many decades. So
    thank you for your hard work.
        Thank you for your support of the Spokane bill. You are
    right, it has passed this Committee, it has passed the Senate,
    it has passed the House, it has just never passed both houses
    at the same time. So maybe this Congress will be a charm.
        I wanted to ask you about obviously the settlement issue. I
    think in your written testimony you mentioned complying with
    pay-go. What are your thoughts on the current account that
    Interior has for these funds and the compensation source?
        Mr. Washburn. Well, let me say, that is to the hard
    question. You put your finger on it. We are happy to work with
    you to try to find offsets. We will have to figure out how to
    pay for this settlement. It is the right thing to do and I hope
    that we can do so. I know that you have used different
    approaches over the past few Congresses to try to figure out
    ways to make this occur. And whether we do it at one-time
    funding or over the course of years, your staff and I have
    talked about the different approaches to try to pay for it. We
    will be looking for offsets. I am sure the CBO is going to
    score this bill and we will have to find the money where we
    can.
        But we want to have the bill in a place where, if it is
    possible to find that funding, we can get it done. That is why
    I thank you for holding this hearing today.
        The Chairwoman. With the Colville, obviously the settlement
    was both a compensation and a continued fund. That is the same
    way you would expect this to work as well?
        Mr. Washburn. That is the same structure, Chairwoman. It is
    very equitable, it is very similar to the structure, I think,
    that the Colvilles received. That seems like the fair way to do
    it.
        The Chairwoman. Okay. But you don't see, is this an issue
    that you think can be resolved before the end of the year?
        Mr. Washburn. You know, I have been around long enough to
    know that a lot of these things don't happen until the very end
    of a Congress, sometimes. Usually they don't go alone. It is
    probably unlikely to happen with a freestanding bill.
        The Chairwoman. No, I am asking, the resolution between the
    Department of Interior and those interested in the legislation
    on a funding source, a mechanism.
        Mr. Washburn. Well, I think that is both a problem for us
    over at OMB, and it is a problem for the CBO and the people
    within Congress that have to finance the bill. I pledge to work
    with you on that. I don't know what the final resolution will
    be, but we do pledge to keep the dialogue going to figure out
    ways to do that.
        The Chairwoman. Okay. Let me turn to my colleague from New
    Mexico for his questions. Senator Udall?
        Senator Udall. Thank you, Madam Chair, very much.
        Assistant Secretary Washburn, I realy appreciate your
    willingness to work on these in a timely fashion and move
    through them quickly. In your testimony, you express a
    commitment to work with my office and the parties to the three
    New Mexico settlements to resolve any outstanding issues in S.
    1447. And can I get an assurance these these discussions will
    be carried out in a timely fashion and move along so that we
    can get this bill marked up and going?
        Mr. Washburn. Absolutely, Senator Udall. I have Letty
    Belin, with the with the Secretary's Indian Water Rights Office
    here, and I will give you her assurance as well. I will put the
    words in her mouth, as well as Fain Gildea and Pam Williams who
    are here with us. We have the whole team here and we do commit
    to you that we will be as responsive as we possibly can. We
    share your desire to see these implemented successfully. Again,
    thank you for your leadership on that.
        Senator Udall. Thank you very much. To ask now about Taos
    and Aamodt, in your testimony you express concern about the
    changes to the dates related to mandatory funding of the Taos
    and Aamodt settlement made in S. 1447. How much of the
    mandatory funding for these settlements has already been
    transferred to the Treasury, to the Bureau of Reclamation?
    Specifically, how much of the mandatory funding for the
    following, for the Taos Pueblo Water Development Fund, for the
    regional water system associated with the Aamodt settlement,
    and for the Aamodt settlement water systems operations
    maintenance?
        Mr. Washburn. Thank you, Senator Udall. I believe that a
    total of $50 million in mandatory funds has been transferred to
    the BIA from the Treasury to be managed as that project
    develops. And $60 million in mandatory funds for the Mutual
    Benefits Projects to the Bureau of Reclamation for the Taos
    Pueblo Water Development Fund. For the regional water system
    associated with the Aamodt settlement, I believe that the
    Bureau of Reclamation has received $56.4 million in mandatory
    funding for that regional water system. And finally, for the
    Aamodt settlement O&M, operation and maintenance funds,
    Reclamation has received $5 million in mandatory funding for
    those O&M costs.
        Senator Udall. And can you describe how the indexing issue
    you outline in your testimony will continue to be an issue
    where the mandatory funding has already been transferred?
        Mr. Washburn. I will, Senator, as best I can. Let me say I
    think we are going to have to get back to you with some of the
    answers here. The problem for us is not unlike the one that
    Chairwoman Cantwell raised, which is that paying for these
    things is an issue. When you change the indexing for mandatory
    funds that have already been transferred, you may increase the
    costs for that money. So that is where we have to figure out if
    there need to be offsets, if there will be scoring for this
    indexing. And we are trying to identify that.
        It could very well increase the costs. So if it does that,
    we have to find the money and CBO has to find the money. We
    have to figure out where the money is coming from. So those are
    the remaining questions that we are trying to answer.
        Senator Udall. Great. Thank you very much. We may have some
    additional technical questions to submit to you for the record,
    too, for answers. I hope you will answer those also. I am sure
    you will.
        Mr. Washburn. I would be happy to. Thank you.
        Senator Udall. Thank you. Thank you, Madam Chair.
        The Chairwoman. Thank you.
        Now let's turn to the rest of the witnesses. We will start
    with you, Mr. Chairman from the Spokane Tribe, Mr. Rudy Peone.
    I know that you are accompanied by Ms. Marian Wynecoop. I don't
    know if you both are going to testify. Anyway, I will turn it
    over to you.

      STATEMENT OF HON. RUDY J. PEONE, CHAIRMAN, SPOKANE TRIBE OF
         INDIANS; ACCOMPANIED BY MARIAN WYNECOOP, TRIBAL ELDER

        Mr. Peone. Thank you, Chairwoman Cantwell. I sure
    appreciate the time here today.
        I do want to echo what Assistant Secretary Kevin Washburn
    did say, you have been a champion and a stalwart for us. I
    really appreciate that, along with various other members of
    your Committee, Senator Udall, Senator Murray as well. I really
    appreciate that. And hearing that from the Assistant Secretary
    was great.
        So yes, Ms. Wynecoop and myself will both be testifying
    today. I have a whole laundry list of folks that wish they
    could testify. We understand they can't. So we are going to do
    the best we can.
        We already submitted a 64-page document, recapping the
    history and justifying this equitable settlement to the tribe.
    I am here today as a leader of the Spokane Tribe, just under
    3,000 members, not counting other tribal members that live with
    us, among us, married to us, spouses, descendants. That number
    grows exponentially three or four times over. And this is a
    decades-long issue for us. We are approaching a century of
    dealing with this now.
        What you will hear from Marian, to my left, is from an
    elder who lived on that river. She was born and raised and went
    from a lifestyle of using that river and everything it provided
    from the salmon to the orchards, everything, to where we are
    now.
        I also have, who is not going to be able to testify, behind
    me, Vy Seymour, another elder. She can testify to some of those
    same things if she had the chance. Here is an elder who was
    living on the property and her parents took them up on the
    hill, where they were teaching them how to swim, brought them
    up on the hill, and they actually watched the water rise and
    engulf their home, their foundation.
        So these are things that leaders before me have been coming
    back here requesting, demanding, fair, honorable dealing in a
    settlement to our tribe.
        I wasn't alive, these people were. They lived it, they
    lived through it. It almost brought a tear to my eye listening
    to Assistant Secretary Kevin Washburn state their support.
    Because we have been so close. Ever since, I think it was the
    106th Congress, we have been introduced every time since on the
    House side, on the Senate side. We have been approved, like you
    said, once on the House, once on the Senate, but never at the
    same time. We are hoping that the work we have been doing, the
    work you and your staff have been doing, the work that the
    Administration has been doing, the compromises that my people
    are making to try to get this bill settled. It is difficult,
    and it gets more and more difficult when I am asked by my elder
    members the status of this settlement.
        Time after time, that number grew smaller. Well, today, I
    have a couple of elders with me. And one of them gets to speak,
    hopefully after this they will get to speak with some staff or
    if other Committee members come in, we would love to pull their
    ear on that.
        I have some other folks who traveled with me. Two
    councilmen, Greg Abrahamson and Bear Hughes. I also have two
    other tribal members, Marsha Wynecoop runs our language
    program, and Cheryl Butterfly, who works in our culture
    program. Cheryl, for example, some of the work that they do,
    they are, with the fluctuation of Coulee Dam and bones are
    exposed, or when they have it, they are the ones that are down
    there, they are the ones that are repatriating our ancestors.
    Vy is also one of the ones, the elders that are there, saying
    prayers for these people, these tribal members, when we
    repatriate them. They have so much to offer, so much to talk
    about.
        But they are the reason we are here. I don't come back here
    as Rudy Peone, I don't come back here as chairman, I come back
    here for my people. That is what our leaders have been doing
    for years. The concessions we are making with the back pay, for
    example, with the jurisdiction, the land ownership, we are
    willing to do that because of the difficulty we have had to see
    resolution to this issue. We want to see it done.
        The Spokanes have waited long enough. We are not going to
    go away. I myself am a competitor, a runner. I do cross
    country. I always have, I love that. And that is a long race,
    and this has been a long fight that my people have been in. I
    am willing to see it through. So any extra time I have, I will
    allocate to my elder, Marian. I would like her to discuss a
    little bit about her life on the river.
        [The prepared statement of Mr. Peone follows:]

     Prepared Statement of Hon. Rudy J. Peone, Chairman, Spokane Tribe of
                                    Indians

        Attachment 8--the 1990 Lake Roosevelt Cooperative Management
    Agreement has been retained in Committee files and can be found at
    http://www.nps.gov/history/history/online--books/laro/adhi/adhiae.htm.

        Mrs. Wynecoop. First, I didn't know that they wouldn't back
    up the water. I wasn't there when all that happened. I was
    going to school in Chamala, Oregon, near Salem, an all-Indian
    school, when all that happened, I didn't know anything about
    it. When I got home, all my mom and dad got was $1,300.
    Besides, they built a new home for them, which was right above
    where we lived.
        But they lost everything. We had a big farm. We had horses
    and cows and a big garden. We lost our orchard. They had
    nothing when they moved up to the new house that they were
    supposed to build, I don't know whether they used the money to
    build that house. But they had a house to live in, but they
    didn't have anything. My mom tried to plant a garden, but that
    didn't work.
        They had a hard life after that. When I got home and all
    that happened, that my mom tried to make a garden for
    themselves. But that wasn't working. My mom and dad had
    nothing. They lost everything.
        The Chairwoman. Mrs. Wynecoop, thank you so much for being
    here today and for your testimony. Oftentimes, these water
    settlement issues are before this Committee in legal terms, in
    lawyerese, and all of the technical issues. And to have a human
    face put on what these settlement issues are all about is very
    moving. So thank you for traveling here and sharing that with
    the Committee.
        Next we will turn to the Honorable Mark Macarro, Chairman
    of the Pechanga Band, to give his testimony.

      STATEMENT OF HON. MARK MACARRO, CHAIRMAN, PECHANGA BAND OF
                            LUISENO INDIANS

        Mr. Macarro. [Greeting in native language.] Good afternoon,
    Chairwoman Cantwell. It is good to be here, it is an honor to
    be here. My name is Mark Macarro, and I am the Tribal Chairman
    of the Pechanga Band of Luiseno Indians in Temecula,
    California. I represent the Pechanga people. I am their voice.
        I am honored to be here to discuss the Pechanga Water
    Settlement Act of 2013. I have been intimately involved with
    Pechanga's struggles over our water rights for the past three
    decades. I know firsthand what this settlement means to the
    Pechnaga people. I want to give a special thank you to Senator
    Boxer and Senator Feinstein for their strong support of
    Pechanga and our efforts to introduce and move our water
    settlement bill during the last Congress, and also to their
    continued efforts during this Congress. Frankly, we would not
    be here today without their staunch support and commitment to
    the Band's efforts to settle our water claims.
        Thank you as well to our negotiating partners, Rancho
    California Water District, Eastern Municipal Water District and
    Metropolitan Water District. We have been working with them for
    a number of years now to resolve our claims through negotiation
    rather than litigation.
        Then last but not least, thank you to the Administration
    for their active participation throughout the settlement
    process. In particular, the Secretary's Office of Indian Water
    Rights and the counselor to the Deputy Secretary have been
    instrumental in moving forward our efforts to fairly and
    equitably settle our claims for water rights and obtain the
    long-term water supplies we need to guarantee water for the
    future generations of our people.
        We have continued to meet with the Administration over the
    past few months. Pechanga is dedicated to continuing to work
    with the Administration to resolve any potential outstanding
    issues they may have in order to gain the Administration's
    support of our bill.
        Water is central to who we are as a people. The name
    Pechanga means at Pechaa'a, at the place where water drips. It
    is a spring on our reservation. Our tribal government is
    committed to protecting our surface and groundwater resources
    and the availability of water for our community to ensure that
    we can provide water to our tribal members for the next 100
    years. As the tribal chairman and as a father, I am committed
    to making sure that my generation guarantees a reliable water
    supply for the future of our people.
        This settlement has been decades in the making and stems
    from a 1951 Federal District Court case known as United States
    of America v. Fallbrook, involving Pechanga and two other
    reservations in which the court determined that each of the
    tribes has a federally-reserved water right in the Santa
    Margarita River Basin for its respective reservation. The court
    also established a prima facie quantity for these federally
    reserved water rights in the Santa Margarita River watershed.
    But it did not formally and finally specify the actual amount
    of water to which each tribe is entitled.
        This unfinished business resulting from the Fallbrook
    decree has left our tribe in the unenviable position of owning
    a right that we cannot actually use. Over the past few years,
    we have worked with those entities around Pechanga to develop
    agreements for cooperatively managing the limited water
    resources in the Santa Margarita Basin. These efforts of
    negotiated management of water resources were successful and
    resulted in a groundwater management agreement with RCWD in
    2006 and a recycled water agreement with Eastern Municipal
    Water District in 2007.
        While both of these agreements have been successfully
    implemented and are in fact in effect today, neither of these
    agreements address the fundamental question of the quantity of
    water to which we are entitled for the Santa Margarita River
    system. Nor do they address the question of the infrastructure
    necessary to put those rights to use on tribal lands or the
    claims we may have against others, including the United States,
    for others' unauthorized use of our water in years gone by.
        The bill before you today is a result of hard work and
    compromise by all the parties involved. Our written testimony
    provides an in-depth description of the Pechanga settlement.
    Today I will briefly outline the provisions of the settlement
    that are particularly important to Pechanga.
        First, the settlement agreement recognizes and quantifies
    Pechanga's federally-reserved right to water in the Santa
    Margarita River Basin, an essential element for the Band's
    future in this arid part of the Country.
        Second, through the settlement agreement, the Band is able
    to extend Metropolitan's existing service area on the
    reservation to a greater portion of the reservation, so that
    Pechanga becomes an MWD customer, with the ability to receive
    imported water to fulfill the Band's future water needs that
    will undoubtedly exceed the water available today in our
    portion of the Basin. This component of the settlement is
    critically important, because it allows Pechanga to get the
    necessary imported water from Metropolitan that we will need in
    the long term to supplement our groundwater supply.
        Finally, the settlement provides funding for necessary
    infrastructure for Pechanga to receive Metropolitan water, to
    pay connection fees to Metropolitan and to Eastern and provides
    a subsidy to bring down the cost of the extremely expensive
    Metropolitan water that we are accepting in lieu of our
    unfulfilled claims to the waters of the Santa Margarita Basin.
        All of these elements were carefully constructed to create
    a settlement that is beneficial to all the parties involved,
    while recognizing the U.S. must fulfill its trust
    responsibilities to Pechanga. This is a fair and cost-effective
    water settlement. We believe that the Federal contribution of
    approximately $40 million is justified by Pechanga's waivers of
    its substantial claims against the U.S. and recognizes the
    United States' programmatic responsibility to the Band.
        In closing, I cannot emphasize enough how important it is
    that this settlement will provide a wet water settlement to
    Pechanga, and not a useless water right. I would like to thank
    you, Chairwoman Cantwell, for moving this bill along and
    hearing this today. Thank you.
        [The prepared statement of Mr. Macarro follows:]

      Prepared Statement of Hon. Mark Macarro, Chairman, Pechanga Band of
                                Luiseno Indians

        The Chairwoman. Thank you, Mr. Chairman.
        Last on the list is Mr. Matthew Stone. Thank you very much
    for being here, Mr. Stone. We look forward to your testimony on
    this legislation. I think you are here to testify on S. 1219.

        STATEMENT OF MATTHEW G. STONE, GENERAL MANAGER, RANCHO
                       CALIFORNIA WATER DISTRICT

        Mr. Stone. Yes, thank you very much, Chairwoman Cantwell.
    It is our pleasure to be here. I appreciate the members of the
    Committee, the Vice Chair, for their attention to this matter.
        On behalf of Rancho California Water District, I appreciate
    the courtesy of being allowed to appear and just make some
    brief comments about pending legislation, S. 1219, which would
    authorize the settlement with the Pechanga Band of Luiseno
    Mission Indians and their water rights.
        As a neighbor and a cooperating party over the last almost
    a decade now on water management, we are again happy to be here
    to support this. On behalf of the board, we appreciate Senator
    Boxer's sponsorship of the bill and Senator Feinstein's co-
    sponsorship and the committee's willingness to consider the
    legislation. We will enter formal written comments into the
    record, but they will about as brief as these at this point.
        Rancho provides water supply, wastewater collection and
    treatment and water recycling services to a population of more
    than 134,000 people in our service area. It is 160 square
    miles, and we have over 42,000 customers connected to our
    system. Our infrastructure network, which has been built out
    over the last several decades, has 960 miles of water mains, 41
    storage reservoirs, Vail Dam and Vail Lake Reservoir,
    groundwater recharge facilities that have been developed to
    enhance the operation of the basin, and 47 groundwater
    production wells.
        We currently provide about 71,000 acre feet to our
    community, which is domestic, commercial, industrial and
    agricultural uses. We still have a very large agricultural
    component.
        Just over two years ago, I appeared before this committee
    to endorse efforts to authorize the settlement. Today, I return
    to again endorse this effort and to advise the committee of our
    interests in any final bill that can be enacted into law. As
    has been mentioned by Chairman Macarro, we have worked with the
    Pechanga Band, and will continue to work with them, since the
    last Congress to clarify the limited number of outstanding
    issues. I am happy to report to you today that we have made
    substantial progress on those, and we believe that these issues
    are close to resolution.
        We are also committed to working with the Administration as
    the bill goes forward to deal with any issues that are still
    outstanding from the Administration's perspective. We hope to
    have these ready as the bill moves to markup for final action.
        Madam Chair, thank you again for the opportunity to appear
    before you today. We look forward to providing the committee
    with any additional information that will help to expedite
    final consideration of this legislation. Again, we look forward
    to completing the agreement and further, to continue our
    partnership and cooperation with the Pechanga. Thank you.
        [The prepared statement of Mr. Stone follows:]

        Prepared Statement of Matthew G. Stone, General Manager, Rancho
                           California Water District

        Good morning Chairman Cantwell and Vice Chair Barrasso and members
    of the Committee. On behalf of Rancho California Water District, thank
    you for the courtesy to appear before the committee to present our
    views on the pending legislation, S. 1219, a bill to authorize the
    Pechanga Band of Luiseno Mission Indians Water Rights Settlement Act.
        On behalf of RCWD's Board of Directors, we deeply appreciate
    Senator Boxer's sponsorship of this important legislation, and Senator
    Feinstein's co-sponsorship, and the committee's willingness to consider
    the legislation.
        In the interest of time, I request that my formal written testimony
    be entered into the record. I will summarize RCWD's views on S. 1219.
        RCWD provides water supply, wastewater collection and treatment,
    and water recycling services to more than 134,000 people in a service
    area of 160 square miles with over 42,000 service connections. Our
    infrastructure network consists of 960 miles of water mains, 41 storage
    reservoirs, Vail Dam and Vail Lake reservoir, groundwater recharge
    facilities, and 47 groundwater wells. Currently we provide 71,300 acre
    feet of water for domestic, commercial, industrial, agricultural and
    landscape uses.
        Just over two years ago, I appeared before the committee to endorse
    efforts to authorize a water rights settlement agreement. Today, I
    return to endorse this effort and to advise the committee of our
    interests in any final bill that can be enacted into law.
        Since 2010, RCWD has worked with the Pechanga Band to clarify a
    limited number of outstanding issues. The key issues, we believe, are
    close to resolution. We hope to have these ready as the bill moves to
    markup.
        Chairman Cantwell, thank you again for the opportunity to appear
    before you today. We look forward to providing the committee with any
    additional information that will help to expedite final consideration
    of this important legislation.

        The Chairwoman. Thank you, Mr. Stone. Thank you for your
    testimony today and your continued hard work on this
    legislation.
        I am going to go back to you, Assistant Secretary Washburn,
    on a couple of these bills. On the S. 1447, the original
    settlements that were in that legislation had the Bureau of
    Reclamation as the lead agency in a number of the
    infrastructure projects. Can you provide the committee with an
    update on how these settlements are being implemented and the
    progress on the infrastructure and how that is working out with
    Rec taking the lead?
        Mr. Washburn. Well, they are underway. These settlements,
    these water rights settlements often cost tens of millions of
    dollars and they take a decade or more to complete. So we have
    made substantial progress on the Navajo-Gallup settlement. That
    one is coming along very well. The Aamodt and the Taos
    settlements are probably, well, they are newer, so we haven't
    quite gotten as far along. But they seem to be progressing.
        We are working well with all the parties and the Bureau of
    Indian Affairs and the Bureau of Reclamation, of course, work
    very well together. The Bureau of Reclamation is, well, they
    are engineers, mostly, and they are very good. We enjoy working
    with them, and they do a lot of work in this space. They do a
    lot of work on Indian water rights settlements, and they are
    very accomplished and capable.
        So we feel like things are proceeding nicely on all three
    of those settlements.
        The Chairwoman. Okay, well, part of that would be moving
    some of the money around for wildlife and cultural resource
    protections. Can you tell us about how those funds would be
    used?
        Mr. Washburn. Sure. One of the things, I gather that there
    was a typo in the New Mexico Water Rights Settlement bill, one
    of those bills that sort of reversed the amount of the money
    that we use for fish and wildlife resources and cultural
    resources protection. So one of these bills would correct that,
    the way we do it more commonly in water rights settlements. So
    we are happy to, that is an improvement. It changes things back
    to the way it should have been written in the first place. And
    those are very important parts of water rights settlements. But
    we do limit the amount of money in these settlements that can
    be used for each of those important purposes. So this bill
    would make an impovement in that respect.
        The Chairwoman. Okay. Then on the Pechanga settlement, it
    states that allotted lands within the reservation included just
    and equitable allocation for the water resources. So if it is
    enacted, how will the Department ensure that the allottees
    actually get that just and equitable allocation?
        Mr. Washburn. That is one of the remaining issues and one
    of the things that we have addressed to some degree already
    with the Pechanga Band. But one of the concerns that we
    continue to have, there are 112 trust allotments on the
    reservation, totaling more than 1,100 acres of land. And
    individual Indian allottees are also entitled to a portion of
    the tribal water rights for irrigation purposes. So that is one
    of the things that we need to get resolved to get this bill to
    a place where we can be supportive of it. Because it needs to
    address those very real issues.
        The Chairwoman. That has not been part of another previous
    water settlement? There is not a structure for the allottees?
        Mr. Washburn. Well, I think it has varied. We certainly
    have the same trust responsibility to allottees in many
    respects that we have to Indian tribes. We have a
    responsibility to take care of them as well. Honestly, those
    issues have come to the surface in more recent years. They were
    ignored in earlier water settlements, and we have gotten much
    better about trying to get those issues resolved in water
    rights settlements. That is an active conversation as to this
    settlement.
        The Chairwoman. So it is an issue of difficulty, or it is a
    difficulty of administering it?
        Mr. Washburn. I am not sure. I am not down in the weeds on
    the actual negotiations. But it is important to us to make sure
    that we have taken care of the allottees' interests when we
    settle the water rights. Otherwise, we have left unfinished
    business, and we don't want to leave unfinished business.
        The Chairwoman. Mr. Stone or Chairman Macarro, do you have
    any thoughts on that?
        Mr. Macarro. Yes, I will attempt to answer that. The
    settlement shouldn't affect their rights at all, the rights of
    allottees. As you know, the status of allotted land held by
    former tribal members, to say the least, is complicated. The
    status of allotment protections to allottees are set forth in
    provisions relating to the required water code, which is in
    place. We have a water code and it is in place. We don't think
    that there will be a net effect on the impact of allottees and
    their water rights.
        We are glad of the due diligence that the Secretary is
    engaging in, that it is being done and is being done across the
    board. However, as far as it goes on our reservation, we don't
    see any net change really in terms of what the outcome is.
    Insofar as there is a right that exists, the right is a paper
    right until the wet water right becomes real. We actually think
    that overall, the tribal right as well as the allottee right,
    is being perfected. That is a benefit that doesn't exist to
    allottees right now as well. There is a huge improvement that
    accrues to allottees as a result of the tribe getting its water
    right put into place, and getting that wet right perfected.
        The Chairwoman. Assistant Secretary Washburn, back to the
    settlement issue and funding. Has the Department of Interior
    ever not funded a settlement that has been passed by Congress?
        Mr. Washburn. No, I don't believe so. You are the boss, if
    you settle a water rights claim, whether we support it or not,
    we follow the law. So money has to be found and that sort of
    thing. The Congress, though, are the ones who ultimately holds
    our trust responsibility. You define what our trust
    responsibility means in any given case. If you find that, we
    will meet it.
        The Chairwoman. So how were some of those settled in the
    past?
        Mr. Washburn. You mean with regard to allottees?
        The Chairwoman. Yes.
        Mr. Washburn. Well, let me say this. It is an issue that we
    can address, there are general laws that apply. So it is
    something that we can address. Part of the issue is just making
    sure that these, there are much smaller claims to water rights.
    So you don't want to settle all the biggest claim and then fail
    to settle the small ones, because the smaller ones then may
    never get settled.
        The Chairwoman. This is the Indian Lands claim and
    settlement?
        Mr. Washburn. Indian water rights settlements. Yes, so you
    have, the tribe has its own claim and the allottees have claims
    to the water as well. For interest of finality, we would like
    to get all of it settled all in one fell swoop when we possibly
    can, so that we are tying up all the loose ends. Because the
    small loose ends don't have the political juice to get
    something done the way that the tribe does and the water
    districts and that sort of thing.
        So we would like to get all of the issues settled in one
    case.
        The Chairwoman. Which is what we have been striving for
    here with the Spokane settlement agreement and what you are
    striving for with others as well. How has the Department funded
    some of these in the past, like the Missouri River Tribes or
    some of the other settlements?
        Mr. Washburn. Well, they have been funded in different
    ways. Sometimes they come out of the regular Indian Affairs
    budget over a course of years. I have to say, that is perhaps
    my least happy outcome, because it means I am taking money from
    one tribe to apply to help other tribes. That is not the ideal
    circumstance, because it means that other Indian people are
    going to pay to take care of a different group of Indian
    people.
        So we have always looked for creative ways to settle these
    that don't necessarily just come out of the Indian Affairs
    budget. This is a commitment of the United States, and we have
    ongoing commitments to each of the tribes. They don't give me
    the power over the purse, or the Treasury and other agencies.
    But we always like to see joint contributions across the
    Federal Government to these kinds of settlements.
        The Chairwoman. You are certainly committed to finding the
    resources for this settlement.
        Mr. Washburn. I am as committed as you are.
        The Chairwoman. Thank you.
        Okay, well, I think that is all the questions I have. I
    know my colleagues may have some questions, so we will leave
    the record open on all three of these bills. I thank all the
    witnesses for being here, including you, Mrs. Wynecoop. Thank
    you for traveling all the way from the Pacific Northwest and
    for your ability to give us a sense of history on this issue as
    it relates to the Spokane Tribe in the Pacific Northwest.
        Again, thank you, Secretary Washburn, for your diligence
    and your team, everybody that is here on all these issues. We
    are adjourned.
        [Whereupon, at 3:20 p.m., the Committee was adjourned.]

                                A P P E N D I X

       Prepared Statement of Hon. Ernesto C. Luhan, Governor, Taos Pueblo

                                     ______

        Prepared Statement of Hon. Ben Shelly, President, Navajo Nation

     Prepared Statement of Thomas Motsinger, President/Founder, PaleoWest
                                  Archaeology

                                     ______

         Response to Written Questions Submitted by Hon. Tom Udall to
                              Hon. Kevin Washburn