[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





                                  
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