    [Senate Hearing 114-401]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-401

                         S. 2796, S. 2959, AND S. 3013

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

                                    HEARING

                                   before the

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JUNE 29, 2016

                                   __________

             Printed for the use of the Committee on Indian Affairs

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                          COMMITTEE ON INDIAN AFFAIRS

                        JOHN BARRASSO, Wyoming, Chairman
                       JON TESTER, Montana, Vice Chairman
    JOHN McCAIN, Arizona                 MARIA CANTWELL, Washington
    LISA MURKOWSKI, Alaska               TOM UDALL, New Mexico
    JOHN HOEVEN, North Dakota            AL FRANKEN, Minnesota
    JAMES LANKFORD, Oklahoma             BRIAN SCHATZ, Hawaii
    STEVE DAINES, Montana                HEIDI HEITKAMP, North Dakota
    MIKE CRAPO, Idaho
    JERRY MORAN, Kansas
         T. Michael Andrews, Majority Staff Director and Chief Counsel
           Anthony Walters, Minority Staff Director and Chief Counsel

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on June 29, 2016....................................     1
    Statement of Senator Barrasso....................................     1
    Statement of Senator Daines......................................     4
    Statement of Senator Heitkamp....................................     5
    Statement of Senator McCain......................................     6
    Statement of Senator Tester......................................     2
        Prepared statement...........................................     3

                                   Witnesses

    Belin, Alletta, Senior Counselor to the Deputy Secretary, U.S.
      Department of the Interior.....................................     7
        Prepared statement...........................................     8
    Finley, Hon. Vernon, Chairman, Confederated Salish and Kootenai
      Tribes of the Flathead Reservation.............................    22
        Prepared statement...........................................    24
    Flute, Hon. David, Chairman, Sisseton-Wahpeton Oyate Sioux Tribe.    14
        Prepared statement...........................................    15
    Velasquez, Hon. Kasey, Vice Chairman, White Mountain Apache Tribe    18
        Prepared statement of Hon. Ronnie Lupe.......................    20

                                    Appendix

    Farling, Bruce, Executive Director, Montana Council of Trout
      Unlimited, prepared statement..................................    36
    Rounds, Hon. Mike, U.S. Senator from South Dakota, prepared
      statement......................................................    35
    Willman, Elaine D., MPA, Flathead Indian Reservation, prepared
      statement......................................................    37

    Additional information submitted for the record

                         S. 2796, S. 2959, AND S. 3013

                                  ----------

                            WEDNESDAY, JUNE 29, 2016

                                           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. John Barrasso,
    Chairman of the Committee, presiding.

               OPENING STATEMENT OF HON. JOHN BARRASSO,
                       U.S. SENATOR FROM WYOMING

        The Chairman. Good afternoon. I call this legislative
    hearing to order. Today the Committee will examine three bills:
    S. 2796, a bill to repeal certain obsolete laws relating to
    Indians; S. 2959, a bill to amend the White Mountain Apache
    Tribe Water Rights Qualification Act of 2010 to clarify the use
    of amounts in the WMAT Settlement Fund; and S. 3013, the Salish
    and Kootenai Water Rights Settlement Act of 2016.
        The first bill was introduced by Senator Rounds on April
    13th of this year. Senator Lankford is a co-sponsor. At this
    time there is no House companion bill. This bill will repeal
    obsolete laws relating to Indians.
        So I want to thank Senator Rounds for his work on this
    today.
        On May 19th of this year Senator McCain introduced S. 2959,
    a bill to amend the White Mountain Apache Tribe Water Rights
    Quantification Act of 2010. Senator Flake is the original co-
    sponsor. This bill would allow funding authorized for water-
    related economic development projects in Title III of the
    Claims Resettlement Act of 2010 to include the White Mountain
    Apache Tribe's rural water system. This would allow the
    Secretary of Interior to use all or a portion of the
    appropriated $78 million of White Mountain Apache Tribe
    Settlement Fund for the completion, operation, and maintenance
    of the Miner Flat Dam along the North Fork of the White River.
        Then on May 26th Vice Chairman Tester introduced S. 3013,
    the Salish and Kootenai Water Rights Settlement Act of 2016.
    This bill would settle claims to water rights in the State of
    Montana. The bill also ratifies a compact passed by the Montana
    State Legislature that took a decade of negotiations to resolve
    the Tribe's claims to reserve water rights within the State.
    The bill authorizes over $2.3 billion of irrigation, water, and
    education purposes. The bill also provides an allocation of
    90,000 acre feet per year from the Hungry Horse Reservoir.
        I would like to now invite Vice Chairman Tester for any
    opening comments he might like to make.

                     STATEMENT OF HON. JON TESTER,
                       U.S. SENATOR FROM MONTANA

        Senator Tester. Well, thank you, Mr. Chairman, and thank
    you for holding this hearing today to discuss a few bills
    before the Committee. As you have already pointed out, one of
    these bills, the CSKT Water Rights Settlement Act, which I
    introduced last month, this bill would affirm the water rights
    compact between the Tribes and the State of Montana. This
    compact was passed by the Montana State Legislature last year.
    This bill would also settle the Tribe's claims against the
    United States for failure to protect the Tribe's water rights
    for over a century.
        The CSKT Pact is the seventh and last water rights compact
    passed by the Montana Legislature. As we all knows, once the
    Tribe and the State have finalized their agreement, it has to
    come here to be affirmed by Congress, a process which often
    takes too long. While the State of Montana has done a good job
    finalizing water compacts with the Tribes and the State, we in
    Washington need to do a better job. Congress still needs to
    pass three of these water rights settlements, this one for the
    CSKT, as well as settlements for Blackfeet and Fort Belknap
    communities.
        I understand from the testimony of the Department of
    Interior that the CSKT settlement still has a ways to go before
    it is ready for Congress to enact, but introducing this bill is
    a first step to getting the Tribes and the Federal Government
    to sit down and hammer out a final agreement. This is the
    process that most water rights settlements have taken,
    including the Blackfeet settlement.
        Three years ago, the Department testified on an early
    version of the Blackfeet bill and stated then that they could
    not support that bill as introduced. Since then, the parties
    have negotiated, made compromises, and just last week the
    Administration affirmed that the current version of the bill
    conforms with the Criteria and Procedures that apply to Indian
    water rights settlements. I expect to work with my colleagues
    here in the Senate, and I hope the House does what they said
    they were going to do and get this bill passed if the
    Administration supported it, which they do, and get this
    Blackfeet settlement across the finish line.
        For CSKT, this hearing is just the next step in the process
    and should spur the Tribes and the DOI to work out their issues
    so that we in Congress can do our job in seeing that these
    settlements get implemented.
        Everyone on this Committee knows that pursuing water rights
    settlements is the best policy. Settling tribal water rights
    provides certainty to all stakeholders in the watershed and
    saves everybody time and money by not forcing folks into the
    courtroom. So encouraging water settlements is just common
    sense and benefits Tribes and surrounding communities alike.
        I appreciate Senator Daines working with me on the
    Blackfeet bill. I am sure we will be working together on this
    bill as time moves forward, and I hope the same thing can
    happen with Representative Zinke. The State of Montana has been
    a model for the Country in settling water rights throughout the
    State, and we need to do the same.
        Now, while I understand that the Department may not now
    support the CSKT settlement, I look forward to hearing from Ms.
    Belin on what the next steps are and how we can get this bill
    to the finish line. I know it is a lot of work, but I have seen
    it happen already this Congress on one settlement and I know we
    can make progress on other settlements as well. The Salish and
    Kootenai Tribes are certainly ready to move forward.
        I would like to welcome you, Chairman Finley, and thank you
    for joining us today. We appreciate your leadership. And also
    the leadership of your counsel. And speaking of counsel, we
    appreciate the counsel of Ryan Rusche, your lawyer.
        Back in Montana, you have worked diligently to get the
    people behind this settlement, and I appreciate your efforts in
    building that coalition. It certainly makes our job easier when
    we receive letters in support from so many stakeholders outside
    the Reservation. The letters have come from the Montana Farm
    Bureau, Stock Growers, Water Resource Association, Gillette AG
    Irrigators, AG Business Association, Farmers Union, and Trout
    Unlimited, a very broad-based constituency. They all recognize
    the importance of this settlement and now final passage will
    bring certainty to all stakeholders throughout the Flathead
    Valley of Western Montana. So I appreciate their support.
        And I would ask, Mr. Chairman, unanimous consent for these
    letters to be entered into the record.
        The Chairman. Without objection.
        [The prepared statement of Senator Tester follows:]

        Prepared Statement of Hon. Jon Tester, U.S. Senator from Montana
        Thank you, Mr. Chairman, for holding this hearing today to discuss
    a few bills before the Committee. One of these bills is the C-S-K-T
    Water Rights Settlement Act, which I introduced last month. That bill
    would affirm the water rights compact between the Tribes and the State
    of Montana, which passed the State legislature last year with
    bipartisan support. The bill would also settle the Tribes' claims
    against the United States for failure to protect the Tribes' water
    rights for over a century.
        The CSKT compact is the seventh and last water rights compact
    passed by the Montana legislature. As we all know, once a Tribe and
    state finalize their agreement, it has to come here to be affirmed by
    Congress, which often takes too long. While the State of Montana has
    done a good job finalizing water compacts with the Tribes in the state,
    we here in Washington need to do a better job. Congress still needs to
    pass three of these water rights settlements: this one for the CSKT, as
    well as settlements for the Blackfeet and Ft. Belknap communities.
        I understand from the testimony of the Department of the Interior
    that the C-S-K-T settlement still has a ways to go before its ready for
    Congress to enact. But introducing the bill is the first step to
    getting the tribes and the federal government to sit down and hammer
    out the final agreement. This is the process that most water rights
    settlements have taken, including Blackfeet.
        Three years ago, the Department testified on an early version of
    the Blackfeet bill, and stated then, that they could not support the
    bill as introduced. Since then, the parties have negotiated, made
    compromises, and just last week the Administration affirmed that the
    current version of the bill conforms with the Criteria and Procedures
    that apply to Indian Water Rights Settlements. I expect to work with my
    colleagues in both the House and Senate to see Blackfeet successfully
    get across the finish line.
        For C-S-K-T, this hearing is just the next step in the process, and
    should spur the Tribes and DOI to work out their issues so we in
    Congress can then do our job in seeing these settlements get
    implemented.
        Everyone on this Committee knows that pursuing water rights
    settlements is the best policy. Settling tribal water rights provides
    certainty to all stakeholders in a watershed, and saves everybody time
    and money by not forcing folks into a courtroom. So encouraging water
    settlements is just common sense and benefits tribes and non-Indians
    alike.
        I appreciate Senator Daines working with me on the Blackfeet bill
    and encourage him to work with me on this bill, and Ft. Belknap as
    well. The State of Montana has been a model for the country on settling
    water rights throughout the state, and its Congressional delegation
    should follow that example.
        While I understand that the Department may not now support the C-S-
    K-T settlement, I look forward to hearing from Ms. Belin on what the
    next steps are, and how we can get this bill to the finish line. I know
    it's a lot of work, but I've seen the progress we've made on one
    settlement this Congress, and know we can make progress on other
    settlements as well.
        I want to reiterate this fact. The CSKT Water Compact was
    negotiated and constructed over years of on-the-ground collaboration
    between the tribe, local land owners, and the state. This bill has been
    a collaborative process that has been decades in the making--despite
    frivolous efforts to derail the process with fear and misinformation.
    And this hearing is just the beginning of the process here in
    Washington. I welcome members of Congress, the tribe, local
    stakeholders, and Interior to provide input so we can continue to grow
    support for this bill.
        The Salish and Kootenai Tribes are certainly ready to move forward.
    I'd like to welcome you, Chairman Finley and thank you for joining us
    today. Your leadership, and that of your council, has really gotten us
    to this point. Back in Montana you've worked diligently to get people
    behind this settlement, and I appreciate your efforts in building that
    coalition. It certainly makes our job easier when we receive letters of
    support from so many stakeholders outside the Reservation. The letters
    come from the Montana Farm Bureau, Stockgrowers, Water Resources
    Association, Gallatin Ag Irrigators, Ag Business Association, Farmers
    Union,Trout Unlimited, and local elected officials. They all recognize
    the importance of this settlement and how final passage will bring
    certainty to all stakeholders throughout the Flathead valley and
    western Montana. So I appreciate their support and ask unanimous
    consent for these letters to be entered into the record.

        Thank you, Senator Tester.
        Senator Daines.

                    STATEMENT OF HON. STEVE DAINES,
                       U.S. SENATOR FROM MONTANA

        Senator Daines. Thank you, Mr. Chairman.
        And thank you, Senator Barrasso, as well as Vice Chairman
    Tester, for this hearing today.
        I first want to welcome CSKT Chairman Vernon Finley, who
    will be testifying shortly. It is always an honor to see the
    chairman who hails from truly one of the most beautiful places
    in our Country, the Flathead Indian Reservation.
        I would like to start by noting that I fully understand the
    value of Indian water rights settlements. They are, no doubt, a
    productive way to, number one, resolve conflict amongst Indian
    and non-Indian water users; two, to clear the burden of
    potential liability at the State and Federal levels; and,
    three, allowing Tribes to access and develop their water
    resources.
        Most importantly, these settlements are a key component of
    the Federal Government's tribal trust responsibility to create
    tangible benefits for Indian Country, providing a Federal
    stream of support for water infrastructure and much needed
    maintenance.
        For these reasons, I have made passage and enactment of
    Senate Bill 1125, the Blackfeet Water Rights Settlement Act,
    one of my highest priorities this Congress.
        I want to commend Letty Belin, who is also testifying
    today, for her, her team's diligence and commitment to that
    settlement. I know it has been a long journey. It has been
    seven years since the Montana Legislature passed the Blackfeet
    Compact.
        Letty, again, thanks so much. I am proud of the progress we
    are making on that legislation and, as Senator Tester said, I
    look forward to that being completed and passed here before the
    end of the calendar year.
        The CSKT Compact is one of the most complex water
    settlements in history. It is the most expensive introduced, as
    Senator Tester noted, at $2.3 billion. It has meaningful
    implications for the Tribes, for our State, and other water
    users on and off the Reservation.
        Now, there is a lot of passion on this settlement back home
    regarding the Compact, and that was demonstrated by its narrow
    passage in our State Legislature. But it passed, and that is
    why we are up here today having these discussions. So I am glad
    we are having the conversation, we are examining the costs and
    the benefits of this legislation.
        I look forward to hearing from Chairman Finley, as well as
    Ms. Belin, on their perspectives, as well as from my colleagues
    here on the dais.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator.
        Senator Heitkamp.

                   STATEMENT OF HON. HEIDI HEITKAMP,
                     U.S. SENATOR FROM NORTH DAKOTA

        Senator Heitkamp. Thank you, Chairman Barrasso and Vice
    Chairman Tester, for holding this hearing to discuss
    legislation before us, and my particular interest is
    legislation that would repeal obsolete laws and address water
    rights in Indian Country.
        I want to congratulate Senator Rounds and Senator Lankford
    for bringing this issue to the forefront.
        Chairman Flute, it is always a pleasure to see you and have
    you represent your Tribe today. A lot of people don't realize
    this, but there is a portion of the Sisseton Wahpeton Oyate
    that is in fact in my home county of Richland County, and you
    are a particular treasured neighbor for all of us, so we are
    grateful for your presence and for the work that you have been
    doing on these obsolete laws. I know that this is a particular
    passion of yours.
        I want to point out that I read earlier this month that you
    were successful in a high school in Watertown, a town that you
    and I both know, which lies south of the border on your
    Reservation, in replacing disparaging activities in their
    homecoming festivals, so that certainly is a step forward for
    our region in becoming more culturally sensitive. I know the
    Tribe has worked long and hard to protect those cultural
    traditions, and that experiencing disparaging imagery is still
    an issue for many of your people, particularly your children,
    who at this point in time need a sense of pride in who they
    are.
        Similarly, to the outdated and often disparaging activities
    that take place in schools, I am glad you are here today to
    provide your thoughts regarding outdated Federal laws and
    policies that should be repealed to ensure your Tribe and the
    great Tribal Nations across this Country are properly
    respected. It is long overdue. Just like assimilation and
    reorganization eras, it is time that they be officially
    repealed.
        We all know that during the assimilation era there was
    tremendous loss of Indian cultures, resources, and land, which
    later further impoverished our Tribes. During this period, the
    Federal Government broke down traditional family structures and
    relocated Indian children to religious- or Government-run
    boarding schools so that they could be assimilated into the
    dominant culture. This has created generational and, I believe,
    historic trauma that affects tribal members today and is
    reflected in the high rates of poverty, substance abuse, post-
    traumatic stress, and even suicide.
        It is critical that we acknowledge this trauma and the role
    that we all played in it with these outdates policies, and that
    we take the steps that we hope we can take in this Committee to
    rectify this wrong and to offer hope and opportunity. And I
    want to thank you so much for coming, Chairman. You are doing a
    great job and I know always lead with the interest of your
    people.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Heitkamp.
        Senator McCain.

                    STATEMENT OF HON. JOHN McCAIN,
                       U.S. SENATOR FROM ARIZONA

        Senator McCain. Thank you, Mr. Chairman and Mr. Vice
    Chairman. Thank you for holding today's hearing on S. 2959. I
    understand that Chairman Ronnie Lupe was invited to testify,
    but had to cancel. I have had the pleasure of knowing Chairman
    Lupe for many years and can attest that he is a tireless
    advocate for the White Mountain Apache people. I am grateful
    that the Tribe's Vice Chairman, Kasey Velasquez, will be
    testifying today on behalf of the Tribe.
        The bill would amend provisions of the Tribe's Indian water
    settlement, the White Mountain Apache Tribe Water Rights
    Quantification Act of 2010, to enable a Tribe and the U.S.
    Department of the Interior to move forward with the
    construction of Miner Flat Dam on the North Fork of the White
    River. In 2010, Congress enacted legislation sponsored by
    Senator Kyl and myself that resolves a Tribe's claims to the
    Salt River in Arizona.
        The linchpin in the settlement was congressional
    authorization to construct a water delivery system for the Fort
    Apache Indian Reservation through the construction of the Miner
    Flat Dam. Unfortunately, tribal engineers have identified
    seepage and stability concerns at the proposed dam site, which
    is delaying construction. Resulting cost overruns exceed the
    initial $126 million authorization for the construction of the
    Miner Flat Dam.
        The Interior Department has informed the Tribe that a
    clarifying amendment to the water settlement legislation may be
    necessary to allow other authorized funds in the settlement act
    can be applied to the construction project.
        The bill I have introduced with Senator Flake would clarify
    that the Interior Department may access a separate fund in the
    Tribe's settlement legislation, called the WMAT fund, which
    covers water-related economic development projects, including
    dam operations and maintenance.
        Mr. Chairman, the Federal Government made a deal with the
    White Mountain Apache six years ago that we would build the
    Miner Flat Dam. That was a commitment, part of the deal. The
    Tribe is currently facing a drinking water crisis. Groundwater
    wells on the Reservation have dropped by 50 percent and the
    North Fork of the White River is expected to run dry by 2020
    without the Miner Flat Dam reservoir project.
        I believe it is pretty obvious that we have an obligation
    to meet the terms of the water settlement. I urge my colleagues
    to support this legislation.
        I thank you, Mr. Chairman.
        The Chairman. Thank you very much, Senator McCain.
        We welcome our four witnesses. You will each have about
    five minutes to give your testimony. Your complete written
    testimony will be made part of the permanent record of this
    Committee. I will ask each of you to identify yourself and who
    you represent, and we will start with Ms. Belin.

      STATEMENT OF ALLETTA BELIN, SENIOR COUNSELOR TO THE DEPUTY
               SECRETARY, U.S. DEPARTMENT OF THE INTERIOR

        Ms. Belin. Thank you, Chairman Barrasso, Vice Chairman
    Tester, and members of the Committee. I am Letty Belin, Senior
    Counselor to the Deputy Secretary of the Interior. I am here
    today to provide the Department's position on three bills, S.
    3013, the Salish and Kootenai Water Rights Settlement Act of
    2016, which would approve and authorize a settlement of the
    water rights claims of the Confederated Salish and Kootenai
    Tribes of the Flathead Reservation in Montana; second, S. 2959,
    a bill to amend the White Mountain Apache Tribe Water
    Settlement Authorization to clarify the use of amounts in the
    WMAT Settlement Fund; and, finally, S. 2796, an act to repeal
    existing substandard provisions and encourage conciliation with
    tribes, also known as the RESPECT Act.
        I will start with the two Indian water rights settlements.
        As this Committee knows, this Administration strongly
    supports the resolution of Indian water rights claims through
    negotiated settlement. Our policy of support for negotiations
    is premised on a set of general principles set forth in the
    1990 criteria and procedures for the participation of the
    Federal Government in negotiations for settlement of Indian
    water rights claims. These include, first, that the United
    States participate in water settlements consistent with its
    responsibilities as trustee to Indiana; second, that Indian
    Tribes receive equivalent benefits for rights which they and
    the United States, as trustee, may release as part of the
    settlement; third, that Indian Tribes should realize value from
    confirmed water rights resulting from a settlement; and,
    fourth, that settlements contain appropriate cost-sharing
    proportionate to the benefits received by all parties
    benefitting from the settlement.
        So turning to S. 3013, we recognize that it and the
    underlying compact are the product of a great deal of effort by
    many parties and reflect desire by the people of Montana,
    Indian and non-Indian, to settle their differences through
    negotiation rather than litigation. We also recognize that the
    Confederated Salish and Kootenai Tribes have long been leaders
    in sound water and natural resource management, and we commend
    the Tribes and the State of Montana for the excellent work they
    have done in furtherance of the compact and an overall
    settlement of the Tribes' water rights claims.
        However, the Department cannot support S. 3013 as
    introduced. The Department has significant concerns about the
    Federal costs of the settlement, which total approximately $2.3
    billion, and we have not yet completed a full and robust
    analysis and discussion of all aspects and ramifications of
    this substantial settlement.
        Next I will discuss S. 2959, the White Mountain Apache
    Tribe Water Rights Quantification Settlement. One of four
    Indian water settlements included in the 2010 Claims Resolution
    Act, this settles the water rights among the Tribe and non-
    Federal parties, including the State of Arizona. Since the
    enactment of the Claims Resolution Act, the Department has been
    working diligently on implementing all four of those
    settlements, including this one, which resolve well over a
    century of litigation and bitter disputes.
        S. 2959 would authorize funding from the WMAT Settlement
    Fund to be used for the completion of a rural water system. The
    Department is aware that the Tribe has identified potential
    cost overruns associated with the design of the rural water
    delivery system, specifically Miner Flat Dam. In order to
    evaluate whether discretionary funding beyond what is available
    in the cost overrun subaccount is needed to complete the rural
    water system, the Bureau of Reclamation needs to be provided
    with the necessary design and estimated cost of the rural water
    system.
        Therefore, the Department cannot support S. 2959 at this
    time. However, we are hopeful that this hearing will advance
    the implementation of this settlement and we look forward to
    working with the Tribe to ensure that Reclamation receives the
    relevant information.
        S. 2796 seeks to repeal laws that were passed by Congress
    during periods in U.S. history that were directly related to
    the Federal Government's policy with Indian Tribes. The laws to
    be repealed by S. 2796 range in dates of enactment from 1862
    through 1913, and were passed in eras of Federal Indian policy
    identified with removal, reservations, allotment, and
    assimilation.
        The language to be repealed by S. 2796 uses antiquated and
    obsolete terms and contexts such as reference to Indian Tribes
    in actual hostility to the United States and withholding monies
    or goods from Indian Tribes on account of intoxicating liquors.
    The Department agrees that such language should be repealed.
        Thank you for the opportunity to express the Department's
    views on these bills. I am available to answer any questions
    the Committee may have.
        [The prepared statement of Ms. Belin follows:]

      Prepared Statement of Alletta Belin, Senior Counselor to the Deputy
                   Secretary, U.S. Department of the Interior
        s. 2959, to amend the white mountain apache tribe water rights
     quantification act of 2010 to clarify the use of amounts in the wmat
                                settlement fund
        Chairman Barrasso, Vice Chairman Tester and members of the
    Committee, I am Letty Belin, Counselor to the Deputy Secretary at the
    Department of the Interior (Department). I am pleased to provide the
    views of the Department on S. 2959, a bill to amend the White Mountain
    Apache Tribe Water Rights Quantification Act of 2010 to clarify the use
    of amounts in the WMAT Settlement Fund. The Department supports the
    ongoing ef*forts to implement the White Mountain Apache Tribe
    settlement; however, we do not have sufficient information to develop a
    position on S. 2959 at this time.
    Background
        Over six years ago, this Administration supported and Congress
    enacted, four Indian water rights settlements for seven tribes that
    resolved well over a century of litigation and bitter disputes in the
    Claims Resolution Act of 2010 (PL 111-291). Our support for these four
    settlements demonstrated that settling Indian water rights disputes was
    and remains a high priority for this Administration.
        Since the enactment of the Claims Resolution Act, the Department
    has diligently been working on implementing the four settlements to
    support the maintenance of permanent water supplies and enhance
    economic security for five Pueblos in New Mexico, the Crow Tribe of
    Montana, the Taos Pueblo, and the White Mountain Apache Tribe (WMAT) of
    Arizona. We are here today to discuss the WMAT settlement.
        The WMAT settlement, as authorized by Title III of the Claims
    Resolution Act, settles the water rights among the Tribe and non-
    federal parties, including the State of Arizona, local water and power
    districts, local towns, and conservation districts. The Act authorizes
    design and construction of the WMAT rural water system that consists of
    a dam and storage reservoir, pumping plant, distribution system and
    water treatment facilities.
        Appropriated funds made available under the White Mountain Apache
    Tribe Rural Water System Loan Authorization Act (PL 110-390), are
    currently being used to implement the WMAT settlement. On September 30,
    2011, the Bureau of Reclamation awarded a PL 93-638 contract to the
    Tribe in the amount of $11.8 million (indexed), which allowed the Tribe
    to move forward with the initial planning, engineering, and design of
    the WMAT rural water system, as well as to complete the requisite
    environmental impact statement (EIS). Through this contract, the Tribe
    has awarded three major engineering contracts, for 30 percent designs
    of each project component, including Miner Flat Dam, treatment plant,
    and distribution system. A fourth contract was awarded for preparation
    of an EIS. Thirty percent designs for the treatment plant and
    distribution system, including pumping plants are complete. Thirty
    percent design of the dam and reservoir continues along with
    preparation of the EIS. Final design on all components will commence
    subsequent to completion of the EIS and issuance of a Record of
    Decision.
    S. 2959
        S. 2959 would amend the White Mountain Apache Tribe Water Rights
    Quantification Act of 2010 to authorize funding from the WMAT
    Settlement Fund for the completion of the WMAT rural water system,
    including carrying out activities relating to the operation,
    maintenance, or replacement of the WMAT rural water system. The core of
    the settlement is the WMAT rural water system and the Act authorized
    approximately $126 million in mandatory spending for the Secretary of
    the Interior to carry out its planning, engineering, design,
    environmental compliance, and construction. The mandatory funding for
    construction is separate and apart from the WMAT Settlement Fund at
    issue in S. 2959. For this reason, I will now discuss briefly the
    history of the WMAT Settlement Fund authorization.
        In the 113th Congress, legislation approving the WMAT Settlement
    (S. 313) was amended in Committee to authorize $113.5 million for a
    WMAT Settlement Fund. The Administration subsequently submitted--
    through then-Commissioner of the Bureau of Reclamation Michael L.
    Connor--a views letter regarding S. 313 as reported by the Committee
    expressing concerns about the WMAT Settlement Fund. In response to the
    concerns of the Administration, the Claims Resolution Act ultimately
    reduced the WMAT Settlement Fund by $35 million in order to create a
    ``Cost Overrun Subaccount,'' to be administered by the Secretary in
    order to ensure that the WMAT rural water system would be completed
    with the funds specifically authorized and capped for its construction.
    The remaining $78.5 million originally included in the WMAT Settlement
    Fund remained available as discretionary appropriations. This $78.5
    million in discretionary funding, plus any potential unobligated
    amounts of the Cost Overrun Subaccount, may be used for fish
    production, including hatcheries; rehabilitation of recreational lakes
    and existing irrigation systems; water-related economic development
    project; and protection, restoration, and economic development of
    forest and watershed health.
        The Department is aware that the Tribe has identified challenges
    and potential cost-overruns associated with the design of the rural
    water delivery system, specifically Miner Flat Dam. However, the Bureau
    of Reclamation (Reclamation) has not been provided with the necessary
    design and cost estimate data to make a determination on the final
    project design of the WMAT rural water system. Under the Act,
    Reclamation is required, in consultation with the Tribe, to make
    changes to the design to ensure that the final design meets Reclamation
    standards; is cost effective; and may be constructed within the
    mandatory appropriations provided in the Act. Without necessary
    information from the Tribe on current design and cost estimate data,
    Reclamation is unable to make any determinations related to the
    feasibility of the design or cost of the system, or any potential cost
    overruns. Because of the history of the Cost Overrun Subaccount's
    establishment and because Reclamation has not yet received the
    necessary design and cost estimate data, the Department cannot evaluate
    whether S. 2959 is needed to complete the WMAT rural water system.
    However, we are hopeful that this hearing will advance the
    implementation of this important settlement, and we look forward to
    working with the Tribe to ensure Reclamation receives the relevant
    information to advance the WMAT rural water system.
        Also, while we recognize the intent of S. 2959, we have identified
    some technical concerns with the language that we look forward to
    working with the bill sponsor and the Committee to resolve.
    Specifically, we would like to clarify how the use of the phrase ``in
    accordance with subsection (e)(4)'' would interact with the Cost
    Overrun Subaccount in in Section 312(e) if S. 2959 were to be enacted.

      s. 2796, a bill to repeal certain obsolete laws relating to indians
        Chairman Barrasso, Vice-Chairman Tester, and members of the
    Committee, thank you for inviting me to express the views of the
    Department of the Interior (Department) on S. 2796, a bill to repeal
    certain obsolete laws relating to Indians. The Department understands
    the need to repeal certain laws relating to Indian that were passed by
    Congress in the late 1800s. The Department supports S. 2796.
    S. 2796
        S. 2796 would repeal various laws that were passed by Congress
    during periods in United States Federal Government history that were
    directly related to the Federal Government's policy with Indian tribes.
    The laws to be repealed by S. 2796 range in dates of enactment from
    1862 through 1913, and were passed in the eras of Federal Indian policy
    identified as ``removal and reservations (1829-86), and allotment and
    assimilation (1887-1932)'' eras. The language in many of these laws
    uses historical and antiquated terms and contexts such as ``Indian
    tribe is in actual hostility to the United States,'' or ``while at war
    with the United States,'' or ``Moneys or annuities of hostile Indians''
    and ``withholding of moneys or goods on account of intoxicating
    liquors.'' These various laws were passed with the sole purpose of
    prescribing the appropriation of moneys or annuities on the condition
    of ``non-hostility'' with the United States, or not to be ``under the
    influence of intoxicating liquors,'' or withholding such appropriations
    to Indian tribes for Indian children not attending schools. The
    Department agrees that these laws should be repealed.

        s. 3013, salish and kootenai water rights settlement act of 2016
        Chairman Barrasso, Vice Chairman Tester and members of the
    Committee, I am Letty Belin, Counselor to the Deputy Secretary at the
    Department of the Interior (Department). I am here today to provide the
    Department's position on S. 3013, the Salish and Kootenai Water Rights
    Settlement Act of 2016, which would approve and provide authorizations
    to carry out, a settlement of the water right claims of the
    Confederated Salish and Kootenai Tribes of the Flathead Reservation in
    Montana (Tribes). We have not completed the necessary review of the
    legislation, and we have significant concerns about the Federal costs
    of the settlement, which total approximately $2.3 billion. Therefore,
    the Department cannot support S. 3013 as introduced.
    I. Introduction
        The Administration supports the resolution of Indian water rights
    claims through negotiated settlement. Our general policy of support for
    negotiations is premised on a set of general principles including that
    the United States participate in water settlements consistent with its
    responsibilities as trustee to Indians; that Indian tribes receive
    equivalent benefits for rights which they, and the United States as
    trustee, may release as part of a settlement; that Indian tribes should
    realize value from confirmed water rights resulting from a settlement;
    and that settlements are to contain appropriate cost-sharing
    proportionate to the benefits received by all parties benefitting from
    the settlement. I want to affirm the Administration's support for
    settling Indian water rights where possible.
        Disputes over Indian water rights are expensive and divisive. In
    many instances, Indian water rights disputes, which can last for
    decades, are tangible barriers to progress for tribes, and
    significantly, hinder the rational and beneficial management of water
    resources. Settlements of Indian water rights disputes break down these
    barriers and help create conditions that improve water resources
    management by providing certainty as to the rights of all water users
    who are parties to the dispute. That certainty provides opportunities
    for economic development, improves relationships, and encourages
    collaboration among neighboring communities. This has been proven time
    and again throughout the West as the United States has pursued a policy
    of settling Indian water rights disputes whenever possible. Indian
    water rights settlements are also consistent with the Federal trust
    responsibility to American Indians and with Federal policy promoting
    Indian self-determination and economic self-sufficiency. For these
    reasons and more, for nearly 30 years, federally recognized Indian
    tribes, states, local parties, and the Federal government have
    acknowledged that negotiated Indian water rights settlements are
    preferable to the protracted litigation over Indian water rights
    claims.
        The Confederated Salish and Kootenai Tribes have long been leaders
    in water and natural resources management. They have restored the
    ecosystem function of miles of streams and, with the State of Montana,
    co-manage the fishery on Flathead Lake, the largest freshwater body
    west of the Continental Divide. Most recently, the Tribes acquired
    ownership of Kerr Dam (now known as the Selis Ksanka Qlispe Dam) near
    the outlet of Flathead Lake, becoming the first tribe to hold
    exclusively a federal license for and operate a major hydroelectric
    dam. The State of Montana should also be commended for its efforts to
    resolve Tribal and Federal reserved water rights through the State's
    unique and highly successful Reserved Water Rights Compact Commission.
    The Tribes and the State brought these leadership qualities to this
    tribal water negotiation, and the Department recognizes the substantial
    effort that they have made in negotiating a resolution of the Tribes'
    water right claims; the issues surrounding these claims have been among
    the most contentious to be addressed to date in a tribal water
    settlement.
    II. Historical Context
    A. 1855 Hellgate Treaty
        The aboriginal homeland of the Salish, Kootenai and Pend d' Oreille
    Tribes is located in present-day western Montana, northern Idaho and
    north into Canada. In 1855, these Tribes negotiated with the United
    States and entered into what is known as the Hellgate Treaty. Under the
    treaty, the Tribes ceded to the United States a significant portion of
    their aboriginal territory and reserved to themselves the Flathead
    Indian Reservation (Reservation) in northwestern Montana.
        The Hellgate Treaty is one of a series of similar Indian treaties
    entered into between the United States, represented by Washington
    Territory Governor Isaac Stevens, and numerous tribes in the Pacific
    Northwest. A common attribute of these ``Stevens treaties'' is the
    express reservation of tribal aboriginal hunting, fishing and gathering
    rights on- and off-reservations. In the Hellgate Treaty, the Tribes
    reserved to themselves the ``exclusive right of taking fish in all
    streams running through and bordering'' the Reservation. They also
    expressly reserved the right to fish at usual and accustomed fishing
    sites off the Reservation ``in common'' with non-Indian settlers. These
    and similar terms found in Indian treaties, discussed more below, have
    been found by state and federal courts to support reserved instream
    flow water rights for Tribal fisheries.
        In addition, there are extensive Tribal lands within the
    Reservation that are economically viable agricultural lands when
    irrigated. Articles four and five of the Hellgate Treaty address the
    commitment of the United States to provide the necessary materials,
    equipment, and other support to convert the Tribes to an agrarian
    society. Under the Winters Indian reserved water rights doctrine, these
    lands would be entitled to substantial reserved water rights for
    irrigation as part of the homeland purpose of the Reservation.
    B. Water Resource Development and Conflict on the Flathead Reservation
        There have been extensive and bitter disputes over the Tribes'
    water rights and resources dating back a century. These longstanding
    conflicts can be traced directly to Congressional actions in the early
    20th Century. From 1855 to 1904 the Tribes enjoyed the exclusive use of
    the Flathead Reservation. This included the initiation of irrigated
    farming by Tribal members. Pressures for non-tribal settlement of lands
    within the Reservation began to mount, however, and in the 1904
    Flathead Allotment Act, Congress, over the objections of the Tribes,
    directed the allotment of Tribal land to individual Indians and
    authorized the disposal of additional ``surplus'' unalloted Tribal land
    for non-Indian homestead entry.
        The 1904 Flathead Allotment Act authorized limited irrigation
    facilities for Indian use as part of allotting lands to individual
    Indians. In 1908, Congress amended the 1904 Act and authorized the
    construction of a greatly-expanded irrigation system to serve extensive
    irrigable lands on the Reservation, both Indian and non-Indian. This
    irrigation system became known as the Flathead Indian Irrigation
    Project (Project). Over the next few decades, the Project was
    constructed to irrigate approximately 130,000 acres. By the 1930s, most
    of the lands allotted to individual Tribal members within the Project
    were no longer in Indian ownership, and currently nearly 90 percent of
    the lands irrigated by the Project are owned by non-Indians.
    C. Court Confirmation of Tribal Reserved Water Rights for Instream
            Flows
        Much of the irrigation water supply for the Project is diverted
    directly from several streams which also support the Tribes' reserved
    fisheries. By the 1980s, these diversions had significantly impacted
    the natural flows and the fisheries on the Reservation. In a series of
    interrelated lawsuits filed in the 1980s by the Tribes and others,
    federal courts conclusively confirmed that the Tribes, by the terms of
    the 1855 Hellgate Treaty, are entitled to on-Reservation instream flows
    water rights sufficient to support fishery resources. The courts
    further found that these reserved instream flow rights have a priority
    date of time immemorial and thus are senior to the irrigation water
    rights for the Project.
        After these rulings, the Tribes agreed to accept lower ``interim''
    flows until the instream flow rights could be fully quantified in the
    Montana water court or through negotiations. Since the 1980s, the
    situation on the Flathead Reservation between flows and irrigation
    demands essentially has been at an impasse. The Bureau of Indian
    Affairs (BIA) continues to operate the Project, but is on record
    stating that the existing minimum flow protections are not adequate.
    Population growth on and near the Reservation over the past few decades
    has increased the demand for water resources.
        Montana is in the process of adjudicating water rights throughout
    the state. It was clear to Montana representatives and most water users
    on the Reservation that at the end of a long and expensive process, the
    non-Indian rights would be junior to the Tribes and and their water
    supplies could be shut off to meet the Tribes' instream flow rights.
    The Tribes also had a number of senior water rights claims throughout
    Montana that created uncertainty about future water uses.
    III. Salish and Kootenai Water Rights Compact and Proposed Legislation
    A. Negotiations
        Seeking to avoid costly litigation, provide certainty for all water
    users, and meet the Tribes' needs, the State of Montana, the Tribes and
    the United States have made a number of attempts since the early 1990s
    to negotiate the Tribes' instream flow and other water right claims.
    These negotiations became more active and focused in 2007, when the
    Tribes submitted a set of key negotiation principles. First, the Tribes
    committed to negotiate toward a settlement in which all verified
    existing water uses on the Reservation--Tribal and non-Tribal--would be
    protected. This included a commitment that the water supply for the
    Project would be protected to the full amount needed to meet existing
    net irrigation requirements. Second, rather than exercise the full
    extent of the Tribes' instream flow rights (which are senior in
    priority to and would reduce water available for irrigation water
    rights), the Tribes agreed instead that flow protections for fish would
    be met by dedicating water saved through conservation practices and
    Project improvements. Third, all waters on the Reservation would be
    jointly administered by the Tribes and the State to reflect the
    principle that water on the Reservation is a unitary resource.
    B. Compact
        The Salish and Kootenai Tribal water compact as negotiated and as
    approved by the Montana legislature in 2015 represents a comprehensive
    resolution of all of the Tribes' water right claims in concert with the
    negotiating principles discussed above. Among other things, the Compact
    includes a set of Tribal irrigation, domestic, instream flow and other
    water rights to meet the Tribes' current and future water needs on the
    Reservation. The Compact entitles the Tribes to additional water
    sources from the Flathead River and from the federal Hungry Horse
    Project (a large dam and reservoir on the South Fork of the Flathead
    River under the jurisdiction of the U.S. Bureau of Reclamation). Off-
    reservation water right claims are also resolved under the Compact,
    which provides for Tribal water rights and other flow protections in
    key streams throughout the Clarks Fork and Kootenai River basins in
    western Montana.
        Finally, once it is fully executed, the Compact provides a unique
    and carefully crafted framework for the administration of water rights
    on the Reservation through the Unitary Administration and Management
    Ordinance (or Law of Administration). It describes the process to (1)
    register existing uses of water; (2) change water rights; and (3)
    provide for new water development. The Compact also establishes a Water
    Management Board to administer the Compact and Ordinance on the
    Reservation.
        The Department's federal negotiating team participated in water
    related compromises contained in the Compact as required by the
    Department's many federal responsibilities with respect to the disputed
    water rights and resources on the Flathead Indian Reservation, its
    ownership and operation of the Project, and its ownership and operation
    of Hungry Horse Reservoir located above Flathead Lake. Finally, the
    Department has worked with the U.S. Department of Justice to develop
    and file extensive claims for water on and off the Reservation in the
    Montana water court as part of the Montana general stream adjudication.
    These claims have been stayed by the Montana water court until February
    2017 while the parties seek federal and other approvals of the Compact.
    C. S. 3013
        Among other things, S. 3013 would ``authorize, ratify, confirm, and
    provide funding'' for the Salish and Kootenai Tribal water compact;
    would ratify the tribal water right set forth in the Compact and make
    ``any use of the tribal water right. . .subject to the terms and
    conditions of the Compact and [S. 3013]''; and, in conformance with the
    Compact, would direct the Secretary to ``allocate to the Tribes 90,000
    acre-feet'' of storage water in the federal Hungry Horse Reservoir
    ``for use by the Tribes for any beneficial purpose on or off the
    Reservation.'' Section 7 addresses future hydropower development on the
    Reservation by (a) directing that the Commissioner of the Bureau of
    Reclamation would have exclusive jurisdiction to authorize the
    development of any hydroelectric power generation project within the
    Reservation and (b) providing that the Tribes ``shall have the
    exclusive right to develop and market hydropower on water bodies within
    the Reservation.'' Section 8 would provide several authorities to
    rehabilitate, modernize and mitigate the impacts of the federal
    Project.
        S. 3013 would authorize approximately $2.3 billion of federal funds
    and provide for the waiver of CSKT water and damages claims. The
    following accounts would be established:

       Selis-QLispe Ksanka (Tribal) Settlement Trust Fund (Section
            9)

        --Agriculture Development Account--$365,207,225
        --Economic Development Account--$93,633,566
        --Community Development Account--$233,361,200

       Salish and Kootenai Compact Fund (Section 10)

        --Compact Implementation Account--$116,209,294
        --Flathead Indian Irrigation Project Account--$1,519,408,000

        With the Project-related fund, CSKT is seeking funding through S.
    3013 to rehabilitate and modernize the Project so that the water
    savings can be used to meet instream flow requirements.
    IV. Department of the Interior Positions on S. 3013
        While the Department has a record of strong support for Indian
    water rights settlements and the Compact is similar to many other water
    rights settlements that Congress has approved, the Department is unable
    to support S. 3013 as introduced. Additional time is needed for the
    Department to complete its review of the legislation. The Department
    has serious concerns about and cannot support the approximately $2.3
    billion in federal appropriations that S. 3013 calls for. The proposed
    amounts and the legislative language contain little information
    regarding the purposes for which the proposed funds and accounts would
    be put to use. The Department has made clear to the Tribes that a more
    realistic level of funding is required before the Department will be
    able to support S. 3013.
        We are also concerned about the magnitude of the increased cost of
    this settlement compared to enacted Indian water rights settlements.
    While we recognize that this proposed settlement would seek to resolve
    longstanding and intense conflicts, we would also note that the size of
    the proposed Federal funding obligation created under S. 3013 in
    relation to the Department's budget presents significant challenges. As
    an example, the Bureau of Reclamation currently has a backlog of more
    than $1 billion in authorized, but unfunded, Indian Water Rights
    Settlements.
    V. Conclusion
        S. 3013 and the underlying Compact are the products of a great deal
    of effort by many parties and reflect a desire by the people of
    Montana--Indian and non-Indian--to settle their differences through
    negotiation rather than litigation. This Administration shares that
    goal, and hopes to be able to support ratifying legislation for the
    Confederated Salish and Kootenai Tribes after a full and robust
    analysis and discussion of all aspects and ramifications of this
    substantial settlement.
        The Administration is committed to working with the Tribes and
    other settlement parties to reach a final and fair settlement of the
    Tribe's water rights claims. The Administration is committed to working
    with Congress and all parties concerned in developing settlement
    legislation that the Administration can fully support.
        Mr. Chairman, this concludes my written statement. I would be
    pleased to answer any questions the Committee may have.

        The Chairman. Thank you so much for your testimony.
        Next we will hear from the Honorable David Flute. And I
    will just tell you Senator Rounds, earlier today, told me the
    story of your incredible military service, your bravery, your
    courage, and it is a privilege to have you here with us today
    testifying. Thank you very much. If you could introduce
    yourself and who you represent.

      STATEMENT OF HON. DAVID FLUTE, CHAIRMAN, SISSETON-WAHPETON
                           OYATE SIOUX TRIBE

        Mr. Flute. Mr. Chairman, Vice Chairman, I respectfully ask
    to be able to introduce myself in my native tongue according to
    my Dakota protocol.
        The Chairman. Please.
        Mr. Flute. [Greeting in native tongue.] I shake each and
    every one of your hands from my heart today.
        [Speaking native language.] I thank you for allowing me to
    stand before you.
        [Speaking native language.] The testimony I am about to
    give I ask that it strengthens your understanding and your
    knowledge of what I am about to say today.
        With that [speaking native language], I thank you very
    much.
        Good afternoon, Mr. Chairman, Mr. Vice Chairman, members of
    the Committee. My name is David Flute. I am the Chairman of the
    Sisseton-Wahpeton Sioux Tribe. I am pleased to testify in
    support of Senate Bill 2796, the RESPECT Act, which would
    repeal certain obsolete laws concerning Indians. As Native
    Americans, respect for our somber Nations' treaty rights and
    Indian lands is imperative because our right to self-governance
    on our Reservation is freedom and liberty for us. It is the
    essence of Tribal self-governance.
        Senator Rounds provides leadership and reconciliation with
    Native Americans in the Senate, as he did as governor of the
    State of South Dakota, and for that I thank him.
        The Sisseton-Wahpeton Sioux Tribe is a signatory of two
    treaties, the 1851 Treaty and the 1867 Lake Traverse Treaty,
    which established a permanent homeland for my people in
    northeast South Dakota and, as Senator Heitkamp had mentioned,
    southeast North Dakota.
        We are proud of our service to the United States through
    the military. Woodrow Wilson Keeble, one of our most respected
    tribal veteran members, served in World War II and in Korea and
    was posthumously awarded the Congressional Medal of Honor by
    President George W. Bush.
        And today, Mr. Chairman, the reason I bring that up is
    there are laws in our legal code that talk about withholding
    the annuities of Tribes that are hostile towards the United
    States Government. As Senator Rounds had mentioned, and I
    appreciate, Mr. Chairman, acknowledging my service to this
    Country, that many of us have volunteered to serve this
    Country. Many of us were not drafted. Many of us did not have
    to go. We volunteered to serve this Country, and when we
    created treaty and when we established those relationships with
    the United States Government, we created a partnership and an
    alliance. And on behalf of those older veterans that served in
    World War I, World War II, as my grandfather did, and as he had
    heard from his grandfather, those treaty obligations we felt,
    on our part, were an obligation for us to serve the United
    States of America. So we are very proud of our service to the
    Country, thus why these laws are obsolete and are concerning to
    us in that it questions the position of the United States
    Government towards us that have volunteered our patriotism to
    the United States of America.
        Senator Rounds introduced the RESPECT Act to strike
    antiquated laws which have historically disadvantaged our
    Indian Nations and our people. For example, there are still
    laws on the books for the removal of Indian children from the
    homes to be sent to compulsory boarding schools run by military
    officers where the mantra was ``Kill the Indian and save the
    Man.''
        My grandfather was a World War II veteran. He served with
    the 101st Airborne Division, the Battle of the Bulge, Bastards
    of the Stone. He was taken, at five years old, from his
    mother's arms and he didn't see his grandparents, he did not
    see his parents for 11 years. When he came back to the
    Reservation to look for his home, there was no home. And the
    boarding school laws in Title 25 that spell out where a BIA
    agent can go into a home and take that child without consent of
    the parents is appalling, and we ask that those laws like that
    be removed from our code.
        In closing, Mr. Chairman, I would just like to say I have
    never met Senator McCain before, but I would like to say, sir,
    I am very honored, I am very humbled to be in your presence
    knowing what you did for our Country in Vietnam. I am very
    honored to be in your presence, sir.
        Senator McCain. Thank you very much, sir. I am very honored
    by your service, and I am sure that Senator Tester and Senator
    Heitkamp are paying close attention to your words.
        That was a joke.
        I thank you.
        [Laughter.]
        Senator McCain. I thank you very much for your service.
    Thank you.
        [The prepared statement of Mr. Flute follows:]

      Prepared Statement of Hon. David Flute, Chairman, Sisseton-Wahpeton
                               Oyate Sioux Tribe
        Good morning, Mr. Chairman, Mr. Vice Chairman, Members of the
    Committee and Honored Guests. My name is David Flute, and I am the
    Chairman of the Sisseton-Wahpeton Oyate. I want to give a special
    greeting to our Senators from South Dakota and North Dakota, Mike
    Rounds and Heidi Heitkamp. I am pleased to testify in support of S.
    2796, the Repealing Existing Substandard Provisions Encouraging
    Conciliation with Tribes Act or RESPECT Act, which would repeal certain
    obsolete laws with concerning Indians. Thank you for the opportunity to
    testify today.
        As Native Americans, it is important for us to have respect for our
    Native Nations, treaty rights, and Indian lands because our right to
    self-governance and self-determination on our Reservations is the
    essence of Freedom and Liberty for us. Senator Rounds is providing
    important leadership on Respect and Reconciliation for Native Americans
    in the Senate, as he did as Governor of the State of South Dakota. We
    thank him.
        I would note that the Federal Government has just undertaken an
    effort to update the United States Code by striking the term
    ``Oriental,'' which is offensive to some Asians. It is important for
    the United States to put an end to historical racism against all
    Americans.
        The Oceti Sakowin, or Seven Council Fires, of the Dakota-Nakota-
    Lakota Oyate or Sioux Nation are the original people of the forests,
    woodlands, prairies and plains of Southern Minnesota, Iowa, North and
    South Dakota, Nebraska, Wyoming and Montana. The Sisseton-Wahpeton
    Oyate (meaning Sisseton-Wahpeton Dakota Nation and we also have been
    known historically as the Sisseton-Wahpeton Sioux Tribe) had our
    original homelands in Minnesota, North and South Dakota.
        The Sisseton-Wahpeton Sioux Tribe is signatory to the 1851 Treaty
    with the Sisseton-Wahpeton Bands of Dakota Sioux (Traverse des Sioux)
    and the 1867 Lake Traverse Treaty, which set aside the Lake Traverse
    Reservation as our ``permanent reservation'' homeland:

             Beginning at the head of Lake Travers[e], and thence along the
            treaty-line of the treaty of 1851 to Kampeska Lake; thence in a
            direct line to Reipan or the northeast point of the Coteau des
            Prairie[s], and thence passing north of Skunk Lake, on the most
            direct line to the foot of Lake Traverse, and thence along the
            treaty-line of 1851 to the place of beginning.

        The Lake Traverse Reservation is located in the Northeastern part
    of South Dakota and a small portion of southeastern corner of North
    Dakota. The reservation boundaries extend across seven counties, two in
    North Dakota and five in South Dakota.
        During the Dakota Conflict of 1862, the Sisseton-Wahpeton Sioux
    Tribe assisted the United States by rescuing white residents of our
    1851 reservation and rescuing hostages and captives. Our 1867 Treaty
    continues our ``friendly relations with the Government and people of
    the United States.'' Our Treaty also recognizes our people's right to
    self-government and to adopt ``laws for the security of life and
    property,'' to promote the ``advancement of civilization'' and promote
    ``prosperity'' among our people.
        Today, we have a total of 13,177 tribal members on our Reservation,
    throughout the United States and others serving overseas in the Armed
    Forces. We are rightfully proud of our service to the United States
    through the military. Woodrow Wilson Keeble, one of our most respected
    tribal members, served in World War II and in Korea and was
    posthumously awarded the Congressional Medal of Honor by President
    George W. Bush.
        Senator Rounds introduced the Repealing Existing Substandard
    Provisions Encouraging Conciliation with Tribes Act or RESPECT Act, S.
    2796, to strike some of the substandard laws which have historically
    disadvantaged Indian nations and our people. For example, there are
    still laws on the books concerning the removal of our children from our
    homes to be sent to compulsory boarding schools run by military
    officers, where the mantra was ``Kill the Indian, save the Man.''
    National Public Radio reported on Indian Boarding Schools, which cited
    the example of Floyd Red Crow Westerman, the famed Sisseton-Wahpeton
    singer and actor:

             Floyd Red Crow Westerman was haunted by his memories of
            boarding school. As a child, he left his reservation in South
            Dakota for the Wahpeton Indian Boarding School in North Dakota.
            Sixty years later, he still remembers watching his mother
            through the window as he left. At first, he thought he was on
            the bus because his mother didn't want him anymore. But then he
            noticed she was crying. ``It was hurting her, too. It was
            hurting me to see that,'' Westerman says. ``I'll never forget.
            All the mothers were crying.'' Westerman spent the rest of his
            childhood in boarding schools far from his family and his
            Dakota tribe. . .

             The Federal Government began sending American Indians to off-
            reservation boarding schools in the 1870s, when the United
            States was still at war with Indians. An Army officer, Richard
            Pratt, founded the first of these schools. He based it on an
            education program he had developed in an Indian prison. He
            described his philosophy in a speech he gave in 1892. ``A great
            general has said that the only good Indian is a dead one,''
            Pratt said. ``In a sense, I agree with the sentiment, but only
            in this: that all the Indian there is in the race should be
            dead. Kill the Indian in him, and save the man.''

        Title 25 U.S.C. sec. 283, Regulations for Withholding Rations for
    Nonattendance at Schools, and 25 U.S.C. section 285, Withholding
    Annuities from Osage Indians for Nonattendance at Schools should be
    struck from the United States Code because these statutory provisions
    reflect a racist outlook that we, as American Indians, cannot manage
    our own affairs and our own children.
        As Senator Rounds said upon his introduction of the bill, ``These
    statutes are a sad reminder of the hostile aggression and overt racism
    displayed by the early federal government toward Native Americans as
    the government attempted to `assimilate' them into what was considered
    `modern society.'''
        Title 25 U.S.C. sec. 302 entitled Indian Reform School perhaps
    should be modernized and amended as follows:

             Strike the existing title and paragraph and insert a new title
            and a new paragraph: Education, Counseling Services and Other
            Assistance to Indian Children and Youth: The Secretary of the
            Interior, in consultation with and with the support of the
            Attorney General, the Secretary of Health and Human Services,
            the Secretary of Education, and Secretary of Labor, is
            authorized to provide education, counseling, training, family
            and community rehabilitation for Indian children and youth in
            need of services in BIA or tribal government custody,
            supervision or in court ordered foster placement. The Secretary
            of the Interior, in cooperation, coordination and with the
            support of the appropriate Attorney General, Secretary of
            Health and Human Services, and Secretary of Education, upon
            receipt of an appropriate plan acceptable to the Secretary of
            the Interior, authorize the tribal government to coordinate, in
            accordance with such plan, to consolidate its federally funded
            education, counseling, training, and community rehabilitation
            services for Indian children and youth in need of services in
            BIA or tribal government custody, supervision or court ordered
            foster care consistently and waive non-mandatory regulations as
            needed to integrate programs and services into a single
            coordinated, comprehensive program that improves performance
            and results and reduces administrative costs and burdens by
            consolidating functions.

        This provision would provide modernized services for Children and
    Youth in need of services in BIA or tribal custody, supervision or
    court ordered foster care in accordance with the principles of Public
    Law 102-477 (Indian Employment, Training and Related Services
    Demonstration Act of 1992).
        We agree that there is no place in our legal code for many of these
    laws today. For example, 25 U.S.C. sec. 72 provides for the Abrogation
    of treaties by the President, when an Indian tribe is in actual
    hostility with the United States. In the earlier post-Civil War era,
    the Constitution's 14th Amendment Citizenship Clause and amended
    Apportionment Clause acknowledged that the citizens of Indian nations
    were ``Indians not taxed,'' with allegiance to our own Indian nations
    and subject primarily to tribal jurisdiction, not directly ``subject to
    the jurisdiction'' of the United States. Today, we are United States
    citizens and citizens of our own Indian nations, and our treaties
    provide for perpetual peace, which we have sustained and protected
    through our active participation in the Armed Services of the United
    States for 140 years or more. Accordingly, this provision should be
    struck from the United States Legal Code.
        Title 25 U.S.C. sec. 127 provides for the withholding of annuities
    and appropriations under treaties to ``hostile Indians.'' As President
    Washington acknowledged in his Third Annual Address to Congress (which
    we call the State of the Union Address today) ``the main source of
    discontent and war'' was the alienation of Indian lands and the
    encroachment of non-Indians on reserved Indian lands. President
    Washington recommended ``provision should be made for inflicting
    adequate penalties upon all those who, by violating [Indian] rights,
    shall infringe the treaties, and endanger the peace of the Union.''
    Address From George Washington to the U.S. Senate and House of
    Representatives, 25 October 1791 (National Archives--Founders Online).
    In 1934, President Franklin Roosevelt acknowledged that too much land
    had been taken from our Indian nations, and provided an avenue for the
    restoration of Indian lands in 25 U.S.C. sec. 465, the land into trust
    process. Today, the United States and Indian nations are working to
    redress the loss of Indian lands through the Indian Land Consolidation
    Act, and the Cobell Buy-Back Program. Title 25 U.S.C. sections 127,
    128, 129, 130, 137, and 138 should be struck from the United States
    Code because these sections are antiquated and racist.
        Title 25 U.S.C. Section 273 and title 25 U.S.C. sec. 276 should be
    amended and consolidated. Strike the existing language and insert:
    Excess Federal Buildings and Real Property; Staffing. The Secretary of
    Defense, GSA and other Federal agencies are authorized to provide
    excess Federal Buildings, Land and Property with priority to Indian
    tribes that demonstrate educational or economic need for, or treaty,
    historical or geographical nexus to such properties; and the Secretary
    of Defense or other appropriate official may lend staff to said Indian
    tribe to assist in the transfer and rededication of such facility. By
    modernizing these provisions, Indian tribes can receive the benefit
    that Congress originally intended without the antiquated language that
    sends the wrong message about modern Federal--Tribal Relations to the
    public.
        Finally, in the spirit of Respect and Reconciliation, perhaps
    Congress can add a provision to call upon the President of the United
    States to issue a proclamation to announce the United States' Apology
    to Native Americans. On December 19, 2009, President Barack Obama
    signed the Native American Apology Resolution into law. Senator Sam
    Brownback (R-KS), sponsor of the bill, had it successfully added to the
    2010 Defense Appropriations Act, H.R. 3326, after five years of effort.
    The Section 8113 of the Defense Act, Public Law No. 111-118 is as an
    apology ``on behalf of the people of the United States to all Native
    peoples for the many instances of violence, maltreatment, and neglect
    inflicted on Native peoples by citizens of the United States.''
    President Obama has never formally issued or proclaimed the Apology
    although the Act: ``urges the President to acknowledge the wrongs of
    the United States against Indian tribes in the history of the United
    States in order to bring healing to this land.'' Such an Act deserves
    appropriate public recognition.
        In conclusion, the Sisseton-Wahpeton Oyate supports the passage of
    the RESPECT Act as amended. As Senator Rounds said, the RESPECT Act is
    ``one small step Congress can take to heal some of the wrongs imparted
    upon Native Americans by the Federal Government.'' Black Elk, our
    Lakota Holy Man said:

             You have noticed that everything an Indian does is in a
            circle, and that is because the Power of the World always works
            in circles, and everything tries to be round.. . . The Sky is
            round, and I have heard that the earth is round like a ball,
            and so are all the stars. The wind, in its greatest power,
            whirls. Birds make their nest in circles, for theirs is the
            same religion as ours.. . . Even the seasons form a great
            circle in their changing, and always come back again to where
            they were. The life of a man is a circle from childhood to
            childhood, and so it is in everything where power moves.

        President George Washington intended to respect Indian nations and
    Indian treaties when he entered into the first Indian treaties after
    the ratification of the U.S. Constitution in 1790. Today, with the
    leadership of the Senate Committee on Indian Affairs, Congress is
    returning full circle to the original respect for our Native Nations as
    America's original sovereigns.
        Again, thank you for the opportunity to testify on behalf of the
    Sisseton-Wahpeton Oyate.

        The Chairman. Thank you. I appreciate your testimony.
        We will next hear from Mr. Kasey Velasquez. I know you are
    substituting, but we appreciate you making it here and to be
    willing to give this testimony today.

        STATEMENT OF HON. KASEY VELASQUEZ, VICE CHAIRMAN, WHITE
                         MOUNTAIN APACHE TRIBE

        Mr. Velasquez. Good afternoon, Chairman Barrasso, Vice
    Chairman Tester, Senator McCain, and members of the Committee.
    Likewise, as my colleague, I would like to introduce myself in
    my Apache language.
        [Greeting in native tongue.]
        My name is Kasey Velasquez. I am Tribal Vice Chairman of
    the White Mountain Apache Tribe. I come to Washington, D.C.
    with prayers and culture, heritage adherence in our Apache
    language, acknowledgment for the White Mountain Apache Tribe.
        Chairman Lupe is recovering from being ill. As you guys all
    know, Chairman Lupe is a Korean War veteran, United States
    Marine Corps. He asked me to testify in his place and he sends
    his regrets.
        Thank you for this opportunity for the White Mountain
    Apache Tribe to testify in support of Senate Bill 2959, and
    thank you, Senator McCain, for introducing and moving this
    vital legislation.
        We also thank Senator Jeff Flake for his support of this
    amendment.
        Our people, the Apache people of the White Mountain Apache
    Tribe, have lived on our homeland in eastern Arizona since time
    immemorial. The headwaters of the Salt River system arises on
    our Reservation and merged to become the Salt River, which
    flows south to the Phoenix Valley. Water flowing from our land
    built the skyscrapers there.
        Ironically, despite hundreds of miles of streams on our
    land, our own economic development has been stifled by the lack
    of safe, clean, and reliable drinking water for our people,
    housing, schools, hospital, and Reservation residents. The
    reason is Mother Nature.
        We have very little groundwater on our Reservation; yet,
    14,000 people, almost our entire population, are dependent upon
    a declining well field that was built in 1999. The decline is
    not reversible. Production is down to half of what it was in
    1999. There is no recharge.
        There is also natural arsenic in our groundwater. We have
    to blend it to meet EPA standards. Drinking water must be
    hauled by hand in one community and piped into another.
        Congress, recognizing the White Mountain Apache Tribe Water
    Rights Act that our current and future drinking water needs
    could only be met by surface water and then by building a rural
    water system, including a dam, a small reservoir with 6,000
    acres feet of active storage, a treatment plant, and a 55-mile
    pipeline to deliver the treated water to our tribal
    communities.
        Section 312 of the White Mountain Water Rights Act
    authorizes up to $78.5 million in the settlement fund for
    water-related economic development projects. Among other listed
    purposes, Congress gave us broad discretion on how to use the
    $78.5 million.
        Last year our engineer consultants discovered previously
    unknown potential seepage and stability conditions to the
    foundation material at the dam site. They advise that there
    will be a construction cost overrun to build the dam and
    reservoir. We are certain, however, that any cost overrun will
    not exceed the total amount authorized in the Water Rights Act
    for the rural water system, the settlement fund, and for cost
    overruns.
        We have always understood that the funding authorized by
    Congress for water-related economic development projects would
    naturally include using money from settlement funds, if
    necessary, to pay for any cost overrun to complete the rural
    water system, a water-related economic development project on
    its own. We therefore became concerned that the Department of
    Interior indicated that it was not absolutely clear from its
    perspective whether the settlement fund could be used for a
    cost overrun to build the rural water system. Enacting bill
    2959 will ensure the Interior that the settlement fund, as
    needed, can be used to complete the rural water system.
        As I testify before you today, I am mindful of an image and
    a hope that I have held for years that I would be fortunate,
    and our tribal members to be fortunate to live long enough to
    see a child or adult in the community of Carrizo casually open
    a faucet on a kitchen sink to fill a glass of water, something
    they cannot do today.
        Thank you. I am ready to answer any questions you may have.
        [The prepared statement of Mr. Lupe follows:]

    Prepared Statement of Hon. Ronnie Lupe, Chairman, White Mountain Apache
                                     Tribe
        Chairman Barrasso, Vice Chairman Tester, Senator McCain and members
    of the Committee: Thank you for the opportunity to testify in support
    of S. 2959--A Bill to amend the White Mountain Apache Tribe Water
    Rights Quantification Act of 2010 to clarify the use of amounts in the
    WMAT Settlement Fund.
        My name is Ronnie Lupe, and I am the Tribal Chairman of the White
    Mountain Apache Tribe. We live on the Fort Apache Indian Reservation
    upon aboriginal lands which we have occupied since time immemorial. Our
    Reservation is located about 200 miles Northeast of Phoenix in the
    White Mountain Region of East Central Arizona.
        The Tribe's current water sources and infrastructure have been and
    continue to be grossly inadequate to meet the current demands and needs
    of our reservation communities. Fortunately, subsequent to our agreeing
    to a quantification of our aboriginal and federally reserved water
    rights in 2009 with various state parties following decades of
    litigation, Congress enacted the White Mountain Apache Tribe Water
    Rights Quantification Act \1\ (``Quantification Act'')(P.L. 111-291).
    The cornerstone of that Act, which confirmed the 2009 Water Rights
    Quantification Agreement and Settlement, is the authorization for the
    design and construction of the White Mountain Apache Tribe Rural Water
    System (the ``Rural Water System'')(P.L. 111-291), which will bring
    desperately needed safe and reliable drinking water to our Tribe and
    its members.
    ---------------------------------------------------------------------------
        \1\ The White Mountain Apache Tribe Water Rights Quantification Act
    became Title III of the Claims Resolution Act of 2010 (the ``Act'').
    P.L. 111-291.
    ---------------------------------------------------------------------------
        S. 2959 will clarify the intent of a provision in the Act
    concerning the Rural Water System and enable us to shift some amounts
    of already authorized spending among authorized activities.
    Specifically, the legislation would clarify Congress's intent to allow
    the Tribe to use the existing authority under Section 312(b)(2) of the
    Act for ``water-related economic development'' projects to complete the
    construction of the Rural Water System.
        If this issue is not resolved, the completion of the Rural Water
    System project will be threatened, thereby increasing the ultimate cost
    to the United States and delaying the delivery of life-sustaining
    drinking water to our reservation communities.
    Fort Apache Indian Reservation and the Tribe's Reserved Water Rights
        The Tribe holds full beneficial title to 1.66 million acres of
    trust land in the east central highlands of the State of Arizona. The
    Tribe's Fort Apache Indian Reservation was established by Executive
    Order in 1871. We have retained actual, exclusive, use and occupancy of
    our aboriginal lands within the boundaries we agreed to and later
    designated by the Executive Orders dated November 9, 1871 and December
    14, 1872, without exception, reservation, or limitation since time
    immemorial. The Tribe's vested property rights, including its
    aboriginal and other federal reserved rights to the use of water, often
    referred to as Winters Doctrine Water Rights, that underlie, border and
    traverse our lands, have never been extinguished by the United States
    and are prior and paramount to all rights to the use of water in the
    Gila River drainage, of which the Salt River is a major source.
        Except for a small portion of the Reservation that drains to the
    Little Colorado River Basin, virtually our entire Reservation drains to
    the Salt River. The headwaters and tributaries of the Salt River arise
    on our Reservation and are the principal sources of water for the
    Tribe, and the greater metropolitan Phoenix area. Specifically, 78
    percent of the water in Theodore Roosevelt Reservoir located north of
    the Phoenix Valley is contributed from our reservation; at Saguaro Lake
    reservoir, further South, 60 percent of the water is contributed from
    our reservation; and below the confluence of the Verde River and Salt
    River, near Granite Reef Dam, Scottsdale, 42 percent of the water comes
    from our reservation. The importance of achieving implementation of our
    2009 Water Rights Quantification Agreement is essential to the well-
    being of the White Mountain Apache Tribe and the downstream water users
    in the Phoenix Valley.
    White Mountain Apache Tribe Water Rights Quantification Act of 2010
        In 2010, this Congress approved the historic White Mountain Apache
    Tribe Water Rights Quantification Act as part of the Claims Resolution
    Act of 2010 (P.L. 111-291). The legislation was sponsored in by Senator
    McCain, now-retired Senator Jon Kyl, and the entire Arizona delegation
    in the House. Importantly, the Act was budget neutral.
        The Quantification Act resolved the Tribe's water related damage
    and reserved water rights claims against the United States, the State
    of Arizona, and a number of state parties in regards to rights in the
    Little Colorado River and the Gila River (Salt River and Tributaries
    thereto). In consideration for the Tribe waiving its water related
    claims and prior reserved rights, the Act authorized funding for the
    construction of the Rural Water System comprised of a dam and
    reservoir, treatment plant, and a 55 miles of pipeline to serve
    virtually every reservation community. In addition, the Act also
    authorized funding for, among other things: (1) cost-overruns for the
    Rural Water System (Sec. 312(e)) and (2) ``water-related economic
    development projects'' as part of the WMAT Settlement Fund (Sec.
    312(b)).
        The White Mountain Apache Tribe Water Rights Quantification
    Agreement, which was respectfully negotiated amongst all parties, was
    formally approved by the White Mountain Apache Tribe and all parties,
    including the Secretary of the Interior, and subsequently approved by
    the Superior Courts (Apache County and Maricopa County Superior Court)
    of the State of Arizona on December 18, 2014. The White Mountain Apache
    Tribe Water Rights Quantification Settlement Judgment and Decree was
    filed in Maricopa County and Apache County on March 15, 2015. The
    Judgments and Decrees become enforceable on the date that the White
    Mountain Apache Tribe Water Rights Quantification Act becomes
    enforceable with the publication by the Secretary of the Record of
    Decision allowing the construction of the Rural Water System project to
    go forward.
    The Tribe's Drinking Water Crisis
        The driving force behind the 2009 water rights settlement and the
    2010 Quantification Act was the long-standing need to provide a
    reliable and safe water supply and delivery system to the members of
    the White Mountain Apache Tribe. The Tribe and Reservation residents
    are in urgent need of a long-term solution for their drinking water
    needs. Currently, the Tribe is served by the Miner Flat Well Field.
    Well production has fallen sharply and is in irreversible decline. Over
    the last decade, well production has fallen by 50 percent. A small
    diversion Project on the North Fork of the White River was constructed
    several years ago to compensate for the precipitous loss of well
    production, but was only a temporary fix and drinking water shortages
    remain a chronic problem. The Tribe experiences annual summer drinking
    water shortages, and there is no prospect for groundwater recovery as
    there is little or no groundwater on the reservation. The quality of
    the existing water sources threatens the health of our membership and
    other Reservation residents, including the Indian Health Service
    Regional Hospital and State and Bureau of Indian Affairs schools. The
    only viable solution is the replacement of failing groundwater
    resources with surface water from the North Fork of the White River.
        Without reservoir storage behind Miner Flat Dam, a feature
    authorized by the Act, the stream flows of the North Fork of the White
    River, supplemented by short-term capacity of the Miner Flat Well
    Field, are together inadequate to meet current, much less future,
    community demands of the White Mountain Apache Tribe in the Greater
    Whiteriver Area, Cedar Creek, Carrizo, and Cibecue and to maintain a
    minimum flow in the North Fork of the White River. The demands of the
    Tribe for its Rural Water System will literally dry up the North Fork
    of the White River before 2020, even in combination with a supplemental
    supply from the Miner Flat Well Field. Therefore, Miner Flat Dam is
    necessary to store 6,000 acre feet of water during runoff periods for
    release and enhancement of the North Fork of the White River to not
    only meet demands of the Reservation Rural Water System but to maintain
    a minimum flow required for aquatic and riparian habitat preservation
    and enhancement.
        In sum, the Rural Water System will replace the failing and
    terminal groundwater well system and enable the Tribe to construct a
    secure, safe and reliable drinking water supply for the current 15,000
    White Mountain Apache Tribal members and residents living on our
    Reservation and to meet the increasing drinking water needs of the
    Reservation for a future population of nearly 40,000 persons in the
    decades to come.
    Need for Technical Clarification
        After passage of the Act, the Tribe continued, with a loan from
    Reclamation, with work on the design and geotechnical work for the
    proposed dam site of the Rural Water System. In the course of this
    work, the Tribe's consulting engineers discovered potential seepage and
    stability conditions in the foundation material at the dam site than
    had not been previously known. The cost-overrun funding necessary to
    address these design and construction issues will in no event be
    greater than the total amounts authorized in Sections 312(a), (b), and
    (e), of the Act which respectively authorized the Rural Water System,
    the WMAT Settlement Fund, and cost-overruns for the System.
        The WMAT Settlement Fund authorized in Section 312(b)(2) of the
    legislation was written sufficiently broad to authorize the use of the
    fund for cost-overruns. Consistent with the goals of self-determination
    and self-sufficiency, Congress intended the Tribe to have wide
    discretion on how to use and prioritize any of the authorized uses in
    Section 312(b)(2)(C), which, as noted, includes the very broad category
    of ``water-related economic development projects.'' This intent that we
    would have wide discretion on the use of these funds has always been
    our understanding and we have relied on that belief. Since the Rural
    Water System will serve a number of water-related activities from
    housing to hydropower, it fits squarely within the Settlement Fund's
    authorized purposes. For example, the System will provide: (1) water
    for new and existing housing on the reservation; (2) water for existing
    irrigation; (3) the ability to expand irrigation (approximately 2,000
    acres); (4) improvements to the Alchesay fish hatchery; (5) lake-based
    recreation for fishing and non-motorized boats; and (6) the potential
    for small-scale hydro-electric (approximately two megawatts). Given the
    importance of the Rural Water System and its economic development
    purposes, the Tribe is willing to use this existing authorization to
    complete the Rural Water System in lieu of other development
    alternatives listed in Section 312(b).
        Recognizing that the Rural Water System was the cornerstone of the
    Act, Congress provided sufficient flexibility in its funding
    authorization to ensure that funding for the Rural Water System could
    be accessed from various authorizations, including Sections 312(a),
    (b), and (e). The Secretary is only authorized to require changes to
    the design of the Rural Water System if it cannot be constructed ``for
    the amounts made available under Section 312.'' Sec. 307(c)(2)(B)(iii).
    Section 307 does not limit how funds within Section 312 can be used,
    nor was it intended to.
        Notwithstanding the language of the Act, the Department of the
    Interior has indicated that it is not absolutely clear (from its
    perspective) whether the Settlement Fund can be used for the System's
    cost overruns. Consequently, a technical amendment is necessary to
    clarify that authorization authority exists in Section 312(b) for any
    necessary cost-overruns associated with the WMAT Rural Water System.
        The importance of our water rights settlement and the WMAT Rural
    Water System to the health and welfare of our people cannot be
    overstated. We must ensure its timely design and completion by
    resolving the cost issue within the Act's existing authorization now,
    not later. This legislation would clarify that we have the necessary
    authorization to complete the project. If it is not resolved, the
    completion of the project will be threatened, thereby increasing the
    ultimate cost to the United States and delaying the delivery of life-
    sustaining drinking water to our reservation communities.

        The Chairman. Thank you so much for your testimony today.
        Now, Mr. Vernon Finley.

              STATEMENT OF HON. VERNON FINLEY, CHAIRMAN,
            CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE
                          FLATHEAD RESERVATION

        Mr. Finley. [Greeting in native tongue.]
        Chairman Barrasso, Vice Chairman Tester, members of the
    Committee, I thank you for providing me the opportunity to
    provide some testimony to you today. I would like to begin by
    thanking Senator Tester for the introduction of S. 3013. Not
    only this bill, but for all of the things that you have done
    for Indian Country throughout the State of Montana.
        I have to admit that I had my doubts when you were elected
    and here was this rancher from over the mountains in Flattop. I
    had my doubts whether the Nations within the State of Montana
    would be well represented, and I am very honored to testify
    today that I was proven very wrong. So thank you very much, not
    only for us, but for all of the folks in Montana. You represent
    the entire State very well, and thank you very much.
        Senator Tester. Thank you.
        And I am sure Senator McCain was paying close attention.
        [Laughter.]
        Senator McCain. It was wonderful testimony, Mr. Finley.
        [Laughter.]
        Mr. Finley. Would you start my five minutes?
        [Laughter.]
        Mr. Finley. This bill represents exactly what I was just
    talking about. There was a lot of time put into this bill to
    get it here, to what it is today.
        Since time immemorial, our Nations have traveled throughout
    western Montana, throughout most of Montana and Wyoming and
    Idaho and British Columbia, and have utilized the waterways.
    The waterways were actually our highways before any of the
    current highways or any of the travel currently existed.
    Utilizing the waterways meant that we depended upon the fish,
    and so when these negotiations started about 12 years ago,
    there was one important part that the elders brought forward to
    the people, brought forward to the negotiating team, and they
    stressed that the elders said protect the water, protect the
    water, and with that they were meaning all of the things and
    how much we depend upon it.
        The United States Government, by signing a treaty with us
    in 1855, promised us that throughout our aboriginal territory
    that we would be able to utilize and practice all of our
    traditional practices throughout our homeland and all of our
    custom territory. We would also be able to, within the
    Reservation, have the exclusive right within the boundaries of
    the Reservation, we would have the exclusive right for fishing.
        Immediately upon afterwards, by opening up the reservation
    to homesteading and the construction of the Flathead irrigation
    project, what happened was they created an irrigation system
    that went entirely along the mountain front and dissected every
    single stream, every single stream that comes throughout our
    valley from the south to the north. They went to the west side
    of the Reservation and did the same thing.
        And with the construction of that project, it had severe
    effect, severe effect on our treaty right. When we signed the
    treaty, the United States Government accepted the
    responsibility of being our trustee, and with that action, with
    those actions since then has violated that trust
    responsibility.
        Throughout the history of time since that time, there have
    been numerous actions that have infringed upon those rights.
    Now, this bill and the past 12 years of negotiations was a
    culmination of the State of Montana, the people in Montana, the
    Tribes to sit down and to negotiate and to come to an agreement
    about what is the best use and what is the best way forward in
    order to resolve all of our water responsibilities, so I
    strongly urge the Committee and the Senate to approve this
    legislation.
        Thank you again, Mr. Tester.
        [The prepared statement of Mr. Finley follows:]

    Prepared Statement of Hon. Vernon Finley, Chairman, Confederated Salish
                and Kootenai Tribes of the Flathead Reservation
        Chairman Barrasso, Vice Chairman Tester and members of the
    Committee, the Confederated Salish and Kootenai Tribes of the Flathead
    Reservation are very pleased to appear before you in strong support of
    this legislation which begins a process to heal the wounds to our
    people caused directly by over a century of destructive federal
    policies and failures by the United States to protect our federally
    reserved water rights, fishing rights and natural resources on our
    Reservation. This bill resolves existing and potential litigation
    involving thousands of litigants, settles costly claims by the Tribes
    against the federal government and water users across roughly two-
    thirds of Montana, and provides future certainty for all Montanans and,
    indeed, all Americans. It also makes federal investments that will
    rehabilitate and modernize decaying infrastructure in order to provide
    water to our Tribal members as promised by Congress over a century ago,
    will restore natural resources and fisheries within our Reservation,
    and will provide an overall savings to the taxpayers. The value of the
    Tribes' waived claims under this bill is over 14 times higher than the
    total cost of the proposed settlement, according to nationally-
    recognized engineers, hydrologists, scientists and economists.
        No natural resource is more vital to our Selis, Ksanka and Qlispe,
    people than water--the importance of water to our people is woven into
    all aspects of our lives. We are a fishing people. For thousands of
    years, the Bitterroot Salish, Kootenai and Upper Pend d'Oreille,
    thrived in our aboriginal homeland situated in what is now Montana,
    Idaho, British Columbia and Wyoming, subsisting off of healthy native
    fisheries, plants, and wildlife. But over the course of the last one
    hundred fifty years, federal policy endeavored to sever our
    relationship with water and failed utterly to protect our federally
    reserved water rights--instead diverting that water and seizing our
    resources for the benefit of non-Indians.
        Our Reservation is located in northwestern Montana, west of the
    continental divide. Under the Treaty of Hellgate of July 16, 1855, the
    Confederated Salish and Kootenai Tribes (``Tribes''), which includes
    the Upper Pend d'Oreille, ceded over 20 million acres of land in return
    for a permanent homeland on the 1.3 million-acre Flathead Reservation.
    And, in the Hellgate Treaty, the United States guaranteed the Tribes
    that the Flathead Reservation would be set-aside for our ``exclusive
    use and benefit.'' ``[T]he Reservation was a natural paradise for
    hunting and fishing.'' Conf. Salish and Kootenai Tribes v. United
    States, 437 F.2d 458, 478 (Ct. Cl. 1971).
        In that Treaty, the Tribes also reserved ``the exclusive right of
    taking fish in all the streams running through or bordering said
    reservation,'' and ``the right of taking fish at all usual and
    accustomed places. . . .'' Ours is the only treaty in Montana reserving
    off-reservation fishing rights--a more common practice in treaties with
    tribes in Washington and Oregon--rights that have been repeatedly
    upheld by the United States Supreme Court.
        However, in the century after the promises made in the Hellgate
    Treaty, the United States broke its word and diminished the tribal land
    holdings to less than one-fifth of the 1.3 million-acre Reservation
    that had been reserved under the Treaty. In 1904, over the Tribes'
    strenuous objection, Congress enacted a statute that opened much of the
    Reservation to non-Indian settlement, and promised to use the proceeds
    from the sale of reservation lands to develop an irrigation project
    ``for the benefit of said Indians.'' But, in fact, in a blatantly
    transparent breach of its trust responsibility to the Tribes, the
    United States constructed the Flathead Indian Irrigation Project to
    provide water to, almost exclusively, the non-Indian homesteaders. The
    measure of damages sustained by the Tribes and its resources caused by
    this breach of trust is approximately $4 billion.
        For over 100 years the operation of the Project created--and still
    creates--an environmental catastrophe on our Reservation. It diverts
    water from most mountain streams on our Reservation--like Mill and
    Sullivan Creek that flow into the Little Bitterroot River--dewatering
    them and destroying the native fisheries and fish habitat. For example,
    the diversion of streams and creeks for the Project has led to complete
    dewatering of streams in some places, erosion and elimination of
    natural wetlands throughout the Reservation well beyond the actual
    footprint of the Project. The Project's inefficiencies and polluted
    return flows have created severe water quality issues that threaten
    endangered species. Fish native to the Reservation like westslope
    cutthroat trout have been evaluated for listing under the Endangered
    Species Act, and others, like bull trout, have been listed as
    threatened.
        These federal actions had and continue to have disastrous impacts
    on our Tribal people that this legislation will finally begin to
    correct. The Tribes decided to negotiate the Water Compact--that this
    legislation will approve--rather than litigate our federally reserved
    water rights because we think no good can come from decades-long
    litigation, with millions of dollars in legal costs for the Tribes,
    non-Indians and the federal government. Protracted litigation would
    only serve to cloud title to and likely place significant limitations
    on water availability and usage throughout two-thirds of Montana. So
    for the last two decades, the Tribes negotiated this settlement with
    the Montana Reserved Water Rights Compact Commission, an entity created
    by the State Legislature in 1979 to negotiate federally reserved water
    rights claims throughout the state.
        In 2015, the Montana Legislature enacted Senate Bill 262, ratifying
    the Water Rights Compact between the Tribes, the State of Montana and
    the United States. The Compact has strong bipartisan support and
    Governor Steve Bullock signed it into law on April 24, 2015.
    Recognizing the benefits, and the time-sensitive nature of the Compact,
    the State of Montana has already begun appropriating its share of the
    funding. Once fully appropriated, Montana's $55 million contribution to
    the Tribes' settlement will be the largest of state contribution to any
    Indian water settlement in the Nation. Approval of the Compact through
    this bill will secure the Tribes' water right while protecting existing
    non-Indian water uses, and allow parties to develop and implement water
    using homegrown creative solutions based on local knowledge and values.
        This bill will also have a positive impact on Tribal members, the
    Reservation, and indeed all of Western Montana, addressing the many
    needs of the decrepit, century-old BIA irrigation project. This
    includes upgrading the federal facility to comply with the Endangered
    Species Act. If the Tribes could rewrite history, this Project would
    have never been constructed. However, we cannot rewrite history. We can
    only go forward. And the only way that we can undo the damage that this
    Project has caused to our lands and resources, is to repair this
    federal facility in order to halt and reverse the destruction that it
    has caused. This will also result in benefits to the agricultural
    economy within the Reservation by improving water use efficiency, and
    will ultimately restore our natural resources by improving instream
    flows for fisheries--helping farmers, ranchers, and both recreational
    and subsistence fishermen. The alternative is to leave this federal
    facility as it is and let it continue to degrade our lands and our
    resources leading to eventual and complete destruction of our fisheries
    and way of life. This is entirely unacceptable to us.
        By ratifying the Compact, which quantifies the Tribes' reserved and
    aboriginal water rights, this legislation will bring certainty to
    stakeholders in the region regarding their water rights. Further, in
    recognizing the federal government's neglect and mismanagement of the
    Tribes' resources, this legislation is an effort to move forward in a
    constructive way and bring a positive change to the Reservation to
    protect our Treaty rights and resources. The positive change that will
    be realized by our Tribes through approval of S. 3013, falls into five
    categories. First, the legislation will provide necessary funding to
    implement the Compact. For example, funding will be provided to
    register, monitor and enforce the Tribes' water rights, support
    fisheries programs, and carry out water measurement activities for the
    Flathead Indian Irrigation Project.
        Second, the legislation will rehabilitate and modernize the
    dilapidated Flathead Indian Irrigation Project and remediate Tribal
    natural resources within the Reservation that have been devastated by
    the Project. These activities will ensure future responsible management
    of federal infrastructure by applying modern technology to improve
    efficiency for the advancement of agriculture and industry. At the same
    time this work will restore severe damages sustained to the
    Reservation's ecosystem and habitat by restoring wetlands, addressing
    noxious weeds and erosion issues across the Reservation, and revitalize
    and restore important in-stream flows for the restoration of a healthy
    native fishery.
        Third, the bill will sustain the Tribal agricultural economy into
    the future by investing in Tribal agricultural resources and
    infrastructure commensurate with past investments to non-Indian
    agriculture in order to promote the advancement of the region's
    economy. The primary focus will be on strengthening the sustainability
    of tribal agricultural projects, which is key to contributing to Tribal
    economic development and the creation of jobs, while ensuring
    protection of the Reservation's ecosystem.
        Fourth, the legislation will ensure safe, reliable drinking water
    and wastewater systems on the Reservation, thereby promoting economic
    development throughout the Reservation. Through the implementation of
    the Tribal water right, drinking water and wastewater systems will be
    improved and brought to modern standards ensuring the protection of the
    quality of Reservation surface and ground water.
        Finally, a critical component of the bill invests in the Tribes'
    endeavor to repair and rebuild Tribal culture and language decimated by
    misguided federal water policies of the past. Because we are fishing
    people, the destruction of our waters and fishery has had an enormous
    impact on our language and culture. As we start to rehabilitate and
    restore our waterways and natural resources we must also have the
    resources to teach traditional ways and language to our members, adults
    and children alike. This will ensure true Tribal self-determination and
    self-sufficiency for generations.
        The Compact also contains new and creative concepts such as the
    Unitary Management Ordinance for the practical administration of non-
    Indian and Indian water rights within the Reservation, which includes
    the establishment of the independent Flathead Reservation Water
    Management Board. Meandering streams know no political boundaries, so
    instead of having water rights disputes dispersed to various courts
    based on land status, approval of the Compact will allow for unitary
    management by the management board with a cross section of non-Indian
    and Indian stakeholders serving on it. The Compact includes provisions
    assuring that irrigators remain entitled to the right to the verified
    use of water that they have historically put to beneficial use.
        During the nearly ten years of negotiations at the state level,
    many compromises were made in order to reach consensus. This resulted
    in a compact that ultimately reflects a win-win situation for the
    Tribes, the State of Montana and the United States, as trustee for the
    Tribes, regarding the ownership, use and management of much of the
    water in Northwest Montana. The Compact reflects what can happen when
    stakeholders work in earnest to seek resolution that can bring a true
    measure of justice and satisfaction to the parties involved.
        The federal settlement presented in S. 3013 provides an opportunity
    for the federal government to authorize a contribution to this
    settlement, both in its capacity as trustee and as the entity most
    responsible for causing the damages that have resulted from the past
    and current federal policies. In addition, S. 3013 allows the United
    States to finally honor its obligations to the Tribes and our members.
        While non-Indians, and the larger non-Indian society, benefitted
    from the taking of Confederated Salish and Kootenai Tribal lands and
    waters, Tribal members bore--and continue to bear--the brunt of the
    costs and damages. Approval of S. 3013 will bring peace in a part of
    Montana, where there has been controversy for over 100 years, and will
    be a win-win for all parties.
        We are grateful to this Committee and its leadership for working so
    hard to find mechanisms to fund Indian water settlements and
    operational, maintenance, and modernization costs of both existing and
    new water and irrigation projects. We thank Chairman Barrasso for his
    leadership on these matters and are grateful to our Senator, Vice
    Chairman Tester, for introducing this historic legislation. I will be
    happy to answer any questions you may have and hope the Committee will
    report this legislation favorably to the Senate.

        The Chairman. Well, thank you so much for your testimony.
        We are now going to have a round of questions and we will
    start with Senator Daines.
        Senator Daines. Thank you, Mr. Chairman.
        Chairman Finley, in your testimony you note that CSKT
    decided to negotiate the water compact versus litigate reserved
    water rights, and you discuss a number of benefits that the
    ratified compact will bring to the Tribes. As you think about
    the benefits, which are most important to you?
        Mr. Finley. Could you repeat that last part, please?
        Senator Daines. Yes. As you look at the benefits that the
    ratified compact will provide versus litigation, so forth, was
    the other path to go down, when you think about the benefits,
    which do you think are most important to you and your people?
        Mr. Finley. I think the most important part of it is not
    only the protection of the water, but there are multiple
    things, the important part being the protection of the water,
    but also the Salish and Kootenai Nation has always proven to be
    a good neighbor, a good neighbor to all of our friends. Even
    though our Reservation was opened up to homesteading, opposites
    are married to one another. My grandmother used to always tell
    me that. Opposites are married. And with all of the things,
    from one perspective you could look at that opening of the
    Reservation as an extreme negative, but there were also
    positives that came along with it. We also respect the economic
    benefits that have come with the integration.
        But there are always a lot of problems with it, a lot of
    issues. Being a good neighbor, you know, there is a saying out
    there that strong fences make good neighbors. Well, in our
    respect, the process of negotiating this compact has really
    built some strong fences. So we have been able to sit along
    with our neighbors, and the benefit for everybody is that it
    provides certainty. It provides certainty, as opposed to
    decades and decades of litigation. That is really the primary
    advantage to it.
        Thank you for the question, Mr. Daines.
        Senator Daines. Thank you, Mr. Chairman.
        I want to bring the question over to Ms. Belin. And, again,
    thanks for your commitments working with the Blackfeet water
    settlement. And I hope we can get that across the finish line
    this Congress. I know you were challenged to justify the $420
    million price tag authorizing the Blackfeet settlement and, in
    fact, had to cut authorized spending from the Blackfeet Tribe's
    original request, which was nearly $600 million in
    authorizations.
        Ms. Belin, what were the Department's thoughts when you saw
    the price tag of the CSKT water compact?
        Ms. Belin. Well, it is a significantly higher price tag
    than any enacted water settlement to date. It is obviously a
    substantial Federal price tag, and to date we have not
    negotiated Federal contributions at all; and we intend to do
    that with the Tribe and the other parties just as soon as we
    can get to it.
        Senator Daines. How will the Federal Government cover those
    costs?
        Ms. Belin. Well, in the past the Federal Government has
    been covering the cost through a combination, I guess in the
    2010 Claims Resolution Act there was a combination of mandatory
    funding and funding out of our budgets. Now I am blanking on
    the name of the fund that got set up in 2009 that will provide
    $120 million of Federal funding for each of 10 years in a row
    that will be used, and some of that will likely be available
    for the CSKT.
        Senator Daines. I want to move to page 2 of your written
    testimony. I noted it says here, ``The issues surrounding these
    claims have been among the most contentious to be addressed to
    date in a tribal water settlement.'' Could you expand on that
    statement and what, in the Department's view, about this tribal
    water settlement is more contentious than the others?
        Ms. Belin. Well, I think the Chairman addressed one set of
    issues that I have not seen in another settlement, which is the
    whole issue of the Tribes' water rights to instream flows on
    the Reservation, and the fact that the water projects got
    constructed largely for non-Indian use. Removing the instream
    flows on the Reservation is a major, major issue. I am not
    aware of any precedent for that, so that creates a whole set of
    issues of trying to balance the need to protect existing uses
    of the water project water, at the same time to restore health
    of instream flows. That is quite complex and that will be the
    major difference that I would point to.
        Senator Daines. Okay. Thank you. I am out of time.
        Thank you, Mr. Chairman.
        Senator Barrasso. Thank you, Senator Daines.
        Senator McCain.
        Senator McCain. Thank you, Mr. Chairman.
        Ms. Belin, I want to thank you for attending the summit in
    Phoenix, Arizona this March to work with Governor Ducey,
    Senator Flake, Navajo President Russell Begaye, and Hopi
    Chairman Herman Honanie, in the Little Colorado River
    Settlement negotiations. You were good enough to come to
    Arizona, and we appreciate all the help that you have given us.
        I understand in your opening statement that you need
    additional data from the Tribe, and I understand that and I
    appreciate it. But can I confirm that you support the goal of
    the Administration, which is clearly in the original
    legislation, which is to complete the Miner Flat Dam?
        Ms. Belin. Senator McCain, we strongly and absolutely are
    committed to the settlement. We strongly believe in it. We will
    get it implemented. Just this morning we met with the Vice
    Chairman and his team, and I understand that as soon as next
    week the information that the Bureau of Reclamation has been
    requesting will be made available. We have already set up a
    meeting, or at least a phone call, for the following week. We
    are firmly committed to implementing the settlement; we think
    it is an excellent settlement.
        Senator McCain. Well, I appreciate that testimony very
    much. Not to repeat the obvious, but the dam was part of the
    settlement that we need to honor.
        Mr. Velasquez, these are facts. The wells on the
    Reservation have declined by 50 percent. True? The groundwater
    wells on the Reservation have declined by 50 percent.
        Mr. Velasquez. Yes.
        Senator McCain. Parts of the North Fork of the White River
    will be reduced to a trickle by 2020.
        Mr. Velasquez. Yes.
        Senator McCain. The Tribe's population is around 15,000
    today and is expected to grow to 40,000 in the coming decades.
        Mr. Velasquez. Yes, sir.
        Senator McCain. Under the present circumstances, there is
    no way you are going to have an adequate water supply without
    the construction of that dam.
        Mr. Velasquez. Most definitely.
        Senator McCain. It seems to me that gives it some time
    sensitivity associated with this legislation.
        Mr. Velasquez. Yes, very important.
        Senator McCain. Well, I just want to assure you that a lot
    of treaties have been broken, a lot of agreements have been
    broken, as we all know, throughout our history of our relations
    with Native Americans. But it is very clear here that we need
    to get this dam built if your Tribe is going to have the
    lifestyle which is dictated by an adequate supply of water. So
    you have mine and Senator Flake's commitment, and I am sure the
    other members of the Committee share your concern and our
    priority.
        Mr. Velasquez. Thank you, Senator McCain. Most importantly,
    as I sit here addressing information for the people of the
    White Mountain Apache Tribe, I know for a fact the White
    Mountain Apache Tribe and the tribal members have the utmost
    respect for you, sir.
        Senator McCain. Well, thank you. And I want to invite
    Senator Barrasso and Senator Tester out to visit the White
    Mountain Apache Tribe, which is one of the most beautiful parts
    of our State, far more beautiful than anything in their States.
        [Laughter.]
        Senator McCain. Mr. Flute, again, I want to thank you, sir,
    for your kind remarks and thank you for your service. I might
    mention that Chairman Ronnie Lupe also had a distinguished
    Marine Corps career, as well.
        Thank you, Mr. Chairman.
        Senator Barrasso. Thank you, Senator McCain.
        Senator Tester.
        Senator Tester. Thank you, Mr. Chairman.
        I am going to start out with you, Ms. Belin. Your testimony
    stated you can't support the CSKT legislation as introduced,
    and that we are just getting started, just getting started for
    sure. I guess the real question is does the Administration
    support the goal of coming to a final resolution and getting to
    a final settlement of the CSKT water rights.
        Ms. Belin. That would be most definitely yes. We believe
    that we support the compact, we support all the aspects that
    have already been negotiated in relation to that, and our
    negotiation team has worked very hard with the Tribe and the
    State over several years on all those aspects of the
    settlement, and we are ready to jump in and work on the Federal
    contribution aspect.
        Senator Tester. Okay.
        The Chairman talked about it in his opening statement and I
    just kind of want to go over it with you, Chairman Finley. Your
    statement says that there was an irrigation project developed
    about 100 years ago that basically bisected all the streams and
    stopped that water from flowing onto your Reservation. Is that
    an accurate representation?
        Mr. Finley. Most of the streams were completely de-watered
    at one point, but at least minimizes the flow of most of them,
    yes.
        Senator Tester. And that happened 100 years ago, right?
    That project was put in 100 years ago.
        Mr. Finley. Correct.
        Senator Tester. Okay.
        Now I want to go back to you, Ms. Belin. We can call it
    anything we want, but it is part of the water project, it is
    part of the water compact. And I am not putting you on the
    spot, but I kind of am, have you ever dealt with a water
    compact that basically dealt with an issue like this, where the
    water was diverted away from the Reservation?
        Ms. Belin. As I said to Senator Daines, no. I think this is
    a unique complication that we have to actually protect the
    diversions out of the streams and we also have to protect the
    flows in the streams. That is very challenging.
        Senator Tester. So let's get right to it. Do you think a
    water compact is the appropriate place to place, this is
    probably the wrong word, but I am not a lawyer, damages as it
    applied to 100 years of wrongdoing?
        Ms. Belin. I am sorry, do I think that a water compact is?
        Senator Tester. The right place to place a monetary sum of
    money to take care of 100 years of what, quite frankly, if it
    were done today, the outfit that built that canal would
    probably be out of business the minute they put a shovel in the
    ground. Because you just don't divert water like that in this
    day and age; you don't stop fisheries from happening; you don't
    do a lot of stuff. So I guess my question is you have never
    dealt with it before in another compact. Obviously complicates
    it a little bit.
        But I will just tell you my thought. It would seem to me
    that this compact is a much better place to deal with this and
    get it taken care of than in the courts. So for the same reason
    that this water compact system was set up, to keep people out
    of court, to bring people together, to build the kind of groups
    that can make this happen. So I am just trying to get an idea
    if the Department is open to really talking about this being a
    part of this bill or if you guys have a problem with it.
        Ms. Belin. First of all, yes, this is a far better
    structure for solving this problem. Litigation does not solve
    these kinds of problems.
        Senator Tester. Right.
        Ms. Belin. Litigation goes on. In fact, having to do with
    CSKT and the water rights, I can't even count how many lawsuits
    there have been over decades, and the problems are not solved.
    So we know that doesn't work.
        We also know, at least the Department strongly believes the
    compact that has already been negotiated sets an excellent
    framework for an overall solution.
        Senator Tester. Okay. So that leads me to almost my last
    question before I make a comment, actually, and that is we
    talked about Blackfeet introduced three years ago. This one
    today a little more complex, but nothing that smart people
    can't figure out. What kind of timeframe do you think we should
    reasonably expect you coming to an agreement with CSKT and CSKT
    coming to an agreement with you so that Congress can deal with
    it? Do you think we can do it in three years, two years, one
    year?
        Ms. Belin. If I say yes, I will probably get something
    thrown at me from behind, because those are the people who are
    doing the work.
        Senator Tester. Walk on this side of the table; they can't
    reach you here.
        [Laughter.]
        Ms. Belin. I think, given the fact that we have come so
    far, barring unforeseen developments, I don't see why we
    couldn't do it in that timeframe.
        Senator Tester. So one last question. There is going to be
    an Administration change before this settlement gets done. My
    guess would be that is fairly clear. So the people who are
    working on this settlement now, are they career folks that stay
    in the Department?
        Ms. Belin. Yes.
        Senator Tester. Okay, good.
        One other thing, Mr. Chairman, if I might, and I know I am
    over time.
        Ms. Belin, there has been some new guidance from the
    Administration from OMB that would add even more layers to
    these negotiations. I have been on this Committee for 10 years
    now, almost, and we have seen a number of settlements come
    through Congress. I think that as this bill gets to this level,
    there are tons of people involved.
        I am not sure we need more people involved looking at this,
    because it has been looked at and it will be looked at by over
    and above you and over and above all the folks on the Tribe
    that have looked at it, over and above all the people that
    looked at it as it went through the process, all the different
    groups, all the different farmers, ranchers, city people; the
    works.
        Now we are going to add another layer and, quite frankly, I
    think the water rights process has worked reasonably well. I
    think if we could get those reclamation dollars so we had a sum
    of money to fund this stuff with, it could even work a little
    quicker.
        But slower is really not a direction that I am real crazy
    about heading. So I am going to ask your counsel, do you think
    we ought to send a letter, the Committee, to OMB and say, you
    know, we really appreciate you, but I am not sure you are going
    to help us?
        Ms. Belin. Maybe I can answer the rest of your question and
    not that last one there, and just say that we work very closely
    with OMB. Yes, we have a memo. We will continue to work closely
    with them. We brief them on all these settlements as we are
    working on them.
        Senator Tester. So do you think this is going to add time,
    this new directive, this new guidance is going to add time to
    the process?
        Ms. Belin. I have no reason to believe it will add time.
        Senator Tester. Okay. Music to my ears. My fears have been
    allayed.
        Thank you all very, very much. I appreciate all of your
    service and look forward to working with Rounds to get this
    done and Senator McCain to get yours done. So thank you all
    very much.
        Senator Barrasso. Thank you, Senator Tester.
        Ms. Belin, according to the White Mountain Apache Tribe's
    written testimony, the Tribe believes Congress intended that
    they have wide discretion on ``how to use and prioritize'' the
    uses of the money in the water settlement. So the term ``water-
    related economic development projects'' in the Claims
    Resolution Act of 2010, to me at least, seems to very clearly
    cover funding of the White Mountain Apache Tribe's rural water
    system. The fact that Interior claims that the White Mountain
    Apache Tribe needs specific new authorization from Congress is
    troubling.
        The Administration just seems to be discovering new
    authorities from existing statutes on almost a daily basis
    here; not just in this Committee, kind of everything that we
    interact with in Congress. I guess I am trying to figure out
    why you feel, suddenly, in this case new legislation is needed
    to clarify such language, which to me is pretty clear language.
        Ms. Belin. Well, Senator, I guess this is something that
    our legal team has done, their analysis, and I think the main
    reason for it is that, in addition to the WMAT account, there
    is a separate account specifically allocated for cost overruns.
    So I believe that is the main reason they felt that since
    Congress had seen fit to establish a specific fund to address
    cost overruns, which is different from this fund that is being
    tapped into now, that was the basis for their determination.
        Let me just add that we are happy to sit down and work on
    technical amendments or whatever we need to do to address this
    problem.
        Senator Barrasso. Because even if there is ambiguity, as
    the Department claims, is there not a doctrine of law regarding
    statutory construction in favor of Indian Tribes when there is
    ambiguity?
        Ms. Belin. Yes, there is.
        Senator Barrasso. So I would think that that doctrine out
    to be applying.
        Ms. Belin. We do. Yes, we always apply that doctrine.
        Senator Barrasso. Another question. In your written
    testimony you state the Department of Interior supports S.
    2796. Based on the Department's legal analysis of the bill,
    what legal effect would the repeal of the laws listed in S.
    2796 have on Tribes and the Department of Interior, and would
    Tribal sovereignty or treaty rights be impacted that you see?
        Ms. Belin. Mr. Chairman, our legal teams would be the ones
    to get into a detailed analysis. I would just say that they
    carefully reviewed, both in the Department and in the White
    House, carefully reviewed this language and they do not feel it
    will create any problems of any sort.
        Senator Barrasso. So, Mr. Flute, along those lines, S. 2796
    would repeal certain obsolete rules and laws ranging from 1862,
    as you pointed out, all the way to 1913 that relate to Indians.
    How would the repeal of these laws help your Tribe and tribal
    members?
        Mr. Flute. Mr. Chairman, if you have had a chance to read
    the written testimony, I would like to recognize one of our
    many spiritual leaders of the Oceti Sakowin, more commonly
    known as the Great Sioux Nation, and that was Black Elk, and he
    talks about mending that sacred hoop that in our culture and
    our way of life that we live by and we believe in. As Dakota
    people, we are very hospitable people and we love to be great
    hosts, and we come from a very socialistic society. But we also
    have the warrior societies and the soldiers lodges. When our
    encampments and our people are in danger, in trouble, they feel
    other types of challenges, we tend to feel that our ways are
    being disrespected. So the RESPECT Act would help mend those
    hoops.
        As I mentioned, not just my family, but I know Tribes
    across the Nation have experienced probably similar challenges
    and experienced with their grandfathers, some worse. So it
    would help to mend those hoops and it would also help to
    acknowledge and strengthen our alliances through the treaties
    that we have with the United States Government. We also cherish
    this flag that we serve under, and it will help just strengthen
    those alliances we have.
        Senator Barrasso. Chairman Finley, in the mitigation fund
    in S. 3013 there is about $670 million. Could you explain what
    this money is going to go towards in a little more detail and
    how these funds will benefit the Tribe?
        Mr. Finley. Yes, Mr. Chairman, thank you for the question.
    That particular part of the funding would go for restoring the
    wetlands, stream restoration. There was a lot of diversion that
    happened, a lot of the diversions that I had spoken about, but
    also others throughout the Reservation that there was
    meandering, for example, meandering streams were straightened
    in order to create other farmlands. So a lot of the restoration
    is exactly where that funding would go.
        Senator Barrasso. Thank you very much.
        I want to thank all the witnesses for being here today.
        Members may also submit follow-up written questions for the
    record, so if you get a question, please get back to us
    quickly.
        The hearing record will be open for two more weeks.
        So I want to thank you all for your time and your
    testimony.
        Finally, I want to acknowledge the hard work of Caleb
    Carroll, staff assistant for the Committee, who is from
    Evanston, Wyoming. He came here as an intern to the Committee.
    Today is his last day with the Committee, and I wish you every
    success with your future endeavors and education. So thanks so
    much.
        With that, this hearing is adjourned.
        [Whereupon, at 3:36 p.m., the Committee was adjourned.]

                                A P P E N D I X

     Prepared Statement of Hon. Mike Rounds, U.S. Senator from South Dakota
        Chairman Barrasso, Ranking Member Tester, Members of the Committee,
    I am pleased that the Committee on Indian Affairs is marking up S.2796,
    the RESPECT Act, or the ``Repealing Existing Substandard Provisions
    Encouraging Conciliation with Tribes'' Act. Senator Lankford has agreed
    to join me in this effort to begin the process of reversing a list of
    historic wrongs laid out in U.S. law against Native American citizens.
    I also want to thank Chairman David Flute, of Sisseton Wahpeton Oyate
    in South Dakota, who will testify today to the history behind the laws
    the RESPECT Act seeks to repeal.
        The idea that these laws were ever considered is disturbing, but
    the fact that these laws remain on our books is--at best--an oversight.
    Currently, Native Americans, who are U.S. citizens just like you and
    me, are still legally subject to a series of obsolete, historically-
    wrong statutes. These statutes are a sad reminder of the hostile
    aggression and overt racism that the federal government exhibited
    toward Native Americans--as the government attempted to ``assimilate''
    them into what was considered modern society.
        In 2016, laws still exist that would allow for the forced removal
    of their children, who can be sent to boarding schools and denied
    rations if they refuse. Because these laws still remain, they could
    still be subject to forced labor on their reservations, as a condition
    of their receipt of ``supplies.''
        Moreover, they can be denied funding if found drunk on a
    reservation. These statutes actually remain the law of the land and in
    many cases are more than a century old and continue the stigma of
    subjugation and paternalism from that time period. It is without
    question that they must be stricken. We cannot adequately repair
    history, but we can move forward.
        Let me list some of the laws that RESPECT will repeal:
        In Chapter 25 of the U.S. Code, Section 302, entitled ``Education
    of Indians, Indian Reform School; rules and regulations; consent of
    parents to placing youth in reform school,'' the Commissioner of Indian
    Affairs was directed to place Indian youth in Indian Reform Schools,
    without the consent of their parents.
        The issue of off reservation Indian Boarding Schools in particular
    is a rightfully sensitive one for Native Americans.
        Between 1879 and into the 20th Century, at least 830,000 Indian
    children were taken to boarding schools to allegedly ``civilize them.''
    Many parents were threatened with surrendering their children or their
    food rations. This law in fact, is also still on the books.
        A requirement exists in Section 283, entitled, ``Regulations for
    withholding rations for nonattendance at schools,'' the Secretary of
    the Interior could ``prevent the issuing of rations or the furnishing
    of subsistence to the head of any Indian family for or on account of
    any Indian child or children between the ages of eight and twenty-one
    years who shall not have attended school during the preceding year in
    accordance with such regulations. . .''
        Yet there still exist, other outdated laws relating to war-time
    status between Indians and the United States such as those found in
    Section 72 of the Code, entitled, ``Abrogation of treaties.''
        Here, the president was authorized to declare all treaties with
    such tribes ``abrogated if in his opinion any Indian tribe is in actual
    hostility to the United States.''
        In Section 127, entitled ``Moneys of annuities of hostile
    Indians,'' moneys or annuities stipulated by any treaty with an Indian
    tribe could be stopped if that tribe ``has engaged in hostilities
    against the United States, or against its citizens peacefully or
    lawfully sojourning or traveling within its jurisdiction at the time of
    such hostilities. . .''
        Likewise, in Section 128, entitled, ``Appropriations not paid to
    Indians at war with United States,'' none of the appropriations made
    for the Indian Service could ``be paid to any band of Indians or any
    portion of any band while at war with the United States or with the
    white citizens of any of the States or Territories.''
        Moreover, in Section 138, entitled, ``Goods withheld from chiefs
    violating treaty stipulations,'' delivery of goods or merchandise could
    be denied to the chiefs of any tribe, by authority of any treaty, ``if
    such chiefs'' had ``violated the stipulations contained in such treaty.
    . .''
        Finally, in Section 129, entitled, ``Moneys due Indians holding
    captives other than Indians withheld,'' the Secretary of the Interior
    was ``authorized to withhold, from any tribe of Indians who may hold
    any captives other than Indians, any moneys due them from the United
    States until said captives shall be surrendered to the lawful
    authorities of the United States.''
        In Section 130, racist identifications tying drunkenness by Indians
    to receipt of funds, entitled, ``Withholding of moneys of goods on
    account of intoxicating liquors,'' still exist stipulating that no
    ``annuities, or moneys, or goods,'' could ``be paid or distributed to
    Indians while they'' were ``under the influence of any description of
    intoxicating liquor, nor while there are good and sufficient reasons
    leading the officers or agents, whose duty it may be to make such
    payments or distribution, to believe that there is any species of
    intoxicating liquor within convenient reach.''
        Mandatory work on reservations still exist in Section 137,
    entitled, ``Supplies distributed to able-bodied males on condition,''
    for the purpose of inducing Indians to labor and become self-
    supporting, ``it is provided that, in distributing the supplies and
    annuities to the Indians for whom the same are appropriated, the agent
    distributing the same could require all able-bodied male Indians
    between the ages of eighteen and forty-five to perform service upon the
    reservation, for the benefit of themselves or of the tribe. . .'' in
    return for supplies.
        Let me summarize what I said in the beginning. In the year 2016 in
    the United States, Native Americans, citizens like you and me, are
    still legally subject to outrageous, racist and outdated laws that were
    wrong at their inception. There is no place in our legal code for such
    laws.
        In my state of South Dakota, which is home to nine tribes and
    roughly 75,000 enrolled members, we strive to work together, to
    constantly improve relationships and to mend our history through
    reconciliation and mutual respect. It's not always easy, but with our
    futures tied together--with our children in mind--``reconciliation'' is
    something we're committed to.
        History also proves that since the onset of the government's
    relationship with the tribes, which has been complicated and
    challenging over the years--sometimes downright dark and
    disrespectful--and to this day, often has led to mistreatment by the
    federal government. As governor, I proclaimed 2010 the ``Year of
    Unity'' in South Dakota.
        This was done in recognition of the need to continue building upon
    the legacy and work of those who came before us.
        The year 2010 also marked the 20th anniversary of the ``Year of
    Reconciliation'' in South Dakota, which was an effort by the late
    Governor George Mickelson as a way to bring all races together. The
    ``Year of Unity'' and the ``Year of Reconciliation'' were efforts to
    build upon a common purpose--acknowledge our differences--and yet find
    ways to work together. We need more of that in Washington, D.C.
        While legislative bodies before us have taken steps to rectify our
    previous failures relative to Native Americans, sadly these laws remain
    and out of a sense of justice, we should repeal them. Imagine a
    scenario, where descendants of those from Norway, Britain, Italy, or
    any other group for that matter were treated with the same patronizing
    superiority. Only Native Americans face this discrimination and it is
    long overdue to repeal these noxious laws. We can't change our history,
    but we can start to change the paternalistic mentality of the federal
    government towards Native people.
        Chairman Barrasso, I want to thank you and the Committee for
    considering this legislation.
                                     ______

       Prepared Statement of Bruce Farling, Executive Director, Montana
                           Council of Trout Unlimited
        Chairman Barrasso and Vice Chairman Tester, thank you for this
    opportunity to submit written testimony on behalf of the Montana
    Council of Trout Unlimited in support of S. 3013, which provides for
    Congressional ratification and implementation of the water rights
    compact negotiated among the Confederated Salish and Kootenai Tribes of
    Montana (CSKT), the State of Montana and the U.S. Department of the
    Interior.
        The Montana Council of Trout Unlimited represents 4,200
    conservation-minded anglers dedicated to conserving, protecting and
    restoring our state's coldwater fisheries and their watersheds. Most of
    our members reside within the recognized aboriginal territory of the
    tribes. Many are residents of the Flathead Indian Reservation, or they
    live in neighboring communities. In the 52-year history of our council
    we have often found common ground or partnered with the tribes on
    natural resource matters, including federal licensing of a large
    hydroelectric dam, creation of tribal water quality standards, fishery
    management in Flathead Lake, and restoration of populations of native
    fish species. Because of our knowledge of fisheries around the state,
    the tribes and State asked us to provide advice on potential inclusion
    in the Compact of important fisheries within the off-reservation
    aboriginal homeland of the tribes. We have found the tribes to be
    dependable and forthright partners. The CSKT are served well by a
    talented cadre of natural resource and legal professionals who enjoy
    strong support from the tribal council and tribal members.
        The Compact greatly benefits the tribes because it permanently
    resolves uncertainty as to what constitutes the tribes' reserved water
    rights under The 1855 Treaty of Hellgate, as well as aboriginal rights
    claimed within those portions of Montana constituting traditional
    hunting and fishing territory. Further, the Compact advances systematic
    and consistent water-use administration on the reservation, while also
    accommodating conservation and orderly development of water resources.
    The Compact will also eliminate the cloud of uncertainty surrounding
    much of the existing and all future groundwater development on the
    reservation. Once Congress and the tribal council ratify the Compact, a
    final decree for general adjudication of water rights in more than half
    of Montana can be completed, benefitting the CSKT, State of Montana and
    the federal government. Also furthering the interests of the tribes are
    the 90,000 acre-feet of Hungry Horse Reservoir water that the Compact
    makes available for mitigation and development on and off the
    reservation in Montana.
        The CSKT will benefit from implementation of the Compact's
    investments in conservation measures for irrigation, as well as
    instream flow protections that will benefit native fish species
    important to tribal members. Finally, the Compact does much to bring
    people together in Montana under common purpose. By allowing for co-
    ownership and management with the State of Montana of existing instream
    flow water rights for fish currently held by the State's fish and
    wildlife agency, the Compact ensures the tribes have a formal role in
    protecting fisheries that served them for millennia. For instance, the
    water rights associated with instream flows from Painted Rocks
    Reservoir in the Bitterroot River basin ensures the Salish people will
    have a role in cooperatively managing for healthier fisheries in the
    core of their traditional homeland. The Compact's conveyance of an
    instream flow water right for fisheries on the Kootenai River and lower
    Clark Fork Rivers recognizes the historical interests of the Pend
    Oreille and Kootenai peoples in waters that were among their usual and
    accustomed fishing sites.
        Montana Trout Unlimited is pleased to be able to support S. 3013
    and look forward to final congressional approval of this important
    water compact.
                                     ______

         Prepared Statement of Elaine D. Willman, MPA, Flathead Indian
                                  Reservation
    Introduction
        As background for the comments provided below, please know that I
    have lived on three separate reservations for the past 26 years
    (Yakama, Oneida of Wisconsin, and Flathead). Further I have been an
    active researcher of federal Indian policy, and am the author of two
    books on the aforesaid policies: Going to Pieces. . . the dismantling
    of the United States of America (May 2005); and Slumbering Thunder. . .
    a primer for confronting the spread of tribalism overwhelming America
    (March 2016).
        I moved to the Flathead Indian Reservation to assist tribal and
    non-tribal landowners, farmers and ranchers with the foreboding
    consequences of a Proposed CSKT Water Settlement Compact, approved by
    the Montana State Legislature on April 11, 2015.
        As a result of CSKT Water Compact approval by federal, state and
    tribal officials, 30,000 Montana residents, both tribal and non-tribal,
    have no government as advocate for their Constitutional Rights, civil,
    property or water rights. The small CSKT tribal government now has 100
    percent control over all water and power emanating from the former Kerr
    Dam, rivers and streams, all land and residential access to water, and
    all access to electric power. Residents of the Flathead Indian
    Reservation are now at the mercy of a tribal government that has no
    duty to 75 percent of the reservation population, for livelihood on
    their lands and businesses; this condition will be locked in
    perpetuity, if the State Legislators' Proposed CSKT Water Settlement
    Compact, and/or S. 3013 is ratified.
        In addition to total control of water and power, the CSKT Compact
    provides for no cap on rate-setting for water and power, nor review by
    federal entities or the State Public Services Commission.
    Request
        This writer requests that the Senate Committee on Indian Affairs
    and the Indian Insular and Alaska Native Affairs Subcommittee of the
    House Natural Resources Committee take no further action on S. 3013
    until the following consequences of S. 3013 are investigated and
    resolved:
        Issue No. 1. Due Process and Procedure. The CSKT Compact passed by
    the Montana Legislature has been inordinately and dramatically expanded
    by S. 3013 beyond what the State Legislature actually approved on April
    11, 2015, without the review or approval of the Montana Legislature.
    May a federal senator bypass, expand and override decisions made by a
    State Legislature without State legislative consent? And if such is
    legal, is such imbalance of separation of power remotely ethical? S.
    3013 controls and pre-empts the Montana Legislature's Proposed CSKT
    Water Settlement Agreement.
        Issue No. 2. U.S. & Montana State Constitutions. Both the State
    approved Compact and S. 3013 entirely violate the U.S. Constitution and
    Montana's State Constitution. The Compact violates the 1st, 5th and
    10th Amendment of the U.S. Constitution. The Compact violates numerous
    individual rights of Montana citizens as identified in Article II of
    Montana's Constitution and Section 3 of Article IX of the Montana
    Constitution, to wit:

             ``All existing rights to the use of any waters for any useful
            or beneficial purpose are hereby recognized and confirmed.
            (1972)

             ``All surface, underground, flood and atmospheric waters
            within the boundaries of the state are the property of the
            state for the use of its people are subject to appropriation
            for beneficial uses as provided by law.'' (1972)

        Issue No. 3. Judicial Rulings. In a June 13, 2013 unanimous
    decision, the U.S. Supreme Court ruled in Tarrant v. Herrmann:

             ``The sovereign States possess an absolute right to all their
            navigable waters and the soils under them for their own common
            use. . .So, for example, a court deciding a question of title
            to a bed of navigable water within a State's boundary must
            begin with a strong presumption against defeat of a State's
            title.''

        The Governor and Attorney General of the State of Montana are fully
    aware but have declined to acknowledge Tarrant v. Herrmann and have
    sacrificed Montana navigable state waters in 11 counties of Western
    Montana, affecting 20 percent of Montana's land and 30 percent
    (350,000) of Montana citizens.
        Likewise, by signing the Compact, Governor Bullock has confiscated
    individual Montana citizen's ``consent to be governed by a tribal
    government'' as ruled in the U.S. Supreme Court in Montana v. U.S.
    (1980) which provides that non-tribal persons will not be governed by
    tribal governments absent their individual consent. The Executive and
    Legislative Branches of the State of Montana have entirely walked away
    from their responsibilities to protect and serve Montana citizens,
    tribal and non-tribal, within the Flathead Indian Reservation.
        Issue No. 4. Violations of the General Allotment (Dawes) Act and
    Homestead Act. When settling the West and opening up Indian
    Reservations, Congress provided in perpetuity that each land patent
    issued under the above Acts, whether to tribal or non-tribal persons,
    was guaranteed a water right permanently attached to the patent.
    Settling the West and opening the reservations could not happen unless
    water was guaranteed by Congress to each patent issued. The water
    rights attached by Congress to individual land patents have been
    confiscated by the Federal, State and Tribal governments, and
    incorporated into the CSKT Water Compact. Landowners subject to the
    CSKT Water Compact had significant liens placed against their
    properties for purpose of constructing the Kerr Dam and a federal
    Irrigation project in the early 1900s. Liens were long-ago paid off,
    from revenue generated by the dam, and later by tax assessments for
    irrigation project operations, but landowners have never ever been
    reimbursed, nor have their properties been cleared of these liens.
    Private property water rights have attached to the lands have been
    literally stolen, while liens permanently exist on the allotted and
    homestead parcels within the Flathead Reservation. The CSKT Water
    Compact would render this condition permanent.
        Issue No. 5. Federal and Tribal Sovereign Immunity. The CSKT Water
    Compact as passed by Montana Legislature on April 11, 2015 contained a
    waiver of tribal sovereign immunity. S. 3013 is silent as to tribal
    sovereign immunity but S. 3013 provides that where there is
    inconsistency between the Legislature's Compact, and Senator Tester's
    inflated version of the CSKT Water Settlement Compact, that the Act
    contained in S. 3013 controls. The end result is that S. 3013 holds the
    United States entirely harmless from all administrative accountability,
    use of funds and project impacts, while also (by intentional omission)
    eliminating the CSKT tribal waiver of sovereign immunity approved by
    the Montana legislature. By entirely locking out due process of
    affected landowners, there is no recourse when further harm occurs to
    landowners and residents other than a small appointed Compact
    management organization heavily seated and controlled by the tribes.
        Issue No. 6. National Environmental Policy Act (NEPA) and State
    Environmental Policy Act. Prior to passage of the CSKT Water Compact by
    the Montana State Legislature on April 11, 2015, absolutely no
    environmental impact analysis was conducted by the federal, state or
    tribal governments for a project that will physically disturb and
    impact thousands of acres of land within the Flathead Indian
    Reservation. Senate Bill 3013 affirms compliance with the National
    Environmental Act, and in the very next sentence, exempts S. 3013 from
    NEPA compliance with the following statement:

             ``The execution of the Compact by the Secretary under this
            section shall not constitute a major Federal action for
            purposes of the National Environmental Policy Act of 1969.''

        To state that the CSKT Water Settlement Compact (S. 3013) does not
    constitute ``a major federal action'' is disingenuous at best, and
    patently false.
        Issue No. 7. The Hellgate Treaty of 1855 and the CSKT Constitution
    under the Indian Reorganization (IRA) Act of 1934. The foundational
    framework asserting tribal water rights is based upon the Hellgate
    Treaty of 1855. This treaty executed by Territorial Governor Isaac
    Stevens provided beneficial use and occupancy only of a bounded
    reservation. Treaty reservation land was owned and governed by the
    United States and Bureau of Indian Affairs. Tribal leaders nor tribal
    members had any jurisdictional authority or ownership of the land, or
    the water within that reservation under the Treaty of 1855. To claim in
    2016 that the Hellgate Treaty provided tribal government ``ownership''
    or jurisdiction of the land or water when the Treaty only affirmed
    ``the right to fish,'' is remarkable revisionist history.
        Additionally, the Confederated Salish-Kootenai Tribe was the very
    first to be ``federally recognized'' as a governing entity under the
    Indian Reorganization Act (IRA) of 1934. The IRA is the instrument that
    converted ``beneficial use and occupancy'' to governing and
    jurisdictional authority over Indian trust lands within reservation
    boundaries. Tribal governments were required to take a majority vote of
    adult, enrolled members to either remain a ``Treaty'' tribe, or become
    an IRA tribe, but not both. The tribe's IRA constitution granted in
    1936 supersedes its Hellgate Treaty of 1855.
        The CSKT Water Settlement Compact as passed by the State
    Legislature and in S. 3013, claim the Hellgate Treaty, rather than the
    tribe's official governing instrument, its IRA Constitution, as
    authority for the Water Compact. The tribe's constitution is given
    almost no mention in either version of the Water Compact. This is a
    result of two goals: (1) The tribe wants to claim 1855 as its date of
    superior water rights; and (2) The Tribe's Constitution gives it
    absolutely no authority to govern non-tribal persons or properties.
        Issue No. 8. Pre-Compact Ratification Activities. As a resident on
    the Flathead Indian Reservation I was made aware shortly after State
    Legislative approval of the CSKT Water Compact of examples of ``pre-
    implementation'' tactics of the CSKT Tribe. The tribe shut off the
    water to stock ponds for a land owner's large her d of cattle, forcing
    the landowner to relocate his cattle to someone else's land. Upon
    relocating the cattle, the tribe turned his stock water back on. In
    another example, one of my neighbors had two hundred acres of peas
    coming to peak in a historic heat wave (104+ degrees) at the end of
    June/first of July last year. His entire crop was scorched. After the
    crop was lost, the tribe turned the irrigation water back on. There are
    numerous similar experiences that landowners endured last year, at a
    significant financial loss. Unauthorized ``Pre-Implementation''
    activities of the proposed CSKT Water Compact (S. 3013) have been
    ongoing since initial approval by the Montana legislature on April 11,
    2015.
    Conclusion
        The Flathead Indian Reservation includes all or portions of three
    counties, 11 towns and 30,000 residents. The majority population (75-80
    percent) is non-tribal, and the greater land base within this
    reservation is equally non-tribal--land paying taxes to a State that no
    longer serves them.
        Citizens either have federal and state constitutional protections,
    or they do not. Federal, state and tribal governments either follow the
    rule of law, federal and state regulations, or they do not. Senate Bill
    3013 has not followed the rule of law or traditional environmental
    impact regulations. The end result is that the Executive and
    Legislative branches of the State of Montana, and its federal Senator,
    Jon Tester, no longer acknowledge an oath to serve and protect the
    Montana residents, both tribal and non-tribal, within the Flathead
    Indian Reservation.
        S. 3013 must be rejected outright.
                                     ______

                       OFFICE OF THE GOVERNOR--STATE OF MONTANA
                                                           July 7, 2016
    Honorable John Barrasso,
    Honorable Jon Tester,
    Chairman, Vice Chairman,
    Committee on Indian Affairs,
    Washington, DC.
                                                     Re: S.3013

        Dear Chairman Barrasso and Vice Chairman Tester:

        I write on behalf of the State of Montana to express my strong
    support for S. 3013, the Salish and Kootenai Water Rights Settlement
    Act of2016. This legislation is the product of decades of work and hard
    negotiation between the Confederated Salish and Kootenai Tribes of the
    Flathead Indian Reservation (Tribes), the State of Montana, and the
    United States, to resolve the significant water rights claims of the
    Tribes.
        S. 3010 includes a Compact, ratified by the 2015 Montana
    Legislature, which affirms and quantifies the water rights of the
    Tribes on and off the Flathead Indian Reservation and provides for the
    administration of water on the Reservation. It will make new water
    available for commercial and irrigation use, end the water
    administration void on the Reservation, allow for economic development
    under conditions of legal certainty on and off the Reservation, and
    facilitate the completion of the statewide general stream adjudication.
    In addition, the Compact establishes a process to plan and implement
    irrigation project upgrades to protect historic irrigation use and meet
    Tribal in-stream flow targets. The Compact is the seventh and final
    negotiated water compact that the State has entered into with the
    tribal governments located within Montana.
        Further, the Compact represents the largest monetary commitment
    that the State has made in any state-tribal water agreement. Within
    five years of federal ratification of the compact legislation, the
    State has committed to funding:

       $4 million for water measurement activities;

       $4 million for improving on-farm efficiency on lands served
            by the Flathead Indian Irrigation Project (FIIP);

       $4 million for stockwater mitigation to replace FIIP
            stockwater deliveries outside irrigation season;

       $30 million to provide an annual payment to offset pumping
            costs and related projects; and

       $13 million to provide for aquatic and terrestrial habitat
            enhancement.

        Passage of a settlement bill is critically important to Montana.
    The Compact was born of compromise. In it, the Tribes agreed to less
    water than they believe they could legally claim, including significant
    claims for water both on and off reservation in the Tribes' aboriginal
    territory. The Tribes' water rights claims number in the thousands and
    cover a significant portion of Montana. If the legislation does not
    pass, the Tribes and claimants to water rights arising under state law
    will be forced into contentious litigation that could last decades.
    Because the Tribes' claims have senior priority dates, including claims
    with time immemorial priority, litigation would be arduous, expensive,
    and carry great risk for the State and individual water right owners.
    It is essential for Montana that the protections provided in the
    Compact be ratified by federal legislation.
        I thank you for this opportunity to provide Montana's views and
    look forward to working with the Committee on this important matter.
            Sincerely,
                                                 STEVE BULLOCK,
                                                              Governor.
                                     ______

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                                     ______

               GREAT PLAINS TRIBAL CHAIRMEN'S ASSOCIATION, INC.
                                          Rapid City, SD, June 27, 2016
    Senator John Barasso, Chairman,
    Senator Jon Tester, Vice Chairman,
    Senate Indian Affairs Committee,
    Washington, DC.
                                   Re: S. 2796, the RESPECT ACT

        Dear Chairman Barasso and Vice Chairman Tester:

        We write on behalf of the 16 Member Tribes of the Great Plains
    Tribal Chairmen's Association, Inc., to support S. 2796. We appreciate
    the leadership of Senator Rounds in bringing forward the RESPECT Act to
    eliminate substandard, frankly--anti-Indian measures from the era of
    Indian wars and cultural oppression. And, thank you for your assistance
    in securing its enactment.
        Senator Rounds introduced the RESPECT Act, S. 2796, to strike some
    of the laws which have historically disadvantaged our Indian nations
    and our people. For example, there are still laws on the books for the
    removal of our children from our homes to be sent to compulsory
    boarding schools run by military officers, where the mantra was ``Kill
    the Indian, save the Man.'' These laws should be struck from the books.
        Perhaps the provision on Indian Reform Schools can be updated to
    provide for Education, Counseling, and Other Assistance to Indian youth
    in custody. Perhaps the Army provision on facilities and staff can be
    consolidated and updated to provide for the transfer of unneeded
    facilities to Indian tribes.
        Finally, perhaps a request can be added to President Obama and
    Congress to hold a public ceremony to announce America's Apology to
    Native Americans, enacted under the leadership of Senator Brownback and
    Senator Inouye as Section 8113 of the 2010 Defense Appropriations Act.
    The President signed the Act, yet never held a ceremony with our Indian
    nations and tribes to proclaim it.
        Thank for your leadership for Indian country.
            Sincerely,
                                        John Yellow Bird-Steel,
          President, Oglala Sioux Tribe, Chairman, Great Plains Tribal
                                                 Chairman's Association
                                     ______

                                          Montana Farmers Union
                                         Great Falls, MT, June 22, 2016
    Senator John Barasso, Chairman,
    Senator Jon Tester, Vice Chairman,
    Senate Indian Affairs Committee,
    Washington, DC.
                                   Re: S. 2796, the RESPECT ACT

    Dear Chairman Barasso and Vice Chairman Tester:

        Montana Farmers Union wishes to go on record in support of S. 3013,
    introduced by Senator Tester, and which will authorize and implement
    the water rights compact negotiated by the Montana Compact Commission
    and members of the Consolidated Salish and Kootenai Tribe. The policy
    of our organization has long supported State Water Court adjudication
    of all state water disputes, including all federal, state and private
    permits and/or reservations.
        Action on this bill is critical for our rural producers to be
    ensured that irrigators on farms and ranches in Montana have all the
    water resources they need to maintain production of their crops and
    livestock. Montana is a semi-arid climate with an average of less than
    15 inches of moisture per year and depends on irrigation water to
    sustain and firm up commodities for harvest in the fall. The passage of
    this Compact will benefit all members of the agriculture community and
    sustain the number one industry in our state.
        Passage of the compact assures Montanan's certainty of adequate
    water, while protecting existing water rights from tribal call and
    assuring individual water uses will not have to pay for litigation
    through the water courts.
        The CSKT Water Compact improves the irrigation infrastructure on
    Montana as it will assure funds for the improvement of water delivery
    systems, ditches, turnouts, storage and assures efficient use of our
    scarce water resources.
        The exciting piece of this legislation is, that of assuring water
    certainty for our producer members. We pledge to continue working with
    you as this legislation moves forward. Feel free to call, should you
    have concerns.
            Sincerly,
                                        Alan Merrill, President
                                     ______

                       E-mail Submitted by Mary Matheidas
        I am a rancher and irrigator on the Flathead Indian Reservation. I
    am non-tribal. I have lived here for 20 years.
        As a result of CSKT Water Compact approval by federal, state and
    tribal officials, a water compact passed illegally by the Mt. state
    legislature without the mandated \2/3\ majority, Mt. residents, both
    tribal and non-tribal, have NO government to advocate for their
    constitutional rights, civil, property or water rights. The small CSKT
    tribal government now has 100 percent control over all water and power
    emanating from the former Kerr Dam, rivers, streams and all land and
    residential access to water and all access to electric power. Residents
    of the Flathead Indian Reservation are now at the mercy of a tribal
    government that had no responsibility to the bulk of the reservation
    population, for livelihood on their lands and businesses; this
    condition will be locked in perpetuity if the state legislators'
    proposed CSKT water settlement compact or S.3013 is ratified.
        In addition to total control of water and power, the CSKT refuses
    to amend the compact to allow for a cap on rate-setting; or review by
    federal entities or the state public services commission. This was a
    commitment agreed to many years ago and is now being ignored. Jon
    Tester's bill makes us basically wards of the tribe.
        This constitutes a request that any action of Jon Tester's bill S.
    3013 be stayed until proper study has been done. This study need to
    include the following:

        1. DUE PROCESS AND PROCEDURE The CSKT compact passed by the Mt.
    legislature has been inordinately and dramatically expanded by S. 3013
    beyond what the state legislature actually approved on April 11, 2015
    all without the approval or review of the Mt. legislature. I am
    appalled that any federal senator can bypass, expand and override
    decisions made by a state legislature even if if legality of the
    original passage of the water compact is in question. This bill now in
    consideration pre-empts the Mt. legislature's proposed CSKT water
    settlement agreement.

        2. Both the state approved compact and S. 3013 entirely violate the
    U.S. Constitution and Montana State Constitution. The compact violates
    the first, fifth and 10 amendments of the U.S. Constitution. The
    compact violates numerous individual rights of Mt. citizens as
    identified in Article II of Mt.'s Constitution and Section 3 of Article
    IX of the Montana Constitution.

        3. There are several JUDICIAL RULINGS being ignores and need to the
    addressed. Among them are TARRANT v. HERRMANN AND MONTANA v. U.S. The
    first governs use of water and the second provides that non-tribal
    people will not be governed by tribal governments without their
    consent. The executive and legislative branch of the State of Montana
    have entirely abdicated their responsibilities to protect and serve Mt.
    citizens, tribal and non-tribal, within the Flathead Indian
    Reservation.

        4. VIOLATIONS OF THE GENERAL ALLOTMENT (DAWES) ACT AND HOMESTEAD
    ACT When settling the west and opening un indian reservations, Congress
    provided in perpetuity that each land patent issued under the above
    leading Acts. Whether to tribal or non-tribal persons was guaranteed a
    water right permanently attached to the patent. Settling the west and
    opening the reservation could not happen unless water was guaranteed by
    Congress to each patent issued. Now the water rights attached by
    Congress to individual land patents have been confiscated by the
    Federal, State and Tribal governments and incorporated into the CSKT
    water compact. Land owners subject to the CSKT water compact had
    significant liens placed against their properties for the purpose of
    constructing the Kerr Dam and a federal irrigation system in the early
    1900s. Liens were paid off but many properties lack the endorsement of
    a water deed attached to the particular properties. Nor have all liens
    been cleared.. Private property water right have been literally stolen
    while the liens permanently exist on the allotted parcels. The CSKT
    water compact would render this condition permanent.

        5. FEDERAL AND TRIBAL SOVEREIGN IMMUNITY The CSKT water compact as
    passed by the Mt. Legislature on April 11, 2015, contained a waiver of
    tribal sovereign immunity. S. 3013 is silent as to tribal sovereign
    immunity but S3013 provides that where there is inconsistency between
    the Mt. legislature's compact and Tester's inflated version of the
    compact that the Act contained in S. 3013 controls. The end result is
    that S. 3013 holds the United States entirely harmless from all
    administrative accountability, use of funds and project impacts, while
    also eliminating the CSKT tribal waiver of sovereign immunity approved
    by the Mt. legislature. By locking out due process of affected land
    owners, there is no recourse when further harm occurs to land owners
    and residents other than a small appointed compact management
    organization probably heavily seated and controlled by tribal members.

        6. NATIONAL ENVIRONMENTAL POLICY ACT AND STATE ENVIRONMENTAL POLICY
    ACT Prior to the passage of the water compact in April 2015, no
    environmental impact analysis was conducted by federal, state or tribal
    governments for a project that will physically disturb and impact
    thousands of acres of land on the Flathead Indian Reservation. S. 3013
    affirms compliance with the NEA and in the next sentence, excepts
    S.3013 for NEPA compliance. Read carefully.

        7. HELLGATE TREATY OF 1855 AND THE CSKT CONSTITUTION UNDER THE
    INDIAN REORGANIZATION ACT OF 1934 The foundational framework asserting
    tribal water rights is based on the Hellgate Treaty of 1855. The treaty
    provided for beneficial use and occupancy only of a bounded
    reservation. Treaty reservation land was owned and governed the the
    United States and Bureau of Indian Affairs. Neither tribal leaders nor
    tribal members had any jurisdictional authority or ownership of the
    land or the water within the reservation under the Treaty. To claim in
    2016 that the Hellgate Treaty provided tribal government ownership or
    jurisdiction of the land or water when the Treaty only ``affirmed'' the
    right to fish is quite a remarkable change in theory.

        There are many immoral and constitutional flaws in both the
    original compact and Jon Tester's current version. I sincerely hope
    there a people of vision and moral character who will closely
    scrutinize this bill and reject it outright for what it is: to
    subjugate all irrigators and peoples of the Flathead Indian Reservation
    to the will of the tribe, i.e. the government.
                                     ______

        Senator Daines
        I wish to add my name to the growing list of Montana legislators
    that are against the Salish Kootenay water compact. I feel the non-
    native American farmers on the reservation are not well enough
    protected by the Company as it passed the legislature in 2015.
            Thank you for your time,
                                                  Ken Holmlund,
                                         House District 38, Miles City.
                                     ______

        I am concerned that this Compact is being addressed at this time.
    We have court proceedings that need to be processed, the notion that
    the CSKT Compact may supersede Compacts that are a head is disturbing
    to me and some people that are involved in these other Compacts. Those
    of us who live off the reservation have a reel problem with the
    verbiage off reservation water rights being considered . I feel this
    needs to be put on hold till it is resolved through litigation. So if
    it comes to be voted on vote against it.
                                               Rep Mark Noland.
                                     ______

        Please consider a no vote on the Compact. This compact give control
    of the off reservation water rights to a tribal council and, more
    importantly, to a small group of old water rights farms, making water a
    commodity worth far more than the land being farmed. This negatively
    impacts over one hundred thousand residents. Again, please don't let
    this out of Committee.
                                                 Randy Brodehl,
                              Representative, Montana House District 9.
                                     ______

        Esteemed public servants,
        My name is Nick Schwaderer, I am the State Representative for House
    District 14 in Montana, which covers the greatest area of the CSKT
    Reservation of any House District. I have lived in this area my entire
    life.
        Following years of meeting the community door-to-door and serving
    them as their representative, I fully oppose this water compact. I can
    say with full honesty that my community, who lives here, back me in
    this opposition.
        Overall, this water compact goes far beyond the intent of original
    caselaw and convention with the allocation and administration of native
    water rights, and acts as a threat to those who live, work and own
    property in our community.
            Sincerely,
                                Representative Nick Schwaderer,
                                       House District 14, Superior, MT.
                                     ______

        Not only is the CSKT a violation of the MT Constitution, it is an
    overreach and power grab by the U.S. government.
        Please defeat this egregious affront to state sovereignty in
    Montana.
                                             Rep. Brad Tschida,
                                                     MT House Dist. 97.