[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.