[Senate Hearing 114-539]
[From the U.S. Government Publishing Office]
S. Hrg. 114-539
S. 2636, S. 3216, S. 3222, AND S. 3300
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 14, 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
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Page
Hearing held on September 14, 2016............................... 1
Statement of Senator Barrasso.................................... 1
Statement of Senator Cantwell.................................... 5
Statement of Senator Flake....................................... 5
Statement of Senator Franken..................................... 4
Statement of Senator Lankford.................................... 4
Statement of Senator Merkley..................................... 6
Statement of Senator Tester...................................... 3
Witnesses
Allen, Hon. W. Ron, Treasurer, National Congress of American
Indians........................................................ 24
Prepared statement........................................... 26
Clarke, Hon. Damon, Ed.D., Chairman, Hualapai Tribe.............. 13
Prepared statement........................................... 15
Jefferson, Hon. Lavern, Treasurer, Meskwaki Tribal Council, Sac
and Fox Tribe of the Mississippi............................... 20
Prepared statement........................................... 22
Lumley, Paul, Executive Director, Columbia River Inter-Tribal
Fish Commission................................................ 27
Prepared statement........................................... 29
Roberts, Larry, Principal Deputy Assistant Secretary, Indian
Affairs, U.S. Department of the Interior....................... 7
Prepared statement........................................... 8
Appendix
Burke, Hon. Gary, Chairman, Confederated Tribes of the Umatilla
Indian Reservation, prepared statement......................... 43
Cooke, Theodore C., General Manager, Central Arizona Project
(CAP), prepared statement...................................... 44
Response to written questions submitted by Hon. John McCain to
Larry Roberts.................................................. 48
Roberts, David, Associate General Manager, Water Resources, Salt
River Project (SRP), prepared statement........................ 45
Stockbridge-Munsee Community, Band of Mohican Indians, prepared
statement...................................................... 46
S. 2636, S. 3216, S. 3222, AND S. 3300
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WEDNESDAY, SEPTEMBER 14, 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. I call this hearing to order. I appreciate
all of you being here today.
Today, the Committee will examine four bills, S. 2636, the
Reservation Land Consolidation Act of 2016; S. 3216, a bill to
repeal the Act entitled An Act to Confer Jurisdiction on the
State of Iowa Over Offenses Committed by or Against Indians on
the Sac and Fox Indian Reservation''; third bill, S. 3222, the
Columbia River In-Lieu and Treaty Fishing Access Sites
Improvement Act; and then S. 3300, The Hualapai Tribe Water
Rights Settlement Act of 2016.
The bill S. 2636 was introduced in March by Senator Tester.
This bill would amend the Indian Reorganization Act of 1934 to
require the Secretary of the Interior to automatically take on-
reservation land into trust for all federally-recognized Indian
Tribes provided they apply with the proper evidence of title.
Also, this bill would codify certain provisions in current
regulations used by the Secretary to review trust land
applications by Indian Tribes.
In a few moments I will turn to Senator Tester for his
statement on this bill.
I think this bill was intended to help Tribes work through
bureaucratic red tape at the Bureau of Indian Affairs. I am
concerned that in some ways there may be some harm involved. A
mandatory process for on-reservation trust land acquisitions
could in fact inhibit a Tribe's ability to consolidate lands
and could create significant litigation.
By eliminating the notice to other governments, including
Indian Tribes, there is the potential to pit Tribe against
Tribe in situations where lands are contested. For example, in
my home State of Wyoming, this bill could have a detrimental
impact on the Wind River Indian Reservation where two Tribes
share a land base.
The bill also has the potential to undermine collaboration
between Tribes and the surrounding communities, who can be
important partners for economic development.
The land into the trust process certainly need improvement,
and we have worked to that end during this and several previous
Congresses. As we have heard in hearings and roundtables, this
improvement requires changes that enhance transparency and
promote cooperation, so I hope to hear from the witnesses today
on how we can achieve that and continue working with Senator
Tester to find solutions that are beneficial to tribal
communities.
The next bill, S. 3216, was introduced in July by Senator
Grassley. Senator Ernst and Senator Leahy are co-sponsors.
In 1948 Congress enacted a law conferring criminal
jurisdiction on the State of Iowa over misdemeanor and non-
major offenses committed by or against Indians on the Sac and
Fox Indian Reservation. This 1948 Act did not strip the Sac and
Fax Tribe of jurisdiction over the same types of offenses. For
major crimes, the Federal Government retained criminal
jurisdiction on the Sac and Fox Indian Reservation.
The Sac and Fox Tribe now seeks to repeal the 1948 Act.
Senator Grassley's bill would do just that.
On April 8th, the State of Iowa passed legislation
tendering all relevant criminal jurisdiction held by the State
to the United States so that it may be returned to the Tribe.
We will hear from the witnesses today on how this bill will
provide meaningful justice on the Reservation and other
benefits to the community.
The bill S. 3222, the Columbia River In-Lieu and Treaty
Fishing Access Sites Improvement Act, was introduced by Senator
Merkley. Senators Wyden, Murray, and Cantwell have joined as
co-sponsors.
The bill S. 3222 requires the BIA to assess the current
condition of tribal fishing access facilities along the
Columbia River. This bill also authorizes the BIA to contract
its obligations under this bill to an Indian Tribe or tribal
organization under the Indian Self-Determination and Education
Assistance Act.
I would like to welcome Senator Merkley to the Committee,
and we will turn to Senator Merkley in a moment for any
statement that he would like to make.
On September 8th, Senators Flake and McCain introduced The
Hualapai Tribe Water Rights Settlement Act of 2016. This bill
would comprehensively settle all water rights claims for the
Hualapai Tribe. This is a negotiated settlement of the Tribe's
Federal Reserve water right claims with the State of Arizona,
the Central Arizona Water Conservation District, the Salt River
Project, the Freeport Minerals Corporation, and the United
States.
The bill authorizes $134 million to construct water
infrastructure for the Tribe at certain trust parcels to the
Reservation and reallocates 4,000 acre-feet of the Central
Arizona Project water to the Tribe.
I would like to welcome Senator Flake to the hearing, and I
will turn to Senator Flake in a few moments.
First, I would like to ask the Vice Chairman, Senator
Tester, for his opening statement.
Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Well, thank you, Mr. Chairman. Thank you
for holding this hearing today.
But first things first. I want to congratulate Senator
Franken on a new granddaughter. And hopefully that bundle of
joy looks more like Frannie than you.
[Laughter.]
Senator Franken. I resent that.
Senator Tester. So one of the bills we are going to hear
today, as you pointed out, Mr. Chairman, is Senate Bill 2636,
the Reservation Land Consolidation Act, which I introduced in
March. I believe it would be a major step forward toward
fulfilling the promise of restoring tribal homelands first made
by the Federal Government over 80 years ago. I know you have
concerns about this bill, Mr. Chairman, but I look forward to
working with you because I think you are right, the land into
trust situation does need to be improved.
From the early 19th century to the early 20th century, the
United States adopted a Federal Indian policy of allotment
which encouraged private land ownership on Indian reservations.
This policy greatly reduced the portion of reservation land
owned by Tribes, causing over 90 million acres to go out of
trust.
Not only did Tribes lose millions of acres of land,
allotment caused severe fractionation of lands. They have
created a checkerboard of tribal and non-tribal ownership that
causes a number of problems to this very day. The allotment
policy degraded tribal governance, created jurisdictional
problems that have undermined public safety, economic
development, and tribal relations with neighboring communities.
Congress passed the Indian Reorganization Act in 1934 to
reverse the problems that allotment caused by revitalizing
tribal governments and restoring tribal homelands. Section 5 of
the IRA gave the Secretary of the Interior the authority to
take back land into trust for the benefit of the Tribes. And
since its passage, Section 5 has helped Tribes begin to repair
their land bases. Despite these efforts, the promise of IRA
remains largely unfilled because regulatory hurdles have
impeded Tribes from regaining their lost reservation lands.
Currently, Interior has to go through 16 steps, 16 steps
just to take a parcel into trust. As a result, large portions
of many reservations still have checkerboard holdings, which
makes it difficult for Tribes to police their communities,
regulate activity, and engage in large-scale economic
development.
The Reservation Land Consolidation Act would cut through
the red tape that prevents Tribes from restoring their
reservation lands. It would do this by requiring the Secretary
of the Interior to approve applications on on-reservation
parcels into trust. And it is worth pointing out that these
parcels aren't always giveaways; these lands are already owned
by the Tribes.
My bill would simply streamline the fee-into-trust process
for on-reservation parcels, which may help Tribes make
significant progress at fixing these jurisdictional
checkerboards affecting Indian Country today. In doing so, it
would promote the continued revitalization of tribal
governments as intended by the Indian Reorganization Act, and
the bill would be a big step toward fulfilling the promises
made by the United States through treaties and statutes
establishing reservation lands.
I want to thank you again, Mr. Chairman, for holding this
hearing on the four bills before us today. I look forward to
hearing from our witnesses and having a robust discussion about
these bills.
The Chairman. Thank you very much, Mr. Vice Chairman.
Any other members of the Committee like to make a statement
before we turn to Senators Flake and Merkley?
STATEMENT OF HON. AL FRANKEN,
U.S. SENATOR FROM MINNESOTA
Senator Franken. Sure, I would, Mr. Chairman. Thank you.
I want to thank all the witnesses today for their
testimony, and obviously the Chairman and the Vice Chairman for
holding this hearing.
As we have heard before in this Committee, there are many
benefits of land into trust acquisitions, including the ability
to create housing, promote economic activities, and protect
tribal culture. The land into trust process is extremely
important to Tribes across the Country. Many Tribes lost most
of their trust land base in the late 19th and early 20th
centuries through broken treaties and fraudulent land
transactions.
In Minnesota, out of nearly 61,000 acres originally
included in the Mille Lacs Indian Reservation, there are only
2,600 acres held in trust today. The land into trust process is
the only avenue available to restore a vastly depleted trust
land base.
As a result of the hearing today, we members who sit on
this Committee can hopefully educate our colleagues who aren't
on the Committee and get this issue the attention that it
deserves.
Thank you again, Chairman Barrasso and Vice Chairman
Tester, and to all our witnesses again today, and I look
forward to your testimony.
The Chairman. Thank you, Senator Franken.
Senator Lankford?
STATEMENT OF HON. JAMES LANKFORD,
U.S. SENATOR FROM OKLAHOMA
Senator Lankford. Mr. Chairman, I want to say, first off, I
really do appreciate the Vice Chairman on this bill and the
intent of it. It is a big issue for us.
Obviously, as we have discussed before and as most members
of this Committee know full well, Oklahoma has a very unique
dynamic, with 39 Tribes and a lot of overlapping area and a lot
of integration where we are in a non-reservation State. So
there is this integration between cities, States, counties that
has worked very well for us as a State and a lot of
partnership, but I am not sure this wouldn't break down some of
that partnership and some of that relationship.
So in its current form I couldn't support it. I do think
this a big issue. I would tell you whether you are in eastern
Oklahoma or western Oklahoma, the rules and the timing is
different for how you are going to move land into trust. So not
only is it a broken process even within our own States; the
rules and the timing is not enforced consistently, and it is an
issue that I frequently hear and it is one of the things that
has to be resolved long-term.
Senator Tester. We want to make sure this bill solves
problems, not create problems. Look forward to working with
you.
Senator Lankford. I agree. Look forward to it. Thank you.
The Chairman. Senator Cantwell?
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Mr. Chairman, thank you. I will be brief,
since the vote has started and all our colleagues would like to
get a statement in.
I want to welcome two of our witnesses here today, the
Honorable Ron Allen, who is the chair of the Jamestown
S'Klallam Tribe, who is going to talk about the importance of
2636, which would require mandatory approval of fee to trust
applications on reservations. Thank you for your long advocacy
about land into trust as an economic development tool for
Tribes, so thank you for being here.
And also welcome to Paul Lumley for your leadership on S.
3222, the Columbia River In-Lieu and Treaty Fishing Access
Sites Improvement Act, basically led by my colleague from
Oregon who is here today, Senator Merkley. Glad to join in with
him on that legislation and look forward to hearing both of
your statements today.
Thank you.
The Chairman. We would like to welcome two Senate guests to
the Committee today and I would like to call on Senator Flake.
STATEMENT OF HON. JEFF FLAKE,
U.S. SENATOR FROM ARIZONA
Senator Flake. Thank you, Mr. Chairman, and thank you, Mr.
Vice Chairman, as well. Thanks for holding this hearing and
allowing me to provide testimony on S. 3300, The Hualapai Tribe
Water Rights Settlement Act.
I would like to welcome Hualapai Tribe's Chairman, Dr.
Clarke. Thank you for coming here and appearing and giving
testimony.
Representatives from the other parties in the settlement of
the State of Arizona, Central Arizona Water Conservation
District, Salt River Project, Freeport Minerals Corporation,
are here today as well. They are in support of this settlement.
I would like to include their statements for the record.
The Chairman. No objection.
Senator Flake. Thank you.
Last week, this water settlement act was introduced and it
is important, obviously, for the State of Arizona and the
Tribes. This roughly 1 million acre reservation is ill-suited
for an economy based on mining, oil and gas, timber, and
agriculture. What the Hualapai Tribe has done is build an
economy based on the one resource we have in abundance, and
that is people wanting to see and experience the Grand Canyon
and the Colorado River.
The Tribe's development of Grand Canyon West draws nearly
one million visitors a year to northwestern Arizona. Without
access to additional reliable water supplies, they are unable
to realize its full potential, which includes the residential
community at Grand Canyon West for their tribal members who
work there.
In short, the legislation provides significant, but fair,
benefits to the Hualapai Tribe.
This legislation also has benefits outside of the
reservation and the region. The Hualapai Tribe makes a claim to
the Colorado River, a critically important water source for the
State that provides roughly 40 percent of our water supplies.
And because of the priority of the Tribe's claims, there is a
possibility that future development of the water rights would
displace current water users in Arizona. This fair settlement
dedicates 4,000 acre feet of CAP's Colorado River water to the
Tribe in a way that puts them on par with existing CAP water
users.
Those who are unfamiliar with Arizona water, I should point
out that CAP serves an area with nearly 80 percent of the
State's population, so we are talking about widespread impacts
here. As I have often said, Arizona has a history of forward-
looking water planning. We need to continue this kind of
planning and do more. This legislation is one of the next steps
we need to take both for the sake of the Hualapai Tribe and for
those of us in Arizona who depend on Colorado River water.
I look forward to working with the Committee to advance
this bill and find a suitable offset for the spending that is
authorized by it.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Flake.
Senator Merkley?
STATEMENT OF HON. JEFF MERKLEY,
U.S. SENATOR FROM OREGON
Senator Merkley. Thank you very much, Mr. Chairman.
Appreciate your holding the hearing on this bill today. I would
also like to thank the co-sponsors, Senator Wyden and Senator
Murray, but particularly Senator Cantwell, who serves on this
Committee. I welcome Paul Lumley, the Executive Director of the
Columbia River Inter-Tribal Fish Commission, who is here to
testify, and I appreciate his expertise.
This legislation is important for the four treaty tribes
along the Columbia River: the Yakama, the Nez Perce, Warm
Springs, and Umatilla. When the Federal Government built dams
along the river in the 1930s and 1940s, entire communities and
hundreds of traditional tribal fishing sites were flooded.
Because the construction of the dams along the river adversely
impacted the treaty-protected fishing sites, Congress
authorized the Corps to rehabilitate existing in-lieu sites and
designate new in-lieu treaty fishing access sites.
However, this responsibility has been seriously neglected.
The Federal Government failed to meet the most basic
obligations of maintaining safe and sanitary conditions at the
fishing sites along the river. I have personally visited to see
the conditions myself, and they are shocking. Sites lack
utilities, lack running water, electricity; others have no law
enforcement to prevent trespassing or other public safety
issues.
The Federal Government agreed to meet obligations to
members of these Tribes and it is completely unacceptable that
our Government has failed to live up to the agreement. Tribal
members shouldn't have to live in unsafe, unsanitary conditions
in order to practice their ancestral traditions.
This bill, S. 3222, is a step in the right direction. It
will help make desperately needed improvements along the 31
tribal fishing sites on the Columbia River. These include
structural improvements like fishing platforms, public
restrooms, and general structural upkeep. It includes
improvements such as fire hydrants, drinking water, electrical
infrastructure for safe electrical hookups, basic sewer and
septic infrastructure.
The bill also allows the BIA to contract with Tribes and
tribal organizations to do enhancements chosen by the Tribe
based on the Tribe's best judgment of the improvements that are
needed.
I invite and encourage the members of the Committee to
support passage of S. 3222 because we need to right this
historic wrong. Thank you.
The Chairman. Thank you very much, Senator Merkley.
We are now going to hear from our witnesses. As the
witnesses know, we are in the middle of two roll call votes.
Some of the members have left, will be coming back and coming
in and out as we hear your testimony, and then we will be back
for questioning.
First we will hear from Mr. Larry Roberts, who is the
Principal Deputy Assistant Secretary of Indian Affairs at the
U.S. Department of Interior; next, the Honorable Damon Clarke,
Chairman of the Hualapai Tribe of Peach Springs, Arizona; next
is the Honorable Lavern Jefferson, who is the Treasurer of the
Meskwaki Tribal Council of the Sac and Fox Tribe of the
Mississippi in Iowa. Appreciate your being here, as well as
your significant service to the Country. The Honorable Ron
Allen, Treasurer of the National Congress of American Indians
in Washington, DC; and Mr. Paul Lumley, who is the Executive
Director of the Columbia River Inter-Tribal Fish Commission
from Portland, Oregon.
I would remind the witnesses that your full statement will
be made part of the official hearing record today, so please
keep your statements to five minutes or less so that we may
have time for questions.
I look forward to hearing your testimony, beginning with
Mr. Roberts. Please proceed.
STATEMENT OF LARRY ROBERTS, PRINCIPAL DEPUTY
ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S.
DEPARTMENT OF THE INTERIOR
Mr. Roberts. Thank you, Chairman Barrasso, members of the
Committee. Thank you for the opportunity to testify this
afternoon on four bills. I will begin with S. 3222, the
Columbia River Treaty Fishing Sites bill.
The Department supports that bill with amendments. We think
that the authorization in Section 2 of Senate Bill 3222 should
include other agencies like Indian Health Service, as they have
expertise in sanitation issues facing some sites.
With regard to the Hualapai Indian Water Settlement, S.
3300, while the Department cannot support the bill as
introduced, we do commit to continuing to work with the sponsor
and the parties to move forward with legislation to achieve a
settlement for the Tribe. The Department continues to believe
that water settlements are certainly preferable over protracted
litigation.
Negotiated settlements provide wet water to foster economic
development and ensure a viable homeland for Tribes. The
Hualapai certain maintains substantial reserved water rights
and deserves the ability to make use of that water through a
settlement for current and future generations, so the
Department will continue to work closely with the Tribe to
ensure continued progress on achieving a settlement.
With regard to S. 3216, the Sac and Fox bill, the
Department supports that bill as well. As the Chairman noted,
the bill would repeal an act that was passed in 1948. Sac and
Fox Nation currently operates their own tribal court, law
enforcement and detention facility, and so, if enacted, the
bill would ensure that the Nation is treated similar to other
Tribes across the Country.
With regard to Senator Tester's bill, Senate Bill 2636,
under the fee-to-trust process currently, Tribes obviously have
to purchase their lands from voluntary sellers. In many
instances they are literally repurchasing with their own funds
the very lands that they lost because of the allotment policy
that has since been repudiated by Congress.
So the bill would mandate the Department to accept land
into trust for Tribes where the subject lands are wholly within
or contiguous to the Tribe's reservation. We would, under the
bill, determine whether the land fits that criteria and, if so,
we would be required to take it into trust. We would continue
to provide notice to both the applicant and the public of the
acquisition when it occurs, if the bill is enacted.
But the effect would be to restore lands within a Tribe's
reservation. If purchased by the Tribe, it would facilitate
housing, infrastructure, economic development, and would also
reduce, over time, the checkerboard nature of reservations,
which is something that the Department and Indian Country
continue to grapple with to this day. And if legislation like
this isn't introduced, I think we will just continue to grapple
with this problem.
The bill would not change the processing of off-reservation
trust acquisitions. It also wouldn't change gaming eligibility
for acquisitions.
The bill, in closing, allows us to continue the successful
practice of things like the land buy-back program, where we are
supporting Tribes to consolidate their land holdings and remedy
the failed policy of allotment.
So I want to thank you for the opportunity to testify
today, and I am happy to answer any questions.
[The prepared statement of Mr. Roberts follows:]
Prepared Statement of Larry Roberts, Principal Deputy Assistant
Secretary, Indian Affairs, U.S. Department of the Interior
s. 3216
Chairman Barrasso, Vice-Chairman Tester, and members of the
Committee, my name is Larry Roberts. I am the Principal Deputy
Assistant Secretary for Indian Affairs at the Department of the
Interior (Department). Thank you for the opportunity to testify before
the Committee on S. 3216, a bill to repeal the Act entitled ``An Act to
Confer Jurisdiction on the State of Iowa Over Offenses Committed By Or
Against Indians On The Sac And Fox Indian Reservation'' referenced as
62 Stat. 1161, Chap. 759. The Department supports S. 3216.
Criminal Jurisdiction in Indian Country
Improving public safety in Indian Country is a bi-partisan
priority. We know that Tribes are best positioned to provide for the
safety and well-being of their communities and that law enforcement is
a federal trust and treaty responsibility. Under the repudiated policy
of termination, Congress enacted legislation that displaced federal
criminal jurisdiction and transferred that jurisdiction to certain
States. As a result of these laws, criminal justice systems in Indian
Country were understaffed and underfunded when compared to reservations
of similar size and population that were not subject to such laws. Like
other more recent enactments by Congress, S. 3216 reflects the modern
federal Indian policies of self-determination and self-governance. S.
3216 clarifies a muddled and complex jurisdictional scheme. We support
S. 3216 and similar legislation which clarifies jurisdiction and moves
forward from the termination policy of the past.
The recent passage of the Tribal Law and Order Act (TLOA) in 2010,
reflects the strong federal policy to promote collaboration among
tribes and the Federal Government and to promote tribal self-
determination and self-governance for criminal justice in Indian
Country. This legislation for the Sac and Fox Indian Reservation
reflects those policies.
S. 3216
S. 3216 is a bill to repeal the Act entitled ``An Act to Confer
Jurisdiction on the State of Iowa Over Offenses Committed By Or Against
Indians On The Sac And Fox Indian Reservation.'' By repealing 62 Stat.
1161, Chap. 759, criminal jurisdiction over offenses by or against
Indians on the Sac and Fox Indian Reservation would be exclusive to
either the Tribe or the Federal Government under the Major Crimes Act.
The Sac and Fox Nation (``Tribe'') located in Iowa currently
operates their own tribal court, law enforcement and detention
facility. However, the Bureau of Indian Affairs, Office of Justice
Services does not currently fund any of these activities. The only
related funding the BIA provides to the Tribe is Consolidated Tribal
Government Program (CTGP) funding, which the Tribe uses to support
their tribal court operations through a P.L. 93-638 contract. Enactment
of S. 3216 would ensure that the Tribe is treated similar to other
Tribes across Indian country where either BIA or the Tribe provides
those federal law enforcement services.
If enacted into law, the bill could have funding implications as
current funding streams to existing tribes cannot be reduced in order
to make funds available for the Tribe. The Department is aware that
both the Tribe and the State of Iowa seek to repeal of 62 Stat 1161
Chap. 759 and support S. 3216.
Conclusion
Thank you for providing the Department the opportunity to testify
on S. 3216. The Department supports S. 3216. I am available to answer
any questions the Committee may have.
s. 3222
Chairman Barrasso, Vice-Chairman Tester, and members of the
Committee, my name is Larry Roberts. I am the Principal Deputy
Assistant Secretary for Indian Affairs at the Department of the
Interior (Department). Thank you for the opportunity to testify before
the Committee on S. 3222, the ``Columbia River In Lieu and Treaty
Fishing Access Sites Improvement Act,'' a bill to authorize the
Secretary of the Interior to assess sanitation and safety conditions at
Bureau of Indian Affairs (BIA) facilities that were constructed to
provide treaty tribes access to traditional fishing grounds and expend
funds on construction of facilities and structures to improve those
conditions. The Department supports S. 3222, with amendments.
Background
United States entered into treaties with tribes along the Columbia
River in the 1850s guaranteeing the tribes the rights to their
fisheries in exchange for the peaceful cession of most of their
territory. However, by the late 1880s, non-Natives had encroached on
many of the tribes' treaty fisheries. The United States filed lawsuits
to protect the tribes' fishing rights, and resulting court
determinations re-affirmed their treaty-protected right of access to
usual and accustomed fishing grounds.
Currently, the Columbia River Inter-Tribal Fisheries Commission
(CRITFC) provides the operations and maintenance of 28 fishing sites
along the Columbia River through a BIA Indian Self-Determination and
Education Assistance Act Title I, P.L. 93-638 contract, for the
exclusive use of Indian fishers from the four CRITFC member tribes. \1\
The sites, which are held by the United States for the benefit of the
tribes, offer a wide range of amenities for the fishers including
access roads and parking areas, boat ramps and docks, fish cleaning
tables, net racks, drying sheds, restrooms, mechanical buildings, and
shelters.
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\1\ Yakima Nation, the Confederated Tribes of the Umatilla Indian
Reservation, the Nez Perce Tribe, and the Confederated Tribes of the
Warm Springs Reservation of Oregon.
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S. 3222
S. 3222, if enacted, would authorize the Secretary of the Interior
to assess sanitation and safety conditions at BIA facilities that were
constructed to mitigate 400 acres of traditional fishing villages
inundated by federal hydro development. Today many of these facilities
receive high use in excess of what they were originally designed. Any
funds appropriated would be expended on facilities and structures to
improve those conditions, and for other purposes set forth in Section
2(c).
The Department agrees that S. 3222 would help ensure that the lands
necessary for Indians to conduct treaty protected fishing remain
wholesome and open for Indian fishers actively engaged in the continued
use of these fisheries.
The Department notes that Section 2(a) of the bill applies to sites
``owned'' by BIA. We think it would be more accurate to describe the
sites as ``lands held by the United States for the benefit of the
Treaty Tribes.''
In addition, the Department recommends extending the Secretary of
the Interior's exclusive authorization-delegation authority in Sec. 2
(b) of S. 3222, to include other agencies, (in addition to tribes or
tribal organizations already in the bill), that have expertise in the
issues facing some sites.
Section 2(c)(2) of S. 3222 would authorize the improvement of ``. .
.access to electricity, sewer and water infrastructure, where feasible,
to reflect needs for sanitary and safe use of facilities.'' When such
structures exist it is important to note, that water sources and
washrooms are community structures, and where it is feasible, such
community structures could be improved or expanded. The Department
would not interpret this provision to include improvements for
individual electricity and/or sewer water hookups associated with
recreational vehicles.
Conclusion
Thank you for providing the Department the opportunity to provide
input into S. 3222. The Department supports S. 3222, with amendments. I
am available to answer any questions the Committee may have.
s. 3300
Chairman Barrasso, Vice Chairman Tester and members of the
Committee, I am Larry Roberts, Principal Deputy Assistant Secretary for
Indian Affairs at the Department of the Interior (Department). I am
here today to provide the Department's position on S. 3300, the
Hualapai Tribe Water Rights Settlement Act of 2016, which would approve
and provide authorizations to carry out a settlement of the water right
claims of the Hualapai Tribe in Arizona (Tribe). We have significant
concerns about the Federal costs of the settlement, which totals
approximately $173.5 million in 2016 dollars, and may also
underestimate its true cost. In addition, the Department is unable to
conclude at this time that a pipeline bringing water from the Colorado
River to remote locations on the Hualapai Reservation is the best and
least costly alternative to supply water to the Hualapai Reservation
(Reservation) communities and economic development projects. Therefore,
the Department cannot support S. 3300 as introduced.
I. Introduction
First, let me begin by acknowledging that disputes over Indian
water rights are expensive and divisive. In many instances, Indian
water rights disputes, which may last decades, are tangible barriers to
social and economic 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. This Administration supports the resolution of
Indian water rights claims through negotiated settlement where
possible, consistent with the Criteria and Procedures for the
Participation of the Federal Government in Negotiations for the
Settlement of Indian Water Right Claims (``Criteria and Procedures'').
These principles include that the United States participates in water
settlements consistent with its role 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 included
in a settlement; and that settlements should include appropriate cost-
sharing by all parties proportionate to the benefits received by each
from the settlement.
II. Historical Context
A. The Hualapai Reservation and the Hualapai Tribe
The aboriginal homeland of the Hualapai Tribe is the Grand Canyon
and plateau region to the south of the Grand Canyon. The main
Reservation was established by Executive Order on January 4, 1883, and
encompasses approximately 992,462 acres of tribal trust lands located
in northwestern Arizona. The tribal headquarters is Peach Springs,
Arizona, near the southern boundary of the Reservation. The entire
northern boundary of the main Reservation is 108 miles along the
Colorado River in the Grand Canyon. In addition to the main
Reservation, there is also a 60-acre Executive Order Reservation
located approximately 40 miles south of the main Reservation.
According to the 2007 population estimates, the population of the
Reservation was 1,776. The total tribal membership in 2010, including
members living off the Reservation, was 2,300. The majority of on-
Reservation residents reside in or near Peach Springs.
Employment on the Reservation primarily consists of recreation,
tourism, and tribal and Federal Government services. Tourism is driven
primarily by activities related to the Grand Canyon: the Tribe's
tourism center, Grand Canyon West: and river rafting in the Colorado
River. The Tribe also owns and operates the Hualapai Lodge, located in
Peach Springs.
Opened in 2007, Grand Canyon West includes the Skywalk, a
horseshoe-shaped glass-bottom walkway that extends out from the rim of
the Grand Canyon. Annual visitation at Grand Canyon West has steadily
increased since its opening, and exceeded one million visitors for the
first time in 2015, making it the primary economic driver on the
Reservation.
B. Water Resources of the Hualapai Reservation
The main Reservation is located primarily in the Colorado River
basin with a small portion in the Upper Verde River basin. The majority
of streams on the Reservation are ephemeral. Several springs
discharging from the regional aquifer at the bottom of canyons can
provide baseflow for short perennial reaches, which ultimately
discharge to the Colorado River. The largest of these perennial streams
are Diamond Creek and Spencer Creek, with mean annual flows of over
3,700 acre-feet per year (afy) and about 4,600 afy, respectively. The
springs that feed these streams are remotely located in deep canyons
and are not practically accessible for use by the Tribe. Smaller
springs on the plateaus provide water for livestock purposes.
Groundwater resources on the Reservation occur in varying degrees
of magnitude, depending on the type and location of water-bearing
zones. The Department is conducting groundwater studies and is
preparing to perform two additional groundwater studies in an effort to
accurately characterize the groundwater resources on and near the
Reservation.
The major water use on the Reservation occurs in two locations: The
town of Peach Springs and Grand Canyon West. Three wells serve the
Peach Springs public water supply system and are located approximately
6.5 miles southwest of the town. The current level of water use in
Peach Springs is approximately 250 afy. All three supply wells produce
water from the Truxton aquifer, an aquifer in the alluvial sand and
gravel and lake deposits of Truxton Valley that extends off the
Reservation. Water for Grand Canyon West is supplied via a pipeline
from a well approximately 30 miles away. Current water use at Grand
Canyon West is 40 afy. Current cumulative water use for the Reservation
is around 300 afy.
III. Proposed Hualapai Tribe Settlement Legislation
A. Negotiation
The Tribe claims water rights in the Colorado, Verde, and Bill
Williams River basins. Negotiations regarding potential settlement of
the Tribe's water rights claims have been ongoing since 2011, when the
United States established a negotiating team to negotiate a
comprehensive settlement of all the Tribe's water rights within
Arizona. The settlement was divided into two phases, the first phase
addressed certain water rights in the Bill Williams River basin and
resulted in the Bill Williams River Water Rights Settlement Act of
2014, P.L. 113-223. The second phase, addressed in S. 3300, covers
additional water rights in the Bill Williams River basin, as well as
the remainder of the Tribe's water rights in the Colorado River basin
and the Verde River basin.
S. 3300 would resolve the Tribe's water rights claims in Arizona;
ratify, and confirm the Hualapai Tribe water rights settlement
agreement among the Hualapai Tribe, the United States, the State of
Arizona, and others; and authorize funds to implement the settlement
agreement. The bill would reallocate 4,000 acre-feet of fourth-priority
Central Arizona Project (CAP) non-Indian agriculture priority water to
the Tribe to be used for any purpose on or off the Reservation within
the lower Colorado River basin in Arizona.
S. 3300 authorizes the appropriation of a total of $173,500,000 for
the following purposes:
$134,500,000 to design and construct the Hualapai Water
Project (Project), consisting of approximately 70 miles of
pipeline from the Colorado River to Peach Springs and Grand
Canyon West, two water treatment plants, several pumping
plants, and other appurtenant features with an overall capacity
designed to deliver 3,414 afy;
$32,000,000 for the Hualapai OM&R Trust Account, to be used
by the Tribe for operation, maintenance, and replacement of the
Project;
$5,000,000 for the Secretary of the Interior for operation,
maintenance, and replacement of the Project until such time
that title of the Project is transferred to the Tribe by the
Secretary; and
$2,000,000 for the Secretary to provide technical assistance
to the Tribe, including operation and management training for
the Project.
IV. Department of the Interior Positions on S. 3300
While the Department has a record of strong support for Indian
water rights settlements, the Department has significant concerns about
S. 3300 and does not support the legislation for the reasons stated
below.
The Department is concerned by the disparity between the level of
funding called for in S.3300 and the relatively small amount of water
to be delivered to the Tribe through the Project. The Department is
also concerned about the scope and size of the Project given current
and projected water uses on the Reservation. In addition, we believe
the cost to construct a 70-mile pipeline from the Colorado River
lifting water over 4,000 feet in elevation will be significantly higher
than the amount authorized in S. 3300. Moreover, we believe that the
proposed infrastructure project is likely to generate substantial
litigation on multiple fronts.
The Criteria and Procedures require us to analyze whether the
settlement ``include[s] non-Federal cost sharing proportionate to the
benefits received by the non-Federal parties.'' In this instance, the
State parties have failed to make earnest efforts to provide for
adequate cost-sharing relative to the benefits they will receive in
this Indian water rights settlement.
The Department is concerned that S.3300 would set a precedent
requiring tribes to pay CAP costs that are unrelated to settlement
benefits. This settlement would be the first in Arizona that includes
CAP water but does not use any portion of the CAP operating system for
water deliveries to the Reservation. Despite lack of use of the system,
S. 3300 would obligate the Tribe to pay the CAP fixed OM&R charges for
all water deliveries. Under such an arrangement, water delivered to the
Reservation would incur two OM&R costs--the fixed CAP OM&R charge and
the Tribe's own Project OM&R costs. The Department does not support
this ``double charge'' for water deliveries.
S. 3300 also includes two provisions that the Department continues
to have concerns about: a broad waiver of sovereign immunity and a
restriction limiting all future land into trust acquisitions to be
accomplished only through acts of Congress. While other Arizona Indian
water rights settlements contain somewhat similar provisions, the
Department has opposed such provisions in the past and continues to do
so. The sovereign immunity waiver is even broader than prior provisions
and is far broader than it needs to be for any reasonable purpose.
As a final matter, the Department is deeply concerned about
provisions of S.3300 and the settlement agreement that prohibit the
Tribe and the United States from objecting to any use of groundwater
outside the boundaries of the Reservation even if those uses interfere
with acknowledged Federal reserved groundwater rights. This provision
represents significant risks to both the Tribe and the United States
and implicates Federal trust responsibilities.
V. Conclusion
S. 3300 reflects a significant effort by the Tribe and the state
parties to settle the Hualapai Tribe's water rights through
negotiation. The Department shares this goal and is committed to
working with the Tribe and the parties to reach a final and fair
settlement of the Tribe's water rights claims that we can fully
support.
Mr. Chairman, this concludes my written statement. I would be
pleased to answer any questions the Committee may have.
The Chairman. Well, thank you very much.
We are down to the last two minutes or so on the vote, and
I don't want you to have to testify, Chairman Clarke, without
people up here to hear exactly what you have to say, so I am
going to call a brief recess until one of the other members who
is voting returns. I know Senator Tester is on his way back, so
if it is all right with you, I am just going to interrupt the
proceedings at this point, and then as soon as one of the
members returns, we will continue with the hearing.
Thank you.
[Recess.]
Senator Lankford. [Presiding.] I will bring us back into
our legislative hearing. I apologize for the recess as members
go back and forth during the voting time, but we would like to
continue our testimony and time.
I believe up next is Chairman Clarke, so we would be
honored to be able to receive your testimony now.
STATEMENT OF HON. DAMON CLARKE, Ed.D., CHAIRMAN, HUALAPAI TRIBE
Mr. Clarke. Chairman Barrasso, Vice Chairman Tester, and
members of the Committee, my name is Dr. Damon Clarke, Chairman
of the Hualapai Tribe. The Hualapai Tribe strongly supports S.
3300, the Hualapai Tribe Water Rights Settlement Act of 2016.
The Hualapai Reservation encompasses approximately one
million acres in northwestern Arizona. Our Reservation has no
significant surface streams other than the Colorado River, and
has very limited groundwater. While the Tribe is presently able
to serve our principal residential community at Peach Springs
with groundwater, it is a resource subject to depletion and
water levels on the Reservation is dropping.
The Colorado River is the only feasible supply for
satisfying long-term water needs to our Reservation. Our Tribe
needs the delivery of Colorado River water both to provide a
permanent and secure water supply to our future population in
Peach Springs and elsewhere on our Reservation, and to realize
the unique opportunities for economic development at Grand
Canyon West, a world class resort tourist development the Tribe
operates on the western rim of the Grand Canyon on our
Reservation.
Grand Canyon West currently employs approximately 300
tribal members, as well as about 300 non-tribal members, and
hosts over a million visitors a year. But it is located on a
two-hour drive on a dirt road from Peach Springs, where
virtually all our tribal members on the reservation live. Thus,
tribal members at Grand Canyon West have a daily route of four
hours a day to their jobs at Grand Canyon West, and longer in
inclement weather.
Currently, it is impossible to locate a residential
community at Grand Canyon West because of the lack of water
there. This imposes an unsustainable burden on the tribal
members and their family. The Tribes needs Colorado River water
at Grand Canyon West in order to allow tribal members to reside
on the Reservation near their jobs.
We are proud of the fact that the Tribe is moving forward
towards achieving full employment for our members and economic
self-sufficiency. But the severe lack of water on the
reservation is a major obstacle in reaching these goals. With
additional water, the Tribe could take advantage of the
potential for further development, and that would provide
additional jobs for tribal members and non-Indians, as well as
revenues for our tribal government.
Over the past six years, the Hualapai Tribe has negotiated
a comprehensive settlement of all the Tribe's reserve water
rights. The United States actively participated in the
settlement negotiations through a Federal negotiating team.
Legislation to ratify this settlement is now before the
Committee. The legislation is strongly supported by the State
of Arizona and other parties to the settlement: the Salt River
Project, the Central Arizona Water Conservatory District and
Freeport Minerals Company.
Let me summarize the principal elements of this
legislation. The Act comprehensively settles all of the
Hualapai Tribe's federally reserved water right claims for its
Reservation and trust lands. The Tribe receives exclusive
rights to all groundwater and surface water on the Reservation
and its other trust lands, and agrees not to object to any
pumping of groundwater or diversions of surface water outside
the Reservation or its trust lands.
The Tribe receives an allocation of 4,000 acre feet a year
of Central Arizona Project water from the Colorado Water. Of
this amount, 1,115 acre-feet a year will be ``firmed,'' half by
the United States and half by the State, until 2108 to protect
against future shortages of the Colorado River in Arizona.
The Act authorizes a federally funded infrastructure
project to deliver up to 3,414 acre feet a year from the
Colorado River to the Reservation. The project would construct
a diversion of water from the Colorado River at Diamond Creek,
which is on the Reservation, and then a 70-mile pipeline to
deliver water to both Peach Springs and Grand Canyon West. The
construction cost of this infrastructure project is about
$134.5 million.
I want to emphasize the two major non-Federal contributions
to this settlement. First, pursuant to the Bill Williams River
Water Right Settlement Act of 2014 provided a major
contribution to the Hualapai Tribe which we can use to purchase
additional Colorado River water rights. The 2014 Act viewed
that money via non-Federal contribution to the settlement.
Freeport also contributed $1 million to help fund our
engineering study of the infrastructure alternatives for the
settlement.
Second, the State of Arizona is making a contribution
afirming a portion of the CAP water.
Passage of this legislation is essential for our Tribe to
realize the full potential on our Reservation. The use of water
for economic development within the parameters of past water
right settlements. Most Indian water rights settlements in this
century have provided Federal funding for infrastructure
development to support commercial, as well as residential, uses
of water.
Thank you for the opportunity to testify before you today.
I would be pleased to answer any questions you may have, and
our Tribe will help in any way to securing enactment of this
critical legislation.
[The prepared statement of Mr. Clarke follows:]
Senator Lankford. Thank you very much, Chairman.
Prepared Statement of Hon. Damon Clarke, Ed.D., Chairman, Hualapai
Tribe
Chairman Barrasso, Vice Chairman Tester and members of the
Committee, my name is Dr. Damon Clarke, Chairman of the Hualapai Tribe.
Our Hualapai Tribal Council strongly supports S. 3300, the Hualapai
Tribe Water Rights Settlement Act of 2016. Before I describe the major
elements of this legislation and the critical benefits the Tribe
receives from it, let me briefly inform the Committee of the Tribe's
water needs.
The Hualapai Reservation encompasses approximately 1 million acres
in northwestern Arizona. All lands on the Reservation are tribal trust
lands; there are no allotments or fee inholdings. The Colorado River
forms the 108-mile northern boundary of the Reservation through a
portion of the Grand Canyon.
Our Reservation has no significant surface streams other than the
Colorado River, and has very limited groundwater resources. While the
Tribe is presently able to serve our principal residential community,
Peach Springs, with groundwater, that groundwater is a depletable
resource, and well levels on the Reservation are dropping. The only
feasible water supply for satisfying the long-term future needs of
Peach Springs and of the rest of our Reservation is the Colorado River.
Our Tribe needs delivery of Colorado River water both to provide a
permanent and secure water supply to our future population in Peach
Springs and elsewhere on our Reservation, and to realize the unique
opportunities for economic development we have already undertaken at
Grand Canyon West--a world class tourist development the Tribe has
constructed and operates on the Reservation on the western rim of the
Grand Canyon.
Grand Canyon West currently employs approximately 300 tribal
members (as well as about 300 non-members) and hosts over 1 million
visitors a year. But it is located a two-hour drive on a dirt road from
Peach Springs, where virtually all tribal members on the Reservation
live. Thus, tribal employees at Grand Canyon West have daily round-trip
commutes of four hours a day to their jobs at Grand Canyon West, and
longer in inclement weather. Currently, it is impossible to locate a
residential community at Grand Canyon West because of the lack of water
there. This imposes an unsustainable burden on tribal members and their
families. The Tribe needs Colorado River water at Grand Canyon West in
order to allow tribal members to reside on the Reservation near to
their jobs.
The Tribe also employs approximately 100 other tribal members in a
tribally-owned hotel in Peach Springs and a seasonal tribal river
rafting enterprise. We are proud of the fact that, without conducting
any gaming, our Tribe is moving towards achieving full employment for
our members and economic self-sufficiency.
But the severe lack of water on the Reservation is the major
obstacle to reaching these goals. The nearest groundwater to Grand
Canyon West is 35 miles away, and that supply is barely adequate for
current operations, and completely inadequate for growth. With
additional water, the Tribe could take advantage of the potential for
further development that would provide additional jobs for tribal
members and non-Indians, as well as revenues for our tribal government.
And critically, as noted above, a supply of water at Grand Canyon West
would also permit the Tribe to develop a residential community there,
so our tribal employees would have the option of living at Grand Canyon
West, near their jobs, instead of having unreasonably long commutes
from Peach Springs to get to their jobs.
Over the past six years, the Hualapai Tribe has negotiated a
comprehensive settlement of all of the Tribe's reserved water rights
with the State of Arizona and major private entities in Arizona. The
United States actively participated in these settlement negotiations
through a Federal Negotiating Team consisting of representatives from
affected Interior Department agencies and from the Department of
Justice. Legislation to ratify this settlement is now before the
Committee. The legislation is strongly supported by the State of
Arizona and by the private entities who are parties to the settlement--
the Salt River Project, Central Arizona Water Conservatory District and
Freeport Minerals Company.
The settlement legislation would authorize the expenditure of
$134.5 million in federal funds to construct the infrastructure
necessary to deliver vitally needed Colorado River water to Peach
Springs and Grand Canyon West, as well as an OM&R Trust Fund of $32
million to defray future costs of operating, maintaining and replacing
the project works. In addition, under the Bill Williams River Water
Rights Settlement Act of 2014, Pub. L. 113-223, 128 Stat. 2096 (Dec.
16, 2014), the Freeport Minerals Company provided a major contribution
to a Hualapai Tribe economic development fund which the Tribe can use
to purchase Colorado River water rights in order to facilitate this
comprehensive settlement. The 2014 Act states that this significant
funding from Freeport constitutes a non-federal contribution to the
Tribe's comprehensive water rights settlement. Sec. 5(d)(1)(B).
Freeport also contributed an additional $1 million to the Tribe that
enabled the Tribe to complete an essential ``appraisal level'' study to
determine the feasibility and costs of an infrastructure project to
bring Colorado River water to the Hualapai Reservation. That study is
the technical report referenced in this settlement legislation.
Both of these contributions by Freeport represent a very
substantial non-federal contribution to the costs of this comprehensive
settlement.
Let me now summarize the principal elements of the comprehensive
water rights settlement ratified by the legislation before you:
The Act comprehensively settles of all of the Hualapai
Tribe's federally reserved water right claims for its
Reservation and trust lands.
The Tribe receives exclusive rights to all groundwater and
surface water on the Reservation and its other trust lands, and
agrees not to object to any pumping of groundwater or
diversions of surface water outside the Reservation or its
trust lands.
The Tribe also receives an allocation of 4,000 acre feet a
year of Central Arizona Project water from the Colorado River.
Of this amount, 1,115 acre feet a year will be ``firmed'' (half
by the United States and half by the State) until 2108 to
protect against future shortages of the availability of
Colorado River water in Arizona. The ``firming'' of this water
by the State of Arizona represents another significant non-
federal contribution to the costs of the settlement. The Act
also provides the Tribe itself can ``firm'' additional portions
of the Central Arizona Project Water allocated to the Tribe in
any year the water is available and is not needed for delivery
to the Reservation.
As noted, the legislation authorizes a federally funded
infrastructure project to deliver up to 3,414 acre feet a year
from the Colorado River to the Reservation. The project would
construct a diversion of water from the Colorado River on the
Reservation at Diamond Creek and then a 70-mile pipeline to
deliver the water to both Peach Springs and Grand Canyon West.
This system would replace the Tribe's reliance on the existing
groundwater wells (except when those wells are needed as an
emergency backup). The construction cost of this water delivery
infrastructure is $134.5 million (in February 2016 dollars). In
addition, the legislation proposes additional federal funding
of $32 million for a trust account to defray operation,
maintenance and replacement (OM&R) costs of the project.
Of the several alternatives studied for an infrastructure project
to deliver water to the Reservation, this Diamond Creek diversion
project has significant advantages--(1) the diversion is at an area
which is already developed as a boat launch onto the Colorado River,
thus minimizing disturbance of any pristine areas in the Grand Canyon;
(2) there is already a road from Peach Springs down to the River at
Diamond Creek, thus providing good access for construction, and (3)
this location is one of the few areas along the Colorado River where
there is relatively flat land back from the River's edge to locate
pumps and infrastructure.
This also is the only project alternative that delivers water to
both Peach Springs and Grand Canyon West, providing sensible
flexibility to allow the Tribe to serve its needs both in the near term
and in the future. In addition to laying the foundation for a
residential community at Grand Canyon West, the proposed project also
provides for delivery of water to expand the Tribe's world-class
tourism attraction there. The use of water for such economic
development is well within the parameters of past Indian water rights
settlements. Most Indian water rights settlements in this century have
provided federal funding for infrastructure development to support
commercial as well as residential uses of water. There is, for example,
ample recent precedent for federally-funded irrigation projects to
deliver water to Indian reservations for purposes of commercial
agricultural, where agriculture is the basis of a tribe's economy. And
in other recent settlements, federally-funded projects have delivered
water to support other kinds of economic development--including
hydropower and other energy development, agriculture and a retail
travel center.
The Hualapai Reservation does not have the natural resources to
permit agriculture, timber or mineral development, but its virtually
unique location on the Grand Canyon gives it a strong basis to create a
self-sustaining tourism-based economy. The Tribe should be encouraged
and supported in its efforts to develop the resources and economic
opportunities that it has. Just as a federally funded irrigation
project for an agriculture-based tribal economy supports a
``commercial'' use of water, so too the ``commercial'' use of water to
develop Grand Canyon West is fully deserving of the Federal
Government's support.
As I noted above, passage of this legislation is absolutely
essential if our Tribe is to realize the full economic potential of our
Reservation. We have done everything possible to provide jobs and
income to our people in order to lift them out of poverty--but the lack
of a secure and replenishable water supply on our Reservation is our
major obstacle to achieving economic self-sufficiency. We recognize
that the infrastructure project authorized by this legislation entails
federal costs, but it is far more costly for our people to be mired in
poverty and to lack reasonable and adequate access to jobs.
Federal Indian policy has long favored economic self-sufficiency on
Indian reservations, and the quantification of tribal water rights
reserved under federal law in a manner that allows tribes to put their
water to an economically productive use. Passage of this legislation is
essential to allow my Tribe to attain these goals.
Thank you for the opportunity to testify before you today. I will
be pleased to answer any questions you may have, and our Tribe will
help in any way it can to secure enactment of this critical
legislation.
______
SUPPLEMENTAL TESTIMONY
Chairman Barrasso, Vice Chairman Tester and members of the
Committee, my name is Dr. Damon Clarke, Chairman of the Hualapai Tribe.
I would like to supplement my testimony regarding S. 3300, the Hualapai
Tribe Water Rights Settlement Act of 2016, which I presented at the
Committee's hearing on September 14, 2016. This supplemental testimony
is in response to several matters raised by the written testimony of
Acting Assistant Secretary of the Interior, Lawrence Roberts.
1. Concerns about level of funding for water delivery infrastructure
project
The Assistant Secretary's testimony (p. 4) expresses concerns about
(1) the level of funding contained in S. 3300 and ``the. . .amount of
water to be delivered to the Tribe through the Project,'' and (2) ``the
scope and size of the Project given current and projected water uses on
the Reservation.'' I can assure the Committee that the Project was
designed to deliver the amount of water that is minimally necessary to
satisfy the Tribe's water needs in the foreseeable future for an
economically self-sufficient homeland. This is the standard established
by the Arizona Supreme Court for quantifying tribal reserved water
rights. See In re General Aqjudication of All Rights to Use Water in
the Gila River System and Source, 35 P.2d 68 (Ariz. 2011) (Gila V). The
Tribe's needs are based upon expert projections of future population
growth on the Reservation over a 100-year period (the same period that
State law requires non-Indian communities in Arizona to use in
permitting new residential areas). The Tribe's calculation of needs
also takes account of all future needs, both municipal and domestic, as
well as the planned expansion of Grand Canyon West, the Tribe's
showcase tourism resource along the Grand Canyon--which the Assistant
Secretary's testimony acknowledges is ``the primary economic driver on
the Reservation'' (Roberts testimony, p. 3).
Since under this settlement the Tribe waives all future claims to
federally reserved water rights, the Project must deliver the amount of
water that the Tribe requires for the foreseeable future. Otherwise
this settlement would not be ``consistent with the federal trust
responsibility to American Indians and with federal policy promoting
Indian. . .economic self-sufficiency'' which the Assistant Secretary
avows is the purpose of ``settling Indian water rights disputes.''
(Roberts Testimony, p.1).
Finally, Assistant Secretary Roberts' testimony makes the
unsupported assertion that ``the cost to construct a 70 mile pipeline
from the Colorado River lifting water over 4,000 feet in elevation will
be significantly higher than the amount authorized in S. 3300.''
However, the amounts authorized in S. 3300 are directly based on a
thorough study conducted by a highlyregarded construction engineering
firm, DOWL-HKM of Tucson, Arizona. The study was conducted at above the
appraisal-level standard commonly used in other Indian water
settlements (some of which have experienced cost overruns) and was
designed and completed in close consultation with the Bureau of
Reclamation. The Tribe knows of no reason to expect cost overrides in
this project, and the federal participants in the settlement
negotiation have never presented any specific reasons to believe there
will be cost overruns. This statement in the testimony of Assistant
Secretary Roberts is entirely unexplained and without any foundation.
2. The possibility of litigation
The Assistant Secretary's testimony (at p.4) also asserts that
``the proposed infrastructure project is likely to generate substantial
litigation on multiple fronts.'' The Tribe knows of no possible or
threatened litigation if the Project is authorized. In the nearly six
years of settlement negotiations in which representatives of the
Interior and Justice Departments participated, no one has ever
suggested or alluded to any such litigation threat. Of course, if any
interested party had raised the possibility of litigation against the
Project, the Tribe and the other settlement parties would have
attempted to address its concerns. But again, this statement in the
Assistant Secretary's testimony is entirely unexplained and without any
foundation.
3. Groundwater uses
The Assistant Secretary's testimony expresses concerns about
provisions in S. 3300 and the settlement agreement that prohibit the
Tribe from objecting to the pumping of groundwater outside the
boundaries of the Reservation (p. 5). These concerns ignore the
provisions of S. 3300 and of the settlement agreement that give the
Tribe the exclusive use of all groundwater on the Reservation, thereby
prohibiting any non-Indian from objecting to any tribal use of
groundwater on the Reservation. These concerns also ignore the fact
that the settlement is a negotiated package with reciprocal
concessions. As the Interior and Justice Department participants in the
negotiations over the past six years well know, the State parties to
the negotiations firmly refused to agree to any restrictions on
groundwater pumping outside the Reservation, and advised the Tribe and
federal participants that any such restrictions would require changes
to State law that would be impossible to enact in the Arizona
Legislature.
The Assistant Secretary's testimony also alludes to groundwater
studies the Department currently is conducting on the Reservation, and
to additional groundwater studies that it expresses an intention to
conduct (p. 3). These additional studies of groundwater on the
Reservation furnish no basis for Congress to delay its consideration of
S. 3300--or for the Department to withhold its support of this
legislation. Multiple studies of groundwater resources on the
Reservation have been done, over a period of decades. None of the
extensive studies that have been done over time has shown that there is
any appreciable amount of accessible, reliable groundwater on the
Reservation.
We attach as Exhibit A a summary of past Reservation groundwater
studies that has been compiled by Natural Resources Consulting
Engineers (NRCE), the Tribe's expert hydrologist. The summary is
divided into two categories: studies done of the ``Deep Regional
Aquifer'' that extends under most of the Reservation, including the
Grand Canyon West area, and studies done of the ``Alluvial-Volcanic
Aquifers'' that include the Truxton aquifer.
The NRCE summary references seven studies of the Deep Aquifer, done
in 1962, 1977, 1987, 1992, 1999, 2005 and 2013. These studies were done
by, among others, the United States Geological Survey (USGS), the
Bureau of Land Management (BLM), the Bureau of Indian Affairs (BIA),
the Bureau of Reclamation (BOR), NRCE and DOWL-HKM. The only well that
has been successfully completed in the area near Grand Canyon West
(GCW-1) suffers from both low water quality and low yield. It is
currently not used for this reason.
Even more studies--nine in all--over an even longer period of time,
have been done of the alluvial aquifer. The NRCE summary lists studies
of this aquifer that were done in 1942, 1973, 1975, 1987, 1991, 1992,
2007, 2009 and 2011, by USGS, the Indian Health Service, BOR and the
Tribe. Again, none of these studies suggests that the alluvial aquifer
can serve as the source of water for the Tribe's long term needs.
Finally, NRCE has advised the Tribe and Interior Department that
the construction costs of an infrastructure project to produce and
deliver 3,400 acre feet a year of groundwater on the Reservation would
most likely not be appreciably lower than the cost of the
infrastructure project authorized by S. 3300 to deliver water from the
Colorado River to both Peach Springs and Grand Canyon West.
NRCE estimates that if deep groundwater is pumped for supplying a
substantial amount of this water, the construction and operating costs
of delivering that groundwater would likely exceed the costs of the
Project in S. 3300. This is so because of the extraordinarily high cost
of drilling the large number of wells that would be needed to produce
this amount of groundwater, with each such well having an estimated
unit cost of $2 million. Thus, no money would be saved by a project to
produce and deliver groundwater instead of Colorado River water, even
if sufficient groundwater was available. And given the number of past
studies that have failed to show any significant amount of groundwater
on the Reservation, there is no basis for the new studies that the
Department proposes to undertake, which will only serve to delay this
matter for years more.
We appreciate the opportunity to submit this supplement to the
Committee.
Attachment
MEMORANDUM, December 4,2015
To: Hualapai Project Files
From: NRCE, Inc.
RE: Previous Groundwater Studies
This memorandum presents a list and brief description of previous
groundwater studies on the Hualapai Reservation. The list of studies is
separated between the deep regional aquifer and the alluvial-volcanic
aquifers.
Deep Regional Aquifer
Description: The deep regional aquifer on the Hualapai Reservation
includes the Redwall-Muav Aquifer (R-Aquifer) and the Tapeats Sandstone
lying at the bottom of the Paleozoic section in contact with
crystalline basement rocks.
Representative well yields from the R-Aquifer range from 5
to 40 gallons per minute, with 150 gallons per minute the
highest reported in the region (Twenter, 1962; Myers, 1987; and
others).
There is some evidence indicating that faults, fractures,
and folds may enhance aquifer properties that can localize
potential for larger well yields; however targeting these
features using surface geophysics is speculative and drilling
costs are very high.
The USGS conducted a hydrogeological study of the
Reservation between 1957 and 1962 (Twenter, 1962). The R-
Aquifer was identified as the most promising aquifer, but
drilling depths were prohibitive.
Several wells were drilled to various depths (mostly
shallow) in the late 1960's and 1970's by the BLM and the BIA
loosely based on Twenter's recommendations but most were
unsuccessful (Huntoon, 1977).
Several deeper wells were completed on the Hualapai Plateau
in 1992 by the Bureau of Reclamation. One well drilled near the
GCW resort in 1992 targeted the deep regional R-Aquifer. The
well was deepened in 1999 (Watt, 2000). That well (GCW-1)
encountered groundwater only in the Tapeats Sandstone. The
shallower Redwall and Muav Formations were unsaturated. The
well is equipped with an oilfield-type pumping unit but is
currently unused due to low water quality and low yield (15-26
gpm).
NRCE was contracted in 2005 to investigate and evaluate all
possible water supply options for the resort. The preferred
alternative recommended diversion from the Colorado River.
Groundwater development options were judged to be infeasible
for a variety of reasons, but primarily because of their
inability to supply the sustainable yield required by the Grand
Canyon West resort at a reasonable overall project cost.
DOWL (2013) further assessed a few Colorado River
alternatives considered in the NRCE study. Groundwater
development alternatives were judged to be infeasible in this
study for the same reasons as the 2005 study by NRCE.
Alluvial-Volcanic Aquifers
Description: The main alluvial-volcanic aquifers are in the
northern Aubrey Valley around Frazier Wells (eastern part of the
Reservation), Westwater Canyon, Peach Springs-Truxton Wash Valley, and
elsewhere along the southwest flank of the Hualapai Plateau (e.g. Horse
Flat area and the upper Milkweed Canyon). The alluvial-volcanic
aquifers have areal extents that are limited by the valleys and washes
that contain them. The volume of stored groundwater is similarly
limited. Depth to water is generally shallow, typically less than 500
feet below ground level, and well yields of up to 170 gallons per
minute have been reported. Water from these aquifers is generally
acceptable for domestic use.
The Santa Fe Railroad drilled 6 fairly shallow wells within
Peach Springs between 1903 and 1922. The Hualapai Tribe
acquired use of water from the railroad spring-fed water system
between 1931 and 1954. One well near the town is currently
used.
The USGS conducted a study in 1942 to assist location of
prospective sites for development of stock water supply on the
Hualapai Reservation (Peterson, 1942). In addition to a
hydrogeological characterization of the region, the study
inventoried numerous existing wells and stock ponds. Peterson
recommended 18 sites across the Reservation for drill-testing.
N.J. Devlin evaluated the Peach Springs water system in 1973
and considered possibilities for development of additional
water supplies for the town. Devlin recommended further
development of the aquifer contained in the lake beds of
Truxton Valley. Development of other springs and other
exploration areas were judged to have low potential.
The Indian Health Service drilled two wells in Truxton
Valley in 1972 to provide additional water supply for Peach
Springs. A third well was drilled in 1976 by the IHS in Truxton
Valley near the wells drilled in 1972. These wells currently
supply all of the water needs for the town of Peach Springs.
The Bureau of Reclamation drilled an unsuccessful hole into
Cenozoic volcanics near the head of Milkweed Canyon in 1975. A
second successful well in Westwater Canyon alluvium and
volcanics was completed in 1975. This well currently provides
most of the water to Grand Canyon West via a 30-mile pipeline.
A well drilled in the Frazier Wells area in the eastern part
of the Reservation serves a fish-rearing facility. An
additional two boreholes were completed in the shallow alluvial
aquifer in the Frazer Wells area in an effort by the Tribe to
develop additional groundwater supply. Both wells were dry and
were abandoned.
Regional hydrogeological mapping by Richard Young (State
University of New York at Geneseo) focused on the Tertiary
volcano-sedimentary aquifer in the area of Westwater Canyon
near the well drilled by the Bureau of Reclamation (Young, R.
A., 1987, 1991, 1992, 2007). Stantec (2009) estimated the safe
yield of this aquifer to be approximately 600 afy. Further
development of this aquifer is prohibited by tribal policy as
it would likely reduce spring flow (considered to be a cultural
resource) in its discharge area.
NRCE conducted an evaluation of the groundwater supply for
the town of Peach Springs in 2011. That study included an
inventory of wells in the sub-regional area, a comprehensive
review of the regional geology, an evaluation of hydrologically
attractive areas for development of additional groundwater
supplies in the southern part of the Reservation, and made some
specific recommendations for exploratory evaluation of both the
R-Aquifer and alluvialvolcanic aquifers. The adequacy of
natural aquifer recharge to support existing and future water
needs was also assessed.
Next I will introduce the Honorable Lavern Jefferson, who
is the Treasurer of the Meskwaki Tribal Council, Sac and Fox
Tribe of the Mississippi in Iowa.
Thanks for being here today. We are honored to be able to
receive your testimony.
STATEMENT OF HON. LAVERN JEFFERSON, TREASURER, MESKWAKI TRIBAL
COUNCIL, SAC AND FOX TRIBE OF THE MISSISSIPPI
Mr. Jefferson. Chairman Barrasso, Vice Chairman Tester, and
members of the Committee, good afternoon. I am Lavern
Jefferson, Treasurer of the Sac and Fox Tribe of the
Mississippi in Iowa, also known as the Meskwaki Nation. Thank
you for this opportunity to testify today in support of S.
3216, which would repeal a 1948 act of Congress that conferred
jurisdiction to the State of Iowa over offenses committed by or
against Indians on our settlement.
The history of my Tribe, like many Tribes in the United
States, is complicated and unique, and its present criminal
justice system is a subject that cannot be understood unless I
share a bit about our story.
While our lands are held presently in trust by the Federal
Government, we do not live on a reservation. In 1857, the
Meskwaki Nation of Iowa was the only Indian Tribe to purchase
land in Iowa for the establishment of the Meskwaki Indian
Settlement. Not being considered citizens of the United States,
my ancestors could not hold title to land. Because of this, the
Iowa legislature consented to the governor of Iowa holding our
land in State trust.
By 1896, the governor of Iowa held 2,720 acres of land in
trust for the benefit of the Tribe, and the Federal Government
agreed to accept this land into trust. We are one of the few
Tribes in this Nation who settled on a piece of land. The fact
that we were never placed on a reservation remains a very
important part of our history and heritage. Due to the State of
Iowa's aid in holding land for the Tribe, the Meskwaki and the
State have enjoyed a progressive and positive relationship that
has endured over the years.
For generations, we took care of our own criminal issues
and shared jurisdiction over crimes committed on the Settlement
with the Federal Government. This changed in 1948, during the
termination era, when the Federal Government passed a one-
sentence law to give the State of Iowa criminal jurisdiction
over the Settlement. At that time, we did not have a formal
tribal police force, nor could we afford to create one.
The 1948 Act derived from the Kansas Act, which sought to
address reported gaps in jurisdiction over crimes committed
between Indians occurring in Indian Country within Kansas.
Prior to enactment of the Kansas Act, there was a concern that
if the State did not step into the gap to prosecute criminal
offenses on Indian land, criminal conduct would go unchecked.
These laws provided States the authority to ensure that would
not happen.
However, 68 years after the passage of the 1948 Act,
circumstances have changed and the Settlement is a much
different place. To start, the Meskwaki Nation now operates and
maintains a fully functional criminal justice system. We have a
full-time police department consisting of 10 officers. The
department is the primary agency dispatched to all emergency
and non-emergency complaints involving potential criminal
violations which occur on the Settlement. Our tribal police
officers are certified by the State of Iowa. This enables and
allows them to arrest non-Natives who commit crimes on the
Settlement.
The Tribe has a fully functioning court system. Our trial
court is composed of full-time judges, all of whom are law-
trained and members of a State bar. The court handles both
civil and criminal cases and has adopted court rules. There are
approximately 30 lawyers who are admitted to practice before
the court, including a prosecutor and public defender.
Offenders are offered various forms of rehabilitation and
punishment, and those convicted of crimes are regularly placed
on probation, working with a full-time probation officer who
sets up and coordinates community service, performs drug tests,
conducts unannounced home visits, and takes other steps to
assure that probationers are complying with court sentencing
orders.
Despite these great strides, the 1948 Act continued to
undermine effective law enforcement and implementation of a
criminal justice system on the Meskwaki Settlement.
The 1948 Act has created a dual-concurrent criminal justice
system composed of both tribal and State justice systems.
Because a criminal case can be brought both in State court and
in tribal court, a Native American defendant who commits an
offense on the Settlement must face the possibility of two
prosecutions by the State and the Tribe.
Consider a case where a non-Native and a Native both commit
the same offense on the Settlement. The non-Native is
prosecuted once in State court, as tribal courts have no
jurisdiction over non-Natives. The Native, however, is
prosecuted twice, once in State court and once in tribal court,
for the very same offense. The Native defendant is therefore
penalized more harshly and is subjected to greater fines,
costs, and receives two criminal convictions for committing one
offense. This is unfair and unjust.
Earlier this year, the State of Iowa approved legislation
calling on Congress to repeal this outdated law. We are
grateful that our delegation has answered this call and thank
Senator Grassley and Senator Ernst and Senator Leahy for
introducing this legislation.
Congress should now take swift action to pass the bill. By
doing so, you will promote better law enforcement on our
Settlement and strengthen our ability to chart our own course
as a sovereign Nation. This Committee has taken great strides
to eliminate many of the injustices of the Termination Era, and
the Meskwaki Nation applauds you for your effort. We urge you
to take similar action here.
Thank you again for this opportunity, and I am happy to
answer any questions you may have.
[The prepared statement of Mr. Jefferson follows:]
Prepared Statement of Hon. Lavern Jefferson, Treasurer, Meskwaki Tribal
Council, Sac and Fox Tribe of the Mississippi
Chairman Barrasso, Vice Chairman Tester, and Members of the
Committee:
Good afternoon. I am Lavern Jefferson, Treasurer of the Sac and Fox
Tribe of the Mississippi in Iowa, also known as the Meskwaki Nation.
Thank you for this opportunity to testify today in support of S. 3216,
which would repeal a 1948 act of Congress that conferred jurisdiction
to the State of Iowa over offenses committed by or against Indians on
our Settlement.
The history of my tribe, like many tribes in the United States, is
complicated and unique, and its present criminal justice system is a
subject that cannot be understood unless I tell you a little of the
historical dimensions of how we got to where we are now.
While our lands are held presently in trust by the Federal
Government, we do not live on a reservation. On July 13, 1857, the
Meskwaki Nation of Iowa was the only Indian Tribe to purchase land in
Iowa for the establishment of the Meskwaki Indian Settlement. Not being
considered citizens of the United States, my ancestors could not hold
title to land. Because of this, the Iowa Legislature consented to the
Governor of Iowa holding our land in state trust.
Between 1856 and 1896, the Tribe acquired more land in Tama County
with funds generated through the sale of pelts and horses, charitable
contributions, and treaty annuities. By 1896, the Governor of Iowa held
title to 2,720 acres of land in trust for the benefit of the Tribe.
Finally, in 1896 the Federal Government agreed to accept this land into
trust. We are one of the few, and perhaps the only, tribe in this
nation who settled on a piece of land. The fact that we were never
placed on a reservation remains a very important part of our history
and heritage. Due to the State of Iowa's aid in holding land for the
tribe, the Meskwaki and the State have enjoyed a progressive and
positive relationship that has endured over the years.
For generations, we took care of our own criminal issues and
problems and shared jurisdiction over crimes committed on the
Settlement with the Federal Government. This all changed in 1948, when
the Federal Government--in the era of termination and assimilation, and
at a time when our tribe did not have formal mechanisms for law
enforcement on the Settlement nor was the tribe financially in a
position to create a criminal justice system similar to what existed
elsewhere in the state--passed a one-sentence law to give the State of
Iowa criminal jurisdiction over the Settlement.
A precursor to the well-known Public Law 280, the Act of June 30,
1948 states:
That jurisdiction is hereby conferred on the State of Iowa
over offenses committed by or against Indians on the Sac and
Fox Indian Reservation in that State to the same extent as its
courts have jurisdiction generally over offenses committed
within said State outside any Indian reservation; provided
however, that nothing herein contained shall deprive the courts
of the United States of jurisdiction over offense defined by
the laws of the United States committed by or against Indians
on Indian reservations.
The law is a descendent of the Kansas Act, which sought to address
reported gaps in jurisdiction over crimes committed between Indians
occurring in Indian country within Kansas. Prior to enactment of the
Kansas Act there was a concern that if the State did not step into the
gap to prosecute criminal offenses on Indian land, criminal conduct
would go unchecked. Enactment of the Kansas Act led to the passage of
similar laws including the 1948 Act (which is virtually identical to
the Kansas Act). This is no accident--a letter written by the head of
an agency under the Bureau of Indian Affairs after the passage of the
Kansas Act states ``that the Indian Office in Washington [BIA] is
planning to recommend similar legislation for Indian areas in other
states when the plan has been tried out in Kansas.''
Eight years after passage of the Kansas Act, Congress moved forward
on the bill that our tribe seeks to repeal today. In the corresponding
committee report the House Committee on Public Lands wrote, ``The need
of this legislation arises from the fact that in certain instances,
Indian tribes do not enforce the laws covering offenses committed by
Indians; under the present law the State has no jurisdiction to enforce
laws designed to protect the Indians from crime perpetrated by or
against Indians; and law and order should be established on the
reservation when the tribal laws for the discipline of its members have
broken down.''
Additionally, an accompanying letter from Under Secretary of the
Interior Oscar L. Chapman said, ``On the Sac and Fox Indian Reservation
in Iowa. . .the old tribal laws and customs for the disciplines of its
members have broken down completely. There is no Indian court. A number
of years ago, an Indian judge was employed by the Federal Government
but, because of factionalism and the close blood and marital
relationship among the members of the tribe, the Indian judge did not
satisfactorily perform the duties of his office, and the position was
abolished. The employment of Indian police on the reservation met with
similar difficulties.''
Sixty-eight years after passage of the 1948 Act, the Settlement is
a much different place. The Meskawki Nation operates and maintains a
fully functional criminal justice system.
We have a full time police department consisting of 10 officers.
The Meskwaki Nation Police Department is the primary law enforcement
agency dispatched to all emergency and non-emergency complaints
involving potential criminal violations which occur on the Settlement.
All tribal police officers are certified by the State of Iowa--this
enables and allows them to arrest non-natives who commit crimes on the
Settlement.
The Tribe has a fully functioning court system. Our trial court is
composed of full time judges all of whom are law trained and members of
a state bar. The Court handles both civil and criminal cases and has
adopted court rules. There are approximately 30 lawyers who are
admitted to practice before the Sac and Fox of the Mississippi in Iowa
Court.
The Tribe appoints indigent defendants with court appointed lawyers
at tribal expense. Appeals are heard by a Court of Appeals composed of
judges who are all attorneys as well.
The Tribe employees a full time prosecutor who is a licensed
attorney. The Prosecutor handles all criminal prosecutions on behalf of
the Tribe in tribal court. In addition, the prosecutor regularly works
closely with the tribal police department on criminal cases and
investigations. The tribal prosecutor is available 24 hours a day to
render advice to the Tribal Police Department including the drafting of
search warrants and subpoenas.
Offenders are offered various forms of rehabilitation and
punishment and those convicted of crimes are regularly placed on
probation, working with a full time probation officer who sets up and
coordinates community service, performs drug tests, conducts
unannounced home visits and takes other steps to assure that
probationers are complying with court sentencing orders.
Despite making great strides and progress in developing its own
criminal justice system, the ramifications of the 1948 Act continue to
plague effective law enforcement and the implementation of a criminal
justice system on the Meskwaki Settlement.
The 1948 Act has created a dual-concurrent criminal justice system
composed of both tribal and state justice systems. Because a criminal
case can be brought both in state court and in tribal court, a Native
American defendant who commits an offense on the Settlement must face
the possibility of two prosecutions by the state and the tribe. This is
exceedingly unfair, and violates basic notions of justice and fair
play. This also produces an absurd and unduly burdensome application of
criminal laws.
Consider a case where a non-native and native both commit the same
offense on the Settlement. The non-native is prosecuted once in state
court, as Tribal courts have no jurisdiction over non-natives. The
native, however, is prosecuted twice (Once in State Court and once in
Tribal Court) for the very same offense. The native defendant is
therefore penalized more harshly and is subjected to greater fines,
costs and receives two criminal convictions for committing one offense.
There have been occasions where defendants had to report to two
probation officers.
If Congress repeals the 1948 statute, the role of the state
criminal justice system in Indian country would be limited to non-
Indian v. non-Indian crimes only--or similar to the situation on most
reservations today.
This Committee has taken great strides to eliminate some of the
unjust vestiges of the Termination Era, and I applaud you for your
effort. We urge you to take similar action here.
Earlier this year the State of Iowa approved legislation calling on
Congress to repeal this unjust and outdated law. Congress should heed
the State's call and take swift action on this important bill. By doing
so, you will promote better law enforcement on our Settlement and
strengthen our ability to chart our own course as a sovereign nation.
This Committee has taken great strides to eliminate some of the
unjust vestiges of the Termination Era, and the Meskwaki Nation
applauds you for your effort.
We urge you to take similar action here.
Thank you again for this opportunity, and I am happy to answer any
questions you may have.
The Chairman. [Presiding.] Well, thank you very much for
your testimony.
Mr. Allen.
STATEMENT OF HON. W. RON ALLEN, TREASURER, NATIONAL CONGRESS OF
AMERICAN INDIANS
Mr. Allen. Thank you, Mr. Chairman and members of the
Committee. As you have noted, my name is Ron Allen. I am the
Treasurer for the National Congress of American Indians. I am
also the Chairman of the Jamestown S'Kallam Tribe, located in
western Washington State. And I am here to testify on behalf of
our organization, which represents and advocates for Indian
Country, the 567 Indian Nations that have many issues that come
before this Committee and Congress.
So we are in full support of S. 2636. We have been working
very closely with the Department of the Interior and Bureau of
Indian Affairs, and we want to compliment them. This
Administration has made it a priority to help Tribes restore
our homelands.
As Senator Tester noted, the Indian Reorganization Act
authorized the Interior to be able to take land into trust so
we can restore our homelands. We know about the Allotment Act.
That Act caused all kinds of problems in the history of Indian
Country throughout the United States for Tribes and their
tribal lands, as well as the allottees who own land
individually.
This bill, in our opinion, will help expedite the
restoration of those homelands and help the Tribes to be able
to strengthen our ability to become more self-reliant, to
strengthen our economies, to provide better clarity with regard
to both civil and criminal jurisdiction issues that happen
within our reservation borders, and to protect many of the
interests of the Tribes, including cultural interests.
What this bill would do, even though the Administration has
been working to refine its system, this bill will refine it
even better and faster. It doesn't mean that the Administration
won't look at any issues of concern that have been raised by
sister Tribes or by local communities, etcetera. As Assistant
Secretary Roberts noted, it will be very public when these
proposals are being taken into trust and subsequently into
reservation status. But what it will do is it helps us move our
agenda forward.
I have been a chairman for 40 years in my Tribe and have
had the pleasure of watching Tribes across the Country become
stronger governments and become stronger in terms of their
business acumen. The business component of our tribal
governments that generate the unrestricted revenues to help
meet the unmet needs that Congress and the Administration can't
provide. We can show you all kinds of areas where they can't
provide the kinds of resources necessary to deal with health
and education and housing, et cetera.
So what this bill will do is streamline that process, allow
us to be able to take those lands into trust, help us improve
our infrastructure for housing, for economic development, for
light industry, even heavy industry if we want to pursue those
kind of venues on our reservation. It helps us provide better
accommodations for our people. So it really will help solve our
problems in our community and we just think it works well with
what the current Administration is doing.
Its current goal in this eight-year administration has been
500,000 acres out of the 90 million. We only have about 8, 9
percent now that is in reservation trust status, and it is
costly for us to reacquire those homelands. The non-Indian
owners around us, you know, they basically take advantage of us
in terms of acquiring those properties, so we use our resources
to do that, so we just want to be able to improve our
governmental infrastructure and our capacity to be able to
advance our agenda.
So we appreciate this Committee taking this up and we look
forward to working with the Congress and the Administration
with regard to any refinements necessary with regard to
questions they would have with respect to the Tribes being able
to reacquire their homelands and have a better future for our
future citizens.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Allen follows:]
Prepared Statement of Hon. W. Ron Allen, Treasurer, National Congress
of American Indians
On behalf of the National Congress of American Indians (NCAI), the
oldest, largest, and most representative American Indian and Alaska
Native organization serving the broad interests of tribal governments
and communities, I would like thank the Senate Committee on Indian
Affairs for holding this hearing on these important pieces of
legislation.
I am here to present NCAI's testimony on S. 2636--the Reservation
Land Consolidation Act of 2016. This simple and straightforward
legislation will amend the Indian Reorganization Act to allow tribes to
restore their tribal homelands by making certain land transactions
occurring within tribal reservation boundaries mandatory. NCAI fully
supports this legislation as it fits within the original intent of the
Indian Reorganization Act, by helping restore tribal homelands and
streamlines the lengthy, and sometimes arduous, process at the
Department of the Interior. We urge this Committee and Congress to pass
S. 2636 to further tribal self-governance and self-determination by
restoring tribal homelands.
After the initial colonial and treaty era, tribes had to contend
with the Indian removal policies of the 1830s which placed tribes on
reservations, in many cases hundreds if not thousands of miles away
from their traditional homelands and sacred places. With the passing of
the Dawes Act in 1887, the Federal Government began to allot Indian
lands, breaking up reservations into smaller parcels and placing them
into individual ownership.
While some individual Indians received title to the lands, most of
it was sold to settlers, timber and mining interests, and otherwise
left tribal ownership. In total, nearly two-thirds of all reservation
lands, more than 90 million acres, were removed from tribal control
without compensation.
Allotment created a checker board effect on tribal lands, with some
land within the reservation boundaries held in trust, and some owned by
private land owners or other. The non-contiguous nature of jurisdiction
lands has harmed tribes' ability to exercise their sovereignty
governmental rights over all of the lands within their reservation
boundaries.
The IRA marked a significant change in federal Indian law policy,
signaled a shifting from the detrimental policies of assimilation and
allotment, to the reorganizing of tribal governments and restoration of
tribal homelands. The principal goal of the Indian Reorganization Act
was to reverse the abrupt decline in the economic, cultural,
governmental, and social well-being of tribal communities.
One of the IRA's principal authors, Congressman Howard of Nebraska,
described the fundamental purpose of the IRA:
This Congress, by adopting this bill, can make a partial
restitution to the Indians for a whole century of wrongs and of
broken faith, and even more important--for this bill looks not
to the past but to the future--can release the creative
energies of the Indians in order that they may learn to take a
normal and natural place in the American community. \1\
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\1\ 78 Cong. Rec. 11731 (1934).
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Section 5 of the IRA (25 U.S.C. 465), which will be bolstered by
the passing of S. 2636, is broadly designed to implement the
fundamental principle that tribal homelands are an integral part in
supporting tribal self-governance, self-determination, and tribal
cultures:
The Secretary of the Interior is hereby authorized, in his
discretion, to acquire, through purchase, relinquishment, gift,
exchange, or assignment, any interest in lands, water rights,
or surface rights to lands, within or without existing
reservations, including trust or otherwise restricted
allotments, whether the allottee be living or deceased, for the
purpose of providing land for Indians. \2\
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\2\ 25 U.S.C. 465
Further, the legacy of the allotment policy still means that deeply
fractionated heirship of tribal trust lands means that, for most
tribes, far more Indian land passes out of trust than into trust each
year.
Only about 8 percent of the 90 million acres of lost tribal lands
have been restored since the IRA was passed over 80 years ago--and most
of this was land that was returned soon after passage of the Act. While
the current Administration has established a goal of placing 500,000
acres back into trust, and is close to achieving it, that's still only
about half a percent of the original 90 million acres.
Today, many tribes are located far away from their historical,
cultural, and sacred places, and far from traditional hunting, fishing,
and gathering areas. And many of these lands are insufficient lands to
support housing, exercise civil and criminal jurisdiction, economic
development, enforce, and expand tribal infrastructure--essential, to
practice true tribal self-governance.
The restoration of tribal homelands is the most fundamental
obligation of the federal trust responsibility.
The bill before the Committee today, S. 2636, plays an important
role in strengthening the original intent of the IRA while helping
support tribal self-governance and self-determination by making
commonsense tribal land acquisitions to restore the tribal jurisdiction
over their homelands.
The trust land acquisitions impacted by S. 2636 take place in
extremely rural areas and involve home sites of less than 30 acres
within the tribe's current reservation boundaries. These acquisitions
are not controversial in any way, and necessary for the consolidation
of fractionated and allotted lands which most often are grazing,
forestry, agricultural, housing, health care clinics that serve both
Indian and non-Indians, and Indian schools.
S. 2636 also addresses one of the most difficult issues in the land
to trust process which is raised by tribal leaders at every NCAI
meeting: the backlog of applications and the interminable delays on
decisions at the Department of the Interior.
Too often have tribes spent scarce resources to purchase land and
prepare a trust application only to have it sit for years or even
decades without a response. In addition, the Department of the Interior
has limited resources in its budget to address all of the applications
in a timely manner. By restoring lands already owned by a tribe back to
trust status within the reservation boundaries, allows both tribes and
the Department of the Interior to focus their resources elsewhere
because these decisions are non-controversial. Tribes will no longer
risk losing funding and support for the projects that they have planned
for the land and will be better equipped to provided services and
opportunities for their tribal citizens.
Further, while S. 2636 fits squarely into the original intent of
the IRA and Section 5, it supports tribal self-governance and self-
determination. Land consolidation and restoration of trust lands within
reservations boundaries provides surety for tribes looking to exercise
the fundamental right of self-governance. Lack of contiguous parcels of
land within a tribe's boundaries makes it extremely difficult to plan
development projects, buildout infrastructure, provide health and
education services to tribal citizens, exercise tribal jurisdiction to
protect the safety of all members of the community.
In closing, the simple clarification S. 2636 makes to Section 5 of
the IRA not only seeks to bolster the original intent of the Act to
restore tribal governments and homelands, but stands in the 21st
Century policies of further tribal self-governance. NCAI fully supports
S. 2636 and asks that this Committee act swiftly to pass it so it can
be considered by the Senate.
The Chairman. Thank you very much, Mr. Allen.
Mr. Lumley.
STATEMENT OF PAUL LUMLEY, EXECUTIVE DIRECTOR, COLUMBIA RIVER
INTER-TRIBAL FISH COMMISSION
Mr. Lumley. Thank you, Mr. Chairman. It is a great pleasure
and an honor to be here today. My name is Paul Lumley. I am the
Executive Director of the Columbia River Inter-Tribal Fish
Commission, and I am here today to present the views of four
Tribes that have treaty rights to fish and hunt at all usual
and accustomed places along the Columbia River: the Yakama, the
Umatilla, Warm Springs, and Nez Perce. And today we stand in
strong support of Senate Bill 3222.
That treaty right to fish is only part of it. We also have
the right to access the river. And there have been many legal
determinations, historic determinations concluding such, and we
even have modern day recognitions, as well, such as Public Law
100-581, which resulted in the construction of 31 in-lien
treaty fishing access sites. That construction was completed in
the year 2011.
I especially want to thank Senators Merkley, Wyden, Murray,
and Cantwell for their support on this important legislation.
Some of those Senators have been out to view these sites and
recognize the severe conditions.
We urgently need this bill to pass to address three primary
areas: safety, sanitary, and health.
These fishing sites drew immediate attention primarily
because of overuse of the sites as a result of more fish runs,
more fishing seasons, and the fact that we have a housing
crisis on the Columbia River. And that housing crisis was
caused in large part by the Corps of Engineers because they
have not lived up to their obligation at this time to rebuild
those villages that were lost due to the construction of the
hydropower dams.
That legislation is being considered elsewhere. Back to
this bill, I want to talk about the importance of addressing
the living conditions along these areas.
I used to be the executive director of the National
American Indian Housing Council, so I have seen housing
conditions up and down the river, I have seen them across the
Nation, and I have never seen it this bad anywhere else in the
Nation, and I have traveled the Nation. It is bad out there, so
we are hoping that this bill will address the severe safety and
sanitary issues that we are currently experiencing.
Now, we do have funding for long-term operation of
maintenance of these sites that is contracted to the Bureau of
Indian Affairs. That funding will be depleted in the year 2022.
At that point, we are going to hand the keys back to the Bureau
of Indian Affairs to conduct operational maintenance, and I can
guaranty there will be a housing crisis. So that is a serious
issue that needs to be addressed, as well, in the future.
For now, we are doing the best we can to address the basic
services. It is a big stretch of the river, 140 miles, and it
is not easy. We completed an assessment recently and showed
that we are substantially lacking in potable water, clean water
stations, restrooms, showers, septic systems. Fire suppression
is a very substantial issue for us. We have fire hydrants that
aren't hooked up to water. Structures have burned because of it
and we have a lack of extinguishers.
Mr. Chairman, I wanted to leave with you and the Committee
a stack of photographs. I would be happy to provide you
electronic copies. It shows some of the severe conditions. Some
of these facilities, for example, this one here at Lyle Point
shows RV structures that have been turned into permanent living
conditions that are really substandard living. So we will leave
these photographs with you and send you some electronic copies.
The Chairman. And if you could also provide the electronic
copy, that would be terrific. Thank you.
Mr. Lumley. You are welcome.
So, Mr. Chairman, we stand before you still in strong
support of Senate Bill 3222. I heard a few minutes ago that
there was a proposed change by Bureau of Indian Affairs to
address other Federal agencies. We would support that as well.
But even if this bill passes, it will not solve all of our
problems. We have the long-term operational maintenance fund to
be concerned about.
Also, in my written testimony I talk about the substantial
lack of enforcement of these sites. We only have two officers.
When Bureau of Indian Affairs handed us the enforcement
authority, the program was about 60 percent greater than what
we are funded at currently. So we do have a strong shortfall
there in enforcement.
So once again, Mr. Chairman, strongly supporting Senate
Bill 3222.
[The prepared statement of Mr. Lumley follows:]
Prepared Statement of Paul Lumley, Executive Director, Columbia River
Inter-Tribal Fish Commission
Chairman Barrasso and members of the Committee, the Columbia River
Inter-Tribal Fish Commission (CRITFC) is pleased to share its view on
Senate Bill 3222, the Columbia River In-Lieu and Treaty Fishing Access
Sites Improvement Act. I am testifying in support of this legislation
and on behalf of the four member tribes of the Columbia River Inter-
Tribal Fish Commission wish to express our appreciation for the bold
attention and unity of the Northwest Congressional delegation to
assemble and introduce legislation, including S. 3222, to rectify
wrongs stretching back nearly eighty years that were done to tribal
communities along the river. My testimony will address the history and
legal authority of CRITFC, a brief history of the In- Lieu and Treaty
Fishing Access Sites and conclude with a current assessment of
conditions and needs at the sites themselves. Though S. 3222 does not
explicitly address law enforcement needs at the fishing sites my
testimony will speak to this service's fundamental role in public
safety.
Commission History and Legal Authorities
The combined ancestral homelands of our four tribes cover roughly
one-third of the entire Columbia River Basin in Washington, Oregon, and
Idaho. Our existence on the Columbia River stretches beyond 10,000
years to time immemorial. Salmon has always been a unifying force and
we rely on its abundance for physical and cultural sustenance.
Collectively, we gathered at places like Celilo Falls to share in the
harvest, forging alliances that exist today. Our fishing practices were
disciplined and designed to ensure that the salmon resource was
protected, and even worshipped, so it would always flourish.
Salmon is so fundamental to our society that in 1855 when our four
sovereign tribes \1\ and the United States collaborated and negotiated
treaties, our tribal leaders explicitly reserved--and the U.S. agreed
to assure--our right to fish in perpetuity within our ancestral
homelands as well as to ``take fish at all usual and accustomed
places.'' The treaties of 1855 were all ratified by the Senate of the
United States. The Supremacy Clause of the Constitution applies to all
such treaties.
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\1\ Treaty with the Yakama Tribe, June 9, 1855, 12 Stat. 951;
Treaty with the Tribes of Middle Oregon, June 25, 1855, 12 Stat. 963;
Treaty with the Umatilla Tribe, June 9, 1855, 12 Stat. 945; Treaty with
the Nez Perce Tribe, June 11, 1855, 12 Stat. 957.
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The Columbia River Inter-Tribal Fish Commission was formed in 1977
by resolutions from the four Columbia River treaty tribes: Confederated
Tribes of the Umatilla Indian Reservation, Confederated Tribes of the
Warm Springs Reservation of Oregon, Confederated Tribes and Bands of
the Yakama Nation, and Nez Perce Tribe. CRITFC's mission is to ensure a
unified voice in the overall management of the fishery resource and to
assist in protecting reserved treaty rights through the exercise of the
inherent sovereign powers of the tribes. CRITFC provides coordination
and technical assistance to the tribes in regional, national and
international efforts to ensure that outstanding treaty fishing rights
issues are resolved in a way that guarantees the continuation and
restoration of our tribal fisheries into perpetuity.
Today the CRITFC tribes are globally-recognized leaders in
fisheries restoration and management, working in collaboration with
state, federal, and private entities. We are principals in the region's
efforts to halt the decline of salmon, lamprey, and sturgeon
populations and rebuild them to levels that support ceremonial,
subsistence and commercial harvests. To achieve these objectives, our
actions emphasize ``gravel-to-gravel'' management including
supplementation of natural stocks, healthy watersheds, and
collaborative efforts. Programs referenced in this testimony are
carried out pursuant to the Indian Self-Determination and Assistance
Act. Our programs are integrated as much as possible with state and
federal salmon management and enforcement efforts.
A Brief History of the In-Lieu and Treaty Fishing Access Sites
Before the advent of non-Indian settlement, our people had thriving
salmon-based communities all along the Columbia River. After the
treaties were negotiated and ratified in the 1850s, our people living
in the Columbia Basin continued to fish at numerous places along the
Columbia River and its tributaries.
By the late 1880s, non-Indians had encroached upon many of the
treaty tribes' usual and accustomed fishing grounds and access to the
fishing grounds was blocked. During 1888-89, George Gordon, Special
Indian Agent, investigated the Indian fisheries along the Columbia
River and several tributaries and found that Indian fishers were being
excluded from many of their traditional fishing grounds. Agent Gordon
submitted his findings and recommended that the U.S. government
purchase or withdraw from entry approximately 2,300 acres along the
Columbia for use by tribal fishers. Although the government never acted
on Agent Gordon's recommendations to acquire lands for tribal fishers,
the U.S. did file several lawsuits seeking to protect the tribes' right
to take fish at usual and accustomed fishing grounds (e.g., U.S. v.
Taylor, U.S. v. Winans, U.S. v. Seufert Brothers, U.S. v. Brookfield
Fisheries). As a result of these lawsuits, the tribes' treaty-protected
right of access to usual and accustomed fishing grounds was firmly
established as a matter of law.
During the 1930's, the Army Corps of Engineers (Corps), in response
to congressionally mandated studies, proposed that a series of dams be
built along the Columbia River. The Bonneville Dam was the first dam to
be built in accordance with the Corps of Engineers proposals.
Construction of the Bonneville Dam inundated the tribes' ancient
fishing grounds and villages from the dam site to above The Dalles,
Oregon. In 1939, a settlement agreement was reached between the tribes
and the United States relative to the inundation of these places. This
agreement was approved by resolution of the Warm Springs, Yakama, and
Umatilla tribes in 1939 and by the Secretary of War in 1940; it
provided for the War Department to acquire approximately four hundred
acres of lands at six sites along the Columbia River and install
fishing and ancillary facilities to be used by tribal fishers.
In 1945, Congress included in the Rivers and Harbors Act of 1945 an
authorization to the Secretary of War to, ``acquire lands and provide
facilities in the States of Oregon and Washington to replace Indian
fishing ground submerged or destroyed as a result of the construction
of Bonneville Dam. . .and that such lands and facilities shall be
transferred to the Secretary of the Interior for the use and benefit of
the Indians, and shall be subject to the same conditions, safeguards,
and protections as the treaty fishing grounds submerged or destroyed''
(P.L. 79-14). An appropriation of $50,000 was authorized; this sum was
increased to $185,000 in 1955. The legislative history indicates that
the 1945 congressional authorization intended to implement the terms of
the 1939 agreement. See House Report No. 1000, 78th Congress, 2nd
Session; Senate Report No. 1189, 78th Congress, 2nd Session.
There were numerous disagreements among and between the Corps, the
Bureau of Indian Affairs (BIA), state and local governments, and the
tribes regarding the acquisition and development of the sites. It took
the Corps nearly twenty years to acquire five sites, totaling slightly
more than 40 acres. Two sites were essentially the same as proposed in
1939 (Wind River; Underwood); three sites were different (Lone Pine;
Cascade Locks; Cooks); and the sixth site (Big Eddy) was acquired but
later subsumed by The Dalles Dam project.
Over the years, other dams were built, destroying other treaty
fishing grounds and villages, and other development occurred, leading
to other fishing conflicts and restrictions. In 1973, as a result of
litigation initiated after the Army Corps of Engineers proposed to
alter the water levels of the pools behind the dams, a settlement order
was entered by the U.S. District Court for Oregon. The judgment and
order in that case, CTUIR v. Calloway, noted that the Secretary of the
Army and the Secretary of the Interior agreed to propose legislation
providing for the acquisition and improvement of additional sites and
the upgrading of all sites to National Park Service standards.
Legislation was forwarded to Congress in 1974, but no action was taken
by Congress at that time. The BIA pursued similar legislation again in
the early 1980s but failed to garner Administration support.
During the late 1970s and 1980s several things occurred that
influenced in-lieu site issues. As a result of the improvement in the
fish runs in the mid-1980s, the pressure on the existing in-lieu sites
and the need for improvements and additional access to fishing sites
increased. Pressure on the existing in-lieu sites and other public
camping/boat launching sites also resulted from the increase in
recreational activities along the Columbia River. In addition, between
1982 and 1986 numerous bills seeking to establish a Columbia Gorge
National Scenic Area were considered by members of the Northwest
congressional delegation. During consideration of the Gorge
legislation, the tribes once again brought attention to the in-lieu
site issue, specifically the fact that the tribes were still owed
significant acreage for fishing sites from the 1939 agreement. Although
the congressional delegation decided not to address the in-lieu site
issue in the Gorge legislation, several offices indicated they would
consider providing additional fishing access and support sites in the
future (Senator Evans (R-WA) and Senator Hatfield (R-OR)).
In 1987 and 1988, at the request of Senator Evans and the Senate
Select Committee on Indian Affairs, the tribes identified a number of
locations which could be suitable for additional access and support
sites. All of these sites were already being used by tribal fishers.
During hearings held before the Senate Select Committee in April 1988,
representatives from the Corps of Engineers testified that the Corps
required additional legislation before the Corps could provide the
tribes additional sites along the Columbia. The 1988 legislation (P.L.
100-581) provided the Corps with the authority the agency suggested to
the Select Committee at the hearing.
summary of p.l. 100-581
Public Law 100 581, Title IV Columbia River Treaty Fishing Access
Sites was enacted in November 1988. The legislation has six major
elements: 401(a)--designates certain federal lands along the Columbia
River between Bonneville and McNary dams to be administered to provide
access to usual and accustomed treaty fishing places and other
ancillary fishing activities for members of the Nez Perce, Umatilla,
Warm Springs and Yakama tribes.
401(b)--requires the Corps of Engineers to (1) identify and
acquire at least six additional sites adjacent to Bonneville Pool from
willing sellers for the purpose of providing access and ancillary
fishing facilities; (2) improve the designated federal lands and
acquired lands to provide facilities for treaty fishing and ancillary
activities and then transfer those lands and facilities to the
Department of Interior for the purpose of maintaining the sites; and
(3) make improvements at the five existing (original) in lieu sites.
401(c)--specifies that the Corps shall treat the costs of
implementing the 401(b)(2) (b)(3) as project costs of the
Columbia River projects and allocate such costs in accordance with
existing principles of allocating Columbia River project costs.
401(d)--authorizes appropriation of $ 2 million to acquire the
Bonneville Pool sites from willing sellers.
401(e)--provides the Secretary of Interior with the right of
first refusal to accept any excess federal lands adjacent the Columbia
between Bonneville and McNary dams and notes the total acreage provided
adjacent to the Bonneville Pool not exceed 360 acres.
401(f)--contains a savings provision to protect existing treaty
and other rights.
Several post authorization amendments have been enacted that modify
the legislation. These amendments provide the Corps with flexibility on
technical boundary adjustments at the 401(a) sites, increase the
authorization for appropriations to acquire sites in Bonneville Pool to
$4 million, authorize the Corps to transfer capitalized funding for
operations and maintenance to the BIA, and authorize the Corps to make
improvements at Celilo Village.
site implementation issues
Site Development and Planning
The tribes, Corps, and BIA (the Task Force) met regularly from
1989-2011 to discuss and address various implementation issues. The
construction of facilities occurred in incremental contracts, each
issued for a set of sites (4-6 at a time) and taking approximately one
year to complete. Conceptual site designs were developed in the early
1990s and the Corps obtained OMB budgetary authorization to proceed
with implementation using cost estimates based on the conceptual
designs. The Task Force refined these designs as construction proceeded
based on cost, site constraints, cultural resources issues, and
engineering feasibility as well as the tribes' recommendations,
fishers' needs, and BIA input.
Throughout the implementation process, the Task Force addressed
various issues with a cooperative, government-to-government approach.
Although there was some bureaucratic resistance initially, the
cooperative approach proved to be effective for developing solutions to
difficult issues. For example, as many of the new sites were located
near historic fishing places, the Task Force had to address the
potential for impacts to cultural resources. The Task Force developed a
cultural resources MOA that outlined various processes and
considerations that respected the tribes' concerns. Similarly, the
Tribal Employment Rights Offices assisted the Task Force in developing
tribal employment opportunities during site construction.
The Corps completed construction at the sites in 2011. Facilities
at the sites include access roads and parking areas, boat ramps and
docks, fish cleaning tables, net racks, drying sheds, restrooms,
mechanical buildings, and shelters. Six additional sites were acquired
along Bonneville Pool from willing sellers; with the 5 original in-lieu
sites and the addition of one 401(a) (designated) site, there are now
12 sites in Bonneville Pool totaling 189 acres. The acreage amount for
all the sites is approximately 718 acres. The sites are located
throughout the three-pool, 140-mile long, Zone 6 area. There are ten
new treaty fishing launch facilities in Washington; the total number of
sites with launch facilities in Washington is 12. There are six new
launch sites in Oregon; the Oregon side did not have sites with launch
facilities prior to P.L. 100-581.
Operation and Maintenance Issues
For all new treaty fishing access sites (those designated in the
P.L. 100-581 legislation and those acquired by the Corps of Engineers)
and for the new facilities at the original in-lieu sites, the
legislation requires that the Corps transfer those sites and facilities
to the Department of Interior ``for the purpose of maintaining the
sites.'' There is a long history of inadequate funding to provide
operation and maintenance and enforcement protection services at the
sites. Faced with the prospect of having additional sites added to its
administrative responsibilities without additional funding, the BIA
sought to make the Corps responsible for funding the O&M. In 1994, the
Corps refused to begin construction under P.L. 100-581 until BIA agreed
to a transfer process for when the construction was completed, while
the BIA refused to agree to a transfer process until Corps provided O&M
funding.
This impasse between the two agencies led to a meeting between the
agencies and the tribes in September 1994. Both agencies were
represented by key staff at the ASA level. The agencies agreed to work
out a solution to the O&M issue and in 1995 the Corps and BIA agreed to
an interagency MOU for the Transfer, Operation, Maintenance, Repair and
Rehabilitation of the Columbia River Treaty Fishing Access Sites (1995
MOU). The 1995 MOU sets forth procedures for effectuating the transfer
of facilities, lands, and for provision of operations and maintenance
funding. The intent of the plan was for the Corps to provide a lump sum
of monies appropriated to it for each set of sites to be built and then
transfer those monies to the BIA upon completion of construction. The
amount of money needed was calculated under a capitalized cost basis,
the assumption being that the BIA would invest the lump sum in an
interest bearing account and thus have steady funding to maintain the
sites for five decades. An amendment to P.L 100-581 (P.L. 104-109,
Section 15, February 1996) provided the authority to transfer funds and
property between the Corps and BIA.
In a February 10, 1998 memorandum, the Department of the Interior
Solicitor's Office determined that BIA could enter into a contract
under P.L. 93-638 with a tribal organization to assume certain BIA
responsibilities for the sites constructed or rehabilitated pursuant to
P.L. 100-581, including fund investment and administration, provided
all four tribes named in that statute pass resolutions authorizing the
tribal organization to enter such a contract. Eventually, after each
tribe passed resolutions authorizing CRITFC to be the contractor, the
CRITFC and the BIA entered into a 638 contract in 2003.
The 1995 MOU did not pan out as intended as the BIA lacked
authority to invest and generate interest earnings on the Corps-
provided O&M funds. In addition, the original capital account for O&M
Fund for the sites assumed that funds could be invested in federal
securities at the then prevailing interest rate of approximately 5
percent and that this investment scenario would provide a stream of
revenues to cover annual O&M costs. These interest rate assumptions,
which over a 30-year retrospective period appeared reasonably safe, did
not hold true. Effective federal interest rates dropped below 2 percent
in 2002 and later collapsed in 2008 and have remained wellbelow 1
percent since 2009. In addition, BIA expended principal from the
capital account between 1998 and 2003 to cover annual O&M costs. By the
time CRITFC assumed 638 contract responsibilities in 2004, BIA's
expenditure of the principal and fallen federal interest rates, had
diminished the time horizon of the useful life of the initial
capitalization.
CRITFC assumed O&M responsibilities for the sites on January 1,
2004. The Commission's objectives for O&M program are: (1) Invest the
principal and earnings to maximize the time horizon over which the O&M
can be provided for the sites; (2) Perform the O&M for the sites in a
cost effective manner that also ensures they are maintained in good
condition; and (3) Provide for tribal member employment. The program
employs seven CRITFC tribal members (Six fulltime) who conduct the
operations and maintenance of the sites pursuant to approved annual
budgets. The investment program is managed to maximize the time horizon
for the funds provided, but given higher than anticipated levels of use
and costs, current funding levels, lower than anticipated interest
rates on federal securities, and financial constraints, staff projects
the funds to be depleted between 2022-2023 which is approximately 20
years earlier than planned.
CRITFC is working on options to extend the time horizon for the O&M
funding. These options include the BIA placing the Treaty Fishing
Access Sites on the Indian Affairs Facilities Management System/MAXIMO
(IAFMA to provide access to annual federal facilities funding for these
sites (the five original in-lieu sites are already on the BIA's FMIS)).
Another option is to supplement the O&M account with annual BIA
appropriations. This would involve developing a BIA program and account
for In-lieu and TFAS O&M funding. Both of these actions would be
covered by the terms of CRITFC's existing Self-Determination Act
Agreement for O&M. See Section (b)(3)(B)(v) and (vi).
An Assessment of needs
The 31 In-Lieu and Treaty Fishing Access Sites are highly used,
often exceeding their capacities and compounded by extended seasonal
and year-round occupancy. The sites were designed in the early 1990s
based on estimated use during the then existing commercial gill net
seasons. In the early 1990s the primary commercial season was the fall
gill net season, which ran for four to six weeks between September and
October. Over the past twenty years, the salmon runs started on a road
to recovery which has led to increases of salmon abundance in Zone 6 of
the Columbia River and to increases in the numbers and durations of the
commercial gill net seasons when Columbia River treaty tribal members
can exercise their right to harvest salmon. The levels of use at the
In-lieu and TFAS have increased accordingly and currently many sites
are occupied and used for 18 to 20 weeks of the 22-week period between
mid-May and mid-October each year.
The increase in usage duration, 300 percent to 500 percent over
initial estimates, is also tied to a similar increase is usage
population, 300 percent to 470 percent, on most of the sites between
mid-May through mid-October. The increase in duration, population, and
use of the sites has naturally caused an increase in utility costs,
i.e. water, sewer, electricity and garbage. O&M labor costs have also
increased over the course of the 13 years that CRITFC has had the BIA
638 Self-Determination Act contract, not only because of the increased
use but five TFAS were added since 2003, increasing the original number
of sites from 26 to the 31 we have today.
The increase in duration and population has led to eight out of
twelve In-lieu and TFAS that have wells on them being identified by the
Indian Health Service as Public Water Systems. These sites are: North
Bonneville, Stanley Rock, Dallesport, Celilo, Maryhill, Pasture Point,
and Roosevelt TFAS, and Cooks Landing In-lieu site.
Site evaluations conducted in 2016 by CRITFC and the Yakama Nation
found 17 of the 31 sites with distressed conditions and the remaining
14 sites with specific unmet needs. These evaluations were based on
several criteria including safety, health, sanitation, and existing
utilities. Among the most common needs are water based; for example,
wash stations, showers, and drinking water systems. There are multiple
instances of need for additional restrooms and fire suppression
infrastructure. Wastewater disposal and maintenance and garbage
collection are also continuing concerns. Four of the five original in-
lieu sites were constructed without regards to washing dishes or
anticipating occupancy for more than a few days at a time.
Major expenses and incidents that bear on the continued increase
costs of maintaining the In-lieu and TFAS are:
Number of sites available;
Weeks of commercial gillnet seasons;
Population using the sites;
Periodic major clean-ups;
Fuel costs, utility costs; and
Other relevant increases or actions--SDWA Public Water
System, Acts of vandalism.
We would be pleased to share our analysis with the Committee upon
your request.
Law Enforcement Issues
While not directly addressed by S. 3222, public safety provided by
a fully equipped law enforcement detail are needed at the 31 sites and
especially so for the off-reservation Columbia River corridor where the
tribes conduct significant fisheries on a nearly year-round basis. Over
the years, there have been numerous jurisdictional issues relative to
criminal and civil law enforcement by tribes, BIA, Corps of Engineers,
and state and local departments. Questions of where tribal, state, and
federal jurisdictions begin, end, or are concurrent are complicated and
unsettled judicially and politically.
In 1997, the Nez Perce, Umatilla, Warm Springs and Yakama tribes
passed resolutions authorizing and supporting the Columbia River Inter-
Tribal Fish Commission to contract with the BIA under P.L. 93-638 for
the law enforcement services at the sites. The Commission's law
enforcement department, Columbia River Inter-Tribal Fisheries
Enforcement, has had a 638 contract with the BIA since the early 1980s
to provide fisheries enforcement services in Zone 6 for the four
Columbia River treaty tribes. The Commission's 638 contract submission,
which included a scope of work based on a 1990 BIA proposal and would
have provided 24/7 law enforcement coverage at the six sites on line at
the time, was declined by the BIA due to lack of funding. Several
subsequent attempts were similarly declined. Still, Columbia River
Inter-Tribal Fisheries Enforcement officers continued to respond to
calls but without dedicated contractual support from BIA could only
address the most serious problems.
In the early 2000s BIA assigned one or two uniformed officers to
the Columbia River sites. Their presence was scarce, no one knew how to
contact the officer(s) or BIA dispatch, the officers had little or no
knowledge of the tribal fishing practices or treaty case law and little
or no coordination with Columbia River Inter-Tribal Fisheries
Enforcement. Tribal members knew how to contact Columbia River Inter-
Tribal Fisheries Enforcement dispatch and had rapport with Columbia
River Inter-Tribal Fisheries Enforcement officers. Tribal members and
leadership became increasingly dissatisfied with the BIA enforcement
services, or lack thereof. As the fishing access sites were developed
and fish runs improved, the number of tribal fishers using the sites
increased and site usage throughout the year increased. Consequently,
law enforcement problems and calls increased. These increases,
compounded by the limited and ineffective policing by BIA, added to the
pressure on the capacity of CRITFC law enforcement.
In September 2010, CRITFC submitted to the BIA another proposal to
enter into a contract under Title I of the Indian Self-Determination
and Education Assistance Act, P.L. 93-638 as amended, to assume BIA law
enforcement responsibilities and associated funding for law enforcement
in the area of the Columbia River, including law enforcement
responsibilities for the sites named in P.L. 100-581 and P.L. 79-14.
This proposal was again supported by tribal resolutions and was
finalized in 2011.
In addition to law enforcement responsibilities, our officers are
also taked with search and rescue duties. These incidents put extreme
pressures on staffing and resources when operations extend over many
days. Often when tragedies in the treaty fishery occur, families
establish vigil camps that are occupied until the missing individual is
recovered. This requires a constant security presence. At this point,
CRITFC would have major challenges in conducting search and rescue
operation and camp security at the same time.
Currently, capacity allows for response to calls for service
(reactive policing). There is very little capacity in terms of
implementing problem-oriented policing and community-oriented policing
(proactive prevention) strategies, at least in any comprehensive
manner. CRITFC is specifically concerned about the crime types of
violence, substance abuse, child welfare, and property crimes. In order
to fully achieve the capacity of a modern policing service at the In-
lieu and Treaty Fishing Access Sites, the annual funding need is
approximately $942,000 (not including indirect costs).
Our immediate priority is to add two Patrol officers, one Sergeant,
one Investigator and one Dispatcher. Full funding for this Enforcement
need is $943,000 which would support a total of four officers, one
sergeant, an investigator and a dispatcher. I respectfully say again,
S. 3222 does not explicitly address law enforcement but we wish to
identify this critically important unmet need because of its direct
relationship to public safety at the sites.
In summary, through the combined efforts of the four Columbia River
Treaty Tribes, supported by a staff of experts, we are committed to
assisting our tribes and tribal members to exercise fully their treaty
reserved rights to fish in all usual and accustomed places. We support
S. 3222, the Columbia River In-Lieu and Treaty Fishing Access Sites
Improvement Act as means to ensure the treaty fishing sites are safe
and sanitary.
The Chairman. Thank you. Thank you all for your testimony.
Just a couple of questions I wanted to start with.
Chairman Clarke, the land currently owned in fee by the
Tribe that will now be held in trust as a result of this
legislation, will that be used for tribal gaming in the future.
Mr. Clarke. No, absolutely not.
The Chairman. Thank you.
Mr. Roberts, as you seem to acknowledge in your written
testimony under S. 2636, the Department might be forced to
acquire contaminated properties. The responsibilities and
litigation that may flow from this could be costly. Are there
other unintended consequences that you can see that might
occur?
Mr. Roberts. I think that is the primary concern of the
bill, is if there was an environmentally contaminated piece of
property. Those types of applications are few and far between;
I don't think we receive very many of those. I don't think
Tribes are necessarily purchasing those properties, but that is
one thing that, as a technical matter, we'd like to work with
the Committee on.
The Chairman. Thanks.
I am going to defer the rest of my questions and turn the
time over to Senator Franken.
Senator Franken, I am going to go and vote and then return,
so feel free to expand on any questions you might have.
Senator Franken. Kill time?
The Chairman. Well, inquire of the witnesses of all your
curiosities.
Senator Franken. Okay. All right.
[Laughter.]
Senator Franken. Kill time. No.
Well, let's talk about Carcieri, Assistant Secretary. By
the way, I went to the groundbreaking on the Bug School, Bug-O-
Nay-Ge-Shig School and I want to talk to you about a matter
regarding that privately.
Mr. Roberts. Okay.
Senator Franken. It is good news.
Mr. Roberts. Great.
Senator Franken. Under Carcieri, the BIA now has to verify
that a Tribe was under Federal jurisdiction in 1934 as part of
the land into trust acquisition process. Carcieri created a lot
of uncertainty for Tribes partitioning to the place in the
trust, and this is a problem for all Tribes, regardless of when
they were federally-recognized, because it further complicates
and delays the trust acquisition process.
Mr. Assistant Secretary, if all federally-recognized tribes
were eligible to have land taken into trust, is it fair to say
that that would simplify the trust acquisition process for both
BIA and the Tribes?
Mr. Roberts. Yes, it absolutely would. It would simplify
the process and it would save valuable resources not only for
Tribes in sort of providing all of this information, and
provide information on a Carcieri analysis, but it would also
save the Department valuable resources in being able to turn to
other things that are important to Indian Country.
Senator Franken. Thank you. As you know, State and local
governments have concerns about tribal land acquisitions
through land into trust process. The State and local
governments are worried about losing taxable land. Is the BIA
or the Interior Department conducting outreach to State and
local governments on the importance for restoring tribal lands?
Mr. Roberts. Thank you, Senator. Yes, we do. I meet fairly
often with counties on fee-to-trust acquisitions, but we have
also been working with the National Association of Counties, so
the director of the Bureau of Indian Affairs, Mike Black, spoke
at their conference earlier this year in terms of the fee-to-
trust process. So that type of dialogue is very important.
I will say that we have acted on over 2,000 applications
during the course of this Administration. Very few of those
actually get challenged or litigated. So we have acted on over
2,000 that we have actually taken into trust that are not
subject to litigation, so, you know, while there are some
decisions that we make that do get challenged, it is a small
percentage of the overall application pool.
Senator Franken. So you would say the outreach is working?
Mr. Roberts. Sure. We can always do more, and we invite
that outreach, but I think it is working. I think it is
working. We have had a lot of good conversations with some
counties when they come in and want to meet with us on fee-to-
trust issues and understand the process better, and we are
grateful for the invitation from the National Association of
Counties and we will certainly appear at forums like that more
if invited.
Senator Franken. Since I have you here and since I have
unlimited time, I did go to the groundbreaking for the Bug-O-
Nay-Ge-Shig School, and that is something we are very grateful
to you for and to Secretary Jewell for the funds to be able to
rebuild that school, but there are a whole bunch of schools in
Indian Country that are not in good shape. What can you tell me
about going forward in terms of being able to address that?
Mr. Roberts. Sure. So that overall we have a crisis in
terms of the condition of BIE schools. We have over 60 schools
across Indian Country that are in poor condition, so while we
were very thankful for Congress in terms of the appropriations
to fix and build new schools like the Bug-O-Nay-Ge-Shig School,
there are 60 other schools out there that are in similar
circumstance and that need to be addressed. They need to be
addressed in a time period where we don't have Native kids
going through their whole schooling in the same school. So it
is a crisis and we need to address it through improved funding
and looking at different ways of how we can make better use of
the funds that Congress provides us.
Senator Franken. What do you mean by that? Give me an
example.
Mr. Roberts. Sure. So an example is looking at we have
done, brick and mortar construction historically, and looking
at new ways to see if we can do some offsite construction that
is more timely, less expensive, but delivers results and
provides a longevity for the school of 50-plus years.
Senator Franken. And that is what you are doing?
Mr. Roberts. That is what we are looking at. With the Bug
School, exactly.
Senator Franken. That is what we are doing with the Bug-O-
Nay-Ge-Shig School.
Mr. Roberts. Yes.
Senator Franken. My interest is in Senator Tester's bill.
Does anybody here have some more comment on that?
Mr. Allen. Yes. Senator, again, my name is Ron Allen. I am
Chairman for the Jamestown S'Kallam Tribe in Washington State
and representing the National Congress of American Indians.
Regarding one of your points that you just mentioned with
Secretary Roberts is the Tribes now become economic engines in
their communities, so when we take land into trust, one of our
agendas is to help provide better certainty and confidence
about how we develop our reservation for the infrastructure and
so forth to help us develop our economies. Because Congress can
never fund the needs we have, we need to generate stronger
economies, and we have.
Without a doubt, you see the casino industry in many
sectors of Indian Country, so all those jobs, a significant
portion of them, are non-Indians and they don't live on the
reservation; they live off the reservation and they generate a
tax base for those counties and States because of the homes
they buy and things that they buy as employees of the Tribe.
In many of these communities we are the biggest employer.
So when we take land into trust, that small amount of revenue
that the county might lose for a land base is being returned
tenfold simply by the economies that we enhance and our
governmental activities which we employ, Indians and non-
Indians alike. So it makes a significant difference.
And what is happening now over the last 20 years
particularly, the governmental infrastructure of Tribes has
gotten far more sophisticated with regard to land use and land
management. So when we collaborate with counties with regard to
land uses, it is easier for us to coordinate what they like to
see used in lands in their area versus what we would use those
lands for in terms of housing or economic development or for
other kinds of infrastructure needs such as health clinics and
schools, as you mentioned earlier. All those issues are
important to our communities and we are making a difference.
So they benefit from us by creating all these jobs and
creating employment and dropping that unemployment factor down
as well, and helping us become self-reliant governments.
Senator Franken. Certainly, housing is something that we
have talked a lot about in this Committee and something that I
think is absolutely crucial. We see so many situations in which
there are housing shortages. Families end up living with other
families and sometimes exposing young children to dysfunction
that causes trauma. Housing is just one of the many pieces of
the equation.
Senator Tester, the Co-Chairman has returned. I was
basically talking up your bill, is what I was doing.
Senator Tester. Somebody needs to do that, Al. Thank you.
[Laughter.]
Senator Franken. Well, I'm not quite sure what the
objections are. Where I did hear any objections, it seemed to
be from Senators who are willing to work with you to make any
fixes that need to be made.
Senator Tester. [Presiding.] Well, Senator Franken, as you
well know, part of the sausage-making around here on bills is
this hearing and then figuring out common ground, figuring out
where you slice the pie to make sure that everybody can win. I
look forward to working with the Chairman and anybody on both
sides, and our Native American friends, to make sure that when
we get done we have something that actually makes it better,
because I really do think that the issues that revolve around
land going into trust are overcomplicated right now, and we can
do better.
Senator Franken. Well, the Chairman has left to vote.
Senator Tester. Yes. So it's my turn?
Senator Franken. Well, you are ranking right now.
Senator Tester. Okay, good.
Senator Franken. You can decide.
Senator Tester. All right. We will carry on, Al.
Senator Franken. Okay.
Senator Tester. Thank you very much.
And we will just kind of go on the same line of
checkerboarding in jurisdictions, and I am going to start with
you, Larry. I don't know that I ever heard the term
fractionalization as it applied to land until I got on this
Committee. It is a complicated issue. I don't think any of us
fully understand the impacts. Hopefully, you do, Larry, and
hopefully there are others that do. But could you explain
specifically what the problems are with checkerboarding and
fractionalization, and why it undermines a government's ability
to provide services to their citizens?
Mr. Roberts. Thank you, Senator. The easy answer is that
there is no clarity or certainty, so you have tribal citizens
and non-citizens living within an Indian reservation and no one
is quite sure what rules apply because it depends on whether
they are a tribal member and whether they are on fee land or
trust land.
So if you have law enforcement responding to a situation,
for example, they need to know, under the current rubric,
whether they are dealing with tribal members or non-members and
where the parcel is located. So it is something that Congress,
when it enacted the IRA and stopped the alienation of Indian
lands, they should have also done something like your bill,
because it is literally restoring tribal homelands within
existing reservation boundaries.
Senator Tester. Okay. The good senator from Oklahoma
brought up the fact that Oklahoma is a little different because
it sounded like some Tribes that own parts of the same parcel
of land. I don't know Oklahoma; you do. Are there any
reservations like in Oklahoma or others that pose specific
problems that this bill could address?
Mr. Roberts. So what we would look to for Tribes in
Oklahoma, let's say, where a number of Tribes share ownership
in a trust parcel, or we take land into trust for multiple
Tribes, usually there is specific legislation for that Tribe or
Tribes governing that.
Senator Tester. Right.
Mr. Roberts. I don't see your bill as changing that; we
would still follow that specific legislation. So if, for
example, you know, legislation provided that if a Tribe
purchased property within the reservation with its own funds
but it is to be jointly governed by all three Tribes on the
reservation, we would follow that specific congressional
directive, but we would take the land into trust for those
Tribes. So it would be a mandatory acquisition; we wouldn't be
changing the framework of specific legislation with regard to
those particular Tribes.
Senator Tester. Got you. Okay. Today we heard that there is
a backlog in applications in front of the Department. Just to
flush that out a little bit, how many on-reservation
applications are pending right now?
Mr. Roberts. So, overall, we have just shy of 1,200
applications pending across Indian Country, both on-reservation
and off-reservation. Roughly 950 of those are on-reservation,
so the vast majority of those just under 1,200 are on-
reservation. And when you put it in context of an
Administration that has prioritized restoring tribal homelands
over the last eight years, we have acted on 2,200 applications,
and that is with this Administration prioritizing it. So with
1,200 hanging out there in the balance, you know, you are
looking at, you know, years to clear that.
One other point on this is just even the simplest
application, even the application that is, let's say, no change
in use for agriculture, nobody cares about it, right now, under
our current process, it takes about a year to get through.
Senator Tester. Okay. As you know, Larry, and probably the
whole panel does, I come from Montana. Those are large land-
based Tribes up there. I think that the checkerboard
fractionization issue is a huge issue for those large land-
based Tribes. When my friend, Chairman of the Crow Reservation,
Carl Van, was alive and I had just gotten into this job, he
told me, you give me the tools that I need to work with and
then get out of the road and let me go.
Two questions. First of all, do you see this as a tool that
would help Tribes with their self-determination, with their
sovereignty, and with their ability to serve their citizens?
Mr. Roberts. Absolutely.
Senator Tester. And the second issue is, and this is an
education from me since I come from a State with large land-
based Tribes, would it benefit the smaller reservations, or do
they not have to deal with these issues?
Mr. Roberts. No, there are Tribes with small reservations
that have these same issues, and I guess the one thing about
your bill and the one thing about our current regulations is
that we treat as on-reservation acquisitions those lands that
are contiguous to existing reservation boundaries. So for those
Tribes that have, say, a small reservation and they seek to
have land placed in a trust that is contiguous to their
existing reservation, we treat that as on-reservation now.
Senator Tester. Okay.
Just one question for Dr. Clarke, since the Chairman is
back. You mentioned that the Tribe is dependent on groundwater
resources, limited groundwater resources. Could you explain how
this water settlement is going to improve your Tribe's ability
to better utilize water resources?
Mr. Clarke. Well, currently, at this time, we do not have
the water to build homes at Peach Springs. In Peach Springs
alone, I talked to the housing director just recently and I
asked him how many homes can we build right now, and he said
currently we are at zero because we do not have the water at
Peach Springs.
In doing so, taking the water from the Colorado River up to
Peach Springs and on out to Grand Canyon West, that will help
in building homes, building economy, building jobs, and looking
at the future of the Hualapai Tribe. And the reasons all behind
that is because we do not have the water, the water
infrastructure. Down in the Truxton Aquifer, that is depleting
as we speak today, and every year that we utilize that water in
Truxton Aquifer, the water levels are going down. So that would
help us.
Senator Tester. You been able to map how quickly they have
been dropping?
Mr. Clarke. Pardon me?
Senator Tester. You been able to map how quickly those
water levels have been dropping?
Mr. Clarke. Currently, I believe there have been studies
happening there. There have been many studies on other
groundwater that, it is showing that we do not have that
sufficient amount.
Senator Tester. Got you.
One last question. I lied.
Ron Allen, it goes back to my land into trust bill. All
acquisitions tend to be grouped together, whether the parcels
are located within the reservations or outside the reservation
borders. I think they get an undeserved rap, but I want to know
from your perspective whether on-reservation acquisitions are
typically controversial.
Mr. Allen. From my perspective, no, they are not
controversial. If the Tribe acquires the property within the
reservation, for the most part, citizens who live inside a
reservation border know about the Tribe's jurisdiction and
authority. If the Tribe takes over a property, whether it is
100 acres or 300 acres, whatever it is, then it helps clean up
and clarify the jurisdiction.
So it really is in the interest of the local governments
because of the clarity of the jurisdiction with regard to the
tribal reservation, and it helps the Tribe in terms of
providing better infrastructure. I don't care whether it is
roads or whether it is water, wastewater, telecommunication
systems, so that we can serve the whole reservation in a more
effective way.
So it serves the local communities as much as it does the
tribal community from all aspects. As I mentioned to Senator
Franken, we need homes, we need economic development. We need
to be able to build better schools, better health clinics,
better hospitals, and we need to have the infrastructure to
accomplish that. By acquiring those properties and including a
consistency for the whole reservation, it improves that
situation for the Tribe and the surrounding community. So we
don't think it is controversial.
And one other point is our governmental infrastructure is
much stronger today than it was 20 years ago, so our land use
management is much more sophisticated; building codes and
health codes and so forth. So it just improves our relationship
and people's confidence about the activity that goes on within
a reservation border.
Senator Tester. Okay, thank you.
Thank you all for your testimony, and I will apologize only
that it is not really our fault that the hearing got held
during some votes and it made this a little bit dysfunctional.
But I think the Chairman did a great job of keeping the ball
rolling. So thank you all and thank you, Mr. Chairman.
The Chairman. [Presiding.] Well, thank you. Thanks for the
questions. I have just a couple other questions.
Mr. Roberts, your written testimony acknowledges that S.
3216, that that bill would promote self-determination and self-
governance and support positive collaboration among Tribes and
the Federal Government. It would also clarify what I think is a
muddled jurisdictional system. Your written testimony suggests
that, if enacted, it could have funding implications as current
funding streams to existing Tribes can't be reduced in order to
make funds available for the Tribe.
Could you talk about what cost you anticipate would be
associated if we enact S. 3216?
Mr. Roberts. So thank you for the question, Chairman. I
believe that if the bill for repealing the Iowa Act, that is
the bill you are asking about, Senator?
The Chairman. Yes. And I am going to ask Mr. Jefferson a
follow-up question.
Mr. Roberts. Yes, I think that there would be. We do
identify that there would be a cost. I think it would be
relatively small. I don't have that information today, but it
is something that I would be happy to provide the Committee.
The Chairman. So, Mr. Jefferson, you explain in your
written that the Sac and Fox Tribe operates and maintains a
fully functional criminal justice system, that the Tribe has
its own robust legal code, a police department, a court system,
a full-time prosecutor and a probation officer, correct?
Mr. Jefferson. Yes.
The Chairman. And that the Department of the Interior
supports S. 3216, but said there may be associated funding
implications. So if S. 3216 is enacted, does the Tribe plan to
maintain operations of its criminal justice system, or would
you then be reliant, instead, on the Bureau of Indian Affairs
to operate the criminal justice system? Because it matters in
terms of the cost.
Mr. Jefferson. We plan on continuing to fund it ourselves
and keep it the way it is now.
The Chairman. Great. Okay, thank you.
And then, Mr. Roberts, one last question on the Reservation
Land Consolidation Act. That would eliminate several
requirements in the review process that currently exists for
both on-reservation discretionary and mandatory trust
acquisitions. These processes are truncated in such a manner
that they may prevent Tribes and all other stakeholders from
commentating on and perhaps even learning about an acquisition
until the final decision has been made, and I know we all want
to avoid that. The secretary could also lack the ability to
consider other interests, including other tribal interests over
the land.
So has the Administration kind of taken a look at that in
terms of this could potentially, and I know we are trying to
avoid it, potentially pit one Tribe against another, and could
that undermine some tribal rights?
Mr. Roberts. Thank you, Chairman, for the question. So for
on-reservation acquisitions under our current regulations,
there are very few, I am not aware of any instances that come
to mind where one Tribe is challenging another Tribe's on-
reservation acquisition itself, so I think it is very rare. In
our regulations themselves for the Tribe whose reservation it
is, if another Tribe were to seek land into trust in that
primary Tribe's reservation, that Tribe whose reservation it is
has to consent to that acquisition from an outside Tribe. So I
don't think that that would change under the bill being
considered today.
The Chairman. Well, thank you.
If there are no other questions, Senator Tester, I think
that other members may who had to get called away to vote and
to other obligations, they may submit follow-up written
questions.
The hearing record is going to be open for two weeks. I
appreciate all your patience in the give and take and back and
forth to vote. I want to thank all of you for your time, your
testimony.
The hearing is adjourned.
[Whereupon, at 3:48 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Gary Burke, Chairman, Board of Trustees,
Confederated Tribes of the Umatilla Indian Reservation
On behalf of the Confederated Tribes of the Umatilla Indian
Reservation (CTUIR), thank you for allowing me to submit this statement
of support for S. 3222, introduced by Senator Jeff Merkley.
Pursuant to the 1855 Treaty of Walla Walla, the Cayuse, Umatilla
and Walla Walla tribes (now the CTUIR) ceded to the United States more
than 6.4 million acres in what is now northeastern Oregon and
southeastern Washington. Those cessions were made while the tribes
retained the Umatilla Indian Reservation as a permanent homeland. The
Treaty of 1855 further reserved CTUIR perpetual rights to fish, hunt,
and gather traditional foods and medicines throughout the its
traditional use lands, including along the Columbia River. These
rights--particularly those to fish along the Columbia River--remain
fundamental to our culture and subsistence.
Since time immemorial, our families have fished, hunted and
gathered at all usual and accustomed places along the Columbia River.
In the spring the tribes gathered along the Columbia River at places
like Celilo Falls to fish for salmon and engage in a robust trade of
goods with other tribes. They dried the salmon and stored it for later
use. In late spring and early summer they traveled from the Columbia to
usual and accustomed areas throughout our ceded territory to hunt and
gather foods and medicines.. In late summer they traveled to the upper
mountains to hunt and gather in preparation for the winter months. In
the fall the tribes would return to the lower valleys and along the
Columbia River again to catch the fall salmon run. All would stay in
winter camps in the low regions until spring when the whole cycle would
start all over again.
In the mid-20th Century, however, the Federal Government
constructed multiple dams along the river, inundating tribal fishing
sites and villages. This impacted treaty-protected access to historic
fishing grounds, tribal economies and displaced tribal fishing families
that lived along the Columbia River.
In Public Law 100-581, Congress authorized the U.S. Army Corps of
Engineers to rehabilitate the five existing In-Lieu sites and to
acquire and construct new in-lieu treaty fishing access sites
(``TFAS'') along the Columbia River to further the mitigation promised
in the 1930s to the tribes for sites lost by construction of Columbia
River dams and subsequent inundation by the river.
In 1995 an agreement was reached between the Corp and BIA that,
among other things, provided that once the TFAS were completed they
would be placed on the BIA inventory of federal lands, and be
designated as eligible to receive O&M funds.
To date, the BIA has not placed these sites on the federal
inventory and existing funding provided by the Corps is not sufficient
to address basic maintenance needs at the sites. As a result, TFAS
sites are dilapidated, unsafe and fail to meet basic sanitary
standards.
S. 3222, introduced by Senator Merkley, would call upon the Bureau
of Indian Affairs to assess the current sanitation and safety
conditions at Bureau-owned facilities that were constructed to provide
treaty tribes access to traditional fishing grounds. The bill
recommends expenditures as necessary for actions that would improve
sanitation and other infrastructure such as water and sewer for the
sites.
The basic TFAS improvements called for in this legislation would be
a welcome step toward fulfilling the Federal Government's treaty
obligations to Columbia River tribes. The Confederated Tribes of the
Umatilla Indian Reservation strongly support S. 3222. We thank the
Committee for holding today's hearing on the bill, and recommend its
timely passage.
______
Prepared Statement of Theodore C. Cooke, General Manager, Central
Arizona Project (CAP)
Chairman Barrasso, Vice Chairman Tester and members of the
Committee, my name is Theodore C. Cooke, General Manager of the Central
Arizona Project (CAP). I previously sent a letter dated September 8,
2016 to Chairman Barrasso and Vice-Chairman Tester indicating that S.
3300, the Hualapai Tribe Water Rights Settlement Act of 2016, has the
unanimous support of the Board of Directors of the Central Arizona
Water Conservation District (CAWCD).
This testimony addresses specific concerns raised by Acting
Assistant Secretary of the Interior, Lawrence Roberts, in the
Department's written testimony:
The settlement would be the first in Arizona that includes CAP
water but does not use any portion of the CAP operating system
for water deliveries to the Reservation. Despite lack of use of
the system, S. 3300 would obligate the Tribe to pay the CAP
fixed OM&R charges for all water deliveries. Under such an
arrangement, water delivered to the Reservation would incur two
OM&R costs--the fixed CAP OM&R charge and the Tribe's own
Project OM&R costs. The Department does not support this
`double charge' for water deliveries.
I. Unrelated Costs
In our assessment, the Department of Interior's assertion of a
``double charge'' creates an incorrect linkage between the CAP Fixed
OM&R charge, and costs incurred by the Tribe past the point of
delivery. Virtually all recipients of CAP water incur additional costs
associated with the use of CAP water, whether it is an irrigation
district that must maintain lateral canals to receive CAP water, or
municipalities that must treat the water before delivering it to their
customers. The relevant question in this context is simpler: ``Should
the Tribe be required to pay CAP Fixed OM&R charges even though the
supply is not delivered through the CAP system?'' The answer to that
question does not hinge in any way on the OM&R costs for the Tribe's
delivery system.
II. CAP Charges
As background, delivery of CAP water to non-federal recipients is
contingent upon the payment of three charges: (1) capital charges; (2)
Pumping Energy Charges; and (3) Fixed OM&R Charges.
Capital charges that are collected by CAWCD are applied to
repayment of the non-federal portion of the construction costs of the
CAP. The federal portion of construction costs is non-reimbursable and
is excluded from CAWCD's repayment obligation. Therefore, CAWCD does
not collect capital charges from the Tribes, nor has CAWCD required the
Hualapai pay capital charges in this settlement.
Pumping Energy Charges are collected to recover CAWCD's costs for
the generation, acquisition, and transmission of the energy necessary
to deliver CAP water each year. The Pumping Energy Charge is a variable
cost of CAP water delivery that is dependent on a number of factors,
such as total water delivered through the CAP system, the amount of
energy CAWCD must purchase on the wholesale energy markets, and the
cost of any purchased energy. CAWCD then collects Pumping Energy
Charges based on the volume of water any entity receives through the
CAP system. Pursuant to the settlement, the Tribe would pay Pumping
Energy Charges only for CAP water delivered through the CAP system, but
not for CAP water that is delivered through the Hualapai Tribe Water
Delivery Project.
Fixed OM&R Charges are collected by CAWCD to recover the costs of
operating the CAP. As the name indicates, these charges are based on
costs that are incurred by CAWCD to provide for the operation,
maintenance, and replacement of the CAP system, and they do not vary
with the volume of water delivered. CAWCD is obligated to maintain the
CAP system as set forth in its O&M Transfer Agreement with the United
States (Contract No. 7-07-30-W0167, dated August 5, 1987). The
calculation of the Fixed OM&R Charge is defined in the 1988 Master
Repayment Contract and the November 21, 2007 Repayment Stipulation
between the United States and CAWCD. Pursuant to the terms of
individual water delivery contracts, all recipients of CAP water are
obligated to pay the Fixed OM&R Charge.
III. Project Water
The Repayment Stipulation states that Fixed OM&R Charges are
applied to each acre-foot of Project Water. Project Water is defined to
include all Colorado River water to which Arizona is entitled under
Arizona v California, less the volume used by Arizona Main Stream users
with senior or equal priority water right to the CAP.
There is no dispute that the Colorado River water used for the
settlement of the Hualapai Tribe's water rights claims is part of the
Project Water supply available to CAP. Specifically, the supply is part
of the 650,724 acre-foot volume under long-term contract to Arizona
Indian tribes or available to the Secretary for allocation to Arizona
Indian Tribes pursuant to the landmark Arizona Water Rights Settlement
of 2004. Among other things, that settlement helped to resolve disputes
between the United States and CAWCD over the allocation of CAP water to
federal and non-federal interests (see P.L. 108-451, 104(c)(1)(A)).
CAWCD's right to Project Water is not dependent on the use of the CAP
system per se, so if CAP water is used for this settlement or for the
settlement of the water rights claims of any other Arizona Indian
tribe, that water is subject to the payment of Fixed OM&R Charges.
IV. Hualapai Acceptance of CAP Fixed OM&R Charge
Perhaps most important to the resolution of this issue is that, as
Hualapai Chairman Clarke makes clear in his supplemental testimony, the
Hualapai Tribe Water Rights Settlement Act of 2016 is a ``negotiated
package with reciprocal concessions.'' Since the earliest days of these
negotiations, CAWCD has conditioned its acceptance of a settlement upon
the payment of Fixed OM&R by the Tribe regardless of the water delivery
system used to deliver that CAP water. While the United States might
prefer to exempt the Tribe from paying fees that every other user of
the CAP system must and is contractually obligated to pay, the Tribe
has expressed understanding for this necessity and agreed to do so
since the earliest days of these negotiations.
V. Impact of Non-Payment
Fixed OM&R costs are, as the name implies, fixed costs that must be
paid by someone. If the CAP water allocated and delivered to the Tribe
did not incur Fixed OM&R Charges, those charges would increase for all
other CAP users.
Among the users affected by these increased costs are the other
Arizona Indian Tribes receiving CAP water. Approximately half of the
long-term contracts for CAP water are held by tribes and thus half of
the increase in Fixed OM&R Charges would be borne by those tribes. The
other half of that increase would be borne by non-federal recipients.
Neither the tribes, to which the United States holds a trust
responsibility, nor the non-federal recipients are parties to this
settlement nor have any of those parties been consulted on the
increases to Fixed OM&R that would be a consequence if the United
States' position were adopted.
We appreciate the opportunity to submit this supplement to the
Committee.
______
Prepared Statement of David Roberts, Associate General Manager, Water
Resources, Salt River Project (SRP)
Dear Chairman Barrasso and Vice Chairman Tester:
My name is David Roberts and I am the Associate General Manager of
Water Resources at the Salt River Project (SRP), a large multi-purpose
federal reclamation project embracing the Phoenix, Arizona metropolitan
area. I am writing to express SRP's support for S. 3300, the Hualapai
Tribe Water Rights Settlement Act of 2016, which authorizes the
Hualapai Tribe Water Rights Settlement Agreement among the Hualapai
Tribe, the United States and neighboring Arizona water users, including
SRP.
SRP has a history of negotiating and settling Indian water rights
disputes in Arizona including five settlements that have been approved
by Congress. Over the past four decades, SRP has worked with numerous
tribes and stakeholders to resolve Indian water rights disputes in a
manner that benefits both Indian communities and their non-Indian
neighbors. Most important among the benefits is water supply certainty,
which is a fundamental outcome of any water rights settlement.
SRP is comprised of the Salt River Valley Water Users' Association
(``Association'') and the Salt River Project Agricultural Improvement
and Power District (``District''). Under contract with the Federal
Government, the Association, a private corporation authorized under the
laws of the Territory of Arizona, and the District, a political
subdivision of the State of Arizona, provide water from the Salt and
Verde Rivers to approximately 250,000 acres of land in the greater
Phoenix area. Over the past century, most of these lands have been
converted from agricultural to urban uses and now comprise the core of
metropolitan Phoenix.
The Association was organized in 1903 by landowners in the Salt
River Valley to contract with the Federal Government for the building
of Theodore Roosevelt Dam, located some 80 miles northeast of Phoenix,
and other components of the Salt River Federal Reclamation Project. SRP
was the first multipurpose project approved under the Reclamation Act
of 1902. In exchange for pledging their land as collateral for the
federal loans to construct Roosevelt Dam, which loans have long since
been fully repaid, landowners in the Salt River Valley received the
right to water stored behind the dam.
In 1905, in connection with the formation of the Association, a
lawsuit entitled Hurley v. Abbott, et al., was filed in the District
Court of the Territory of Arizona. The purpose of this lawsuit was to
determine the priority and ownership of water rights in the Salt River
Valley and to provide for their orderly administration. The decree
entered by Judge Edward Kent in 1910 adjudicated those water rights
and, in addition, paved the way for the construction of additional
water storage reservoirs by SRP on the Salt and Verde Rivers in Central
Arizona.
Today, SRP operates the Project works, which include, among other
things, six dams and reservoirs on the Salt and Verde rivers in central
Arizona, and one dam and reservoir on East Clear Creek in northern
Arizona. Water is stored by SRP in these reservoirs for subsequent
delivery to municipal, industrial and agricultural water rights and
uses. The watersheds for these dams include part of several national
forests. SRP's delivery system in the metropolitan Phoenix area
encompasses 1,300 miles of canals, laterals, ditches and pipelines
serving cities, Indian communities, irrigation districts, homes and
agricultural enterprises. Additionally, SRP operates over 250 deep well
pumps to supplement surface water supplies available to the Phoenix
area during times of drought.
SRP holds the rights to water stored in the seven Project
reservoirs, and to the downstream uses they supply, pursuant to the
state law doctrine of prior appropriation, as well as federal law. Much
of the water used in the Phoenix metropolitan area is supplied by these
reservoirs. SRP also operates one of the nation's largest public power
systems, providing electrical power to more than 1,000,000 customers in
the Phoenix area, and in certain rural areas of central Arizona.
The Hualapai Tribe's Reservation is located upgradient from and
adjacent to the Colorado River, in northwestern Arizona. A portion of
the Reservation is located in the extreme upper end of the Verde River
watershed, upstream from SRP's Verde River water rights. The United
States, acting on behalf of the Tribe, has asserted claims in the
pending Gila River Adjudication, to 14,495 acre-feet of water annually
from the Verde River watershed.
Over the past four years, SRP and other interested stakeholders
have engaged in water rights settlement negotiations with the Hualapai
Tribe. With the exception of an exhibit agreement among the United
States and Freeport Minerals Corporation (FMC), which we understand is
still in the process of being negotiated, the terms of the Hualapai
Tribe Water Rights Settlement Agreement have been agreed to and
finalized. SRP supports the portions of the settlement agreement that
have been completed and urges the Senate Indian Affairs Committee to
vote in favor of enactment of S. 3300.
The Hualapai Tribe Water Rights Settlement Agreement would, among
other matters, permanently resolve the claims of the Tribe and the
United States on its behalf to the Verde River watershed, and would do
so without impacting SRP's downstream Verde River water rights. The
settlement agreement also resolves the claimed rights of the Tribe to
the Colorado River, as well as the Bill Williams River, tributaries in
the Bill Williams River watershed, and groundwater for the Reservation
and tribal trust lands. Finally, the settlement resolves claims by the
Tribe to water rights for certain lands held in fee by the Tribe.
Because the Hualapai Tribe Water Rights Settlement Agreement would
achieve the important objective of providing certainty to neighboring
Arizona water users regarding the extent of the Tribe's water rights,
and because we believe its terms are fair and equitable to the Tribe
and the other settling parties, SRP supports S. 3300, which would
authorize the Tribe, and the United States on its behalf, to enter into
the settlement agreement. We appreciate the opportunity to present
these views to the Senate Indian Affairs Committee.
______
Prepared Statement of the Stockbridge-Munsee Community, Band of Mohican
Indians
Introduction
On September 14, 2016, the Senate Committee on Indian Affairs held
a legislative hearing on a number of bills, including S. 2636 (the
``Reservation Land Consolidation Act of 2016''). As currently drafted,
S. 2636 would amend the Indian Reorganization Act of 1934, 25 U.S.C.
465 (``IRA'') to provide that if a federally-recognized Indian tribe
submitted an application to the Secretary of the Department of the
Interior (``Secretary'') to have tribally owned lands that are wholly
located within that tribe's reservation taken into trust, the
Secretary, subject only to Federal land acquisition title requirements
applicable to federal acquisitions of land, must immediately take such
lands into trust. S. 2636 would also provide that ``where there has
been a final judicial determination that a reservation has been
disestablished or diminished, the term 'reservation' means the area of
land constituting the former reservation'' of the tribe.
This bill is of critical importance to the Stockbridge-Munsee
Community (the ``Tribe'') and the Tribe strongly supports it. S. 2636
would finally fulfill the promises of the IRA and enable the Tribe to
reacquire lost lands within its original reservation boundaries in a
timely and cost effective manner. As explained below, in the 70-plus
years since enactment of the IRA, the Tribe has reacquired in trust
only a small fraction of its reservation lands pursuant to the IRA. The
Tribe's few trust land holdings are scattered throughout the
reservation and as a result, the Tribe faces tremendous jurisdictional
issues and challenges to its ability to provide governmental services
to its members. Moreover, each trust acquisition is invariably
challenged by local municipalities, and even though these claims are
eventually dismissed, it is only after significant delays and costs to
the Tribe. Requiring the Secretary to immediately acquire such
onreservation lands into trust would allow the Tribe to finally
reacquire its lands timely and efficiently, and would eliminate
jurisdictional issues that continue to plague the Tribe.
The Tribe respectfully submits this written testimony for the
record of the Senate Committee on Indian Affairs' ``Legislative Hearing
to Receive Testimony on the Following Bills: S. 2636, S. 3216, S. 3222,
S. 3300.'' The Tribe's testimony is limited to S. 2636.
Background
IRA
In response to the devastating effects of the General Allotment Act
of 1887 which resulted in the loss of over 80 million acres of Indian
lands, Congress enacted the IRA in 1934. Its clear objective and
purpose was to reverse the allotment policy and to reacquire lands for
tribes. Securing meaningful tribal land bases would allow tribes to
provide permanent housing to their members, create opportunities for
economic development and exercise selfdetermination. Unfortunately,
despite the IRA's important objectives, only a small percentage of
Indian lands have been reacquired.
Tribe
The Stockbridge-Munsee Community was originally located on its
ancestral lands in and around the Hudson River Valley in New York.
However, through a series of forced removals over the span of several
decades, the Tribe was eventually relocated to Wisconsin in the 1820s.
The Tribe's current reservation in Wisconsin was originally
established pursuant to two 1856 treaties and consisted of two
townships totaling more than 46,000 acres. After the reservation proved
unsuitable for agriculture, Congress passed a series of acts in 1871
and 1906 to assist the Tribe in finding alternative lands. In spite of
these acts, the Tribe remained on its reservation for 160 years and
during this time, the United States treated all of these lands as the
Tribe's reservation for all purposes.
In 2004, the United States District Court for the Eastern District
of Wisconsin ruled that the 1871 and 1906 Congressional Acts diminished
and disestablished the Tribe's reservation. The U.S. Court of Appeals
for the Seventh Circuit affirmed that decision in 2009.
As a result, the Tribe's existing reservation--once more than
46,000 acres--now consists of a mere 17,000 acres of trust land. Since
1937, the Secretary has placed only approximately 1,650 acres in trust
for the Tribe pursuant to the IRA. \1\ Expressed as a percentage, in
the last nearly 70 years since the enactment of the IRA, the Tribe has
reacquired in trust status less than four percent (4 percent) of its
original reservation lands.
---------------------------------------------------------------------------
\1\ In 1972, pursuant to PL 92-480, Congress directed 13,077 acres
of land within the Tribe's original reservation to be placed into
trust. Accordingly, despite the existence of the IRA for over 70 years
and its strong policy to reacquire lost lands in trust status for
tribes, over seventy-five percent (75 percent) of the Tribe's current
trust land holdings were acquired not through the IRA, but through this
specific Congressional action.
---------------------------------------------------------------------------
Clearly, the intent of the IRA has not been fully realized. As a
result, the Tribe continues to experience jurisdictional challenges and
unnecessary delays in its efforts to reacquire its lands pursuant to
the IRA. We believe S. 2636 will resolve these issues and allow the
Tribe and the Secretary to finally achieve the goals and objectives of
the IRA.
Current Fee-to-Trust Process and Problems
The Tribe currently has twenty-seven fee-to-trust petitions for
approximately 1,983 acres pending with the Department of the Interior.
All of these petitions are for lands located within the Tribe's
original reservation boundaries. Over the last two decades, the Tribe
has spent millions of dollars to acquire its former lands. It currently
owns 7,522 acres of fee land within the reservation and pays
approximately $200,000 in property taxes each year on such lands.
The last time the Secretary placed land into trust for the Tribe
was in 201 1. The Tribe filed the petition for approximately 404 acres
in 2000--over a decade before it was taken into trust. The decade-long
process was the result of the discretionary nature of the acquisition,
the slow bureaucratic process at the Bureau of Indian Affairs, as well
as appeals brought by the surrounding County of Shawano (``Shawano
County'' or ``County''). Unfortunately, the untimeliness of this
particular trust acquisition is not unique--in fact, it is the norm.
For many years, Shawano County has had a standing resolution to
oppose all fee-to-trust petitions of the Tribe as well as decisions by
the Secretary to take land into trust. Although the County has since
withdrawn its resolution, it continues to challenge every favorable
trust acquisition decision. Currently, there are two bundled
applications under appeal with the Assistant Secretary--Indian Affairs.
The first application has been pending for approximately nine years and
the second has been pending for almost six and a half years. It is
important to point out that despite the County's challenge to each
discretionary trust acquisition decision, no favorable decision has
been overturned.
Like virtually all other tribes, the Stockbridge-Munsee Community
is in desperate need of additional trust land in order to facilitate
housing, infrastructure and economic development. In order to simplify
jurisdictional issues and avoid additional costs, the Tribe would
prefer that all new housing for tribal members be located on trust
lands. At present, the Tribe has at least 43 families on wait lists for
housing and the Tribe has assigned all of its habitable trust lands to
members; there are no unassigned lots available. Moreover, a portion of
the Tribe's trust lands is not suitable for housing because of nitrate
contamination. The Tribe's shortage of trust lands also adversely
impacts community infrastructure and economic development efforts. The
Tribe's secondary source of governmental income is forestry. As such,
the Tribe is not in a position to clear forestry lands for housing
because that would impact tribal budgets. Rather, the Tribe desires to
increase its ability to provide governmental services by adding to its
overall acreage of trust lands so more can be used for forestry. S.
2636 would provide the means to finally address these issues and as a
result, improve the general welfare of the Tribe and its members.
The Tribe also believes that S. 2636 would be improved by
clarifying that once contiguous or on-reservation land is taken into
trust, it would automatically be deemed as part of the reservation.
Under current policy and practice, the Secretary, in a separate action,
must proclaim the lands as reservation lands. Although there is little
to no impact on jurisdictional issues, an additional process and action
by the Secretary allows for yet another legal challenge to the status
of the land.
Conclusion
The Tribe strongly supports S. 2636. Mandating the Secretary to
treat all contiguous and on-reservation fee-to-trust petitions as
mandatory acquisitions would dramatically shorten the fee-to-trust
process and result in fewer appeals and challenges to trust acquisition
decisions because such actions would be mandatory and not
discretionary. Coupled with language indicating that such newly
acquired trust land would be deemed part of the Tribe's reservation, S.
2636 would also clarify the Tribe's jurisdiction over such lands.
______
Response to Written Questions Submitted by Hon. John McCain to
Larry Roberts
Question 1. Please advise the Committee of all studies that any
Interior Department agency has conducted of groundwater resources on
the Hualapai Reservation since 1950, the result of each study and why
the Department believes these studies establish the need for the two
additional groundwater studies it now proposes to conduct.
Answer. Since 1950, the Department has conducted or partnered on
the following groundwater studies in order to supplement the growing
understanding of hydrology in and around the Hualapai Reservation:
Freethey, G. W. and Anderson, T. W., 1986, Predevelopment
Hydrologic Conditions in the Alluvial Basins of Arizona and
Adjacent Parts of California and New Mexico: U.S Geological
Survey Hydrologic Investigations Atlas HA-664, 3 plates,
1:500,000.
Twenter, F.R., 1962. Geology and promising areas for ground-
water development in the Hualapai Indian Reservation, Arizona:
U.S. Geological Survey, Water-Supply Paper 1576-A, scale
1:125000.
Watt, D., 2000. Groundwater Exploration Drilling and Well
Development near Grand Canyon West, Hualapai Reservation,
Arizona. U.S Department of the Interior, Bureau of Reclamation.
Lower Colorado Region. Boulder City, Nevada. Unpublished
These previous reports relied on the evaluation of limited well and
spring information and a limited geologic and structural framework of
the reservation lands to identify and characterize groundwater in the
Muav Limestone (the R-M Aquifer) and in alluvial, volcanic, and basin
fill sediments (the Truxton and Westwater Aquifers). As a result, the
published groundwater resource assessments of the reservation provide
only general ranges of estimated groundwater discharge from reservation
lands. \1\ None of the reports give a high degree of certainty about
the overall occurrence and movement of groundwater on reservation lands
owing to limited understanding of the overall hydrogeologic framework.
---------------------------------------------------------------------------
\1\ Three previous studies estimated groundwater storage of the
greater Peach Springs watershed, which includes the Hualapai
Reservation aquifer systems, to be about 1,000,000 to 10,000,000 acre-
feet.
---------------------------------------------------------------------------
In addition, many of the published reports recommended the need for
additional studies to more completely characterize the occurrence and
movement of groundwater resources underlying reservation lands. Two
studies discussed the importance of a thorough understanding of complex
geology and geologic structure by managers and drillers for the proper
location of test and production wells. In fact, past attempts at
drilling and development of new supply wells have met with limited
success because of a poor understanding of the complex geology and
geologic structure that controls the occurrence and movement of
groundwater.
However, existing well and spring data indicate that substantial
but variable groundwater resources occur on reservation lands. For this
reason, the Department believes that conducting regional hydrogeologic
assessments of the reservation's groundwater resources using state-of-
the-art hydrogeologic tools will provide improved understanding of the
geologic and hydrogeologic frameworks on reservation lands. We believe
that this insight may lead to improved characterization of groundwater
resources and potentially more successful groundwater development. The
insight may also enable more effective water-management decisions now
and in the future as groundwater demands on aquifer resources across
Arizona increase with increasing development, population growth, and
changing climate conditions.
Question 2. Please supply the Committee with the specific reports
that cause the Department to believe the costs of constructing the
pipeline will be higher than the $134,500,000 authorized in S. 3300.
Answer. There are no finalized specific reports with respect to
costs of the infrastructure project. The Department reviewed DOWL HKM's
(DOWL) ``Grand Canyon West Water Supply Study'', December 2014, and
recent addendum, June 2016, referred to as Appraisal Design Report
(ADR) and found that the report underestimated certain costs, including
costs associated with water treatment plants, storage tanks, number of
storage tanks, pumping plants, intake and pretreatment facility, and
pipelines. Additional costs related to design contingencies,
construction contingency, and distributed non-contract costs were also
determined to be underestimated, and the collective short-comings of
the report informed the Department's conclusion that the cost estimate
is substantially low. The Department continues to analyze the costs of
constructing the pipeline, and looks forward to working with the Tribe,
the Arizona delegation and this Committee to facilitate a consensus
settlement agreement.
Question 3. Please enumerate the specific types of ``substantial
litigation on multiple fronts'' the Department believes will result
from the proposed infrastructure project.
Answer. The Department believes that because the project is located
in part within the Grand Canyon National Park it is likely that
environmental and conservation organizations will oppose the project,
and such opposition may include litigation against the Department under
the National Environmental Policy Act, the Endangered Species Act, as
well as other federal statutes.
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