[Senate Hearing 114-62]
[From the U.S. Government Publishing Office]
S. Hrg. 114-62
ADDRESSING THE NEEDS OF NATIVE
COMMUNITIES THROUGH INDIAN WATER RIGHTS SETTLEMENTS
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MAY 20, 2015
__________
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 May 20, 2015..................................... 1
Statement of Senator Barrasso.................................... 1
Statement of Senator Crapo....................................... 4
Prepared statement........................................... 4
Statement of Senator Daines...................................... 4
Statement of Senator Lankford.................................... 47
Statement of Senator McCain...................................... 2
Statement of Senator Tester...................................... 11
Statement of Senator Udall....................................... 2
Witnesses
Connor, Hon. Michael L., Deputy Secretary, U.S. Department of the
Interior....................................................... 5
Prepared statement........................................... 7
Macarro, Hon. Mark, Chairman, Pechanga Band of Luiseno Indians... 12
Prepared statement........................................... 14
Moore, Steven C., Senior Staff Attorney, Native American Rights
Fund........................................................... 31
Prepared statement........................................... 33
Weiner, Jay, Assistant Attorney General, State of Montana........ 22
Prepared statement........................................... 24
Appendix
Counts, Hon. Sherry, Chairwoman, Hualapai Tribe, prepared
statement...................................................... 55
Finley, Vernon, Chairman, Confederated Salish and Kootenai Tribes
of the Flathead Reservation Tribal Council, prepared statement. 58
ADDRESSING THE NEEDS OF NATIVE
COMMUNITIES THROUGH INDIAN WATER RIGHTS SETTLEMENTS
----------
WEDNESDAY, MAY 20, 2015
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. John Barrasso,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
The Chairman. Good afternoon. I call this hearing to order.
First, I want to draw attention to the Department of
Interior's pattern of violating Committee rules regarding the
delivery of testimony. This is the second consecutive hearing
and the third time this year that testimony from the Department
of the Interior is late. This lateness is unacceptable. It is
disrespectful to this Committee and to the Senate, as well as
disrespectful to other witnesses, and a complete disregard for
the importance of the issue ahead of us today.
This Committee has options as to rectify the lateness
issue. I would prefer that as Deputy Secretary, that you
personally, Mr. Connor, rectify this matter within your
department. I hope this Administration will take Indian Affairs
more seriously and submit the testimony in a timely manner from
here on out.
As you know, this topic today is water, and water is the
life blood of our communities. Without it, many communities
would not have safe drinking water. They couldn't irrigate
fields, grow crops or raise horses, cattle and buffalo.
Economic opportunities and jobs would be lost without water.
As trustee, the United States has an important obligation
to address Indian water rights. Over a century ago, an
important Supreme Court case, Winters v. The United States,
paved the way for Indian tribes to settle their water rights.
Since then, only a handful of Indian tribes have either
litigated or settled their claims for water rights, and many
more still need to be addressed.
Intensified by severe droughts across the West, there is an
increasing competition for these limited water resources. To
secure their rights, tribes can litigate their claims, which
can be an expensive route for both the tribe and the Federal
Government. In the alternative, tribes can work with State,
local and Federal officials to find a palatable solution
advanced through a congressional settlement. Today's hearing
will provide an opportunity to examine the most appropriate
path forward in settling Indian water rights.
We also will explore the key barriers to moving these
settlements through Congress. So I look forward to hearing from
our witnesses today.
Senator Tester is unavoidably detained with other important
Senate matters. He will be able to make his statement when he
arrives.
Do any other members have opening statements? Senator
Udall?
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Yes, just a short statement, Chairman
Barrasso. I want to thank you and Vice Chairman Tester for
holding today's important hearing.
Water settlements are incredibly important in the West.
Resolving longstanding issues with Indian water rights is not
only important for the economic development of the tribes but
for long-term economic vitality for the States and surrounding
communities.
In places like New Mexico, where water is the most precious
resource, adjudication of water resources that is fair and
beneficial to all is the upmost priority. I know Deputy
Secretary Connor knows that well.
Indian water rights settlements are the way to ensure
future certainty for water users, and allows for community
collaboration. In the water space, I think it is very, very
important we collaborate, rather than litigate.
With that said, I look forward to hearing from today's
witnesses and yield back the balance of my time.
The Chairman. Thank you very much.
Any members on this side? Senator McCain?
STATEMENT OF HON. JOHN McCAIN,
U.S. SENATOR FROM ARIZONA
Senator McCain. Mr. Chairman, thank you for holding this
hearing on Indian water settlements. I can tell you first-hand
how important and beneficial these congressionally-enacted
Indian water settlements are to the tribes in my State.
Over the years, Congress has passed nine pieces of
legislation to settle water claims in the State of Arizona
involving the Ak-Chin, the Gila River Indian Community, the
White Mountain Apache Tribe, the Salt River Pima-Maricopa
Indian Community, the Fort McDowell Yavapai Nation, the Zuni
Indian Tribe, the Prescott Yavapai Nation and much of the San
Carlos Apache Tribe and the Tohono O'odham Tribe, although more
work needs to be done on the last two tribes.
I had the honor, and all of us did, of working with Senator
Jon Kyl, the premier water expert, not only in the Congress,
but arguably in America. He personally developed at least six
of these settlements during his service in the House and
Senate, including the Arizona Water Settlements Act of 2004,
which was the most impactful water settlement legislation in
Arizona history, because it resolved over 1 million acre-feet
of water claimed by Indian tribes to the Central Arizona
Project system.
My home State is fortunate that my colleague, Senator Jeff
Flake, is a worthy successor to Senator Kyl when it comes to
advancing future water settlements for tribes in Arizona.
Mr. Chairman, I will be brief, but today, Indian water
settlements are critical in the face of the ongoing drought in
the West. Each time Congress finalizes an Indian water
settlement, it brings certainty in water budgets and water
ownership for Indians as well as non-Indians. In past
estimates, the combined total of all Indian claims in Arizona
exceeded 3.6 million acre-feet of water. There isn't enough
water or Federal funding to adjudicate these claims in Federal
court or properly manage our water resources, which is why
Congress has historically played a role in settling these
claims legislatively.
Finally, these water settlements are important to the well-
being of tribal members. As you know, most of these water
settlements transfer Federal funding to tribal governments as
compensation for releasing their claims. This funding is often
used to build critical water infrastructure projects on
reservations that deliver drinking water to very rural and
impoverished tribal members.
For example, about 40 percent of the tribal members of the
Navajo Nation currently haul their water. Congressional
legislation to settle the Navajo's claim along the Little
Colorado River is one way the Navajo Nation has proposed in
past years to build a domestic water pipeline, turning their
unusable ``paper water'' into ``wet water'' for human
consumption.
I thank you again for holding this hearing. Again, Mr.
Chairman, at least for those of us in the West and the
Southwest, I don't know of a more critical issue than water.
There is nothing more critical about the water issue, frankly,
than settling the Indian water claims which are guaranteed to
them by solemn treaty. And at the same time, if we are going to
have a predictable water supply in States like mine and New
Mexico and others, then we have to proceed with these water
settlements.
I thank you, Mr. Chairman, for doing this, and I know we
have a lot of water in Wyoming. I propose a pipeline that would
send some of that down to Arizona and New Mexico.
[Laughter.]
Senator McCain. I thank you, Mr. Chairman.
Senator Udall. He could at least spare half the Green
River, right?
[Laughter.]
The Chairman. Thank you, Senator McCain.
Senator McCain. Maybe that could be our next hearing.
[Laughter.]
The Chairman. Senator Crapo?
STATEMENT OF HON. MIKE CRAPO,
U.S. SENATOR FROM IDAHO
Senator Crapo. Thank you, Mr. Chairman. I will be on the
Senator from Wyoming's side on that issue.
[Laughter.]
Senator Crapo. I have a statement, but I would just submit
it for the record if the Chair will allow me.
The Chairman. Without objection.
[The prepared statement of Senator Crapo follows:]
Prepared Statement of Hon. Mike Crapo, U.S. Senator from Idaho
Thank you Mr. Chairman for holding this important hearing on Indian
water rights settlements. Water resource management is a critical issue
everywhere, but prolonged drought conditions and inherently arid
regions in western states make this issue especially important to Idaho
and its neighbors. Water is a shared resource that requires multiple
interests to work together to manage effectively. When it comes to the
quantification, allocation and management of water rights, multiple
approaches may be employed. However, I am confident there is broad
agreement on this committee, within the Administration and in Indian
country that the negotiated settlement model is a far better approach
than the litigation model. While negotiated settlements require serious
time commitments and hard work among diverse stakeholders, the outcomes
often enjoy broad and lasting support. Idaho is no stranger to the
issue of water rights settlements involving Indian tribes. In fact,
Idaho is a model for the type of success that can be achieved by the
settlement model. For example, in 2004, Congress enacted the Snake
River Water Rights Act, which was the culmination of negotiations in
Idaho that achieved a fair, equitable, and final settlement of all
claims of the Nez Perce Tribe and other parties with rights to Snake
River water. Additionally, the Shoshone-Bannock Tribes successfully
reached an agreement regarding water claims as part of this settlement
effort. Other tribes in Idaho have had their water rights addressed
through similar collaborative agreements codified by Congress and other
efforts are currently underway. While Idaho has seen success in recent
years on this issue, there are still challenges to be overcome as
tribes, states and the Federal Government work on these types of
agreements. As such, I look forward to hearing from today's witnesses
and learning their perspectives on these issues. Once again, thank you
for holding this hearing.
The Chairman. Senator Daines? I will note, Senator Daines,
one of the folks testifying today is from your home State, the
Assistant Attorney General from the State of Montana, the
Honorable Jay Weiner. I didn't know if you wanted to make
comments at this point.
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Sure. Jay, it is great to have you here.
Thanks for making the trip to D.C.
I want to thank you also for all of your hard work,
particularly over the last few months, getting the Blackfeet
Water Settlement ready for introduction. I am confident we have
a bill that is ready to go forward.
I specifically want to thank you for your efforts to get
stakeholders on and off the reservation to come to an agreement
on areas such as Birch Creek and the Milk River. It is not an
easy task. I commend you and thanks for being here today.
The Chairman. Thank you, Senator Daines.
We have four witnesses here today: The Honorable Mike
Connor, the Deputy Secretary of the Department of the Interior;
the Honorable Jay Weiner, the Assistant Attorney General, State
of Montana; the Honorable Mark Macarro, Chairman, Pechanga Band
of Luiseno Mission Indians; and Mr. Steven Moore, Senior Staff
Attorney, Native American Rights Fund.
I want to remind the witnesses that your full written
testimony will be part of the official hearing record, so I
would ask you to please keep your statements to five minutes,
so that we may have time for questions.
I look forward to hearing your testimony, beginning with
Deputy Secretary Connor. Please proceed.
STATEMENT OF HON. MICHAEL L. CONNOR, DEPUTY SECRETARY, U.S.
DEPARTMENT OF THE INTERIOR
Mr. Connor. Chairman Barrasso, members of the Committee,
first, Mr. Chairman, let me assure you, I heard you; message
received with respect to the testimony. I will go back and work
on that issue in particular.
I appreciate the opportunity to appear before you today to
discuss Federal participation in Indian water rights
settlements. The subject of Indian water rights settlements is
one that I am very familiar with. I began my career at the
Department of the Interior working on Indian water rights, then
went back and served as the Director of the Secretary's Indian
Water Rights Office. Through these and the other positions I
have held, I have seen first-hand how water settlements can
greatly benefit tribes and their members as well as neighboring
non-Indian communities.
Drought and other water resource challenges and conflicts
are dominating today's headlines. To say the least, uncertainty
with respect to the availability of water is disconcerting. Yet
it is something that tribes have been dealing with for well
over a century.
Indian water rights settlements address this problem.
Settlements have been and should remain a top priority for the
Federal Government.
The Administration is proud of its record on settlements
and we continue to be committed to them as an important way to
address the needs of Native American communities. Indian water
rights settlements are consistent with the general Federal
trust responsibility and with Federal policy promoting tribal
sovereignty, self-determination and economic self-sufficiency.
This Administration's active involvement in negotiations has
resulted in both significant improvements in the terms of
settlements and substantial reduction in the Federal cost
associated with recently-enacted settlements. We are currently
involved in 18 ongoing negotiations around the West and are
expecting that several will see action in Congress this year.
Disputes over Indian water rights are often expensive and
divisive. In many instances, these disputes, which can date
back 100 years or more, are a tangible barrier to socioeconomic
development for tribes and significantly hinder the management
of water resources. Settlement of these disputes can break down
barriers and help create conditions that improve water
resources management by providing certainty as to the rights of
major water rights holders who are parties to these disputes.
Simply litigating title to water rights has not proven to
be an effective solution for tribes or their neighbors.
Litigation often lasts for decades at a great cost to all
parties. A judicial decree does not provide wet water tribes,
nor does it authorize new infrastructure or do anything to
encourage improved water management.
Negotiated settlements, on the other hand, can and
generally do address these critical issues. Through settlement,
parties can agree to use water more efficiently or in ways that
result in environmental benefits or to share shortages during
times of drought rather than relying on the strict principles
of seniority and priority date.
Parties to negotiations can agree to terms for mutually
beneficial water marketing that could not otherwise occur
because of uncertainties in State and Federal law. Settlement
negotiations foster a holistic, problem-solving approach that
contrasts with the zero sum logic of prolonged litigation.
Although Congress' enactment of 29 Indian water rights
settlements represents progress, much more remains to be done.
Excluding Alaska, there are 277 federally-recognized tribes in
the West alone. Many of these tribes are in need of clean,
reliable drinking water, repairs to dilapidated irrigation
projects, and the development of other water infrastructure
necessary to bring economic development to reservations.
Given the ongoing challenges related to water resource
management, the needs and demands in Indian Country are likely
to escalate. The Administration will need to continue to work
with Congress to enact and fund upcoming settlements.
With some notable recent exceptions, water rights
settlements generally have been funded through the Department's
discretionary appropriations. Work to be performed on these
settlements by Reclamation has come out of Reclamation's
budget, and trust funds and other settlement costs generally
have come out of the Bureau of Indian Affairs budget.
In some recent settlements, Congress has included
provisions for a variety of mandatory funding mechanisms. The
Claims Resolution Act in 2010, for example, provided
approximately $650,000,000 of direct funding for the water
rights settlements enacted therein, plus an additional
$180,000,000 for funding the Navajo-San Juan settlement enacted
in the 2009 Omnibus Public Lands Act.
Another approach that Congress took in the Omnibus Public
Lands Act was the creation of a Reclamation Water Settlement
Fund. Starting in 2020, this fund will provide a limited level
of funding in Indian water rights settlements enacted by
Congress calling for expenditures by the Bureau of Reclamation.
These funds are direct spending, not subject to further
appropriation and we estimate that all the funds in the
Reclamation Water Settlement Account will be fully obligated by
existing authorized settlements, depending on the level of
discretionary funding these settlements receive.
Some are characterizing water rights settlements as
earmarks. This is not the case. The Supreme Court's decision in
the Winters doctrine establishes the senior rights of tribes to
water necessary to fulfill the purposes of the reservation.
Water rights and related resources are trust assets of
tribes and water rights settlements enable the Federal
Government to protect and enhance those assets. When negotiated
in accordance with the Administration's approach, settlements
approved through this process are not earmarks.
In conclusion, I want to underscore the importance of these
settlements to this Administration. Indian water rights
settlements, when they are done right, produce critical
benefits for tribes and bring together communities in
partnerships to improve water management practices in some of
the most stressed water basins in the Country.
Thank you for the opportunity.
[The prepared statement of Mr. Connor follows:]
Prepared Statement of Hon. Michael L. Connor, Deputy Secretary, U.S.
Department of the Interior
Chairman Barrasso, Vice-Chairman Tester, and Members of the
Committee, my name is Michael Connor and I am the Deputy Secretary of
the Department of the Interior (Department).
Thank you for the opportunity to appear before you today to discuss
addressing the needs of Native Communities and fulfilling the Federal
trust responsibility to American Indians through Indian water rights
settlements. The subject of Indian water rights settlements is one with
which I am very familiar. I began my career as an attorney in the
Department working on Indian water rights, and then serving as the
Director of the Interior Secretary's Indian Water Rights Office. In
that capacity, and in the positions I have held since, I have seen
first-hand how water settlements can greatly benefit both Tribes and
their members and neighboring non-Indian communities.
Today, implementing existing settlements and reaching new
agreements is more important than ever given the need for water on many
Indian reservations and throughout the West and the uncertainty
regarding its availability due to drought, climate change, and
increasing demands for this scarce resource. Settlements resolve long-
standing claims to water; provide reliability with respect to supplies,
facilitate the development of much-needed infrastructure; improve
environmental and health conditions on reservations; and promote
collaboration between Tribes, states, and local communities.
Settlements have been, and should remain, a top priority for the
Federal Government.
I. Introduction
The Administration is proud of its record on Indian water rights
settlements, and we continue to be committed to settlements as an
important way to address the water needs of Native American
communities. Indian water rights settlements are consistent with the
general Federal trust responsibility to American Indians and with
Federal policy promoting tribal sovereignty, self-determination, and
economic self-sufficiency. Water settlements not only secure tribal
water rights but also help fulfill the United States' promise to tribes
that Indian reservations would provide their people with permanent
homelands. These settlements resolve what has often been decades of
controversy and contention among tribes and neighboring communities
over water, replacing those conflicts with certainty, which fosters
cooperation in the management of water resources and promotes healthy
economies.
Since 2009, the Administration has supported and Congress has
enacted six Indian water rights settlements for nine tribes at a total
Federal cost of slightly more than $2 billion. All told, these
settlements resolved disputes and litigation spanning well over a
century. Most recently, the Administration was pleased to support two
smaller and less comprehensive water rights settlements involving
Tribes, in the 113th Congress: the Pyramid Lake Paiute Tribe-Fish
Springs Ranch Settlement Act and Bill Williams River Water Rights
Settlement Act of 2014. The Administration is working with all of the
affected tribes now to implement these settlements.
This Administration's active involvement in settlement negotiations
has resulted in both significant improvements in the terms of the
settlements and substantial reduction in their Federal costs, which
ultimately led to our support for these six Indian water rights
settlements. Our support for these settlements clearly demonstrates
that settling Indian water rights disputes is a high priority for this
Administration and confirms that we stand ready to support Indian water
settlements that result from negotiations with all stakeholders,
including the Federal Government, and represent a good use of taxpayer
dollars good cost share contributions from states and other benefitting
parties.
The Department has made significant strides in implementing the
four settlements in the Claims Resolution Act and the two settlements
in the Omnibus Public Lands Management Act. When fully implemented,
these settlements will help ensure permanent water supplies and enhance
economic security for five Pueblos in New Mexico, the Crow Tribe of
Montana, the White Mountain Apache Tribe of Arizona, Navajo Nation
lands located in the San Juan river basin in New Mexico and the
Shoshone-Paiute Tribes of the Duck Valley Reservation located in part
in both Nevada and Idaho. The Department is well underway in
constructing the Navajo Gallup Water Supply Project, which will bring a
clean and sustainable water supply to the Navajo Nation, where an
estimated 40-percent of residents must haul water for use in their
homes, and will help to augment the City of Gallup's drinking water
system. As of today, we estimate that 326 jobs have been created
directly by this project, a majority of which are held by Native
Americans. Preliminary work on the construction of the Crow, White
Mountain Apache and Aamodt domestic water projects is on-going. In
addition, the United States has initiated critically needed
improvements in the irrigation systems of the Duck Valley, Crow and
Navajo Nation. These settlements are ushering in a new chapter on water
in these regions- one marked by certainty, cooperation, and economic
activity.
While recent settlements have provided desperately needed
infrastructure in Indian country, much more work remains to be done. We
are currently involved in 18 additional settlement negotiations around
the West and are expecting several will see action in Congress this
year. There are a few settlements that have been introduced this
Congress, and numerous other settlements that have been in negotiation
for many years that are approaching a resolution. It is difficult to
predict which of these will reach final stages this year but we are
continuing our active involvement in all. In addition to existing
settlement teams, the demand for new teams continues to grow. We are in
the process of appointing a negotiation team for the Coeur d'Alene
Tribe in Idaho and we are considering appointing an assessment team for
the Ohkay Owingeh Pueblo in New Mexico.
II. The Impetus for Water Rights Settlements
Disputes over Indian water rights are often expensive and divisive.
In many instances, Indian water rights disputes, which can date back
100 years or more, are a tangible barrier to socio-economic development
for tribes, and significantly hinder the management of water resources.
Settlements of Indian water rights disputes can break down these
barriers and help create conditions that improve water resources
management by providing certainty as to the rights of major water
rights holders who are parties to the disputes. That certainty provides
opportunities for economic development, improves relationships, and
encourages collaboration among neighboring communities. We have seen
this time and again throughout the West as the United States has
pursued a policy of settling Indian water rights disputes whenever
possible. For these reasons and more, for more than 30 years, federally
recognized Indian tribes, states, local parties, and the Federal
Government have acknowledged that negotiated Indian water rights
settlements are preferable to protracted litigation over Indian water
rights claims.
Indian water rights are especially valuable in the West for many
other reasons, including the fact that Indian reserved water rights
cannot be lost due to nonuse, and Indian water rights have a priority
date no later than the date of the creation of the reservation with
which they are associated. Because most reservations were established
prior to the settlement of the West by non-Indians, even very senior
non-Indian water rights are often junior in priority to Indian water
rights. Because most tribes have lacked resources to develop their own
domestic water supply systems, irrigated agriculture or other industry
to make use of their water resources, their ability to use their water
rights has been limited. As a result, neighboring non-Indian interests
and communities have come to rely over the course of decades on a water
supply for which Indians have senior water rights.
Simply litigating title to water rights has not proven to be an
effective solution for tribes or their non-Indian neighbors. Litigation
often lasts for decades at great cost to all parties: the Federal
government, tribes, states and local water users. Certain costs
associated with these settlements cannot be monetized. For example,
although we know that uncertainty and conflict over water reduces
economic development and quality of life in the affected area, it is
very difficult if not impossible to put a dollar figure on those costs.
Even when litigation is concluded and a court decrees that a tribe has
a right to a certain amount of water with a specific priority date,
uncertainty persists. If a tribe cannot put its water rights to
immediate use, Western water law principles allow other junior users to
take advantage of the water until such time as a tribe can put the
water to use. This, of course, continues to fuel conflict and casts a
pall of uncertainty over a water system because junior users have no
way of knowing when the tribe will be in a position to use its water.
A judicial decree does not provide ``wet water'' to tribes, nor
does it authorize new infrastructure or do anything to encourage
improved water management. Negotiated settlements, on the other hand,
can, and generally do, address these critical issues. Through a
settlement, parties can agree to use water more efficiently or in ways
that result in environmental benefits, or to share shortages during
times of drought rather than relying on strict principles of seniority
in priority date. In exchange for settlement benefits, tribes can and
do agree to subordinate use of their water rights so that existing
water uses can continue without impairment. Parties to negotiations can
agree to terms for mutually beneficial water marketing that could not
otherwise occur because of uncertainties in Federal and State law.
Settlement negotiations foster a holistic, problem-solving approach
that contrasts with the zero-sum logic of prolonged litigation that can
have unintended consequences for communities with a unique opportunity
for creative, place-based solutions reflecting local knowledge and
values.
III. The Department's Indian Water Rights Program
The Administration's commitment to Indian water settlements is
reflected in the high level leadership at the Department that focuses
on these settlements. My Counselor and the Chair of the Working Group
on Indian Water Settlements (Working Group), along with the Assistant
Secretaries of Indian Affairs and Water and Science, the Commissioner
of Reclamation, the Solicitor, and the Secretary's Indian Water Rights
Office (SIWRO), work as a team to achieve results that make a real
difference, not only for tribes but for all the communities involved.
The Federal Government is guided in negotiations by the Criteria
and Procedures for the Participation of the Federal Government in
Negotiations for the Settlement of Indian Water Rights Claims (55 FR
9223, March 12, 1990). The Department and other Federal agencies
participate in settlement discussions at the local level primarily
though Federal negotiation teams. The teams interact with settlement
parties, explain Federal policies on settlement and, when possible,
help mold the parameters of a settlement.
Once a settlement is enacted by Congress, SIWRO oversees its
implementation, primarily through Federal implementation teams, which
function much like the Federal negotiation teams only with a focus on
helping the Indian tribe and the other parties implement the enacted
settlement. Currently, there are 18 Federal Indian Water Rights
Negotiation Teams active in negotiating water rights claims in the
western United States. An additional 20 Federal Indian Water Rights
Implementation Teams work on implementing congressionally enacted
settlements. With drought, climate change, increasing populations, and
other factors impacting the availability of water and increasing the
competition for this finite resource, the number of requests for the
appointment of new negotiation teams continues to grow.
In the negotiation phase, the Department's efforts are supported by
the Bureau of Indian Affairs' (BIA) Water Resources and Water Rights
Litigation and Negotiation Programs, which provide technical and
factual work product in support of the Indian water rights claims and
provide financial support for the United States to defend and assert
Indian water rights. In addition, the Native American Affairs Program
within the Bureau of Reclamation (Reclamation) provides technical
support for Indian water rights settlements, and assists tribal
governments in developing, managing and protecting their water and
related resources. This office also provides policy guidance for
Reclamation's work with tribes in such areas as the Indian trust
responsibility, government-to-government consultations, and Indian
self-governance and self-determination. Once a settlement is enacted by
Congress, and appropriations are authorized to implement it, primary
funding responsibilities fall to Reclamation and the Bureau of Indian
Affairs, although other agencies can and do contribute based on the
particular terms of a settlement. To support these efforts, the
President's FY 2016 Budget requests $244.5 million for Indian water
rights settlements ($40.8 million for negotiation and legal support and
$203.7 million for implementation, including $136 million for
Reclamation and $67.7 million for the Bureau of Indian Affairs).
IV. Future Challenges
Although Congress' enactment of 29 Indian water settlements is a
good start in addressing the need for reliable water supplies in Indian
country, much more remains to be done. There are 277 federally
recognized tribes in the West alone (excluding Alaska), and we are
seeing increased interest in Indian water rights settlements east of
the 100th Meridian. Many of these tribes are in need of: clean,
reliable drinking water; repairs to dilapidated irrigation projects;
and the development of other water infrastructure necessary to bring
economic development to reservations.
The Administration will need to continue to work with Congress to
enact and fund upcoming settlements. With some notable recent
exceptions, water rights settlements generally have been funded through
the Department's discretionary appropriations. Work to be performed
under the settlements by Reclamation has come out of Reclamation's
budget, and trust funds and other settlement costs generally have come
out of the BIA's budget, but all Departmental agencies have been asked
from time to time to expend discretionary funds from their budgets on
implementation of these water settlements. In all of these cases, the
Administration has worked successfully with Congress to secure the
funds needed to continue to implement and completed signed settlements.
In some recent settlements Congress has included provisions for a
variety of mandatory funding mechanisms in water rights settlements.
The Claims Resolution Act, for example, provided approximately $650
million of direct funding for the water rights settlements enacted
therein, plus an additional $180 million of funding for the Navajo-San
Juan settlement enacted in the Omnibus Public Lands Management Act.
Another approach that Congress took in section 10501 of the Omnibus
Public Lands Management Act was the creation of the Reclamation Water
Settlement Fund. Starting in 2020, this fund will provide a limited
level of funding in Indian water rights settlements enacted by Congress
calling for expenditures by Reclamation. By statute, these settlements
must meet certain criteria and there is priority for settlements in the
states of New Mexico, Arizona and Montana. These funds are direct
spending not subject to further appropriation, and we estimate that all
of the funds in the Reclamation Water Settlement Account will be fully
obligated by existing, authorized settlements, however this estimate is
dependent on the level of discretionary funding that these settlements
receive. Congress also envisioned some funding for future Indian water
rights settlements through provisions of the Arizona Water Rights
Settlement Act of 2004 (AWSA) by identifying future settlements as
eligible to receive funds from the Lower Colorado River Basin
Development Fund. Unfortunately, due to downturns in the economy, this
fund has not produced the level of revenue expected at the time that
law was enacted and other costs of the AWSA have proven greater than
anticipated.
The Administration believes that Indian water rights settlements,
when the product of a well thought-out process, represent an overall
benefit to taxpayers when balanced against the potential consequences
and costs of continued litigation over Indian water rights claims.
First and foremost, from both a cost and timing perspective,
settlements typically offer the most efficient way to provide much-
needed water supplies to many tribal communities in fulfillment of the
purposes of their reservations and basic Federal responsibilities.
Moreover, settlements provide mechanisms that can protect current uses
by non-Indian water rights holders. In addition, the consequences and
costs of litigation are different for each particular settlement and
are not always susceptible to simple monetary quantification.
Some have suggested that Indian water rights settlements are
``earmarks''. This is not the case. The U.S. Supreme Court's Winters
doctrine establishes the senior rights of Indian tribes to water to
fulfill reservation purposes. Water rights and related resources are
trust assets of tribes, and water rights settlements enable the Federal
Government to protect and enhance those assets. And, in almost every
case, settlements are entered into to either prevent or resolve
longstanding litigation that drains resources from the Federal
Government, Indian tribes, and other affected parties, and exposes the
Federal Government and other parties to substantial risks. As described
in this testimony, the Department has an established program that
guides the process of negotiating Indian water rights settlements that
satisfy federal criteria. Under the Criteria and Procedures, the
Administration carries out careful analysis of the appropriateness of
the costs of the settlement. Our support is not provided lightly; we
have come to this Committee and testified regarding our concerns with
proposed water rights settlements that we do not find to have met our
requirements for reducing costs, including appropriate cost shares, and
producing results. The Administration has not viewed settlements as
earmarks.
V. Conclusion
State and local governments, as well as Indian tribes, favor water
rights settlements because they can be directly involved in shaping
their own destinies, rather than leaving their fate to be decided by an
uncertain course of litigation. The Federal Government should continue
to encourage these local efforts to resolve outstanding issues and
establish water management regimes that can be the basis for, rather
than a drag upon, strong local economic development.
Protracted litigation does not, ultimately, provide the best
solution for the real problems that communities face. Indian water
rights settlements can spur critically needed cooperation. From
shortage sharing to water marketing to protection of instream flows,
settlements allow people to identify the needed mechanisms to enable
investments in a common future. In addition to establishing the basis
for the courts to decree rights, these settlements often include
infrastructure projects allowing tribes to make use of their water and
non-Indians to continue using water that was subject to senior rights
by Indian tribes. Recent settlements have authorized projects that will
provide desperately needed access to safe drinking water on
reservations and repair of irrigation systems that have severely
deteriorated over time. These projects can improve public health by
providing basic foundations for improving, health indicators such as
infant mortality rates, and stimulating and sustaining economic
development and growth in tribal communities.
According to the Indian Health Service (IHS), today, less than 1
percent of the population in the United States is without access to
safe water, while more than 12 percent of American Indian and Alaska
Native homes are without access to safe water. \1\ For the young and
old, water-hauling is a way of life on some reservations. In these
communities, tribal members routinely truck water from storage tanks at
stock ponds, or other non-potable or contaminated sources, raising
serious public health concerns. According to IHS, many of the homes
without access to safe water are at an extremely high risk for
gastrointestinal and respiratory diseases at rates similar to
developing countries. \2\ Additionally, for these tribal members,
hauling water can be a full-time job that limits economic opportunities
and perpetuates the cycle of poverty.
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\1\ See Testimony of Robert McSwain, Deputy Director, Management
Operations, Indian Health Service, before the United States Senate
Committee on Banking and Housing, Oversight Hearing on: Coordination
between Federal Agencies Involved in Native American Housing and/or
Infrastructure Development (Mar. 8, 2012) at 4.
\2\ Id.
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In conclusion, I want to underscore the importance of these
settlements to this Administration. Indian water rights settlements,
when they are done right, produce critical benefits for tribes and
bring together communities to improve water management practices in
some of the most stressed water basins in the country. Moreover, Indian
water settlements help ensure that Indian people have safe, reliable
water supplies and the means to develop their homelands, and that
neighboring communities receive needed certainty in water resources to
foster economic development and growth. I hope that I have a chance to
work with this Committee and with all the stakeholders assembled today
on additional settlements that can accomplish these worthy goals.
The Chairman. Thank you very much, Mr. Connor.
Senator Tester?
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman. Thank you, Mike,
for your work. I very much appreciate it.
It is good to have Jay Weiner here. Jay and I worked
together on a number of projects throughout the years. I
appreciate your expertise. And I wanted to recognize President
Azure from Fort Belknap, who also has a water settlement that
we need to be working on. It is good to have you here.
I just want to say one thing. First of all, I didn't hear
the Chairman's opening statement, but he did talk about the
documents getting in late. It is really important we get them
in on time. It allows Committee members and their staff to
scrutinize them. We actually do read what you put in to us. So
it is important, and I want to encourage you to get them in on
time after this.
Look, real quickly on water settlements, it deals with
money. I have a bill, S. 1365, that devotes $35 million a year
for the next 20 years to pay for tribal water rights
settlements. These are big dollar items. They need to be built.
They not only affect the tribes, but they also affect the
communities around those reservations. So it really is a win-
win deal in water infrastructure, something that we are very,
very short of in this day and age.
With that, thank you, Mr. Chairman, for your courtesy.
The Chairman. Thank you very much, Vice Chairman.
Next we have the Honorable Mark Macarro. Thank you very
much for being here. We await your testimony.
STATEMENT OF HON. MARK MACARRO, CHAIRMAN, PECHANGA BAND OF
LUISENO MISSION INDIANS
Mr. Macarro. Good afternoon, Chairman Barrasso, Vice
Chairman Tester and members of the Committee. Thank you.
My name is Mark Macarro and I am the Chairman of the
Pechanga Band of Luiseno Indians in southern California.
I am honored to testify today about the importance of
Indian water settlements and their role in addressing the needs
of Native communities. This topic is particularly relevant
today given the declining and deteriorating condition of water
resources in my home State of California. The lack of
precipitation in California has placed a much higher strain on
the precious groundwater that we have traditionally relied
upon.
Water is central to who we are as a people. In fact, it is
in my tribe's name. Pechanga means ``at Pechaa'a, the place
where water drips.'' It is named after a spring that my
reservation is named after.
Today my people reside on a reservation of over 7,000 acres
in Temecula, which is north of San Diego, about an hour. This
has been our home for over 10,000 years. However, the water
crisis in our region threatens not just the future vitality of
my community, but our identity as Pechanga people.
Unfortunately, the conditions that restrain Pechanga's
ability to receive wet water in the Temecula Valley also affect
tribal communities all over the Country, particularly in the
West. Yet tribal water rights remain unprotected and tribes
struggle to have their water rights settled.
Since 2009, the Pechanga Band has pursued a Federal water
settlement to provide our people wet water and to meet the
Band's water needs for generations to come. However, there
simply isn't enough groundwater for this purpose. That is why
the Pechanga Water Settlement is the product of a unique
collaboration between the Band, regional stakeholders and the
United States that would not only settle the Band's
longstanding water claims in the Santa Margarita River
watershed, but will also provide certainty for all water users
within the watershed.
Prior to pursuing our Federal legislation, Pechanga worked
with the local water agency, Rancho California Water District,
and the regional water agency, Eastern Municipal Water
District, and entered into two agreements to provide immediate
water resources for Pechanga. These agreements with these
entities currently provide the basis for us to manage the
groundwater in the Wolf Valley Basin with Rancho. And they
provide for an allocation of a 1,000 acre-feet per year of
recycled water from Eastern for the Band to use in place of our
precious groundwater.
These collaborative agreements are an example of how tribes
can work with local partners to meet a region's current and
future water needs, even if groundwater sources become
depleted.
We then incorporated and amended these two agreements as
part of the Pechanga water settlement that we are now pursuing
in Congress. I should note that the legislation has not yet
been introduced in the 114th Congress, but we are working with
the bill's sponsors and plan to introduce it shortly.
Under the Pechanga water settlement, the Band and Rancho
were able to come to a mutually beneficial settlement where
Pechanga will now receive 75 percent of the Wolf Valley Basin
ground water instead of 50 percent. And in exchange for Rancho
providing Pechanga with a 25 percent allocation, Pechanga
agreed to dedicate a certain portion of its recycled water
allocation to Rancho.
The Pechanga water settlement also calls for the Band to
use imported water from the Metropolitan Water District to meet
its long-term needs through the delivery of imported potable
water on a permanent basis. To facilitate use of imported
water, the Pechanga water settlement calls for the parties to
expand infrastructure, to improve delivery and reduce salinity
in imported water. These efforts will benefit all users in the
Santa Margarita Basin.
All elements of the settlement were carefully constructed
to create an agreement that is beneficial to all parties
involved, quantifies Pechanga's federally-reserved right to
water in the Santa Margarita River Basin and recognizes the
United States' trust responsibility to allottees on the
Pechanga Reservation. That is why the agreement includes
language to protect allottee rights that is consistent with
other Indian water settlements pending before Congress.
This is also a cost-effective water settlement. Not only
would the settlement include a modest Federal contribution of
$28.5 million, but it would also include non-Federal
contributions from Rancho and Eastern.
The existence of Federal and non-Federal contributions not
only demonstrates the pragmatic nature of this settlement but
they illustrate the settlement's collaborative approach to
protecting water resources. This is a model that can be useful
in resolving water problems across Indian Country.
Finally, I would like to emphasize the importance of having
the support of the Administration and Congress in not just
pursuing but also funding Indian water settlements. We have
struggled to find funding for our settlements' Federal
contribution. We know other water settlements face similar
problems. Ideally, the Department could identify funding for
Indian water settlements in the President's budget in ways that
could be supported by Congress. Indian water settlements would
only become a reality with the collaboration of Congress and
the Administration.
In closing, I cannot emphasize enough how important it is
for Congress to enact Indian water rights settlements that will
provide wet water to tribal communities. I respectfully urge
this Committee to support legislation like the Pechanga Water
Rights Settlement Act and other creative solutions to water
rights problems.
I would be happy to answer any questions you may have.
[The prepared statement of Mr. Macarro follows:]
Prepared Statement of Hon. Mark Macarro, Chairman, Pechanga Band of
Luiseno Indians
Good afternoon Chairman Barrasso, Vice Chairman Tester, and members
of the Committee. Thank you for scheduling an Oversight Hearing on
``Addressing the Needs of Native Communities Through Indian Water
Rights Settlements'' and inviting the Pechanga Band of Luiseno Indians
to testify. \1\ As this Committee is keenly aware, the Pechanga Band of
Luiseno Indians has been working to pass our Water Settlement in
Congress since 2009.
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\1\ While our federally recognized name is the Pechanga Band of
Luiseno Mission Indians, we mostly use Pechanga Band of Luiseno Indians
to refer to ourselves in recent years.
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In a State where water resources are extremely scarce and continue
to drop to alarming levels, the Pechanga Water Settlement is especially
critical for the Band and our tribal membership. The Pechanga Water
Settlement and the underlying agreements to the overarching settlement
agreement were drafted to achieve a creative way to not only settle
once and for all the Band's longstanding water claims in the Santa
Margarita River Watershed, but also to provide the resources to meet
the Band's current and future water needs and provide the Band with
``wet'' water. Importantly, the Pechanga Water Settlement also provides
certainty for all water users in the Santa Margarita River Watershed.
This settlement is the product of a great deal of effort by all of the
parties and reflects a desire by the parties to settle their
differences through negotiation rather than litigation and creates a
win-win scenario.
Of course each Indian Water Settlement is unique and involves its
own set of obstacles, yet there are some overarching issues that impact
all Indian Water Settlements--namely, the Administration's support of
Indian Water Settlements and Congress' commitment to identify ways to
pay for them. We appreciate the opportunity today to share some
examples of how the Pechanga Water Settlement will address the needs of
our tribal community through its enactment and implementation and to
speak to some of the obstacles we have encountered.
I. Background
A. Background on the Pechanga Band
The Pechanga Band of Luiseno Indians (the ``Band'' or ``Pechanga'')
is a federally recognized Indian tribe with a reservation of over 6,000
acres located northeast of San Diego, California, near the city of
Temecula. Pechanga Creek, a tributary of the Santa Margarita River,
runs through the length of the Pechanga Reservation.
The Band has called the Temecula Valley home for more than 10,000
years. Ten thousand years from now tribal elders will share with tribal
youth, as they do today, the story of the Band's creation in this
place. Since time immemorial, through periods of plenty, scarcity and
adversity, the Pechanga people have governed ourselves and cared for
our lands.
The history of the Band begins with our ancestral home village of
Temeeku, which was a center for all the Payomkawichum, or Luiseno
people. After the establishment of the state of California in 1850, a
group of Temecula Valley ranchers petitioned the District Court in San
Francisco for a Decree of Ejection of Indians living on the land in
Temecula Valley, which the court granted in 1873. In 1875, the sheriff
of San Diego County began three days of evictions. The Luiseno people
were taken into the hills south of the Temecula River.
Being strong of spirit, most of our dispossessed ancestors moved
upstream to a small, secluded valley, where they built new homes and
re-established their lives. A spring located two miles upstream in a
canyon provided them with water; the spring we have always called
Pechaa'a (from pechaq = to drip). This spring is the namesake for
Pechaa'anga or Pechaanga, which means ``at Pechaa'a, at the place where
water drips.''
On June 27, 1882, seven years after being evicted, the President of
the United States issued an Executive Order establishing the Pechanga
Indian Reservation. \2\ Several subsequent trust acquisitions were made
in 1893, \3\ 1907, \4\ 1931, \5\ 1971, \6\ 1988, \7\ and 2008, \8\ each
one increasing the size of the Reservation. At present, the total land
area of the Pechanga Reservation is 6,724 acres.
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\2\ Executive Order (June 27, 1882).
\3\ Trust Patent (Aug. 29, 1893).
\4\ Executive Order (Jan. 9, 1907) and Little Temecula Grant, Lot E
(Mar. 11, 1907)(commonly referred to as the Kelsey Tract).
\5\ Trust Patent (May 25, 1931).
\6\ Trust Patent (Aug. 12, 1971).
\7\ Southern California Indian Land Transfer Act, P.L. 110-581
(Nov. 1, 1988).
\8\ Pechanga Band of Luiseno Mission Indians Land Transfer Act,
P.L. 110-383 (Oct. 10, 2008).
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Water is central to who we are as a people. Today, our tribal
government operations, such as our environmental monitoring and natural
resource management programs, exist to fully honor and protect the land
and our culture upon it. In particular, we are concerned about
watershed and wellhead protection for our surface and ground water
resources and the availability of water for our community. Accordingly,
it is of utmost importance to the Band that our water rights are
federally recognized in order to protect our water in the basin and
ensure that the basin will continue to provide for generations of
Pechanga people in the future.
B. History of Pechanga's Efforts to Protect its Water Rights
The Band has been engaged in a struggle for recognition and
protection of our federally reserved water rights for decades. In 1951,
the United States initiated litigation over water rights in the Santa
Margarita River Watershed known as United States v. Fallbrook. \9\ The
Fallbrook litigation eventually expanded to include all water users
within the Santa Margarita Watershed, including three Indian Tribes--
Pechanga, Ramona Band of Cahuilla Indians (``Ramona''), and Cahuilla
Band of Indians (``Cahuilla'').
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\9\ United States v. Fallbrook Public Utility District et al., Civ.
No. 3:51-cv-01247 (S.D.C.A.).
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The United States, as trustee, represented all three Tribes before
the Fallbrook Court. In a series of Interlocutory Judgments that were
eventually wrapped into the Court's Modified Final Judgment and Decree,
\10\ the Court examined and established water rights for various water
users involved in the case. In Interlocutory Judgment 41 (IJ 41), the
Court concluded that each of the three Tribes has a recognized
federally reserved water right without specifying the amount of each of
the Tribe's water right. Although the Court did examine some facts in
IJ 41 and developed ``prima facie'' findings with respect to each of
the Tribes' quantifiable water rights, final quantified rights were
never established as a matter of law. As a result of IJ 41, all three
Tribes have ``Decreed'' but ``unquantified'' federally reserved water
rights. \11\
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\10\ Modified Final Judgment and Decree, United States v. Fallbrook
Public Utility District et al., Civ. No. 3:51-cv-01247 (S.D.C.A.)(Apr.
6, 1966).
\11\ The Court in Fallbrook fixed the quantity of Pechanga's
federally reserved right at 4,994 AFY, on a prima facie basis.
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In 1974, Pechanga filed a motion with the Fallbrook Court to
intervene as a plaintiffintervenor and a party to the proceeding on its
own behalf. In 1975, the Court granted Pechanga's Motion and Pechanga
filed a complaint to enjoin certain defendants from using more than
their respective entitlements under the Fallbrook Decree. This
complaint was subsequently resolved and the Band has remained a party
to the Fallbrook proceedings ever since. Pechanga has not filed a
motion to finally quantify its federally reserved water rights.
Until recently, we sought to avoid litigation and instead work with
those entities around Pechanga to develop mutual private agreements for
sharing the limited water resources in our basin. Specifically, in an
effort to collaboratively develop a means of providing assured water
supplies and cooperative management of a common water basin, the Band
adopted an approach of negotiation and reconciliation with the primary
water users in its portion of the Santa Margarita River Watershed,
primarily the Rancho California Water District (RCWD) and the Eastern
Municipal Water District (EMWD).
These efforts at negotiated management of water resources were
successful and resulted in the Groundwater Management Agreement between
the Band and RCWD in 2006, and a Recycled Water Agreement between EMWD
and the Band in 2007, with the recycled water being delivered to the
Band by RCWD. Both of these agreements have been successfully
implemented and are in effect today. Significantly, though successful,
neither of these agreements sought to address the scope of the Band's
overall water rights to the Santa Margarita River Watershed or settle
its various claims related to the Fallbrook Decree.
Beginning in 2006 and continuing throughout 2007, the other two
tribes in the Santa Margarita River Watershed, Ramona Band of Cahuilla
Indians and Cahuilla Band of Indians, sought to intervene in the
Fallbrook case to, among other things, quantify their respective water
rights to the Santa Margarita River Watershed. \12\ These efforts
intersected the Band's otherwise successful efforts at negotiated
management of joint water supplies and forced the Band to address in
Fallbrook the scope of its own claims to water or risk being injured by
the actions of the other two Tribes. \13\
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\12\ Ramona and Cahuilla are located within the Anza-Cahuilla Sub-
Basin of the Santa Margarita River Watershed while Pechanga is located
within the Wolf Valley Sub-Basin of the Santa Margarita River
Watershed.
\13\ Pechanga periodically filed status reports with the Fallbrook
court apprising the Court of its progress towards reaching settlement.
Pechanga also filed documents with the Court requesting that Pechanga
be afforded the opportunity to weigh in when the Court considered
issues of law and legal interpretations of IJ 41 with respect to Ramona
and Cahuilla.
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In addition to participating as a litigant in the proceedings
initiated by Ramona and Cahuilla, the Band also immediately started
efforts to reach a settlement of its claims to water and claims for
injuries to water rights relating to the Santa Margarita River
Watershed. As part of its efforts to seek settlement of its claims to
water, on March 13, 2008, Pechanga requested that the Secretary of the
Interior seek settlement of the water rights claims involving Pechanga,
the United States, and non-Federal third parties through the formation
of a Federal Negotiation Team under the Criteria and Procedures for
Participation of the Federal Government in Negotiations for the
Settlement of Indian Water Rights Claims. \14\ The Secretary agreed to
form a Federal Negotiation Team on August 1, 2008.
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\14\ 55 Fed. Reg. 9223.
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Since that time Pechanga has been working closely with the Federal
Negotiation Team to effectively negotiate the terms of the settlement
with the other parties and to resolve its claims against the United
States in connection with the development and protection of Pechanga's
water rights. Pechanga has also met with members of the Administration
Working Group to discuss the Administration's outstanding concerns.
Pechanga has continued to meet with the Administration to discuss
and address their outstanding concerns with the legislation and
settlement, and feels confident that we will be able to achieve the
Administration's support of the Pechanga Water Settlement in the near
future. Pechanga also continues to work with the other settling
parties, including RCWD, EMWD and MWD, to ensure that all of the
parties remain supportive and committed to the Pechanga Water
Settlement. Enactment of the Pechanga Water Settlement would benefit
all of the parties to the Agreement and subagreements.
C. Legislative History
1. 111th Congress
The Pechanga Water Rights Settlement Act was first introduced in
the 111th Congress. On December 11, 2009, Congresswoman Bono Mack,
along with co-sponsors Congressman Calvert, Congressman Issa,
Congresswoman Richardson, Congressman Grijalva and Congressman Baca
introduced H.R. 4285 in the House. On January 26, 2010, Senator Boxer,
along with co-sponsor Senator Feinstein introduced an identical bill in
the Senate, S. 2956. Subsequently, the bill was reintroduced in the
House by Congressman Baca, along with cosponsors Congressman Boren,
Congressman Grijalva, Congressman Honda, Congressman Kildee,
Congressman Lujan and Congresswoman Richardson in an effort to resolve
some of the issues that the Administration raised with the legislation.
The Senate Committee on Indian Affairs held a hearing on S. 2956 on
July 22, 2010 and ordered the bill to be reported favorably out of
committee with amendments on November 18, 2010. The House Natural
Resources Subcommittee on Water and Power held a hearing on H.R. 5413
on September 16, 2010.
At the close of the 111th Congress, the Band chose to pull back
from seeking Congressional enactment of the bill in order to answer
questions that tribal members and allottees had raised during the
legislative process. It was critical to the Band that its membership
and allottees be fully informed of the aspects and details of the
legislation and settlement agreement. Thus, over the past three years
the Band held a number of tribal member meetings to more fully discuss
and explain the Pechanga Water Settlement and the benefits afforded
under the legislation. The Band held a tribal membership vote on March
24, 2013, in which tribal members voted overwhelmingly in support of
the proposed water settlement currently pending before the Committee.
The Band felt this was a necessary and important step and as a result
is now prepared to move forward to enact this legislation as
expeditiously as possible.
2. 113th Congress
On June 25, 2013, Senator Boxer, with Senator Feinstein joining as
a co-sponsor, introduced S. 1219. On June 26, 2013, Congressman
Calvert, joined by twelve co-sponsors, Congressman Tony Cardenas,
Congressman Tom Cole, Congressman Paul Cook, Congressman Jeff Denham,
Congressman Raul Grijalva, Congressman Duncan Hunter, Congressman
Darell Issa, Congressman Daniel Kildee, Congressman Doug LaMalfa,
Congresswoman Betty McCollum, Congressman Raul Ruiz, and Congressman
David Valadao, introduced H.R. 2508, the companion measure to S. 1219.
The Senate Committee on Indian Affairs held a hearing on S. 1219 on
September 10, 2013 and the bill was marked out of Committee as amended
on April 2, 2014.
3. 114th Congress
The Pechanga Water Rights Settlement Act has not yet been
introduced in the Senate or House during the 114th Congress, however,
the settling parties remain supportive and have signed a letter in
support of introduction of the bill again. Pechanga and Rancho
California Water District are currently working with the bill's
sponsors in the House and Senate, and plan to introduce the bill
shortly.
II. Structure of Settlement
The Pechanga Settlement Agreement is a comprehensive settlement
agreement among Pechanga, the United States, and RCWD that incorporates
a number of subagreements as exhibits to the overarching settlement
agreement. The Pechanga Settlement Agreement includes the following
agreements as exhibits:
A. Amended and Restated Groundwater Management Agreement
(``Amended GMA'');
B. Recycled Water Agreement and Amendment No. 1 to the Recycled
Water Agreement;
C. Recycled Water Transfer Agreement;
D. Recycled Water Scheduling Agreement;
E. Recycled Water Infrastructure Agreement;
F. Extension of Service Area Agreement;
G. ESAA Capacity Agreement; and
H. ESAA Water Delivery Agreement.
Together, the Pechanga Settlement Agreement and corresponding
exhibits provide the necessary agreements to resolve Pechanga's
longstanding claims to water rights in the Santa Margarita River
Watershed, secure necessary water supplies to meet Pechanga's current
and future water needs, and provide sufficient terms to make the
settlement work for RCWD and its customers.
Unfortunately, there is insufficient groundwater within the Santa
Margarita River Watershed to fulfill the Band's claims to water. \15\
To account for the limited water sources within the Santa Margarita
River Watershed, the parties approached the Settlement negotiation
process with an innovative attitude. The parties looked at all of the
available water resources in the area, including groundwater, recycled
water and imported water. The parties structured the Pechanga Water
Settlement to utilize all of these water resources in such a way that
not only fulfills Pechanga's water rights but also provides attractive
provisions for the water purveyors in the Basin and in California.
Accordingly, the Pechanga Water Settlement includes a number of
contractual agreements with RCWD, EMWD and MWD that brings together a
variety of water sources through a resourceful approach.
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\15\ The need to import water to the Reservation is a fact that has
been recognized by the federal team for a long period of time. Over
pumping in the basin has significantly reduced water levels over time,
which is one cause for the insufficient groundwater to satisfy the
Band's federally reserved water rights. One important aspect of the
settlement is the establishment of groundwater pumping limits to
protect the basin now and in the future.
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There are three major components of the settlement:
A. Amended Groundwater Management Agreement (``Amended GMA'')
The Amended GMA, between Pechanga and RCWD, is an integral part of
the Pechanga Settlement Agreement, as it sets forth the terms and
conditions governing the parties' joint management of groundwater
pumping from the Wolf Valley Basin and establishes an allocation of the
safe yield of the basin. As discussed above, in 2006 Pechanga and RCWD
entered into the Groundwater Management Agreement to manage the water
in the Wolf Valley Basin. The parties established the safe yield of
2,100 AFY and provided each party with a 50 percent entitlement. Thus,
under the existing Groundwater Management Agreement each party is
entitled to 1,050 AFY. When the parties began negotiating the Pechanga
Water Settlement, however, Pechanga stressed the importance of an
additional entitlement of groundwater. As a result of significant
negotiations between the parties they agreed that once the Pechanga
Water Settlement is passed, under the Amended GMA, Pechanga will be
entitled to 75 percent (1,575 AFY) of the basin and RCWD will be
entitled to 25 percent (525 AFY) of the basin. Additionally, in an
effort to raise the level of water in the Wolf Valley Basin and provide
storage water in years of water shortage, the Amended GMA establishes a
Carryover Account between Pechanga and RCWD that provides for use of
the Wolf Valley Basin as a storage aquifer for a defined amount of
water to be used in shortage years. Thus, the Amended GMA not only
satisfies 1,575 acre feet of water per year of the Band's entitlement
to water, it also provides benefits to the entire region by improving
the water levels in the Wolf Valley Basin.
B. Recycled Water Agreements
Another essential element of the Pechanga Settlement Agreement that
complements the Amended GMA is RCWD's ability to use Pechanga's
recycled water in partial consideration for their surrender of a
portion of their current potable groundwater supply as pumped from the
Wolf Valley Basin. In particular, Amendment No. 1 to Pechanga's
Recycled Water Agreement \16\ allows RCWD to utilize the unused portion
of the entitlement Pechanga currently has pursuant to the Recycled
Water Agreement and provides an extension of the term of the Recycled
Water Agreement for 50 years with 2 additional 20 year extensions.
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\16\ The Recycled Water Agreement, between Pechanga and EMWD, was
executed on January 8, 2007 and provides Pechanga with 1,000 AFY of
recycled water from EMWD.
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In conjunction with Amendment No. 1, the Pechanga Settlement
Agreement incorporates the Recycled Water Transfer Agreement, the
Recycled Water Scheduling Agreement and the Recycled Water
Infrastructure Agreement. Together, these three agreements provide for
the mechanisms and infrastructure necessary to provide RCWD with the
ability to utilize Pechanga's unused portion of recycled water. More
specifically, the Recycled Water Transfer Agreement provides that
Pechanga agrees to transfer to RCWD a portion (not less than 300 AFY,
and not more than 475 AFY) of the EMWD recycled water to which Pechanga
is entitled pursuant to that agreement. The Recycled Water
Infrastructure Agreement provides for the development and construction
of facilities necessary for RCWD to utilize the recycled water
allocated to it pursuant to the settlement. Lastly, the Recycled Water
Scheduling Agreement provides the protocol for ordering and delivering
the portion of Pechanga's allocation of EMWD recycled water to RCWD.
The Pechanga Water Settlement legislation, once passed, will
provide the requisite funds to create the necessary infrastructure to
make the recycled water agreements that are critical to the deal. Funds
from the Pechanga Recycled Water Infrastructure Account will be used to
pay for the Storage Pond ($2,656,374), as are necessary under the
Recycled Water Infrastructure Agreement to fulfill Pechanga's
obligations to provide RCWD with a share of Pechanga's recycled water
which Pechanga receives pursuant to the Recycled Water Agreement with
EMWD.
C. Imported Water Agreements
Because the water supplies in the Band's portion of the Santa
Margarita Basin are either too depleted to fulfill the Band's entire
water needs in the medium to long term or are being used by other
parties (primarily RCWD), the Band has agreed to use replacement water
for the majority of its water uses in the future. Accordingly, another
significant component of the Pechanga Settlement Agreement is comprised
of the agreements necessary to provide MWD imported potable water to
Pechanga to provide for the Band's water needs on a permanent basis.
The Extension of Service Area Agreement (ESAA), is the primary
agreement for providing MWD water to be used on the Reservation. The
ESAA is a contractual agreement among Pechanga, EMWD, and MWD, that
extends MWD's existing service area within the Band's Reservation to a
larger portion of the Reservation, such that Pechanga will receive MWD
water to augment its local pumped supplies.
In order to implement the ESAA, two additional agreements were
necessary-the ESAA Capacity Agreement and the ESAA Water Delivery
Agreement. The ESAA Capacity Agreement establishes the terms and
conditions for RCWD to provide water delivery capacity of the ESAA
water to Pechanga. The ESAA Water Delivery Agreement addresses service
issues and billing issues related to the delivery of ESAA water to
Pechanga.
The legislation provides funds from the Pechanga ESAA Delivery
Capacity Account to pay for Interim Capacity ($1,000,000) and Permanent
Capacity ($16,900,000) in accordance with the ESAA Capacity Agreement
in order for RCWD to provide the requisite capacity to deliver
groundwater and ESAA water to Pechanga. To fulfill Pechanga's full
entitlement of 4,994 AFY, Pechanga will need the Wolf Valley Basin
groundwater and MWD imported potable water. In order to receive
delivery of MWD imported potable, the MWD water would need to be
delivered to Pechanga through offsite conveyance capacity. Available
import delivery capacity in the region is limited, and thus posed a
challenge. However, the parties were able to negotiate the ESAA
Capacity Agreement such that RCWD will ensure that requisite capacity
exists in RCWD's system to deliver Wolf Valley groundwater and MWD
imported water to Pechanga. Together, the Interim Capacity and
Permanent Capacity funds will finance the necessary RCWD conveyance
capacity. If RCWD is unable to ensure that there is sufficient capacity
for groundwater and MWD deliveries to Pechanga, the Settlement Act
provides that the funds in the ESAA Delivery Capacity Account shall be
available to Pechanga to find alternative capacity. In the event that
RCWD is unable to provide sufficient capacity, Pechanga would be forced
to build its own infrastructure to deliver the imported water.
The legislation also authorizes $5,483,653 in the Pechanga Water
Fund Account for: (1) payment of the EMWD Connection Fee (approximately
$332,000); (2) payment of the MWD Connection Fee (approximately
$1,900,000); and (3) any expenses, charges or fees incurred by Pechanga
in connection with the delivery or use of water pursuant to the
Settlement Agreement. In order to receive MWD water there are certain
fees associated with connection to EMWD and MWD, in addition to the
cost of the expensive MWD water. Hence, the Pechanga Water Fund Account
provides the funds necessary for Pechanga to receive MWD water.
The EMWD Connection Fee, approximately $332,000, will be paid to
EMWD as an inlieu payment instead of standby charges which normally
would be collected on an annual basis through the owner's property tax
bill. Rather than have any fees that could be considered a tax on
Pechanga, EMWD has agreed to a one-time payment by Pechanga for
connection to EMWD. Similar to the EMWD Connection Fee, MWD normally
provides extension of their service through annexations. Due to tribal
sovereignty concerns, instead of going through a normal annexation, the
ESAA will be governed by the terms and conditions of the agreement such
that Pechanga will contractually commit to adhere to rules and
regulations applicable to its activities as a customer of EMWD and MWD.
Additional terms and conditions will be included to avoid infringement
of Pechanga's sovereignty whereby EMWD and MWD will have alternative
means to exercise their responsibilities. Under the ESAA, Pechanga has
agreed to pay a one-time connection fee that amounts to approximately
$1,900,000.
As discussed above, as a result of the depletion of the Santa
Margarita Basin water supply, Pechanga must obtain imported water from
MWD as a replacement for its water from the Santa Margarita Basin. The
United States has a programmatic responsibility to ensure that
Pechanga's entitlement is fulfilled through replacement water, such as
the MWD imported water, if existing water is unavailable. \17\ The
Pechanga Water Fund provides funds to bring down the cost of the
expensive MWD imported water.
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\17\ For example, the Gila River Indian Community Water Rights
Settlement Act of 2004 (Pub. L. 108-451) included the Lower Colorado
River Basin Development Fund that provided for a payment ``to pay
annually the fixed operation, maintenance, and replacement charges
associated with the delivery of Central Arizona Project water held
under long-term contracts for use by Arizona Indian tribes (as defined
in section 2 of the Arizona Water Settlements Act) in accordance with
clause 8(d)(i)(1)(i) of the Repayment Stipulation (as defined in
section 2 of the Arizona Water Settlement Act)''. See Sec. 107
(a)(2)(A).
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Lastly, the legislation provides for a Pechanga Water Quality
Account in the amount of $2,460,000 to pay for critical infrastructure
and programs that will bring down the salinity in the basin, which of
course benefits all users in the basin. The Band and RCWD are both
committed to reducing the levels of brine and salinity in the Wolf
Valley Basin, especially given the fact that the imported water from
MWD has a higher salinity level than the groundwater in the Wolf Valley
Basin.
III. Recognition of Tribal Water Right
In addition to the contractual elements of the Pechanga Water
Settlement that provide the ``wet'' water to the Band and make the
overall agreement work for the other parties to the Pechanga Water
Settlement, a critical element of the Settlement is recognition of the
Band's federal reserved right to water (the ``Tribal Water Right'').
Both the Pechanga Settlement Agreement and the federal legislation
recognize the Band's Tribal Water Right as being the same as it was
established on a ``prima facie'' basis in the original Fallbrook Decree
in 1965 of up to 4,994 AFY.
The Tribal Water Right will also be adopted and confirmed by decree
by the Fallbrook federal district court. This is especially important
for the Band as it constitutes the full recognition of its water
entitlements under the Fallbrook Decree.
IV. Protection of Allottee Rights
No Indian Water Settlement would be complete without specific
provisions that explicitly protect allottees. The Pechanga Water
Settlement is no exception. Pechanga has worked closely with the
Federal Negotiation Team to ensure that the allottee rights on the
Pechanga Reservation are adequately protected. First, allottees will
receive benefits that are equivalent to or exceed the benefits they
currently possess. \18\ Furthermore, in accordance with Section 5(d) of
S. 1219, 25 U.S.C. 381 (governing use of water for irrigation purposes)
shall specifically apply to the allottees' rights. Under the
legislation, the Tribal Water Code to be adopted by the Band must
provide explicit protections for allottees-the Tribal Water Code must
provide that:
---------------------------------------------------------------------------
\18\ See Sec. 5(a) of S. 1219 of the 113th Congress.
tribal allocations of water to allottees shall be satisfied
---------------------------------------------------------------------------
with water from the Tribal Water Right;
charges for delivery of water for irrigation purposes for
allottees be assessed on a just and equitable basis;
there is a process for an allottee to request that the Band
provide water for irrigation use to the allottee;
there is a due process system for the Band to consider a
request by an allottee (appeal and adjudication of any denied
or disputed distribution of water and resolution of any
contested administrative decision). \19\
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\19\ See Sec. 5(f).
The inclusion of these provisions reflects the United States' most
recent allottee language as was included in other recent Indian Water
Settlements. As a result, the allottee language is consistent with
other Indian Water Settlements pending before Congress, and provides
allottees with the same protections provided to other tribal allottees.
Again, explicit protections for allottees are another example of how
Indian Water Settlements address the needs of Native Communities.
V. Non-Federal Contribution
Pechanga is cognizant that in addition to the Federal contribution,
the non-Federal contribution to an Indian water settlement should be
proportionate to the benefits received by the non-Federal parties under
the settlement. The Band has insisted on such non-Federal contribution
from non-Indian parties throughout the negotiations for this settlement
and successfully obtained, with the support and assistance of the
Federal Negotiation Team, substantial non-Federal contributions to the
settlement.
For purposes of the Committee's understanding, we outline each of
the non-Federal contributions to the settlement, including Pechanga's
own contribution to the settlement.
A. RCWD Contribution
As discussed above, the Pechanga Settlement Agreement is a
carefully structured settlement with the United States, RCWD and EMWD.
Substantial efforts were made by all parties in order to reach
settlement. One of the largest issues of contention during negotiations
was the allocation of the groundwater in the Wolf Valley Basin. The
previous Groundwater Management Agreement allocated 50 percent of the
water to each party. For Pechanga, it was absolutely critical that the
Settlement Agreement provide the Band with the majority of the safe
yield. Thus, RCWD agreed to allocate an additional 25 percent of the
Wolf Valley Basin to Pechanga as part of the settlement. Additionally,
RCWD will wheel the MWD water under the ESAA to Pechanga in perpetuity
and RCWD agrees to provide desalination and brine disposal for water
utilized in the Wolf Valley, which will improve groundwater quality in
the Wolf Valley Basin for both RCWD and Pechanga. RCWD's contribution
to the Pechanga Settlement Agreement, therefore, involves more than a
foregoing of its assertion of water rights, but rather, involves the
implementation of a partnership to utilize, convey, and improve the
quality of both local and imported water for both RCWD and Pechanga.
The monetary quantification of RCWD's contribution, measured
exclusively upon its agreement to forego the right to 25 percent of
groundwater in the Wolf Valley Basin, has been calculated at
$33,630,332. This calculation assumes that 25 percent of the Wolf
Valley Basin equals 525 acre-feet per year, one-fourth of the agreed
upon amount of the safe yield in the Wolf Valley Basin. It further
assumes that RCWD's contribution will be equal to the rate it must pay
for MWD water (as replacement for its share of groundwater from the
Wolf Valley Basin), inflated at 3 percent per year, and an effective
earnings rate on the amount expended of 3.5 percent. Utilizing these
assumptions, the present value of RCWD's contribution is $33,630,332.
B. Pechanga Contribution
As with many other Indian water rights settlements, the Pechanga
Water Fund Account provides for a subsidy payment that partially
fulfills the United States' programmatic responsibility to provide
Pechanga with replacement water.
The Pechanga Water Fund Account amount was developed using the
following financial assumptions:
The Account is to be used to partially subsidize the cost of
MWD water to reduce the cost of the water using interest earned
by the account.
The cost of MWD water was projected based on the published
rates for an acrefoot of MWD Tier 2 Treated Water plus the EMWD
charge of $127.80 in 2010, escalated at four percent (4
percent) per year thereafter.
The Account is projected to accrue interest at an average
four percent (4 percent) rate of return.
The amount of MWD water to be purchased each year was based
on a general estimate of the projected water use in the
proposed MWD service area that cannot be met from other
sources.
While most subsidy funds for Tribes provide funds that will bring
the cost of the imported water in line with local water, the Pechanga
Water Settlement only seeks to subsidize 10 percent of MWD water such
that Pechanga is bearing 90 percent of the cost of imported water.
C. EMWD Contribution
Although EMWD is not a party to the actual Settlement Agreement,
EMWD's contribution is certainly proportionate to the benefits it will
receive from the Settlement. Namely, the ESAA with MWD and EMWD is an
absolutely critical component of the Settlement, without which it would
be impossible to fulfill the Band's water entitlements. Moreover, EMWD
agreed to extend the term of the Recycled Water Agreement with Pechanga
and allow Pechanga to sell its unused portion of recycled water to
RCWD, both of which were necessary to effectively settle with RCWD. In
return for these contributions, EMWD will receive $332,000 as
Pechanga's connection fee to EMWD (discussed in further detail above).
This benefit to EMWD is proportionate to the efforts EMWD has made in
securing the ESAA with MWD and the amendments to the Recycled Water
Agreement.
D. MWD Contribution
Like EMWD, MWD is not a party to the actual Settlement Agreement,
however, MWD is a party to the ESAA, which as discussed above, is an
exhibit to the Settlement Agreement. The ESAA is essentially the
contractual equivalent of an annexation to MWD and EMWD, with the
Band's sovereignty issues protected by contract in the ESAA. In 2009,
Governor Schwarzenegger issued a State of Emergency for the State of
California's drought situation. In response, MWD issued a press release
recognizing the severe water supply challenges in California. MWD's
press release further stated that MWD has taken a number of critical
steps to address the drought, including the reduction of water supplies
to member agencies and mandatory water conservation. As a result of
California's drought and MWD's efforts to address these problems it is
unlikely that MWD will be approving any annexations in the near future.
Accordingly, the ESAA with MWD and EMWD, which has already been
approved in principle by the MWD Board is extremely important, without
such agreement it would be nearly impossible for Pechanga to ``annex''
to MWD and receive water supplies to fulfill the Band's water
entitlements. Moreover, under the ESAA, Pechanga will become a customer
of MWD just like any other customer, such that Pechanga will be able to
acquire water from MWD for its future water needs as those needs
change. Therefore, as part of the Settlement and in order to fulfill
the ESAA, MWD will receive $1,900,000 as a connection fee from Pechanga
to MWD. The value of becoming part of MWD's service area capable of
receiving MWD water is invaluable and undoubtedly represents a
proportionate contribution to the benefit, if any, MWD will receive.
VI. Congressional and Administrative Support
One of the biggest problems that Pechanga has encountered in
passing our Water Settlement is how the Administration will ultimately
fund it. While our settlement is very small, only $28.5 million in
federal authorizations, especially in comparison to many Indian Water
Settlements, that has still continued to be the looming issue. The
question of the day seems to be: How will Indian Water Settlements be
funded?
Important to this question are two elements. First, the
Administration must find ways to finalize negotiations on Indian Water
Settlements to a point where they can publicly and through written
letter ``support'' the water settlements. In 2010, the Department of
Interior was able to issue support letters for the Indian Water
Settlements that were passed as part of the Claims Resolution Act that
effectively resulted in Congressional passage of the package. That
commitment and support must continue and remain a priority for the
Administration. Additionally, the Department should identify funding in
the President's Budget to pay for Indian Water Settlements.
Second, Congress can take a supportive role in identifying
potential offsets for the Indian Water Settlements or work with the
Administration to support funding in the President's Budget. Together,
the Administration and Congress play a critical role in making these
Indian Water Settlements a reality and bringing the benefits of such
settlements to the Native Communities.
VII. Conclusion
As outlined above, the Band is settling its longstanding claims
against the United States and other parties, and is accepting less
water than it could otherwise obtain in exchange for a commitment for
the delivery of ``wet'' water in replacement for its ``paper'' water
rights. The negotiation process with RCWD, EMWD, MWD and the United
States has been a long process that was aimed at examining the unique
concerns and priorities of each party and implementing those priorities
through contractual agreements that benefit everyone involved. Living
in Southern California the Pechanga Band and our settling parties are
faced with the constant struggle to identify available water resources
and provides for our tribal membership and customers. We remain
optimistic that Congress will enact the Pechanga Water Settlement to
provide certainty to Pechanga and other Californians that are impacted
by this settlement.
There is no one size fits all approach to Indian Water Settlements
but there should be a commitment from the Administration and Congress
to support and enact Federal legislation that resolve Indian
Communities long-standing claims to water while also providing
certainty to the non-Indians in the area and importantly find the
funding to pay for them. Again, the Band views our Water Settlement as
a win-win situation that will enable us to provide water to our tribal
members for generations to come without having to pursue costly and
time-consuming litigation.
In closing, Chairman Barrasso and members of this Committee, I
would like to thank the Committee for holding an oversight hearing on
this important issue in Indian Country. We appreciate the Committee's
interest in hearing how Indian Water Settlements can address the needs
of Indian Country and we welcome the opportunity to answer any
questions that you may have with respect to the Pechanga Water
Settlement and how we are proposing to accomplish just that result.
The Chairman. Thank you, Mr. Macarro.
Mr. Weiner?
STATEMENT OF JAY WEINER, ASSISTANT ATTORNEY GENERAL, STATE OF
MONTANA
Mr. Weiner. Chairman Barrasso, Vice Chairman Tester,
Senator Daines and members of the Committee, thank you very
much for the opportunity to testify today on this important
issue. Thank you also, Senator Tester and Senator Daines, for
the kind words.
Montana has long invested in the settlement process and we
are pleased that we have now, at the State legislative level,
approved all seven of our settlements with our reservations in
Montana. The Montana legislature most recently approved the
Confederated Salish and Kootenai Tribes' settlement in its
just-concluded legislative session. All these settlements are
the product of a tremendous amount of hard work on the part of
State and tribal and Federal personnel. They are really
collaborative efforts and Montana is very proud of the process
that we have engaged in.
As you identified in your opening statement, Chairman
Barrasso, and as many of you have, and as you have heard from
the prior witnesses, these settlements are critical to address
water allocation challenges and other resource challenges
throughout the West, and certainly to the state of Montana.
Tribal rights are very senior, but often largely, if not
completely, undeveloped. This causes great uncertainty for even
longstanding uses of water under State law, where we face the
risk of being displaced by tribal development in the absence of
settlement process.
Unquantified tribal rights also present significant
challenges for the management and administration of State
water, greatly complicating efforts like drought planning and
water allocation, as well as the enforcement of water rights in
times of shortage.
And unlike litigation, which as you have heard, and as many
of you have identified, can quantify paper rights but does very
little to address practical wet water issues, settlements
afford an opportunity to resolve these potentially contentious
issues in a manner that allows the recognition and development
of tribes' legal entitlement to water in a manner that
simultaneously protects State law based water rights and allows
for the efficient administration and enforcement of both Indian
and non-Indian water rights in a way that benefits everybody.
Litigation simply does not afford those opportunities.
I mentioned that Montana is very proud of its settlement
efforts. We have a unique process in Montana. Back in 1979, as
part of our statewide water adjudication, recognizing that
Indian and federal-reserved water rights needed to be
incorporated in our adjudication, Montana created the Reserved
Water Rights Compact Commission, which is a bipartisan State
agency specifically tasked by the legislature and assigned a
permanent staff of lawyers and technical personnel to negotiate
these Indian water rights settlements and that we have found to
be a very valuable process to allow us to recognize tribes'
legal entitlements to water, to protect State law based water
users, which has been one of the state's paramount goals in
this effort, and to allow for the sorts of creative solutions
that allow these not just to resolve the immediate allocation
issues but to provide creative solutions and foundations for
the economic improvement on reservations and for the
neighboring communities. These are important drivers of our
rural economies, and of the agricultural economy that is
critical to a State like Montana.
The Blackfeet Water Rights Settlement, which has been
reintroduced in this Congress as S. 1125, and whose passage the
State of Montana strongly supports, thank you, Chairman
Barrasso, is an excellent example of how these things can work
and can solve some of these problems. Settlements do not solve
every issue that is there. But they certainly can recognize and
can try to facilitate the resolution of issues.
With the Blackfeet settlement, for example, we had to
address the fact that the Bureau of Reclamation constructed one
of its four original irrigation projects to serve over 100,000
acres of irrigated land significantly downstream of the
Blackfeet Reservation by building infrastructure on the
Blackfeet Reservation to divert water from one Blackfeet stream
to another for use of those downstream irrigators. That was a
source of significant grievance for the tribe, because they
have not received any direct benefits from that project for
over a century that it has been in operation.
We were able through the settlement process to negotiate a
way to recognize tribal water rights, to allow the tribe to
receive those benefits in a way that protected that Bureau of
Reclamation project. Similarly, there is a very significant
private irrigation company whose origins trace back to the
Carey Land Act of 1894, also known as the Desert Land Act that
serves tens of thousands of acres south of the reservation and
also provides municipal water from Birch Creek, which has been
a source of contention on the reservation at least since 1908.
There was an enforcement case down there the same year that
Winters was decided.
And again through the settlement process, and through
significant State contribution to the settlement, we have been
able to find a way to resolve that water allocation issue on
Birch Creek. It will require significant Federal contributions
as well to help the tribe realize the benefits from these
resources and from the State for what we have bargained for.
But this is exactly the sort of thing that settlements allow
for. These are important economic drivers. We strongly support
this settlement.
Thank you again for the opportunity to testify today, and I
very much look forward to answering your questions.
[The prepared statement of Mr. Weiner follows:]
Prepared Statement of Jay Weiner, Assistant Attorney General, State of
Montana
Chairman Barrasso, Vice Chairman Tester, Senator Daines and other
distinguished members of the Senate Committee on Indian Affairs, I
thank you for the opportunity to provide written testimony on this
important matter. My name is Jay Weiner, and I am an assistant Attorney
General with the Montana Attorney General's Office. I have spent over a
decade negotiating and working to secure the ratification and
implementation of Indian water rights settlements in Montana.
Montana has been remarkably successful in resolving Indian water
rights claims through settlement negotiations. We concluded our first
settlement in 1985 with the Assiniboine and Sioux Tribes of the Fort
Peck Reservation, and in the recently concluded session, the Montana
legislature approved a water rights settlement with the Confederated
Salish and Kootenai Tribes (CSKT) of the Flathead Indian Reservation,
marking the seventh and last settlement the State has approved with the
Indian nations whose reservations are located in Montana. In between,
Montana reached settlements with the Northern Cheyenne Tribe in 1991,
the Chippewa Cree Tribe of the Rocky Boys Reservation in 1997, the Crow
Tribe in 1999, the Fort Belknap Indian Community in 2001 and the
Blackfeet Tribe in 2009. Congress approved the Northern Cheyenne Tribe-
Montana settlement in 1992, the Chippewa Cree Tribe-Montana settlement
in 1999, and the Crow Tribe-Montana settlement in 2010. The Blackfeet
Tribe-Montana settlement was recently re-introduced in Congress by
Senators Tester and Daines as S. 1125, and we are hopeful of securing
final congressional approval of that settlement during this Congress.
We anticipate that the CSKT-Montana and Fort Belknap-Montana
settlements will also be brought before Congress for ratification when
appropriate federal legislation is ready, and we look forward to those
settlements being finally approved as well. These settlements were each
the product of significant negotiation and compromise on the part of
all of the negotiating parties--the respective Tribe, the State of
Montana and the United States--and provide, through their resolution of
the Tribes' legal claims to water rights, their administrative
provisions, and the funding for tribal development of those rights,
huge benefits to all Montanans, Indian and non-Indian, and to the
United States as a whole.
The process of arriving at these water rights settlements is never
an easy one. Montana, like most of our sister western states,
subscribes to the prior appropriation doctrine to govern the allocation
and use of our water resources. Under that doctrine, which is often
described as ``first in time is first in right,'' the first user of
water on a source has a superior claim to that water over all
subsequent water users. That is, a senior--or earlier--user is entitled
to the last drop of water he or she needs before the next, junior user
is entitled to drop one. Because of the significant advantages
conferred by seniority, Montana--again, like other prior appropriation
states--limits the size of a water right to the quantity that the
appropriator actually puts to beneficial use.
Indian water rights sit in awkward tension with these basic state
water law principles as a consequence of the reserved water rights
doctrine first announced by the United States Supreme Court in the 1908
decision Winters v. United States, 207 U.S. 564, which involved a
dispute over the water rights of the Fort Belknap Indian Community in
north-central Montana. This doctrine is grounded in the principle that
in ceding millions of acres of land to the United States, tribes in no
way intended to relinquish their ability to use water for the benefit
of their homelands and reservations. In this way, Winters builds on a
1905 United States Supreme Court case, United States v. Winans, 198
U.S. 371, that recognized that the Indian treaties that led to the
creation of many of today's reservations were grants of rights from
Indian to the United States, not grants of rights to Indians from the
United States. Under the Winters doctrine, tribal water rights are
generally entitled to priority dates based not on when water was first
put to beneficial use but rather on the date on which the particular
Indian reservation was created. In the case of the Blackfeet Tribe, for
example, that priority date is October 17, 1855, which is when the
Blackfeet Tribe entered into a treaty with the United States at Fort
Benton, Montana. That is a very senior date for a water right in
Montana. Moreover, the Winters doctrine holds that the quantity of
water entitled to that priority date is measured not by actual
beneficial use, as with other water rights in Montana, but rather is
the amount necessary to satisfy the purpose or purposes for which the
reservation was created. That is a very nebulous standard, which is a
significant reason why quantifying these water rights is a major
challenge for states, tribes and the United States. But without
quantification, tribes are hampered in their ability to make productive
use of their water and non-Indian water right holders operate under the
cloud cast by these very senior but otherwise unquantified Indian water
rights which could potentially disrupt long-standing but legally junior
uses of water if and when a tribe obtains the ability to develop its
water. States are also constrained in their ability to administer and
enforce water rights if large, senior tribal claims remain
unadjudicated. A failure to account for tribal claims in state
adjudications also raises problems for states' compliance with the
McCarran Amendment, 43 U.S.C. 666, which waived federal and tribal
sovereign immunity to allow for the adjudication and administration of
federal and Indian rights in state courts. All of these are potential
sources of considerable conflict and acrimony. Montana has therefore
long deemed it imperative to have these tribal rights quantified as
quickly and efficiently as possible.
There are two ways to resolve Indian water rights claims:
litigation or negotiation. Litigation is costly, divisive, zero-sum,
and protracted. While litigation is sometimes nevertheless necessary,
Montana made the choice when setting up our state-wide stream
adjudication in 1979 to attempt to resolve these claims by negotiation
whenever possible. To that end, our Legislature created the Montana
Reserved Water Rights Compact Commission, a state agency specifically
tasked with negotiating settlements with Indian Tribes (and federal
agencies) claiming federal reserved water rights in the State of
Montana. (I served the Compact Commission as a staff attorney for nine
years.) To become fully effective, each of the settlements the Compact
Commission negotiates must be ratified by the Montana Legislature, the
respective Tribe and the United States, and then the water rights being
recognized must be issued as a final decree by the Montana Water Court
so that they are included as part of our state-wide stream
adjudication. We are very proud that we have now successfully
negotiated settlements with all of the tribes in Montana. Should any of
those settlements fail to obtain federal approval, however, the tribal
claims would need to be litigated before the Montana Water Court. This
would be a long and costly process, fraught with uncertainty for the
State, the Tribes and the United States. This is particularly true
since the federal legislation approving these settlements also provide
for the waiver of each tribe's claims for damages against the Federal
Government related to the United States' failure to protect and develop
the tribe's water resources. This avoids litigation exposure on the
part of the United States, and is another crucial component of the
finality that these settlements provide. The federal contribution to
each settlement is in part consideration for the waiver of these
claims.
The negotiating process is rarely simple, however. These are
complex resource allocation issues that touch on some of the most
sensitive areas of tribal-state relations. Not infrequently, there are
historical grievances, and significant legacies of mistrust between
tribes and states, and between tribes and their non-Indian neighbors,
that must be overcome. Litigation often serves to deepen these
divisions, while a successful settlement can help heal them--by
reducing the potential for actual conflict over water resources and
allowing for a more collaborative future, and by improving lines of
communication and fostering a climate of better mutual understanding.
The negotiating process itself also presents significant technical
challenges, as the negotiating parties must develop and share tools and
information that allow for a shared assessment of water budgets,
existing and potential future water uses, soil conditions, the
feasibility of water delivery projects and other technical data that
provide the foundation for a successful negotiated settlement. Some of
this same data development process is necessary for litigation, but in
litigation, the parties assemble their own data to prepare for a battle
of the experts in court. In settlement negotiations, the parties'
technical resources can be deployed to better practical effect (as well
as more cost-effectively), creating the basis for successful settlement
implementation and administration.
The Blackfeet settlement process provides a good illustration of
these dynamics. There are six major streams on the Blackfeet
Reservation, which meant that a great deal of technical work was
required before the negotiating parties were able to engage in
substantive negotiations over the optimal allocation of those water
resources. Moreover, many of these sources were also sites of
longstanding conflict between the Blackfeet Tribe and other water
users. One of those streams, Birch Creek, which forms the southern
boundary of the Blackfeet Reservation, is the primary source of supply
for the Pondera County Canal and Reservoir Company (PCCRC), a large
private irrigation company that serves nearly 80,000 acres and provides
municipal water to communities just south of the Blackfeet Reservation,
whose roots trace back to the federal Carey Land Act of 1894 (also
known as the Desert Land Act) and which is a significant economic
driver for that region of Montana. Birch Creek is also an important
source of supply for thousands of acres of the on-reservation Bureau of
Indian Affairs (BIA)-owned and -operated Blackfeet Irrigation Project.
This stream was the focus of an early federal court case involving
Indian water rights called Conrad Investment Co. v. United States, 161
F. 829, which was decided by the Ninth Circuit Court of Appeals in 1908
shortly after the Winters decision was issued. Conrad Investment
decreed part but not all of the Blackfeet Tribe's rights in Birch
Creek, and that stream remained a source of contention thereafter. In
addition, the Bureau of Reclamation (BOR) diverts water from the St.
Mary River--which originates in Glacier National Park before flowing
northeast across the Blackfeet Reservation and into Canada--into the
Milk River--which also originates on the Reservation before flowing
into Canada and then back into Montana further downstream--for use of
its Milk River Project in north-central Montana, a project whose
irrigators contribute approximately 10 percent of Montana's
agricultural economy. The Milk River Project is one of the original
four reclamation projects authorized under the 1902 Reclamation Act,
and has long been a source of grievance for the Blackfeet Tribe and its
members since they have watched the BOR divert large quantities of
water off their reservation for over a century without the Tribe or its
members receiving any direct benefits from the project. The St. Mary
and Milk Rivers are also governed by the 1909 Boundary Waters Treaty
between the United States and Canada, an agreement that was negotiated
without consultation with or consideration of the needs of the
Blackfeet Tribe. This was another source of controversy and
consternation that informed the negotiations.
Addressing all of these issues and dynamics required nearly two
decades of negotiations, which included an intensive process of public
involvement to identify and address key stakeholder concerns and to
build the political support necessary to advance the settlement though
the legislative approval process at the state, federal and tribal
levels. The State and the Tribe are pleased that this settlement
recognizes the Blackfeet Tribe's water rights while also ensuring the
protection of state law-based water users, including PCCRC and Milk
River Project irrigators. It also sets forth administrative provisions
to govern the use of water by the Tribe and by state law-based water
users on and adjacent to the Blackfeet Reservation, and a process to
resolve disputes over the administration of those water rights. These
are critical tools that allow both tribal and state water managers to
plan for drought and other contingencies, and are precisely the sort of
practical tools that litigation does not provide. (Additional
information about the specifics of the Blackfeet settlement may be
found in the testimony I presented to this Committee on May 8, 2013,
when it heard S. 434, the legislation introduced in the 113th Congress
to ratify the Blackfeet Tribe-Montana settlement. S. 1125 obviates the
State's concern with S. 434 that I identified on page 6 of that
testimony, and the State strongly supports the enactment of S. 1125.)
The Blackfeet settlement was approved by the Montana Legislature in
2009 and since that time the State and the Tribe have been working with
the Administration and the Congress to secure federal ratification as
well. This has been an arduous process. While the United States was
represented by a federal negotiating team during the entire negotiation
process, the limited nature of the resources the Department of the
Interior has to devote to all of the Indian water right negotiations
underway west-wide meant that we received sustained and detailed policy
review from the United States only when the Blackfeet settlement
arrived in Washington, DC. This dynamic bespeaks the critical
importance of the Congress providing adequate funding for the
Department of the Interior to engage meaningfully in settlement
negotiations as early in the process as possible.
In these negotiations with the Administration over the last five
years, the Tribe and the State have both agreed to modify the
settlement in ways that reduce federal costs and that address other
policy issues that the Department of the Interior and the Office of
Management and Budget have identified. The Administration's evaluation
of settlements are guided by the Criteria and Procedures (C&P), a
document first promulgated in the early 1990s, ostensibly as a tool for
ensuring some degree of longitudinal consistency across administrations
for the evaluation of Indian water rights settlements. Although the C&P
were developed without any meaningful consultation with tribes or
states, we have learned to work with them over the years. Through this
process with the Administration, the cost of the federal settlement
legislation has been reduced by over $170 million, and the State has
agreed to increase its contribution by 40 percent, from $35 million to
$49 million, one of the largest cash contributions to an Indian water
rights settlement any state has ever made.
This $49 million contribution, which has not only been authorized
but fully funded by the Montana Legislature to support the Blackfeet
settlement, is of a piece with Montana's longstanding commitment to
contributing to Indian water rights settlements. In the early 1990s,
the State spent $21.8 million as part of the Northern Cheyenne
settlement, which included the repair and enlargement of a failing
state-owned dam, the additional capacity of which was used to make
additional water available to the Northern Cheyenne Tribe as part of
that settlement. The State spent $550,000 as part of the smaller
Chippewa Cree settlement and contributed $15 million to the Crow Tribe
settlement. The State has also committed to--and fully funded--a
contribution of $17.5 million for the Fort Belknap-Montana settlement
that has been ratified by the Montana legislature but not yet approved
by Congress. In approving the CSKT compact in its recently concluded
legislative session, Montana also agreed to contribute $55 million to
that settlement, and appropriated the first $3 million of that amount.
These are significant amounts of money for a state like Montana,
and reflect the depth of Montana's commitment to the settlement process
and investment in the benefits that settlements provide. Beyond the
important benefits previously described, these include projects that
make material differences in the lives of reservation residents and
surrounding communities. These settlements commonly include funding for
the rehabilitation of the often dilapidated infrastructure of on-
reservation BIA irrigation projects, and fund or pave the way for the
construction of systems to provide safe, potable drinking water to
communities that for too long have struggled without. S. 1125, for
example, provides funds to build a regional drinking water system for
the Blackfeet Reservation and to rehabilitate portions of the Blackfeet
Irrigation Project for which there is a significant backlog of deferred
maintenance. It also, in conjunction with the State's contribution,
provides funds to construct a pipeline to bring water from the Four
Horns Reservoir on Badger Creek one drainage south to Birch Creek to
help alleviate the water conflicts there. This infrastructure also
helps the Tribe enhance the economic benefit it can make from its water
resources. This is a further example of the sorts of creative solutions
that enable settlements to work.
The difference in cost between a settlement like Chippewa Cree and
one like CSKT reflects both the significantly different nature of the
size and scope of the issues the settlement needs to resolve, but also
the fact that settlement costs tend to increase over time as needs
become ever more acute and things like construction costs rise. Delay
in reaching, approving and implementing settlements should be avoided.
Not only does it increase settlement costs, but it can jeopardize the
very viability of the settlement itself as governmental actors change
and the rationale behind how a settlement was structured and what
compromises and trade-offs were agreed to fades from institutional
memories. It is in part for this reason that Montana continues to
appreciate that, as made clear by the 2012 colloquy between then-
Senator Kyl and Senator Toomey, found in the February 2, 2012
Congressional Record; the Senate does not consider funding for Indian
water rights settlements to be congressionally directed spending
because of the important national benefits these settlements supply. We
are also encouraged by the letter issued in late February by House
Natural Resources Committee chairman Rob Bishop (see attachment), which
provides a pathway for navigating the earmark issue in the House, which
has been an impediment to moving these settlements forward for the last
few years. I personally look forward to the opportunity to work with
this Committee and its staff on securing passage of S. 1125 during the
114th Congress and the CSKT and Fort Belknap settlements as they become
ripe for congressional consideration.
Thank you again for the opportunity to provide testimony on this
important matter. I would be happy to answer any questions the
Committee or its staff might have and to provide any additional
information that would be helpful.
Attachment
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much for your testimony.
Mr. Moore?
STATEMENT OF STEVEN C. MOORE, SENIOR STAFF ATTORNEY, NATIVE
AMERICAN RIGHTS FUND
Mr. Moore. Thank you, Mr. Chairman and members of the
Committee.
First of all, I would like to thank you for inviting me to
testify. My executive director, John Echo Hawk, sends his warm
regards to the Committee.
NARF has been in existence for 45 years. Over the 45 years
of our existence, we have represented over two dozen Indian
tribes in water litigation and settlement matters, principally
around the West. I would like to acknowledge the comments of
Senator McCain, recognizing that these are solemn treaty
obligations of the United States that we are talking about
here, setting aside reservations for Indians, Indian tribes in
exchange for the cession by the tribes of millions of acres in
the West that opened that land up to settlement by non-Indians.
These are contracts, binding contracts on the United States.
The United States has a solemn legal and moral obligation to do
what it can to advance these matters, water rights and
responsibilities and resources.
And the U.S., as you said, Mr. Chairman, acknowledges that
there is a trust responsibility here, a primary trust
responsibility for the United States.
In our work over the years at the Native American Rights
Fund, and my boss, John Echo Hawk, really is the visionary in
this regard, John set out over three decades ago to establish
with the Western States Water Council and the Western Governors
Association an Ad Hoc Working Group on Indian water
settlements. That bond today is still very strong between the
Water Council and the Western Governors and NARF. The message,
the single, solitary message that the ad hoc committee and
those three organizations bring to this Committee and to the
U.S. Congress is that settlements are the way to go with
respect to these divisive water matters and contentious water
matters.
We know how to litigate. We know how to spend millions of
dollars in litigation between Indian tribes, between the United
States and between States and private water users. All that
does is make the attorneys rich. And I have seen that
throughout my 37 years litigating water cases in five western
States. The attorneys are the beneficiaries ultimately. And I
am an attorney, so I am not knocking the bar itself.
But at the end of the day, what we have are further divided
communities, tribal and State communities. Historically Tribes
and States have been antagonistic and bitter enemies. Let's not
continue that into the next century and beyond. Let's find a
way to build new relationships around water, around the wise
use and management of water. It is a shrinking resource in the
West, to be sure.
Some specific comments that I would like to make in the
remaining period of my time is, our experience at NARF is that
Indian tribes, from the very front end of the water process
through settlement and implementation and effectuation of
settlement, need access to funding. Senator Tester hit the nail
on the head. Tribes in many parts of the Country don't even
know the water resources that are on their reservations, how
much water is available, surface and groundwater, how much is
unappropriated or appropriated. There are resources that come
through the Department of Interior, but they are meager at
best. So most tribes cannot tap into the resources that they
need to understand the water resources on their reservations
and what competition they are up against.
Then they are further hamstrung in their ability to
litigate those issues. They don't have access to the dollars
sufficient for attorneys and technical consultants. Assuming
they get through the litigation process, because sometimes the
U.S. is involved but oftentimes not, they don't have the
technical and legal resources to fully support them in the
negotiation process and the settlement process. At the end of
the day, they need fully-funded settlements that turn the paper
water into wet water.
So I am here today to deliver that message. I think the
Water Council and the Western Governors believe the same as
NARF does, that we need more effective resources to assist the
tribes through this process, so at the end of the day we have
wise use and management of water, conservation of water, which
is a dwindling resources. And we have improved relationships
between the three sovereigns in the United States.
I am happy to stand for questions.
[The prepared statement of Mr. Moore follows:]
Prepared Statement of Steven C. Moore, Senior Staff Attorney, Native
American Rights Fund
``In the history of the United States Government's treatment of
Indian tribes, its failure to protect Indian water rights for use on
the Reservations it set aside for them is one of the sorrier
chapters.''
National Water Commission, Water Policies for the Future:
Final Report to the Resident and to the Congress of the United
States, 475 (Govt. Prtg. Off. 1973) at 475.
Introduction
Mr. Chairman, I want to thank you for holding this hearing and
giving me an opportunity to testify. I am Steven Moore, a senior
attorney with the Native American Rights Fund, the national Indian
legal defense fund headquartered in Boulder, Colorado.
One of the most important Native American legal issues NARF has
addressed in the past 45 years of our existence has been Indian tribal
reserved water rights. During that time, we have been involved in nine
tribal water rights cases that have resulted in negotiated settlements
approved by Congress. We are currently representing five tribes on
their water rights claims in various stages of litigation and/or
settlement--the Klamath Tribes in Oregon, the Tule River Tribe in
California, the Agua Caliente Band of Cahuilla Indians in California,
the Kickapoo Tribe in Kansas, and the Nez Perce Tribe in Idaho.
Background
For centuries prior to European contact, Native Americans had
sufficient land and water to provide for their needs. The rivers ran
free of dams, impoundments and artificial waterways, allowing for
ecosystems to support themselves naturally. Many tribes, especially in
the Pacific Northwest, lived off fish runs, harvesting them only at
levels that supported their people while sustaining the fish
populations. Other tribes in the Southwest had complex irrigation and
water purification systems to use the limited water most efficiently.
The functional water ``policy'' of Native American tribes was to
protect and preserve this sacred resource. Tribal ceremonies celebrated
water, and cultural values to protect and honor water were practiced
from generation to generation.
Indian tribes possess substantial water claims to support viable
reservation homelands and off-reservation fishing, hunting and
gathering rights specifically reserved by tribes as part of their 19th
century treaty negotiations with the United States. These reserved
rights to land and other natural resources were part of a bargained for
exchange, in which the United States sought and received the perpetual
relinquishment of land to open vast territory for westward expansion
and settlement. Indeed, tribes ceded title to millions of acres in the
process. Then and now, Indian tribes expect the United States will
honor its promises.
A cornerstone of the promise is the federal trust responsibility.
The United States expressly acknowledges that ``Indian water rights are
vested property rights for which the United States has a trust
responsibility, with the United States holding legal title to such
water in trust for the benefit of the Indians.'' 1990 Criteria and
Procedures for the Participation of the Federal Government in
Negotiations for the Settlement of Indian Water Rights Claims, 55 Fed.
Reg. 9223 (March 12, 1990)(``Criteria and Procedures'').
Yet, during the same historical era as the treaty and reservation
era, the United States also enacted laws and implemented policies
encouraging the settlement of arid western lands and the development of
the scarce water resources in what became ``former'' Indian aboriginal
territory. Such laws included those permitting the homesteading of
``surplus'' Indian reservation lands, when reservations were allotted
under the authority of the General Allotment Act of 1884, the Homestead
Acts beginning in 1862, and the Reclamation Act of 1902. (These laws
were silent on their effect on prior,zpre-existing Indian tribal rights
to the use of water, rights that under federal cannot be abrogated
without express consent of Congress.)
During the early and mid-1900s, the United States entered into a
period of mass water infrastructure development in the arid West to
simulate the depressed economy and to accommodate population growth.
Although these projects affected tribal water rights, they were
developed with little to no consideration or assertion of such rights.
As a result, private water users, businesses, and government entities
have enjoyed the benefits of water development while, in most
instances, tribes have been left wanting. The lack of development of
senior tribal water rights, however, has created significant
uncertainty in the Western system of water allocation and use. Because
many tribes have not yet asserted their prior and paramount, reserved
water rights, non-Indian irrigation and other commercial interests in
many parts of the United States are concerned about the durability of
their junior water rights.
Moreover, in most cases large-scale water projects in the West were
built to the detriment of tribal water rights because they allocate the
majority of water available to non-Indian users. The National Water
Commission in 1973, for example, recognized that the Federal Government
had promoted and subsidized non-Indian water development at the expense
of vested tribal rights. National Water Commission, Water Policies for
the Future: Final Report to the Resident and to the Congress of the
United States, 475 (Govt. Prtg. Off. 1973) at 476-7.
The Klamath Irrigation Project in Southern Oregon is a prime
example. Created in 1902, the project irrigates thousands of
agricultural acres by diverting water from the Upper Klamath Lake in
Southern Oregon that flows into the Klamath River in Northern
California. The project provides subsidized water to non-Indian farmers
but disregards senior tribal water rights. The Klamath River, through
its journey from the high desert to the ocean, supports the Klamath,
Yurok, Karuk and Hoopa Tribal fisheries. The project does not
accommodate water for instream flows for tribal fisheries, but instead
diverts water to support the irrigation project. In 2003, the largest
fish kill in American history, occurred on the Klamath River when
60,000 salmon died due to lack of adequate water flows after a large
diversion was made up river for the Irrigation Project. The Federal
Government acknowledges the potential environmental consequences of
these diversions but refused to alter its course despite its trust
obligation to protect Tribal fisheries. The Native American Rights Fund
represents the Klamath Tribes in litigation over and potential
settlement of this situation.
Thus, the United States created the conflict over the development
and use of western water resources. These conflicting tribal and
settler rights and expectations must ultimately be resolved. It is
therefore the responsibility of the United States to facilitate and
fund the resolution of such conflicts consistent with its trust
responsibility to Indian tribes, irrespective of whether it is in a
litigation or settlement context.
Tribes will always view these processes as a two-edged sword. On
the one hand there are benefits to be gained from quantifying and
decreeing Indian water rights--the delivery of wet water. Yet, there
are costs for tribes. There is always the feeling that something else
of importance to Indian people is being taken away by the majority
society and that the work of Manifest Destiny continues largely
unabated.
Ad Hoc Group on Indian Water Rights
In 1982, the Ad Hoc Group on Indian Water Rights was formed. Its
membership consists of the Native American Rights Fund, the Western
Governors Association, the Western States Water Council and the Western
Business Roundtable (formerly the Western Regional Council). Although
the Ad Hoc Group's constituents were pitted against each other in
litigation over Indian water rights claims, the Ad Hoc Group came
together because of our shared interest in assuring the Federal
Government paid its fair share of the costs of Indian water rights
settlements that were negotiated in order to avoid litigation. The
Federal Government should pay its fair share of the settlement costs
because it failed as trustee to protect Indian water rights in the
West, and instead encouraged states and non-Indians to develop and use
water, thereby becoming the primary cause of the litigation between
Indians and non-Indians over this issue.
Over the years, NARF, along with its Ad Hoc Group partners, has
worked to educate each Administration and Congress on the importance of
having favorable federal policies on Indian water rights settlements.
These successful efforts have resulted in 29 Indian water rights
settlements being enacted into law. In our experience, securing the
funding for the Federal Government's fair share of the cost is the most
difficult problem to overcome in an Indian water rights settlement.
Constrained federal budgets in recent years have been compounded by a
misunderstanding among some that funding these Indian water rights
settlements is congressionally directed spending. It is not. As
Senators Kyle and Toomey made clear in a 2012 colloquy on the Senate
floor, it is spending to fulfill financial obligations of the United
States. It is imperative that each Administration and Congress work
together and fund the Federal Government's obligations of each
negotiated Indian water rights settlement in order rectify the results
of its failed water policies.
Resolution of Indian Water Rights Through Litigation
Historically tribal water rights claims were resolved in the court
systems. Federal courts have jurisdiction over tribal water rights
claims unless the state has initiated a general stream adjudication on
a waterway utilized by a tribe. In such cases, the state court has
jurisdiction over tribal water rights claims pursuant to the McCarran
Amendment. Lengthy litigation often results in ``paper water'' rights
with no funding for water infrastructure development. Moreover, the
aggressive nature of litigation divides the community of water users
into adversarial camps and thereby reinforces old political debates
over water usage. For all parties, litigation is expensive and can take
decades. For these reasons most tribes, states and private water users
prefer negotiated settlements of water rights.
At the present time, there are many cases in the courts,
predominantly in the western United States, involving the adjudication
of Indian reserved water rights. A large portion of the water in the
west is at stake in these cases--over 45 million acre-feet of water
according a Western States Water Council survey in 1984.
The purpose of these cases is to define or quantify the amount of
water that tribes are entitled to under their reserved water rights.
Although tribal claims are typically based agricultural uses of water,
some claims are also being made for non-agricultural water uses that
also fulfill the purposes for which the reservations were created.
These cases are typically huge and complex, pitting the states and
thousands of private water claimants under state law against the tribes
and the Federal Government as trustee for the tribes.
Complex water rights litigation has cost tribes millions of dollars
in technical and legal costs, though, with no apparent end in sight.
Several federal cases in New Mexico have spanned five to six decades.
The Gila River and other tribes in Arizona have been involved in state
water litigation since 1974, with at least nine trips to the Arizona
Supreme Court (not all involving Indian water issues, per se, but the
tribes are parties to the litigation and presumably have had to
actively participate). The Wind River Tribes in Wyoming have suffered a
similar litigation fate, fighting in state court since 1977, with
almost as many trips to the Wyoming Supreme Court. The Confederated
Salish and Kootenai Tribes in Montana have been on a similar path, but
very recently the Montana Legislature finally approved and the governor
signed a comprehensive negotiated settlement.
The Primacy of Indian Water Rights Under the Winters Doctrine
The doctrine of prior appropriation directed most allocation of
water in the West at the beginning of the 20th century during westward
expansion. Prior appropriation was the principle that the first parties
to physically divert and use the water for ``beneficial use'' should
have the first right to the water. Subsequent rights to the same water
were only entitled to water not used by those with senior rights. This
principal governs state water law, and created a priority system for
water allocation. However, tribal water rights are not governed by
state law.
Indian water rights are based on federal law because they were
reserved in the treaties and executive orders that created the
reservations. The Supreme Court acknowledged federal reserved water
rights for Indian reservations in the 1908 case, Winters v. United
States, 207 U.S. 564 (1908). Winters came from a dispute between tribes
on the Fort Belknap Reservation and upstream non-Indian water users on
the Milk River in Montana. During drought conditions, large diversions
by the upstream users inhibited Indian diversions on the Reservation.
The United States, on behalf of the tribes filed a lawsuit in federal
court in 1905 to enjoin the upstream diversion. On review, the Supreme
Court held that treaties created an implied water right, a ``Winters
right'', necessary to meet the purposes of the reservation, and
prohibited uses of water by non-Indians that interfered with the
tribes. Winters accomplished this by establishing a priority date for
tribal reserved water rights as of the date the reservation was
created. Since most Indian reservations were created prior to outside
settlement by non-Indians, Winters rights usually give tribes the
earliest priority date and most senior rights.
The Supreme Court in Arizona v. California, 373 U.S. 546 (1963)
established that Winters water rights are quantified by determining how
much water is necessary to irrigate the arable acreage on the
reservation. Known as the ``PIA'' standard, it assumes the Federal
Government set aside Indian reservations with the singular purpose of
developing agrarian societies. In recent years, the courts have
broadened the purposes behind establishing reservations. In Colville
Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981), for
instance the Ninth Circuit Federal Court of Appeals noted the general
purpose of the Reservation was to provide a homeland for the Indians.
It claimed this was a broad purpose and must be liberally construed to
benefit the Indians. The court supplemented the PIA standard with water
for instream flows to support tribal fisheries. In United States v.
Adair, 723 F.2d 1394 (9th Cir. 1983), the same court rejected the
notion of Indian reservations having one singular agrarian purpose, and
also awarded water for agriculture and instream flows. In Gila River,
35 F.3d 68 (Ariz. 2001), the court rejected the singular purpose PIA
standard to adopt the multi-purpose homeland standard which provides
for livestock watering, municipal, domestic and commercial water uses.
The Court in Arizona v. California, and following in Menominee Tribe v.
United States, 391 U.S. 404 (1968), also made it is clear that Indian
reservations were intended to serve as homelands where tribes could
create livable self-sustaining communities whether the purpose be
agrarian or to support other ways of life. These cases demonstrate that
each reservation can have several purposes for which it was reserved
that require broad interpretation to meet tribal water needs.
More recently, tribes have established that the Winters doctrine
extends not only to surface water but to groundwater. Tribes such as
the Gila River Tribe in Arizona, and the Agua Caliente Band of Cahuilla
Indians in Palm Springs, California, have had to litigate their right
to groundwater in the desert environs in which their reservations are
located. Other tribes such as the Lummi in Washington State and the
Confederated Salish and Kootenai Tribes in Montana have been engaged in
long struggles to secure rights to groundwater.
Settlement of Indian Water Rights
The process of settling water rights claims allows the community of
water users to address an array of water problems using creative
solutions that are not available through litigation. This flexibility
provides incentives for all water users on a waterway to be privy to
the negotiations. In most cases, the settlement of water rights claims
becomes part of a larger water bill that includes agricultural,
economic, and government water rights claims. The Snake River Water
Rights Act of 2004 settled water rights claims on the Snake River of
Idaho including those of several federal agencies and departments, the
Nez Perce Tribe, represented by the Native American Rights Fund, the
State of Idaho, agricultural and timber producing interests. The Snake
River Settlement Agreement accommodated non-Indian Upper Snake River
interests by honoring an existing water release agreement from the
Upper Snake River, and by providing habitat protection and restoration
in the Salmon and Clearwater basins under Section 6 of the Endangered
Species Act.
The Nez Perce Tribe also secured a reliable water supply, instream
flows, the transfer into trust of BLM on-reservation land, right to
access 600 hundred springs and fountains on federal land off-
reservation and the authorization of $90 million for tribal domestic
water and sewer, and habitat improvements. Instream flows in over 200
streams and rivers were decreed under state law. The Settlement
benefited all parties by providing stability regarding the scope of
water rights on the Snake River, and by providing funding to develop
such rights. Additionally, the parties obtained more benefits through
land and water transfers with funding to develop such interests under
the Settlement than would have been possible in court.
Throughout the West, states, tribes and private water users are
recognizing settlements as an opportunity to resolve long term water
and related environmental problems. No longer are these just Indian
water rights settlements, they are basin wide agreements, driven by
local circumstances and interests, that resolve long standing problems
experienced by all water users in a watershed. Between 1978 and 2014,
Congress enacted 29 Indian water rights settlement acts. Requests for
federal involvement in Indian water rights settlements have been
constant since 1978 and they are going to continue to increase. The
Federal Government, working with local communities, must be prepared to
respond with adequate resources to resolve once and for all the water
conflicts occurring in Indian Country.
Much Unfinished Work Remains
The passage of time makes the resolution of Indian water rights
more complex and difficult. Watersheds with un-quantified and un-
decreed Indian water rights have typically been viewed as having a
``cloud'' on the availability of the resource. That has been the
impetus, in large measure, for states to commence general stream
adjudications, and to haul federal and Indian into state court to sort
out rights. But state governments are as financially hard pressed, if
not more so, than the Federal Government, and adjudications are very
expensive. The result is the protection--sometimes unwittingly,
sometimes intentionally--of the status quo, in the face of unresolved
Indian claims. The giving away of more and more water in river systems
for non-Indian purposes, either through state regulation or, equally
insidiously, the non-regulation of groundwater development or small
pond/impoundment proliferation, ultimately advances the interests of
some of those who oppose Indian water rights. And with each molecule of
water that is given away to non-Indian interests as tribes await the
assistance of the United States to assert, litigate and/or settle their
water rights, the ultimate resolution of competing claims to water in
any watershed becomes more difficult.
While tremendous progress has been made to date in the settlement
and sorting out of Indian water rights, much more work remains. Despite
and against all odds, Indian tribes have secured about two dozen water
settlements over the past 35-40 years, since federal Indian policy
encouraged settlement--and the government began to invest the financial
and human resources necessary to achieve settlements--as opposed to
prolonged litigation. Dozens more tribes are either in various stages
of the negotiation process, or are in the queue waiting for the
resources to engage in the process. Sadly, in the recent 10-15 years we
have seen a general trend toward the dwindling of these resources, just
at a time when enhanced resources could have seen more settlements
mature, ripen and come to fruition.
While many large and complex settlements have been achieved over
the past several decades, a look forward is equally daunting. Consider
the remaining possibilities: California and its more than 100 federally
recognized tribes; Oklahoma with its 39 tribes sharing essentially two
river systems; the other Midwestern tribes with similar concerns to
those in Oklahoma over groundwater over-development and water quality
impairment; the tribes of the Dakotas and their reliance on the
Missouri River system which, with the Mississippi, is the most heavily
regulated commercial river in the United States; the coastal tribes in
California, Oregon and Washington with their enormous cultural and
economic interest in salmon fisheries and related habitat; the Great
Lakes Tribes with offreservation fishing and gathering habitat
protection interests; and the tribes of the northeast and southeast
which share many of the concerns faced by their brothers and sisters in
the rest of the country. And what of the tribes and Native villages in
Alaska, and the Native Hawai'ian community in the Pacific?
We know for a fact that climate change will likely not spare any
region of the country, particularly the western United States where we
find the largest land-owning tribes with the largest need for water.
The crushing drought in California, and the recent water wars between
Georgia and Florida are but a presage of the pressures to come. How
will tribes' interests play out against these larger forces?
Given the finite and very limited ground and surface water
supplies, particularly in the West, one tried and true method in past
successful Indian water settlements has been the reliance on water
infrastructure--primarily in the form of concrete--to increase the size
of the pie available to the stakeholders to a settlement. The several
Arizona Indian water settlements are largely dependent on the
construction of the Central Arizona Project. The new Navajo-Gallup
settlement depends on building a pipeline several hundred miles in
length. Of the remaining several hundred Indian tribes without
quantified and decreed water rights, are we dependent on a new era of
dam and other infrastructure construction? Is that even possible, given
the complex array of federal, state and local laws confronting new
developments?
The PAI standard for quantifying Indian reservation water rights
also can unfairly disadvantage tribes with reservation lands that
either are not economically irrigable due to soil or arid climatic
conditions, and, as we consider the claims of tribes east of the 100th
Meridian, disadvantage tribes with reservation lands not typically
viewed as requiring irrigation to make them agriculturally productive.
Finally, climate change looms as the wildest of wild cards. State
and local governments are already busily engaged in studying the
effects of global warming on already limited and over-stressed water
supplies. And planning the changes necessary to prepare for and manage/
mitigate the effects thereof. Tribes typically lack the resources to
conduct the same level of planning and preparation, and so will be even
more disadvantaged in litigating, negotiating and settling their water
rights in this ever-shifting context.
Solutions
Real solutions must come from the legislative and executive
branches of the United States government. Some will involve financial
capital, but others lie in structural and organizational changes made
within the Federal Government to effectuate a more just and expeditious
resolution of Indian water claims. Federal mechanisms and the means to
level the playing field for tribes must be put in place. Tribes must be
given access to all necessary data and information from which they can
make informed decisions and set priorities about protecting and
asserting their water rights. This will enable them to more fully
engage their state and local partners in the resolution of Indian water
rights.
One state-created model is the Montana Reserved Water Rights
Compact Commission. Since its creation in 1979, the Commission has
completed compacts with the seven resident Montana tribes. \1\ Are
there useful lessons to be learned from the Montana Indian tribes'
experiences with the Montana Compact Commission, and ways to improve on
it as a federal model? At a minimum, what sets the Montana process
apart is the express acknowledgement in state law that Indian tribes
have senior Winters water rights. Second, the state committed the
resources to see the work done. The resulting settlement compacts are
not perfect, but they reflect the value of political leadership and
hard work to achieve lasting solutions. The neighboring state of Idaho
has also achieved settlements with the resident tribes in the Snake
River Basin--the Nez Perce, Shoshone-Bannock and Shoshone Paiute. Idaho
utilized a litigation framework rather than a compacting process, which
resulted generally in a more adversarial and thus antagonistic
structure, but positive settlements, while taking more time, resulted
nonetheless. The remaining North Idaho Adjudication is framed
similarly. Congress could learn from the lessons the states,
particularly Montana. As noted above, much work remains and it will
take substantial leadership and resources from the Congress to achieve
lasting solutions across Indian Country.
---------------------------------------------------------------------------
\1\ Completed tribal compacts are with: Assiniboine & Sioux Tribes
of the Fort Peck Reservation; Northern Cheyenne Tribe; Crow Tribe; Gros
Ventre & Assiniboine of the Fort Belknap Reservation; the Chippewa Cree
of the Rocky Boy's Reservation, the Blackfeet Tribe, and the
Confederated Salish and Kootenai Tribes.
---------------------------------------------------------------------------
Recommendations for Fiscal Change--A Permanent Funding Mechanism for
Indian Water Settlements
It is time for a change. The Federal Government must prioritize
settling tribal water rights claims, and it must consider options to
accommodate a growing number of settlements. Indian Country can no
longer tolerate the lack of water and water infrastructure that has
inhibited them from developing their communities. The Federal
Government has an obligation as trustee to assist in the development of
tribal water rights and Congress must look to create a permanent
funding mechanism for tribal water settlements.
The federal Reclamation Fund is an appropriate mechanism to fund
tribal water rights settlements, as part of its mandate is to fund
tribal water settlements. With more attention and development, the
Reclamation Fund could provide the majority of funding for tribal water
settlements. Congress has already recognized the Reclamation Fund for
these means, as the 2009 Navajo-Gallup Settlement authorized for the
first time tapping into the Fund to develop a water delivery system on
the Navajo Reservation. Authorization to tap into additional funding
from the Fund for other Indian water settlements should be enacted by
Congress.
Another possible source of funding is the federal Judgment Fund.
The resolution of Indian water rights is a fundamental legal obligation
of the United States, after all. And like other legal obligations paid
out of the federal Judgment Fund, \2\ these settlements are not
earmarks, and should not be subject to the political whim of Congress.
Indian water settlements which achieve the support of all stakeholders
in any given state or states with interests in a particular watershed
should not be allowed to become political footballs.
---------------------------------------------------------------------------
\2\ In 1956, Congress established the Judgment Fund, which is a
permanent, indefinite appropriation to pay judgments against federal
agencies that are not otherwise provided for by other appropriations.
In 1961, legislation was enacted allowing the Judgment Fund to pay,
among other things, Department of Justice (DOJ) settlements of ongoing
or imminent lawsuits against federal agencies. The Judgment Fund is
intended to allow for prompt payment of settlements and awards to
claimants, thereby reducing the assessment of interest against federal
agencies (where allowed by law) during the period between the rendering
and payment of such settlements and awards. The Judgment Fund makes
such payments upon certification that a court has handed down an award
or that a settlement has been reached. The Judgment Fund is currently
managed by the Department of the Treasury's Financial Management
Service (FMS).
---------------------------------------------------------------------------
Conclusion
The foregoing challenges in Indian Country all connect to water.
Their solutions lie in water. Water is sacred. Tribes have proven they
are very capable partners and players in water adjudication and
settlement frameworks when they have financial resources to participate
meaningfully. Most tribes and their down-stream neighbors prefer to
negotiate water settlements since they provide the flexibility to
resolve long-term water problems using environmental solutions that are
not available in the court system, while saving time and money that
would otherwise be expended in litigation. Settlements remove water
uncertainty by defining the scope and priority date of each water
users' rights without employing the expensive, adversarial roles of
litigation.
The Federal Government has a legal obligation set forth in the
treaties to protect and develop Indian water rights. Although the
Federal Government's historical treatment of Indian water rights was
less than adequate, this Congress has the opportunity to take a new
direction. The future of Indian Nations depends on a consistent
commitment from the Federal Government to develop water supplies and
infrastructure in Indian communities. Many states, in recognition that
their water problems are inextricably tied to tribal water problems
have already made this guarantee.
Today in this testimony we have set forth suggestions for the
future commitment of the Federal Government to Indian water
settlements. Our four decades experience working with tribes and states
on these issues has convinced us that obtaining funding is the largest
impediment to resolving water problems in the West. We request that
Congress to remove this obstacle and create a permanent funding
mechanism for all facets of Indian water rights settlements. In doing
so, this Congress can join their constituents to help resolve water
problems in the West.
We thank the Committee for providing us with the opportunity to
discuss these issues. The Native American Rights Fund and our clients
stand ready to work with the Senate Indian Affairs Committee to achieve
meaningful solutions for bringing clean, reliable supplies of water to
Indian Country.
The attachments to this testimony have been retained in the
Committee files.
The Chairman. Thank you very much, Mr. Moore.
Senator McCain?
Senator McCain. Thank you, Mr. Chairman.
Secretary Connor, I will be very parochial, if you don't
mind. What are Arizona's next Indian water settlements that
Interior is close to moving as legislation?
Mr. Connor. Senator, right now there are several active
negotiations that are getting teed up. Whether or not they will
be ready to go this particular Congress, I am not sure. There
is certainly the Tonto-Apache and their work with the community
of Payson, and looking at a joint water supply system. I think
that one particularly holds a lot of promise and some
creativity on once again sharing resources between the tribe's
needs and the community's needs.
We would certainly like to see and have been working on the
Wallapi settlement on the Main Stem Colorado River, as you are
well aware. Thank you for your support. Phase one of that
settlement on the Bill Williams Watershed was completed at the
end of the last Congress. There is activity now to see if a
water supply project can be developed that is feasible for that
next settlement.
And certainly there is not activity right now, but once
again, as you are well familiar with, there are still
significant needs with the Navajo and the Hopi in the Little
Colorado River Basin. There is a framework there for a
settlement that the tribes ultimately did not support at the
end of the day. But there is a strong foundation should the
parties decide to return to the negotiation table.
Beyond that, we are also working with the San Carlos Apache
Tribe, not only in evaluating the claims that they have in the
Gila Watershed but also so that we can finally implement their
settlement of the 1992 settlement, their Salt River claims. And
Chairman Rambler has been very active in working with the
Bureau of Reclamation and trying to develop a plan that we can
use the existing resources already provided under the Arizona
Water Settlement Act to develop the infrastructure necessary to
bring water to that tribe consistent with that settlement.
Beyond that, a lot of implementation activity, as you are
well familiar with.
Senator McCain. A lot of implementation still has to be
done.
Mr. Connor. Yes.
Senator McCain. Do me a favor and for the record, give me
an update on the enacted water settlements, how we are doing on
that.
Mr. Connor. Absolutely.
Senator McCain. The drought is terrible. Arizona faces
cutbacks in water deliveries. An AP story this week warned that
Lake Mead is 37 percent full, as you know. Feds have warned
that water levels could force supply cuts to Arizona and Nevada
by 2017.
Arizona's allocation of Colorado River water could be cut
11.4 percent or by an amount normally used by more than 600,000
homes. A total of 47 percent of the water in the CAP, Central
Arizona Project, supplies designated for Indian water rights
settlements, and by some estimates only about 100,000 acre-feet
are left available for use in future settlements. That makes
the Central Arizona Project the largest single provider of
Colorado River Water to Native American water users in the
Colorado River system.
What is the impact, do you think of these imminent water
cutbacks, for Congress and you, for trying to complete future
water settlements?
Mr. Connor. You are absolutely right, Senator, the demands
of the Colorado system and the projections for shortages and
just to follow up on that a little bit, we are looking at a 20
percent possibility of shortages in 2016, and a little bit
above 50 percent in 2017. That is the study that you referenced
earlier.
So these are significant right now. The State of Arizona
has been planning for this for quite a while. And through the
groundwater bank and firming up existing supplies, they have
done a terrific job in partnership with a lot of other entities
in shoring up those water supplies.
Nonetheless, a lot of the existing settlements are built up
on non-Indian ag water associated with the Central Arizona
Project. We have been working, in the implementation phase,
pursuant to the Arizona Water Settlements Act, of firming up
those water supplies, so that in the event of shortages they
still have a high percentage of reliability that they will be
delivered.
But it will, once we are into a shortage situation, which
we could be within the next two years, it will add scrutiny to
particularly tribal entities who want to ensure that whatever
water that they are willing to settle their claims for is a
very high and reliable supply. That is critical to their
homeland. So I think it will put a premium on our need to shore
up and demonstrate the long-term reliability, which will
require more investments.
Senator McCain. Which may, if many of the predictions hold
true, it simply is not going to be there, not only for future
settlements, but for existing allocations.
Mr. Connor. Exactly. And there are priorities within the
Central Arizona Project, there are leasing arrangements, there
are more and more transactional arrangements, creative ways to
share water. And that is what is needed, as well as, we have to
continue to look at the efficiency by which we use water.
Senator McCain. If we keep up like we are doing, our
children and grandchildren will not experience the same
lifestyle, whether we are Indian or non-Indian.
Mr. Connor. Absolutely. We are going to have to have
fundamental change in how we use water resources with respect
to conservation, efficiency and institutional arrangements to
share the resources, as well as infrastructure investments and
more recharge and making use of high flow events. It is the
whole range of items.
In the Colorado River Basin, the last 10 to 15 years have
demonstrated a lot of these creative arrangements between the
States, between communities, between the United States and
Mexico, even. And as much progress as we have made and as much
water as we have added to Lake Mead through conservation,
through these arrangements, we are not keeping up with the
challenges that Mother Nature is providing to us right now. It
is a scary situation.
Senator McCain. I want you to kill off that salt cedar,
okay?
Mr. Connor. Absolutely.
[Laughter.]
Senator McCain. Thank you.
The Chairman. Thank you, Senator McCain. Senator Udall?
Senator Udall. Senator McCain is right about the salt
cedar, there is no doubt about it.
Thank you, Mr. Chairman. Deputy Secretary Connor, as you
know, the funding is a condition precedent to the settlement
agreement becoming final and enforceable. In my State, the Taos
Pueblo is in the last year of authorized appropriations under
the Taos Pueblo Indian Water Rights Settlement Act. Full
appropriations must be made before the end of March, 2017.
How important is it for the State to fulfill its
commitment? Do you work with the States to ensure equal
commitment on State funding levels? And has Congress over the
years extended authorizations of Indian water rights
settlements to ensure conditions in the authorizing legislation
are met?
Mr. Connor. I believe, and I will need to more fully answer
this question for the record, but I think there have been
extensions in certain settlements where there were some issues
associated with meetings, some of the deadlines where there was
knowledge that there was an intent and ability to ultimately
meet them. So I think the issue of deadlines, it is possible,
but it is not preferable by any stretch of the imagination.
The three New Mexico settlements that have come about in
the last six years, the Navajo, the Taos and the Aamodt, have
been really significant from the standpoint that the State of
New Mexico stepped up and was a significant financial partner
in all those settlements. We have had good success with funding
from the State, but there has been a question about the Taos
funding. Unfortunately, in the late stages of where we are in
implementation, that could threaten the settlement in its
finality.
So it is a very critical issue that the State needs to
address. Because we have built that settlement on the
foundation of both Federal and State funding. And the State and
Federal funding has been appropriated in previous years and it
is in our budget to complete the Federal responsibilities.
Senator Udall. My staff and I have been working very
closely with the State to let them know what the situation is,
how urgent it is that they step forward on their side of it. I
hope that you will do the same thing when you have any contact
with them. Then we will try to work with you, if we do get in a
situation where we need an extension.
But I think that just like you say, the preferable way to
proceed is to make sure that they come up with the money on
time and that the money is what they agreed to all along. It is
unacceptable to not do that.
Secretary Connor, negotiation of these tribal water
settlements is obviously critical. Can you describe the
internal mechanics of the negotiation process through the
working group at Interior and how our negotiation is treated?
How do you resolve issues and what changes have you considered
to approve the process?
Mr. Connor. Overall, by the time the Working Group on
Indian Rights Settlements gets involved at Interior, these are
very mature negotiations that are close to finality. The
framework, both from a water rights claims, the ultimate claims
that are being resolved as part of the settlement, and the
financial aspects of the settlement, Federal contribution, are
pretty well developed at that point in time. The working group
is looking within Interior, which is several of the assistant
secretaries, the solicitor, the counselor to the deputy
secretary who is the chair of the working group, are really
evaluating the settlements and comparing it to the 1990 Federal
Criteria which outlines the basis for Federal participation and
Federal contribution to Indian water rights settlements.
Certainly we are looking for the Federal contribution, is
it in line with the trust responsibility, does it give value
commensurate with the tribe's, the claims that they are
relinquishing as part of the settlement, those are certain
factors. Is there a commensurate non-Federal contribution for
benefits being received by non-Federal entities?
But also there is looking at the overall feasibility of the
project, both its economic feasibility and its environmental
feasibility as part of the analysis also. So from that process
in several instances, there has been either agreement that we
should move forward, we can refine the settlement in a certain
way or send out our negotiators to work through that process.
Or at times it has been, we need to revisit the contribution
and the infrastructure being looked at.
So that is the dialogue, that's the process. It is the 1990
criteria and procedures that really define the role.
Senator Udall. Thank you very much. Thank you, Mr.
Chairman.
The Chairman. Thank you very much, Senator Udall.
Senator Daines?
Senator Daines. Thank you, Mr. Chairman. President Azure,
it is good to have you here, from Fort Belknap, as well. We are
surrounded by Montanans. Jay, good to have you here as well.
We have a couple of Blackfeet tribal members who are
enroute, their flight has been delayed. They were going to be
here today. That would be Gerry Lunac and Jeanne Whiteing, as
well as Ryan Smith. I want to thank them for all their hard
work on the Blackfeet water settlement, as well as my
colleague, Senator Tester from Montana. We look forward to
working together with members of the Committee to move it
across the finish line. Certainly, as you have heard from many
of the members here today, it is time to create certainty for
both our tribal and our non-tribal users.
I know I am supposed to call you Mr. Weiner, but to me it
is Jay. If that is okay, Jay?
Mr. Weiner. Please.
Senator Daines. You have done a lot of work on these
settlements. What would you say is the importance of having
this consensus you describe in your testimony, between the
Blackfeet Tribe, the State, and important as well, the non-
tribal water users, in getting us to where we are now, which I
would argue is closer to the finish line than we have ever been
before with the Blackfeet settlement?
Mr. Weiner. Thank you, Senator Daines. I think you are
absolutely right. The effort to come to consensus is part of
why, even though settlement is a preferable path to litigation,
it is not a short path. The efforts that are involved in
identifying not just the hydrologic issues involved, and
assembling the technical data that is necessary to lead to a
mutually agreeable basis for settlement, but the process of
identifying all the other issues that come to bear.
As I mentioned in my testimony, on Blackfeet, the
longstanding grievance that the Blackfeet Tribe understandably
has as a result of the Milk River Project's construction, the
longstanding conflict that exists on Birch Creek, Blackfeet was
also a complicated settlement because much of the water on the
Blackfeet Reservation is also subject to the 1909 Boundary
Waters Treaty between the United States and Canada, which was
negotiated with no consideration for the tribe's water
whatsoever. It has been another source of grievance for the
tribe that we needed to try to account for in the settlement,
not necessarily to resolve, but certainly to structure the
settlement in such a way that it fit within the Boundary Waters
treaty allocation, but also address the fact that the tribe has
legitimate historical grievances.
So one of the things about the settlement process that is
so critical and really is one of the things that litigation
simply doesn't afford is the opportunity to try to come to
those kinds of understanding about these historical grievances
between States and tribes, between tribes and their non-Indian
neighbors, and to surmount them, so that the future does not
look like the past and that there really is the opportunity for
tremendous collaboration, not just over water but over all
sorts of other issues. These really are engines for community
harmony in many ways, and for the improvement of relations that
have all kinds of important economic follow-on effects, but
also social follow-on effects.
Senator Daines. Could you elaborate a little more on those
economic benefits? How important is this, Jay?
Mr. Weiner. This is essential. From Montana's perspective,
the Milk River Project accounts for roughly 10 percent of our
irrigated agricultural economy. And the Birch Creek water users
are an important small grains producer, they also provide
municipal water. These are very important drivers of Montana's
agricultural economy.
We would very much like to see this settlement also provide
a basis for the tribe to be able to address the longstanding
backlog of deferred maintenance on the on-reservation
irrigation project to increase their contribution to the
reservation economy, to Montana's economy as a whole. These are
absolutely critical pocketbook issues.
And particularly when you are talking about irrigated
agriculture, all of the follow-on effects and the way that they
support our small, rural communities, all of the people, not
just the farmers, the equipment dealers, the fuel producers,
everyone that relies on these for their way of life and to
sustain these, they are critical to Montana.
Senator Daines. Thank you, Jay.
Deputy Secretary Connor, the Blackfeet Water Settlement is
a result of a long process, Jay has articulated it well, of
building consensus among stakeholders both on and off the
reservation, including the tribe, the State, non-tribal
irrigators. Of course, one of the last hurdles here in this
process is negotiations with the Department of the Interior. I
understand the Blackfeet folks I mentioned who are flying in,
assuming the flight gets in today, they are meeting with your
office actually tomorrow. I will be following those discussions
closely, as I know Senator Tester will as well.
I would like to secure your commitment to work for support
of the settlement at both the Department of the Interior and
the Department of Justice. Can I get your commitment to work
with us through all the steps in that process so we can address
the outstanding issues in a timely manner and get the Blackfeet
water settlement through Congress and signed into law?
Mr. Connor. Yes, Senator Daines. You have my commitment to
work with you on that process. There has been tremendous
progress made on the Blackfeet settlement with the State's
assistance, with the tribe's assistance. As Jay articulated,
there are legitimate disputes that the tribe has had with the
State and with the Federal Government and Bureau of
Reclamation. I think we have worked through a lot of those
issues. I think there are a few remaining. We are very
committed to working through on this settlement.
Senator Daines. Yes, I think the stars are lining up on
this one as well. There has been a lot of hard ground that has
been tilled and worked and cultivated here. As Jay mentioned, I
think that as well as the economic benefits it brings the
communities together as well. It is a great opportunity for us
and I look forward to getting it across the finish line in this
Congress.
Mr. Connor. Absolutely.
Senator Daines. Thank you.
The Chairman. Thank you, Senator Daines.
Senator Tester?
Senator Tester. Thank you, Mr. Chairman.
Deputy Secretary Connor, always good to see you. I want to
go back to S. 1365, which would dedicate funds to water
settlements. Has the Department had a chance to look at this
bill?
Mr. Connor. No, not in any great detail yet. But I will
certainly do that.
Senator Tester. If you could take a peek at it and let us
know what you think, I would very much appreciate that. I think
when push comes to shove on all this stuff, it is going to be
money, to be honest with you. If we can get a dedicated fund to
that, I think it could make a big, big difference.
Jay, I want to follow up on something that Senator Daines
asked about, only from a little different twist. And by the
way, congratulations for getting all seven compacts through the
legislature. I know this last one was a hell of a fight. So you
need to get credit for that.
In terms of Blackfeet and Fort Belknap, and we have the
chair of Fort Belknap here, where it is at least partially and
totally for Fort Belknap on the same water resource, can one be
done without the other or does Blackfeet have to come first and
then Fort Belknap, or can Fort Belknap get done without
Blackfeet?
Mr. Weiner. Thank you, Senator Tester. From Montana's
perspective, we support all of our settlements and would like
to see all of them move forward as soon as possible.
We believe that each settlement can and, frankly, should be
considered individually. Although there is some overlap on the
Milk River, between the rights of the Blackfeet Tribe and the
Fort Belknap Indian Community, I think there are two important
reasons why they do not need to move in tandem, one of which is
that in part in response to concerns that the Fort Belknap
Indian Community had raised, there is now language specifically
in S. 1125 that provides for a dedicated process for those two
reservations, and with the assistance of the department of
Interior, if necessary, to come up with a mechanism between
themselves to resolve any possibility of conflict on that
source.
From the State's perspective, and there have been some who
have accused the State of essentially trying to negotiate away
the same water twice, we do not believe that the hydrology of
the system, given the distance and the nature of the water
supply there, the Milk River, as I know you know, Senator
Tester, and Senator Daines also, is a prairie stream that
arises on the Blackfeet Reservation, flows up into Canada and
comes back down into Montana a good ways downstream. The
hydrology of that system is such that it is inordinately
unlikely and indeed, there is not funding in S. 1125 for the
sort of project that the Blackfeet Tribe would need to develop,
to have even, the hypothetical possibility of conflict with the
Fort Belknap Tribe's water rights.
So for those reasons, we support both settlements strongly.
We would like to see them move. But we do not believe that in
any way do they need to be linked for their consideration by
this Committee or in this Congress.
Senator Tester. I appreciate your answer. You do know a
little bit about water rights and Indian water compacts, that
is for certain. Montana is lucky to have you.
Montana is going to contribute $49 million for the
Blackfeet water settlement and I think $50 million for Salish
Kootenai.
Mr. Weiner. It is $55 million, Senator Tester.
Senator Tester. Okay, I stand corrected. What do they get
out of this? What does the State of Montana get out of it?
Mr. Weiner. There are many things that the State of
Montana, Senator Tester, achieves from these settlements. It is
why the State has supported this process for so long.
As I have hit on, there are the specific benefits that we
negotiate for in the settlements. One of the State's critical
objectives in all of our settlements is the protection of
existing non-Indian uses that have built up over years, over
decades, over generations, that because of the first in time,
first in right prior appropriation doctrine and the Winters
doctrine are nevertheless junior in priority to these tribal
rights.
The criterion and procedures were discussed, and certainly
one of the things that the criterion procedures call for that
Montana has always embraced and strongly supported are
appropriate State contributions for benefits that flow to non-
Federal parties. So Montana's contributions have historically
been pegged in large part for the benefits that we negotiate
for in these settlements.
In addition, there are the significant economic effects for
both reservation and off-reservation communities. That is a
benefit we believe to tribes, and also a benefit to the State.
The tribes are, they are tribes whose borders and reservations
are within Montana.
Senator Tester. Good. Chairman Macarro, first of all,
thanks for being here. Your testimony talks about your Pechanga
settlement and how various entities in California work together
to work out this agreement. You need to be commended for that.
What happens if this bill doesn't get enacted at this
level? After you have done your work at your level.
Mr. Macarro. I think the uncertainty that, it certainly
puts everybody at a disadvantage, the uncertainty of not
knowing how much water we can pump, both for domestic potable
purposes, economic development purposes. And that uncertainty
also applies to the local water district and the larger
community that the reservation is situated in. So it affects
Indians and non-Indians alike.
There are some pragmatic concerns, if something doesn't
happen in this Congress, the pragmatic concerns range from
personalities and people, there are people at Interior, for
instance, or Justice that have worked on Pechanga's water
settlement for a couple of decades, actually. I think they may
be in their twilight years of Federal civil service and maybe
looking at retiring.
When they go, if they go before our settlement is
completed, there is a lot of institutional knowledge, a lot of
practical knowledge about our settlement that will go out with
them. The learning curve on these things, on each settlement,
each is its own creation to some degree, but that will fall to
somebody new. So that is a setback in the actual settlement for
the tribe.
There are political environments. The local parties that
the tribe has local agreements with that I referred to in the
testimony, both with the local water agency, regional water
agency, those are starting to age, those agreements, those
local agreements. There is a lot of goodwill, a lot of
collaboration and coordination that was in place six to eight
years ago when the initial discussions were had in earnest.
We hope that that is still there, the indications are it is
still there. But the more forward we move in time, the more
uncertain those sentiments become. I would like to thank that
the goodwill is as good as it is, whether Congress approves
these agreements or not. However, the imprimatur of
Congressional approval signed into law by the President would
be the best guarantee of the agreements being in place a year
from now or 20 years from now.
Senator Tester. Very good. Thank you, Mark. I want to thank
you all for your testimony. Thanks, Mr. Chairman.
The Chairman. Thank you, Senator Tester. Senator Lankford?
STATEMENT OF HON. JAMES LANKFORD,
U.S. SENATOR FROM OKLAHOMA
Senator Lankford. Gentlemen, thank you for being here. I
appreciate the conversation on this. These are obviously
extremely complicated issues. Recognizing the threats that are
out there and the length of litigation, I want to talk a little
bit about tribes that are currently not in settlement processes
and States that are currently not in that. What can tribes and
States do to avoid litigation that they can proactively do now
before we get to that stage in the days ahead? Anyone can take
that who wants to take that one on.
Mr. Connor. I will take a shot at that, Senator Lankford. I
think fundamentally, and I think Mr. Moore referenced this,
understanding the nature of the water resources, getting as
much information from a technical standpoint, having,
particularly for tribes, that vision of what it is that they
need for a sustainable future with respect to water, what their
overall needs are for their reservations, I think is good
preparation.
And to the point that Steve raised, we are in our budget
process for 2016, investing more resources, trying to provide
more technical support so that tribes can do that planning that
is necessary. I think that puts them in a good position to
approach the States and local communities who they may have
water resource issues with.
I know in the situation that exists in Oklahoma, with
Chickasaw in Oklahoma City, I think there has been some very
good work, and I know very good discussions. I can only assume
that is based on a good understanding of the resource that has
put them in a position to resolve those issues.
Senator Lankford. Mr. Moore, were you trying to say
something as well?
Mr. Moore. Yes, Senator. You have a unique situation in
Oklahoma with 39 federally-recognized tribes on two river
systems. We have met with a number of tribes in Oklahoma and I
think our advice to them has been, work together. If the tribes
don't work together, if they are not trying to work out their
differences so that they can move forward in talks with the
state and the private water users, then you have a really
fractured situation. I think as a political leader in the
State, that represents chaos for you, if people can't try and
work and come together.
So again, I call him Jay because he's a friend, too, Mr.
Weiner here, and the Montana Compacting Commission I think is a
process that when you look around the West, it is noteworthy.
The State of Montana did something very important. They
statutorily recognized the Winters doctrine and the primacy of
Indian water rights. They said, we are going to recognize that
doctrine, we are not going to fight about it, and we are going
to move forward from there. That is different from many States,
where they are still fighting about the Winters doctrine.
I represent a tribe in California, the Agua Caliente Band
of Cahuilla Indians in Palm Springs. We are fighting over that
tribe's right to a share of the groundwater with the two local
water districts who refuse to recognize the extension of the
Winters doctrine in that context.
So if you move back to a 19th century approach you just
create more antagonism, more hardship. I would advise the State
of Oklahoma and its political leadership to look to Montana as
a means of trying to create a framework for moving forward on
resolving these matters.
Senator Lankford. Right. And the State leaders and the
tribes are working very well together. We have an ongoing
conversation which they will resolve among themselves within
the State.
The challenge is determining tribal usage of water and that
primacy, how far that extends. And it will be an ongoing
conversation, I assume not just in Oklahoma, but nationwide. Is
that for the benefit of the tribe while on the reservation or
in our case, in the same area? Or is that an economic benefit
that you can gather and sell and distribute? How is that
typically worked out in place to place and what is the process
on that?
Mr. Weiner. Senator Lankford, in the Montana settlements we
have routinely built in leasing provisions because one of the
things that we want to make sure that happens is that there are
multiple avenues for tribes to develop their water resources.
If they can put them to use on the reservation, then more power
to them.
But if they have the ability to provide a clear framework
to make additional water available to off-reservation users who
have need for that water, we very much use our settlements as a
tool to facilitate that process. We build in specific leasing
provisions oftentimes to synchronize them with state law to
make sure that there is appropriate regulatory approval for the
off-reservation uses, synched up with the leasing provisions.
Senator Lankford. Best time to be able to negotiate this,
in a time of drought or a time of plenty? I assume in a time of
plenty, because this is going to multiply out in tribal
locations and States all across the Country. Once you get to a
time of drought, that is when everyone pays attention to it,
suddenly.
Mr. Weiner. I would certainly agree with that, Senator
Lankford. I would say that it is on occasion that it is times
of drought that you realize all the issues that need
addressing. It is sometimes possible that plenty is not as much
of a panacea as it might seem to be. Certainly our recent
experience with the Confederated Salish and Kootenai Tribes in
Western Montana where there is in fact an abundance of wet
water does not necessarily alleviate conflict.
Senator Lankford. Okay. And typical length, if I might ask,
what is the typical length of a settlement at this point where
we are right now? I know there is no normal, but give me a
median.
Mr. Weiner. To speak from Montana's experience, to get to
State legislative approval, the negotiations generally have
gone on and off oftentimes for a decade. But there usually is a
particular driver that helps bring the State and the tribe to
the table to make the hard decisions that need to be made. So
what we often find is that settlement processes move slowly,
slowly, slowly until they start moving very quickly.
So it is, in terms of the actual duration of settlement
from stem to stern to get to State legislative approval, I
would say you are talking decades. But in terms of doing the
end product, very hard work once the foundation has been laid,
those things can often come together, months is optimistic, but
not very many years.
Senator Lankford. Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Lankford.
Mr. Connor, as you know, the drought situation across the
West appears to get worse every year. Mr. Macarro made
reference to what was happening in Southern California. In
drought-stricken California, lakes and rivers are drying out.
Mandatory water restrictions are now in place. There are front
page pictures in the newspaper about barren areas next to areas
that are watered and that are lush and green.
How should the United States balance the need to finalize
Indian water settlements with priorities for water users in
these drought-stricken places?
Mr. Macarro. I think there are crisis situations that we
are trying to address very urgently with respect to California,
in particular. The situation there is not an either/or. I think
in that particular case, most of the work that is being done by
the folks on the ground are committed to working through those
drought issues.
In a lot of cases, there are analogies to Indian water
rights settlements. What we are doing now, as you mentioned,
there are areas being watered next to areas that are being
fallowed. That is because of the seniority in the water rights
system. That means there are winners and losers.
In some of those cases, as we move forward, and that is
within our same Bureau of Reclamation projects even. Not
everybody is on the same level. What we are trying to do there
is facilitate arrangements to move water from the haves to the
have-nots. There are financial arrangements, there is the use
of our infrastructure. And it is a priority for not only
Reclamation, but the Department as a whole.
Separately we do have these ongoing responsibilities with
respect to Indian water rights settlements. So we are moving
full forward with respect to the implementation activity. We
have been very fortunate through the most recent settlements to
have the resources to keep moving forward in this particular
time frame. We are certainly concerned about the next several
budget cycles and getting the resources we need to maintain our
momentum.
But we haven't had to make choices. If I understood your
question correctly, we are not having to make choices about not
moving forward with the settlement, even negotiations and
implementation activity, and not being able to do what we can
in our all hands on deck approach to dealing with the drought
issues.
The Chairman. Water settlements are intended to quantify
the rights of tribes and to water sources. Some of the
settlements that have been proposed for Congressional approval
have included items which appear to go beyond merely
quantifying those rights. Any additional items come at a cost
to taxpayers and to other tribes that have to fight for
appropriations and for their needs.
So in light of the tight budgets and the increasing water
demands that are out there, how do you balance the need to
settle the tribal water rights with the needs of other tribes
that also require funding? I know Senator Tester mentioned a
piece of legislation.
Mr. Connor. That has been a difficult issue, particularly
for the Bureau of Reclamation. We view the obligations that we
have to implement settlements as fundamental legal obligations
through court settlements that have been authorized and
embraced by the Congress. So they quite frankly, in a budget
situation, have been elevated as a priority as opposed to maybe
in the rural water projects, which are congressionally
authorized, very good projects, incredibly important for those
communities typically involved. A lot of Native American
communities in the Plains area who are receiving waters, and
the funding there has lagged at times within our budget
relative to the priority that we placed on Indian water rights
settlement.
The Chairman. So Mr. Weiner, along those lines, the scope
of the water settlements such as that contained in S. 1125 can
be extensive. This bill authorizes $420 million for the
Blackfeet settlement fund. You go through it and the fund
includes various accounts, I think seven different accounts, we
could go through each of them, but various accounts to improve
Federal water irrigation systems and expand Federal reservoirs.
In the State of Montana they're trying to figure out how much
of this is really for the primary purpose.
Can you explain how each of these proposed accounts, and I
don't want to go through each of the seven, but just generally
how the proposed accounts benefit the tribe or tribal members,
specifically with the Blackfeet Reservation? And I may end up
submitting something more in writing for you.
Mr. Weiner. And I would be happy to supplement my answers
with whatever specificity you would like, Chairman Barrasso.
But certainly I would note that the $420 million figure in S.
1125 actually reflects a reduction of $170 million from the way
that this bill was originally introduced, as S. 3290, in 2010.
And that reflects a very difficult process that the tribe in
particular, but the State also participated in with the
Administration, pursuant to the criteria and procedures, to
look very carefully at the balance of spending and the projects
being identified in the settlement.
In addition, as part of that process, the State agreed to
increase its contribution to settlement by 40 percent. In fact,
we have not only authorized our $49 million contribution, but
fully funded it.
So we do believe that the projects that are identified, and
the spending that is identified in this bill is not in any way
expansive or an over-large allocation. In fact, in many ways it
reduces some of the benefits that we hoped to see from this
settlement to the Blackfeet Tribe.
But in terms of the accounts themselves that you
referenced, the major funding that is contemplated in S. 1125
has to do with addressing the deferred maintenance backlog for
the Blackfeet irrigation project and has to do with the
construction of a municipal-rural-industrial drinking water
system for the reservation, to ensure that Blackfeet tribal
residents in fact enjoy access to safe, potable drinking water,
which is a real, real challenge and something that we certainly
believe that nobody, Indian, non-Indian, no America should be
without. And it is a very important component of this
settlement.
There are smaller amounts of money; obviously no amount of
money is inconsiderable in this budgetary climate. But there
are smaller amounts of money to help the tribe address resource
administration issues, so that again, what the settlement
contemplates to allow tribal and State water resource managers
to actually be able to administer and implement this settlement
is capacitated.
In addition, there is a Federal contribution to go with the
State contribution to allow for the rehabilitation of a piece
of infrastructure on that Blackfeet irrigation project in a way
that allows a trans-basin diversion of some of that water to
help resolve the water conflict on Birch Creek, which is the
stream that I mentioned which is the southern boundary stream
of the Blackfeet Reservation, that serves both the Blackfeet
irrigation project and the Pond Oreille County Canal and
Reservation Company, which is that Carey Land Act project that
I mentioned.
I certainly understand it is a significant amount of money.
There are no two ways about it. And certainly that funding is
one of the challenges that all these settlements face when they
come to Congress.
The Chairman. Mr. Connor, did you want to jump in on that?
Mr. Connor. I just wanted to double down on one of the
points Jay made real quick. Because of those stresses on the
Federal budget, we have a responsibility to fulfill the needs
for an Indian water rights settlement in as efficient a manner
as possible. A lot that we have done in the last couple of
years, particularly on Blackfeet, have been surrounding what
should be the Federal contribution, what should be the State
contribution. We have had good partners and good discussions
along those lines.
But it is fundamental to the success that we do it as
efficiently as possible. And I think what has happened in the
last few years is it demonstrates support between the
Administration and the Congress for Indian water rights
settlements, demonstrates that there is a willingness to move
forward and fund these things.
So it has facilitated negotiations to tighten up those
contributions.
Mr. Weiner. Senator, if I may make one additional point.
The Chairman. Sure.
Mr. Weiner. Thank you. One of the other reasons, over time,
that these settlements seem to expand in cost is that as you
are well aware, the backlog of deferred maintenance for
irrigation projects, for drinking water projects simply
continues to grow. It is one of the reasons Montana strongly
supports things like your Irrigate Act, and like Senator
Tester's Rural Development bill. Because to the extent that the
Congress is able to make programmatic funding available for
those things, that will significantly help, as we move forward,
take the burden off some of these Indian water rights
settlements, which right now are almost the only game in town
for tribes to receive funding for these absolutely critical
pieces of infrastructure.
The Chairman. And not just for tribes; for the non-tribal
communities nearby. Because water is the lifeblood in the West.
It is important to tribes and also the surrounding non-tribal
communities, specifically and particularly ranching, farming
communities. So that is kind of the follow-up question, how do
the settlements that your State reach with tribes address the
impacts to other water users who are not necessarily a party to
the settlement but are concerned about losing their water
supplies?
Mr. Weiner. That concern is essentially baked into the
Montana process. The Compact Commission's job, essentially, is
to try to reach these quantification agreements in a way that
protects all of these individual, State-based water users.
Essentially, one of the major cost-effective innovations of the
Montana process is that when it works, and we believe it has
worked across the board, it spares all those individual water
users from needing to lawyer up from engaging in a relationship
of conflict with a tribe or tribes. Through the settlement
process we are able to ensure their protection. That is one of
the major reasons that the State contributes significantly to
these settlements.
The Chairman. Thank you. Senator Lankford?
Senator Lankford. I have just one quick question, it is an
expansive question.
Mr. Connor, let me ask you about Bureau of Reclamation
issues within the state. The State is making a decision to move
water from one reclamation area to another reclamation area,
whether that be a tribal area or non-tribal area. What is the
process to do that? If a State said, we need to move water that
is currently sitting in this reclamation area to another one,
but it is within the State, fulfilling State requirements,
fulfilling settlement agreements on tribal areas? What is the
process on that?
Mr. Connor. Typically, the process started when the
reclamation project was developed. Initially we went forward,
we being the Bureau of Reclamation, and apply to the State for
a State permit to develop that reclamation project. At that
point in time, we are either working with the State to
determine how that project would receive water in the face of
senior water users who are already there. Then once we had a
reclamation project and we had that water supply available,
typically they are on par, the water users are on par within
the project. We work with the State continually to acknowledge
our contract rights versus State water rights.
It is not typically part of the ongoing operations issues,
once the project is constructed. Usually those issues were
worked out prior.
Senator Lankford. You are talking about decades ago?
Mr. Connor. Exactly.
Senator Lankford. So what happens if just perchance, maybe
population changes in an area after decades and decades and a
State wants to move water from one reclamation area to another
one? State pays for it? State does it? What is the process for
that? Is that permissible or non-permissible?
Mr. Connor. Anything is permissible with respect to
improved water management. We are having these discussions in
the State of California right now, given the stresses on the
system.
Typically, there are legal rights that people have,
contractual rights. But we deal with reality, we try and create
an incentive or create by agreement a mechanism by which the
transition can take place.
Senator Lankford. As these settlements come through for
Congressional approval, would a State make moving water from
one reclamation area to another, or would that require
Congressional approval? Or is that something that would come
back through the Bureau of Reclamation and be done?
Mr. Connor. Typically an action like that would have to
require Congressional approval.
Senator Lankford. So it takes an act of Congress,
literally, to move water from one area to another area within a
State. Do you know how common that is, as far as to be able to
move from one reclamation area to another one, abiding by
compacts, settlements, all those things?
Mr. Connor. It is not very common, and I will tell you why.
Most of the arrangements that we are entering into in moving
water between entities are year-to-year operational decisions.
Nobody wants to, well, I would say it is a rarity when people
want to relinquish their long-term rights to water. Short-term
transactions are something that people are interested in based
on their own economic needs, based on the realities of drought
situations.
So it is a rarity to do a fundamental shift like that. More
and more it is institutional short-term arrangements.
Senator Lankford. Thank you.
The Chairman. Thank you, Senator Lankford.
Mr. Macarro, your written testimony noted that to assist in
funding of these Indian water settlements that the
Administration's involvement was critical. I think you
specifically stated that the Administration must find ways to
finalize the negotiations, so the Department can publicly and
through written letters support the water settlements.
What do you think have been barriers to achieving that
support that you talk about?
Mr. Macarro. First of all, I think most tribes everywhere
would agree that Congress acting on water settlements,
proactively acting as a mandate and not a choice, and I say
that with regard to funding, that it shouldn't be an issue of
well, we don't have funding in the budget this year or this
cycle, so we won't fund anything. My view is that it should
happen every time.
Beyond that, in 2010, first of all, let me start out by
saying that Indian water settlements of the past were able to
obtain letters of support from Interior. I would like to thank
Deputy Secretary Connor's efforts and commitments with water
settlements, because he was a big part of that.
Now, it is my understanding that the support, with regard
to the barriers question, the support process involves Interior
working both with Justice and OMB to determine the benefits
under each settlement. More specifically, the Federal
contribution reflects the Federal programmatic responsibility
to each tribe for water development and management, as well as
the potential liability for claims by the tribe.
This type of analysis and calculation has some level of
complexity that is inherently part of the process. So from
Pechanga's perspective, we are at the tail end of this process
and are at a place where Interior should be able to make that
determination for our settlement in the near future. There are
lots of moving internal parts, some of which we see and can
participate in and many of which we can't. They are part of the
various agencies' work.
Especially one of the dangerous places, I think, is when an
Administration changes. The handoff of these issues sometimes
falls between the cracks. So there is a lack of continuity as
well that feeds into that. I would identify that as a barrier
as well.
The Chairman. And it is sometimes not just even a change of
Administration, it can be a change in an administrator or
somebody that's in charge of a specific component or project.
Mr. Macarro. Exactly. I spoke to certain personalities that
actually are deeply involved in many of these things until they
are gone, then somebody comes in and there are new styles, new
organization.
The Chairman. Lack of information, lack of knowledge, has
to get ramped up again.
Mr. Macarro. Absolutely.
The Chairman. Thank you very much.
Mr. Moore, in your written testimony you raised a concern
that Indian tribes need to have a level playing field when
addressing their water rights claims. You said tribes need to
be given access to all necessary data and information. Could
you just elaborate a little bit on the types of data and
information that the Indian tribes need in these cases?
Mr. Moore. Yes, Mr. Chairman. The first thought that comes
to my mind is the kind of information that the U.S. Geological
Survey, USGS, can generate. And they often do that in a
partnership kind of relationship with state and local water
entities. If the USGS made resources available or through the
Interior Department funding resources were made available to
USGS to do targeted studies for Indian tribes, that would be a
tremendous benefit.
Off-the-shelf kind of information and access to data that
is already in existence through USGS reports, just making that
available to Indian tribes would also be of tremendous help,
just so the tribes and their water resource managers and their
policy people can begin to understand the playing field that
they are operating in.
The Chairman. Thank you.
There are no other questions, so I would let you know that
members are still able to submit written follow-up questions
for the record, so the hearing record will be open for the next
two weeks. I want to thank all of you for being here today, for
your time and for your testimony.
The hearing is adjourned.
[Whereupon, at 3:39 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Sherry Counts, Chairwoman, Hualapai Tribe
I am Sherry Counts, Chairwoman of the Hualapai Tribe. I appreciate
the opportunity to submit this written testimony in conjunction with
the Senate Committee's ongoing oversight of Indian water settlements.
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.
At this oversight hearing on Indian water settlements, I want to
describe the efforts the Tribe has made and continues to make to
quantify its water rights reserved under federal law in order to
develop a secure water supply for its future needs. I also want to
offer some suggestions on how Congress could improve its process for
considering and enacting Indian water settlements. First, let me give
some background on our Reservation and its water needs.
1. Background on the Hualapai Reservation
Our Reservation has no significant surface streams other than the
Colorado River, and very limited groundwater resources. While the Tribe
is presently able to supply its main residential community, Peach
Springs, with groundwater, that groundwater supply comes from an
aquifer that extends for several hundred square miles outside our
Reservation, and the Tribe's well levels are currently declining. Most
groundwater elsewhere on the Reservation is thousands of feet below the
surface. Consequently, the Colorado River is the only feasible water
supply for satisfying the future needs of the Reservation.
The Tribe has over 2,300 members. We have constructed and operate
Grand Canyon West, a world class tourist development on the Reservation
on the western rim of the Grand Canyon. Grand Canyon West currently
employs over 300 tribal members (and another 300 non-Indians) and hosts
about 1,000,000 visitors a year. But it is located a two-hour drive
from Peach Springs, where virtually all of the tribal members on the
Reservation live. Thus tribal employees at Grand Canyon West have daily
commutes of four hours a day, and even longer in inclement weather.
The Tribe also employs approximately 100 other tribal members in a
tribally-owned hotel in Peach Springs and a seasonal Colorado River
rafting enterprise operated by the Tribe. Without conducting any
gaming, our Tribe is moving towards achieving full employment for our
members and economic self-sufficiency.
However, the lack of water on the Reservation is the major obstacle
to our reaching these goals. The nearest groundwater to Grand Canyon
West is 35 miles away. 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 at Grand Canyon West and add one or two hotels, an RV park
and a campground that would provide additional jobs to tribal members
and revenues to the tribal government. Water at Grand Canyon West would
also support the development of a residential community there, so our
tribal members would not have to commute four hours each day from Peach
Springs to get to their jobs.
2. The Tribe's Ongoing Efforts to Settle Our Reserved Water Rights
Claims
Over the past four years, we have been negotiating a comprehensive
settlement of all of the Tribe's reserved water rights with the Justice
and Interior Departments, the State of Arizona and major private
entities in Arizona. The Tribe hopes to submit this settlement to
Congress as soon as we resolve about a dozen outstanding issues with
the Federal, State and private entities involved in the negotiations--
hopefully later this year.
In addition, the Tribe, the United States and Freeport Minerals
Corporation concluded an agreement last year settling our water rights
claims in the Big Sandy Creek, a tributary of the Bill Williams River,
south of our main Reservation. This settlement was approved by Congress
last December in the Bill Williams River Water Rights Settlement Act of
2014, Public Law 113-223. We thank this Committee for its favorable
consideration of that legislation, which provided many benefits to the
Hualapai Tribe.
First, as a result of this legislation, the two major landowners
and water users in Big Sandy Creek--the United States and Freeport
Minerals Corporation--confirmed federally reserved water rights for the
Tribe totaling 300 acre feet a year (afy) relating to a 60-acre parcel
of Tribal land along Big Sandy Creek that was added to the Hualapai
Reservation by an 1911 Executive Order. Freeport and the United States
also confirmed federally reserved water rights totaling 394 afy for two
off-reservation trust allotments issued to Hualapai tribal members in
the Big Sandy. The agreements ratified by this legislation protect
these water rights by also requiring Freeport to provide supplemental
water to the tribal and allotted lands in certain circumstances to
ensure the Tribe and allottees can fully utilize these reserved water
rights.
Second, the agreements provide vital protections for the Tribe's
water rights on fee land it owns along Big Sandy Creek, called Cholla
Canyon Ranch. The Tribe has applied to the Secretary of the Interior to
take the Ranch into trust for it, and Freeport has agreed to support
that application. This Ranch contains a spring that is sacred to the
Tribe, Cofer Hot Spring, the flows of which have diminished in recent
years due to pumping by Freeport. In 2012, Freeport ceased all but the
most minimal pumping in the aquifer that feeds Cofer Hot Spring, and in
the settlement agreements, Freeport agreed permanently to cease pumping
more than minimal amounts from that aquifer. Under the agreements and
legislation, Freeport also gave the Tribe a right of first refusal to
purchase Freeport's lands at Banegas Ranch and surrounding land that
Freeport owns, in order to protect the flow of Cofer Hot Spring.
Pursuant to the agreements, Freeport will record a binding covenant in
the county land records that will impose the same pumping limitations
on any future purchaser of any portion of Banegas Ranch, should
Freeport decide to sell and should the Tribe decide not to buy these
lands.
In addition to these important benefits that the Settlement Act
provides for the Hualapai Tribe in the Big Sandy Creek, as part of the
settlement Freeport also contributed $1 million to the Tribe for the
purpose of completing an essential study the Tribe had initiated (with
its own funds and with a grant from the Bureau of Reclamation) to
determine the feasibility and costs of various infrastructure projects
to bring Colorado River water to the Hualapai Reservation. This
contribution by Freeport allowed the Tribe to complete this study last
year, which is a prerequisite to finishing its ongoing negotiations for
the comprehensive settlement of its Colorado River water rights.
Lastly, when this legislation becomes fully effective later this
year, Freeport will contribute a substantial additional sum to a tribal
economic development fund that the Tribe will use to purchase rights to
use Colorado River water. The Settlement Act specifically provides that
these two contributions by Freeport will count as non-federal
contributions to the final comprehensive Colorado River water rights
settlement the Tribe is negotiating with federal and state parties.
3. Suggestions on How Congress Might Improve Its Consideration and
Enactment of Indian Water Settlements
As I understand it, Congress has enacted approximately thirty
Indian water rights settlements in the past three decades. I believe
that this slow and sometimes tortuous process--resulting in an average
of one settlement per year--could be improved if Congress focused more
directly and sharply on meeting the sometimes desperate needs of Indian
reservations for water.
Of course, the basic water needs of particular tribes vary greatly,
and must be considered separately for each tribe. I have focused on the
specific future needs and problems on my Reservation, because I know
these needs and problems the best. I know that many tribes lack sources
of water on their reservations that are sufficient to meet their basic
needs for drinking water. Just a decade ago, the United States Civil
Rights Commission reported that approximately half all Indian homes on
reservations lacked full kitchens and bathrooms with drinking-quality
running water! Congress long ago recognized that tribal economic
development relies on community stability and basic governmental
services, specifically including safe drinking water and adequate waste
disposal systems. S. Rep. No. 100-274, at 4 (1987), reprinted in 1988
U.S.C.C.A.N. 2620, 2623 (Indian Self-Determination and Education
Assistance Act Amendments of 1987). Ample safe drinking water for
domestic and municipal uses is an absolute necessity for tribes to
become economically self-sufficient and to participate meaningfully in
the modern American economy.
Some tribes have sufficient municipal and domestic water supplies
to meet their current needs, but face threats to their water supplies
from surface and/or groundwater diversions by neighboring communities
or irrigation projects. Other tribes face the problem of antiquated
water delivery systems for their irrigated agriculture or municipal and
domestic supplies.
Virtually all Indian tribes have far less water available to them
than is necessary for the tribe to become economically self-sufficient.
This has occurred despite the strong recognition in the two controlling
Supreme Court cases--Winters v. United States, 207 U.S. 564 (1908),
decided over 100 years ago, and Arizona v. California, 373 U.S. 546,
599-601 (1963), decided over 50 years ago--that Indian tribes have
water rights which are superior to the rights of virtually all non-
Indian water users because of the early use and occupancy of their
Reservations by the tribes. These and other court decisions firmly
establish that tribal water rights are protected by federal law and
that the United States, which holds title to these rights for the
benefit of the tribes, has a trust responsibility toward them.
Despite this very favorable legal framework, almost all tribes,
including mine, lack the water they need to attain economic self-
sufficiency today because Congress and the Executive Branch have failed
to adhere to the legal principles set forth by the courts in Winters,
Arizona v. California and other cases recognizing the superiority of
tribal water rights.
For most of the 20th century, Congress appropriated millions of
dollars each year for western states to construct water projects
operated under federal reclamation laws, almost entirely to provide
water to non-Indians. And the Bureau of Reclamation, an Interior
Department agency, constructed and operated most of these non-Indian
irrigation systems, or contracted with irrigators within each Project
to administer it. The legally superior Indian rights to water on these
same river systems, recognized by the Supreme Court in Winters, were
largely ignored. In the cases that did adjudicate Indian water rights,
the U.S. Justice and Interior Departments usually failed to properly
assert reserved rights for tribes as set forth in the Winters case.
As the National Water Commission's Final Report summarized the
situation in the 1970s:
During most of this 50-year period [following the decision in
Winters v. United States, 207 U.S. 564 (1908)], the United
States was pursuing a policy of encouraging the settlement of
the West and the creation of family-sized farms on its arid
lands. In retrospect, it can be seen that this policy was
pursued with little or no regard for Indian water rights and
the Winters doctrine. With the encouragement, or at least the
cooperation, of the Secretary of the Interior--the very office
entrusted with protection of all Indian rights--many large
irrigation projects were constructed on streams that flowed
through or bordered Indian Reservations, sometimes above and
more often below the Reservations. With few exceptions the
projects were planned and built by the Federal Government
without any attempt to define, let alone protect, prior rights
that Indian tribes have had in the waters used for the projects
. . . In the history of the United States Government's
treatment of Indian tribes, its failure to protect Indian water
rights for use on the Reservations it set aside for them is one
of the sorrier chapters.
NAT'L WATER COMM'N,WATER POLICIES FOR THE FUTURE--FINAL REPORT
TO THE PRESIDENT AND TO THE CONGRESS OF THE UNITED STATES pp.
474-75 (Washington: Government Printing Office, 1973).
While things have improved for those tribes affected by
congressionally approved water settlements in recent decades, these
settlements have benefitted only a relatively few tribes. The vast
majority of tribes today still lack enough water to live adequately.
This can change only if Congress now establishes the overriding
policy goal of meeting the existing and future needs on Indian
Reservations for a sufficient water supply to allow each tribe to
achieve economic self-sufficiency. While the present and future needs
of each Reservation vary, Congress should establish a national Indian
water policy to address and meet those needs. This should be done
because sufficient water supplies are a necessary condition of lifting
tribes out of poverty and enabling the tribes to achieve a living
standard comparable to other Americans. My Tribe is doing everything we
can to achieve that goal, but we cannot reach it without the delivery
of water from the Colorado River that constitutes over 100 miles of our
Reservation border.
I recognize of course that the policy I propose will cost money.
The monetary cost of Indian water settlements is, I believe, a primary
reason there have been so few settlements. And I recognize that one
reason our settlement agreement in the Big Sandy Creek was enacted by
Congress last year was that it required no federal monetary
contribution. Bringing Colorado River water to our Reservation, by
contrast, will have a significant cost.
To implement the national Indian water policy I propose, I believe
that Congress should establish a comprehensive fund with appropriated
monies bearing interest and held separately in the U.S. Treasury for
the sole purpose of funding settlements of tribes' reserved water
rights claims. Establishing this kind of dedicated fund is necessary to
improve and broaden the implementation of water settlements and, in a
reasonable number of years, to bring water to all reservations. The
necessity for tribes to secure individual appropriations has, in the
past, been a costly and time consuming process that has greatly delayed
and reduced the effectiveness of the settlements that have been
approved by Congress. Even after a settlement has been reached and
ratified by Congress, it can fail as a practical matter if Congress
delays in appropriating the funds needed to construct the
infrastructure to be built under the terms of the very settlement it
ratified, or because the Interior Department delays in taking other
actions necessary to implement the settlement. Another problem with the
existing ad hoc funding system is that funding for settlements comes
out of the existing Interior Department's budget which reduces funding
available to meet other Departmental needs and priorities--which mostly
results in reducing funding for other federal Indian programs. These
problems would be largely rectified if a comprehensive fund were
established outside existing Interior budgets so that the federal costs
of any settlement approved by Congress are immediately available. The
fund should be initially sized to fund both existing settlements and
any newly negotiated settlements over a set time period, say the next
five or ten years, and then replenished periodically thereafter.
Conclusion
I appreciate the opportunity to present this written testimony and
would be delighted to work with the Committee both on the comprehensive
resolution of the Hualapai Tribe's Colorado River water rights and on
the broader issues involved in establishing a national Indian water
policy. Thank you for your help in the past and for considering the
views of my Tribe.
______
Prepared Statement of Vernon Finley, Chairman, Confederated Salish and
Kootenai Tribes of the Flathead Reservation Tribal Council
On behalf of the Confederated Salish and Kootenai Tribes of the
Flathead Reservation I would like to thank Chairman Barrasso, Vice
Chairman Tester and Committee members for holding an oversight hearing
on the important subject of ``Addressing the Needs of Native
Communities through Indian Water Rights Settlements.'' As Vice Chairman
Tester noted at the hearing, the Salish and Kootenai Tribes recently
completed negotiations concerning the Tribes' reserved and aboriginal
rights with the State of Montana and the United States. We are pleased
to report that our Compact was ratified by the Montana Legislature last
month after years of complex negotiations.
Our Compact has now been taken under review by the Departments of
Interior and Justice. It is our hope that we will soon be asking
members of the Committee to introduce legislation to ratify our Compact
in the months ahead. However, we are keenly aware of the pace at which
Interior and Justice have reviewed prior water settlements. We have
heard from many of our sister tribes that water settlement review has
historically been a slow and difficult process for tribes. Accordingly,
we appreciate Senator McCain's efforts to seek firm commitments by
Justice and Interior to diligently review Indian water settlements. We
similarly appreciate Deputy Secretary Connor's commitment on behalf of
the Department of Interior to get the job done.
Throughout the hearing many of the Members and the witnesses noted
that Indian water settlements save the American taxpayer the cost and
uncertainty of expensive, protracted, and complex litigation. At the
same time settlements allow the parties to obtain benefits that cannot
be achieved through litigation.
Our Compact with the State of Montana does all of this and more. It
quantifies the aboriginal and reserved water rights of the Tribes,
while avoiding decades of costly and uncertain litigation involving
water rights claimants across roughly two-thirds of the State of
Montana. It resolves the complex scenario on the Flathead Reservation
where most water originates on Tribal lands, flows through non-Indian
lands, and then back to Tribal lands.
The Compact also confirms a water right in the name of the Tribes
for the massive Flathead Indian Irrigation Project, benefitting Indian
and non-Indian water users within that Project by securing the most
senior water right in the system for the Project. It further ensures
water delivery to water users in the Project without exhaustive
litigation. It also commits most of the State's monetary contribution
to settlement to improving the Flathead Indian Irrigation Project,
which is primarily used by non-Indian irrigators, providing a
substantial benefit to the non-Indian agricultural community on the
Reservation and the region's economy overall.
Our Compact confirms the Tribes' rights to water in off-Reservation
streams and rivers where Tribal members have historically hunted and
fished, while protecting existing uses of water. This component of the
Compact was widely supported by Montana's fishing community who
recognized that protecting fish habitat is good for all people for both
recreation and subsistence. The Compact also eliminates the need for
the implementation of restrictive measures under the Endangered Species
Act, ensuring local control of habitat, rather than federal overreach.
Importantly, the Compact provides for shared shortages of water in
dry years, rather than simply requiring all water to go to the senior
water rights holder. As the senior water rights holder with an 1855
priority date, this is a significant concession by the Tribes.
And the Compact makes tens of thousands of acre feet of water
available from the Hungry Horse Reservoir that was previously
unavailable. This water can be used for municipal, domestic,
commercial, or industrial purposes by non-Indians under nominal lease
rentals from the Tribes.
There are many other benefits achieved through our Compact that are
too numerous to recount here-none of which could have been achieved
through litigation. This Compact was only reached after significant
concessions by the Tribes and the creativity allowed in negotiation. We
were very pleased that the Montana Legislature recognized the benefits
in the Compact and the Tribes' concessions and ratified it this April.
But it is important that our Compact receives swift review by
Interior and Justice, and ultimately ratification by Congress. Under
the terms of the Compact, the Tribes may withdraw if Congress fails to
ratify within four years of state ratification. This is only fair. The
Tribes cannot be expected to make concessions and waive claims if the
other parties aren't committed to approving the settlement and funding
it.
In addition, the long and sometimes contentious process of
negotiation and State ratification unfortunately created community
rifts both on and off-Reservation. In order to support efforts to heal
our communities, which have already begun, the interests of all
Montanans would be best served by not prolonging the path to
Congressional consideration and approval any more than necessary.
Moreover, the Flathead Indian Irrigation Project continues
deteriorate with growing maintenance needs that lack adequate funding.
Without state and federal contributions to settlement, the project will
continue to deteriorate and stifle the region's agricultural producers
and economy generally. A deteriorated and leaking Project also creates
tension between irrigation interests and the need for instream flows
for the on-reservation fishery. Certainly one of the benefits of the
Compact is the repair and increased efficiency of the Project and the
amelioration of this particular conflict.
And we agree with Mr. Moore's comments at the hearing that Congress
must consider its solemn trust responsibility to the Tribes stemming
from promise made under the Hellgate Treaty of 1855. Congress must fund
damage claims, fix infrastructure, and confirming the Tribes' water and
treaty rights, including the Tribes' right to lease water thereby
improve the economy of the State we live in.
For all of these reasons, we were very pleased with the leadership
of Chairman Barrasso and Vice Chairman Tester for calling this
important hearing. But the hearing highlighted the work to be done in
the months ahead by all of us. We call upon the Committee to continue
to work to find solutions to swiftly move settlements through Congress.
We strongly support the efforts of Chairman Barrasso, Vice Chairman
Tester, Senator Daines and other key Senators in introducing S. 438,
the IRRIGATE Act. This bill will begin to address the longstanding
maintenance backlog on the Flathead Indian Irrigation Project which is
in a state of disrepair. Improvements to the Project will deliver more
water to fields and leave more water in streams for crucial fish and
aquatic habitat.
We also strongly support the efforts our of own Senators Tester and
Daines and other Senators in their bill (S. 1365) to authorize the
Secretary of the Interior to use designated funding to pay for
construction of authorized rural water projects, and for other
purposes. This bill is widely supported by Indian tribes throughout
Montana because it addresses two important areas for funding: the
completion of authorized rural water projects and Indian water
settlements. This bill saves taxpayers money by allowing timely
completion of infrastructure projects without bearing the inflationary
costs of a stalled project that accrue over decades of construction. It
also creates a mechanism for water settlement projects, especially for
settlement implementation, in Indian country going forward. We urge the
Members of the Indian Affairs Committee to work with the leadership of
the Senate Energy and Natural Resources Committee to swiftly hear this
bill and it advance it for adoption this session.
Finally, we call upon the Committee to continue to find mechanisms
to fund Indian water settlements and operational, maintenance, and
replacement costs of both existing and new projects. In the Hellgate
Treaty we relinquished millions of acres in the Pacific Northwest for
non-Indian settlement, and in our Compact we made vast concessions of
our rights. Now we ask Congress to live up to its promises and fund
settlements that are fair for the benefits of our nation's Indians and
all Americans.
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