[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'').
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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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