[Senate Hearing 116-338]
[From the U.S. Government Publishing Office]
S. Hrg. 116-338
S. 2165, S. 2716, S. 2912, S. 3019, S. 3044, S. 3099, AND S. 3100
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
JUNE 24, 2020
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLISHING OFFICE
42-357 PDF WASHINGTON : 2021
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COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska JON TESTER, Montana,
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana CATHERINE CORTEZ MASTO, Nevada
MARTHA McSALLY, Arizona TINA SMITH, Minnesota
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on June 24, 2020.................................... 1
Statement of Senator Cantwell.................................... 8
Statement of Senator Cortez Masto................................ 11
Statement of Senator Daines...................................... 4
Statement of Senator Heinrich.................................... 6
Statement of Senator Hoeven...................................... 1
Statement of Senator McSally..................................... 9
Statement of Senator Murkowski................................... 7
Statement of Senator Tester...................................... 10
Statement of Senator Udall....................................... 3
Witnesses
Lacounte, Darryl, Director, Bureau of Indian Affairs, U.S.
Department of the Interior..................................... 11
Prepared statement........................................... 12
Petty, Hon. Timothy R., Ph.D., Assistant Secretary, Water and
Science, United States Department of the Interior.............. 14
Prepared statement........................................... 15
Appendix
Association on American Indian Affairs, prepared statement....... 43
Beeter, Evelyn, Mt. Sanford Tribal Consortium, prepared statement 40
Bovee, Deana M., Tribal Chairwoman, Susanville Indian Rancheria,
prepared statement............................................. 32
Chavarria, J. Michael, Chairman, All Pueblo Council of Governors,
prepared statement............................................. 37
Confederated Tribes of Warm Springs, prepared statement.......... 44
Echohawk, John E., Executive Director, Native American Rights
Fund, prepared statement....................................... 36
Edmondson, Paul, President/CEO, National Trust for Historic
Preservation, prepared statement............................... 35
Feller, Susan, President & CEO, Association of Tribal Archives,
Libraries and Museums, prepared statement...................... 46
Friend, Hon. Billy, Chief, Wyandotte Nation, prepared statement.. 29
Harris, Hon. William, Chief, Catawba Indian Nation, prepared
statement...................................................... 31
Kitka, Julie, President, Alaska Federation of Natives, prepared
statement...................................................... 42
Korthuis, Vivian, CEO, Association of Village Council Presidents,
prepared statement............................................. 30
Letters and resolutions submitted for the record
Martindale, Kim, President, Authentic Tribal Art Dealers
Association (ATADA), prepared statement........................ 54
McKeown, C. Timothy, Ph.D, Repatriation Advisor, National
Association of Tribal Historic Preservation Officers, prepared
statement...................................................... 39
Mora, Sr., Hon. Robert A., Governor, Pueblo of Tesuque, prepared
statement...................................................... 47
Payment, Aaron, President, Midwest Alliance of Sovereign Tribes,
prepared statement............................................. 50
Response to written questions submitted to Hon. Timothy R. Petty,
Ph.D. by:
Hon. Steve Daines............................................ 131
Hon. Tom Udall............................................... 128
Sealaska Heritage Institute: Tlingit, Haida, and Tsimshian,
prepared statement............................................. 33
Swenson, Ray, Chairman, Mission Irrigation District, Federal
Flathead Irrigation and Power, prepared statement.............. 65
Timm, Lt. Col. Glenn, (USAF(ret), Polson, MT, prepared statement. 64
U.S. Environmental Protection Agency, prepared statement......... 51
Vallo, Hon. Brian D., Governor, Pueblo of Acoma1, prepared
statement...................................................... 59
Weahkee, RADM Michael D., Director, Indian Health Service, U.S.
Department of Health and Human Services, prepared statement.... 48
S. 2165, S. 2716, S. 2912, S. 3019, S. 3044, S. 3099, AND S. 3100
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WEDNESDAY, JUNE 24, 2020
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
562, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. Good afternoon. I will call this legislative
hearing to order.
Before we begin, I want to remind those members who are
connecting with us remotely to please mute your microphone.
This will cut down on the static feedback in the hearing room.
In addition to the Senators in the room right now, also
attending remotely are Senators McSally, Tester, Cortez Masto,
and Murkowski.
Today the Committee will receive testimony on seven bills,
S. 2165, the Safeguard Tribal Objects of Patrimony Act of 2019;
S. 2716, A Bill to Amend the Grand Ronde Reservation Act, and
for other purposes; S. 2912, the Blackwater Trading Post Land
Transfer Act; S. 3019, the Montana Water Rights Protection Act;
S. 3044, the Western Tribal Water Infrastructure Act of 2019;
S. 3099, the Southeast Alaska Regional Health Consortium Land
Transfer Act of 2019; and S. 3100, the Alaska Native Tribal
Health Consortium Land Transfer Act of 2019.
On July 18th, 2019, Senator Henrich introduced S. 2165, the
Safeguard Tribal Acts of Patrimony Act. This legislation is
centered on providing additional legal protection to Native
American tribal artifacts and sacred objects, by creating an
explicit prohibition on exporting cultural heritage obtained in
violation of the Native American Graves Protection and
Repatriation Act, Archeological Resources Protection Act, or
the Antiquities Act.
The bill also sets forth an exporter certification system
to accompany this export prohibition. Such a prohibition makes
it possible for tribes to utilize other countries' domestic
laws and law enforcement mechanisms to regain their cultural
heritage.
The STOP Act confirms the President's authority to enter
into agreements under a 1970 international treaty in order to
request the return of tribal cultural heritage from other
countries. The authorization of such agreements, paired with
the export prohibition and export certification system, will
ensure the United States has the tools necessary to utilize
this treaty.
The STOP Act also creates a Federal framework to support
the voluntary return of Native American tangible cultural
heritage. This includes establishing a referral program at the
Department of Interior that will assist individuals in finding
a tribe with a cultural affiliation to tangible cultural
heritage for the purposes of proper return. Lastly, S. 2165
creates a Federal working group to ensure coordination between
Federal agencies and a tribal working group to make
recommendations and request agency action to assist in
returning cultural items to the tribe.
As part of the record for this bill, I have asked the
Department of State and the Department of Justice to send their
testimony on this bill by July 1st. In addition, my staff has
also been in touch with the Department of Homeland Security to
also secure testimony for the record on this bill.
We have also received testimony from the Authentic Tribal
Art Dealers Association, as well as from tribal leaders for the
Department of Interior's testimony on the bill today.
On October 28, 2019, Senators Merkley and Wyden introduced
S. 2716, A Bill to Amend the Grand Ronde Reservation Act and
For Other Purposes. S. 2716 amends the Grand Ronde Reservation
Act and is intended to resolve an error created by an 1871 land
survey and later 1994 amendment to the Grand Ronde Reservation
Act. The land survey left out 84 acres of the original tribe's
reservation. This land became known as the Thompson Strip. The
1994 amendment included broader language that restricted
compensation for any future land claims made by the tribe.
The bill will allow for the Confederated Tribes of Grand
Ronde to relinquish its claims only to the Thompson Strip
located in Oregon rather than all land claims, as the 1994
amendment made.
On November 20, 2019, Senators McSally and Sinema
introduced S. 2912, the Blackwater Trading Post Land Transfer
Act. This bill will authorize the Secretary of the Interior to
take 55.3 acres of land located in Pinal County, Arizona, into
trust for the benefit of the Gila River Indian Community. Under
this bill, there is a prohibition on Class II and Class III
Indian gaming on the land taken into trust.
On December 11, 2019, Senator Daines introduced S. 3019,
the Montana Water Rights Protection Act. Senator Tester is an
original co-sponsor. The Montana Water Rights Protection Act
would approve and ratify the Confederated Salish and Kootenai
Tribes of the Flathead Indian Reservation, or CSKT water claims
in the State of Montana.
Additionally, the bill authorizes the transfer of the
National Bison Range to be held in trust by the United States
for the benefit of the tribes and rehabilitates and modernizes
the Flathead Indian Irrigation Project. This bill also settles
many other water-related issues between the State of Montana
and CSKT. This Indian water settlement would be the largest in
American history.
On December 12, 2019, Senator Wyden introduced S. 3044, the
Western Tribal Water Infrastructure Act of 2019, which would
expand Section 2001 of the America's Water Infrastructure Act
so that it includes the Columbia River Basin Project. This bill
also extends and authorizes $10 million each year for such
projects.
For this bill, I have asked the EPA to send in their
testimony for the record.
On December 18, 2019, Senators Murkowski and Sullivan
introduced S. 3099, the Southeast Alaska Regional Health
Consortium Land Transfer Act of 2019. S. 3099 directs the
Secretary of the Department of Health and Human Services to
convey 10.87 acres of land located in Sitka, Alaska, to the
Southeast Alaska Regional Health Consortium. The land is
intended to continue to be used for providing health and social
services to the local area, including the 18 Native communities
in the area.
On December 18, 2019, Senators Murkowski and Sullivan
introduced S. 3100, the Alaska Native Tribal Health Consortium
Land Transfer Act of 2019. S. 3100 directs the Secretary of the
Department of Health and Human Services to convey two parcels
of land located in Anchorage, Alaska, to the Alaska Native
Tribal Health Consortium. The land will be used to provide
health and social services through the consortium.
Both S. 3099 and S. 3100 are similar to other bills that
this Committee has approved, previously passed and have been
signed into law in 2013, 2015, and 2018. Therefore, I have
asked IHS to send in their testimony for the record instead of
appearing today.
With that, I would turn to Vice Chairman Udall for his
opening statement.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Mr. Chairman, and thank you for
scheduling today's hearing.
Before I turn to the bills before us today, I want to
acknowledge the ongoing toll of the Covid-19 pandemic and the
impact and what it has done and the impact it has had on tribal
communities across the Country. Over the past months, it has
been devastating to hear that Covid-19 has disproportionately
impacted the most vulnerable. In my home State of New Mexico
and across the Country, tribal communities have been on the
front lines fighting this pandemic, all while bearing the
weight of historic funding gaps for health care infrastructure
and economic resources.
So it is a dereliction of duty, it is unconscionable how
long it took this Administration to allocate the $8 billion in
relief funding set aside for tribal governments under the CARES
Act.
But this is a topic our Committee will be delving into
further next month. Today we will hear testimony on seven bills
that broadly focus on protecting and advancing tribal
sovereignty. Collectively, these bills aim to protect cultural
patrimony, protect tribal interests and land, and fulfill the
Federal trust responsibility to tribes by settling claims to
water rights and authorizing substantial investments in water
infrastructure.
Two of these bills, the Montana Water Rights Project Act,
and the Western Tribal Water Infrastructure Act of 2019 aim to
remedy decades of Federal neglect of water infrastructure
serving tribal communities. Covid-19 has exposed the
consequences of this Federal neglect. The need to frequently
wash hands is hampered when communities lack running water.
Social distancing is challenging when individuals must travel
long distances to common water systems and haul water back to
their homes.
Water and wastewater infrastructure in tribal communities
is critical to responding to this pandemic, and Congress must
consider that fact when moving to any future Covid-19 emergency
response legislation.
As for the Montana Water Rights Project Act, formerly known
as the Kalish Kootenai Water Rights Settlement Act, I am
pleased to hear that the tribe has made significant progress
with the Administration in negotiating this settlement. Indian
water rights settlements are critical to all our western water
users, providing certainty, resolving longstanding conflicts,
and fulfilling the Federal Government's trust responsibility.
But without a dependable source of funding, settlements
like this one cannot be formally implemented. This Committee
agreed when it unanimously approved a ten-year extension to the
Reclamation Water Settlement Fund earlier this Congress. So I
ask that this Committee once again come together to support the
extension of the fund so that tribes can count on funding to
fully implement their water rights settlements now and well
into the future.
Turning to the STOP Act, this bill would prohibit the
exportation of sacred, cultural patrimony and increase
penalties for stealing and illegally trafficking these items.
This is an important piece of legislation that I strongly
support. It will provide tribes and Native Hawaiian
organizations with the tools to prevent theft, sale, and export
of their cultural patrimony.
I would like to thank my New Mexico colleague, Senator
Heinrich, who is here with us today, for his leadership on this
bill and for being a strong advocate for getting this through
the Senate. I want to thank you, Mr. Chairman, for calling this
hearing. I look forward to the testimony from our witnesses
today.
Thank you.
The Chairman. Thank you, Vice Chairman Udall.
Before going to our witnesses, are there other opening
statements members wish to make? Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Mr. Chairman.
In Montana, we have a saying, whiskey is for drinking,
water is for fighting. Settling the century-old Confederated
Salish and Kootenai Tribe, or the CSKT water dispute, has been
no different. For years, this has been a polarizing issue in
Montana. That is why I have been working in the U.S. Senate to
resolve this dispute, negotiating with the tribe, local
leaders, farmers and ranchers, State legislators, county
commissioners, the Administration, and other key stakeholders,
to find a solution, one that permanently settles the CSKT water
dispute, protects the water rights of all Montanans, and avoids
costly litigation.
In November of last year, a Federal circuit court found
that the senior water rights of the tribes and their treaties
to protect fisheries are paramount. In fact, the farmers and
the ranchers in Oregon and northern California went through 18
years of costly litigation. After all that time and money and
uncertainty, the court sided with the tribes in a three-way
decision, a unanimous decision.
In fact, just yesterday, the United States Supreme Court
denied hearing an appeal to this case, and effectively upheld
the lower court's opinion that in-stream flow rights to protect
fisheries are covered under the Winters Doctrine. That decision
provides additional context as to why we are here today. We
have a constitutional duty to bring resolution to the CSKT
water dispute, helping the tribe quantify and realize the water
they are entitled to under the Hellgate Treaty as well as 100
years of Federal court precedence.
We must also provide a practical solution to resolve the
significant liability for the United States to protect
Montana's agricultural economy, and as I mentioned earlier,
protect the water rights of all Montanans. Let me provide some
perspective on this. In 2015, the CSKT and the Federal
Government on the tribes' behalf filed over 10,000 claims in
the Montana Water Court, placing over 1.85 million acres, or 70
percent of Montana's irrigated land, at risk for losing its
water.
This past January, the Montana Water Court's stay on
thousands of these water rights claims, there were five on the
CSKT and the reservation, was set to expire. If that stay
expired, those claims could have been enforced immediately
until a water court judge completes the adjudication of the
claims, which would take decades and jeopardize the vast
majority of the irrigated land in Montana, and casting
uncertainty on landowners' property values for decades.
As a fifth generation Montanan who cares greatly about the
ag economy and water rights of all Montanans, this is a risk I
would not let Montana families and farmers take. With the
introduction of this Federal legislation, the water court judge
agreed to extend that stay for three more years. Both Secretary
of the Interior David Bernhardt and Attorney General Bill Barr
stated the legislation is the best course of action and that
they support legislation versus litigation, which is what this
bill does.
Importantly, this bill protects the water rights of all
Montanans, permanently settles the water rights dispute, and
reduces the cost to the taxpayer, and it creates jobs. A study
has shown that this bill would create thousands of jobs by
injecting $1.9 billion to rehabilitate the Flathead Indian
Irrigation Project, and reserves $10 million specifically for
Lake and Sanders Counties for related road maintenance. In
addition to resolving this longstanding dispute, this is a jobs
and infrastructure bill.
Without this legislation, the Flathead Irrigation Project
could be decommissioned due to Federal statute, water quality
and Endangered Species Act violations, which would cost
taxpayers billions of dollars and would devastate the economies
of Lake and Sanders Counties.
Finally, I also work to ensure there is increased
transparency and accountability for the Federal dollars spent
on this legislation. The Montana Water Rights Protection Act
protects Montana's sovereignty, and reaffirms Montana's State
constitution, stating that Montana owns all of the water within
State boundaries, and it prohibits the sale of water outside
the State of Montana.
This legislation is a product of working for years with
stakeholders from all sides, and a compromise that can move
forward and one that can be signed into law.
With that, Mr. Chairman, I look forward to hearing the
important testimony on this legislation.
The Chairman. Thank you.
Senator Heinrich.
STATEMENT OF HON. MARTIN HEINRICH,
U.S. SENATOR FROM NEW MEXICO
Senator Heinrich. Thank you, Chairman Hoeven, and Vice
Chairman Udall, for holding this hearing on my legislation, the
Safeguarding Tribal Objects of Patrimony, or STOP Act. This
bill's strong bipartisan support gives me hope that we can
solve this problem for the tribal communities that we represent
in the very near future.
The need for this legislation is straightforward. We all
recognize the incredible beauty of American Indian art.
Especially when you live in a State like New Mexico, you can
explore and admire the remnants of ancient cultures in places
like Chaco Canyon and the Gila Cliff Dwellings. You can
discover both traditional and modern art masterpieces created
by Native artists today.
But we can also recognize a clear difference between
supporting tribal artists as opposed to dealing or exporting
items that tribes have identified as essential and sacred
pieces of their cultural heritage. This issue came to
international attention in 2016, when Kurt Riley, then the
governor of the Pueblo of Acoma, learned that a scared
ceremonial shield had been stolen and was about to be sold to
the highest bidder at an auction house in Paris. When Governor
Riley informed me about this robbery of the Pueblo's cultural
patrimony, I called on the State Department to take all
possible action to halt the auction.
Thankfully, intense public outcry and diplomatic pressure
were enough to halt the illegal sale of the tribe's cultural
patrimony. Finally, in November of 2019, more than three years
after the shield was put on the auction block, it was
voluntarily returned to the Pueblo. However, this only happened
through the cooperation of the individual who put the shield up
for auction in the first place.
There is still no Federal law prohibiting the export of
items like the shield and requiring the cooperation of foreign
governments in recovering them. And in many other cases, tribes
in New Mexico and across the Nation have been forced to
effectively pay a ransom or have to stand by and watch the sale
of their priceless religious and cultural items in
international markets.
Under current Federal law, it is a crime to sell these
types of protected Native American cultural objects in the
United States. Unfortunately, however, the penalties in the
Archeological Resources Protection Act and the Native American
Graves Protection and Repatriation Act are not nearly as high
as other similar statutes, like the National Stolen Property
Act. Prosecutions are far too infrequent to deter criminals
from smuggling and selling these objects.
In addition, there is no explicit ban on exporting these
items to foreign countries where they might be sold at auction,
a fact that was cited repeatedly by the French government when
the initially declined to stop the auction of the Acoma shield.
That is why I introduced the Safeguard Tribal Objects of
Patrimony Act, or the STOP Act. The STOP Act increases
penalties for illegally trafficking tribal cultural patrimony
and it also explicitly prohibits the exportation of these
objects and creates an export certification system which will
protect sacred objects under international law.
It also encourages the voluntary return of sacred objects
held in private collections, because the highest priority of
everyone involved in this issue is to see these sacred items
returned home to where they belong.
I appreciate the collaboration and support that we have had
with New Mexico's Pueblos, the Jicarilla and Mescalero Apache
Nations, the Navajo Nation, and tribes across Indian Country,
to craft the STOP Act. I am proud that the STOP Act has the
support of the National Congress of American Indians, the All
Indian Pueblo Council, the United South and Eastern Tribes
Sovereignty Protection Fund, the Great Plains Tribal Chairmen's
Association, the Midwest Alliance of Sovereign Tribes, and many
more individual tribes across the Country. The widespread
support for the STOP Act across Indian Country is unfortunate
evidence of how widespread theft and illegal sales of tribal
patrimony have been.
When I first introduced the Act in 2016, I met with high
school students from the Santa Fe Indian School's Leadership
Institute, who had come to Capitol Hill to advocate for
important issues in their communities. These students shared
with me a position paper they had prepared on the STOP Act and
they also shared personal stories about how important
protecting cultural items is to their generation.
Listening to what these incredible young people had to say
reinforced the urgency with which we must act. We need to take
all possible action to repatriate stolen culturally significant
items to their rightful owners. Again, I am grateful for your
holding this hearing, Chairman Hoeven and Vice Chairman Udall.
I hope that we will work together to pass the STOP Act in the
full Senate as soon as possible.
Thank you.
The Chairman. Thank you.
Senator Murkowski.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman, and to Senator
Udall, for holding this hearing.
We have two Alaska-related bills on the table here, the
Southeast Alaska Regional Health Consortium Land Transfer Act,
as well as the Alaska Native Tribal Health Consortium Land
Transfer Act.
I also want to thank and acknowledge the leadership of
Senator Heinrich on the STOP Act, the Safeguard Tribal Objects
of Patrimony Act of 2019. I am lead co-sponsor of that. As he
has pointed out, there is a great deal of support for that,
certainly including many of the tribes in Alaska.
As to the two land transfers, I do appreciate the
Committee's time and consideration of these bills. These are
necessary to ensure that Alaska's lands and health care
resources are used in the best possible way.
I am reminded when I look at the bills, and one is
transferring 10 acres of land down in Sitka, so that SEARHC can
improve the health care provided within the southeast Alaska
region, and at the Mount Edgecumbe Medical Center campus there
in Sitka. SEARHC services an area over 42,000 square miles of
the southeast Alaska panhandle. There are no roads connecting
most of the rural communities that they serve. So what SEARHC
is seeking to do is construct a hospital that is able to meet
the needs, to improve the patient care and help deliver the
best possible care for generations.
We also recognize that when you have lousy facilities, it
is really tough to get good providers to be recruited. So an
exchange of 10 acres is actually going to help.
As it relates to the ANTHC, again, that is a simple
transfer between HHS and IHS in order to facilitate, again,
better access to care. So this is a transfer of two parcels of
HHS land to the ANTHC. Again, pretty simple, straightforward.
As to the STOP Act, I want to speak very briefly to this.
Senator Heinrich has addressed what the bill does by creating
this certification system that requires exporters of items that
qualify as Native American cultural items or archeological
resources to apply for a certificate, so that we are ensuring
that only legally obtained items are eligible for removal to
other countries.
In Alaska, I have heard on numerous occasions from one of
our strong Native cultural leaders, Dr. Rosita Worl, of the
Sealaska Heritage Institute, she tells the story time and time
again how her people have attempted to repatriate their at.oow,
these are the sacred objects that are held by entities
overseas. And the same situation, they are basically auctioned
off to the highest bidder.
These sacred objects, of course, are very personal to the
Native people, believed to hold or host the spirits of their
ancestors. But then when you see these objects sold to
individuals, oftentimes sold to folk who will place them in
private holdings, further alienating them from the communities
where they belong, it is yet further injustice.
So I think the STOP Act, if we are able to advance this,
will be a step in the right direction, provide the tools to
stop this loss, and really the sorrow, the cultural sorry that
arises with it. So I am pleased to be able to support Senator
Heinrich in this effort.
Thank you for the assistance with these two land transfers.
The Chairman. Thank you.
Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman. I will try to be
brief if I can. We are having important testimony today on
bills that provide tribes water rights and increase the access
to safe drinking water. I would be remiss if I didn't talk
about the need for more resources on these issues, and
providing tribes with clean and safe water infrastructure.
Many tribes throughout the west suffer with inadequate
water infrastructure and lack the ability to improve water
quality. In the State of Washington, clean water has long been
a treaty right for our tribes. Access to clean water is a
crucial aspect of health, culture, and economy of the tribes in
Washington State.
However, most of the tribes still grapple with toxins in
the water and struggle with building the infrastructure
required for safe drinking water. I believe we need to provide
more Federal resources and significantly improve Federal
programs that exist, so tribes do not have to worry about how
to keep their individual members safe. So we will be asking or
submitting questions for Mr. Petty and Mr. LaCounte on how do
we help tribes in this area.
Also, I wanted to mention that the CARES Act did provide a
significant level of assistance to tribes to promote issues
during the pandemic, including funds, at least $10 million,
through IHS, to help meet potable water needs in Indian
Country. However, we need to make sure the money is actually
getting to the tribes so they have access to potable water
during the pandemic.
So I think there is a lot more we should be doing here to
make sure that they have access. I do want to also bring up, as
people may be aware, this spring, the Kalispell Tribe in my
State sued the Federal Government and several corporations over
the contamination in drinking water sources with the chemical
PFAS. This is a very important issue, as my colleagues know. A
recent study by the area's CDC Agency for Toxic Substances and
Disease Registry found that individuals in the same area have
levels of certain PFAS chemicals far higher than the national
average.
So these dangerous chemicals have been found in drinking
water throughout the area. We need to help tribal reservations
make sure that they can take action on these issues. We need to
do everything we can to make sure that we aren't just assuming
the tribal reservations are going to just be dealing with
potable water in the future.
So I know that any time, as you have already said with
several of my colleagues, water, very big issues. But with
Indian Country also, very big issues.
Thank you.
The Chairman. Thank you.
We have several members who would like to make opening
statements who will do so remotely. We will start with Senator
McSally.
STATEMENT OF HON. MARTHA McSALLY,
U.S. SENATOR FROM ARIZONA
Senator McSally. Thank you, Chairman Hoeven and Vice
Chairman Udall. Thanks for holding the legislative hearing
today on S. 2912, the Blackwater Trading Post Land Transfer
Act.
This legislation, while simple, is very important to the
Gila River Indian Community from Arizona. The legislation
authorizes the Secretary of the Interior to take 55.3 acres of
land into trust for the Gila River Indian Community. The parcel
is bordered by the reservation on three sides and is
contiguous, but exterior to the current reservation boundaries.
Normally, such a land in trust acquisition would be a
simple administrative action by the Department of Interior that
wouldn't need Congressional consideration and action. But the
community's 2004 water settlement included a provision that
requires Indian land in trust exterior to the reservation
boundaries to go through Congress.
The land that will be taken into trust has historically and
culturally been important to the community. The Blackwater
Trading Post existed on this land in one form or another since
at least 1926. The trading post is similar to those found
throughout Indian Country, where tribal members would go for
groceries and other goods. When a tribal member couldn't pay,
they would trade baskets, pottery, and other items for those
goods.
By the time the tribe purchased the land and the trading
post backed from the Ellis family in 2010, there were over
1,000 items, including baskets, pottery, and other artifacts
that are no housed in the community's heritage center. The
lands already owned by the tribe and putting the land into
trust will ensure this important parcel will be acknowledged as
an important piece of the community's history, and can be put
to good use for the entire community, and especially the tribal
members in District One where the parcel is located.
The legislation is bipartisan, has no opposition, has the
support of the entire Arizona delegation, and has no cost. But
it literally takes an act of Congress to get this done. So I
want to thank the Department for their support of this
legislation and the Committee for the hearing. I look forward
to working with all of you to pass this legislation into law
this year.
Thank you.
The Chairman. Thank you, Senator McSally.
Also, for another statement remotely, Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Chairman Hoeven and Ranking
Member Udall. I appreciate your having this hearing on a number
of very, very important bills.
I am just going to address one of them, the CSKT water
settlement. I am very pleased that this is once again in front
of the Committee . This moment has been decades in the making.
I will be brief and just say this: it does great things for
growing infrastructure, both inside the reservation and
outside. It does great things for providing surety in towns and
water owners across Montana, especially the western half of
Montana.
And you know this, Chairman Hoeven, particularly, there is
a saying in water settlements, first in time, first in line. It
is hard to get ahead of Native Americans as far as being first
in time.
Consequently, we need this. We need this water settlement
for Montana. We need it for predictability. We need it for
certainty. We need to be able to continue to grow our economy.
Another statement that has always been said is water is
life. That's how important it is because it literally is life.
I appreciate the Committee hearing this today. I appreciate
the Administration supporting this water compact, and I look
forward to a positive vote and getting this water compact to
the Floor.
Thank you, Mr. Chairman and Ranking Member Udall.
The Chairman. Thank you, Senator Tester.
And also providing a statement remotely will be Senator
Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, Chairman. I am actually
read to get on with the hearing if everyone else is. Thank you.
The Chairman. Thank you.
Today we passed 22 bills through the full Senate. So bills
that have come through this Committee , we have passed 22 bills
through the Senate. Six of those have been signed into law. So
there are 16 pending in the House. We need to remember to
continue to reach out to our friends in the House and try to
get them to move on those 16 bills that we have pending. We
have bipartisan support, I believe, all of them have bipartisan
support, do they not?
And we have seven more here we would like to pass as well.
So I would just remind you that we have been able to move bills
in a bipartisan bill. We want to continue to do that. And we
want to reach out to our House counterparts to get them to move
some of these bills that we have been able to move through the
full Senate, again, on a bipartisan basis.
With that, we will turn to our witnesses. Today we will
hear from the Honorable Tim Petty, Assistant Secretary, Office
of Water and Science at the U.S. Department of the Interior
here in Washington, D.C. And then from Mr. Darryl LaCounte, who
is Director of the Bureau of Indian Affairs, again based here
in D.C.
I want to remind the witnesses, your full testimony will be
made part of the official record. So if you would keep your
opening statement to five minutes, and then we will go to
questioning.
With that, I will turn first to Director LaCounte.
STATEMENT OF DARRYL LACOUNTE, DIRECTOR, BUREAU OF INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR
Mr. LaCounte. Good afternoon, Chairman Hoeven, Vice
Chairman Udall, and members of the Committee .
My name is Darryl LaCounte. I am the Director of the Bureau
of Indian Affairs at the Department of the Interior.
Thank you for the opportunity to provide testimony on
behalf of the Department regarding S. 2716, a bill to amend the
Grand Ronde Reservation Act; and S. 2912, the Blackwater
Trading Post Land Transfer Act.
In 1954, the Confederated Tribes of the Grand Ronde
Community was congressionally terminated pursuant to P.L. 83-
588. Twenty-nine years later, Congress restored the Tribe's
Federal recognition, rights, and privileges with the Grand
Ronde Restoration Act, pursuant to P.L. 98-165.
In 1988, Congress established a 9,811-acre reservation for
the Tribe, pursuant to P.L. 100-425, and through subsequent
amendments, the Tribe's reservation grew to 9,879 acres. In
1994, the reservation acreage total grew to 10,120 acres,
pursuant to P.L. 103-435, also called the 1994 Act.
After Congress re-established a reservation for the Tribe,
the Tribe learned that an 1871 survey used to define the
Tribe's original reservation boundaries contained an error, and
that an 84-acre parcel known as the Thompson Strip was excluded
from its reservation. To resolve this exclusion, the BLM and
the Tribe entered into a land claim settlement wherein the BLM
exchanged a 240-acre parcel for the Tribe's Thompson Strip.
The 1994 Act made that 240-acre parcel part of the Tribe's
reservation and extinguished all of the Tribe's land claims in
the State of Oregon. S. 2716 redefines the claims extinguished
in the 1994 Act, turning the statewide extinguishment of the
Tribe's land claims into a limited extinguishment for the
Thompson Strip, pursuant to S. 2716, which also makes land
obtained by the Tribe as part of a land claim settlement
approved by the United States ineligible for class II and class
III gaming under the Indian Gaming Regulatory Act, which is 25
U.S.C. 2701.
In general, the Department would not be supportive of
measures that might result in additional Federal liability for
previously extinguished land claims. While the legislative
history does not directly address the statewide claims
extinguishment section of the 1994 Act, the Tribe had the
opportunity to oppose that provision on the record. The
Department encourages the Committee to pursue further
investigation of the land claim settlement which resulted in
P.L. 103-435 to determine if S. 2716 would be appropriate.
Moving to S. 2912, the Blackwater Trading Post Land
Transfer Act. S. 2912, the Blackwater Trading Post Land
Transfer Act, directs the Secretary of the Interior to take
approximately 55.3 acres of land located in Pinal County,
Arizona into trust for the benefit of the Gila River Indian
Community. S. 2912 also prohibits Class II and III gaming under
the Indian Gaming Regulatory Act on the land taken into trust
for the Gila River Indian Community pursuant to this bill.
Administering trust lands is an important responsibility
that the United States undertakes on behalf of Indian tribes.
Through its plenary authority over Indian Affairs, Congress can
direct the Department to accept and administer lands to be held
in trust as it does in S. 2912. The Department supports S.
2912.
Mr. Chairman, thank you for this opportunity to testify
today. Mr. Vice Chairman, thank you. I am glad to answer any
questions the Committee may have.
[The prepared statement of Mr. LaCounte follows:]
Prepared Statement of Darryl Lacounte, Director, Bureau of Indian
Affairs, U.S. Department of the Interior
Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of
the Committee. My name is Darryl LaCounte and I am the Director of the
Bureau of Indian Affairs (BIA) at the Department of the Interior
(Department).
Thank you for the opportunity to provide testimony on behalf of the
Department regarding S. 2716, a bill to amend the Grand Ronde
Reservation Act; S. 2912, the Blackwater Trading Post Land Transfer
Act; and S. 2165, the Safeguard Tribal Objects of Patrimony Act of
2019.
S. 2716, a bill to amend the Grand Ronde Reservation Act
In 1954, the Confederated Tribes of the Grand Ronde Community
(Tribe) was congressionally terminated, P.L. 83-588. Twenty-nine years
later, Congress restored the Tribe's federal recognition, rights, and
privileges with the Grand Ronde Restoration Act, P.L. 98-165. In 1988,
Congress established a 9,811-acre reservation for the Tribe, P.L. 100-
425, and through subsequent amendments, the Tribe's reservation grew to
9,879 acres. In 1994, the reservation acreage total grew to 10,120
acres, P.L. 103-435 (1994 Act).
After Congress re-established a reservation for the Tribe, the
Tribe learned that an 1871 survey used to define the Tribe's original
reservation boundaries contained an error, and that an 84-acre parcel
known as the ``Thompson Strip'' was excluded from its reservation. To
resolve this exclusion, the Department's Bureau of Land Management
(BLM) and Tribe entered into a land claim settlement wherein the BLM
exchanged a 240-acre parcel for the Tribe's Thompson Strip. The 1994
Act made that 240-acre parcel part of the Tribe's reservation and
extinguished all of the Tribe's land claims in the State of Oregon.
S. 2716 redefines the claims extinguished in the 1994 Act, turning
the statewide extinguishment of the Tribe's land claims into a limited
extinguishment for the Thompson Strip. S. 2716 also makes land obtained
by the Tribe as part of a land claim settlement approved by the United
States ineligible for class II and class III gaming under the Indian
Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
In general, the Department would not be supportive of measures that
might result in additional federal liability for previously
extinguished land claims. While the legislative history does not
directly address the statewide claims extinguishment section of the
1994 Act, the Tribe had the opportunity to oppose that provision on the
record. The Department encourages the Committee to pursue further
investigation of the land claim settlement which resulted in P.L. 103-
435 to determine if S. 2716 would be appropriate.
S. 2912, the Blackwater Trading Post Land Transfer Act
S. 2912, the Blackwater Trading Post Land Transfer Act, directs the
Secretary of Interior to take approximately 55.3 acres of land located
in Pinal County, Arizona into trust for the benefit of the Gila River
Indian Community (Community). S. 2912 also prohibits class II and class
III gaming under the Indian Gaming Regulatory Act (25 U.S.C. 2701 et
seq.) on the land taken into trust for the Community pursuant to this
bill. Administering trust lands is an important responsibility that the
United States undertakes on behalf of Indian tribes. Through its
plenary authority over Indian Affairs, Congress can direct the
Department to accept and administer lands to be held in trust as it
does in S. 2912. The Department supports S. 2912.
S. 2165, the Safeguard Tribal Objects of Patrimony Act of 2019
The purpose of S. 2165 is to prevent the export of wrongfully
acquired items of Native American cultural heritage--including sacred
items and items of cultural patrimony--and to encourage repatriation of
these items both domestically and abroad. The Department appreciates
that S. 2165 is intended to strengthen the legal framework to achieve
those ends. The Department has worked with multiple Interior bureaus
and offices, as well as the State Department, to provide such support
in recent cases that resulted in a successful repatriation from Germany
in 2018, New Zealand in 2019, and England in 2020. The Department
supports the spirit of S. 2165 and looks forward to working with the
Committee on the important issue of preventing the export of wrongfully
acquired items of Native American cultural heritage. We have technical
concerns regarding certain provisions of S. 2165, as discussed in my
September 19, 2019 testimony on the companion bill, H.R. 3846, before
the House Natural Resources Committee Subcommittee for Indigenous
Peoples of the United States. We welcome the opportunity to work with
the Committee to provide technical assistance.
Conclusion
Mr. Chairman, thank you for the opportunity to testify today. I am
happy to answer any questions from the Committee.
The Chairman. Thank you, Director LaCounte.
I will turn to Assistant Secretary Petty.
STATEMENT OF HON. TIMOTHY R. PETTY, Ph.D., ASSISTANT SECRETARY,
WATER AND SCIENCE, UNITED STATES
DEPARTMENT OF THE INTERIOR
Mr. Petty. Thank you, Chairman Hoeven, Vice Chairman Udall,
members, both present and virtual. Thank you for allowing me to
come today.
My name is Tim Petty. I am the Assistant Secretary for
Water and Science at the Department of Interior. I am pleased
to appear before you today to provide the Department's position
on S. 3019, the Montana Water Rights Protection Act. The
Department supports the goals of S. 3019, and if consensus
language of a substitute bill that the Department and the
Confederated Salish and Kootenai Tribes have agreed upon were
to adopted, the Department could fully support the bill.
Before I begin discussing this settlement, I want to note
that the Department supports the policy that negotiating Indian
water rights settlements are preferred to protracted and
divisive litigation. We have a strong track record of trying to
support all the settlements. We are grateful to the Committee
for holding this hearing today.
I also would like to recognize that the tribes and the
States brought significant leadership qualities to negotiating
the CSKT Compact approved by the Montana legislature in 2015
that both Senators Tester and Daines have specifically talked
about. And the Department commends them for the substantial
efforts they have made in negotiating a solution of the Tribes'
water right claims, which have been among the most contentious
and challenging to be addressed in tribal water settlements.
S. 3019 would authorize, ratify, and confirm the Compact,
and provide funding for its implementation. The bill would
provide $1.9 billion to be used for a number of purposes,
including rehabilitation and modernization of the Flathead
Indian Irrigation Project, also known as FIIP; mitigation of
damages to natural resources; constructing water and wastewater
facilities on the Reservation is just to name a few.
In exchange for the benefits of S. 3019, the Tribes would
waive and release all water rights claims and claims against
the United States related to water rights, natural resource
damages, operation, and maintenance of the FIIP, and other
potential claims. S. 3019 provides significant and important
benefits to the economy of not only the Reservation but also to
the State of Montana. If enacted, the Department notes that
almost 600 permanent jobs will be added to the economy, as well
as almost 5,000 temporary construction and restoration jobs
through rehabilitation and modernization of the irrigation
system, and restoring natural resources damaged by those
operations.
The Department supports the level of funding provided in S.
3019, in large part because the Department recognize the
substantial costs associated with rehabilitating and
modernizing the irrigation system in a way that preserves and
increases in-stream flows while still maintaining the status
quo for FIIP irrigators and preserving the agricultural economy
in this region of the State of Montana.
While the Department has concerns with S. 3019 as
introduced, principally that the bill lacks necessary
assurances that settlement funds will be spent and sent to
sufficiently rehabilitate and modernize the system and project,
we have worked diligently with the tribes to address these
concerns.
In conclusion, S. 3019 and the underlying compact are the
product of a great deal of effort by many parties and reflect a
desire by the people of Montana, Indian and non-Indian, to
settle their differences through negotiation rather than
litigation. This Administration shares that goal and is
committed to finalizing this settlement after many years of
hard work between the Tribes, the State, and the Montana
congressional delegation to reach a final and fair settlement
of the Tribes' water rights claims set forth.
Again, thank you, and am happy to answer any questions.
[The prepared statement of Mr. Petty follows:]
Prepared Statement of Hon. Timothy R. Petty, Ph.D., Assistant
Secretary, Water and Science, United States Department of the Interior
Chairman Hoeven, Vice Chairman Udall and members of the Committee.
My name is Tim Petty, and I am the Assistant Secretary for Water and
Science at the Department of the Interior (Department). I am pleased to
appear before you today to provide the Department's position on S.
3019, the Montana Water Rights Protection Act. The Department supports
the goals of S. 3019, but has concerns about the bill as introduced. We
have reached agreement with the Confederated Salish and Kootenai Tribes
(Tribes) on a redline amendment for the underlying bill. If that
language were to be adopted, the Department could support the bill.
I. Introduction
Before I begin discussing this settlement, I want to note that the
Department supports the policy that negotiated Indian water rights
settlements are preferable to protracted and divisive litigation.
Indian water rights settlements have the potential to resolve long-
standing claims to water, provide certainty to water users, foster
cooperation among water users within a watershed, allow for the
development of water infrastructure, promote tribal sovereignty and
self-sufficiency, and improve environmental and health conditions on
Indian reservations.
The framework the Department follows to guide the negotiation of
Indian water rights settlements, and the support for legislation to
authorize these settlements, includes four general principles set forth
in the Criteria and Procedures, 55 Fed. Reg. 9223 (Mar. 12, 1990).
First, settlements must be consistent with the United States' trust
responsibilities. Second, Indian tribes must receive equivalent
benefits in exchange for the rights they, and the United States as
trustee, release as part of a settlement. Third, Indian tribes must
obtain the ability to realize value from confirmed water rights.
Fourth, settlements must contain an appropriate cost-share by all
parties benefiting from the settlement.
The Tribes have long been leaders in water and natural resources
management. They have restored the ecosystem function of miles of
streams; with the State of Montana, they co-manage the fishery on
Flathead Lake, the largest freshwater body west of the Continental
Divide; and they also operate the Selis Ksanka Qlispe Dam at Flathead
Lake under a Federal license for producing hydroelectric power.
The Tribes and the State brought significant leadership qualities
to negotiating the Confederated Salish and Kootenai-Montana Compact
(Compact) approved by the Montana legislature in 2015. The Department
commends them for the substantial efforts they have made in negotiating
a resolution of the Tribes' water right claims, which have been among
the most contentious to be addressed in a tribal water settlement.
II. Historical Context \1\
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\1\ For a more complete statement about the Tribes' history, please
see the Department's 2016 testimony on S. 3013, Salish and Kootenai
Water Rights Settlement Act of 2016, available at: https://www.doi.gov/
ocl/s-3013.
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The aboriginal homeland of the Tribes is located in present-day
western Montana, northern Idaho, and north into Canada. In 1855, the
Tribes and the United States entered into the Hellgate Treaty. Under
the Treaty, the Tribes ceded to the United States a significant portion
of their aboriginal territory and reserved to themselves the Flathead
Indian Reservation (Reservation) in northwestern Montana. The Hellgate
Treaty expressly reserved to the Tribes rights of hunting, fishing, and
gathering both on- and off-Reservation. In addition, the Treaty
recognized the Tribes' right to an agrarian lifestyle based on the
extensive lands within the Reservation that are economically viable
agricultural lands.
For over a century, there have been extensive and bitter disputes
over the Tribes' water rights and resources. The root of many of these
conflicts is the 1904 Flathead Allotment Act and subsequent amendments
in 1908. The 1904 Act, over objections from the Tribes, directed the
allotment of Reservation lands to individual Indians and authorized the
disposal of ``surplus'' unallotted land for non-Indian homestead entry.
The 1908 amendment authorized the construction of a greatly expanded
irrigation system to serve irrigable lands on the Reservation owned by
both Indians and non-Indians. This irrigation system became known as
the Flathead Indian Irrigation Project (FIIP). Over the next few
decades, FIIP was constructed to irrigate approximately 130,000 acres
and currently serves 132,077 acres. By the 1930s, most of the lands
allotted to individual Tribal members within FIIP were no longer in
Indian ownership. Currently, nearly 90 percent of the lands irrigated
by FIIP are owned by non-Indians. The Bureau of Indian Affairs (BIA)
owns and operates FIIP.
Much of the irrigation water supply used by FIIP is diverted
directly from several streams that also support the Tribes' reserved
fisheries, which has created serious conflicts. In a series of
interrelated lawsuits in the 1980s, courts conclusively confirmed that
the Tribes are entitled to instream flow water rights sufficient to
support fishery resources and the Tribes' treaty-reserved fishing
rights. The courts further found that these reserved instream flow
rights have a priority date of time immemorial and thus are senior to
the irrigation water rights for FIIP. Since the 1980s, there has been
an impasse on the Reservation between the need for instream flows for
fishery purposes and irrigation demands. The BIA continues to operate
FIIP, information developed over many years indicates that the existing
minimum flow protections are not adequate. Population growth on and
near the Reservation over the past few decades has also increased the
demand for water resources, further exacerbating these conflicts. The
Tribes and the United States also asserted numerous senior water rights
claims off the Reservation that create uncertainty about current and
future water uses across a large section of Montana.
III. Salish and Kootenai Water Rights Compact and Proposed Legislation
A. Negotiations
Seeking to avoid costly litigation, provide certainty for all water
users, and meet the needs of all parties, the State of Montana, the
Tribes, and the United States have engaged in decades of negotiations.
These negotiations resulted in the Compact, which was approved by the
Montana legislature in 2015. The Compact is a comprehensive resolution
of all the Tribes' water right claims and includes irrigation,
domestic, instream flow, and other water rights to meet the Tribes'
current and future needs on the Reservation. Off-reservation water
right claims are also resolved as discussed below.
B. S. 3019
S. 3019 would authorize, ratify, and confirm the Compact, and
provide funding for its implementation. The bill would provide $1.9
billion to be used for a number of purposes, including: rehabilitation
and modernization of the FIIP; mitigation of damages to natural
resources; administration and implementation of the Tribal water
rights; construction of livestock fencing; installation of devices to
prevent fish entrainment; construction and maintenance of community
water distribution and wastewater facilities; and repair and
replacement of certain culverts, bridges and roads. It would ratify the
Tribal water right and, in conformance with the Compact, would direct
the Secretary to allocate to the Tribes 90,000 acre-feet per year of
storage water from Hungry Horse Reservoir ``for use by the Tribes for
any beneficial purpose on or off the Reservation.'' The Compact also
provides a unique and carefully crafted framework for the
administration of water rights on the Reservation through the Unitary
Administration and Management Ordinance (or Law of Administration),
which proscribes the process to (1) register existing uses of water;
(2) change water rights; and (3) provide for new water development. In
a November 18, 2019 letter to Senator Daines, Secretary of the Interior
David L. Bernhardt set out the conclusions of the Department that the
Compact would appropriately resolve the FIIP water supply and the
Tribes' water right claims and that the Unitary Administration and
Management Ordinance is protective of the rights of both non-Indian and
Indian water right holders on the Reservation.
In exchange for the benefits of S.3019, the Tribes would waive and
release all their water rights claims and claims against the United
States related to water rights, natural resource damages, operation and
maintenance of the FIIP, and other potential claims.
S. 3019 provides significant and important benefits to the economy
of the Reservation and the State of Montana. Significantly, by
ratifying the Compact, S. 3019 protects valid existing non-Indian water
uses and commits to meet ``Historic Farm Deliveries'' for irrigators
served by FIIP. In so doing, the bill provides substantial benefits to
non-Indian irrigators by keeping them ``whole.'' The United States and
the Tribe have filed extensive water claims in the general stream
adjudication underlying this settlement. Absent settlement of those
claims, the amount of water available to FIIP irrigators may be reduced
so substantially as to render FIIP nonviable. It is expected that loss
of water would result in a conversion of irrigated agriculture to
lower-valued dryland agriculture on the Reservation. This conversion
could result in a reduction of net returns to farming of approximately
$356 million in present value terms over 50 years.
The United States will not be able to simply walk away from a
nonviable FIIP but would likely have to decommission it in order to
protect lives and property. FIIP delivers water through nearly 1,300
miles of canals and laterals. There are about 10,000 structures, which
include 17 dams and storage reservoirs. The reservoirs have a combined
capacity of approximately 160,500 acre-feet. There are three major
pumping facilities that help to supplement water supplies in portions
of FIIP. FIIP consists of four management divisions: the Jocko Division
(about 11,000 irrigated acres), the Camas Division (about 13,000
irrigated acres), the North Division (about 52,000 irrigated acres),
and the South Division (about 52,000 irrigated acres). Estimates of the
cost for the United States to decommission FIIP exceed a billion
dollars.
The benefits of S. 3019 are not limited to on-Reservation farming.
Nearly all of these claims recognized in the Compact are being
relinquished by the Tribe under the terms of the bill. The Tribe and
the United States also filed water rights claims in off-Reservation
streams in western and parts of eastern Montana. If successfully
litigated, these claims could result in reduced water deliveries to
irrigators in these areas, resulting in an estimated reduction in off-
Reservation irrigator net income of $146 million in present value over
50 years.
In addition to avoiding losses in farm net income, S. 3019 supports
positive economic activity associated with continued irrigated
agriculture (on- and off-Reservation), and economic activity expected
to occur as a result of the funding provided to the Tribes in the bill.
The waiver of water claims contained in S.3019 will allow continued
irrigation on-Reservation, with an estimated economic contribution of
approximately $34 million in total annual labor income impacts
(including direct farm income mentioned above, and indirect, and
induced impacts); representing $910 million in present value. As for
off-Reservation impacts, continued irrigation in eastern and western
Montana supports total annual labor income impacts estimated at
approximately $372 million in present value. In total, across all
regions of the state, S. 3019 preserves agricultural economic activity
that supports total labor income (including direct farm income from
above and indirect, and induced impacts) of approximately $47 million
annually or $1.3 billion in present value over 50 years.
The Trust Fund created by S. 3019 provides funding for programs
that would create economic activity in the regional economy:
modernization of FIIP infrastructure (to increase the water use
efficiency of the system), restoration of stream channels and return
flow sites to enhance fish habitat, and construction of community water
systems. These activities support direct, indirect, and induced jobs.
Cumulatively, S. 3019 is expected to support approximately 520
permanent jobs on or near the Reservation (of which approximately half
are seasonal), and approximately 4,650 temporary construction and
restoration jobs through rehabilitating and modernizing FIIP and
restoring natural resources damaged by FIIP operations.
IV. Department of the Interior Positions on S. 3019
While the Department has a record of strong support for Indian
water rights settlements and supports many elements of the Compact, the
Department has concerns with S. 3019 as introduced. The Department
supports the level of funding provided in S. 3019, in large part
because the Department recognizes that rehabilitating and modernizing
FIIP in a way that preserves and increases instream flows while still
maintaining the status quo for FIIP irrigators requires substantial
costs. However, the Department is concerned that the introduced version
of the bill lacks necessary assurances that settlement funds will be
spent to sufficiently rehabilitate and modernize FIIP. Given that FIIP
will remain in Federal ownership, the Department needs mechanisms in
the legislation ensuring that settlement funds will be used for these
intended purposes. We believe the negotiated redline addresses this
concern.
Another issue of significant concern is the omission in S. 3109 of
a prohibition on per capita distribution of settlement funds. The
Criteria and Procedures that guide the Administration's participation
in Indian water rights specifically disapprove of per capita
distributions. Virtually all of the 32 enacted Indian water rights
settlements include provisions prohibiting per capita distribution. In
this settlement, per capita distribution of funds to individual Tribal
members would threaten the ability of the Tribes to carry out the
essential purposes of the settlement, including rehabilitation and
modernization of the FIIP; restoration of damages to natural resources;
installation of devices to prevent fish entrainment; and construction
and maintenance of community water distribution and wastewater
facilities.
S. 3019 as introduced requires several technical corrections to
clarify certain provisions and to aid in its implementation. The
negotiated redline includes those technical corrections and the
Department supports its adoption.
V. Conclusion
S. 3019 and the underlying Compact are the products of a great deal
of effort by many parties and reflect a desire by the people of
Montana--Indian and non-Indian--to settle their differences through
negotiation rather than litigation. This Administration shares that
goal and is committed to finalizing this settlement after many years of
hard work between the Tribes, the State, and the Montana congressional
delegation to reach a final and fair settlement of the Tribes' water
rights claims.
Mr. Chairman, this concludes my written statement. I would be
pleased to answer any questions the Committee may have.
The Chairman. Thank you. We will now proceed to questions,
five-minute rounds. I will start with a question for you,
Secretary Petty. The bill, S. 3019, Montana Water Rights
Protection act, would allow additional acquisition improvements
and additions of rehabilitating the Flathead Indian Irrigation
Project.
How many additional projects will be entered into the
Flathead Indian Irrigation Project? What can Congress do to
make sure all BIA-owned irrigation systems are adequately
addressed?
Mr. Petty. Chairman, thank you for that question. That is a
pretty extensive overview, and I really appreciated Senator
Daines' opening comments of all the different claimants that
are involved. So the overall number is part of even the red
line items that we are working on.
And how those will break out, I don't actually have the
exact numbers for you. But that is going to be part of the
language set forth. So I will look forward to getting you that
specific answer here in the near future.
The Chairman. Director LaCounte, according to the testimony
provided by the Interior and Confederated Tribes of Grand
Ronde, an error was made in the 1871 land survey, it left out
84 acres, leading to the 1994 Act that included negotiated land
claims settlement over the Thompson Strip. The settlement
included 240 acres, to become part of the tribe's reservation,
and extinguished the tribe's right to bring any further land
claims in Oregon.
So has the tribe and your department exhausted all possible
negotiated solutions prior to the legislation?
Mr. LaCounte. To the best of my knowledge, yes. I haven't
been personally involved in any of those negotiations, but to
the best of my knowledge, yes.
The Chairman. All right. In Section 3 of S. 2912, there is
language that requires the Secretary of the Interior to take
the Blackwater Trading Post land into trust for the benefit of
the Gila River Indian Community after the tribe meets four
requirements. And each of these four actions that the tribe
must meet relates to land being taken into trust.
Are these requirements needed to be explicitly included in
the bill? If so, are there other requirements the Committee
should consider adding?
Mr. LaCounte. Thank you for that question. I believe that
Congress can act without any input from the department when it
comes to Congressionally-manded fee to trust, for lack of a
better word, land into trust. So I don't think that anything
would be needed unless you, as a Congress, determine it to be
needed.
I have had extensive experience with fee to trust, and I
have actually enjoyed processing mandatory acquisitions,
because I didn't have to jump through every hoop. So I would
say, anything additional, absolutely not. Again, that is your
authority.
The Chairman. So does anything in section 2 of the bill
prohibit in any way the Secretary of Interior taking the land
into trust, even if the tribe meets the four requirements? In
other words, if they meet the four requirements, they are good
to go?
Mr. LaCounte. Yes.
The Chairman. Okay, those are my questions. With that, I
would turn to Vice Chairman Udall.
Senator Udall. Thank you very much, Mr. Chairman. Let me
start with a question to Mr. Petty.
Mr. Petty, the CSKT settlement includes a Federal cost
share of $1.9 billion, the largest figure associated with
Indian water rights settlement in history. This cost must be
viewed in the context of over $30 billion in purported Federal
liability. Last summer, this Committee unanimously approved by
my bill to extend the Reclamation Water Settlement Fund for an
additional 10 years. This extension would provide a reliable
funding source for future settlements, including CSKT
settlement.
Would the Reclamation Water Settlement Fund be a useful
resource to fund Indian water rights settlements, and why would
extending the fund benefit all water users?
Mr. Petty. Senator, that is a great question, and thank you
for asking. I think the Indian Water Rights at Department of
Interior is a set structure, because it is a partnership for so
many of the different bureaus within the Department of
Interior. Just as I am here with a colleague from Interior,
within the Bureau of Indian Affairs, it is a partnership with
the Bureau of Indian Affairs, with Fish and Wildlife Service,
with even obviously Bureau of Reclamation. We have different
aspects with the Bureau of Land Management, and even Park
Service components.
So having it within that Indian Water Rights Settlement
would really be a useful tool for the Secretary to utilize with
the different bureaus who have those specific interests with
how that gets engaged.
Senator Udall. You have heard from many members, Democrats
and Republicans, on this Committee how important these water
rights settlements are to both Indian Country and off-
reservation. We want to try to continue to have a healthy fund
there.
Mr. Petty. Yes.
Senator Udall. Mr. Petty, several tribes have expressed
concerns that Interior is insisting that it will only support
fund-based settlements. While a fund-based settlement may suit
the particular needs of CSKT, it may not work for all tribes.
Can you clarify whether Interior will insist that ongoing
and future Indian water rights settlements must be fund-based?
Mr. Petty. Yes, thank you, Senator, another really good
question.
The idea, for all the members, and the one on the audience,
the idea of fund-based and project-based, one of the big parts
is after many years there can be an increase in actual cost of
tools, work, efforts. So the idea of fund-based versus project-
based is always going to be a challenge, because by the time we
get to a lot of those projects, many of those projects are
estimated.
So when we get to the reality of what those costs are, if
we put them in a certain category of a fund-based, we are
trying to actually get done, and we only get halfway. It is
kind of like it doesn't do us any good to build a bridge
halfway.
So those are part of the issues that we are working on. We
would love to interact more with you and the members to
continue to work through that.
Senator Udall. But you are not going to insist that all
settlements be fund-based?
Mr. Petty. Right. Yes.
Senator Udall. And as you know, not just with Indian water
rights settlements, with all sorts of other settlements and
project, I am very familiar on the Appropriations Committee
with the Defense Department.
Mr. Petty. Yes.
Senator Udall. When you get into a big project that is
multi-year, sometimes you have increases. And a lot of times,
it is at the front end on failing to estimate exactly what is
going to happen over the years. Sometimes it is hard to
estimate.
Mr. Petty. Yes, sir.
Senator Udall. This is for Mr. LaCounte. The Covid-19
pandemic has been a stark reminder that basic water and
sanitation services are often lacking in far too many rural
tribal communities. On the Navajo Nation, 30 percent of the
population lacks running water. In Oregon, the Confederated
Tribes of Warm Springs experienced numerous boil water
advisories last year, highlighting the serious infrastructure
deficiencies on their reservation. Water and sanitation
services are critical for basic preventive measures, including
social distancing and hand washing.
Mr. LaCounte, can you talk about the importance of water
and sanitation as a public health issue, particularly in light
of the Covid-19 pandemic?
Mr. LaCounte. Thank you, Senator, yes, I can. I was
previously the Regional Director of the Rocky Mountain Region,
in Billings, Montana. That was for the States of Montana and
Wyoming. Within the Bureau of Indian Affairs, there are two
water treatment plants in the entire Bureau of Indian Affairs,
for 574 different tribes. Unfortunately, I had both of them.
Oftentimes, we had problem. Outside of child protection, that
was my biggest worry, was that something would go awry in those
systems and people get very sick or even die.
I took a trip to the Hopi Reservation a couple of years
ago, and I couldn't understand for the life of me why there
were so many little villages here and there. Then it came to
me, it was a water source, period. Like you said earlier, they
had to all go to the same source, haul their water. It is the
way they choose to live, but it was kind of sad to look at.
So yes, in light of what is happening right now, yes, it
has magnified the issue. But it has always been a very
difficult issue. I hope that answers your question.
Senator Udall. It does answer the question. Obviously,
water, like you say, Native Americans were here first. They
went, and communities settle all the time around water. So it
is really important that we make sure that water sources are
good for everyone, and in particular, for the tribes who have
been underfunded in so many areas, so that when we hit this
pandemic, they can take care of themselves.
Thank you very much, to both of you, for being here and
your answers. We appreciate it.
The Chairman. Senator Daines.
Senator Daines. Thank you, Chairman Hoeven, Ranking Member
Udall.
Secretary Petty, in your testimony you stated that the
Department of Interior supports legislative action on the
settlement as ap referred path forward to resolve the CSKT
water rights claims. The Winters Doctrine lays out the
constitutional responsibility to reserve the water necessary to
fulfill the reservation's purpose.
Does this settlement comply with the Winters Doctrine?
Mr. Petty. Yes, absolutely.
Senator Daines. And does the Winters Doctrine change at all
when considering settlements for tribes with the Stevens
Treaty?
Mr. Petty. No, it does not. It doesn't change any at all.
Senator Daines. So since this legislation fulfills the
constitutional requirement, would you explain the process that
water users go through to adjudicate their claims if Congress
did not act?
Mr. Petty. Yes, Senator. The adjudication would take place
in Montana's water courts. Claim is prima facie evidence until
successfully contested. That means that every water right can
be called by CSKT during that adjudication process.
Senator Daines. Now, this settlement authorizes $1.9
billion, as Ranking Member Udall just stated, it would be the
most expensive settlement in water settlement history for the
Federal Government, and it authorizes this large amount of
money to help rehabilitate the Flathead Indian Irrigation
Project, also known as FIIP.
I note your statement of support for this funding level. My
question is this. What would happen to FIIP if this compact is
not passed?
Mr. Petty. Well, Senator, the continued operation of FIIP
as is raises significant ESA compliance issues right off the
bat, issues that the Department will actually have to address.
Water users will need to fund rehabilitation with FIIP 100
percent, which means huge increases on O&M fees, as well as
increased costs to fund the ESA compliance, just to start
naming a few issues. But significant.
Senator Daines. On the economic side, what economic impacts
do you estimate my legislation would have on agriculture, on
jobs, and infrastructure in Montana?
Mr. Petty. Senator, we have done quite a bit of work
economically. The legislation protects the Montana ag economy
from at least, in our estimation, of a $1.3 billion hit alone.
Additionally, this settlement will support approximately over
500 jobs, permanent jobs, as well as almost 5,000 temporary
construction jobs that will be set forth by this legislation.
Senator Daines. In your testimony, you mentioned need for
increased assurances that the settlement funds will be spent to
rehabilitate and to modernize FIIP. After meeting with our
county commissioners in Montana, local legislators, and other
key stakeholders, I have heard a lot of concerns, similar
concerns that you mentioned in your testimony.
That is why I plan to amend my bill to reflect the language
that has been negotiated by Interior to strengthen the
oversight of this very important settlement. The question is
this. As this bill is implemented, would you explain what
safeguards would be in place to maintain fiscal integrity and
how would they operate?
Mr. Perry. Senator, that is a great question. Thank you for
that support of the redline, that will be a huge part of the
work that we have spent years with your help working on, which
provides the Federal oversight through that. With your
question, is the Indian Self-Determination and Education Act
includes annual funding reports as well as funding requests in
that process. So there is a high accountability there.
Senator Daines. Who monitors that spending? Who ensures the
tribe actually adheres to their spending plan?
Mr. Perry. That is through the Bureau of Indian Affairs
region. In the case of the Northwest Region specifically, it
will be the coordination office as well as the Office of Trust
Services that have experts in oversight.
Senator Daines. There is concern about potential waste,
fraud, abuse and so forth. What happens if, for instance, a
waste, fraud, or abuse of these funds occurs?
Mr. Perry. Another good question, Senator.
So in that case, the waste, fraud, and abuse are found in
the review of the statutory requirements that we have included
in the legislation, the financial reports, the single audit,
information reviewed by the Office of Self-Governance, as well
as general oversight by the region. And the Office of Trust
Services within Indian Affairs would work with the tribes on
any corrective action plans to bring them in compliance within
the settlement. That is a yearly work that is being done.
Senator Daines. An annual process, then?
Mr. Petty. Yes.
Senator Daines. My legislation includes language that
allows the Secretary to acquire some easements and rights-of-
way that receive service from the Flathead Indian Irrigation
Project in order to facilitate the rehabilitation work
authorized by this bill. This language is consistent with other
settlements that we have had in Montana. I think about the
Blackfeet settlement, the Crow settlement. We want to maintain
consistency there, where there are Federal projects involved.
There is local concern, I have heard it on the ground there
in Montana, that between awarding tribal water rights and the
ability of the tribe to potentially acquire land, that the tax
base of Lake County and Sanders County will erode. Would you
respond to some of those concerns that I am hearing back from
especially those two counties that are most directly impacted?
Mr. Perry. Yes, Senator, that is a good question. It is
really common practice in Indian water rights settlements and
elsewhere to require project beneficiaries to contribute the
right-of-way needed for a project. So that bill is not
different than what has been ongoing right now. The legislation
provides direct aspects and compensation, both to Lake County
as well as Sanders County. The tribes cannot use settlement
dollars to simply buy land.
Senator Daines. But is there anything in the bill that
would force an unwilling landowner to give up property for an
easement or a right-of-way to the tribe or the Federal
Government?
Mr. Petty. No. The bill includes language prohibiting
condemnation of land.
Senator Daines. This legislation says if a tribe retains
all claims related to ``activities affecting the quality of
water, including any claims under CERCLA, the Safe Drinking
Water Act and the Federal Water Pollution Act,'' my question
is, does this language negate the tribe's relinquishing of
claims with prejudice in Section 10?
Mr. Petty. The Administration went through an extensive
process in this to make sure that that does not happen.
Senator Daines. So Section 12(i) in that bill authorizes
the Secretary to establish a process to consolidate land on the
CSKT Reservation exchanged for the same acreage of Federal land
returned to State ownership. A question is this. What would
these land exchange negotiations look like?
Mr. Petty. Senator, we would follow the existing protocols
in negotiating with the State, which is a high priority for us.
Senator Daines. Would you confirm that the State landlord
would be required to approve any land exchange?
Mr. Petty. Yes.
Senator Daines. So the State would have ultimate authority
in saying whether the exchange occurs or not?
Mr. Petty. Yes, sir.
Senator Daines. My legislation restores the National Bison
Range to tribal trust for the CSKT.
The Chairman. Senator, you probably need to check on your
timeline.
Senator Daines. My last question.
The Chairman. Go ahead.
Senator Daines. Thanks, Mr. Chairman. Thanks for a little
extra time here. Appreciate it.
My legislation restores the National Bison Range to tribal
trust for the CSKT. For the first time, we are codifying public
access to the National Bison Range, while protecting refuge
revenue payments for Lake and for Sanders County. You mentioned
in your testimony that tribes have been long leaders in natural
resource management.
My question is this. What level of confidence does the
Administration have in the tribes' ability to manage the bison
range effectively?
Mr. Petty. Yes, sir, we do have high confidence. Right now,
actually, the current director is a CSKT tribal member. And
that is the confidence within that structure and teamwork to
really be able to be assured that we have the upmost confidence
that the tribe can manage that.
Senator Daines. And would you confirm that my legislation
would annually save approximately $1 million in appropriated
taxpayer money to run the bison range?
Mr. Petty. Yes, sir. Yes.
Senator Daines. Thank you, Secretary Petty. Mr. Chairman,
thanks for a little extra grace here, for time here. It is a
very important issue for Montana.
The Chairman. Certainly. Absolutely understand.
Let's turn to Senator Tester.
Senator Tester. Thank you, Mr. Chairman. I appreciate it.
Mr. Petty, as long as you have the vocal cords warmed up,
we will just keep right on going with you.
As far as the Flathead Indian Irrigation Project goes, I
think that Reclamation estimated about $1.6 billion necessary
for decommissioning. I think Ranking Member Udall said it was
about $30 billion. Could you shed a little light on what the
real cost of decommissioning FIIP would be?
Mr. Petty. Yes. FIIP estimates are somewhere between $1.3
billion to $1.4 billion, is what our estimates are at this
point for decommissioning that.
Senator Tester. Okay. So there is a technical services
center, is that in your agency?
Mr. Petty. It is. It is part of the Bureau of Reclamation
out of the Denver, Colorado--that is our very [indiscernible]
group.
Senator Tester. Are you familiar with any estimates they
may have put forth?
Mr. Petty. That team has been part of this work that we
have done with the Indian Water Rights Office within the
Department of Interior. So they have been partnering and
working closely side by side on some of these estimates.
Senator Tester. So the fact that I read where their
estimates are five to ten times, I heard that $1.6 billion has
been rolled back.
Mr. Petty. Yes, as always, estimates are how much time do
you keep putting into it. But yes, sir, I would concur with
your discussion.
Senator Tester. Needless to say, $1.3 billion or $1.6
billion isn't exactly small spuds.
Mr. Petty. Yes, sir.
Senator Tester. Four years ago, Interior testified before
this Committee on this bill, on the CSKT water bill that I had,
that they wanted to see additional analyses on the State, to
support the Federal cost share. In the intervening years, has
Interior completed that additional analysis to support Federal
cost share?
Mr. Petty. Yes. These last number of years has really been
a cooperative agreement and cooperative work with both
Reclamation and with multiple meetings and getting together as
well as the Indian water rights settlement team.
Senator Tester. Okay, so based on that analysis, and
Interior's negotiations with CSKT on this bill that we have in
front of us today, do you support the Federal cost share in
this bill?
Mr. Petty. Yes, sir. We have been able to confirm that.
Senator Tester. And do you believe that it is beneficial
for all parties involved?
Mr. Petty. Yes, sir, both Department as well as the
Administration concurs that it is the best path forward.
Senator Tester. You have already addressed the question
about economic liabilities with potentially 10,000 water rights
claims. So I just want to thank you very much for your work.
I have a quick question for Director LaCounte. It is only
because you have already referenced that you were Rocky
Mountain Regional Director in Billings. I know CSKT is not part
of that region, but I know you are intimately familiar,
Director LaCounte, with CSKT. Can you give me, through what you
have seen on CSKT lands, can you give me your view of what
kinds of issues will be addressed if we get this water compact
passed?
Mr. LaCounte. Certainly, as both Senator Daines and
yourself have stated, it has been a contentious issue in the
State of Montana for a long time. If any of you have ever been
there, it is the most beautiful place in the world, I think.
Just getting this done and behind everyone would resolve a lot
of issues in the State of Montana, simply because it would be
resolved. And it wouldn't be laying on the table to fight over.
As Senator Daines earlier said, that is what water is about
in Montana, is fighting over. Well, once you end the fight, the
fight is over, everybody can get their lives in order and go
about business as they know it is going to be. The Department
significantly supports turning the National Bison Range back to
where it started, with members of the Salish Kootenai Tribes.
Senator Tester. Last question. The State of Montana is
setting aside $55 million in contributions to the settlement.
How would you describe the State of Montana's commitment,
seeing that this has already been pointed out as the biggest
water settlement ever?
Mr. LaCounte. Well, good for them, but that is some of my
tax dollars, too. So I am happy to contribute, if that is going
to make things better in the State.
[Laughter.]
Senator Tester. Okay. But it is adequate, is what you are
saying? It is adequate in the overall settlement?
Mr. LaCounte. Yes.
Senator Tester. Okay, thanks guys. I appreciate it. Thank
you, Mr. Chairman.
The Chairman. Thanks, Senator Tester. And I will concur, it
is one beautiful spot, no doubt about it. It is a beautiful
place.
Senator Cortez Masto.
Senator Cortez Masto. Thank you, Mr. Chairman, Ranking
Member. And thank you to the witnesses who are participating
today.
As you can hear from all my colleagues, we all recognize,
hopefully you do as well, the importance of water rights
settlements to those of us in the west. I want to take a moment
to talk about one that is not on the agenda today, but I
introduced, it is S. 3754. It makes technical corrections to
the Shoshone-Paiute Tribes of the Duck Valley Reservation Water
Rights Settlement Act of 2009. I am grateful that my
colleagues, Senators Crapo, Risch and Rosen have joined me as
co-sponsors. The tribe's reservation crosses between our two
States.
The 2009 Settlement Act resolved decades of tension over
water rights between the tribes and non-Indian neighbors. It
legislated agreement and gave certainty to farmers and ranchers
regarding water allocations available to them for crops and
grazing. The tribes were provided economic benefits to the
reservation and assistance with their municipal water supply.
However, prior to the Act becoming effective in 2016, the
funds were set aside toward the implementation of this
agreement. Those funds were invested and the proceeds that were
derived from these investments went into the general treasury,
and not toward the benefit of the tribe.
The bill that I have introduced authorizes the amount of
money that the trust funds could have earned during the period
before the settlement agreement became effective in 2016 to be
put back toward its intended use for the tribe's water
settlement agreement. My bill essentially fulfills the promise
made by the 2009 agreement.
I hope I can have commitment from the Interior Department
to work with me in rectifying this matter. I look forward to
working, Mr. Chairman and Ranking Member, on including this
bill on a future agenda for a legislative hearing as well. So I
just wanted to put that out there.
I also did not hear, for the panelists, with respect to the
STOP Act, S. 2165, I am a co-sponsor of that as well, it is an
important piece of legislation, I didn't hear if there was
support for it or not. So to the panelists, can you let me know
whether you support S. 2165?
Mr. LaCounte. Thank you, Senator. Yes. We are very
supportive of it. I believe I have testified in front of this
Committee on it before, supporting it. That could have been the
House; I am getting old and I lose my train of thought
sometimes.
[Laughter.]
Mr. LaCounte. There was a blurb that I chose not to read
for the interest of time, but the Department is very supportive
of it.
Senator Cortez Masto. Thank you. I appreciate that. And Mr.
LaCounte, I know you are also part of the Department, but do
you have any concerns with the bill, the legislation?
Mr. LaCounte. I do not.
Senator Cortez Masto. Oh, I am sorry, Mr. Petty. I can't
hear you.
Mr. Petty. No, I do not. Thank you.
Senator Cortez Masto. Thank you. You made it very easy for
me. Thank you very much. Thanks for joining us.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Cortez Masto.
With that, unless, Senator Udall, you have other questions?
Senator Udall. I am in good shape here. Thank you, Mr.
Chairman.
The Chairman. Very good. Again, I would like to thank both
of our witnesses.
At this point, we will conclude the hearing. The record
will be open for two weeks. I would ask that if there are
questions submitted for the record, that you follow up in a
timely way.
Again, I want to thank both of the witnesses for being
here. With that, we are adjourned.
[Whereupon, at 3:51 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Billy Friend, Chief, Wyandotte Nation
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the oppo1iunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of2019. The Wyandotte
Nation strongly supports swift passage of the STOP Act.
My name is Billy Friend and I am the Chief of the Wyandotte Nation.
The struggle to protect tribal cultural heritage from illegal
trafficking is a tragically common challenge for communities across
Indian Country. The Wyandotte Nation is no exception. International
markets have become a safe harbor for trafficking federally protected
tribal cultural heritage items, and they will remain this way until
Congress enacts federal law to address this issue. We firmly believe
the STOP Act will make tremendous strides in preventing international
trafficking of federally protected tribal cultural heritage items and
securing their return home to their tribal communities.
I. The Wyandotte Nation Has Fought to Protect Our Tribal Cultural
Heritage
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep intangible and tangible significance
to a tribal nation. Many people view our cultural heritage as beautiful
works of art, as talismans of a past culture they would like to own, or
as items to trade for profit. Whatever intrinsic beauty these items
possess, that is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars. our families, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. So important are these items of cultural heritage
that they belong to the community as a whole--as our shared inheritance
and as our shared responsibility to honor and protect for present and
future generations.
The Wyandotte Nation has first-hand experience in fighting to
prevent the loss of our cultural heritage due to theft, trafficking,
and illegal sales. Many of our tribal artifacts are now in museums
abroad or in private collections outside the jurisdiction of the United
States, due to fact that we for many years did not have the financial
means or the ability to track down and acquire the items that were
historically ours.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
The Wyandotte Nation fully supports the passage of the Safeguard
Tribal Objects of Patrimony (STOP) Act of 2019, S. 2165. Gaps in
existing federal law have enabled dealers and collectors to operate in
the shadows when it comes to items of tribal cultural
heritageespecially once exported abroad. The STOP Act illuminates these
dark corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARP A).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But NAGRA
and ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARP A in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. The Wyandotte Nation urges you to act swiftly to
enact the STOP Act into law.
______
Prepared Statement of Vivian Korthuis, CEO, Association of Village
Council Presidents
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. The
Association of Village Council Presidents strongly supports swift
passage of the STOP Act.
My name is Vivian Korthuis and I am the Chief Executive Officer of
the Association of Village Council Presidents (AVCP). AVCP is a Native
non-profit corporation and the largest tribal consortium in the United
States with 56 federally recognized tribes as members. The Yukon-
Kuskokwim Delta (YKDelta), where we are located, spans approximately
55,000 square miles and is roughly the size of the State of New York.
In our region there are 48 villages spread along the Yukon River,
Kuskokwim River, and the Bering Sea Coast with a population of
approximately 25,000. Our mission is to provide community development,
education, social services, culturally relevant programs, and advocacy
for the people and tribes of the YK-Delta.
The struggle to protect tribal cultural heritage from illegal
trafficking is a tragically common challenge for communities across
Indian Country. The AVCP tribes are no exception. International markets
have become a safe harbor for trafficking federally protected tribal
cultural heritage items, and they will remain this way until Congress
enacts federal law to address this issue. We firmly believe the STOP
Act will make tremendous strides in preventing international
trafficking of federally protected tribal cultural heritage items and
securing their return home to their tribal communities.
I. AVCP Tribes Have Fought to Protect Our Tribal Cultural Heritage
Items of tribal cultural heritage are as unique as the tribes to
whom they belong. These items share the common characteristics of being
of deep intangible and tangible significance to a tribe. Many people
view our cultural heritage as beautiful works of art, as talismans of a
past culture they would like to own, or as items to trade for profit.
Whatever intrinsic beauty these items possess, that is not their
intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars, our families, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. So important are these items of cultural heritage
that they belong to the community as a whole-as our shared inheritance
and as our shared responsibility to honor and protect for present and
future generations.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
AVCP fully supports the passage of the Safeguard Tribal Objects of
Patrimony (STOP) Act of 2019, S. 2165. Gaps in existing federal law
have enabled dealers and collectors to operate in the shadows when it
comes to items of tribal cultural heritage-especially once exported
abroad. The STOP Act illuminates these dark corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARPA).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But NAGRA
and ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARPA in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. AVCP urges you to act swiftly to enact the STOP Act
into law.
Thank you for your dedication, commitment, and conscientious work
on behalf of Indian Country.
______
Prepared Statement of Hon. William Harris, Chief, Catawba Indian Nation
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. The Catawba
Indian Nation strongly supports swift passage of the STOP Act.
My name is William Harris, and I am the Chief of the Catawba Indian
Nation. The struggle to protect tribal cultural heritage from illegal
trafficking is a tragically common challenge for communities across
Indian Country. The Catawba Indian Nation is no exception.
International markets have become a safe harbor for trafficking
federally protected tribal cultural heritage items, and they will
remain this way until Congress enacts federal law to address this
issue. We firmly believe the STOP Act will make tremendous strides in
preventing international trafficking of federally protected tribal
cultural heritage items and securing their return home to their tribal
communities.
I. The Catawba Indian Nation Has Fought to Protect Our Tribal Cultural
Heritage
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep intangible and tangible significance
to a tribal nation. Many people view our cultural heritage as beautiful
works of art, as talismans of a past culture they would like to own, or
as items to trade for profit. Whatever intrinsic beauty these items
possess, that is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars, our families, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. So important are these items of cultural heritage
that they belong to the community as a whole--as our shared inheritance
and as our shared responsibility to honor and protect for present and
future generations.
Before contact with the Europeans, the Catawba people inhabited
most of the Piedmont area of South Carolina, North Carolina and parts
of Virginia. By the late 17th century, trade began having a major
impact on the Catawba society. Catawba villages became a major hub in
the trade system between the Virginia traders and the Carolina traders.
We have long recognized the importance of the voluntary trading and
selling our traditional arts. In fact, this was the lifeblood of our
economy and helped our people survive the Great Depression. However,
there must be better protections to prohibit the illicit trade of
tribes' sacred and cultural items that are illegally taken from
indigenous people.
Despite protections in current law, the illicit trade in tribes'
tangible cultural heritage continues to pose a grave threat to our
cultural survival. Our sacred and cultural items are illegally taken
from our people, threatening the maintenance of our cultures and
traditions and depriving us of the cultural legacy we seek to leave our
future generations. Meanwhile, a lucrative black market in our cultural
heritage thrives, and without explicit export restrictions many of our
sacred and cultural items end up abroad. Once abroad, we have had very
little success in efforts to bring them home. For this reason, the
Catawba Indian Nation supports the STOP Act's goal of making it more
difficult to export and easier for tribes to regain their cultural
heritage from abroad.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
The Catawba Indian Nation fully supports the passage of the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019, S. 2165. Gaps
in existing federal law have enabled dealers and collectors to operate
in the shadows when it comes to items of tribal cultural heritage--
especially once exported abroad. The STOP Act illuminates these dark
corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARPA).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But NAGRA
and ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARPA in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. The Catawba Indian Nation urges you to act swiftly to
enact the STOP Act into law.
______
Prepared Statement of Deana M. Bovee, Tribal Chairwoman, Susanville
Indian Rancheria
My name is Deana M. Bovee and I am the Tribal Chairwoman of the
Susanville Indian Rancheria. The struggle to protect tribal cultural
heritage from illegal trafficking is a tragically common challenge for
communities across Indian Country. The Susanville Indian Rancheria is
no exception. International markets have become a safe harbor for
trafficking federally protected tribal cultural heritage items, and
they will remain this way until Congress enacts federal law to address
this issue. We firmly believe the STOP Act will make tremendous strides
in preventing international trafficking of federally protected tribal
cultural heritage items and securing their return home to their tribal
communities.
I. The Susanville Indian Rancheria Has Fought to Protect Our Tribal
Cultural Heritage
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep intangible and tangible significance
to a tribal nation. Many people view our cultural heritage as beautiful
works of art, as talismans of a past culture they would like to own, or
as items to trade for profit. Whatever intrinsic beauty these items
possess, that is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars, our families, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. So important are these items of cultural heritage
that they belong to the community as a whole--as our shared inheritance
and as our shared responsibility to honor and protect for present and
future generations.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
The Susanville Indian Rancheria fully supports the passage of the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019, S. 2165. Gaps
in existing federal law have enabled dealers and collectors to operate
in the shadows when it comes to items of tribal cultural heritage-
especially once exported abroad. The STOP Act illuminates these dark
corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARPA).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But NAGRA
and ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARPA in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. The Susanville Indian Rancheria urges you to act
swiftly to enact the STOP Act into law.
______
Prepared Statement of Sealaska Heritage Institute: Tlingit, Haida, and
Tsimshian
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. Sealaska
Heritage Institute (SHI), a Native nonprofit serving the Tlingit,
Haida, and Tsimshian people of Southeast Alaska, strongly supports
swift passage of the STOP Act.
My name is Rosita Worl and I am the president of SHI. The struggle
to protect tribal cultural heritage from illegal trafficking is a
tragically common challenge for communities across Indian Country.
International markets have become a safe harbor for trafficking
federally protected tribal cultural heritage items, and they will
remain this way until Congress enacts federal law to address this
issue. We firmly believe the STOP Act will make tremendous strides in
preventing international trafficking of federally protected tribal
cultural heritage items and securing their return home to their tribal
communities.
I. Sealaska Heritage Institute] Has Fought to Protect Our Tribal
Cultural Heritage
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep intangible and tangible significance
to a tribal nation. Many people view our cultural heritage as beautiful
works of art, as talismans of a past culture they would like to own, or
as items to trade for profit. Whatever intrinsic beauty these items
possess, that is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars, our ceremonies, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. Many of our cultural objects are clan at. centsowu
(sacred objects). They are used in ceremonies to evoke the spirits of
our ancestors. Under our Native laws, at. centsowu cannot be alienated
from the clans to which they belong, and yet, we see our sacred objects
across the world separated from their clans and being sold to the
highest bidder.
We have found it to be near impossible to repatriate items sold
internationally or even in the United States by private collectors.
In 2016, Sealaska Heritage protested a Paris auction orchestrated
by the company Eve, which put up for sale 10 Tlingit and Haida sacred
objects, including a Tlingit Ixt' (Shaman's) rattle. The auction house
ignored our pleas to stop the sale and the Tlingit people who appeared
in Paris to protest the event. The United Nations' Universal
Declaration of Human Rights has provisions to protect cultural
property, but it is weak on enforcement, so the objects, which we
believe are imbued with the spirits of our ancestors, were sold to the
highest bidder.
In 2017, the auction house ``The Cobbs'' in New Hampshire attempted
to sell a Tlingit Ixt' (Shaman) amulet. Native people would never
alienate such a thing, so it probably was removed from a sacred space
in the woods, a fate suffered by so many of our sacred objects in the
past. Sealaska Heritage posted a plea for donations on Facebook so that
we could bid on the amulet and possibly repatriate it to the tribes.
The post reached more than 22,000 people and generated almost 800
reactions and nearly 60 comments. Clearly it hit a nerve.
As it turned out, none of the offers for the amulet, including
SHI's bid, met the minimum price set for the object, so the amulet did
not sell. It was at that point SHI reached out to the seller through
the auction house to try to negotiate a lower price and get it back.
Unfortunately, we were not able to negotiate a deal with the seller.
To address the latter problem, SHI is advocating through the Alaska
congressional delegation to enact a federal law allowing tax credits to
private collectors who give cultural objects back to tribes.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
SHI fully supports the passage of the Safeguard Tribal Objects of
Patrimony (STOP) Act of 2019, S. 2165. Gaps in existing federal law
have enabled dealers and collectors to operate in the shadows when it
comes to items of tribal cultural heritage-especially once exported
abroad. The STOP Act illuminates these dark corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARPA).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But NAGRA
and ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARPA in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. I urge you to act swiftly to enact the STOP Act into
law.
______
Prepared Statement of Paul Edmondson, President/CEO, National Trust for
Historic Preservation
Chairman Hoeven, Vice Chairman Udall, and members of the Committee,
thank you for holding this hearing on the Safeguard Tribal Objects of
Patrimony Act of 2019 (S. 2165). My name is Paul Edmondson, and I am
the President and CEO of the National Trust for Historic Preservation.
I appreciate this opportunity to voice the National Trust's support for
this bipartisan bill to strengthen laws aimed at preventing trafficking
in Native American cultural items and facilitating the voluntary return
of sacred and cultural items.
Congress chartered the National Trust in 1949 to ``facilitate
public participation in historic preservation'' and further the
purposes of federal historic preservation laws. With headquarters in
Washington, D.C., 28 historic sites, more than one million members and
supporters, and a national network of partners in states, territories,
and the District of Columbia, the National Trust works to save
America's historic places and advocates for historic preservation as a
fundamental value in programs and policies at all levels of government.
Continued sales of cultural items at overseas auctions highlight
shortcomings in existing law that have been exploited for far too long.
Currently, no law explicitly prohibits exporting items obtained
illegally under the Antiquities Act of 1906, the Archaeological
Resource Protection Act (ARPA), or the Native American Graves
Protection and Repatriation Act (NAGPRA).
The lack of export prohibitions presents significant challenges to
tribes' ability to work with foreign governments to stop sales and
repatriate important cultural items. This Committee has heard extensive
testimony from the Pueblo of Acoma, which is included in the portfolio
of National Trust Historic Sites, and others about how efforts to
recover sacred items are significantly hampered by the inadequate
federal framework for protecting and recovering cultural items. Even
successful repatriation, as in the recent case of the ceremonial Acoma
Shield, can take years and require extensive coordination.
The STOP Act addresses this deficiency in existing law by expressly
prohibiting export of illegally obtained cultural items and creating a
certification system for items obtained lawfully. The bill's
strengthened penalties under NAGPRA will also provide greater
deterrence against illegal trafficking. Importantly, the STOP Act also
facilitates voluntary return of cultural items to provide new
opportunities to restore tangible cultural heritage.
The National Trust strongly supports the STOP Act, which we believe
will enhance our nation's commitment to respecting and protecting the
tangible cultural heritage of tribes. We encourage the Committee to act
favorably and expeditiously on this bill. If you have any questions
concerning these issues, please do not hesitate to communicate with me.
______
Prepared Statement of John E. Echohawk, Executive Director, Native
American Rights Fund
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. The Native
American Rights Fund (NARF) strongly supports swift passage of the STOP
Act.
My name is John Echohawk and I am the Executive Director of NARF.
The struggle to protect tribal objects of cultural heritage from
illegal trafficking is a tragically common challenge for communities
across Indian Country. International markets have become a safe harbor
for trafficking federally protected tribal cultural heritage items, and
they will remain this way until Congress enacts federal law to address
the issue. We firmly believe that, if appropriately funded, the STOP
Act will make tremendous strides in preventing international
trafficking of federally protected tribal cultural heritage items and
securing their return home to their tribal communities.
I. NARF Has Fought to Protect Tribal Cultural Heritage Throughout
Indian Country
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep significance, tangibly and intangibly,
to a tribal nation. Many non-tribal people view tribal cultural
heritage as beautiful works of art, as talismans of a past culture they
would like to own, or as items to trade for profit. Whatever intrinsic
beauty these items possess, that is not their intended purpose. They
are important for the health of ongoing, living cultures.
Tribal items of cultural heritage have significant roles to play
within tribal cultures, traditional ceremonial obligations, tribal
families, and ways of life. Tribal cultural heritage also helps tribal
members honor and uphold their values and teach those values to their
community members, particularly young people. So important are these
items of cultural heritage that they are generally seen as belonging to
the community as a whole-as tribal people's shared inheritance and as
their shared responsibility to honor and protect for present and future
generations.
NARF has a long track record in fighting to prevent the loss of
tribal cultural heritage due to theft, trafficking, and illegal sales.
As experts in the field, NARF attorneys have represented many tribes in
all matters of national and international scope for over 50 years.
Specifically, NARF has advocated for tribal protections related to the
repatriation of tribal cultural heritage items and reburial of Native
American bodies. Our attorneys were among those who pioneered the
development and implementation of the Native American Graves Protection
and Repatriation Act (NAGPRA). Former NARF Attorney Walter Echohawk
continued to advocate for changes in legislation to fill gaps left by
language of NAGPRA to extend protections to all tribal nations equally.
In furthering the pursuit of this cause, NARF remains involved in the
representation of numerous tribes on NAGPRA claims.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
NARF fully supports the passage of the Safeguard Tribal Objects of
Patrimony (STOP) Act of 2019, S. 2165. Gaps in existing federal law
have enabled dealers and collectors to operate in the shadows when it
comes to items of tribal cultural heritage-especially once exported
abroad. The STOP Act illuminates these dark corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like NAGPRA and the Archaeological Resources Protection Act (ARPA).
Instead, when tribes try to regain their sacred items from an auction
block abroad, they are told these gaps in United States law prevent
government action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But
NAGPRA and ARPA have other serious limitations that make even their
domestic implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARPA in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals. Technical matters should be addressed in a manner that does
not delay passage, and funding authority should be clear as well, to
allow meaningful near-term impact.
As part of what we assume will be worked out to help the STOP Act
best meet its goals, we note two issues we believe will need further
attention. First, caselaw has revealed that the definition of ``Native
American'' in NAGPRA is in need of clarification, and that same
clarification would be beneficial here. To best accomplish the purposes
of the STOP Act, the definition of Native American that currently
refers to the NAGPRA definition should be amended to read, ``'Native
American' means of, or relating to, a tribe, people, or culture that is
or was indigenous to any geographic area that is now located within the
boundaries of the United States''.
Second, Section 6, providing for voluntary return of tangible
cultural heritage, in subsection (e) allows the Secretary to provide
tax documentation for a charitable gift to an Indian tribe. The
implications of this process are concerning and conflate the human
rights purposes of this legislation with financial or property issues.
Items should be returned because as tangible cultural heritage or
cultural patrimony, they are by definition not properly subject of
valuation. Providing tax documentation will effectively monetize the
items of tangible cultural heritage and cultural patrimony.
Regrettably, such a valuation will likely set a floor value for all
similar items on the international black market. The opening bid for
similar items will likely be the value set by the Secretary on a
voluntarily returned similar item. It would be best simply to delete
Section 6,
Subsection (e) in the STOP Act, and any other provision that
attaches a monetary value to tangible cultural heritage or patrimony.
These difficulties should be resolved and should not delay passage
of the Act. We need the STOP Act now. Without it, we will continue to
see tribal cultural heritage trafficked just out of our reach and in
front of our very eyes. NARF urges you to act swiftly to enact the STOP
Act into law.
______
Prepared Statement of J. Michael Chavarria, Chairman, All Pueblo
Council of Governors
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. The All
Pueblo Council of Governors strongly supports swift passage of the STOP
Act.
My name is J. Michael Chavarria and I am the Chairman of the All
Pueblo Council of Governors. The struggle to protect tribal cultural
heritage from illegal trafficking is a tragically common challenge for
communities across Indian Country. The All Pueblo Council of Governors
is no exception. International markets have become a safe harbor for
trafficking federally protected tribal cultural heritage items, and
they will remain this way until Congress enacts federal law to address
this issue. We firmly believe the STOP Act will make tremendous strides
in preventing international trafficking of federally protected tribal
cultural heritage items and securing their return home to their tribal
communities.
I. The All Pueblo Council of Governors Has Fought to Protect Our Tribal
Cultural Heritage
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep intangible and tangible significance
to a tribal nation. Many people view our cultural heritage as beautiful
works of art, as talismans of a past culture they would like to own, or
as items to trade for profit. Whatever intrinsic beauty these items
possess, that is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars, our families, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. So important are these items of cultural heritage
that they belong to the community as a whole--as our shared inheritance
and as our shared responsibility to honor and protect for present and
future generations.
The All Pueblo Council of Governors adopted Resolutions Nos. 2015-
12 and 2015-13 in recognition that our Pueblo nations have been
disproportionately affected by illegal trafficking in tribal cultural
heritage, and they called upon the United States to address
international repatriation and take affirmative actions to stop the
theft and illegal sale of tribal cultural heritage both domestically
and abroad. Despite protections in current law, the illicit trade in
tangible cultural heritage continues to pose a grave threat to the
cultural survival of our Pueblo nations. Sacred and cultural items from
the Pueblos are highly sought after and often illegally trafficked
through lucrative black markets. Without explicit export restrictions,
many of our Pueblos' sacred and cultural items end up abroad, making it
very difficult to bring them home. This illegal trafficking threatens
the maintenance of our cultures and traditions, depriving us of the
legacy we seek to leave our future generations.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
The All Pueblo Council of Governors fully supports the passage of
the Safeguard Tribal Objects of Patrimony (STOP) Act of 2019, S. 2165.
Gaps in existing federal law have enabled dealers and collectors to
operate in the shadows when it comes to items of tribal cultural
heritage--especially once exported abroad. The STOP Act illuminates
these dark corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARPA).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But NAGRA
and ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARPA in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. The All Pueblo Council of Governors urges you to act
swiftly to enact the STOP Act into law.
Additional statement
The Pueblo of Santa Clara strongly supports prompt passage of the
STOP Act.
My name is Michael Chavarria and I am the duly elected Governor of
the Pueblo of Santa Clara, a federally recognized Indian tribe. Santa
Clara Pueblo, like many tribal communities, struggles to protect its
cultural heritage items from illegal trafficking. That struggle is
compounded by a gap in federal law that has made international markets
a safe haven for federally protected tribal cultural heritage items.
The STOP Act will plug that gap by preventing international trafficking
of federally protected tribal cultural heritage items and securing
their return home to their tribal communities.
I. Items of Tribal Cultural Heritage are not Trinkets
While many non-Pueblo people admire our items of cultural heritage
for their beauty, those items are not trinkets. The Pueblo' s items of
cultural heritage are central to the Pueblo's cohesion and way of life.
These items tell us who we are and where we come from, and they direct
our paths into the future. We would not be Santa Clara Pueblo people
without our items of cultural heritage.
Because of the central and critical role of such items to our
culture, they do not and cannot belong to any individual tribal
member--instead, they belong to the Santa Clara Pueblo community as a
whole. Each member of the Pueblo has a shared obligation to protect
them, in order to protect the existence of the community as Santa Clara
Pueblo. So when an item of cultural heritage is separated from the
Santa Clara Pueblo people, we suffer direct and immediate harm. As
explained below, the STOP Act would go a long way to alleviating such
harm.
II. The STOP Act Would Close Gaps in Federal Law
The STOP Act would close existing gaps in federal law that have
enabled dealers and collectors to operate with impunity with regard to
items of tribal cultural heritage-particularly once such items are
exported abroad.
For example, the Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of
Cultural Property, a 1970 treaty to which the United States is a
signatory, allows signatory countries to request the return of cultural
property from other signatory countries, and to call on other signatory
countries to control imports of those items and help with repatriation.
Yet, those provisions only apply to items that are specifically
prohibited from export by a requesting signatory country. Because the
United States has not explicitly prohibited exports of tribal cultural
heritage items otherwise protected under federal laws like the Native
American Graves Protection and Repatriation Act (NAGPRA) and the
Archaeological Resources Protection Act (ARP A), the federal government
cannot act to facilitate return of such items from another signatory
country. Tribal nations are left on their own to seek the return of
their cultural heritage items. Many tribes lack the resources to do
that.
If it were enacted, the STOP Act would plug this gap by (1)
prohibiting the export of tribal cultural heritage items already
prohibited from being trafficked under federal law and facilitating the
international repatriation of such items; and (2) facilitating
coordination among federal agencies to protect and repatriate such
items and to aid the voluntary return of tribal tangible cultural
heritage property more broadly.
While the STOP Act is built upon NAGPRA and ARPA, we must note that
NAGPRA and ARP A have serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. We urge Congress to enact the STOP Act, but we also
encourage Congress to address the limitations of NAGPRA and ARPA in the
very near future.
Please understand that unless the STOP Act is enacted, tribal
communities will continue to see our tribal cultural heritage property
treated like secular objects of art, which deeply damages tribal
communities. The Pueblo of Santa Clara urges you to act promptly to
enact the STOP Act into law.
______
Prepared Statement of C. Timothy McKeown, Ph.D, Repatriation Advisor,
National Association of Tribal Historic Preservation Officers
Thank you for the opportunity to provide a statement on behalf of
the National Association of Tribal Historic Preservation Officers
(NATHPO) regarding S. 2165, the Safeguard Tribal Objects of Patrimony
Act of 2019.
The purpose of S. 2165 is to carry out the United States' trust
responsibility to Indian tribes by: (1) enhancing existing prohibition
to the trafficking of Native American cultural items; (2) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already protected under federal law; and (3)
facilitating coordination among federal agencies in protecting and
repatriating such items and in aiding the voluntary return of Native
American tangible cultural heritage more broadly. NATHPO strongly
supports the bill but recommends several changes to enhance its overall
effectiveness.
Sec. 4 Enhancement of NAGPRA Penalties
This section amends Section 1170 of title 18, United States Code by
striking ``5 years'' each place it appears and inserting ``10 years.''
NATHPO supports this change, but does not believe that simply
increasing the period of possible incarceration for illegal trafficking
of Native American cultural items will significantly increase the
effectiveness of this criminal statute. Data provided by the Executive
Office of the United States Attorneys indicates that since 1990, 31
individuals (one was convicted twice) and one entity have been
convicted of illegal trafficking of Native American cultural items.
Most pled guilty or were convicted of misdemeanor offenses. The length
of the potential penalty amount does not appear to have had any
significant impact on the number of successful prosecutions since few
of those who were convicted received any period of incarceration
whatsoever.
Two external factors do appear to have had a significant impact on
the number of successful prosecutions for illegal trafficking of Native
American cultural items. First, with a positive impact, was
establishment of the interagency ARPA task force in 1991 to 1995 to
reduce the destruction of cultural sites on lands under the management
of the United States in New Mexico, Arizona, Utah, and Colorado by
identification, prosecution and conviction of looters, dealers and,
collectors who trafficked in artifacts taken in violation of federal
laws and regulations. Members of the ARPA Task Force aggressively
investigated NAGPRA trafficking cases, including use of undercover
agents, with the result that 14 of the convictions for illegal
trafficking of Native American sacred objects or objects of cultural
patrimony under 18 U.S.C. 1170 (b) occurred in New Mexico, Arizona, and
Utah. NATHPO encourages Congress to appropriate funding specifically to
reconstitute an interagency task force to identify, prosecute, and
convict looters, dealers, and collectors who traffic in Native American
cultural items and other artifacts taken in violation of federal laws
and regulations.
The second factor that has significantly and negatively impacted
the number of successful prosecutions for illegal trafficking of Native
American cultural items was the 9th Circuit Court of Appeals 2004
opinion in Bonnichsen v. U.S. (367 F.3d 864) in which the Court
interpreted the statutory definition of ``Native American'' to require
a ``significant relationship'' between a cultural item and a claiming
Indian tribe. While the Bonnichsen opinion applies only to the 9th
Circuit, it has created ambiguity which, in at least one case, has led
to an acquittal in a NAGPRA trafficking case. Significantly, the number
of NAGPRA convictions has decreased dramatically nationwide since 2004.
In order to address this issue, NATHPO recommends that the Congress
amends NAGPRA's definition of ``Native American'' as follows:
Definition of Native American
Section 2 (9) of the Native American Graves Protection and
Repatriation Act (25 U.S.C. 3001(9)) is amended--
(1) by inserting ``or was'' after ``is''; and
(2) by inserting after ``indigenous to'' the following: ``any
geographic area that is now located within the boundaries of''
NMAIA Judicial Jurisdiction and Enforcement
An additional issue you may wish to consider relates to processes
for the return of Native American sacred objects and objects of
cultural patrimony from the Smithsonian Institution. At least one group
of Indian tribes has unsuccessfully tried to recover such items from
the National Museum of Natural History and has exhausted their
administrative appeals, despite a unanimous recommendation to
repatriate from the Smithsonian's own repatriation advisory committee.
In such a situation under NAGPRA, an Indian tribe is authorized to
appeal to the Federal District Court for equitable remedy (25 U.S.C.
2013). However, the National Museum of the American Indian Act does not
include a similar authorization. NATHPO recommends amending the NMAI
Act to include the following provision.
20 U.S.C. 80-q is amended by inserting the following: ``16.
Judicial Jurisdiction and Enforcement. The United States district
courts shall have jurisdiction over any action brought by any person
alleging a violation of this Act and shall have the authority to issue
such orders as may be necessary to enforce the provisions of this
Act.''
______
Prepared Statement of Evelyn Beeter, Mt. Sanford Tribal Consortium
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. The Mt.
Sanford Tribal Consortium strongly supports swift passage of the STOP
Act.
My name is Evelyn Beeter and I am the President/CEO of Mt. Sanford
Tribal Consortium. The struggle to protect tribal cultural heritage
from illegal trafficking is a tragically common challenge for
communities across Indian Country. The Mt. Sanford Tribal Consortium is
no exception. International markets have become a safe harbor for
trafficking federally protected tribal cultural heritage items, and
they will remain this way until Congress enacts federal law to address
this issue. We firmly believe the STOP Act will make tremendous strides
in preventing international trafficking of federally protected tribal
cultural heritage items and securing their return home to their tribal
communities.
I. The Mt. Sanford Tribal Consortium Has Fought to Protect Our Tribal
Cultural Heritage
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep intangible and tangible significance
to a tribal nation. Many people view our cultural heritage as beautiful
works of art, as talismans of a past culture they would like to own, or
as items to trade for profit. Whatever intrinsic beauty these items
possess, that is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars, our families, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. So important are these items of cultural heritage
that they belong to the community as a whole--as our shared inheritance
and as our shared responsibility to honor and protect for present and
future generations.
The Mt. Sanford Tribal Consortium has first-hand experience in
fighting to prevent the loss of our cultural heritage due to theft,
trafficking, and illegal sales.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
The Mt. Sanford Tribal Consortium fully supports the passage of the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019, S. 2165. Gaps
in existing federal law have enabled dealers and collectors to operate
in the shadows when it comes to items of tribal cultural heritage--
especially once exported abroad. The STOP Act illuminates these dark
comers.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARP A).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But NAGRA
and ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARP A in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. The Mt. Sanford Tribal Consortium urges you to act
swiftly to enact the STOP Act into law.
______
Prepared Statement of Julie Kitka, President, Alaska Federation of
Natives
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. The Alaska
Federation of Natives (AFN) strongly supports swift passage of the STOP
Act.
My name is Julie Kitka and I am the President of AFN. The struggle
to protect tribal cultural heritage from illegal trafficking is a
tragically common challenge for communities across Indian Country.
Alaska Native cultures is no exception. International markets have
become a safe harbor for trafficking federally protected tribal
cultural heritage items, and they will remain this way until Congress
enacts federal law to address this issue. We firmly believe the STOP
Act will make tremendous strides in preventing international
trafficking of federally protected tribal cultural heritage items and
securing their return home to their tribal communities.
I. AFN as Fought to Protect Our Tribal Cultural Heritage
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep intangible and tangible significance
to a tribal nation. Many people view our cultural heritage as beautiful
works of art, as talismans of a past culture they would like to own, or
as items to trade for profit. Whatever intrinsic beauty these items
possess, that is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars, our families, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. So important are these items of cultural heritage
that they belong to the community as a whole--as our shared inheritance
and as our shared responsibility to honor and protect for present and
future generations.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
AFN fully supports the passage of the STOP Act of 2019, S. 2165.
Gaps in existing federal law have enabled dealers and collectors to
operate in the shadows when it comes to items of tribal cultural
heritage--especially once exported abroad. The STOP Act illuminates
these dark corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARPA).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But NAGRA
and ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARPA in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. AFN urges you to act swiftly to enact the STOP Act
into law.
______
Prepared Statement of the Association on American Indian Affairs
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. The
Association on American Indian Affairs strongly supports swift passage
of the STOP Act. Please recognize, however, that the current 2019
legislative draft does not go far enough to stop the long and sordid
history of looting and trafficking--a history that has been supported
by assimilationist federal law and policies against Indian Tribes--
which has emboldened dealers, collectors and institutions to traffic,
commercialize and display our sensitive cultural heritage without our
free, prior and informed consent.
My name is Shannon O'Loughlin, I am a citizen of the Choctaw Nation
of Oklahoma and the Executive Director and Attorney for the Association
on American Indian Affairs. The Association is the oldest non-profit
serving Indian Country protecting sovereignty, preserving culture,
educating youth, and building capacity. Since its earliest beginnings
assisting Pueblo Peoples defend their aboriginal lands and water rights
in 1922, the Association was formed to change the destructive path of
federal policy from assimilation, termination, and allotment-to
sovereignty, self-determination, and self-sufficiency. For nearly 100
years, the Association has worked tirelessly to protect Native American
cultural sovereignty--the things that make us who we are as indigenous
peoples--through Cultural Heritage Protection, Repatriation, and Sacred
Sites initiatives, as well as ensuring the inter-generational
transmission of culture through our Youth initiatives. As a vital part
of our efforts, the Association works hand in hand with Tribes, Tribal
organizations, museums, lawyers, academics, auction houses and the
general public to secure the safe return of tangible cultural heritage
such as our Ancestors, their burial items, sacred objects and cultural
patrimony.
The Association maintains data on foreign and domestic auctions,
including how many potentially sensitive items are being advertised by
auction houses for sale. Potentially sensitive items are ``cultural
items'' as defined by the Native American Graves Protection and
Repatriation Act, and ``archaeological resources'' defined by the
Archaeological Resources and Protection Act. \1\ In 2019, the
Association found that there were 3,721 potentially sensitive Native
American cultural items \2\ that were being sold at auction
domestically and internationally, affecting approximately 150 Tribal
Nations and regions. Of these 3,721 sensitive items--there were 20
foreign auctions in which 146 sensitive items had been included for
auction.
---------------------------------------------------------------------------
\1\ These definitions are found in NAGPRA at 25 U.S.C. sec. 3001,
and in ARPA at 16 U.S.C. sec. 470bb. Auction houses provide very little
information, or refuse to provide access to information, that may help
Tribes and organizations like the Association determine whether any
particular item has been trafficked pursuant to federal, state or
Tribal laws. All we know is that an image and/or description provided
by an auction house is similar to other ``cultural items'' and
``archaeological resources'' that are protected under federal, state
and Tribal laws. As part of what should be professional due diligence,
foreign and domestic auction houses and dealers do not consult with
Tribal Nations to determine whether an item has been trafficked--in
line with their good faith responsibilities to purchasers.
\2\ The numbers of sensitive items do not account for the total
number of Native American items being sold that are legitimate
commercial items, such as Native American made jewelry, arts and crafts
that are created by Native American artists for a commercial market; we
are only reporting on sensitive items.
---------------------------------------------------------------------------
This year, because of the coronavirus pandemic, there has been an
increase in sales through online auctions. The total number of
potentially sensitive cultural items for sale in 2020 seems to have
decreased for the first half of the year--499 sensitive items have been
marketed for auction sale from January through June this year affecting
approximately 143 Tribal Nations. However, the number of international
auctions and the number of sensitive items for sale at those auctions
this year has greatly increased: there have been 49 international
auctions, that have sold or are selling 133 sensitive items. These
numbers show an alarming increase in the sale of sensitive items
internationally, and mark a change in the direction of foreign sales
since the Government Accountability Office report from 2018 found that
sales had been decreasing after 2016. It is likely this increase is
occurring because dealers want to sell all they can before the STOP Act
is passed; and unfortunately, dealers may be taking advantage of the
fact that Tribes have not had the capacity to go after these sales as
strong because their attention is being diverted to protecting the
health and safety of their citizens from the coronavirus pandemic.
Congress must pass the STOP Act immediately to stop this continued
plundering of our sensitive and sacred objects. International markets
continue to be a safe harbor for trafficking federally protected Tribal
cultural heritage. The Association believes that foreign auctions and
dealers (many of whom are connected to U.S. dealers and collectors)
will continue to increase their sales of our heritage unless Congress
enacts federal law to address this issue. We firmly believe the STOP
Act will support a change in dealer and auction practices that will
prevent the international trafficking of Tribal cultural heritage and
secure their return home to their Tribal Nations.
We also must alert you that the opposition to the STOP Act by
antiquities dealers is misplaced and come from a very small set of
antiquities dealers. The sale of ``antiquities'' and ``artifacts'' grew
out of failed and abhorrent federal policies meant to dispossess Tribal
Nations of their lands and their future, and assimilate them out of
their traditional cultural and religious practices. Individuals
profited off those federal policies by laying claim to stolen and
looted Native American items. Today, Tribal Nations are still locating
items that have been traded and sold, in which those Nations have
retained stories and oral traditions as to how particular or groups of
items left their hands. Sometimes, individual Tribal citizens sold the
items under duress because they needed food or shelter. At other times,
collectors creeped in at night to steal objects. These scenarios
continue today.
Tribal antiquities dealers want to continue to sell our stolen and
looted cultural heritage without restriction--even when federal, state
and Tribal law mandate otherwise. The international sale of these items
is one method antiquities dealers have been able to use to skirt
domestic law. The STOP Act will put the burden on the holder of an item
to prove that the person who wishes to export it holds legitimate
title, and provide information to Tribes and others to make sure that
what the antiquities dealers are certifying is correct. After all, much
of the information that is included with these sensitive items is
created by the dealer to obtain a strong sale price; antiquities
dealers and other private collectors do not consult with affiliated
Tribal Nations to determine the true origin information of a sensitive
item (seemingly in violation of the due diligence and good faith that
consumers deserve).
Please also note that though the STOP Act is designed to meet very
narrow goals to prevent exportation to and allow return of sensitive
items from foreign nations, current domestic law including NAGPRA and
ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. The Association has found that if an object is not in
violation of NAGPRA, no other state and federal laws are examined, nor
are affiliated Tribes contacted to determine whether the item is
legitimately held. The Association is working to develop changes to
NAGPRA in the future meant to resolve these and other limitations.
The U.S. government has allowed dealers and collectors to profit
off the diminution of the sacred, cultural and human rights of Tribal
Nations. The time is now to STOP dealers at our borders and return
objects that have been improperly taken from Tribal Nations to foreign
lands. The Association on American Indian Affairs urges you to act
swiftly to enact the STOP Act into law.
______
Prepared Statement of the Confederated Tribes of Warm Springs
The Confederated Tribes of Warm Springs (``the Tribes'') would like
to thank the Senate Committee on Indian Affairs for holding this
legislative hearing on the Western Tribal Water Infrastructure Act
(S.3044), sponsored by Senator Wyden and co-sponsored by Senator
Merkley. The Tribes strongly support S.3044 and any effort to provide
tribes with additional tools to meet the basic water needs of their
members.
Warm Springs provides water to approximately 4,500 people on the
Warm Springs Reservation in Central Oregon. Our 640,00 acres
reservation spans from snow-capped mountains to the salmon-bearing
Deschutes River--with forests and high desert between. Most of our
tribal population lives in an arid portion of Oregon's high desert.
The vast majority of our tribal members live on the Reservation,
where we are suffering from dramatically high unemployment--which
exceeded 60 percent many times over the last several years. A recent
study ranked the town of Warm Springs as having the second highest
incidence of poverty in Oregon. Putting our people to work and
providing basic social services -especially health care and education--
for our members is extremely challenging at Warm Springs. Possibly more
challenging than anywhere in Indian Country, or the nation at large.
The COVID-19 crisis has struck our reservation especially hard. As
of last week, Warm Springs Health and Wellness Center has tested 852
people. We have had 55 positive cases with 19 tests still pending and
four people hospitalized.
Many of our families are crowded into small dwelling units. Our
water infrastructure deficiencies have exacerbated the COVID-19
response--as both social distancing and access to clean, running water
are very real challenges on our reservation.
The Agency Water system consists of over 825 water service
connections that serve both Commercial and Residential homes that has
been severely impacted by the Shitike Creek Crossing and failed
Pressure Reducing Valves.
Water is produced and delivered via the following four community-
owned and operated water systems. Each of those systems has significant
failures, as does the Tribes' water treatment facility. Water storage
has also been a challenge for Warm Springs--so much so that we received
a substantial grant from the Republic of Turkey in 2013 to help finance
construction of a new water tower to service our elementary school.
While there are many federal programs to assist tribes, they have
not individually or collectively been able to meet the magnitude of
infrastructure challenges on our reservation. Three of our four water
delivery systems require major upgrades or replacement. The Tribes are
facing a minimum cost of $5-6 million to simply maintain existing
systems at status quo. To provide for future improvements to meet the
growing population, the Tribes face a cost of $40-50 million for water
infrastructure.
Here is a summary of those needs:
Agency Water System (surface water system from the Deschutes
River at Dry Creek):
--We are addressing upgrade/repair issues identified in an
EPA Administrative Order of Consent and Emergency Order (1414
and 1431). Funding for this resolution is funded at $900,000 to
remediate deficiencies. The current funding is adequate enough
to complete all of the issues identified in the EPA Orders and
will likely require funding of $20 million to complete all
deficiencies and necessary upgrades. The existing water plant
is 40 years old and is nearing its end of life cycle.
--The distribution system is in need of upgrades and
replacements as well. Most recently, the tribe has experienced
a serious failure at the Shitike Creek crossing which required
an emergency repair with a line that is undersized. If this
issue is not mitigated, we will suffer immediate threats to
life and property during a fire disaster. IHS is working with
the tribe to develop plans to install a permanent solution with
a larger line to feed the reservoirs at the south end of the
agency community. The cost to install will likely exceed the
estimated $1.5M in current dollars by the time the engineered
plans are complete.
Sidwalter Water System: To bring the existing facility into
compliance with today's standards we estimate a low-end cost of
$300,000 to upgrade the electrical system and to repair
existing appurtenances (fire hydrants, isolation valves, etc.).
Since the Sidwalter water system was initially constructed in
1977 which was designed for 20 homes, there has been an
addition of 20 homes which requires an expansion of the current
distribution system. The estimated cost for the expansion is
$3.0 million. The expansion would provide a steady source of
potable water to all residents in the Sidwalter area and it
would provide much needed fire protection.
Simnasho/Schoolie Water System:
--The water system feeding the Simnasho has been recently
upgraded in 2012 to decommission previous wells that had
unacceptable levels of Arsenic. The new wells are now located
an additional 5 miles away from the Simnasho area. The storage
capacity of the Simnasho system is inadequate (less than
100,000 gallons) and needs to be upgraded to a reservoir with
the capacity of at least 250,000 to 500,000 gallons. The cost
to upgrade the reservoir is estimated to be somewhere between
$750,000 to $1 million.
--The Schoolie Flat water system was built and designed in
1971 for 20 residential homes is currently operating well below
minimum standards. The Schoolie water system currently has an
additional 40 homes and is going to need about $4 million to
upgrade the existing booster station to house vertical multi-
stage pumps, a new reservoir with at least $250,000 gallons of
capacity and upgrading of the existing 3'' main line to at
least a 6'' main line. This system is currently the highest
need and it also requires an inordinate amount of staff time to
maintain.
The Tribes are currently coordinating with BIA, HIA, HUD and EPA to
cobble together funding for renewal of the water treatment facility.
Our experience is that there must be a better way for Tribes in our
circumstances to seek emergency assistance from the federal government
to provide basic clean water to our members.
We are grateful to Senators Wyden and Merkley for crafting
legislation to give tribes like ours a lifeline. S.3044 would help Warm
Springs get past the ``band-aid'' approach to our water infrastructure
failings and help us make full repairs and replacements where needed.
Particularly in light of the COVID-19 crisis in Indian Country, the
Confederated Tribes of Warm Springs respectively urge the Committee to
favorably review this legislation and support its swift enactment. We
share the sentiment of those at the Navajo Reservation in saying that
``you can't wash your hands without running water.''
______
Prepared Statement of Susan Feller, President & CEO, Association of
Tribal Archives, Libraries and Museums
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. The
Association of Tribal Archives, Libraries, and Museums strongly
supports swift passage of the STOP Act.
My name is Susan Feller and I am the President & CEO of the
Association of Tribal Archives, Libraries, and Museums. The struggle to
protect tribal cultural heritage from illegal trafficking is a
tragically common challenge for communities across Indian Country and
impacts the tribal communities we serve. International markets have
become a safe harbor for trafficking federally protected tribal
cultural heritage items, and they will remain this way until Congress
enacts federal law to address this issue. We firmly believe the STOP
Act will make tremendous strides in preventing international
trafficking of federally protected tribal cultural heritage items and
securing their return home to their tribal communities.
I. The Association of Tribal Archives, Libraries, and Museums Has
Fought to Protect Our Tribal Cultural Heritage
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep intangible and tangible significance
to a tribal nation. Many people view our cultural heritage as beautiful
works of art, as talismans of a past culture they would like to own, or
as items to trade for profit. Whatever intrinsic beauty these items
possess, that is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars, our families, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. So important are these items of cultural heritage
that they belong to the community as a whole--as our shared inheritance
and as our shared responsibility to honor and protect for present and
future generations.
The Association of Tribal Archives, Libraries, and Museums has
first-hand experience in fighting to prevent the loss of our cultural
heritage due to theft, trafficking, and illegal sales. For example, we
currently are helping the Pawnee Nation of Oklahoma in its attempt to
retrieve the human remains and regalia of White Fox, a Pawnee Scout who
died in Sweden in the late 1800s. At the time of his death, the Swedish
government refused to release the remains of White Fox to his brothers.
Instead, it placed his remains in the Karolinska Institute where a
plaster cast was made of his body, his skin was removed and replaced
onto the torso. The remains were then on display for decades. The
Institute has returned the skin to the Pawnee Nation but refuses to
return the regalia, even though they do not have a right to them.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
The Association of Tribal Archives, Libraries, and Museums fully
supports the passage of the Safeguard Tribal Objects of Patrimony
(STOP) Act of 2019, S. 2165. Gaps in existing federal law have enabled
dealers and collectors to operate in the shadows when it comes to items
of tribal cultural heritage-especially once exported abroad. The STOP
Act illuminates these dark corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARPA).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But NAGRA
and ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARPA in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. The Association of Tribal Archives, Libraries, and
Museums urges you to act swiftly to enact the STOP Act into law.
______
Prepared Statement of Hon. Robert A. Mora, Sr., Governor, Pueblo of
Tesuque
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. The Pueblo
ofTesuque strongly supports swift passage of the STOP Act.
My name is Robert A. Mora, Sr. and I am the Governor of the Pueblo
of Tesuque. The struggle to protect tribal cultural heritage from
illegal trafficking is a tragically common challenge for communities
across Indian Country. The Pueblo of Tesuque is no exception.
International markets have become a safe harbor for trafficking
federally protected tribal cultural heritage items, and they will
remain this way until Congress enacts federal law to address this
issue. We firmly believe the STOP Act will make tremendous strides in
preventing international trafficking of federally protected tribal
cultural heritage items and securing their return home to their tribal
communities.
I. The Pueblo of Tesuque Has Fought to Protect Our Tribal Cultural
Heritage
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep intangible and tangible significance
to a tribal nation. Many people view our cultural heritage as beautiful
works of art, as talismans of a past culture they would like to own, or
as items to trade for profit. Whatever intrinsic beauty these items
possess, that is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars, our families, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. So important are these items of cultural heritage
that they belong to the community as a whole-as our shared inheritance
and as our shared responsibility to honor and protect for present and
future generations.
The Pueblo of Tesuque has first-hand experience in fighting to
prevent the loss of our cultural heritage due to theft, trafficking,
and illegal sales. We have had the same experience as our sister
Pueblo, the Pueblo of Acoma. We learned that one of our war shields was
up for auction in France, however for us it was too late and the
contact's we had directed us in a different direction or gave us the
wrong information and therefore we missed out on getting this item
back. We are slowly learning that there are more objects from the
Pueblo abroad and these items are too sensitive to explain or write
down.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
The Pueblo of Tesuque fully supports the passage of the Safeguard
Tribal Objects of Patrimony (STOP) Act of 2019, S. 2165. Gaps in
existing federal law have enabled dealers and collectors to operate in
the shadows when it comes to items of tribal cultural heritage
especially once exported abroad. The STOP Act illuminates these dark
corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of cultural patrimony items and introduces an
accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARP A).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But
NAGPRA and ARPA have other serious limitations that make even their
domestic implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARP A and to secure their return, we
hope to see larger changes to NAGPRA and ARP A in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. The Pueblo of Tesuque urges you to act swiftly to
enact the STOP Act into law.
______
Prepared Statement of RADM Michael D. Weahkee, Director, Indian Health
Service, U.S. Department of Health and Human Services
s. 3099
Chairman Hoeven, Vice-Chairman Udall, and Members of the Senate
Committee on Indian Affairs. I am RADM Michael D. Weahkee, Director of
the Indian Health Service (IHS). Thank you for the opportunity to
provide a statement of the record on S. 3099, the Southeast Alaska
Regional Health Consortium Land Transfer Act of 2019, a bill to provide
for the conveyance of certain property to the Southeast Alaska Regional
Health Consortium (SEARHC), aka the Consortium, located in Sitka,
Alaska.
The IHS mission is to raise the physical, mental, social, and
spiritual health of American Indians and Alaska Natives (AIAN) to the
highest level. This mission is partnership with the AIAN communities we
serve. As an agency within the Department of Health and Human Services
(HHS), the IHS provides comprehensive health service delivery to
approximately 2.6 million AIAN across 37 states and through a network
of over 605 Federal and tribal health facilities including hospitals,
clinics and school health centers. In addition, the IHS contracts with
41 Urban Indian Organizations that deliver health care services to AIAN
urban populations.
S. 3099 would provide conveyance by warranty deed of certain
property to the SEARHC, a tribal organization that has provided IHS-
funded health care services since 1976 under the authority of the
Indian Self-Determination and Education Assistance Act (ISDEAA). The
federal property described in S. 3099 would be used in connection with
existing health programs in Sitka, Alaska operated by the SEARHC aka
the Consortium. Under S. 3099, the Consortium would not provide the
Federal Government any consideration for the property and the Federal
Government would not be able to impose any obligation, term, or
condition on the Consortium with regard to the property. In addition,
the Federal Government would not retain any reversionary interest in
the property. It also would require completing the conveyance no later
than two years from the date of enactment of the bill.
S. 3099 would free the Consortium of any liability that it
otherwise would have assumed for any environmental contamination that
may have occurred on or before the date of the transfer, including the
period prior to the date of the transfer during which the Consortium
has been using, occupying and/or managing the property. S.3099 also
specifies HHS would also not be liable for any contamination for the
same period of time, thus making it unclear who would be liable.
We have seen several bills of this sort move through Congress in
recent years mandating transfer by warranty deed rather than by
quitclaim deed, including S. 825, the Southeast Alaska Regional Health
Consortium Land Transfer Act of 2017. As with previous bills, HHS is
concerned about the details of S. 3099. Specifically, HHS does not
prefer to make ISDEAA transfers by warranty deed as such deeds create
the potential for liability if a competing property interest is
subsequently discovered. In addition, barring retention of a
reversionary interest (as is the standard practice with transfers of
property for ISDEAA purposes) deprives HHS of a means to ensure that
the property will continue to be used for health services in
furtherance of the purposes of this bill.
With respect to environmental liability, S. 3099 would protect HHS
from liability for contamination that may have occurred subsequent to
the time when administration of the facility was turned over to the
Consortium, though the result of immunizing both the Consortium and the
HHS from liability for contamination occurring during that period may
be that anyone injured from such contamination would be without a
remedy.
With these concerns in mind, HHS supports the purposes of the bill
to convey the property to the Consortium in order to facilitate
providing improved health services to Alaska Natives. We would like to
work with the committee on technical changes to address the issues
raised above. We remain firmly committed to improving quality, safety,
and access to health care for AIAN. We appreciate all your efforts in
helping us provide the best possible health care services to the people
we serve.
s. 3100
Chairman Hoeven, Vice-Chairman Udall, and Members of the Senate
Committee on Indian Affairs. I am RADM Michael D. Weahkee, Director of
the Indian Health Service (IHS). Thank you for the opportunity to
provide a statement for the record on S.3100, the Alaska Native Tribal
Health Consortium Land Transfer Act, a bill to provide for the
conveyance of certain property to the Alaska Native Tribal Health
Consortium (ANTHC), aka the Consortium, located in Anchorage, Alaska.
The IHS mission is to raise the physical, mental, social, and
spiritual health of American Indians and Alaska Natives (AIAN) to the
highest level. This mission is done in partnership with the AIAN
communities we serve. As an agency within the Department of Health and
Human Services (HHS), the IHS provides comprehensive health service
delivery to approximately 2.6 million AIAN across 37 states and through
a network of over 605 Federal and tribal health facilities including
hospitals, clinics, and school health centers. In addition, the IHS
contracts with 41 Urban Indian Organizations that deliver health care
services to AIAN urban populations.
S. 3100 would provide conveyance, by warranty deed, of certain
property to the ANTHC, a tribal organization that has provided IHS-
funded health care services since 1999 under the authority of the
Indian Self-Determination and Education Assistance Act (ISDEAA). The
federal property described in S. 3100 would be used in connection with
existing health programs in Anchorage, Alaska. Under S. 3100, the
Consortium would not provide the Federal Government with any
consideration for the property and the Federal Government would not be
able to impose any obligation, term, or condition on the Consortium
with regard to the property. In addition, the Federal Government would
not retain any reversionary interest in the property. It also would
require completing the conveyance no later than 180 days from enactment
of the bill. HHS has determined this timeframe would not provide
sufficient time to fully complete the transfer.
S. 3100 would free the Consortium of any liability that it
otherwise would have assumed for any environmental contamination that
may have occurred on or before the date of the transfer. Notably,
S.3100 does not address liability during the period that the Consortium
was using, occupying and/or managing the property prior to conveyance.
We have seen several bills of this sort move through Congress in
recent years mandating transfer by warranty deed rather than by
quitclaim deed, including S. 825, the Southeast Alaska Regional Health
Consortium Land Transfer Act of 2017. As with previous bills, HHS is
concerned about the details of S. 3100. Specifically, HHS does not
prefer to make ISDEAA transfers by warranty deed as such deeds create
the potential for liability if a competing property interest is
subsequently discovered. In addition, barring retention of a
reversionary interest (as is the standard practice with transfers of
property for ISDEAA purposes) deprives HHS a means to ensure the
property will continue to be used for health services in furtherance of
the purposes of this bill.
With respect to environmental liability, S. 3100 does not protect
HHS from liability for contamination that may have occurred subsequent
to the time when administration of the facility was turned over to the
Consortium.
With these concerns in mind, HHS supports the purposes of the bill
to convey the property to the Consortium in order to facilitate
providing improved health services to Alaska Natives. We would like to
work with the committee on technical changes to the bill to address the
issues raised above. We remain firmly committed to improving quality,
safety, and access to health care for AIAN. We appreciate all your
efforts in helping us provide the best possible health care services to
the people we serve.
S.3100 Technical Comments
Section 2. Page 1, line 10: Drafters may want to consider
changing the deadline to complete the transfer of the property
as follows to ensure the requirement can be met:
``not later than two (2) years, after the date of enactment''
Section 2. Page 3, line 21: Drafters may want to consider
language immunizing IHS from any contamination which may have
occurred during the period the property has been used, occupied
and/or controlled by the Consortium.
``to the Consortium, except that the Secretary shall not be
liable for any contamination that occurred after the date the
Consortium controlled, occupied, and used the property.
______
Prepared Statement of Aaron Payment, President, Midwest Alliance of
Sovereign Tribes
Thank you Chairman Hoeven, Vice Chairman Udall, and Members of the
Committee for the opportunity to submit testimony on S. 2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act of 2019. The Midwest
Alliance of Sovereign Tribes strongly supports swift passage of the
STOP Act.
My name is Chairperson Aaron payment and I am the President of the
Midwest Alliance of Sovereign Tribes. The struggle to protect tribal
cultural heritage from illegal trafficking is a tragically common
challenge for communities across Indian Country. For the thirty five
Midwest Tribes is no exception. International markets have become a
safe harbor for trafficking federally protected tribal cultural
heritage items, and they will remain this way until Congress enacts
federal law to address this issue. We firmly believe the STOP Act will
make tremendous strides in preventing international trafficking of
federally protected tribal cultural heritage items and securing their
return home to their tribal communities.
I. The Midwest Alliance of Sovereign Tribes Has Fought to Protect Our
Tribal Cultural Heritage
Items of tribal cultural heritage are as unique as the tribal
nations to whom they belong. These items share the common
characteristics of being of deep intangible and tangible significance
to a tribal nation. Many people view our cultural heritage as beautiful
works of art, as talismans of a past culture they would like to own, or
as items to trade for profit. Whatever intrinsic beauty these items
possess, that is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our cultures, our traditional calendars, our families, and our
ways of life. Our cultural heritage also helps us honor and uphold our
values and teach those values to our community members, particularly
our young people. So important are these items of cultural heritage
that they belong to the community as a whole--as our shared inheritance
and as our shared responsibility to honor and protect for present and
future generations.
The Midwest Alliance of Sovereign Tribes has first-hand experience
in fighting to prevent the loss of our cultural heritage due to theft,
trafficking, grave robbing and illegal sales. Our Nations have lost
sacred ceremonial pipes, head dresses, wampum belts, attire, prayer
bundles, etc.
II. Support for the STOP Act to Close Gaps in Existing Federal Law
The Midwest Alliance of Sovereign Tribes fully supports the passage
of the Safeguard Tribal Objects of Patrimony (STOP) Act of 2019, S.
2165. Gaps in existing federal law have enabled dealers and collectors
to operate in the shadows when it comes to items of tribal cultural
heritage-especially once exported abroad. The STOP Act illuminates
these dark corners.
There is an already-existing international mechanism through which
countries can request the return of cultural property from other
countries. The Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property is a 1970 international treaty that the United States signed.
France, now a safe harbor for those seeking to sell federally protected
tribal cultural heritage items, is also a signatory. When a signatory
prohibits export of particular cultural patrimony items and introduces
an accompanying export certificate, that signatory can call on other
signatories to control imports of those items and help with
repatriation. The United States has not explicitly prohibited export of
tribal cultural heritage items otherwise protected under federal laws
like the Native American Graves Protection and Repatriation Act
(NAGPRA) and the Archaeological Resources Protection Act (ARPA).
Instead, when we try to regain our sacred items from an auction block
abroad, we are told these gaps in United States law prevent government
action to facilitate return.
The STOP Act places an emphasis on facilitating the return of
protected cultural heritage items trafficked internationally. The STOP
Act sets out to accomplish the two main goals of: (1) stopping the
export and facilitating the international repatriation of tribal
cultural heritage items already prohibited from being trafficked under
federal law; and (2) facilitating coordination among federal agencies
in protecting and repatriating such items and in aiding the voluntary
return of tribal tangible cultural heritage more broadly.
The STOP Act is designed to meet these very narrow goals. But NAGRA
and ARPA have other serious limitations that make even their domestic
implementation difficult, including restrictive provenance
requirements. While the STOP Act works to prevent the export of items
already protected under NAGPRA and ARPA and to secure their return, we
hope to see larger changes to NAGPRA and ARPA in the future meant to
resolve these other limitations.
We understand the STOP Act has been developed with significant
expert feedback, including from seasoned agency officials. We welcome
this expert feedback to strengthen the STOP Act so that it best meets
its goals.
We need the STOP Act now. Without it, we will continue to see our
tribal cultural heritage trafficked just out of our reach and in front
of our very eyes. The Midwest Alliance of Sovereign Tribes urges you to
act swiftly to enact the STOP Act into law.
______
Prepared Statement of the U.S. Environmental Protection Agency
Chairman Hoeven, Vice Chairman Udall, and members of the Committee,
this statement for the record summarizes the U.S. Environmental
Protection Agency's (EPA) important work to improve access to safe
drinking water on tribal lands, and provides EPA's technical assistance
comments on S. 3044, the Western Tribal Water Infrastructure Act. The
Administration does not have an official position on S. 3044.
EPA's Commitment to Improving Tribal Drinking Water Infrastructure
Since passage of the Safe Drinking Water Act (SDWA) in 1974, EPA
and our implementing partners, including tribes, have made tremendous
progress in providing clean and safe water to our Nation's citizens. In
the 1970s, more than 40 percent of our Nation's drinking water systems
failed to meet even the most basic health standards. Today, over 93
percent of community water systems meet all health-based standards, at
all times. Congress passed SDWA to protect public health, including by
regulating public water systems. SDWA requires EPA to establish and
enforce standards that public drinking water systems must follow. EPA
delegates primary enforcement responsibility (also called primacy) for
public water systems to states and tribes if they meet certain
requirements.
EPA also has a critical role in helping to support investments in
our nation's drinking water infrastructure. In particular, the Drinking
Water State Revolving Loan Fund (DWSRF) was established by the 1996
amendments to SDWA. The DWSRF is a financial assistance program to help
water systems achieve the health protection objectives of SDWA. As
described further below, specific funding for tribal projects is
provided through a set-aside from the DWSRF.
EPA has specifically identified drinking water compliance and
drinking water infrastructure priorities within EPA's fiscal year (FY)
2018-2022 strategic plan and associated long-term performance goals. In
particular, EPA has set goals for reducing the number of community
water systems out of compliance with health-based measures and for
increasing the amount of non-federal dollars leveraged by EPA's water
infrastructure finance programs. \1\
---------------------------------------------------------------------------
\1\ See https://www.epa.gov/sites/production/files/2019-09/
documents/fy-2018-2022-epa-strategic-plan.pdf
---------------------------------------------------------------------------
Assessing Tribal Drinking Water Needs
SDWA requires EPA to assess the nation's public water systems'
infrastructure needs every four years and use the findings to allocate
DWSRF capitalization grants to states and tribes. As part of this
assessment, EPA documents the 20-year capital investment needs for
tribes. The survey reports infrastructure needs that are required to
protect public health. These include projects to ensure compliance with
SDWA that are eligible for funding under the Drinking Water
Infrastructure Grants
Tribal Set-Aside Program (hereafter ``Tribal Set-Aside Program''),
discussed in greater detail below. EPA's most recent drinking water
infrastructure needs survey and assessment estimated the total 20-year
need for tribal water systems to be $3.1 billion. \2\
---------------------------------------------------------------------------
\2\ EPA's sixth Drinking Water Infrastructure Needs Survey and
Assessment, available at https://www.epa.gov/sites/production/files/
2018-10/documents/
corrected_sixth_drinking_water_infrastructure_needs_survey_and_assessmen
t.pdf.
---------------------------------------------------------------------------
The Drinking Water Infrastructure Grants Tribal Set-Aside Program
The Tribal Set-Aside Program helps address the unique challenges
tribes face in providing reliable access to safe drinking water and
provides annual funding for federally recognized tribes for public
drinking water systems. \3\ The Tribal Set-Aside Program funds come
from a 2 percent set-aside of the DWSRF program provided in EPA's
annual appropriations. In FY 2020, Congress appropriated $22.52 million
for the Tribal Set-Aside Program. Any federally recognized tribe is
eligible to receive a grant.
---------------------------------------------------------------------------
\3\ https://www.epa.gov/tribaldrinkingwater/drinking-water-
infrastructure-grants-tribal-set-aside-program
---------------------------------------------------------------------------
Community water systems and non-profit, non-community water systems
that serve a tribal population are eligible to have projects funded, in
whole or in part, with Tribal Set-Aside Program funds. If the Indian
Health Service (IHS) agrees, tribes may request that IHS receive the
project funds to administer the project. Funds can be used for planning
and construction expenditures at community or non-profit non-community
drinking water systems that serve tribes. Furthermore, the SWDA states
that funds must be used to address the most significant threats to
public health. SDWA further directs that funds may be used only for
projects that facilitate compliance with the National Primary Drinking
Water Regulations or will further the health protection objectives of
SDWA. These funds cannot be used for compliance monitoring, operation,
or maintenance of a system.
EPA Regions are responsible for working with the tribes and other
federal agencies like IHS to identify, prioritize, and select projects
to receive funding from the Region's share of the program funds.
Projects are selected in close coordination with other federal agencies
to most effectively leverage existing authorities and to ensure
efficient use of resources. Prioritization of projects is especially
important given the highly varied needs across tribal communities.
Examples of projects funded by the Tribal Set-Aside Program are:
Rehabilitation or development of sources of drinking water;
Installation or upgrade of treatment facilities;
Installation or upgrade of storage facilities;
Installation or replacement of transmission or distribution
pipes; or
Replacement of aging water system infrastructure.
Projects can also be funded to develop project engineering reports,
engineering design work, and project administration. The 2016 Water
Infrastructure Improvements for the Nation Act (WIIN Act) expanded the
activities that are now eligible for Tribal Set-Aside Program funds to
include training and operator certification programs. \4\
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\4\ https://www.epa.gov/tribaldrinkingwater/amendments-drinking-
water-infrastructure-grants-program-required-water
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EPA uses a formula to allocate Tribal Set-Aside Program funds to
EPA Regions annually. The formula provides a base amount of 2 percent
of the total annual set-aside to each Region. EPA Regions receive the
remaining fund allocations based on their percentage share of the
tribal drinking water system ``needs.'' The drinking water system
``needs'' come from the most current statistics reported in two
different surveys: EPA's Drinking Water Infrastructure Needs Survey and
Assessment, described earlier, and IHS's Sanitation Deficiency System.
Additional EPA Funding Sources for Tribal Drinking Water Projects
In addition to the Tribal Set-Aside Program, EPA has several other
potential sources of funding for tribal water infrastructure projects.
Water Infrastructure Improvements for the Nation Act (WIIN Act) Grant
Programs
The 2016 Water Infrastructure Improvements for the Nation Act (WIIN
Act) addresses, supports, and improves America's drinking water
infrastructure. Included in the WIIN Act are three new drinking water
grants that promote public health and the protection of the
environment. Within the WIIN Act section 2105 lead infrastructure grant
program, EPA has set aside $3 million to fund tribal drinking water
infrastructure projects using funding appropriated in FY2018-FY2020.
\5\ EPA is also implementing a tribal grant program under section 2104
of the WIIN Act that may include infrastructure investments necessary
to comply with the SDWA. \6\
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\5\ More information is available at https://www.epa.gov/
tribaldrinkingwater/wiin-act-section-2105-reducing-lead-drinking-water-
tribal-grant-program.
\6\ More information is available at https://www.epa.gov/
tribaldrinkingwater/wiin-act-section-2104-assistance-small-and-
disadvantaged-communities-tribal
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The Water Infrastructure Finance and Innovation Act (WIFIA) Program
The Water Infrastructure Finance and Innovation Act of 2014 (WIFIA)
established the WIFIA program, a federal credit program administered by
EPA for eligible water and wastewater infrastructure projects. The
WIFIA program accelerates investment in our nation's water
infrastructure by providing long-term, low-cost supplemental loans for
regionally and nationally significant projects. Tribes are eligible
borrowers under WIFIA and may apply for loans to finance projects of at
least $5 million.
EPA drinking water infrastructure activities in the Columbia River
Basin
From FY 2013 to FY 2019, the Tribal Set-Aside Program awarded $2.6
million, through interagency agreements with IHS, to 6 different tribes
for 11 drinking water infrastructure projects in the Columbia River
Basin to provide water supply and storage, improve source water,
support planning and design of infrastructure, and improve pumps and
treatment.
Shoshone Bannock--Fort Hall Community Water System
After the discovery that the aquifer that underlies the reservation
was contaminated with ethylene dibromide and nitrate (both in excess of
the national primary drinking water standards) in the early 1990s, EPA
and other funding agencies helped pay for the construction of a large
community water system that provides access to safe water to the
residents of the reservation.
Simnasho Water System--Warm Springs
After the revisions to the arsenic rule in 2000, the community
needed treatment or a new source of drinking water. Through cooperative
efforts with IHS, the Department of Housing and Urban Development (HUD)
and the Tribe, EPA funded the construction of a new source (wells), a
water treatment building and a water transmission main needed to
deliver a safe water supply to the community. EPA funded 66.3 percent
of the $3.37 million project which resulted in the elimination of a
violation of a national primary drinking water standard (arsenic).
EPA has been heavily engaged in providing technical assistance and
compliance assistance to the Confederated Tribes of the Warm Springs,
starting in November 2018. Through the Interagency Agreement for Public
Water System Supervision, EPA funds IHS Utility Consultants. The
utility consultant staff funded by IHS have spent multiple weeks onsite
providing hands-on training, troubleshooting and technical assistance
to Warm Springs' operators. Also, EPA has regularly participated in
funding summits at Warm Springs (June 2019, September 2019 and February
2020). The organization and event management of the first two meetings
was supported by EPA at the request of the Tribe. The June and
September 2019 meetings involved significant federal participation.
EPA drinking water infrastructure activities in the Upper Missouri
River Basin
Over the last seven fiscal years, the Tribal Set-Aside Program
awarded $17 million, through an interagency agreement with IHS, to 10
different tribes for 30 drinking water infrastructure projects in the
Upper Missouri River Basin to upgrade or install new drinking water
storage tanks, replace or consolidate water mains and pipes (including
lead service lines and intakes), and install new filters and treatment
technology.
In March 2020, EPA Region 8 convened a workgroup of multiple
federal agency regional leaders to discuss Drinking Water/Wastewater/
Solid Waste issues in Indian country in Wyoming and Montana. Leaders
from over 8 federal agencies and administrations began a collaborative,
regional-level discussion to address the concerns regarding systemic
violations of these systems, and to identify agency resources that may
help address these continuous violations.
EPA drinking water infrastructure activities in the Upper Rio Grande
Basin
In FY 2019 and FY 2020, the Tribal Set-Aside Program awarded $2.5
million, through an interagency agreement with IHS, to 6 different
tribes for 7 drinking water infrastructure projects in the Upper Rio
Grande Basin to fix corrosion issues in water storage facilities, help
meet drinking water standards for arsenic, fix operational problems by
updating electronic control systems, and construct additional water
supply facilities for reserve and backup capacity to meet design
standards.
S. 3044--the Western Tribal Water Infrastructure Act
In section 2001 of America's Water Infrastructure Act of 2018
(AWIA), Congress authorized EPA to create an Indian Reservation
Drinking Water Program that would fund projects to connect, expand, or
repair existing public water systems on Indian reservations in the
Upper Missouri River and Upper Rio Grande Basins. EPA has not received
appropriations to carry out this program.
S. 3044 would amend the Indian Reservation Drinking Water Program
to include projects in the Columbia River Basin and make several
additional technical changes. As noted earlier, EPA supports efforts to
address drinking water challenges on tribal lands and is interested to
work with the Committee on how to best target federal efforts toward
this important goal. EPA has two technical comments on S. 3044:
EPA would need a specific appropriation from Congress to
carry out the Indian Reservation Drinking Water Program; and
S. 3044 describes a specific number of projects located in
specific watersheds. Based on the authorization of
appropriations in section (d) of $30 million, it would be
challenging for EPA to fund 10 projects in each of the three
Basins. Projects vary substantially by size and scope and this
framework may severely constrain EPA in making project
decisions.
Conclusion
Thank you for the opportunity to submit this written statement for
the record for today's hearing. EPA remains committed to its ongoing
work to improve access to safe drinking water on tribal lands, and we
appreciate Congress's attention to this important issue.
______
Prepared Statement of Kim Martindale, President, Authentic Tribal Art
Dealers Association (ATADA) \1\
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\1\ ATADA, the Authentic Tribal Art Dealers Association,
www.atada.org. email [email protected], PO Box 45628, Rio Rancho, NM
87174.
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The Safeguard Tribal Objects of Patrimony Act of 2019 (STOP Act),
S. 2165 \2\
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\2\ This testimony also pertains to the current House version of
the Safeguard Tribal Objects of Patrimony Act, S. H.R. 3846. 116th
Cong. (2019)
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ATADA is a professional organization established in 1988 in order
to set ethical and professional standards for the art trade. Its
membership includes hundreds of antique and contemporary Native
American and ethnographic art dealers and collectors, art appraisers,
and a strong representation of museums and public charities across the
U.S.
ATADA is engaged in intensive community educational work to build
understanding of Native American concerns over the loss of cultural
heritage. In 2016 and 2017, ATADA adopted Bylaws forbidding trade in
items in current ceremonial use, \3\ established Due Diligence
Guidelines to protect buyers and sellers, \4\ and began public
education programs \5\ working together with tribal representatives.
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\3\ ATADA Bylaws, Article X, Trade Practices, Ethics, And
Guarantees. https://www.atada.org/bylaws-policies/
\4\ ATADA Bylaws, Article XI, Due Diligence Guidelines. https://
www.atada.org/bylaws-policies/
\5\ For example, the ATADA Symposium, Understanding Cultural
Property: A Path to Healing Through Communication. May 22, 2017, Santa
Fe, NM.
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ATADA has built a highly successful, community-based Voluntary
Returns Program for lawfully owned ceremonial objects. The Voluntary
Returns Program has brought several hundred important ceremonial items
from art dealers \6\ and collectors to tribes at no cost since it began
in 2016. \7\ The vast majority of sacred items that ATADA has returned
to tribes have come from collections built 30-70 or more years ago,
prior to passage of NAGPRA in 1990. NAGPRA was clearly a wake-up call
to collectors and art dealers as well as for museums. It remains the
most effective federal tool for ensuring that sacred items are returned
to tribes.
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\6\ ATADA Bylaws, Article X, ATADA Guidelines Regarding the Trade
in Sacred Communal Items of Cultural Patrimony. https://www.atada.org/
bylaws-policies/
\7\ A Journey with Ceremonial Objects, https://
committeeforculturalpolicy.org/a-journey-with-ceremonial-objects/
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ATADA appreciates the opportunity to assist in promoting
legislation that protects tribal ceremonial and sacred items,
strengthens enforcement of existing laws consistent with citizens
constitutional rights and facilitates legitimate trade in legal items.
However, the Safeguard Tribal Objects of Patrimony Act of 2019 (STOP
Act), S. 2165, fails on all these counts.
This is the third version of STOP introduced since 2016. It
replicates and even expands many provisions rejected in prior versions
of the bill. Like earlier iterations of STOP, this bill will embargo
lawfully owned Indian artifacts, will fail to provide notice to the
public of what Indian objects are prohibited from export, will impose
burdensome export requirements on very low value items, and allow
seizure without constitutional due process.
For all the reasons set forth below, ATADA believes that S. 2165,
will not achieve its primary goal-the return of important cultural
objects to Native American tribes and Native Hawaiian organizations. It
is constitutionally, procedurally, and practically flawed.
1. The STOP Act undermines constitutional protections guaranteed to
American citizens, placing the burden of proof on the applicant, not
the government, and reversing the American concept of innocent until
proven guilty.
The STOP Act does not require ``knowing'' wrongdoing for there to
be a crime. It does not require proof of violation of NAGPRA, ARPA, or
other U.S. law. Export restrictions can be placed on lawfully-owned
objects.
The STOP Act provides for criminal penalties of up to ten years'
imprisonment for exporting lawfully owned items without a permit.
Despite these heavy penalties, due process is absent. The STOP Act
places the entire burden of proof on the exporter, even if the exporter
is a tourist.
STOP's tribal review process for issuing export permits is secret.
It is not subject to Freedom of Information Act requests. Evidence from
tribes on which seizure was based would be withheld, severely limiting
opportunities to appeal seizures or refusal to export and denying
future access to information for the future.
2. The STOP Act potentially restricts commercially-made and legal
items as tribal heritage.
Native Americans have been making ceramics, carvings, jewelry, and
weavings for commercial sale for literally hundreds of years. \8\ There
are hundreds of thousands of Native American antique objects that have
circulated in the market for decades, many of which are now said by
tribes to have a ceremonial character or to be tribal ``cultural
heritage.'' \9\ Even Indian art made for sale would be subject to
restrictions and tribal review. A receipt from a Native American artist
does not guarantee that an object is exempt from review and possible
seizure.
\8\ Native American artists created outstanding works of art for
sale and trade even before the time of first contact, trading with
indigenous American peoples in the Plains and the far West and sending
goods to exchange for Mayan and Aztec products southward into present-
day Mexico. Contact with the Spanish conquistadors and the settlers
that followed them led to development of many Indian arts. To give just
one example, Navajo weaving is a traditional art, but it was not until
the introduction of sheepherding after contact that there was a large
scale expansion of trade in woven goods, blankets and mantas, made both
for commercial and domestic use.
\9\ For example, American auction houses have recently received
`cultural heritage' claims for hand-carved and painted wooden kachinas
originally sold by the tribal artist-makers in the 1990s on eBay.
3. The STOP Act sets no time-limit for review and gives limitless
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scope to the objects that cannot be exported.
The STOP Act has no time limit for tribal review. There is no list
of forbidden items for export. STOP provides only for a general
description of objects that may be unlawful to export. The
documentation burden and delay of STOP's proposed tribal review system
would be a de-facto export ban as the work would not be justified for
low value items.
Legitimate business relationships with international partners and
art fairs will be curtailed due to concerns over unlimited delays. The
lack of a clear definition of what may be exported without a permit
will result in the seizure of objects exported in good faith.
4. The STOP Act does not enable self-certification.
A self-certification process under U.S. law would never be a free
ride as a false statement would lead to imprisonment, a significant
safeguard. ATADA endorses self-certification to ensure a paper trail
for exports and to provide true accountability.
5. The STOP Act will harm American small businesses exports, Native
and non-Native alike.
ATADA is committed to helping to build markets for Native and non-
Native American small businesses and Native craftspeople. The STOP
Act's time-consuming and potentially expensive export process (for
which an unstated fee will be assessed) will eliminate small scale
exports and place an additional burden on Indian artisans as well as
art dealers.
Art and craft production is important in the economies of tribal
nations across the U.S., including Native Alaskan sculptors, Northwest
Coast weavers and carvers, California basketry-makers, Cherokee Nation
beadworkers, and craft marketers from the Plains to the Penobscot
people of Maine and others in the Northeast. These and many others are
working to build local artist markets in their communities; they are
also represented together with hundreds of Native Americans artists
from Southwestern tribal nations in galleries and fairs in New Mexico.
Travel restrictions have already decimated the hopes of thousands
of Native artisans dependent on summer sales for the majority of their
annual earnings. Imposing export barriers to businesses and tourists
alike would threaten the ability rebuild sales venues for Indian art.
6. The STOP Act will harm both U.S. and foreign tourism.
The STOP Act requires tourists as well as commercial exporters to
submit photos and forms and obtain permissions for exports as low as $1
value. These requirements will be impossible for most tourists to meet
and will taint the domestic market with concerns that buying Indian art
is ``wrong.'' Too broad or too vague criteria would trap many foreign
tourists, inevitably resulting in thousands of inadvertent, innocent
violations and seizures for technical errors rather than criminal acts.
To give just one example of STOP's potential for negative impact,
the first international news article about seizure of an ordinary
object from a tourist for failing to meet STOP's vague export
permitting requirements would seriously harm international tourism to
important tourist destinations, such as Santa Fe's almost 100-year-old
Indian Market, which ordinarily draws about 100,000 tourists to New
Mexico each year.
7. Consumer confusion will further damage tribal markets.
Public confusion about laws regulating trade can result in
unintended harm. A case in point is the federal law banning trade in
elephant ivory, which has seriously impacted Native Alaskan craftsmen
who legally carve marine mammal ivory. \10\ Many Native artisans depend
on sales of carved marine mammal ivory, particularly walrus, to pay for
necessities like fuel oil through the winter. The federal elephant
ivory ban has reduced Native carvers' earnings by as much as 40
percent. As Native carver Dennis Pungowiyi explained to Arctic Today,
negative perceptions have grown among his customers who believe that
owning a walrus ivory sculpture might be illegal, even though it is
legal under Alaskan and federal law. \11\
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\10\ Zachariah Hughes, Lower 48 ivory bans hit Alaska Native
carvers, Alaska Public Media, November 7, 2016. https://
www.alaskapublic.org/2016/11/07/lower-48-ivory-bans-hit-alaska-native-
carvers/
\11\ Yereth Rosen, Some U.S. state ivory bans affect Alaska Native
carvers. A new federal bill aims to override them, Arctic Today,
October 24, 2017, https://www.arctictoday.com/some-u-s-state-ivory-
bans-affect-alaska-nativecarvers-a-new-federal-bill-aims-to-override-
them/
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Several U.S. states have gone far beyond federal regulations and
passed laws prohibiting trade in all ivories. The losses suffered by
Native Alaskan craftspeople were so alarming that Alaskan Senators Dan
Sullivan and Lisa Murkowski introduced the 2017 Allowing Alaska IVORY
Act, \12\ S. 1965, to mitigate the harm. Unfortunately, S. 1965 was not
passed, leaving many Native carvers in doubt whether their industry can
survive.
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\12\ S. 1965, Allowing Alaska to Improve Vital Opportunities in the
Rural Economy Act, https://www.congress.gov/bill/115th-congress/senate-
bill/1965/text.
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The STOP Act's overbroad, vague provisions would similarly taint
other Native artworks with potential illegality and raise the concept
that ownership of Native art was harmful to cultural integrity and
public interest.
8. The STOP Act provides no funding for a system of review, and no
guidance as to how such a system should be organized.
The STOP Act leaves the Department of the Interior to create and
fund a system of tribal review from scratch. The system must cover
virtunally all exported Indian art and artifacts (many of which cannot
be idetified to specific tribes) from every federally recognized tribe
and Hawaiian Native organization. Yet five years after first asking the
federal government to establish this system, no tribe has come forward
with a plan for coordinating or organizing it.
9. STOP fails to utilize the existing U.S. Customs' AES export
reporting system agreed to by tribes in 2018, sets no low-value
threshold.
The AES system used for all commercial exports of $2500.00 or more
provides an adaptable online system for tracking exports. Using this
$2500.00 threshold would already be far more restrictive than any
import/export system for art and artifacts currently in use in market
nations.
To compare, in early 2019, the European Parliament enacted
legislation requiring a certification system for art imports. Although
the EU already has harmonized Customs systems, the European Parliament
estimates that it will take 5 years to build a permitting system to
manage this. The new EU system requires only a self-certification from
importers for most types of artworks, including ethnographic objects
such as Native American art. For these, it requires selfcertification
only for objects over 200 years old AND over 18,000 euros in value.
\13\ Even so, the burden on art businesses is expected to seriously
damage the European market and harm international art fairs, an
increasing segment of the art market. \14\
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\13\ EU Regulation Curtailing Import of Art & Antiquities Now Law,
Cultural Property News, June 16, 2019, https://
culturalpropertynews.org/eu-regulation-curtailing-import-of-art-
antiquities-now-law/
\14\ Id.
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How long would be needed for almost 600 tribes and the Department
of the Interior to build an independent system for export permits? The
only realistic approach is to utilize an already existing system and to
limit the items covered as much as possible in order not to overburden
it. ATADA hopes that tribes will join it in seeing the benefit of
having a functional system that can start almost immediately rather
than confront all the hurdles a new system would create.
10. The STOP Act is bad public policy that will undermine NAGPRA
and harm U.S. museums.
U.S. museums and educational institutions that receive any federal
funding are already subject to strict NAGPRA rules of compliance that
enable tribes to claim museum-owned Native American objects. The STOP
Act ignores NAGPRA criteria that an object be a ceremonial or sacred
object at the time that it left tribal hands. The STOP Act treats
NAGPRA's definition of ``cultural items'' as one category when NAGPRA
has five separate categories of cultural items with separate statutory
definitions.
NAGPRA returns are dealt with in a case-by-case process between
museums and tribes. Under STOP, tribes have no need to show affinity or
substantiate that an object may be claimed.
The STOP Act makes it illegal to export ``cultural items''--a term
that includes items that are not subject to NAGPRA repatriation. Export
by museums for loans or traveling exhibitions of items that were
legally acquired decades ago could put museums in violation of the STOP
Act. Objects not subject to NAGPRA could be seized if claimed by a
tribe.
11. STOP abandons earlier progress on finding working solutions to
preserve heritage.
During the last Congress, our efforts to produce a version of STOP
that works led ATADA to work with the Acoma Pueblo and their
representatives and produce legislation that banned the export and
facilitated the return of illegal sacred and ceremonial items: H.R.
7075, the ``Native American and Native Hawaiian Cultural Heritage
Protection Act'' of 2018.
H.R.7075 accomplished these objectives by grafting an export
certification system for Native American items onto the existing
Department of Commerce AES system and permitting selfcertification for
lower value items, insuring speedy and effective implementation,
operation, participation and enforcement of an export certification
regime without infringing on individual's constitutional rights.
Despite the burden that H.R. 7075 placed on American businesses,
ATADA approved these restrictions in order to assist tribes to achieve
their goal of preserving ceremonial and sacred items in the U.S.
Regrettably, the STOP Act fails to incorporate compromises agreed to in
H.R. 7075.
12. Conclusion.
The STOP Act represents the first time in the United States' entire
history that it has sought to restrict export of art or cultural
heritage. Restrictions on any U.S. cultural heritage contravenes long
held principles that have emphasized the free trade of cultural
property for the public good, and Congress should be wary of enacting
such a major statutory change, especially one whose breadth and scope
is unlimited and shorn of due process protections. \15\
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\15\ The U.S. has longstanding import policies encouraging the
importation of modern and antique artworks, manuscripts, books,
scientific, and other cultural objects by making such imports free of
duty. The Educational, Scientific, and Cultural Materials Importation
Act of 1966, Section 1(b) provides that ``The purpose of this Act is to
enable the United States to give effect to the Agreement on the
Importation of Educational, Scientific and Cultural Materials. with a
view to contributing to the cause of peace through the freer exchange
of ideas and knowledge across national boundaries.'' The Agreement on
the Importation of Educational, Scientific and Cultural Materials was
opened for signature at Lake Success, on November 22, 1950, 131
U.N.T.S. 25 (1950); The Educational, Scientific, and Cultural Materials
Importation Act of 1966, Pub. L. No. 89-651, 80 Stat. 897 (1966). Even
earlier, in the U.S. Tariff Act of 1930, Congress exempted antiquities
and art objects made before 1830 from duty in order to encourage the
free flow of artistic and cultural materials into the U.S. The
exemption from duty on antiques and archaeological materials is under
the Harmonized Tariff Schedule of the United States Revision 7, ch. 97,
XXI (2019), (Works of Art, Collectors' Pieces and Antiques,
Subheading 9705.00.00 to 9706.00.00).
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The problem of loss of tribal cultural heritage will not be solved
by passing constitutionally suspect legislation or creating a new,
unwieldy, and expensive federal bureaucracy. There are relatively few
objects in private hands that actually meet the criteria set forth
under NAGPRA or ARPA as objects unlawful to trade. Even fewer are ever
exported. The GAO reports for previous versions of STOP counted the
total overseas sales of Native American objects (sometimes twice)
without identifying any items as actually sold in violation of ARPA,
NAGPRA or other U.S. law.
ATADA is strongly supportive of the goal of returning objects
necessary for tribal spiritual activities, and of halting all illegal
trade in the U.S. as well as abroad. ATADA's due diligence requirements
for dealers, combined with the ATADA Voluntary Returns program, which
has brought hundreds of important objects back within just a few years,
are models for best business practices and for community-based return
programs.
ATADA supports taking steps now to safeguard objects for tribal
use. These should include significant federal investment in programs
located on tribal lands and the building of safe, secure chapter houses
to ensure that cultural objects remain under the control of tribal
governments or tribal elders.
Any law passed limiting export should protect U.S. citizens from
constitutional abuse by ensuring due process and enabling Freedom of
Information Act requests. This requires:
Adopting clear definitions of what can and cannot be
exported.
Applying CAFRA provisions to protect unconstitutional and
unwarranted seizures.
Exclusions for low value items and tourist purchases.
Self-certification by business to create accountability and
enable tracking of exported items.
Limiting export prohibitions to items actually deemed
sacred.
ATADA wishes to emphasize its willingness to work together with all
interested parties to create legislation that will truly protect
important sacred objects and return them to tribes.
My thanks to the Committee for its attention to these important
issues.
______
Prepared Statement of Hon. Brian D. Vallo, Governor, Pueblo of Acoma
On behalf of the Pueblo of Acoma (Pueblo), please accept this
written testimony for the Senate Committee on Indian Affairs'
legislative hearing on the Safeguard Tribal Objects of Patrimony (STOP)
Act of 2019, S. 2165, and other bills.
The Pueblo appreciates the opportunity to present on this important
topic to the Committee and your staff. The Acoma people have a great
deal of experience in both combating illegal trafficking of our
protected tribal cultural heritage and in seeking repatriation of those
items. From our own lived experiences, we have learned where the gaps
in current federal law are that allow traffickers to continue to
illegally export and sell federally protected tribal cultural heritage
items abroad-the very gaps the STOP Act seeks to fill. The Pueblo is
grateful for the opportunity to share this experience with you.
I. The Pueblo's Experience Prioritizing Protection of Tribal Cultural
Heritage and the Story of the Acoma Shield
The Pueblo has developed expertise in the protection of tribal
cultural heritage, especially across international borders.
Unfortunately, this expertise came out of a necessity to protect our
community and our cultural heritage, essential to our way of life. Many
people view our cultural heritage as beautiful works of art or as
talismans of a past culture they would like to own. Others seek to gain
profit by trafficking in our sacred items, and they know that these
items are extremely difficult to retrieve once they are exported
abroad. A quick look at past auction catalogues of places where Pueblo
cultural heritage has been sold reveals the sheer enormity of tribal
cultural heritage that has left the country. \1\
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\1\ The French auction of tribal cultural heritage has been widely
reported since at least 2013. See, e.g., Tom Mashberg, Secret Bid
Guides Hopi Spirits Home, NY TIMES, (Dec. 16, 2013), https://
www.nytimes.com/2013/12/17/arts/design/secret-bids-guide-hopi-indians-
spirits-home.html; Tom Mashberg, Despite Legal Challenges, Sale of Hopi
Religious Artifacts Continues in France, NY TIMES, (June 29, 2014),
https://www.nytimes.com/2014/06/30/arts/design/sale-of-hopi-religious-
items-continues-despite-us-embassys-efforts.html; SeaAlaska Heritage
Institute, Secret Bidder Saves Sacred Object from Auction for Alaska
Natives, (Sept. 6, 2014), http://indiancountrytodaymedianetwork.com/
2014/09/06/annenberg-foundation-returns-sacred-object-alaska-natives-
156764; Navajos Reclaim Sacred Masks at Auction, CBS NEWS, (Dec. 16,
2014), http://www.cbsnews.com/news/navajo-indians-buy-back-sacred-
masks-in-france-auction/; Hopi Sacred Masks Auction in Paris Despite
Protests, REUTERS, (June 11, 2015), https://www.reuters.com/article/us-
france-auction-masks/hopi-sacred-masks-auctioned-in-paris-despite-
protests-idUSKBN0OR1DG20150611. The Government Accountability Office
published a report recognizing the prevalence of this trafficking,
discussed further below.
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Whatever intrinsic beauty these items possess and whatever value
they may generate for traffickers, that is not their intended purpose.
Our items of cultural heritage have significant roles to play within
our culture, our traditional calendar, our societies, our families, and
our way of life. Our cultural heritage also helps us honor and uphold
our values and teach those values to our young people. So important are
these items of cultural heritage that, under the Pueblo's traditional
law, no one person may own them. Rather they belong to the community
and are cared for by their caretakers, who cannot sell them or take
these items from the Pueblo. We have prioritized protecting the
Pueblo's items of cultural heritage because we believe that, without
their presence, we cannot continue our way of life.
The Pueblo has fought many instances of trafficking in our cultural
heritage, including in New Mexico, across the country, and overseas.
One well-known example was our fight to regain an important ceremonial
shield (often referred to as ``the Acoma Shield''), which was set to be
auctioned in Paris, France in 2015 and then again in May of 2016. The
Acoma Shield was stolen from its caretaker in the 1970s and was
eventually exported overseas. We engaged in intense, closely negotiated
discussions with the auction house and the individual consigner who
claimed to hold title--all with the help of our congressional
delegation, federal agency officials and law enforcement, Indian
Country, and the general public. Through these discussions and backed
by litigation filed by the federal government that resulted in a
warrant, we were able to halt the illegal sale of the Acoma Shield.
Over 40 years after it was torn from our community, the Acoma Shield
finally returned home in November of 2019.
The joy of our Pueblo in welcoming the Acoma Shield home is without
measure. A physical and spiritual absence in our community has been
filled. Our people and the Acoma Shield upon reunion shared a deep
contentedness impossible to put into words. The story of the Acoma
Shield's return is illustrative of how cooperation, both
internationally and domestically, can be effectively wielded to
facilitate the protection and repatriation of tribal cultural heritage.
It is a story of success--in federal-tribal partnership, in cooperative
engagement, in redressing historic injustice, and in healing.
And yet, the story of the Acoma Shield's return is also story of
the shortcomings in existing federal law that continue to cause
profound harm to tribal nations and which must be addressed to fully
protect our tribal cultural heritage. Through our fight to regain the
Acoma Shield, we were told time and again that current federal law fell
short of providing the tools necessary to use the existing
international framework through which countries regain their cultural
patrimony from one another; this should not be so. And it is an uphill
battle we and other tribal nations will be forced to fight again and
again unless the STOP Act is enacted. The Acoma Shield was just one of
hundreds of items of cultural heritage that have illegally left our
community and been trafficked into various markets--countless items
that have not, and may never, come home.
The Acoma Shield is not the only time we have stepped forward to
demand protection of our cultural heritage. Some of the earliest
recorded incidents of the Pueblo's efforts to regain its cultural
heritage involve federal criminal convictions handed down just after
the 1990 passage of the Native American Graves Protection and
Repatriation Act (NAGPRA), 25 U.S.C. 3001-3013, 18 U.S.C.
1170. In United States v. Brian Garcia and Gerald Garcia, 92-515 JC
(D.N.M. 1992), two Pueblo brothers pled guilty to illegally trafficking
the Pueblo's cultural heritage in violation of NAGPRA. The Pueblo
worked closely with the United States Attorney's Office to verify the
provenance of the items sold. Later, in 1999, another example in United
States v. Tidwell, 191 F.3d 976 (9th Cir. 1999), involved a set of
historic Catholic priest robes cared for by the Pueblo, dating from the
time of the Pueblo Revolt. They were recovered along with many Hopi
items of cultural heritage. A Bureau of Indian Affairs (BIA) special
agent who is also a member of Acoma investigated a non-Indian tribal
art and antique dealer, leading to his conviction and the recovery of
the items.
Later, in the 2000s, as national and international auction houses
began to expand and reach more collectors through the Internet, the
Pueblo became significantly more involved in attempting to identify and
recover its cultural heritage. In 2006, the Pueblo worked diligently
with its legal counsel for the return of historic wooden beams and
doors from the San Esteban del Rey Mission Church. \2\ A national
auction house had possession of the wooden beams along with nearly 50
other items of cultural heritage belonging to the Pueblo. The auction
house, unlike the situation with the Acoma Shield, facilitated
negotiations between the consignor and the Pueblo, and all items were
returned without incident.
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\2\ The San Estevan del Rey Mission Church sits atop the mesa at
the Pueblo. Founded in 1629, it is still cared for and maintained by
the Pueblo's people. It was declared a National Landmark and also
listed on the National Register of Historic Places in 1970.
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In 2015, the Pueblo began devoting more of its resources to
addressing this issue, as it observed a disturbing number of its
cultural heritage items for sale in a variety of contexts. They were
being sold in locations locally, nationally, and internationally. The
Pueblo continues to monitor auctions and other sales in which cultural
heritage items may be trafficked. When the Pueblo identifies such an
item, it seeks its return, but it is only sometimes successful. And we
fear that our increased monitoring is driving the market underground,
increasing black market activity hidden from the public eye. However,
our biggest concern remains that, as these items travel from domestic
to international markets, the ability for federal enforcement to
intervene and opportunities for civil negotiation become almost nil.
II. How the Pueblo Combats Illegal Trafficking
Monitoring Market
With the increased availability of auction house catalogues on the
Internet, the Pueblo regularly attempts to monitor and respond to
auctions involving its cultural heritage items. Subscriptions to a wide
variety of auction catalogues, online gallery websites, and auction
websites (like eBay) allow for scanned listings of sensitive items
belonging to the Pueblo or our sister pueblos. The Pueblo also attempts
to attend local antique or art conventions and to visit local galleries
and pawnshops, where we often discover cultural heritage items for
sale. Often it is through tips from our own members that we learn of an
item of cultural heritage for sale. This was the case for the Acoma
Shield, where an Acoma member forwarded an online auction listing to
the Pueblo Governor's Office.
The Pueblo has learned from its experience that, despite a myriad
of individual domestic sellers, galleries, and auction houses, the U.S.
Customs and Border Protection is likely the singular entity through
which cultural heritage items are funneled for exportation. Therefore,
the exportation restrictions and certification system in the STOP Act
are critical for monitoring the attempted export of cultural heritage
items that have been illegally removed from their communities.
System for Identifying Protected Items of Cultural Heritage
It is important to understand that existing federal law protects
only specific types of items associated with tribal nations. Most items
are not protected. For example, NAGPRA and the Archaeological Resources
Protection Act (ARPA), 16 U.S.C. 470aa-470m, have specific
statutory standards for the items they protect. Generally, they must
meet a threshold level of cultural significance and must have been
taken from specific lands within specific time periods. Although tribal
nations are involved in determining which items are protected, see
United States v. Tidwell, 191 F.3d 976, 980 (9th Cir. 1999), they
cannot claim items are federally protected if they do not meet these
statutory standards. However, even when an item of tribal cultural
heritage does not fall into the restrictive parameters of current
federal law, individuals sometimes choose to voluntarily return the
item.
The Pueblo has a rich customary or common law tradition, which is
often referred to as the Pueblo's ``traditional law.'' This traditional
law is recognized in the Pueblo's written law, and the Pueblo's
traditional law helps identify items of significant cultural value,
which aids in establishing their protection and facilitating
prosecution under federal law. \2\ Under the Pueblo's traditional laws,
it is illegal for any member who may have these cultural heritage items
in their care to sell or remove these items from the Pueblo. \3\ These
cultural heritage items are often considered sacred, and many are used
publicly and privately in ceremonies.
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\3\ See United States v. Brian Garcia and Gerald Garcia, 92-515 JC
(D.N.M. 1992); United States v. Tidwell, 191 F.3d 976 (9th Cir. 1999).
\4\ Different types of the Pueblo's cultural heritage may be
stored, cared for, or used differently depending on what the item is.
For example, some cultural heritage items may be cared for and stored
by individuals or families in their homes. Other times, different
cultural heritage items may be cared for and stored in communal
buildings, called kivas, by specific societies or clan groups. Other
times, these objects may be placed outside in the open at sacred sites.
Some items are put in special places to be left there permanently, not
unlike the San Ildefonso Pueblo object at issue in the case of Pueblo
of San Ildefonso v. Ridlon, 103 F.3d 936 (10th Cir. 1996), or the
repatriation of the Zuni War Gods in the late 1980s (a well known
example of the removal of cultural objects from area shrines).
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The Pueblo also has in place a system that tribal representatives
use for identifying whether an item is from the Pueblo and whether it
qualifies as protected tribal cultural heritage. The Pueblo has
appointed an Advisory Board for its Tribal Historic Preservation Office
to assist and consult on cultural matters. The Advisory Board is
staffed with knowledgeable cultural practitioners, many of whom are
current or former religious leaders within the community.
To pursue the Acoma Shield, federal agencies first needed
information from the Pueblo to establish that it qualified as protected
under existing federal law. When the Acoma Shield first came up for
auction, Pueblo cultural practitioners identified it, recognizing its
construction, iconography, and usage as a ceremonial and sacred item.
Needing further information, the Pueblo worked with its community and
cultural leaders to find out as much information as possible about how
it left the Pueblo. While an object of cultural heritage need not be
stolen to be protected by federal law, we learned that the Acoma Shield
was stolen in the mid-1970s from a home in ``Sky City,'' our ancestral
mesa-top village. \5\ We were extremely fortunate to locate an
individual who had a living memory of the theft of the Acoma Shield and
immediately recognized it.
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\5\ At the time, the Pueblo did not have an established police
force, and it was unclear, but unlikely, whether the caretaker ever
made any criminal report to BIA officials, who would have had
jurisdiction over crimes in Indian Country.
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Working with Department of Justice and Bureau of Indian Affairs
special agents, we obtained affidavits from tribal members to establish
the facts surrounding the Acoma Shield's theft and information about
its cultural significance. These affidavits were used to establish that
the Acoma Shield qualified for protection under federal law.
Many collectors have argued that these items were lawfully acquired
and can be legally sold. This is a false statement and a
mischaracterization of how Pueblo and federal law treats these items.
Under Pueblo and federal law, the Pueblo itself effectively ``owns''
the items in question. \6\ They need not be stolen to qualify for
protection. Instead, if they meet the statutory standards for
protection under federal law--including NAGPRA or ARPA--their removal
from tribal or federal land and trafficking is illegal.
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\6\ The clearest analogy to describe the Pueblo's law is the legal
concept of property rights being that of a "bundle of sticks." For the
Pueblo, some members may have rights of possession, but they do not
have the right to sell an item of cultural heritage. In fact,
traditional law dictates what is to happen to a cultural heritage item
if a caretaker can no longer care for the item. The right to sell an
item of cultural heritage, although not contemplated in the Pueblo's
traditional law, would be exclusively reserved to the Pueblo itself.
Certainly, the Pueblo has never exercised this right.
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Therefore, the Pueblo asks this Committee to not think of these
sacred and ceremonial objects in property rights terms, like title and
ownership. If you insist on viewing tribal cultural heritage in
traditional property rights terms, the Pueblo has significant claims
and arguments to make that its items of cultural heritage are forms of
tribal governmental property. However, if these items are merely
treated like other pieces of property, their true significance is lost.
These are items so significant that they are federally-protected
contraband in which no individual person has a legal right to hold
title. In this way, it is important to move beyond the Western view of
property rights and consider this issue as one of human and cultural
rights.
Relationships with Federal Officials
The Pueblo has also worked to create and maintain close
relationships with federal officials who can help when a protected item
of cultural heritage is identified as being trafficked domestically or
abroad. We work closely with a Southwest Regional Enforcement Officer
from the BIA's Office of Justice Services and have also made other
contacts within the Department of State, Department of Justice, and
Department of the Interior. In some instances, we have facilitated
communication between these federal agencies, where their jurisdictions
often overlap in the area of international repatriation in sometimes
confusing ways. Thankfully, these federal officials have been
instrumental in the Pueblo's efforts to regain its items of cultural
heritage. They have been true advocates who have zealously fought to
regain our protected tribal cultural heritage items.
In the case of the Acoma Shield, the Pueblo was able to call on
contacts in relevant federal agencies for help. The Department of the
Interior and Department of State together urged the auction house to
halt the auction and called on France to intervene. The Department of
Justice and Department of the Interior worked to compile evidence. The
Department of Justice thereafter filed litigation using the current
patchwork of federal law that protects tribal cultural heritage, and it
later facilitated negotiations between the auction house, consigner,
and Pueblo that eventually resulted in return of the Acoma Shield. The
Department of State utilized international mechanisms to formally
request mutual legal assistance from France, and it eventually helped
pave the way for the Acoma Shield's international trip home. Individual
federal officials in each agency prioritized securing return of the
Acoma Shield, and for that we will be forever grateful.
Voluntary Return
Under federal law, like other governmental entities, tribal nations
are treated as non-profit entities for tax purposes. The Pueblo has
used this to our advantage in attempting to incentivize individuals who
are considering returning an item of tribal cultural heritage.
Paperwork and information are provided for these individuals to seek a
tax deduction, and the returned item is treated as a donation to the
Pueblo. Voluntary return may take place even for items not fitting into
the restrictive limitations of current federal law.
In the case of the Acoma Shield, current gaps in federal law
prevented the United States from fully using the existing international
mechanism under which France would have facilitated the return of the
Acoma Shield. France said that, without an explicit export prohibition
in United States law and an accompanying certification system, it would
not facilitate return. For this reason, the Acoma Shield was eventually
retrieved based on meaningful dialogue between the Pueblo and the
consigner and an agreement that resolved the litigation from which a
warrant for the Acoma Shield was obtained.
III. Cannot Access Existing International Mechanism for Repatriation
There exists an international mechanism that has been in operation
for decades through which countries can request the return of cultural
property from one another. The Convention on the Means of Prohibiting
and Preventing the Illicit Import, Export and Transfer of Ownership of
Cultural Property is a 1970 international treaty to which the United
States and France are both parties. When a state party prohibits export
of particular cultural patrimony items and introduces an accompanying
export certificate, the state party can call on other state parties to
control imports of those items and otherwise facilitate repatriation.
The United States enacted the Convention on Cultural Property
Implementation Act, through which it returns cultural patrimony items
to other countries. And France has enacted similar legislation, where
France's legislation requires the requesting country to have put in
place an explicit export prohibition and accompanying export
certification system.
The United States has not enacted such an explicit export
prohibition and accompanying export certification system for the tribal
cultural heritage items for which it prohibits trafficking
domestically--namely, items protected under NAGPRA or ARPA. It is for
this very reason that the Acoma Shield did not return home
expeditiously but instead took years of less formal negotiations and
eventually came home through voluntary return. The STOP Act would fill
these gaps.
IV. Support for the STOP Act
The Pueblo of Acoma fully supports the passage of the Safeguard
Tribal Objects of Patrimony (STOP) Act of 2019, S. 2165. The STOP Act
places an emphasis on facilitating the return of protected cultural
heritage items trafficked internationally, where we have been the most
powerless to gain their repatriation. The STOP Act sets out to
accomplish the two main goals of: (1) stopping the export and
facilitating the international repatriation of tribal cultural heritage
items already prohibited from being trafficked under federal law; and
(2) facilitating coordination among federal agencies in protecting and
repatriating such items and in aiding the voluntary return of tribal
tangible cultural heritage more broadly. \7\
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\7\ It should be noted that there are other very serious issues
with the limitations of NAGPRA and ARPA as they function domestically,
but the STOP Act does not seek to address those. Rather, the STOP Act
only seeks to put the tools in place that are necessary to retrieve
from abroad items that are already protected domestically.
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The STOP Act is the culmination of significant momentum towards
addressing international trafficking in tribal cultural heritage. A
2016 joint resolution entitled the Protection of the Right of Tribes to
stop the Export of Cultural and Traditional (PROTECT) Patrimony
Resolution, H. Con. Res. 122, supports congressional development of an
explicit restriction on exportation. It calls for the implementation of
several measures to protect against the export of tribal cultural
heritage and to secure the repatriation of illegally exported items to
their home communities. Additionally, at Congress's request, the
Government Accountability Office released a research report in 2018
citing the international trafficking in tribal cultural heritage as an
ongoing problem. \8\ Passage of the STOP Act would, thus, turn past
congressional intent into present congressional action in resolving the
problem.
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\8\ Native American Cultural Property: Additional Agency Actions
Needed to Assist Tribes with Repatriating Items from Oversees Auctions,
Government Accountability Office (Aug. 6, 2018), https://www.gao.gov/
products/GAO-18-537.
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The STOP Act has been developed with significant expert feedback
from agency officials, tribal representatives, art dealers, and others.
The legislation currently has 10 bipartisan cosponsor Senators and 19
bipartisan cosponsor Representatives. Over 40 tribes and national and
regional tribal organizations as well as the Southwestern Association
for Indian Arts and the Society for American Archeology have provided
letters of support for the legislation. The Pueblo of Acoma has long
advocated for the legislation.
The STOP Act would allow the United States to use the existing
international mechanism under which countries request the return of
their cultural patrimony. The STOP Act would explicitly prohibit the
export of tribal cultural heritage items whose trafficking is already
prohibited under federal law: NAGPRA, ARPA, or the Antiquities Act. It
would also create an export certification system where an exporter
seeking to export an item that qualifies under NAGPRA, ARPA, or the
Antiquities Act as a Native American cultural item, archaeological
resource, or object of antiquity must apply for a certification. Only
those items legally obtained--usually demonstrated through the
exporter's self-attestation--are eligible to receive a certification
and thereafter be exported. \9\ As discussed earlier, in the Pueblo's
experience, preventing the exportation of prohibited items of cultural
heritage initially largely increases the chances of their recovery.
This export prohibition and accompanying export certification process
would limit export of federally protected cultural heritage items and
also put in place the tools necessary to secure their international
repatriation.
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\9\ Many items that qualify as a Native American cultural item,
archaeological resource, or object of antiquity are nonetheless legally
held, in part due to the restrictive provenance requirements tied to
the federal statutes.
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The STOP Act uses existing federal definitions and legal
limitations that have been in place for decades--seeking only to
control the export of items that are illegal contraband domestically
and facilitate their international repatriation. Federal courts have
long upheld the current federal framework for defining federally
protected tribal cultural heritage. See, e.g., United States v.
Tidwell, 191 F.3d 976 (9th Cir. 1999) (upholding NAGPRA); United States
v. Carrow, 119 F.3d 796 (10th Cir. 1997) (upholding NAGPRA); see also
United States v. Austin, 902 F.2d 743 (9th Cir. 1990) (upholding ARPA).
Further, courts have stated that those engaging in the sale and
trafficking of protected items are deemed to possess a certain level of
knowledge of whether an item qualifies as protected. See, e.g., United
States v. Tidwell, 191 F.3d 976, 980 (9th Cir. 1999); United States v.
Carrow, 119 F.3d 796, 803-04 (10th Cir. 1997). Still, the STOP Act
calls on the Department of the Interior in consultation with tribal
nations to produce a federal register notice providing additional
clarity and notice. It also encourages tribal nations to issue their
Native artists receipts that they may use when selling their art in
order to demonstrate their art is not federally protected tribal
cultural heritage. Under no circumstance would an individual have an
item forfeited or face criminal penalties if the cultural heritage item
is legally held under federal law.
The STOP Act would also pave the way for smoother dialogue to
facilitate return. It would create a framework for the federal
government to work with individuals and entities to facilitate the
voluntary return of cultural heritage to tribal nations, regardless of
whether those items are legally held or not. It would also create
formal bodies through which federal agencies can interact with each
other and through which tribal representatives can interact with those
federal agencies on the complicated and cross-jurisdictional issue of
repatriation. Additionally, it would increase penalties under NAGPRA to
encourage deterrence and prosecution.
We would also support incorporation of some changes to the STOP Act
that would incorporate expert feedback received on the STOP Act as
introduced. We understand--indeed we have lived--the complicated nature
of international repatriation of tribal cultural heritage. We
appreciate expert feedback, especially from seasoned federal officials,
that will help ensure the STOP Act accomplishes its goals.
V. Conclusion
The continued trafficking, theft, and illegal sale of items of
tribal cultural heritage poses an existential threat to our Pueblo
beliefs and identity. These items are imbued with and transmit core
aspects of who we are as Pueblo people. The intimate relationship we
share with these items can be found in other tribal communities across
the country. For all of us, the loss of tribal cultural heritage items
and their absence from our ceremonies and daily lives is a painful
reality.
We are encouraged, however, by the recent efforts and surge in
interest around the protection of tribal cultural heritage, which has
resulted in increased contact between the Pueblo and various collectors
and dealers. The return of the Acoma Shield was a moment of
unprecedented joy in our community--a happiness following over 40 years
of sorrow that could have been avoided with export controls and other
protections for tribal cultural heritage.
We hope that no other tribal nation has to undertake such an
arduous journey as ours in tracking, negotiating, and fighting for the
return of the Acoma Shield. Regrettably, we know that far too many
tribal nations have shared in similar experiences and will continue to
do so as long as we have glaring gaps in our federal laws.
Passage of the STOP Act would send the clear message that the
United States both recognizes and actively treats the repatriation and
protection of tribal cultural heritage as a national priority. The
Pueblo of Acoma looks forward to working with the Committee on passage
of the STOP Act to better protect tribal cultural heritage for
generations to come.
Da'wa'eh; Thank you.
______
Prepared Statement of Lt. Col. Glenn Timm (USAF(ret), Polson, MT
S. 3019, the Senators Daines/Tester farcically named ``The Montana
Water Rights Protection Act,'' admittedly (I witnessed this admission
during a conference call among Daines rep. , tribal legal department
head and Lake County Commissioners) written by CSKT legal team; neither
Daines nor Tester have any idea what's REALLY IN IT! It should be
killed with prejudice before it goes any further.
S. 3019 is based upon the illegally and unconstitutionally passed
Montana Bill S. 262--that was passed with a plurality of the Montana
Legislature. The Montana Constitution requires a ``super majority'' for
such bills. Further, the bill was tabled and expired in 2019. Beyond
that, it (and S. 3019) violates the terms of three treaties'--including
the Boundary Line Treaty between the United States and Great Britain,
as well as the Hellgate Treaty and Lame Bull Treaty--the latter two,
expired completely in the 1950s. The Hellgate Treaty became mute in
1909 following the settlement of Indian land allotments and there after
the Dept. of Interior listed the Flathead Reservation as ``the former
reservation.'' It was listed by Interiors' Forest Service maps as such.
Further, members of the CSKTribes are citizens of the United States.
S. 3019 double downs on Sen, Tester's tabled S. 3013 Bill. As
others have noted, this is huge financial bailout to a corporate entity
occupying a small village. It also gives away the National Bison
Range--in which Nickels and Dimes from none-Indians on the former
Flathead Indian Reservation originally financed. The land has been paid
for. Further, it asserts tribal water rights that never existed in
violation of the Boundary Line Treaty. It further gives this corporate
entity control over the Flathead Irrigation Project and its reservoirs
paid for by the Irrigators. All this to be traded for nebulous Federal
Lands in Eastern Montana. And, it will effectively destroy the school
system and lake County. Further, there doesn't appear to be any
accountability for the 1.9 Billion dollars to be paid to this
corporation. In addition, this corporate entity is an unaccountable
``dark money'' for various politicians!
This illegal and unconstitutional bill must be killed and never
allowed to surface again!
For the restoration of Liberty.
______
Prepared Statement of Ray Swenson, Chairman, Mission Irrigation
District, Federal Flathead Irrigation and Power *
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*1AAttachments to this statement have been retained in the
Committee files.
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The MWRPA is intended to be the implementing legislation for the
Confederated Salish and Kootenai Tribes (CSKT) Compact (CSKT Compact),
a Montana-based negotiated agreement that advanced to the federal level
despite its questionable passage and many known but unresolved legal
and constitutional problems. That document is incorporated by reference
in the MWRPA but unfortunately will not be reviewed by this Committee
as it is simply incorporated by reference. Importantly, the CSKT
Compact document is at the heart of the serious problems in the MWRPA
and without this information, we believe that the discussion of the
MWRPA by this Committee will be dangerously incomplete.
The significance of the MWRPA's omission of the CSKT Compact for
the SCIA is that the MWRPA enacts fundamental changes to the Indian
Reorganization Act (IRA), the Indian Self-Determination and Education
Assistance Act (P.L. 93-638), and unlawfully expands Tribal
jurisdiction over tens of thousands of non-Indians and state law-based
water rights without those changes ever being examined by the state of
Montana or federal agencies. The MWRPA also enacts major changes to
federal reclamation law which is the foundation for the development,
construction, and operation of the FIPP. The burden of transmitting
this information to this Committee falls upon those of us most impacted
by the MWRPA.
Overview of Testimony
This report asserts that S. 3019 should be rejected by this
Committee because it ignores the 112-year Congressional history,
intent, and authorization of the federal irrigation project at the
center of the MWRPA. The consequences of ignoring these federal
obligations in the MWRPA include tangible injury to the property
rights, land patents, and Constitutionally-guaranteed due process
rights of thousands of Montanans who reside on private property within
the exterior boundaries of the Flathead Indian Reservation (FIR). Thus,
the presentation of the United States' liability contained in S. 3019
as determined by the Department of the Interior vastly underestimates
the costs to and implications of the MWRPA for the United States.
Significantly for this Committee, the treatment of the federal
irrigation project in the MWRPA as solely an Indian irrigation project
violates the Indian Reorganization Act (IRA) \1\ and causes an
unacceptable expansion of the Indian Self-Determination and Education
Assistance Act (P.L. 93-638) beyond ``projects that are constructed for
Indians because of their status as Indians.'' \2\ Alternatively, if
Congress chooses to pass the MWRPA and abandon its obligations to
citizens it invited to settle the open Flathead Reservation, or to
drastically change federal Indian policy, such changes should be openly
discussed and evaluated, not buried in or obscured by a bill like the
MWRPA.
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\1\ Section 3 of IRA protects existing rights.
\2\ Letter from DOI Solicitor to James Steel, CSKT Chair, denying
638 application for Flathead Irrigation Project because it was not
built for the Tribes (cite language). CSKT hcJve persistently been
trying to change the language of PL 93-638 with respect to the Flathead
Irrigation Project
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In addition to the issues above, the MWRPA renders a pending
General Accounting Office (GAO) audit of the Bureau of Indian Affairs
(BIA) distribution of power revenue in the FIPP moot. \3\ We requested
the audit to understand whether that distribution complies with federal
law, \4\ and further, wrote to your office requesting a delay of any
hearing on the MWRPA until the audit is completed. \5\ However,
specific provisions of the MWRPA simply rewrite or erase the law
applicable to the FIPP. If passed, the MWRPA will likely prevent the
recovery of potentially millions of dollars for the irrigation project
as required by federal law, \6\ leaving a legacy of unresolved federal
waste, fraud, and abuse with its attendant adverse effects on water
rights, property values, the security of land patents, and the U.S. and
private investment in the largest irrigation and power project in
Montana.
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\3\ Letter to Senator John Hoeven from Montana state senators and
representatives; Lake and Sanders County Commissioners, and the
Mission-Jocko Joint Irrigation Districts, January 2020.
\4\ letter to Senator Steve Daines requesting a GAO audit for the
FIPP, May 2019.
\5\ Letter to Senator John Hoeven, January 2020, from State Senator
K. Regier and others; the MJJB; and Sanders and Lake County
Commissioners regarding postponing any hearing on the MWRPA until after
an audit is completed.
\6\ cite.
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Within the context of these threshold issues, this testimony
discusses the known but unresolved deficiencies in the MWRPA as they
relate to the FIPP. The most significant issues in this context are:
Failure to consider the federal contract obligations to
project users in the Flathead Irrigation and Power Project
(FIPP), including federal turnover of project management and
operation$ to land owners
Waste, Fraud and Abuse of federal and private funds by the
Bureau of Indian Affairs (BIA) in the FIPP that will be buried
by provisions of the MWRPA
MWRPA violations and expansion of the Indian Reorganization
Act (IRA) and Indian Self Determination and Education
Assistance Act (ISDEAA), or P.L. 93-638 beyond their original
purposes
Each of these provisions are substantive issues that should hc1ve
been addressed before the MWRPA got this far, engendering our lengthy
testimony, The MJJB asserts that the primary responsibility for the
information deficiencies in the MWRPA lies with the Department of the
Interior (Interior) inasmuch as it only represented the CSKT, not
project users, and did not do its due diligence with regard to the
liabilities of the United States beyond its trust obligations to the
CSKT. We are confident that had such a comprehensive and independent
review been completed by Interior, the document before you today would
be completely different and not pose such drastic and damaging impacts
to the Mission and Jocko irrigations districts or the FIPP.
In the attachments (retained in the Committee files), we present
our testimony in strong opposition to the MWRPA and attach three
critical reference documents for the Committee's use. We hope these
materials give the Committee a better understanding of how significant
the MWRPA is for the livelihood (lf 3,500 families, for the viability
of the largest irrigation project in Montana, and for the long-term
direction of federal Indian policy.
______
BIG HOLE WATERSHED COMMITTEE
6/20/2020
Dear Senators and Committee Staff,
We would like to express our unanimous support for the Montana
Water Rights Protection Act (S.3019).
For 25 years the Big Hole Watershed Committee has sought to bring
together stakeholders in our 2 million-acre watershed in the search for
reasonable, common ground approaches to natural resource management. In
part because of this foundational social fabric and culture of coming
together, we are a highly un-adjudicated watershed.
We believe that this bill is the result of an admirable effort by
all parties to reach a just compromise for all water users. The
ranchers in our watershed want to see this passed in order to avoid
costly legal proceedings to defend their legal water rights and their
ability to continue stewarding our landscapes.
The stability and predictability provided by this agreement will
also help businesses in the watershed dependent on a burgeoning
recreation economy. Passage of this legislation will generate economic
activity for our watershed, save taxpayers money, and provide the
foundation for us to continue our culture of grassroots collaboration,
as opposed to costly legal battles over water.
We encourage the Indian Affairs Committee to pass this landmark
piece of legislation to protect the future of Montana's water
resources. Thank you.
Sincerely,
Pedro Marques, Executive Director,
Randy Smith, Board Chair.
______
Montana Agricultural Business Association
June 18, 2020
Dear Chairman Hoven and Vice Chairman Udall:
The Montana Agricultural Business Association (MABA) submits this
letter to express our support of S. 3019, the Montana Water Rights
Protection Act, introduced in the U.S. Senate by Senator Steve Daines
and Senator Jon Tester. This bipartisan legislation which ratifies the
CSKT Compact is very important for all citizens in the State of
Montana.
The Senior Water Rights Coalition is a coalition of senior water
right holders including irrigators, stock MABA is a trade association
that represents agricultural input wholesale and retail companies and
facilities. We recognize that without the irrigation water that our
growers use, and that is protected with ratification of the CSKT
Compact, our businesses and the economy of Montana will be greatly
impacted.
S. 3019 ratifies a solution based and negotiated agreement that
protects Montana citizen's property rights. We respectfully request
that Congress pass S. 3018 and ratify the CSKT Compact as soon as
possible.
Respectfully,
Luke Dighans, President.
______
Montana Trout Unlimited, Snowy Mountain Chapter
June 24, 2020
To the Members of the Committee:
On behalf of the members of the Snowy Mountain Chapter of Montana
Trout Unlimited, I urge this committee to advance S. 3019, the Montana
Water Rights Protection Act. As sportsmen and sportswomen who care
deeply about the future of coldwater fisheries, we have been actively
involved from the start in the process that crafted the Confederated
Salish and Kootenai Tribes (CSKT) Water Compact. It's been a
contentious issue through the years, and what you find before you now
is the result of good debate from all the stakeholders. The resulting
product has our full support.
The CSKT Water Compact will result in significant investment in
water infrastructure that will benefit the CSKT, irrigators, coldwater
fisheries, anglers, and conservationists. This investment will likely
not be realized if S. 3019 does not succeed. In that scenario,
Montanans will face years of litigation over water rights and
individuals could lose control over the water resources they now employ
and fish could lose out.
Our area is predominantly rural, but it is growing at an
accelerating rate. The CSKT Water Compact will ensure that development
is conducted the right way, and with legal certainty for those planning
to make an investment in our community.
The Montana Water Rights Protection Act is the result of compromise
by the primary stakeholders and people across Montana. The resulting
agreement will lead to increased cooperation in the objective of making
water go further for more users. In a time of uncertainty about how our
global climate may be changing, increasing the flexibility and
resilience of our water resources is critical for both the future of
agriculture, and the future of our coldwater fisheries.
I urge the committee's support of this important issue for Montana.
Sincerely,
Michael Chapman, President.
______
Polson, MT
We are in favor of the Montana Water Right Protection Act, which
includes management of the National Bison Range by CSKT.
We have lived here for some 23 years, and have been very pleased
with CSKT, Mission Valley Power, Salish Kootenai College and the
associated nurses school.
Sincerely,
Olga Lincoln,
Bob Bushnell.
______
Finley Point, Montana
6-18-2020
Subject: SB 3019
We are OPPOSED to everything in this bill.
We have heard that your committee will not hear any opposition. If
true, what has happed to this country and democracy?
Frank is 80 years old, a 4th. generation Montanan. Mary in her 70s.
We have had this home on Finley Point since 1980. We have invested a
lot of money and tons of hard work in it. It is about all we have. Four
generations of our family enjoy it and love it. This bill may mean we
will lose it or at least drastically reduce the value and force us out.
Frank is a combat area Navy Viet Nam veteran and has served as a
civilian in USDA and the State Department. Mary served in the State
Department, heading up anti-drug programs. We have a small orchard,
officially recognized as a veteran, first time farm by USDA. We and all
other farmers in Lake County Montana need to keep our free water to
survive.
Is this our reward for serving the country?
Water in the West, is essential in many ways. Taking it has always
meant strong resistance. Just watch some old western movies-based on
true history.
Water goes with the land, it has never been awarded based on race.
Right now we do not need more racial tension.
The name of this bill is a lie. No way does it protect access to
water for ALL Montanans. It is an illegal taking.
The bill violates the Montana and US Constitutions. It does not
consider them, it ignores them. You all took oaths to obey and uphold
the Constitution, remember?
This issue has never been subject to popular vote. It started in
Montana, mostly in secret. We can have popular votes on marijuana or
mill levies, but not on taking our water.
It is NOT widely supported in Montana and as the truth about it
gets out, it has less and less support.
The Flathead Reservation about 2/3 of Lake County. Non tribal
population of Lake County is 75.83 percent. This bill will bankrupt
Lake County and we and the Tribes will lose much of our representation
when the county is divided into adjoining counties.
The reservation was opened to homesteading in 1910. Land titles
were issued by the Federal Land Office. Water belongs to the state for
the people of Montana and it goes with the land. The government gives
and now takes away. It speaks with a forked tongue.
No cost has been determined by the Congressional Budget Office. Why
not? The cost is well over $2 Billion dollars including inflation,
appraisal costs, and costs to the Federal Government for various
services and even liability insurance. PLUS giving away the National
Bison Range, worth about $1 Billion. None of these give aways are
subject to audit or accountability. Very bad precedents. More federal
debit. Borrowed from China? We are funding our own demise!
It may rob the county of state trust lands including state parks
and islands on Flathead Lake.
This is part and parcel of the publicly announced and documented
plans by the Tribe to smoothly and quietly force all whites off of the
Reservation by taxation, reducing property values, buying them out-a
provision in the bill-and by ``other means''. What are these other
means? Down town Seattle perhaps? These measures also harm many tribal
members who own deeded land, pay taxes on it and want to maintain
property values in case they want to or need to sell.
Proponents claim it settles potential lawsuits. Another lie. It
settles nothing. There will be lawsuits against it no matter what.
This issue should be returned to the state, this bill should be
withdrawn by the sponsor/s who are facing political suicide. Time
should be given for making it known to the public and be subject to
popular vote. Then if the public wants it, so be it.
Thank you for your consideration. Please do not rubber stamp this
bill.
Frank and Mary Mutch, Polson.
______
Subject: Support S. 3019 Montana Water Use Protection Act
Senate Committee on Indian Affairs:
As a member of the Confederated Salish & Kootenai Tribes residing
on the Flathead Indian Reservation I realize how important it is to
reach a settlement on the CSKT water rights.
Senate bill 3019, The Montana Water Use Protection Act is a
bipartison effort both in the State of Montana and our Congressman,
Senator Daines and Senator Tester.
Thank you for your consideration.
Richard LaRance
______
Charlo, MT
To the US Senate Committee on Indian Affairs:
We are irrigators and non-Indian residents of the Flathead Indian
Reservation, writing in support of the Montana Water Rights Protection
Act, S. 3019.
The basic facts have long been clear. This bill was the product of
many years of negotiation and countless hearings and opportunities for
public input. It passed the Montana legislature on a bipartisan basis.
It will safeguard the rights of all parties and the resources that we
all depend upon. It will guarantee water rights and provide for
certainty and security. The alternative would be decades of legal
fighting with no clear outcome, worsening divisions within our
communities here, and certainly none of the benefits to the
agricultural economy that are part of this agreement.
At a time of too much rancor and division in our country, here is
an example of people coming together in good faith and finding a
practical, workable solution to a longstanding, difficult problem.
Thank you for your consideration of our views and for finally
giving this long overdue bill a hearing. We urge all members of the
Senate Committee on Indian Affairs to give this bill your full support.
Sincerely,
Thompson Smith and Karin Stallard.
______
Dear Chairman Hoven and Vice Chairman Udall:
I submit this letter in strong support of S 3019, the Montana Water
Rights Protection Act, introduced in the U.S. Senate by Senator Steve
Daines and Senator Jon Tester.
I work with hundreds of water right holders across Montana and
actively engaged in advocating for the ratification of the CSKT
Compact. The CSKT Compact recognizes a negotiated solution that
protects existing water rights while still recognizing and providing
for the CSKT in stream flow water rights necessary for the protection
of fisheries. The CSKT Compact was negotiated in good faith and as
water users we strongly support the negotiated agreement. Without this
legislation Montana water users will be faced with lawsuits with the
Confederated Salish and Kootenai Tribes and the Federal Government on
behalf of the Tribe that could go for decades and cost Montana
Agricultural Producers millions. Another important reason to finalize
the adjudication of Montana Water rights is that questions on water
rights cloud title and borrowing ability of those folks who own those
rights.
The CSKT Compact is a fair and equitable solution that is the
result of collaboration and working together as good neighbors.
I strongly support this bipartisan legislation and urge Congress to
pass S 3019 without delay.
Respectfully,
John Youngberg.
______
Ronan MT
Please know this compact took a great bi-partisan effort on
Flathead Indian Reservation and the vast majority of the ranchers and
farmers here are very much in favor of this water compact becoming law.
Please get this done!!
Thank you,
Karen Ryan.
______
THE ASSOCIATION OF GALLATIN AGRICULTURAL IRRIGATORS
June 12, 2020
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the Association of Gallatin Agricultural Irrigators
(AGAI), I submit this letter in strong support of S 3019, the Montana
Water Rights Protection Act, introduced in the U.S. Senate by Senator
Steve Daines and Senator Jon Tester.
AGAI represents over 20 ditch/canal companies and 250 individual
water users in the Gallatin Valley in Western Montana. AGAI has been
actively engaged in advocating for the ratification of the CSKT Compact
since its introduction in the Montana Legislature in 2015. The CSKT
Compact achieved a negotiated solution that protects existing water
rights while still recognizing and providing for the CSKT in stream
flow water rights necessary for the protection of fisheries. The CSKT
Compact was negotiated in good faith and as water users we strongly
support the negotiated agreement.
It is important to recognize that absent this legislation Montana
water users will be embroiled in lawsuits with the Confederated Salish
and Kootenai Tribes and the Federal Government on behalf of the Tribe.
In a Mccarren amendment compliant statewide water adjudication the
Tribe's instream flow water right claims would be litigated in front of
the Montana Water Court at great expense in time, resources, and money
to all of those involved. The CSKT Compact is a fair and equitable
solution that is the result of collaboration and working together as
good neighbors.
AGAI strongly supports this bipartisan legislation and we urge
Congress to pass S. 3019 without delay.
Respectfully,
Walt Sales, President.
______
Hellgate Hunters and Anglers (HHA)
June 16, 2020
Dear Chairman Hoeven,
Hellgate Hunters and Anglers (HHA) is an all-volunteer Rod and Gun
Conservation club based in Missoula, Montana. Founded in 2005, our
mission is ``to conserve Montana's wildlife, wild places, and fairchase
hunting and fishing heritage.'' We represent over 400 members and
suppmters. Our work has ranged from volunteer landowner fencing
projects, to advocating for LWCF funding to weighing in on how big game
species are managed by our state wildlife management agency. We write
to you today to voice our support for S. 3019, Montana Water Rights
Protection Act.
HHA has long supported Tribal management of the National Bison
Range. In 2007, HHA first wrote a letter of suppmt to Secretary
Kempthome outlining our support for Tribal involvement in the
management of the National Bison Range under a Tribal Self-Governance
agreement with the U.S. Fish and Wildlife Service. While
disappointingly this agreement never came fully to fruition and
lawsuits prevailed, we are extremely pleased to see the National Bison
Range management and ownership addressed in the Montana Water Rights
Protection Act. Many of our members recreate, hunt and fish on
Confederated Salish and Kootenai (CSKT) Tribal lands and have treasured
the spotting oppo1tunities in the Flathead Valley. We have the full
trust and confidence in the CSKT to assume ownership and management of
the National Bison Range.
In summary, this legislation will be good for the people of
Montana. We also appreciate that our delegation members Senator Jon
Tester and Senator Steve Daines, both of whom are on the Senate
Committee on Indian Affairs, are co-sponsors of this legislation. Thank
you for the opportunity to voice our support for this bipartisan
legislation.
Sincerely,
Adam Shaw, President.
______
Belgrade, Montana 59714
June 24, 2020
Dear Committee Members,
Please reconsider the wisdom of using a National Wildlife Refuge,
as cash, to settle a Montana water rights issue. S. 3019 proposes to
barter away 56,000 acres of Federal public land to remedy a state
concern. The 18,800-acre National Bison Range (NBR) portion of the
barter is an iconic parcel of the National Wildlife Refuge System
(NWRS). It is the 10th most visited Refuge in the USA. This legislation
should also be considered in the Committee on Environment and Public
Works, a standard practice for the National Wildlife Refuge
Administration Act and its amendments. S.3019 is in conflict with
provisions of that Act. No portion of the NWRS shall be proposed for
divesting without conducting appropriate National Environmental Policy
Act (NEPA) analysis. If divestment proceeds then replacement is
required elsewhere to keep the public land base and American Bison
mission of the NWRS whole.
The Senators from Montana are proposing the USA pay the
Confederated Salish and Kootenai Tribes (CSKT) for past wrongs by the
state and federal governments related to land and water. Disturbingly
they propose to use Federal public lands for payment rather than
General Funds. What a terrible precedent! Language in the bill would
also repay Montana for divesting of state land within boundaries of the
CSKT Reservation by giving them BLM lands elsewhere in Montana, then
spending additional funds to buy other lands, to keep state land
acreage whole. Loss of BLM land is unacceptable and they too must be
replaced. There is hypocrisy in the Senate passing The Great American
Outdoors Act one week and bartering away public land as cash the next.
The current U.S. Fish and Wildlife Service (USFWS) leadership are
not public land passionate. Most come from other-world careers, not
public land manager careers. Those folks proposed this divestment. That
fact is verified by CSKT statements and Freedom of Information Act
(FOIA) documents. The American people don't know that USFWS is trying
to exit NWRS participation in bison conservation. Do you think they
would support such a divestment if they understood? Not likely! Public
lands advocates were not at the table for negotiations nor have they
been informed through procedures of NEPA analysis. Those in FWS, who
are not passionate about public land, see the NBR as a headache and
costly to limited wildlife budgets. Divesting of land legislatively is
a work around that is disrespectful of American values.
Those most in support of this divestment are USFWS leadership, CSKT
and farmers/ranchers off Reservation who worry about CSKT claims on
their water. None of those folks are public lands passionate nor do
they care if the Wildlife Refuge system maintains its bison
conservation mission.
In the 1855 Hell Gate Treaty, the U.S. made commitments to the CSKT
that weren't kept. Specifically, ``Montana'' convinced the U.S.
Congress and President to open the Flathead Reservation to non-Indian
settlement by 1904 Flathead Allotment Act. Now all Americans will be
burdened with the financial cost. Negotiators trying to settle,
determined damages to CSKT at $2.3 billion for payment by the U.S.
Montana pays almost nothing. Senator Daines negotiated a lower cash
settlement of $1.9 billion by offering public land to CSKT in lieu of
cash. You should not, ``barter away'' Federal Land and a National
Wildlife Refuge without public consent!
The 1908 Act establishing the NBR had a special mission, saving our
national mammal from extinction. Today conservation of bison genetics,
habitat and native birds are its purpose. It's done an extraordinary
job of accomplishing all for 112 years. For decades the U.S. Fish and
Wildlife Service has considered those genetics the most important
within the 150 million-acre NWRS. The herd is free of brucellosis,
while Yellowstone Park bison are not, making them unusable for
conservation without a 4-year quarantine at $1,000s per animal. NBR
bison have more unique alleles and contain a larger proportion of the
federal bison genome than any other federal herd.
This divestment is a Trojan horse effort to set a precedent, that
it is OK to sometimes pick citizen's pockets of their public land
inheritance, the greatest concentration of undistributed wealth in the
world, a remarkable legacy. They belong to all Americans, including
Native Americans. They are not money to solve complex problems.
Polished PR advertisements touting this legislation are running
here in Montana. They smack of a philosophy descended from 19th century
robber barons and copper kings who ran Montana and despoiled it. That
philosophy would privatize public lands wherever convenient for the
already wealthy and politically connected. Please don't start selling
cherished portions of America when there is high value to special
interests. If divestment language is not removed, or mitigated, our
cultural loyalty to and appreciation of Western public lands will have
fundamentally changed, for the worse.
Please consider removing public lands from the bill.
Yours,
William L. West, USFWS recently Retired, 35+ years managing
NWRs, 31 years in Montana.
______
Ronan MT
June 23, 2020
I am a rancher in the Flathead Indian Reservation. I am writing in
strong support of S. 3019. The Act is a reasonable basis for settling
on good terms the important matter of the use of water in Montana.
I strongly encourage you to vote in favor of it tomorrow.
Best regards,
Giles Conway-Gordon
______
Trout Creek, MT
June 23, 2020
G'day,
As a rancher in Sanders County, I strongly support the MT Water
Rights Protection Act. We use the surface water for livestock and
domestic use and cannot afford to lose the water right.
Also, I have respectable friends who farm on Flathead Reservation
and they cannot afford to be without this Act.
Thank you,
Bill and Helen Meadows
______
June 23, 2020
I am writing to you to express my strong support for the Montana
Water Rights Protection Act.
As a Montana citizen, I understand that our state's tourism,
agricultural, and real estate economy depends on a clear right to
water. From irrigators to sportsmen, and municipalities to commercial
users, Montanans need water right certainty.
I, along with thousands of water users across our state, agree that
the Montana Water Rights Protection Act is a sensible solution that
will benefit all Montanans.
The Montana Water Rights Protection Act will support Montana's $4
billion agricultural economy, prevent years of costly litigation, and
permanently protect the water rights of all Montanans.
I urge you to take swift action to ratify the Montana Water Compact
and pass the Montana Water Rights Protection Act NOW!
Roger Starkel
______
Greenough, Montana
June 23, 2020
To whom it may concern:
I wish to strongly urge passage of the Montana Water Rights
Protection Act.
I have been a long term resident of the Blackfoot Valley and as
well a long time agricultural irrigator. I have participated in
numerous meetings on this matter over the past several years and heard
the same arguments for and against the compact on numerous occasions. I
am convinced, based on the the thoughtful case presented by the tribes
and the majority of non tribal irrigators, that passage will settle
existing claims by the tribes without years of costly litigation and
uncertainty. The settlement of this issue is obviously long overdue. I
welcome bipartisan support for passage of this bill by Senators Daines
and Tester, and look forward to additional collaboration across party
lines in the interests of all residents of Montana in the future.
Land M. Lindbergh
______
The Ruby Valley Strategic Alliance (RVSA)
The Ruby Valley Strategic Alliance (RVSA) is writing to express our
support for the Montana Water Rights Protection Act (S. 3019),
introduced by Senator Steve Daines and co-sponsored by Senator John
Tester.
The RVSA represents a diverse group of individuals and
organizations that have been convening over the last four years to
advance shared values around conserving public and private lands in the
Ruby Valley in southwest Montana. We are committed to working
collaboratively to address the most urgent threats to the people and
nature that we cherish here. Our alliance is broad, including members
from agriculture and conservation organizations, as well as several
individual landowners, water users, and community members. Senate bill
3019 is a bi-partisan piece of legislation that would have direct
benefits for members of our group and the organizations and
constituencies we represent.
The RVSA's shared values are in part dependent on the viability of
working ranches. Without the CSKT Water Compact, existing water rights
across Montana will remain legally uncertain and threaten working
ranches like those found in and around the Ruby watershed. We believe
that the CKST water rights settlement is the best path forward for
water users across the state to secure certainty and avoid decades of
legal battles. Implementation of the agreement will produce new and
productive partnerships that will focus on the common objective of
making water go farther for more uses--an important objective in the
face of rapidly shifting land use trends and unpredictable water supply
availability.
The CSKT Water Compact successfully quantifies the Tribe's water
claims and secures critical water resources for all Montanans on and
off the Reservation. The Compact protects existing rights and ensures
new sources of water for irrigators, businesses, farmers, ranchers,
conservation, and the Tribes. Most importantly, the Compact provides
Montanans security in their existing water rights and allows the Water
Court to facilitate completion of the statewide general stream
adjudication, providing water users with legal certainty and allowing
for economic development both on and off the Reservation. Finally, the
Compact is fiscally responsible and strikes a thoughtful balance
between all water users in Montana.
We appreciate the effort and commitment to a robust public process
that has been demonstrated by the delegation, the Tribes and diverse
bi-partisan partners in getting to this point, and we encourage the
Senate Indian Affairs Committee to ensure the legislation's speedy
passage.
Respectfully,
Dan Allhands, Madison County Commissioner
John Anderson, Ruby Dell Ranch
Neil Bamosky, Ledford Creek Grazing Association
Emily Cleveland, Montana Wilderness Association
Chris Edgington, Montana Trout Unlimited
______
To Whom it May Concern,
My wife and I are Ranchers and lrrigators' on the Flathead Indian
Reservation. We are asking for your support of the Montana Water rights
protection Act (S.3019). Passage of this bill would bring stability and
ensure our water for irrigation and livestock, and we could continue
with farming and ranching and producing Beef.
If it does not pass, our ranch and many others would be in
jeopardy. The litigation that would ensue would probably break us. The
entire livestock industry in Montana would be devastated.
Please support the Montana Water Rights Protection Act.
Thank you,
Glen & Karen Raisland
______
Ronan, MT
June 23, 2020
Good Afternoon,
I am writing this letter in support of S. 3019, The Montana Water
Rights Protection Act. This act will define the federally reserved
water rights of the Confederated Salish & Kootenai Tribes and settle
the legal claims of the Tribes against the federal government.
As a farmer/rancher on the Flathead Indian Reservation, I am very
concerned with the cost of protecting my existing water rights through
the court system. This water compact was negotiated for decades with
different ideas coming together. The different sides involved in the
negotiations each agreed to set aside differences to enable a water
compact acceptable to all users.
I encourage the members of the Indian Affairs Committee to pass
this landmark piece of legislation to protect the future of Montana's
water resources.
Respectfully submitted,
Joan M. Sherman
______
Charlo-Moiese, MT
I write to express my strong support for the Montana Water Rights
Protection Act, due to be considered during tomorrow's hearing. I would
ask that you please enter my comments into the record as a part of
public testimony, since I am unable to travel to Washington, D.C., for
the hearing.
My husband and I live on the Flathead Indian Reservation and have a
domestic well, whose legal status is uncertain as it relates to water
rights. For this and other reasons, we strongly support the bipartisan
Montana Water Rights Protection Act (S. 3019). The bill would give us
certainty over our right to water, without having to resort to
uncertain and costly litigation. This bill offers a much-needed
settlement to the long and sometimes divisive dispute over water rights
on the Flathead Indian Reservation and beyond.
Thank you for considering my comments.
Sincerely,
Joanna R. Shelton
______
To Whom It May Concern:
I am a citizen and registered voter in western Montana. I am
writing to thank you for your hearings on the Montana Water Rights
Protection Act (S. 3019) and your willingness to hear from your
constituents in the Treasure state. I am a registered voter in Missoula
County and own agricultural land in Moiese, Montana in southern Lake
County on the Flathead Indian Reservation. I irrigate my fields and
depend on our water district for maintenance and support.
I am writing in support of passage of the Montana Water Rights
Protection Act (S. 3019). After much consideration, I believe this is
the right compact for water users throughout our part of the state. It
is a good thing for the state and the nation. The compact honors
traditional usage, respects all parties, brings much-needed funds for
infrastructure repairs, and prevents future needless lawsuits.
I am grateful for the good things our Federal government can
accomplish and I urge passage this legislation.
Sincerely,
H. Rafael Chacon
______
Chairman Hoeven, Members of the Committee
I have lived my entire life on the Flathead Indian Reservation and
have farmed there for over forty years.
I am respectfully asking your support of the Montana Water Rights
Protection Act (S. 3019) It has been a decades long effort to resolve
the CSKT water rights. The compact was debated and passed by the
Montana Legislature.
It was a good faith effort of all parties and I believe it is a
fair resolution to a complicated issue. In my opinion it is better to
negotiate a settlement of this complicated issue than to rely on
attorneys and courts to mandate conditions to those involved.
Thank you for all you do for our country.
Barry A. Baker
______
Belgrade, MT
Please help pass the Montana Water rights Protection Act (S.3019.)
This landmark piece oflegislation will protect the future of Montana's
water resources as it will define the federally reserved water rights
of the Confederated Salish and Kootenai Tribes and settle the legal
claims of the Tribes against the federal government. As a Montana
citizen using Montana Irrigation water rights, I will appreciate being
protected by this act introduced by Senator Daines and co-sponsored by
Senator Tester.
This legislation has received broad bi-partisan support from every
major agriculture and water use group in Montana, as well as we
individual irrigators. Our local businesses and governments also
support S. 3019.
The passage of S.3019 will protect those of us farming and ranching
in Montana from being forced into costly legal proceedings to defend
our water rights. It will save taxpayers $400 million compared to
alternative settlement proposals.
Thank you,
Ilene Casey
______
June 23, 2020
I am writing to you to express my strong support for the Montana
Water Rights Protection Act.
As a Montana citizen, I understand that our state's tourism,
agricultural, and real estate economy depends on a clear right to
water. From irrigators to sportsmen, and municipalities to commercial
users, Montanans need water right certainty.
I, along with thousands of water users across our state, agree that
the Montana Water Rights Protection Act is a sensible solution that
will benefit all Montanans.
The Montana Water Rights Protection Act will support Montana's $4
billion agricultural economy, prevent years of costly litigation, and
permanently protect the water rights of all Montanans.
I urge you to take swift action to ratify the Montana Water Compact
and pass the Montana Water Rights Protection Act NOW!
Kathy Starke
______
June 19, 2020
Chairman Hoven and Vice Chairman Udall,
I am writing to you today in strong support of S. 3019, the Montana
Water Rights Protection Act, introduced by Senator Steve Daines and
Senator Jon Tester.
I am a strong advocate for agriculture and the water users involved
in it, along with many other kinds of water users. The need for a clear
right to water is something that all water users depend on--from the
agricultural users to the hydro power facilities and more.
The ratification of the CSKT Water Compact will be accomplished by
S. 3019 is also extremely important and valuable to Montana water
users. To have this ratified by a negotiated agreement is another
benefit from S. 3019 so that water users can avoid hefty litigation
fees.
This bill will help aid water users, protect the $4 billion
agricultural economy as well as the farmers and ranchers behind it.
I encourage the members of this committee to pass this bi-partisan
supported legislation to ensure the protection of Montana water-users.
Regards,
Rachel Cone
______
June 22, 2020
I am a third generation irrigated farmer within the exterior
boundary of the flathead irrigation project. I SUPPORT ratification of
the CSKT/MT water compact.
David and Lorrie Lake
______
I am writing today in support of the Montana Water Rights
Protection Act (S. 3019). I am a cattle rancher, land owner and water
user in Southwestern Montana. The Montana Water Protection Act will
define the federally reserved water rights of the Confederated Salish &
Kootenai Tribes and settle the legal claims of the Tribes against the
federal government. It will also settle any outlying claims in my
watershed and give my family certainty for generations to come. We
recently completed the long and complex process of adjudicating our
water claims and without the passage of the Montana Water Protection
Act we may have to revisit many parts of this costly and time consuming
process again. This Act will protect Montana farmers and ranchers from
being forced into costly legal proceedings to defend their water
rights. This Act represents reasonable, common ground that will protect
Montana's $4 billion Agricultural Economy.
Sincerely,
John M. (JM) Peck, P.E., Manager, Trapper Creek Ranch
Montana Farm Bureau; Young Farmer and Rancher Committee
Chairman.
______
June 22, 2020
Greetings,
I am stating my support of S. 3019. The Montana Water Protection
Act will define the federally reserved water rights of
the Confederated Salish and Kootenai Tribes and settle the legal
claims of the Tribes against the federal government. It
will provide protection to existing water right holders in Montana
and protect Montana farmers and ranchers from
being forced to protect their water rights through costly legal
proceedings.
I support the passage of S. 3019.
Allen Martinell, Pres., Water Users Irrigation Company
______
Bozeman, MT
June 19, 2020
Dear U.S. Senate Committee on Indian Affairs,
I am writing to ask for bipartisan support of the Montana Water
Protection Act (S. 3019).
I am a water rights holder and irrigator in the Gallatin Valley. As
you know the CSKT Compact is critical to the protection of Montana's
water right owners and will eliminate years of litigation and millions
of dollars in attorneys fees.
I appreciate your support on this matter.
Thank you,
George Alberda.
______
June 20, 2020
I write this to support SB 3019, as a farmer and irrigator on the
Flathead Indian Reservation. If this does not pass, this will destroy
agriculture as we know it on this reservation.
Mary Stranahan.
______
Montana Water Resources Association
June 19, 2020
Dear Chairman Hoeven and Vice Chairman Udall:
Montana Water Resources Association supports passage of the Montana
Water Rights Protection Act, S. 3019, introduced by Senator Steve
Daines and co-sponsored by Senator Jon Tester. The settlement
legislation is a very important step in the long process of ratifying a
negotiated settlement of Confederated Salish-Kootenai Tribes (CSKT)
claims, including reserved water right claims.
In Montana, our State Legislature recognized the benefit of
negotiation and determined that it was appropriate to negotiate
separate tribal reserved water right compacts and respective
Congressional settlements with each of our state's federally recognized
tribes. In 2015 the Legislature passed the negotiated CSKT water right
compact, approving the last of seven tribal compacts in Montana.
The Montana Water Rights Protection Act provides for settlement of
CSKT water right claims, prevents costly litigation, and protects
Montana water rights. Additionally, S. 3019 provides for economic
development and jobs as well as crucial funding for infrastructure
rehabilitation and water efficiency improvements within the Flathead
Irrigation Project, and very importantly, recognizes and protects
Montana's primacy over our water resources.
We extend appreciation to our Montana Congressional Delegation for
their support and encourage your support for and passage of the Montana
Water Rights Protection Act.
Sincerely,
Michael E. Murphy, Executive Director.
______
MONTANA STATE SENATE
June 22, 2020
Good morning,
I would like to express my strong support for SB 3019. I have a
long history with this issue. I have lived in the heart of the Mission
Valley and the Flathead Indian Reservation for over 60 years on a 600-
acre irrigated dairy farm. I have represented this area in the Montana
Legislature for 10 years. I served on the Montana Reserved Water Rights
Compact Commission and was involved in the negotiations for the
agreement between the CSKT, the State of Montana and the Federal
interests. I helped champion SB 262 through the Montana Legislature in
2015.
Agriculture is the lifeblood of the Mission Valley and the Flathead
Reservation. This negotiated agreement allows for robust fisheries and
the opportunity for the Flathead Indian Irrigation Project (FIIP) to
revitalize. Instream flows will be increased as efficiencies are met
within the repairs and maintenance of FIIP. This will benefit everyone
from sportsman to farmers and ranchers.
This agreement brings some clarity to the water rights of tens of
thousands of Montanans. The compact (SB 262) and the settlement
agreement (SB 3019) will bring the CSKT Federal Reserve Rights to the
tribe for ratification and then to the Montana Water Court to be
adjudicated. If this doesn't happen, the CSKT rights go into effect and
the Water Court must go back and reopen the process anywhere there is a
claim by the CSKT. These claims involve well over half of the state and
would very likely take multiple decades and affect tens of thousands of
individuals, business owners, cities and towns etc.
There is an allocation of 90,000-acre feet of water under federal
control that can be utilized from Hungry Horse Reservoir. This will be
leased water that can only be utilized in Montana. It has the potential
to be the new water that Western Montana will need for many decades.
The Compact (SB 262) is a true negotiated agreement where all
parties worked together to reach a consensus. It has survived both
constitutional and fact challenges. I believe SB 3019 is very similar
legislation. It has taken many turns and incredible dedication and
effort by all parties involved to get to the hearing process. I again
strongly support this legislation.
Sincerely,
Dan Salomon--Senator, Montana District #47
______
Montana Stockgrowers Association
June 19, 2020
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the Montana Stockgrowers Association (MSGA), we are
submitting this letter in support of S 3019, the Montana Water Rights
Protection Act, introduced by Senator Steve Daines and Senator Jon
Tester.
For more than 130 years, MSGA has been dedicated to influencing
public policy improving the profitability of Montana's ranching
families and protecting their private property rights. Our members have
determined this legislation meets the needs of the water right holders
and will eliminate decades of litigation. The Montana Water Rights
Protection Act will ensure that historical water use by all water users
on and off the reservation are protected.
The success of Montana's agriculture industry is dependent upon
water and water right certainty. It is easily the single most important
resource for people across Montana, which is why MSGA has long
supported an agreement such as the Montana Water Rights Protection Act.
This legislation will permanently eliminate 97 percent of all CSKT's
water rights claims across Montana, which will save taxpayers over $400
million and protect the water rights of all Montanans. It will prevent
years of costly litigation for Montana water users and provide much
needed certainty for all parties involved.
MSGA would like to the thank the committee for your consideration
passing this important legislation.
Sincerely,
Fred Wacker, President
______
United South and Eastern Tribes Sovereignty Protection Fund
June 22, 2020
Dear Chairman Hoeven and Vice-Chairman Udall,
On behalf of United South and Eastern Tribes Sovereignty Protection
Fund (USET SPF), we write to express our strong support for S.2165, the
Safeguard Tribal Objects of Patrimony (STOP) Act. Since 2016, USET SPF
has supported the STOP Act in order to help ensure the protection of
our sacred items, which are often illegally obtained then sold abroad.
Provisions within the STOP Act would not only make it more difficult to
export cultural items, but also provide mechanisms for the U.S. and
Tribal Nations to regain our cultural heritage from abroad and return
it to our communities.
USET SPF is a non-profit, inter-Tribal organization advocating on
behalf of thirty (30) federally recognized Tribal Nations from the
Northeastern Woodlands to the Everglades and across the Gulf of Mexico.
\1\ USET SPF is dedicated to promoting, protecting, and advancing the
inherent sovereign rights and authorities of Tribal Nations and in
assisting its membership in dealing effectively with public policy
issues.
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\1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
Nation (SC), Cayuga Nation (NY), Chickahominy Indian Tribe (VA),
Chickahominy Indian Tribe-Eastern Division (VA), Chitimacha Tribe of
Louisiana (LA), Coushatta Tribe of Louisiana (LA), Eastern Band of
Cherokee Indians (NC), Houlton Band of Maliseet Indians (ME), Jena Band
of Choctaw Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee
Wampanoag Tribe (MA), Miccosukee Tribe of Indians of Florida (FL),
Mississippi Band of Choctaw Indians (MS), Mohegan Tribe of Indians of
Connecticut (CT), Narragansett Indian Tribe (RI), Oneida Indian Nation
(NY), Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian
Township (ME), Passamaquoddy Tribe al Pleasant Point (ME), Penobscot
Indian Nation (ME), Poarch Band of Creek Indians (AL), Rappahannock
Tribe (VA), Saint Regis Mohawk Tribe (NY), Seminole Tribe of Florida
(FL), Seneca Nation of Indians (NY), Shinnecock Indian Nation (NY),
Tunica-Biloxi Tribe of Louisiana (LA), and the Wampanoag Tribe of Gay
Head (Aquinnah) (MA).
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Despite protections in current law, the illicit trade in the items
of cultural heritage for Tribal Nations continues to pose a grave
threat to our cultural survival. Our sacred and cultural items continue
to be illegally taken from our communities, threatening the maintenance
of our cultures and traditions, and depriving us of the legacy we seek
to leave our future generations. Meanwhile, a lucrative black market
for our cultural heritage thrives, and without explicit export
restrictions, many of our sacred and cultural items end up abroad. Once
abroad, it is exceedingly difficult to bring them home. The STOP Act
creates an explicit prohibition on exporting cultural heritage obtained
in violation of existing law \2\ and it puts in place an export
certification system to accompany the prohibition. These measures would
make it possible for Tribal Nations to access other countries' domestic
laws and law enforcement mechanisms to regain our cultural heritage.
For instance, certain countries, such as France, restrict import of
cultural heritage illegally exported from a country that provides
export certificates. The STOP Act confirms the President's authority to
enter into agreements under a 1970 international treaty in order to
request return of a Tribal Nations' cultural heritage from other
countries. Lastly, the legislation includes important provisions that
would facilitate more internal coordination with the federal government
and coordination with Tribal Nations in facilitating the return of
cultural heritage items.
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\2\ Native American Graves Protection and Repatriation Act, the
Archaeological Resources Protection Act, and the Antiquities Act.
---------------------------------------------------------------------------
The STOP Act is the product of significant expertise provided by
Tribal leaders, Tribal organizations, federal agencies, archaeologists,
art dealers, and others. USET SPF underscores that the STOP Act does
not extend federal protections to cultural heritage that is not already
protected, and thus it does not criminalize any currently legal
domestic activity. Instead, it merely increases the deterrent effect of
current law by imposing heightened penalties and provides that
traffickers may not export their contraband.
USET SPF strongly supports this important legislation that will
help to protect the cultural heritage of Tribal Nations and facilitate
the return of sacred items.
We call upon Congress for its immediate passage.
Sincerely,
Kirk Francis, President
Kitcki A. Carroll, Executive Director
______
Senior Water Rights Coalition
June 18, 2020
Dear Chairman Hoeven and Vice Chairman Udall:
The Senior Water Rights Coalition submits this letter in strong
support of S. 3019, the Montana Water Rights Protection Act, introduced
in the U.S. Senate by Senator Steve Daines and Senator Jon Tester.
The Senior Water Rights Coalition is a coalition of senior water
right holders including irrigators, stock water users, and hydropower
facilities. The Senior Water Rights Coalition works to protect the
property rights of senior water right holders in Montana.
Ratification of the CSKT Compact which is accomplished via S. 3019
is extremely important for Montana water users. Having the CSKT water
rights quantified through a negotiated agreement rather than through
years of costly litigation is a great example of the results that can
be achieved through public involvement, collaboration, communication,
and negotiation. Montana's communities, agricultural users, hydropower
utilities, and others cannot afford another 50 years of litigation to
complete our statewide adjudication. Simply put, this settlement saves
time, money, and resources for all parties including the federal
government.
The Senior Water Rights Coalition strongly supports ratification of
the CSKT Compact and urges Congress to pass S. 3019 as soon as
possible.
______
University of Montana School of Law
June 17, 2020
Dear Committee Members:
I write to urge your endorsement of the Montana Water Rights
Protection Act (S. 3019), \1\ which represents the culmination of an
extraordinary effort on the part of Montanans, the Confederated Salish
& Kootenai Tribes, and the federal government to successfully resolve
complex water issues in the Flathead Valley of Montana.
---------------------------------------------------------------------------
\1\ The views contained in this letter are mine alone and do not
represent an official position of the University of Montana or the
Montana University System.
---------------------------------------------------------------------------
As the professor of water law at the University of Montana School
of Law for over a decade, I have followed and am intimately familiar
with the MT-CSKT Compact. I am also a fourth-generation Montanan,
having grown up in the same area as my great grandparents' original
homestead, where my family still raises alfalfa, wheat, and black angus
cattle on a landscape dependent on state water rights.
The Montana Water Rights Protection Act is a win for us all, as it
protects non-Indian agricultural operators as well as tribal members
and invests in the critical infrastructure that makes this equitable
sharing of water possible. Having observed the many public proceedings
and extensive data gathering that went into the Compact, it is clear
why it enjoys bipartisan support from the State Legislature, the
Governor and Attorney General, as well as numerous ranchers and
irrigators. It is based on sound science, reflects applicable law, and
adopts reasoned compromises hard-earned through negotiations with the
state Reserved Water Rights Compact Commission.
Without this legislation, hundreds of Montana agricultural
operators, both on- and off-reservation, along with the state, tribal,
and federal government, would be forced into expensive litigation that
would likely last decades and come nowhere near the comprehensive,
forward-thinking solutions achieved in the Compact. Because the CSKT
holds off-reservation claims throughout a significant portion of the
state, there is also great risk to Montana appropriators should such
litigation occur. As it stands, the Compact memorializes major tribal
concessions that relinquish many of these off-reservation claims and
extend tribal priority dates to non-Indian residents on the
reservation. These are concessions that everyday Montanans can ill
afford to lose.
As a cautionary tale, we need look no further than our neighbors to
the south, where the State of Wyoming, the Tribes, and the federal
government became embroiled in the Big Horn adjudication for thirty-
seven years. Judges began and ended lengthy careers before its
completion. And after countless dollars and hours, prolonged acrimony
among users, and innumerable documents that now fill an entire storage
room, the parties finally have a decree that does nothing more than
describe everyone's water rights on paper. They have no mechanism for
administration, nor a properly functioning infrastructure to coordinate
water delivery for actual use on the ground. Meanwhile, functional
water governance remains an illusion, stymied by an ongoing rift in the
relations of the parties.
We in Montana are fortunate to have chosen a different path-one
with a remarkable vision that far eclipses what any one party could
achieve in litigation, where a state and tribal government have created
a unique system of joint administration, where they have planned a
mutual response to address times of shortage, where they will undertake
the work of improving infrastructure, and where a community can take a
step toward healing, building a more positive future around a shared
resource. Thank you for wisely advancing this legislation.
Yours very truly,
Michelle Bryan, Professor of Law
______
National Parks Conservation Association
June 8, 2020
Dear Senators Hoeven and Udall,
Since 1919, the National Parks Conservation Association (NPCA) has
been the leading voice of the American people in protecting and
enhancing our National Park System. On behalf of our more than 1.4
million members and supporters, I write to express support for S. 3019,
the Montana Water Rights Protection Act. The Act equitably resolves
multiple longstanding issues, including tribal water rights claims and
management of the National Bison Range (NBR).
This legislation restores ownership of the National Bison Range to
the federal government in trust for the Tribes of the Flathead Indian
Reservation, and ratifies and implements the water compact negotiated
between the state of Montana and the Confederated Salish and Kootenai
Tribes.
Specifically, this legislation seeks to restore the lands of the
National Bison Range to federal trust ownership for the Confederated
Salish and Kootenai Tribes, and clearly states that the lands restored
shall be managed by the Tribes ``solely for the care and maintenance of
bison, wildlife and other natural resources.'' This legislation also
requires that the Tribes shall ``provide public access and educational
opportunities,'' and shall ``at all times, have a publicly-available
management plan for the land, bison and natural resources.''
These values and outcomes reflect NPCA's position of ensuring both
conservation and public access, and we recognize the Confederated
Salish and Kootenai Tribes' (CSKT) long and highly successful history
of wildlife protection and wildland access. It is time to restore the
National Bison Range to federal trust ownership for the Salish,
Kootenai and Pend d'Oreille.
Congress and President Theodore Roosevelt established the National
Bison Range (NBR) in 1908. The land was taken in what the U.S. Court of
Claims, in a 1971 decision, held to be an unconstitutional taking due
to lack of tribal consent to its acquisition, and failure of the
federal government to pay the Tribes fair market value for the land.
Although the court ordered the United States to pay the Tribes what it
should have at the time of acquiring the Bison Range, the fact remains
that the Tribes never consented to the taking of the land.
Located wholly within the boundaries of the Flathead Indian
Reservation (home of the CSKT), the purpose of the NBR was to conserve
bison at a time when that species was threatened with extinction. The
National Bison Range's unique history, location and narrow mission
means the restoration of management to CSKT will in no way establish a
precedent regarding the disposition of other federal lands, a fact made
explicit in the legislation.
Since Roosevelt created the NBR, the initial herd of 40 bison has
grown and thrived; today, the NBR is managed as home to between 350 and
500 bison. Throughout the intervening years, the CSKT have established
world-class wildland, wildlife and recreation programs. This includes,
but is by no means limited to: protection and restoration of species
such as grizzly bears, trumpeter swans, peregrine falcons, northern
leopard frogs and bighorn sheep; establishment of the Mission Mountain
Tribal Wilderness (the first Tribal Wilderness in North America); co-
management of recreational and commercial fisheries in Flathead Lake
(the largest lake west of the Mississippi); and protection and
restoration of critical watersheds, including streams, rivers, lakes
and waterfowl production areas.
In addition to this proven expertise, the geographic location of
the NBR--within the boundaries of the Flathead Indian Reservation--
argues strongly for restoration of management authority to CSKT. Also
important is the profound historic and cultural connections of CSKT to
bison; in fact, CSKT members played a critical role in preserving the
original bison herd at the NBR, more than a century ago. In short, this
legislation represents good Tribal policy, good wildlife policy and
good land-use policy. It has the support of many land- and wildlife-
oriented organizations (locally, regionally and nationally), and the US
Fish and Wildlife Service has been supportive of the idea.
While we understand there are efforts by some to transfer public
lands out of federal ownership and into state ownership, restoration of
the National Bison Range is an entirely different matter.
Fundamentally, the National Bison Range would remain in federal
ownership, but would once again be held in trust for CSKf. In addition,
the National Bison Range was originally Tribal Reservation land taken
without Tribal consent--a fact that distinguishes it from virtually any
other situation. Finally, as mentioned above, the very bison for which
the NBR was created descend from a herd that was started and managed by
CSKT members at a time when the plains bison was under a very real
threat of extinction.
NPCA supports this legislation, including ratification of the CSKT-
MT water compact as well as provisions to ensure the NBR will be
managed for both conservation and public access, just as Theodore
Roosevelt envisioned when establishing the NBR. Restoration of
management authority of the NBR to the CSKT honors the historic and
cultural ties of Tribes to both the land and to the bison, and
recognizes the many groundbreaking successes of the CSKT wildlife and
wildland programs.
Sincerely,
Michael Jamison, Glacier Program Manager
______
Montana Farm Bureau Federation
June 19, 2020
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the more than 20,000 member families of the Montana
Farm Bureau Federation, I am reaching out to share our support for S.
3019, the Montana Water Rights Protection Act, which is sponsored by
Senator Steve Daines and Senator Jon Tester of the great state of
Montana. Our farmer and rancher members raise a variety of commodities
on irrigated and non-irrigated land all across our vast state. Many of
them will be impacted directly by the passage of this incredibly
important piece of legislation.
Our organization was very active in the passage of the CSKT Water
Compact during the 2015 Montana Legislative Session. Our farmer and
rancher members supported this negotiated agreement and recognize the
years of work and compromise that went into coming up with a product
that satisfied the needs of irrigators and water right holders on and
off the reservation, as well as the demands of the Tribe. We appreciate
the bipartisan support that has gotten the Compact this far, and ask
for your support of S. 3019 to get it even closer to completion.
It is important to note that without passage of this important bill
and completion of the Compact, our farmer and rancher members in
approximately two-thirds of the state, will be subject to years of
expensive litigation with regard to their water rights. Many have
already gone through the adjudication process or spent a good deal of
time and money settling the rights they currently hold. Without their
water rights, many farms and ranches in Montana would be in severe
jeopardy. Also, given that Montana is a headwaters state, our members
believe the finalizing our adjudication process statewide is incredibly
important. The sooner we are able to finalize this chapter in water
rights history, the sooner we will be able to achieve the task of final
adjudication.
Thank you for your time and consideration,
Hans McPherson, President
______
Former Commissioners, Flathead Indian Irrigation Project
February 6, 2019
As former commissioners on the three irrigation districts that
represent irrigators on the Flathead Indian Irrigation Project (FIIP),
we encourage you to take every opportunity to promote funding, passage
and enactment of the CSKT Water Compact this year.
The FIIP delivers water to over 800 irrigators on 128,000 acres.
Project water makes it possible to grow a wide range of crops including
alfalfa, grass hay, barley, oats, wheat and corn and also grow pasture
for goats, sheep, horses and especially cattle. The project also
delivers water to many families growing organic vegetables for local
markets.
As former commissioners, we know how much time and effort the
Compact Commission and our tribal, state and federal governments
devoted over many years to reach a negotiated agreement. We can
personally attest to the fact that the negotiators kept our three
irrigation boards informed and provided opportunities for us to comment
and contribute. We also can personally attest to the large number of
Compact negotiating sessions that were open for participation from
individual irrigators, representatives of the irrigation boards and
representatives from other groups with an interest in irrigation water.
We support the Compact because it is the best way of maintaining
historical deliveries of irrigation water to farms and ranches and,
through its funding of project rehabilitation, increasing instream
flows to achieve tribal fishery objectives.
For many reasons, the so-called ``People's Compact'' is not an
alternative to the CSKT Compact. It is an attempt to delay and defeat
the CSKT Compact at the federal level.
If the Compact fails, Montana's Water Court will need to adjudicate
competing claims. Based on what we know of the Water Court process,
farmers and ranchers would face major uncertainties about the ultimate
outcome and incur significant litigation costs. In contrast to the
Compact, the Water Court also would not be able to fund project
rehabilitation to improve water management and reduce water loss.
Thus, we strongly urge you to lend your active support to achieving
passage and enactment of the Compact this year.
Trent Coleman
Kerry Doney
Dick Erb
Steve Hughes
Paul Hunsucker
Jerry Johnson
Leroy Lake
Walt Schock
Paul Wadsworth
______
Lewistown, MT
Honorable Committee members,
I am writing today to ask you to pass, S. 3019 The Montana Water
Protection Act. This landmark legislation will protect Montana's water
resources into the future.
Passage of the Confederated Salish & Kootenai Tribe water compact,
addressed within S.3019, is critical to the protection of Montana's
water right owners. The Montana Water Protection Act will define the
federally reserved water rights of the Confederated Salish & Kootenai
Tribes and settle legal claims of the Tribes against the federal
government.
As part of a ranching family, I understand how important this
legislation is to our water rights in Central Montana. As an active
member of Montana Farm Bureau, I saw how much time, energy and thought
went into drafting this legislation. Key stakeholders, including
agriculture, irrigators, the tribes, Montana legislators and our US
Congressmen all came to the table to draft legislation that will
protect water rights across the state.
S. 3019 has broad bi-partisan support from every major agriculture
and water user group in the State. Key stakeholders, including those
listed above, support of S. 3019 is because they understand the
importance of protecting Montana's water resources and individual water
rights.
Without the passage of this legislation, water rights on our ranch,
and many across the state of Montana could be in jeopardy. Passage of
this legislation will give Montanans security that costly legal
proceedings to defend their water rights can be avoided.
This legislation represents reasonable, common ground. I encourage
the members of the Senate Indian Affairs Committee to pass this
landmark legislation to protect the future of Montana's water
resources.
Sincerely,
Kris Descheemaeker
______
Ronan, Montana
June 23, 2020
Dear Chairman Hoeven and Members of the Committee:
I am a lifelong resident of the Flathead Reservation, raised in
Arlee on a ranch and for 40 years have lived in the Polson/Ronan area.
I currently live on a small (47 irrigated acres) ranch property that is
two miles south of Ronan. I am currently a Real Estate Broker.
I am now 70 years old. Over the years I have witnessed many issues
between the Confederated Salish and Kootenai Tribes and the majority of
non-members that share the beautiful Flathead Reservation. Most of
those issues have been resolved. All but water rights. Passage of S.
3019 will solve that problem. A problem that none of us created over
100 years ago is now to be resolved for the benefit of all. S. 3019 is
the culmination of nearly 20 years of negotiation, debate and study. It
is not popular with everyone, but I believe it will benefit all 30,000
residents when it is passed. I encourage your support in making it Law.
Live will improve once this contentious issue is behind us. If you have
any questions, please notify me.
Sincerely,
Robert Gauthier
______
Ronan, Montana
June 23, 2020
Dear Chairman Hoeven and Members of the Committee:
I am a lifelong resident of the Flathead Reservation, I was raised
in Pablo, Montana. My father worked at the Plum Creek Mill there for
nearly 30 years. I currently live on a small (47 irrigated acres) ranch
property operated by my family.
Over the years I have witnessed many issues between the
Confederated Salish and Kootenai Tribes and the majority of non-members
that share the beautiful Flathead Reservation. Most of those issues
have been resolved. All but water rights. Passage of S. 3019 will solve
that problem. A problem that none of us created over 100 years ago is
now to be resolved for the benefit of all. S. 3019 is the culmination
of nearly 20 years of negotiation, debate and study. It is not popular
with everyone, but I believe it will benefit all 30,000 residents when
it is passed. I encourage your support in making it Law. live will
improve once this contentious issue is behind us. If you have any
questions, please notify me.
Sincerely,
Myrna Gauthier
______
Centennial Valley Association
June 24th, 2020
Dear Senate Committee on Indian Affairs,
My name is Kara Maplethorpe and I am the Executive Coordinator for
the Centennial Valley Association (CVA). The CVA is a local, landowner
driven organization that strives to preserve traditional ranching as a
way of life in the Centennial Valley, and maintain quality open space,
wildlife habitat, water quality and wildlife migration corridors as
they exist today for future generations.
The Centennial Valley is a 400,000+ acre wildlife corridor in the
Greater Yellowstone of Montana, which an abundance of wildlife,
including elk, sage-grouse, moose, grizzly bear, and wolves, call home.
The Centennial Valley is also a working landscape, with multi-
generational ranch families that strive to preserve the landscape for
future generations of ranchers and wildlife, which thrive together on a
shared landscape.
Water is ever important in these changing climate conditions, for
all of Montana's water users. The Water Rights Protection Act (S. 3019)
has received bipartisan support from agricultural and water user
groups, irrigators, businesses, and local governments. It will not only
define the federally reserved water rights of the Confederated Salish
and Kootenai Tribes, but will also protect Montana's $4 billion
agricultural economy, protect Montana farmers and ranchers from costly
legal proceedings defending their water rights, and will save taxpayers
$400 million compared to other settlement proposals. The Water Rights
Protection Act will protect the way of life for future generations of
ranchers, farmers, and local communities, which are the heart of
Montana's culture and economy.
Please vote in support of the Montana Water Rights Protection Act
(S.3019). Your vote will protect the future of Montana's water
resources. Thank you for your time and consideration.
Sincerely,
Kara Maplethorpe, Executive Coordinator
______
National Wildlife Federation
June 24, 2020
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the National Wildlife Federation, we write in support
of S. 3019, the Montana Water Rights Protection Act, jointly introduced
by Montana Senators Steve Daines and Jon Tester. This legislation will
provide Congressional approval for the water compact negotiated between
the State of Montana and the Confederated Salish and Kootenai Tribes
(CSKT) and transfer the National Bison Range from the U.S. Fish and
Wildlife Service to CSKT. The National Wildlife Federation (NWF)
strongly endorses both of these objectives.
The water compact is the result of years of negotiations between
the State of Montana, the Salish and Kootenai Tribes, and the
Department of the Interior, and it was ratified by the Montana
Legislature in 2015. In agreeing to the compact, the Tribes
relinquished considerable legal rights in order to accommodate water
uses that have developed subsequent to the Hellgate Treaty of 1855-and
to ensure productive, cooperative management of waters throughout
western Montana.
The National Wildlife Federation supports the negotiated agreement
not only because it reflects a collaborative solution to often
contentious water use issues, but also because of its innovative
approach to habitat restoration and protection, water conservation, and
instream flows that are essential to fish and wildlife populations on
and off the Flathead Reservation. The Compact agreement reflects a
positive, forward-looking approach to water management, community
development, and ecosystem recovery.
The National Wildlife Federation has also long supported efforts by
the Salish and Kootenai Tribes to assume greater management
responsibility for the National Bison Range. As the bill recognizes,
bison have tremendous social and cultural importance that for Salish
and Kootenai and the Tribes played a pivotal role in saving bison from
extinction in the late 1800s. Given these facts, it was always wrong to
exclude the Tribes from a management role in the National Bison Range,
and S. 3019 corrects this by transferring the range to the Tribes for
bison conservation purposes.
Having worked closely with the Salish and Kootenai Tribes for many
years, the National Wildlife Federation looks forward to their
stewardship of the National Bison Range and the important tribal
perspectives that they will bring to both management and interpretation
for the thousands of people that annually visit the Bison Range.
The National Wildlife Federation works closely with many tribes in
both the U.S. and Canada who join together to conserve and restore
buffalo on both tribal and non-tribal lands. On behalf of these
partners, we would like to draw your attention to the attached 2016
resolution supporting transfer of the National Bison Range to the CSKT.
We appreciate the Committee holding this important hearing, and we
ask that this letter and the attached Buffalo Treaty Tribes Resolution
* be entered into the hearing record for S. 3019.
---------------------------------------------------------------------------
* The information referred to has been retained in the Committee
files.
Sincerely,
Tom France, Regional Executive Director
Garrit Voggesser, Director, Tribal Partnerships Program
______
Cole Ag LLC
6/24/2020
We are writing on behalf of our family and our farm in support of
the Montana Water Rights Protection Act.
We are a 5th generation farm and hope to pass this wonderful and
rare way of life on to our kids. In order to do this, we must have
water to grow our crops. Not only do we love our life here on the farm,
we provide people with quality food and we help maintain the
environment by using the best farming practices we can.
It is imperative that we have water and in order to protect that,
we urge you to support the Montana Water Rights Protection Act.
Keep Montana families in ag!
Thank you for your time,
Travis and Melissa Stuber
______
Lake Farms, Inc., Ronan, Montana
Wed 6/17/2020
Senate Committee on Indian Affairs:
I am writing in support of The Montana Water Rights Protection Act.
Our family has lived on the Flathead Indian Reservation since the
1930s. My dad served on the Flathead Joint Board of Control
representing irrigators for over 20 years. In that time they spent
millions of irrigators dollars fighting with the tribes over water.
They never prevailed. They finally sat down with the tribe and created
a cooperative entity to operate the irrigation system. That was
destroyed when another group who wanted to settle things in court took
control of the irrigation project. They too wasted millions of dollars
of irrigator dollars in litigation.
We need this final settlement that protects the tribes water rights
and the state based water rights in a fair and equitable manner.
The Montana Water Rights Protection Act is the result of a good
faith negotiation of all parties.
I respectfully ask for your support,
Jack Lake
______
Polson, Montana
6/20/2020
Chairman Hoeven, Members of the Committee
I have lived my entire life on the Flathead Indian Reservation and
my parents farm there. I am respectfully asking your support of the
Montana Water Rights Protection Act (S. 3019). It has been a decades
long effort to resolve the CSKT water rights. It was a good faith
effort of all parties and I believe it is a fair resolution to a
complicated issue.
Thank you for all you do for our country,
Katie Samel
______
6/17/2020
Our family has been putting the waters of the Big Hole River to
beneficial use since the 1870's. The passage of the Montana Water
Rights Protection Act (S. 3019) co-sponsored by Senator Testor and
Senator Dsines is paramount for the water users and the water rights
within the State of Montana. This legislation will finally define the
federally reserved water rights of the Confederated Salish & Kootenai
Tribes and settle their claims against the federal government.
As an existing water right holder in Montana this act will provide
protection against the filed aboriginal rights of the tribe. The
Montana Department of Resources and Conservation estimates the negative
impact of no Compact to Montana water rights and irrigators is
summarized below:
of the estimated 2.5 million irrigated acres in the State,
73 percent (1.85 million acres ) of all irrigated acres (state-
based rights) in Montana could be subject to call by the
tribes' non-compact claims
--(23 percent west of divide, 77 percent east of divide)
Number of state-based irrigation water right owners subject
to call by the tribes' non-compact claims is--10,127
state-based irrigation rights subject to call by the tribes'
non-compact claims exist in 41 of Montana's 56 counties
state-based irrigation rights subject to call by the tribes'
non-compact claims--45,485 (made up of 75 percent surface water
rights, 25 percent groundwater)
S. 3019 will alleviate the impact described above and has broad bi-
partisan support of the majority of water users in Montana. It will
protect our family from individually having to object to the Tribes'
claims and enter into costly legal battles against the Tribe and the
Federal Government with little chance of prevailing. If this
legislation does not pass, the Tribes claims on the Big hole River
would require our loss of irrigation waters in mid-July on average
which would devastate our agricultural family operation,
S. 3019 represents a settlement that will protect Montana's $4
Billion agricultural economy, generate $52.9 billion in annual economic
activity and over 6000 jobs and will save taxpayers $400 million
compared to alternative settlement proposals.
Passage of S. 3019 is important to the Tribe, the water right
system in Montana, the water users of this state and the survival of
our family and many family ag operations in Montana. Please encourage
the members of the Indian Affairs Committee to pass this landmark
legislation to protect and enhance Montana's water resources.
Sincerely,
Jim Hagenbarth
______
6/20/2020
Good Day,
The Montana Water Rights protection Act (S. 3019) goes deeper than
just irrigation water. The process, the time, the money , and the
outcome is the result of a diverse group. Not only the people who
played a role to create the Compact, but the wildlife, the bugs, the
bees, the birds are all integral components.
Everyone and everything wins with the passage of this legislation.
My irrigation of cropland spreads and feeds the most amazing symphony
of other critters. For over thirty years I have grown with the Flathead
Indian Irrigation Project near Arlee, Montana. I can look out over the
Jocko Valley and observe awesome fields of pollinator plants.
This act will benefit the country, the state of Montana, Lake
County, the Jocko Valley, my neighbors, my home, and every stalk of
grass and alfalfa that it feeds.
Please pass this legislation, S.3019, ASAP!
Thank you,
Merrill Bradshaw
______
Grande Ranch Company
June 23, 2020
Dear Senators:
I would like to express my strong support for S. 3019, the Montana
Water Rights Protection Act. My family has been ranching in Montana
since 1877, and thus have very senior water rights. However, the
priority of these rights pales next to the ``time immemorial'' rights
of the Confederated Salish Kootenai Tribes. The CSKT actually have
rights filed on two streams from which we irrigate (250 miles from the
reservation) and therefore our ability to irrigate and even water
cattle would be severely impacted if this legislation does not pass.
Many other farmers and rancher in Montana are in the same situation.
The state of Montana has been in the process of attempting to
adjudicate all water rights for forty years. Passage of this
legislation will be a huge step forward in achieving this goal.
Some may recoil at the price tag on this legislation. As a fiscal
conservative I understand this concern. However, these costs will
benefit fisheries and irrigators, have been studied as within the
liability that the United States Government' owes the CSKT, and most
importantly, pale next to the costs of decades of litigation that will
undoubtedly occur if these rights are not settled by this legislation.
There are several states that serve as examples of the harmful effects
on economies when tribal water rights are not cooperatively resolved.
I respectfully urge you to vote yes on S. 3019 to protect our water
rights and define these rights once and for all to avoid the economic
costs of future uncertainty.
Sincerely,
John A. Grande
______
June 24, 2020
Dear Committee Members:
We, the undersigned current Montana legislators, are opposed to S.
3019 that is being heard in the Indian Affairs Committee. The original
Confederated Salish Kootenai Tribe (CSKT) Water Compact was
unconstitutional when it was passed out of the MT Legislature. It
granted state immunity which constitutionally required a two-thirds
majority that it didn't receive. It remains a very controversial and
divisive issue in MT.
S. 3019 retains much of the original CSKT Water Compact. It puts
private non-reservation land owners under a water authority heavily
influenced by the CSKT tribe. Control of the water that farmers and
ranchers depend on is a taking.
There are many other reasons to oppose the CSKT Water Compact that
have been addressed in other documentation to this committee. We will
not expand on those in this letter. We wish to express our desire for a
water compact; not this one. Montana has passed several other tribal
water compacts that have been reasonable and well serve the state and
the specific tribes. The question that is not answered in S. 3019 or
the original CSKT Water Compact is, ``What is the purpose of the
reservation and how much water is needed to achieve that purpose?'' It
is evident in the Hellgate Treaty of 1855 that the intent was to
develop an agrarian life style for the CSKT. A water compact should
provide for those agricultural needs and for any future development.
We urge this committee to table S. 3019. Let us work on a water
compact that benefits all citizens and include a Committee on Indian
Affairs field hearing in Montana.
Sincerely,
Senator Keith Regier, SD#3
Representative Mark Noland
Representative John Fuller
Representative Carl Glimm
Senator Dee Brown
Representative Matthew Regier
Senator Mark Blasdel
Senator Bob Keenan
Representative Derek Skees
Senator Jennifer Fielder
Representative Brad Tschida
Senator Steve Hinebauch
Senator David Howard
Senator Cary Smith
Senator Roger Webb
Representative Dan Bartel
Representative Steve Gunderson
Representative Lola Sheldon-Galloway
Representative Barry Usher
Representative Peggy Webb
Representative Joe Read
Representative Theresa Manzella
______
Bozeman, MT
6/16/2020
I am writing all of you to voice my support for the passage of S.
3019, the Montana Water Right Protection Act sponsored by Senator
Daines and Senator Tester. As an attorney who represents clients in
water right matters, I support this legislation because it will protect
Montana farmers and ranchers from being forced unnecessarily into
costly legal proceedings to defend their existing water rights from
potential tribal claims.
David L. Weaver
______
Montana Potato Improvement Association
June 22, 2020
Dear Chairman Hoeven and Members of the Committee:
On behalf the Montana Potato Improvement Association, we would like
to register our support of the Montana Water Rights Protection Act (S.
3019).
The potato industry depends on secure water rights. Should this
water rights issue not be resolved, it puts \2/3\s of Montana's water
rights in jeopardy and will cost the agricultural industry untold
millions of dollars in litigation.
Thank you for your consideration of important bill.
Sincerely,
Tim Venhuizen, President
______
The Hopi Tribe
August 28, 2019
Dear Chairman Hoeven and Vice Chairman Udall,
On behalf of the Hopi Tribe (``Tribe''), I am writing to express
our support for S. 2165, the Safeguard Tribal Objects of Patrimony
(STOP) Act and encourage the Committee to advance the bill. I would
like to begin by extending our thanks to Senator Heinrich for
introducing this important piece of legislation, as well as our Arizona
Senators-Senator McSally and Senator Sinerna-for cosponsoring the bill.
As you know from our previous letters of support for the STOP Act,
Hopi people trace our history back thousands of years, making Hopi one
of the oldest living cultures in the world. Today, Hopi Continues to be
a vibrant, living culture. Hopi people, Hopisinom, continue to perform
our ceremonial and traditional responsibilities in our ancient
language.
According to Hopi tribal law, the presence of a sacred Hopi object
outside of the Tribe's care is sufficient evidence that it has been
stolen, because such an item is considered inalienable and communal
property. Therefore, when we see our sacred objects appear in auction
houses, it is both deeply offensive and a violation of Hopi law.
Over the last several years alone, dozens of sacred Hopi items have
appeared in auction houses. For instance, in April 2013, 70 sacred Hopi
objects were included in a high-price auction in Paris, France. Despite
our best efforts to prevent these objects from being auctioned, the
highlycoveted items ultimately sold for over $1 million.
Existing laws, the court system, and diplomacy have generally
proven unsuccessful for the Hopi Tribe. As a result, enactment of the
STOP Act is desperately needed. The STOP Act would confirm the
President's authority to enter into agreements to request the return of
sacred tribal objects from other countries; prohibit the export of
cultural items obtained in violation of current laws; increase
penalties under current law; and establish interagency and tribal
working groups. These would have been valuable tools in our prior
efforts to have sacred objects returned.
In closing, the Hopi Tribe thanks the Committee for approving the
STOP Act last Congress. The Tribe encourages the Committee to once
again pass the STOP Act and help advance it through the full Senate.
Enactment of the STOP Act would help end the illegal trafficking of
sacred objects and create avenues for such objects to be returned to
their rightful place. *
---------------------------------------------------------------------------
* The attachments: Hopi Tribal letters dated June 16, 2017, July
20, 2017 and November 6, 2017 have been retained in the Committee
files.
---------------------------------------------------------------------------
Respectfully,
Clark W. Tenakhongva, Vice Chairman
______
6/24/2020
I am a resident of the Flathead Indian Reservation and live on
Flathead Lake in Polson, Montana. I have a water well. S. 3019 will
protect farmers, ranchers, and myself ( a widow) from expensive legal
proceedings to defend
our water rights. It will also protect Montana's $ 4 billion
agricultural economy. The Water Compact has received bi-partisan
support from every major agriculture and water use group in the state
as well as irrigators, businesses, and local governments. The Compact
was passed by our state legislature in 2016.
Please pass this legislation to protect Montana's water resources
for the future. It is the right thing to do!!
Linda Greenwood
______
Ronan Montana
6/24/2020
Dear Sirs:
As an irrigator on the Flathead reservation in Lake County Montana
I would like to express my support for Senate Bill 3019. It is critical
for my business and my future that we resolve the water issues on the
Reservation and this action will go along ways toward addressing water
rights and availability in Lake County and much of the rest of Montana.
Jan Niemeyer
______
6/19/2020
My name is Ken McAlpin. I live in Ronan Montana, farming in the
Mission Valley with my wife Gina McAlpin almost 2000 acres of wheat,
corn and hay. Water rights and water resources are a concern of ours.
The Montana Water Protection Act (S. 3019) which was introduced by
Senator Daines and subsequently co-sponsored by Senator Testor will
define the federally reserved water rights of the Confederated Salish &
Kootenai Tribes and settle the legal claims of the Tribes against the
federal government and will provide protections for existing water
users across Montana.
S. 3019 has received broad bi-partisan support from every major
agriculture and water use group in the state, as well as irrigators,
businesses, and local governments. It will also protect Montana farmers
farmers and ranchers from being forced into costly legal proceedings to
defend their water rights.
S. 3019 will generate $52.9 million in annual economic activity and
6,330 jobs in Montana and will save taxpayers $400 million compared to
alternative settlement proposals.
Encourage the members of the Indian Affairs Committee to pass this
landmark piece of legislation to protect the future of Montana's water
resources.
Regards,
Ken McAlpin
______
Polson, MT
6/24/2020
Considerations:
Real, long term impact and cost.
Affected loss of tax base.
Huge impact on our county infrastructure and resources for all
communities.
Ambiguities need clearer language.
Changes from the Compact and new additions.
Changed scope of easements.
Long term effects of land trades and water use.
I am a senior citizen already struggling with the increase in
property taxes and living expenses but love my Montana home. I work as
a Paraprofessional at Polson High School and care about what impacts
the future of our tribal and non tribal community; we are here
together.
PLEASE DO NOT SUPPORT PASSAGE OF S. 3019!
RoseAnne Detterer
______
6/23/2020
Good Evening My Fellow Montanan's:
Please join all Montanans in supporting the passage of S. 3019--The
Montana Water Rights Protection Act.
My wife is a 6th generation Montanan born and raised in the Mission
Valley, my children were born and raised in the Mission Valley and I am
the product of multiple generations of fellow Montanans. I personally
spent years working alongside my friends, family and fellow business
leaders to see this legislation passed in Helena. We now reside in
Corvallis, Oregon due to the fallout surrounding the Great Recession,
but our hearts will always be in Montana. My wife and I continue to be
proud Montana taxpayers and property owners in the Mission Valley. You
can take the girl out of Montana, but no one will ever take Montana out
of the girl.
As Senators Tester and Daines can attest to, I remain committed to
the Great State of Montana and the strong bipartisan work both Senators
continue to provide for its Citizens.
Passage of this Act will finally secure these water rights,
assuring continued prosperity for future generations of Montanans. Its
been an honor to see this Bill finally reach the US Senate, and I
implore you to use all efforts to secure its passage. Montanans as well
as multiple states across the Pacific Northwest depend on it.
Thank you Senator Tester, Senator Daines and all Staff that have
worked untold hours to get the Bill to this point. Let's get it across
the finish line. Our future depends on it.
Best regards (And Go Griz),
Gordon Zimmerman
______
The Wilderness Society
June 23, 2020
Dear Chairman Hoeven and Ranking Member Udall:
On behalf of The Wilderness Society and our more than one million
members and supporters, we write to offer our views on S. 2165, the
Safeguard Tribal Objects of Patrimony Act, and S. 3019, the Montana
Water Rights Protection Act, and S. 2192, the Blackwater Trading Post
Land Transfer Act.
S. 2165--Safeguard Tribal Objects of Patrimony Act--SUPPORT
TWS supports S. 2165, the Safeguard Tribal Object of Patrimony Act,
by Senators Heinrich and Murkowski. This important, bipartisan
legislation will prevent the illegal export of sacred Native American
items and increase penalties for stealing and illegally trafficking
cultural patrimony.
The legislation is necessary to help safeguard Native American
heritage, including the art, cultural patrimony, and other objects that
are sacred to Native people. For too long, looting and theft have
destroyed sacred Native American art and culture. The legislation will
help prevent the continued theft and desecration of Native American
culture, while empowering the United States to ensure that foreign
governments honor Native American cultural heritage. For these reasons,
we support S. 2165, and urge the committee to advance this important
legislation.
S. 3019--Montana Water Rights Protection Act--SUPPORT
TWS supports S. 3019, the Montana Water Rights Protection Act, by
Senators Daines and Tester. This legislation is necessary to fulfill
the United States' treaty and trust obligations to the Confederated
Salish and Kootenai Tribes. The legislation will end the decades of
uncertainty over water use in northwest Montana, settle damages to the
Confederated Salish and Kootenai Tribes, prevent costly litigation, and
facilitate tribal economic development.
Importantly, the legislation will take into trust the 18,500-acre
National Bison Range for the benefit of the Confederated Salish and
Kootenai Tribes. This land is in the center of the treaty--reserved
Flathead Indian Reservation, and was illegally taken by the United
States. Restoring the land to trust status for the benefit of the
tribes rights a historical wrong while supporting tribal sovereignty.
The proposal does not transfer public lands out of the public estate.
Instead, it returns ancestral lands to the Confederated Salish and
Kootenai Tribes while maintaining the United States' trust
responsibilities as well as public access. Based on the unique
circumstances of the establishment of the National Bison Range, the
transfer into trust will not set precedent for other public lands.
For these reasons, we support S. 3019 and urge the committee to
advance it.
S. 2912--Blackwater Trading Post Land Transfer Act--SUPPORT
TWS supports S. 2192, the Blackwater Trading Post Land Transfer
Act, by Senators McSally and Sinema. This bill would authorize the
Secretary of the Interior to place approximately 55.3 acres of land in
Pinal County, Arizona into trust status for the Gila River Indian
Community. Due to the Arizona Water Settlements Act, taking any lands
outside the existing reservation boundaries into trust status requires
Congressional action. The Blackwater Trading Post has long been a
community center for the Gila River Indian Community and the Community
purchased this land in 2010, recognizing the cultural and historical
significance of the Trading Post and the land it sits on. Since 2012,
the Community has been trying to have this land taken into trust status
so that it will effectively be part of the reservation and preserved as
a place of cultural significance. For these reasons, we support S. 2192
and urge the committee to advance it.
Thank you for considering our views.
Sincerely,
Paul Spitler, Director of Wilderness Policy
______
Ronan, Montana
June 17, 2020
Chairman Hoeven, Vice Chairman Udall, Committee Members:
Thank you for taking up this important legislation.
I am writing in support of Senate Bill 3019, The Montana Water
Rights Protection Act. It truly does just that.
Our family has farmed on the Flathead Indian Reservation since
1934. We raise potatoes, grain, hay, cattle and grand kids here on a
thousand acres. This is a beautiful place and the Montana Water Rights
Protection Act protects this place, the heritage and the economic
viability of this place many of us call home.
The act gives us the certainty that we can continue to farm while
respecting the natural resources and rights of the tribe.
The bill is the culmination of decades of negotiations between the
Confederated Salish & Kootenai Tribes, the United States Government and
the State of Montana.
It is my sincere hope that this bill will finish this great work.
Susan Lake
______
Martinsdale, Montana
June 23, 2020
Dear Senators:
I wholeheartedly thank Senators Daines and Tester for sponsoring
the landmark legislation, The Montana Water Protection Act, S. 3019. As
a rancher's daughter, a rancher's wife, a member of the Montana Farm
Bureau, as an attorney practicing in the area of property and water
rights, and a long-time advocate for farmers and ranchers on policy
issues on local, state and national levels, I strongly support
immediate passage of S. 3019.
Sincerely,
Hertha L. Lund
______
OFFICE OF THE GOVERNOR, STATE OF MONTANA
July 6, 2020
Dear Chairman Hoeven and Vice Chairman Udall:
I write today in support of the Montana Water Rights Protection Act
(bill) to ratify the Confederated Salish and Kootenai Tribes-Montana
water rights compact (Compact). I appreciate the excellent hearing that
was held on the bill last week and urge the Committee to expeditiously
mark up the bill along the lines discussed at the hearing, pass the
amended bill from Committee, and support its passage in the full
Senate.
This biapartisan and equitable bill will provide vital certainty to
all Montana water rights holders, avoid expensive and protracted
litigation, and authorize necessary funding to ensure that critical
water infrastructure in western Montana is rehabilitated and modernized
to meet the current and future needs of all water users.
The Compact is the result of more than two decades of negotiations
between the Confederated Salish and Kootenai Tribes, the State of
Montana, and the United States to resolve the Tribes' water rights
claims within Montana. For more than a decade I have suppmied this
settlement in my role as Attorney General and Governor. In my first
term we successfully passed the water rights compact. Since then my
office has strongly supported federal settlement and I am pleased that
settlement will occur before my term ends. S. 3019 commits the federal
government to fulfill it's nation to nation responsibilities and
respects federal, state and tribal nation interests as co-sovereigns.
The state has committed $55 million toward the rehabilitation of
the Flathead Indian Irrigation Project, which serves both tribal and
non-tribal irrigators on the Flathead Indian Reservation-the largest
such settlement ever approved by the Montana Legislature. Following
legislative approval, I signed the Compact into Montana law in 2015.
I appreciate the massive effort it takes to get a bill of this size
negotiated and moved. I look forward to continuing to work with the
Committee, the full Congress, and the Administration to assure that
Montana's interests are protected.
Sincerely,
Hon. Steve Bullock, Governor
______
Polson, MT
7/3/2020
To whom it may concern
I support strongly the return of the Bison Range, near my home, to
tribal management. I have had many inter actions with tribal members
over decades and the overwhelming majority have been very positive. And
the land was taken from them illegally, albeit it is a complex issue. I
have every indication that they would be excellent stewards.
Dr. Charles Hall (Ecologist)
______
7/3/2020
Dear Committee:
All we hear about the injustice and racism is this: ``It happened
yesterday. Get over it.'' ``You being a victim. Quit whining around.
``You are a race-baiter (unknown to me what that is)''. ``I don't owe
you anything as I wasn't the one who took it from you.'' The illegal
taking of the Bison Range from the Salish-Kootenai Confederated Tribes
is prime example that it isn't ``yesterday'', ``there is no getting
over being robbed'', ``that claiming this is playing victim'', that the
ones profiting from it are benefiting from the larceny. Why is it that
when any Native claims his/her/tribal property of any kind, we
portrayed as playing the victim yet when a non-Native goes after their
property they have a legal claim, a right to have their property
returned and that whoever took it must pay restitution. You have an
opportunity to help right a wrong taking, an illegal act, and to
restore the property to the rightful owners. I hope you that do just
that and return the land, the Bison Range, to the Salish-Kootenai
Confederated Tribe which is made up of fine individuals who want
nothing more than justice. Thank you for listening,
Steve Yapuncich
______
7/7/2020
It is my belief that The Bison Range should be turned over to The
People who first lived as One with Bison. I trust The People who have
lived with Bison for thousands of years are best qualified to care for
both The Bison and the public best interests.
Dale Broszeit
______
7/4/2020
Hello,
My name is Clarence Sanders, and I reside in Bozeman, MT.
I write to emphatically support return of the National Bison Range
to the Confederated Salish and Kootenai Tribes.
The U.S. Claims Court ruled the land was improperly taken, and per
that ruling should be returned to jurisdiction and authority of the
Tribes.
Please adopt that measure as part of S. 3109, The Montana Water
Rights Protection Act.
Thank you,
Clarence Sanders
______
Bozeman, MT
7/7/2020
I am not against The Confederated Salish Kootenai Tribe but I am
against relinquishing Federal land to private entities. I oppose
transferring the National Bison Range which is currently publicly owned
land managed for the public by the US Fish and Wildlife Service. I
believe the US Fish and Wildlife Service is the appropriate agency to
manage the National Bison Range because it is a wildlife refuge. I
believe the National Bison Range should remain in public ownership.
I am worried that in the future the National Bison Range may not be
managed properly to protect its wildlife habitat, bison preservation
and public use mandates if management and ownership of the land is
transferred to a tribe. I am sure that the tribe currently intends and
would for a time manage in accordance with these mandates however there
is no guarantee that the tribe's priorities and personnel will continue
this management into the future.
I have visited the Bison Range and it is a rare jewel of accessible
prime habitat that is an important place for the public to view
wildlife and learn about the history of wildlife management. Not only
are bison readily visible but magnificent elk, mule deer, pronghorn and
bighorn sheep are easily viewed in the wild and in their native
habitat. This is because the area is currently closed to hunting. I am
concerned about hunting being allowed in the Range and/or poaching
occurring. I am also concerned about the land being sold in the future.
Currently the Flathead Reservation is majority owned by whites because
tribal members sold off large areas of their historical reservation for
private profit.
If the Fish and Wildlife Service wants to incorporate tribal
members in management that is fine but the land should remain in
permanent public ownership and under management by an agency
responsible to the American public.
Thank you for considering my comment.
Nike Stevens
______
Missoula, MT
7/3/2020
I support the wildlife management programs of the Tribes on the
Flathead Reservation and Tribes' ability to manage the Refuge both for
preservation of the bison and for continued public access. I believe
the wrongful taking should be righted by returning the land.
Bruce Bender
______
Gallatin Wildlife Association
July 4, 2020
Dear Committee Members,
The Gallatin Wildlife Association (GWA) has been following the
actions and proposed threats to the National Bison Range (NBR) for
several years now. We were shocked and dismayed to learn of the
attempts by the Montana Congressional Delegation, specifically those by
Senators Daines and Tester, to secretly propose a land transfer of
public lands managed by the U.S. Fish and Wildlife Service over to the
Confederated Salish and Kootenai Tribes (CSKT) of Montana. All of this
done without approval, permission or widespread knowledge of the people
of Montana, let alone the country. We use the word ``secret'' because
other than perhaps one meeting in Missoula, there have been no
hearings, no presentations, no announcements before the public. Not
even staff people of Sen. Daines' office in Bozeman, MT knew of this
issue when GWA visited with them. This in and of itself sets bad
precedent.
GWA would like to comment further on this proposal. We should first
define who we are. We are a local, all volunteer wildlife conservation
organization which is dedicated to the preservation of wildlife and
wildlife habitat in Southwest Montana. We are a nonprofit 501(c)(3)
organization which has been in existence since 1976 representing
hunters, anglers, and other wildlife advocates with the mission to
protect habitat and conserve fish and wildlife populations on a
sustainable basis for our children and future generations. This issue
very much becomes our issue by its potential repercussions on native
wildlife, but also on the future of public lands. We want to make
clear; we are only commenting on the inclusion of the NBR in Senate
Bill 3019.
S. 3019 is a water-rights compact issue, a state issue. Section 2
of the bill lists the four purposes of the Act as follows:
1. to achieve a fair, equitable, and final settlement of
claims to water rights in the State of Montana, and in
recognition of article I, and section 3 of article IX, of the
Montana State Constitution for-
(A) the Confederated Salish and Kootenai Tribes of the
Flathead Indian Reservation; and
(B) the United States, for the benefit of the Tribes and
allottees;
2. to authorize, ratify, and confirm the water rights compact
entered into by the Tribes and the State, to the extent that
the Compact is consistent with this Act;
3. to authorize and direct the Secretary of the Interior-
(A) to execute the Compact; and
(B) to take any other action necessary to carry out the
Compact in accordance with this Act;
4. to authorize funds necessary for the implementation of-
(A) the Compact; and
(B) this Act.
As the committee can see, nowhere in the designated design purpose
is there a statement about a resolution of the NBR. Nowhere does the
purpose deal with wildlife, bison, or public lands. The only reason the
NBR is even part of this legislation is to help provide payment to the
CSKT. The only purpose in mentioning the NBR is to explain what the NBR
is in that function for payment; payment by the way which was not done
in accordance with the approval of the citizens of Montana, the country
or done in conjunction with conducting a National Environmental Policy
Act (NEPA) analysis, which is law. The people of the United States
should have a say in such a land reallocation. It is the 10th most
popular visited park within the National Wildlife Refuge System. Not
only does it set bad precedent to try and hide public land transfers
from the public, but it is also setting bad precedent to take land or
funds from the federal trust to pay a state's debt. What is the
legality of such action? The people of Montana are being represented
very poorly in this action by Senator Daines, the sponsor of this bill.
There are other problems and/or questions GWA has with the
legalities or processes of this legislation. Under Standing Rules of
the Senate, Rule XXV, 1(h)(1), there is this statement:
``Committee on Environment and Public Works, to which
committee shall be referred all proposed legislation, messages,
petitions, memorials, and other matters relating to the
following subjects.''
Of those numerous subjects listed, several apply, stating that this
legislation should be considered by this particular committee. Those
which apply, but which are not limited to, are: ``Environmental policy,
Environmental research and development, Fisheries and wildlife, and
Public buildings and improved grounds of the United States generally,
including Federal buildings in the District of Columbia.''
Why has this legislation not been introduced into this committee,
one where it is mandated?
On another front, GWA questions whether or not the U.S. Fish and
Wildlife Service (USFWS) has been adhering to the original intent of
the National Wildlife Refuge System Administration Act (NWRSAA) of 1966
or the National Wildlife Refuge System Improvement Act of 1997. That
may get us into a broader issue other than to say perhaps that problem
gave rise and justification for the Senators and the CSKT to push the
idea of this land transfer. If the USFWS had managed the NBR in recent
years in the way they're mandated to do so, perhaps the NBR would not
have been included in this bill.
There's recent history over the fact the NBR has had a
mismanagement problem, and that raises a serious question. If the NBR
is not getting the necessary oversight, protection and fulfillment of
the NWRS mission, how are they going to get those assurances within the
CSKT? Meaning no disrespect to the CSKT, but they are a tribal entity
with a different purpose and existence. They are an entity which does
not provide or possess those national protections, an entity outside
the jurisdiction of the American people and its government, and an
entity where there are no guarantees of fulfilling that national
mission. How are they going to improve the condition?
On to the NBR and its specifics. The NBR contains 18,800 acres of
federal public land, land that was designated to be set aside as a
refuge for bison in 1908 by President Theodore Roosevelt. This is a
public trust which has had an iconic presence within the National
Wildlife Refuge System for 112 years with a specific mission to protect
our most recent National Mammal from extinction. That mission still
holds true today in spite of the fact there are plenty of bison herds
across the country, privately and federally owned on tracts of private
and public land. It is sad to think that some feel the NBR is a victim
of its own success, but it is not. What is being ignored is the fight
for the enduring protection of the purity of bison genetics. Through
those 112 years, the USFWS has done a remarkable job in preserving
bison alleles, the genetics which have their founding before the
private herds of Allard, and the selling of that herd to the Conrads in
1901-02. It is that stock which was used in the original founding herd
of the NBR. The purity of those alleles is intact. In quoting DOI Bison
Report, ``Looking Forward'', Natural Resource Report NPS/NRSS/BRMD/NRR-
2014/821, it states this on page 38:
Recent science has established that the Yellowstone and NBR
herds are closely related and both have high genetic diversity
(Dratch and Gogan 2010). Like Yellowstone, NBR bison represent
one of the four primary genetic lineages of extant conservation
herds.
There has been 112 years of investment by the American people and
their tax dollars into the preservation and management of the NBR. The
American people have a right to know the purpose for the potential loss
at stake. The federal mission has not changed. The only thing that has
changed is the willingness of specific interests and tribal groups to
use the NBR as an easy way out of correcting some wrongful deeds by
state and federal governments. Speaking of which, there needs to be a
historical consensus and agreement as to what occurred at the turn of
the 20th century. By not correcting the NBR historical record as stated
in this legislation, it further stains the justification and premise of
this Act. It is a sad state of affairs when a federal piece of
legislation could become law when based upon such a controversial
recollection of history. There should be an effort to get this right
before the American people.
Finally, to conclude on the premise in which we started, we feel
this legislation is dangerously precedent setting in one other way.
Contrary to what is stated in Sec. 13. of S. 3019 entitled National
Bison Range Restoration, line item (k) (No Precedent), GWA believes we
cannot depend upon the provided denial that these provisions are not
precedent setting. There are no guarantees, even in law. As we have
stated in prior public comments, there are 68 National Parks and 34
National Wildlife Refuges listed in policy under Section 403(c) of the
Tribal Self-Governance Act of 1994. Who's to say those lands can't or
won't be subject to the same threat. As we have learned, laws can be
over turned or amended. Just because it's stated in Sec. 13 of this
legislation, doesn't make it so. There is a steep irony here. S3019
opens that door wide, launching a precedent setting change, robbing
Americans of their public land. The CSKT and other First Nation people
are well aware of that feeling.
GWA also wants to clarify that we are not against reparations to
Native American Indigenous tribes. We believe there are many
justifications for such action, but reparations can come in many forms.
If the purpose of this action is for reparations, then we should have
that discussion, but this is not the forum that it should take place.
GWA's sole purpose is to protect America's wildlife and their
respective habitat. We are against taking lands out of the public
domain and the federal trust for that purpose unless there are lands of
equal or greater value that can restore those lost acreages and protect
our natural heritage. With that in mind, GWA urges the Senate Committee
on Indian Affairs to remove the inclusion of the National Bison Range
from S.3019.
We want to thank you for receiving our comments and for any
thoughtful consideration you can provide pertaining to this issue. The
American people have a right to know how their government is working or
not on their behalf.
Respectfully,
Clinton Nagel, President
______
Santa Cruz, California
7/5/2020
Dear Senate Committee on Indian Affairs,
You have a valuable opportunity to help right a wrong in Montana
Indian Country. I urge you to do the right thing.
The Montana Water Rights Protection Act (S. 3019) would return the
lands of the National Bison Range to the Confederated Salish and
Kootenai Tribes to continue preservation of the bison and provide
public access and educational opportunities.
The land that is now called the National Bison Range was acquired
by the United States without the Tribes' consent in what was later held
by a Federal Claims Court to be a taking.
Returning the land to federal trust ownership for the benefit of
the Tribes is a small but very important step towards strengthening
sovereignty and repairing the harms of colonialism. It will make a key
difference in the lives of many CSKT Tribal members.
Please do everything you can to pass S. 3019.
With gratitude and good wishes,
Natascha Bruckner
______
Bozeman, MT
7/6/2020
Absolutely return the National Bison Range to the Native American
tribes it belongs, to correct the stealing of their lands in the
Flathead Indian Reservation. They love the bison and will treat them
humanely and allow access to the public. I've visited the Bison Range
and enjoyed seeing the bison peacefully graze. I've lived in Montana
for 41 years and it is outrageous the federal and state governments
have never recovered the native Montana bison to public lands. This is
the US's national mammal. This species should be managed by Native
Americans as they are who lived side by side the bison and then ``white
men'' ruined their entire cultures and murdered almost every single
bison for greed, power and control. Our country has stolen many Native
American lands and broken many treaties--this would be one small step
to correct this travesty by the US Government. Thank you.
Pat Simmons
______
Missoula, MT
7/5/2020
Honorable members of the Senate Committee,
I am a citizen of Montana and I would like to record my support for
tribal management of the National Bison Range. I live near to the
Flathead reservation and have visited and enjoyed the Bison Range on
many occasions, often bringing family and visitors to enjoy the unique,
informative and scenic environment. I am familiar with the history of
the bison and land that make up the range and share what I know with my
guests. It is almost unanimous that my guests find the tribe's lack of
involvement in the creation and management of the bison range as a rude
injustice, an injustice that continues today as part of a legacy of
regrettable acts by the U.S. government against the Native American
peoples of Montana. These regrettable acts separated tribal members
from the land and bison that sustained and nourished them,
economically, culturally and spiritually. Putting management of the
National Bison Range into tribal hands is a way to right some of these
wrongs.
I trust tribal management. As a student of environmental sciences
at the University of Montana, I became familiar with the approaches and
successes of the CSKT in managing the natural resources of the Flathead
reservation. As a recreationalist, I've enjoyed the benefits of that
management in the lakes, streams and wilderness of the reservation. The
CSKT are skilled and able managers of natural resources, which should
be no surprise, as their knowledge of this landscape and the species
that inhabit it run deep. I am confident that the tribe will manage the
Bison Range skillfully and in the interest of the public.
It is time to return the land and bison to the care of the CSKT.
Please support tribal management of the National Bison Range.
Respectfully,
Yvonne Sorovacu
______
Native American Rights Fund
July 6, 2020
Dear Chairman Hoeven and Senator Udall,
The Native American Rights Fund writes in support of Senate Bill
3019, the Montana Water Rights Protection Act, jointly introduced by
Montana Senators Steve Daines and Jon Tester. NARF has a long history
of supporting the settlement of Indian water rights claims for our
tribal clients and other tribes, and of securing congressional approval
of the settlements. For nearly four decades, we've partnered with the
Western Governors Association and the Western States Water Council in
these efforts, recognizing that we all live in the same river basins
and watersheds and have to work together to share in the benefits of
these vital natural resources.
This legislation will provide congressional approval for the water
compact negotiated between the State of Montana and the Confederated
Salish and Kootenai Tribes (CSKT) pursuant to the State's water
compacting process. Several other Montana tribes as well as federal
agencies have successfully settled their water rights and secured
congressional approvals. CSKT will be the last Montana Tribal compact
to receive congressional approval. S. 3019 is also noteworthy in that
it transfers the National Bison Range located on the Flathead
Reservation from the U.S. Fish and Wildlife Service to CSKT. NARF
strongly endorses the legislation and these purposes.
The water compact is the result of years of negotiations between
the CSKT, the State of Montana, water users in the Flathead Valley, and
the Department of Interior. It was ratified by the Montana Legislature
in 2015. This, like all Indian water settlements ultimately approved by
Congress, was not a one sided deal. The Tribes relinquished
considerable legal rights in order to accommodate water uses that have
developed subsequent to the Hellgate Treaty of 1855. The compact was
derived from long and intense negotiations. Importantly, it will bring
a new structure and process to water management in western Montana, for
the benefit of all water users as well and the water and fisheries
resources of the region. Its innovative approach to habitat restoration
and protection, water conservation, and instream flows is essential to
fish and wildlife populations on and off the Flathead Reservation.
The National Bison Range sits within the CSKT Reservation and the
Tribes, as sovereigns, are very well situated to take over management
of the Range. Bison have tremendous social and cultural significance to
the Salish and Kootenai peoples. It is much more than a symbolic
gesture to restore the Range and its resources to the rightful
management of the Tribes. Their integration of tribal culture into
bison management will benefit the animal, as it enriches the experience
of the thousands of people that annually visit the Bison Range.
Very truly yours,
John E. Echohawk, Executive Director
______
Flathead Reservation Human Rights Coalition, Inc.
6/28/2020
As the President of FRHRC and a 40 year resident on the Flathead
Reservation, I have seen many attempts and actions against the
sovereignty of the Flathead Nation (the Confederated Salish and
Kootenai Tribes).
It is evident that not only is sovereignty not understood, but by
some it is met with resistance as evidenced by the talk of dismantling
the reservation because it is open, meaning all land is not owned by
the tribe and its members, fighting against concurrent jurisdiction
oflaw enforcement, continual complaints by non-Indian residents over
purchasing hunting and fishing permits from the Tribe, etc.
This history is important to understand the resistance to Tribal
Bison Range management I have witnessed co-management of the National
Bison Range and the institutional racism and undermining of that brief
period by some of the non-indigenous Bison Range employees and others
that perpetuate the fear of Tribal management.
I have witnessed excellent tribal management ofland and natural
resources thru traditional burning and clearing of brush to help reduce
impact of wildfires. The air quality we enjoy is rated as pristine and
is managed by the tribe. The efforts to minimize further negative
impact oflake trout in Flathead lake, the water quality is managed by
the Tribe, as is the wonderful wilderness of the Mission Mountains kept
clear of buildings and roads. The Tribe also does a great job of
running Mission Valley Power and the Sel,lis Ksanka Qlispel, (formerly
Kerr Dam).
The Tribe is a good neighbor and supports local fire departments
and helps with search and rescue operations, MMIP task force, and most
lately the Tribe and Lake County formed the Unified Command Center for
COVID and CSKT offered free COVID testing to keep all reservation
residents informed and safe!
The tribe managed buffalo since the 1800's and provided some of the
stock to start the bison range to begin with. This type of wildlife
management is well within the scope historically and presently of the
Flathead Nation. This move will also still provide visitation to the
NBR by the public, together with added opportunities to learn about
Bison from a tribal perspective. The Salish Kootenai College provides
degrees in Forestry Forest Management, Forestry Wild land fire
management, Hydrology, Wildlife and Fisheries not to mention Tribal
History Preservation. All of these programs help to maintain the
knowledge base to thrive as the stewards of the National Bison Range.
We support The MT Water Rights Protection Act and the transfer of
the National Bison Range to the CSKT Tribe within the Bill.
Tammy Miller President
______
National Congress of American Indians
July 14, 2020
Chairman Hoeven and Vice Chairman Udall:
On behalf of the National Congress of American Indians (NCAI), the
oldest, largest, and most representative national organization
comprised of tribal nations and their citizens, I write to express
NCAI's support for S. 3019, the Montana Water Rights Protection Act.
Permanent and reliable access to water creates significant health,
cultural, and economic development benefits for tribal nations and
surrounding communities. Securing this resource through water rights
settlements meets these conditions by resolving past conflicts,
providing future certainty, and ensuring ``wet'' water reaches tribal
lands. For these reasons, NCAI membership codified its support for
Congressional approval of the water rights compact negotiated between
the state of Montana and the Confederated Salish and Kootenai Tribes
(CSKT) by passing NCAI Resolution #MSP-15-038, Support for the Water
Rights Compact between the Confederated Salish and Kootenai Tribes, the
State of Montana, and the United States of America.
Additionally, tribal communities are often place-based and their
relationship to their homelands extends from time immemorial and is
rooted in tribal eco-cultural practices developed over millennia. When
tribal nations have the ability to make culturally appropriate
management decisions about their lands and natural resources they bring
health and cultural and economic development benefits to their citizens
and surrounding communities. In this regard, NCAI Resolution #SPO-16-
006, Support Legislation to Return the Land and Resources of the
National Bison Range to Federal Trust for the Confederated Salish and
Kootenai Tribes, formalizes NCAI's strong support for restoration of
the bison range to CSKT and for their eco-cultural management approach
to the care and continuity of the bison heard and the National Bison
Range.
The Montana Water Rights Protection Act, S. 3019, would provide
water security and certainty to future generations of citizens of CSKT,
surrounding communities, and the state of Montana. With regard to the
management of the National Bison Range, S. 3019 represents an
appropriate management solution to the unique situation and history of
the National Bison Range and CSKT's relationship with the bison,
wildlife, natural resources, and land. For these reasons, NCAI supports
passage of S. 3019, the Montana Water Rights Protection Act.
Sincerely,
Kevin J. Allis, CEO
______
National Congress of American Indians
July 14, 2020
Chairman Hoeven and Vice Chairman Udall:
On behalf of the National Congress of American Indians (NCAI), the
oldest, largest, and most representative national organization
comprised of tribal nations and their citizens, I write to thank you
for holding a hearing to consider S. 2165, the Safeguard Tribal Objects
of Patrimony Act of 2019 (STOP Act), and to express NCAI's strong
support for this bill.
Core to NCAI's mission is the protection and preservation of Native
cultures and ways of life for future generations. NCAI's membership has
repeatedly expressed the importance of protecting from dispossession
unique, irreplaceable, and indispensable items of cultural and
religious importance. \1\ Most recently, NCAI codified this commitment
in Resolution #REN-19-003, Supporting Legislation to Facilitate
International Repatriation of Tribal Nations' Tangible Cultural
Heritage and Coordination among Federal Agencies. This resolution
requests Congress enact legislation to prevent the illegal export and
facilitate the international repatriation of items of tribal cultural
heritage.
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\1\ See generally, NCAI Resolution #SAC-12-008, Support for
International Repatriation; Resolution #ATL-14-032, Calling for the
Protection of Native Peoples' Sacred Places, Sacred Objects, and
Ancestors under United States, Native Nations and International Law,
Policy, and Practice.
---------------------------------------------------------------------------
To this end, the STOP Act is significant legislation that addresses
deep and long-standing harms suffered by Native people and their
cultures through the dispossession of cultural items from their
homelands and cultural contexts to foreign countries and markets. To do
this the STOP Act would, (1) increase Native American Graves Protection
and Repatriation Act (NAGPRA) penalties; (2) prohibit the export of
cultural items held in violation of existing domestic law and establish
a certification system to facilitate lawful export; and (3) establish
working groups to promote coordination among federal agencies and
assist with the voluntary return of cultural items.
The STOP Act is an important piece of legislation that draws on the
strengths and successes of existing cultural heritage laws and
addresses a limitation in them--the lack of an explicit prohibition
against the export of items otherwise protected under federal law.
Cultural heritage laws like NAGPRA and the Antiquities Act were passed
to protect the cultural heritage of tribal nations. In preventing
international export of these items, the STOP Act builds on the purpose
of these laws and recognizes the sanctity of tribal cultural items to
tribal nations and their citizens. For these reasons, NCAI strongly
supports the passage of S. 2165, the STOP Act.
Sincerely,
Kevin J. Allis, CEO
______
Bozeman MT
7/2/2020
Respectfully, I oppose the privatization of public lands whether
done in a massive step or whether step by step. If reparations are
appropriate for some past deed, pay, but don't privatize public lands.
Public land stewardship has proven the most effective conservation in
the history of this nation, not perfect, usually requiring public
pressure to do better, but the most effective. Wilderness designation
is the gold standard of conservation. The National Park Service have
done a good job, particularly given inadequate funding, population
pressures, and political interference. The National Bison Range is a
tiny piece of land in the context of public lands, but it has every
privatization advocate strongly behind it as it would open the door to
privatization of public lands in general. I oppose giving,
transferring, selling, exchanging, leasing, and other euphemisms as
well as the act of privatizing public lands. Public lands are not a
political favor to be granted to any special interest, whether the
interest is defined by wealth, ethnicity, race, religion, political
ideology, etc. Keep public lands public!
Sincerely,
Anne Millbrooke, Public Land Owner
______
Kalispell, MT
7/3/2020
Please return the National Bison Range to the Confederated Salish
and Kootenai Tribes. This is their heritage. They have the right to
regain all land illegally and forcefully taken from them by the US
Government. The US Government needs to make amends for its genocide of
Native Americans and past racist agenda towards Native Americans.
Norman Mellin
______
Kalispell, MT
7/7/2020
I would very much like to see the National Bison Range return back
to the care and keeping of the Confederated Salish and Kootenai Tribes.
From a moral perspective, I believe it is one step toward amending so
many past wrongs done to the Native Americans. From an ecological
perspective, I have seen lands flourish under the management of Tribes.
The deep, connected relationship that Tribes have with the earth puts
me at ease knowing that they will truly care for these lands in the
highest and best way possible.
Most sincerely,
Lindsay Minnich
______
Missoula, MT
7/6/2020
I write to express my strong support for both the water rights
compact/settlement and National Bison Range restoration to the
Confederated Salish and Kootenai Tribe (CSKT--comprising the Salish,
Kootenai and Pend Oreille people) elements of Senate Bill 3109.
The water rights settlement portion of the bill reflects a measured
compromise between the sovereign CSKT Nation and the State of Montana.
The provisions of this bill relating to the water compact agreement
embody the efforts of the both state and tribal authorities to reach a
settlement of the pre-eminent rights of the CSKT to water under their
Treaty of 1855. It provides for the welfare of the tribe and those that
depend on the water affected by the agreement. It has passed the
Montana Legislature, which gave the agreement substantial attention in
legislative sessions before approving it. The US Senate should applaud
and support the terms of that agreement that make a fair and equitable
division of water availability for all.
The National Bison Range restoration part of the bill is a long
overdue acknowledgement of the rights, culture and spiritual attachment
of the CSKT people to bison and the land on which the NBR is found. The
preamble of the bill recites an accurate and telling history
surrounding the NBR and the bison found on it. Indeed, the actions of
the Salish people were among the first moves to conserve bison from
extinction. The connection of CSKT confederated tribes to bison is
strong and spiritual. The NBR lies wholly within the CSKT reservation
boundaries and was taken without tribal consent by the federal
government, a fact established by judicial review. It is only just to
acknowledge this connection and correct the mistakes of the past.
Such a transfer to federal trust ownership of the NBR does not set
a precedent for other public lands. The unique history of the situation
and the connection of the CSKT to the place and the species for which
it is managed distinguish this transfer from proposed transfers to
state or private ownership. Moreover, public access is preserved by the
express terms of the bill.
Finally, the CSKT Resource Management staff is top-notch and a
recognized leader in natural resource management in Montana and the
nation. The care and effectiveness that they have shown managing
grizzly bear and bull trout, two other species that suffered sharp
declines, speaks loudly to the CSKT leadership in wildlife management.
Bison, a spiritual being for the CSKT, can only be expected to flourish
under CSKT management.
In sum, there is every reason to restore the NBR to the CSKT. It
would serve as a meaningful step to restore essential cultural
connections of native people. In these times, it is an essential step
to address past injustice.
Len Broberg
______
Polson, MT
7/4/2020
In regard to my personal introduction, I am a retired cattle
rancher in the Polson, Montana, area, having lived here for over fifty-
nine years. I am a 50+ year member of the Society for Range Management
(SRM), served on the SRM Board of Directors and received the highest
award SRM gives for excellence in land stewardship. I served four years
on a National Academy of Sciences committee that evaluated various
means of defining rangeland condition. On the State level I served ten
years on the Montana Noxious Weed Trust Fund advisory committee. On the
local level, I served on the Lake County Weed District Board. I feel I
am well qualified to pass judgment on the Confederated Salish and
Kootenai Tribes (CSKT) ability to manage rangeland.
One provision of SB 3019 is the transfer of the National Bison
Range (NBR) to the CSKT. First of all, this portion of SB 3019 has
nothing to do with the ratification of the Flathead Water Compact,
which I have supported. Therefore, the transfer of the NBR should be
stricken from the Bill.
My second point is that the CSKT has already been paid twice for
the land that encompasses the NBR. This ill conceived legislation would
not only give the CSKT the land but also the bison themselves,
considerable range improvements like fences, water developments, bison
handling facilities, and access roads, as well a numerous buildings,
all paid for by American taxpayers.
My third point is the CSKT's lack of ability to properly manage
rangelands. The primary goal of managing the NBR is to properly manage
the health of the rangeland. Bison and other wildlife depend upon
healthy, robust rangeland. Based on my almost sixty years of living in
Lake County and being involved in range management, it is my
observation that the CSKT has not exhibited good stewardship on the
rangelands that they manage, especially their grazing leases. They may
have established wilderness areas, etc., but these areas do not require
the annual, hands-on management that rangelands require, like weed
control, fencing, water development, rotation grazing and proper
stocking rate.
Based on my observations of both Tribal rangeland management and
the U.S. Fish and Wildlife Service management of the NBR, I believe it
would be in the best interest in the health of the land and of the
American people that the NBR be retained under its current ownership
status.
I, therefore, urge you to delete this provision in SB 3019.
Chuck Jarecki
______
7/4/2020
I am a Montana Resident and fully support the return of the Nt.
Bison Range to the ownership and management of the Confederated Salish
and Kootenai Tribes. In fact the original preservation of the bison in
the Flathead Valley in 1884 was due to the efforts of two men, Michel
Pablo and Charles Allard, both of whom had Native American mothers.
Mark Miles
______
Missoula, MT
7/6/2020
To whom it may concern;
I am writing to support the passage of The Montana Water Rights
Protection Act (S 3019). The National Bison range lands should be
returned to the Confederated Salish and Kootenai Tribes. These tribes
will work to preserve the animals and their habitat forever. They are
committed to maintaining public access and education. I have enjoyed
this historic place for over 40 years and look forward to many more.
Thank you for your consideration.
Beth Ikeda
______
Helena, Montana
7/7/2020
The Montana Water Rights Protection Act, if passed, will return the
lands of the National Bison Range to the Confederated Salish and
Kootenai Tribes. The land upon which the National Bison Range is
located was acquired by the U. S. without the Tribes' consent. That
action has been held by a Federal Claims Court to be a taking.
Returning the land to federal trust ownership for the benefit of the
Tribes is the right thing to do as it is a step in repairing the
historical harms Indian Tribes have suffered from the U. S. government.
The Confederated Salish Kootenai Tribes have a history of excellent
management of their lands and of the wildlife on their lands. The
National Bison Range lies wholly within the Flathead Indian
Reservation. The National Bison Range is one of Montana's gems. I have
confidence that the Confederated Tribes would manage the Bison Range
well for the preservation of the bison and for continued public access.
Thank you for this opportunity to comment.
Sincerely,
Marylis Filipovich
______
Missoula, MT
7/2/2020
I am a retired physician and lifetime Sierra Club member living in
Missoula, MT. My passion is nature photography. One of the most magical
places in our beautiful state is the National Bison Range. For years
now, I have gone several times each year to observe and photograph the
many wild creatures who live there, not just the magnificent bison
herds, but also pronghorns, bighorn sheep, bear, elk, deer, and others.
It has been my pleasure to take many family members and visitors there
as well. It's high time that we returned the management and ownership
of this special place to their rightful owners, the Flathead Indian
Reservation. The land was taken from their reservation illegally years
ago, and it's only just and appropriate that they own and control it
now for the benefit of all the people of this country and other
countries as well. The tribes of the Flathead Indian Reservation have
amply shown by the creation of their own wilderness area in the Mission
Mountains, unique in the nation, how much they value and wish to
protect the natural beauty and the creatures that surround them. Thank
you for considering my thoughts about this important matter.
Jerome Walker, M.D.
______
Wildlife Conservation Society
June 30, 2020
To Whom it May Concern,
The Wildlife Conservation Society (WCS) is writing to offer this
letter for the hearing record in support of S. 3019, The Montana Water
Rights Protection Act, which was heard by the Senate Committee on
Indian Affairs on June 24th, 2020. WCS stands in strong support of the
Confederated Salish and Kootenai Tribes (CSKT) and their efforts to
bring closure to and resolve longstanding resource issues addressed in
S. 3019, and particularly Section 13 of the bill which addresses
restoration of the National Bison Range.
WCS was founded as a science-based conservation organization in
1895 in large part to help support the conservation of species like the
American Bison. Today WCS works in over 60 countries to help conserve
wildlife and wild places through science, conservation action,
education, and inspiring people to value nature. WCS's own
organizational history is deeply intertwined with efforts in the late
19th and early 20th centuries to help prevent American Bison from
becoming extinct. WCS helped to found the American Bison Society in
1905 and was intimately involved in the establishment of the National
Bison Range in 1908, including providing animals from WCS's Bronx Zoo
for reintroduction.
Today, 112 years later, WCS recognizes the sovereign rights of the
Confederated Salish and Kootenai Tribes and stands in solidarity with
CSKT and the provisions of this bill in: (1) acknowledging the history,
culture, and ecological stewardship of the Tribes of these lands,
natural resources, and bison; (2) ensuring the protection and
enhancement of these lands, resources, and bison; (3) continuing access
and educational opportunities; and (4) a smooth transition and
restoration of the stewardship of these lands, resources, and bison to
CSKT, which is recognized as an international leader in wildlife
conservation.
Part and parcel of this restoration is a reconciliation with the
past and the wrongful taking of the Tribes' lands, a recognition of the
Tribes' use of these lands and resources since time immemorial, the
Tribes' reservation of these lands through the Treaty of Hell Gate on
July 16, 1855 (12 Stat. 975), and their protection under Federal law.
WCS is proud to support this bill and its efforts to restore the
National Bison Range, bison herds, and property and resources
associated with these lands to the rightful stewardship of CSKT. It is
long overdue.
We wish to thank Chairman Hoeven and Vice-chairman Udall and
Members of the Committee for hearing this bill, and sponsors Senator
Daines and Senator Tester for their leadership in carrying this
critical piece of legislation. There is a no more timely moment than
the present to advance this piece of legislation and WCS looks forward
to its hopeful adoption this year. Thank you for the opportunity to
comment. Should you have any further questions or concerns, please do
not hesitate to be in contact.
Our sincerest thanks,
Cristina Mormorunni, Director
______
Arlee, MT
7/7/2020
My name is Susan Lindbergh Miller and I have lived in Arlee,
Montana since 1994. My husband's name is Elon Hamilton Gilbert. We are
writing you to express our confidence in the proposal included in the
Montana Water Rights Protection Act for the Confederated Salish and
Kootenai Tribes to Manage the National Bison Range in Moiese, Montana,
on the Flathead Indian Reservation.
Over the years we have watched and appreciated the efforts made by
the Confederated Salish and Kootenai Tribes to manage the natural
resources of this reservation. The environmental and cultural education
for local students has been exceptionally interesting and deeply rooted
in centuries' old practices of honoring the land, water and air of this
reservation. This ensures that in the future there will be a
continuation of an understanding, reverence for, and ability to manage
its resources.
The Tribes have written a series of books and stories (some, maybe
all, translated into the Salish Language) for youth that teach and
explore their native legacy of caring for this planet and in particular
the land within the reservation.
The restoration of the Jocko River to support the survival of the
Native Bull Trout as well as the health of the river is another example
of how the tribes are honoring their sacred land. The River Honoring
ceremony held every year on the Flathead River for school children in
the area, including our grandchildren, is another example of honoring
the past, teaching in the present, and looking towards a multilayered
and deep understanding for the future of this beautiful area we call
home.
We live adjacent to the Tribal Trust Forest land, portions of which
are generously open for recreation to those of us who live here but are
not tribal members if we purchase an annual permit. We walk there
almost every day and have been grateful for the Tribes' management
practices.
We have visited the National Bison Range, love it, and can the
think of no better future for its management than to be in the hands of
the local Confederated Salish and Kootenai Tribes. It is their land,
their heritage, and if ever there were an appropriate time to honor
their rightful heritage it is now.
Thank you for standing behind the Tribes in their desire and their
right to manage this important place on the planet. And thank you for
allowing us to enter into the decisionmaking process.
Sincerely,
Susan L Miller and Elon H. Gilbert
______
Water Policy Interim Committee
July 14, 2020
Dear Sen. Hoeven,
The Water Policy Interim Committee (WPIC) urges the Senate Indian
Affairs Committee to pass S.3019 (Montana Water Rights Protection Act)
at its earliest convenience. Doing so will begin to secure the future
of the Confederate Salish and Kootenai Tribes (CSKT)-and that of
thousands of farmers, ranchers, and water users across Montana.
In the arid West, water is a fundamental element for Montana's
cities and towns, farms and ranches, industries and natural wonders.
Legendary, one-armed geologist and explorer John Wesley Powell forecast
a struggle for water in the American West, observing that ``there is
not sufficient water to supply these lands.'' Today, Montana's legal
system relies on a clear delineation of one's water rights-not only to
protect private property rights, but for maximum benefit of all uses.
After decades of negotiation, the Montana Legislature passed the
CSKT compact and associated federal settlement in 2015. The compact
will not only quantify and protect Indian and non-Indian water rights,
but will rehabilitate an aging irrigation project feeding some of the
state's most productive lands, conserve the water resources for
riparian habitat, and drive economic development in western Montana
through access to unallocated reservoir water.
Without approval of the compact, the tribe may be forced to
litigate thousands of claims to protect their ``first in time'' rights,
casting a shadow over tens of thousands of others' water rights.
The WPIC firmly believes that approval of S.3019 by the Senate
Indian Affairs Committee will start the legislation on a path to
approval by Congress and the President.
Thank you for your consideration.
Sincerely,
Rep. Zach Brown, committee presiding officer
______
Montana Public Service Commission
June 30, 2020
Chairman Hoeven,
We are writing to you to voice our support of the request made by
Republican members of the Montana State Legislature to hold at least
one field hearing on the Montana Water Rights Protection Act. Your
Committee's work on this issue will be precedent-setting and spends
nearly $2 billion in taxpayer money--making this request both
reasonable and prudent.
Together, we represent more than 320,000 of the nearly 1.1 million
Montana residents and 25 of Montana's 56 counties. We would like to
stress the importance of ensuring that field hearings are conducted at
times which would allow for as many constituents as possible to attend
and participate in the Committee's proceedings.
Thank you for your consideration, and we look forward to welcoming
you, and your Committee members, to the Treasure State.
Respectfully,
Brad Johnson, Vice Chairman
Randy Pinocci, Commissioner
______
Missoula, MT
6/27/2020
Dear All Committee Members of the Senate Committee on Indian Affairs
and My Senator Steve Daines of Montana,
My comments are in response to the June 24 hearing that took place
in Washington, D.C. with all members of the U.S. Senate Committee on
Indian Affairs. The public and media were blocked from attending this
hearing and as I understand it, only one person from the U.S. Dept. of
Interior was invited to speak to the committee even though many other
expert witnesses requested the opportunity to speak.
I'll make this real simple. Water rights that belong to an
individual, business, city, state or any other water holder must
maintain their water rights and one water right holder, namely the CSKT
or Fort Belknap Indian Reservation governments, do not own any other
water rights except their own. Private landowners pay for their own
water rights and government agencies such as the State of Montana and
county governments pay for their own water rights through taxpayers
that foot the bill. The CSKT and Fort Belknap Indian Reservation
governments have no right to anyone else's water rights as much as
others do not have water rights belonging to the CSKT or Fort Belknap
Indian Reservation governments. These sovereign Indian governments
should not be paid billions of dollars of U.S. taxpayer money for water
rights that belong to other people and governments. Period.
Secondly, no federal land mass including the National Bison Range,
a NATIONAL wildlife refuge, and Grinnell Notch, a large recreational
area under the Bureau of Land Management, belong to ALL Americans, not
just a certain portion of Americans that also have the advantage of
sovereign control over their reservations as a separate nation within
the United States of America. State parks named in S. 3019 and S. 3113
don't belong to a sovereign Indian government but to all taxpayers and
citizens in Montana.
The fact that S. 3019 and S. 3113 give away land that belongs to
all Americans totally disgusts me.
I am sad that Senator Daines, who is right now advertising that he
supports national parks and public lands through other legislation has
decided to give away state parks and a very popular national wildlife
refuge to the CSKT without any input from the very taxpayers that
bought and paid for these lands. All you advertising to support S. 3019
only talks about water rights and doesn't mention that state and
federal public lands are being given to the CSKT PLUS billions of
dollars all out of the pockets of taxpayers.
I am totally disgusted with this whole secret process that never
even allowed such groups as Lake County Commissioners or Blue Goose
Alliance to speak at the Senate hearing that was closed to the public.
Since when are the activities of the Senate held in secret?
All Republicans and Democrats on this committee disappoint me with
the two bills because there is no respect for all Americans that paid
for the public lands you generously give away to two sovereign
governments that do not have to follow ANY federal or state law and
will likely ignore any water right restrictions on them because they
can.
The wildlife and the habitat of the state and federal lands need to
remain with the Montana Fish, Wildlife and Parks for the state parks
and the BLM and U.S. Fish and Wildlife Service for the federal lands
you give away without any ability of Americans who love these
properties to speak up at a Senate hearing or at hearings around
Montana.
You all should be ashamed of yourselves. Republicans that joined
with liberal Democrats to give away water rights and public lands to
two sovereign Indian governments should be ashamed of themselves. You
aren't helping farmers, ranchers, landowners, and businesses, not to
mention sportsmen, that normally vote for you as Republicans. Really
stupid.
Sincerely,
Susan Campbell Reneau
______
Missoula, MT
7/8/2020
Dear Folks. At this time of new awareness of our White Priveledge
and the racist if unconscious system we all are living in today, I feel
compelled to speak out in support of returning control of the National
Bison Range to the Original Americans who for thousands of years
operated in balance with nature and helped maintain the planet we are
currently destroying . It is the height of hypocracy to assume we
``whites'' are better positioned to `` manage'' this little plot of
God's earth when we have done such a poor job up to this point. Why not
try something different and see if the Original Americans with their
proven long term success in maintaining a healthy productive
diversified ecosystem might just show us a better way! I know this
sounds harsh but our `` ethno centrism `` is just too much in today's
reality. Our `` Great Whute Father'' is a fool without any clothes!
Wake up and smell the coffee before it is too late!
Sincerely,
Steve McArthur
______
Citizen and Resident of the State of Montana
July 8th, 2020
Dear Members of the United States Senate Committee on Indian Affairs:
I fully support the Montana Water Rights Protection Act (S. 3019),
especially the Act's provisions regarding the National Bison Range
restoration (SEC. 13). Restoring the National Bison Range as part of
the Flathead Indian Reservation under the management of the
Confederated Salish and Kootenai Tribes (CSKT) is an important step in
reconciling the wrongful appropriation of the refuge by the United
States Federal Government, and would restore and uphold CSKT's rights
and sovereignty as guaranteed by the Hellgate Treaty.
The restoration will not only fulfill the Federal Government's
legal obligation to CSKT--it will also reduce the financial burden on
taxpayers by transferring the refuge's management and costs to CSKT.
CSKT's demonstrated record of sound and effective environmental
management makes it clear that their management and protection of the
refuge ``solely for the care and maintenance of bison, wildlife, and
other natural resources'' will be nothing short of exemplary.
The cultural resources, history, and perspectives that will be
added by CSKT's management of the refuge will further enrich and
enhance the educational opportunities provided to the public. The Act's
provision also provides legal assurance for continued public access to
the refuge, guaranteeing the continued enjoyment of the refuge for
present and future generations of CSKT Tribal Members, Montanans, and
Americans. Restoring the National Bison Range will be a powerful action
as we work towards righting what was a wrongful acquisition of the
refuge's bison, wildlife, and other natural resources, while upholding
a shared commitment to respecting the Tribes' cultural and historical
connection with bison and the landscape.
Finally, these provisions along with the Act's other provisions
will help to save millions of dollars in litigation costs that would
otherwise go on to taxpayers, while assuring the protection of hundreds
of Montanan's water rights across the state. This act is good for
Montanans and the American Public, and I give it my full support.
Sincerely,
Travis D. Anklam
______
Missoula, MT
7/7/2020
I am writing to express strong support for returning the lands of
the National Bison Range to the Confederated Salish and Kootenai
Tribes.
As a resident of nearby Missoula, the National Bison Range is a
unique place and a matter of pride for all in Western Montana. But the
fact that the range is not currently under the management of the very
people who have stewarded this land for countless generations is
unconscionable, and is an embarrassment for our state. Returning the
National Bison Range to the CSKT tribes is an opportunity for our
community, and nation, to learn from the wisdom of generations as we
seek more resilient and sustainable ways of living on this planet for
the years to come.
Sincerely,
Abigail Huseth
______
Bozeman, MT
7/7/2020
To the Senate Committee on Indian Affairs,
I strongly support Section 13 of the Montana Water Rights
Protection Act that returns the lands of the National Bison Range to
the Confederated Salish and Kootenai Tribes. This is an opportunity to
right a terrible wrong done to a Tribal government by the United States
of America. The land that is now called the National Bison Range lies
wholly within the Flathead Indian Reservation and was acquired by the
United States without the Tribes' consent in what was later held by a
Federal Claims Court to be a taking. The Tribes will respect and manage
the land well and ensure continued public access for non-Tribal
individuals. Montanans can only benefit through this arrangement. I
urge you to give S. 3019 your strongest support, and if it does not
pass, please continue to fight for Section 13 in other legislation.
Thank you,
Bree Cummins
______
George Grant Chapter of Trout Unlimited
June 29, 2020
Senators Hoeven and Udall,
On behalf of the George Grant Chapter of Trout Unlimited, I write
in support of Senate Bill 3019, the Montana Water Rights Protection Act
(WRPA). This bi-partisan legislation introduced by Senators Steve
Daines and Jon Tester will provide federal approval for the water
Compact negotiated between the State of Montana and the Confederated
Salish and Kootenai Tribes. (CSKT)
The George Grant Chapter of Trout Unlimited (GGTU) is based in
Butte, Montana and represents the interests of over 300 conservation
minded anglers in southwest Montana. Our group has been actively
involved in conservation issues on the upper Clark Fork for over 25
years and we are acutely aware of the water supply challenges in the
Clark Fork Basin.
The water rights Compact approved by the WRPA is the result of
decades of negotiations between the Confederated Salish and Kootenai
Tribes, the State of Montana and the federal government. The Compact,
which was ratified by the Montana Legislature in 2015, equitably and
permanently resolves disputes over the Tribes' water rights, saving
water users the considerable time, expense and resources associated
with years of litigation. When implemented, the Compact will ensure
productive, cooperative management of waters throughout western
Montana.
Most importantly, GGTU supports the Compact because it contains key
protections for fish and wildlife in the Clark Fork watershed.
Specifically, it includes enhanced streamflow protections for the upper
Clark Fork River (a river that faces chronic dewatering issues).
Approval and implementation of the Compact will produce new and
productive partnerships between the Tribes, federal agencies and state/
local partners that will focus on the common objective of conserving
Montana's water resources.
Congressional approval for the water compact has been debated over
the course of several Congresses. Please act now to approve the WRPA.
Sincerely,
Mark Thompson, President
______
MONTANA STATE LEGISLATURE
June 30, 2020
Chairman Hoeven,
We would like to request that the Senate Committee on Indian
Affairs hold a field hearing in Kalispell, Flathead County, Montana on
S. 3019, the Montana Water Rights Protection Act. The combined
populations of Flathead, Lake, and Sanders Counties is roughly 13
percent of the state population, making it an ideal location for a
hearing. Furthermore, we ask that at least one such hearing be held at
a time of day that would permit as many Montanans as possible to
participate and have their voices heard. If a second hearing can be
accommodated, we would suggest Great Falls, Cascade County, Montana as
it is east of the continental divide.
Along with the two-thirds of Montanans that could be negatively
impacted by passage of this legislation, we believe it is imperative
that your committee members have the opportunity to hear from those who
stand to lose so much. Signed nearly 165 years ago, the original
Hellgate Treaty has no mention of water rights for the Confederated
Salish and Kootenai Tribes of the Flathead Indian Reservation. If
passed, this legislation will set a precedent for tribes across the
nation, and perhaps into Canada as well, looking to pursue similar
action--making it all the more prudent to hold a field hearing in
Montana's Flathead Valley. During your committee's hearing on June 24,
2020, comments by multiple senators, such as Maria Cantwell, indicate
that this will be a model for other tribes going forward.
We appreciate your consideration and look forward to working with
you to ensure that this proposed field hearing is a success.
Respectfully,
Sen. Mark Blasdel CR-Kalispell)
Sen. Cary Smith CR-Billings)
Sen. Dee Brown CR-Hungry Horse)
Sen. Al Olszewski, MD CR-Kalispell)
Sen. Roger Webb CR-Billings)
Sen. Jennifer Fielder CR-Thompson Falls)
Sen. Keith Regier CR-Kalispell)
Sen. David Howard CR-Park City)
Sen. Mike Lang CR-Malta)
Sen. Kenneth Bogner CR-Miles City)
Sen. Bob Keenan CR-Bigfork)
Rep. Brad Tschida CR-Missoula)
Rep. Carl Glimm CR-Kila)
Rep. Alan Redfield CR-Livingston)
Rep. John Fuller CR-Kalispell)
Rep. Mark Noland (R-Bigfork)
Rep. Forrest Mandeville (R-Columbus)
Rep. Dan Bartel (R-Lewistown)
Rep. Wendy McKamey (R-Great Falls)
Rep. Theresa Manzella (R-Hamilton)
Rep. Matt Regier (R-Kalispell)
Rep. Bob Brown (R-Thompson Falls)
Rep. Derek Skees (R-Kalispell)
Rep. Peggy Webb (R-Billings)
Rep. Tom Burnett (R-Bozeman)
Rep. Greg De Vries (R-Jefferson City)
Rep. Lola Sheldon Galloway (R-Great Falls)
______
7/16/2020
To the Honorable Senator Steve Daines,
I am writing today to ask for your support for S. 3019, the Montana
Water Rights Protection Act. This act, introduced by Senator Steve
Daines (R-MT) and subsequently cosponsored by Senator Jon Tester (D-
MT), has broad bipartisan support from each of Montana's major
agricultural organizations, our state's business community, and our
counties and municipalities.
S. 3019 is necessitated by the lawful requirement to quantify the
Confederated Salish and Kootenai Tribe's Indian reserved water right.
There is a rich history of judicial action that supports and secures
Indian reserved water rights and this settlement accurately follows in
the footsteps of historical jurisprudence.
The quantification process inevitably uncovers many thousands of
competing water rights claims that then must be settled. Settlement can
occur either through negotiation or through litigation. This act, by
including the CSKT water compact, replaces expensive and time consuming
litigation with the product of a fair and thoughtful negotiated
settlement.
Montana's agricultural economy, our fisheries and tourism economy,
and our local governments are all dependent on clearly defined access
to water. This act provides a clear and lawful definition and, by doing
so, it provides long term water security to our state's water users.
Again, I am asking for your support of S. 3019, the Montana Water
Rights Protection Act. This settlement represents Montana's final
required Indian reserved water rights legislation and its passage is
necessary to protect the future well being of the engines of Montana's
economy.
Respectfully,
Representative Llew Jones
______
U.S. Department of Homeland Security
July 23, 2020
Dear Chairman Hoeven and Vice Chairman Udall:
Set out herein are the Department of Homeland Security's views on
S. 2165, the ``Safeguard Tribal Objects of Patrimony Act of 2019.''
In brief, the Department of Homeland Security supports the
Committee's efforts to deter the illicit exportation of Native American
cultural items, Native American archaeological resources, and Native
American objects of antiquity. To that end, the Department of Homeland
Security supports the intent of S. 2165. The Department of Homeland
Security, however, notes that the section 3 text and the section 5(b)
text do not wholly comport with current customs law and practice, and
the Department of Homeland Security fears that these variances could
adversely affect the measure's intended efficacy. The Department of
Homeland Security recommends that the Committee adopt a slight, yet
significant change in terminology so that the U.S. Customs and Border
Protection is able to implement the export controls effectively and
efficiently.
Enclosed is draft legislative text that the Department of Homeland
Security proffers for the Committee's consideration. *
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* The information referred to has been retained in the Committee
files.
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The Office of Management and Budget advises that, from the
viewpoint of the President's program, there is no objection to the
presentation of this letter to the Committee.
Respectfully,
BETH SPIVEY, Assistant Secretary for Legislative Affairs
______
FIVE VALLEYS AUDUBON SOCIETY
January 23, 2017
Dear Chairman Finley,
The Board of the Five Valleys Audubon Society, Missoula, MT has
reviewed the Draft Legislation to Restore the National Bison Range to
the Confederated Salish and Kootenai Tribes, and has voted unanimously
to support this proposal. We recognize the Tribes' cultural and
historical connection to bison and to the lands of the Bison Range-
which are wholly located within the Flathead Reservation. We also
acknowledge the expertise the Tribes' have demonstrated in wildlife
management and endangered and threatened species recovery.
Our Chapter appreciates the varied habitats, wildlife, and bird
species supported on Tribal lands. We annually visit these areas during
field trips, to help others enjoy the wildlife and appreciate the rich
natural resources of the Mission Valley. In addition, our Chapter has
deep ties cooperating with local refuge management, and in fact we
participated in the `adopt a refuge program' at Ninepipe Refuge during
the 1980s. We also have helped secure past Land Water and Conservation
funding for nearby Waterfowl Production Areas. In that spirit, our
Chapter would like to offer our continued volunteer support, if that
would be helpful, in such activities as bird surveys or winter raptor
counts, for example.
We are pleased that the transfer stipulates continued public access
at the Bison Range, and that the transfer in no way could be construed
as setting a president for relinquishing management other federal
lands.
Thank you for your continued commitment to science-based wildlife
and habitat management.
With kindest regards,
Rosemary H. Leach, President
______
Habitat Protection, Last Chance Audubon Society
7/9/2020
I am writing to comment on the Montana Water Rights Protection Act
(S.3019), which the Senate Indian Affairs Committee heard on June 24th.
I support this bill. It is a moderate, bipartisan solution that will
preserve water claims for current users in western Montana while giving
long-overdue recognition to the Confederated Salish and Kootenai
Tribes' unceded water rights and empowering the tribe to continue their
leadership in wildlife conservation.
A small but vocal minority of Montanans have voiced concern that
the Confederated Salish and Kootenai Tribes (CSKT) would be incapable
of assuming management of the National Bison Range, as proposed in
S.3019. In fact, the CSKT has a robust history of successful and
innovative partnerships to manage and restore wildlife habitat. One of
several excellent examples is their highly successful Trumpeter Swan
reintroduction program--which has brought a population up from total
extirpation to almost 200 thriving swans. Ironically, the National
Bison Range actually lies on treaty-protected tribal lands, stolen by
the federal government without consultation in the early 1900s. In a
further irony, tribal members (including Michel Pablo and Charles
Allard) had already undertaken restoration of bison to the Mission
Valley--prior to the confiscation of tribal lands for the National
Bison Range. Indeed, the liquidation of the Pablo herd was a result of
allotments policy in the early 1900s--a federally orchestrated program
that once again violated treaties and the U.S. government's trust
responsibility, drastically shrinking Native reservation lands and
eroding community governance systems. It is only fitting to restore the
responsibility for bison management to the CSKT--along with the
proposed portion of the tribes' water rights, which have a ``priority
date'' that is hundreds if not thousands of years before the first
Euro-American settlers.
I am a citizen of Helena, Montana, where I live on the traditional
territories of the Salish, Kootenai, and Blackfeet people. The Montana
Water Rights Protection Act will be a step forward for all Montanans as
we acknowledge our indigenous communities and leadership, past and
present, and work together with tribes to provide for all of our
existing communities and for our rich wildlife heritage. Please feel
free to contact me if you have any questions.
Sincerely,
Shane Sater, Chair
______
St. Ignatius, MT
July 7, 2020
Dear U.S. Senate Indian Affairs Committee:
I am a non-Tribal resident of the Flathead Indian Reservation. I am
a middle school teacher at the Two Eagle River Tribal school in Pablo,
Montana. I teach Tribal children and participate in Tribal events.
I support the Montana Water Rights Protection Act (S.3019) because
Montana and the United State need to settle the legitimate water right
claims of the Confederated Salish and Kootenai Tribes and because the
National Bison Range property needs to be returned to its rightful
owner, the Tribes. S. 3019 finally settles these claims and the return
of Tribal lands in a fair manner, including providing funding for
Flathead Irrigation Project upgrades and modernization so important to
conserving water for all users, including the Tribes, irrigators and
fish and wildlife as Climate Change advances.
There are some loud people on the reservation and off who oppose
this important legislation. I think it's instructive that these voices
are a small minority who seem to think that litigating each Tribal
water right claim somehow makes sense. S.3019 charts a more intelligent
way forward by modernizing the irrigation system and thus ensuring that
no one will lose their water allocation. It also will avoid costly,
divisive litigation.
There is absolutely no argument that Tribal rights precede all
other rights. It is fully appropriate that Tribal claims get recognized
and settled. This legislation arose out of years and years of
negotiations, Montana legislative deliberation and vote, revision and
final agreement.
We would also note the support for this legislation from the
Tribes, the Trump Administration, the U.S. Attorney General, and the
Montana Congressional Delegation.
Please pass this important legislation out of committee.
Sincerely,
Jaimie Stevenson
______
Kalispell Mt
July 16, 2020
Senator Tester
I would like to voice my support for the Water rights protection
act. I am a large irrigator in Northwest Montana. I also was a State
Senator and voted for the CSKT water compact in the 2015 session. The
negotiated CSKT compact is a win for both the CSKT tribe and the other
citizens of Montana. I have read the complete text and have a good
understanding of the CSKT compact.
Bruce Tutvedt, Montana State Senator
______
Helena MT
7/2/2020
I am writing to voice support for passage of the Montana Water
Rights Protection Act (S. 3019). This bill would ratify the water
compact reached some years ago between the Confederated Salish and
Kootenai Tribes and the state of Montana, as well as restore management
of the National Bison Range to the Tribes. This important legislation
would provide federal approval of the state's efforts to reach
agreement with the Tribes, while protecting non-Indian water rights as
well. Further, the Tribes have shown they are capable and competent
managers of natural resources, meriting the restoration of their
management of the bison range.
Curt Larsen
______
7/9/2020
I am in solid and appreciative support of the Montana Water Rights
Protection Act (S. 3019), heard before the Senate Indian Affairs
Committee on June 24. I am so pleased that both our Montana senators
are behind this.
I understand that this Act would honor current water claims for
users in western Montana, but at the same time recognizes the unceded
water rights of the Confederated Salish and Kootenai Tribes and gives
the tribe jurisdiction to manage the National Bison Range. This is
consistent with ethics and justice, and additionally recognizes work
that tribal members (including Michel Pablo and Charles Allard) had
already begun (restoring bison to the Mission Valley) BEFORE our
federal government violated treaty agreements and stole tribal lands
for the National Bison Range in the early 1900's. In addition to
returning significant treaty rights and honoring the history and legacy
of stewardship & wildlife conservation of the Salish & Kootenai
peoples, we can also point to successes like their robust
reintroduction of Trumpeter Swans. The swans were nearly wiped out, and
the tribes' careful work has restored a thriving population that now
numbers almost 200.
I applaud such federal action in Montana as this bill proposes with
no hesitation--it is reparation for past wrongs that we can make with
pride!
With legislation like this, we are beginning to set right some of
the illegal and unethical actions of our forebears. This is so long
overdue. That instead of being embarrassed & ashamed, here is this
smart, balanced, bipartisan plan Montanans can get behind that repairs
and offsets some good part of the damage done by our having stolen
lands, water rights & environmental/ecosystem stewardship, and
dishonorably breaking treaties. Bravo.
I am a citizen of Missoula, traditional Salish lands.
Thank you SO MUCH and please enter my strong supportive voice in
this conversation.
Appreciatively,
Ms. Carol Wilburn
______
7/7/2020
In a time when racial injustice is at the surface, visible and
visceral, to the world, there is an opportunity to help right a wrong
in Montana Indian Country. The Montana Water Rights Protection Act (S.
3019) would return the lands of the National Bison Range to the
Confederated Salish and Kootenai Tribes to continue preservation of the
bison and provide public access and educational opportunities. The land
that is now called the National Bison Range was acquired by the United
States without the Tribes' consent in what was later held by a Federal
Claims Court to be a taking.
Returning the land to federal trust ownership for the benefit of
the Tribes may be one small step towards strengthening sovereignty and
repairing the harms of colonialism, but it will make a significant
difference in the lives of many CSKT Tribal members.
I feel very strongly that NOW is the time to make at least this one
small gesture towards understanding and reparation for one of many many
insensitive and unjust actions on the part of the US government against
Native American peoples.
Please include my comments in the June 24, 2020 hearing record for
S. 3019, the Montana Water Rights Protection Act.
Thank you.
Kerry L. Krebill, Artistic Director, Musikanten (Bethesda
MD) and Musikanten Montana (Helena MT); General Director,
Helena Choral Week and Montana Early Music Festival
______
Billings, Mt.
7/7/2020
Please return the land taken from reservation land belonging to the
tribes for the purpose of the National Buffalo Management and care.
This land belonged to the tribes and was wrongly taken from them! U.S.
Govt has got to STAND FOR SOMETHING, and STAND BEHIND ITS AGREEMENTS
with Native people. It's time to right this wrong.
Please vote to restore the Water Rights Protection Act S. 3019 and
include my remarks in the hearing.
Thank you!
Bonnie Eldredge
______
Pat Barnes Missouri River Chapter of Montana Trout
Unlimited
June 28, 2020
Dear Members,
The Pat Barnes Missouri River Chapter of Montana Trout Unlimited
wishes to express our strong support of the Montana Water Rights
Protection Act, S. 3019, the legislation to federally ratify the
Confederated Salish and Kootenai Tribes (CSKT) Water Compact.
We support this legislation for a number of reasons, chief among
them the coldwater fisheries conservation aspects of the agreement that
were reached between the CSKT, stakeholders, and the state of Montana.
Further, the Compact under your consideration includes increased
instream flow measurements that will allow for more water resources
being available for wild and native fish.
The state of Montana has a Constitutional duty to ensure a clean
and healthful environment for and trust obligation for the future
health of Montana's fish and wildlife resources, and this Compact
certainly helps meet that objective. This is not only good for native
fish, but good for the sportsmen and women who spend millions every
year in the Montana economy and our communities.
At the same time, the Compact strengthens Montana's $4 billion
agriculture economy and will lead to new water infrastructure projects
and provide certainty on water rights for both tribal and non-tribal
water users. Without enactment of this compact, individual water users,
especially irrigators and property developers, face incredible risk
with the prospect of decades litigation to sort out water rights. We
are concerned that our coldwater fisheries will lose out in that
battle.
We are very proud of the leaders who brought people together to
produce an agreement that all can benefit from. Senator Daines and
Senator Tester deserve much of the credit for getting this Compact to
the position it is currently in. We urge you to join us in supporting
the Montana Water Rights Protection Act (S. 3019)
Sincerely,
Shalon Hastings, President
______
Missoula, Montana
7/8/2020
Greetings,
This legislation would return the lands of the National Bison Range
to the Confederated Salish Kootenai tribes and would be one step toward
righting a great wrong against the people who originally populated this
region. I strongly urge members of the Senate, including Montana
Senators Jon Tester and Steve Daines, to support this legislation.
Learning the history of these lands is helpful in understanding how
great the injustice was. In the 1870s, a tribal member (Atatice)
brought herds of bison to the area from east of the Continental Divide.
Other tribal members (Michel Pablo and Charles Allard) continued to
increase the size of the herd, which then roamed freely in the area.
This effort to return bison to a people who had traditionally depended
on them ended with the Allotment Act of 1904, by which reservation land
was divided into parcels suitable for farming by white settlers--a
clear violation of the previous US government dedication of the land as
a reservation for the tribes in perpetuity. The Allotment Act removed
60 percent of the reservation land base, thus impacting the lives and
well-being of tribal members in numerous and devastating ways. Allowing
the bison to roam freely was no longer an option, and the present
National Bison Range, a much smaller and fenced area, was dedicated as
a home for bison that were not sold off. The Bison Range is now under
the jurisdiction of the National Fish & Wildlife Service.
The CSK tribes seek to have the responsibility for managing the
Bison Range transferred from the US Department of Fish & Wildlife to
them. It lies completely on Reservation land and is a rightful part of
their heritage. CSK tribes currently manage other resources through
their departments of Tribal Lands, Tribal Forestry, and Natural
Resources and will manage this resource in a manner that reflects their
dedication to the land and the bison that have been integral to their
history for generations.
I request that the Committee include my comments in the June 24,
2020, hearing record for S. 3019, the Montana Water Rights Protection
Act.
Sincerely,
Suzanne Sherman Aboulfadl
______
Stockett MT
7/8/2020
I am writing to ask your support for S. 3019, the Montana Water
Rights Protection Act, to return control of the National Bison Range to
the Salish-Kootenai tribes, to preserve the bison along with the water,
land and life on the Flathead. There is no better way to protect this
area, and no more positive action that could be taken in this time of
uncertainty for people and the planet. As a Montana resident, I know
firsthand the importance of water rights, and believe that S. 3019 is
the best possible path to a good future for the bison and the people of
Flathead country.
Thank you for your work.
Lauran Emerson
______
7/8/2020
Dear Committee Members:
I understand that you are deliberating on The Montana Water Rights
Protection Act (S. 3019). I have been a resident of Montana for over 37
years. During this time I have visited The National Bison Range in
every season and I have taken friends and family to visit this grand
landscape on many occasions. I will never forget the time several years
ago when management of the Range was temporarily in the hands of the
Confederated Salish and Kootenai Tribes as an experiment, as I recall.
When I went to pay my admission fee in the visitor center I said to the
Native woman at the counter, "I'm so glad to see you back in charge of
your land." She was shocked that I understood the history of the
removal of this land from tribal control and that I appreciated her
historical relationship to bison and all the other creatures that make
the Refuge their home.
I am strongly in favor of correcting this longstanding injustice. I
want CSKT people to be able to manage their own land in the ways they
see fit while insuring public access to Mission Creek, the prairie and
mountain trails. CSKT land managers have proven their ability to
restore the adjacent Jocko River, including youth in the process, to
manage fire and deal with the weed problems we all face. In an era of
great racial injustice, let's right the wrong and restore management of
the Range to the people who have the longest history with it.
Sincerely,
Gary W. Hawk
______
6/7/2020
I am writing in support of the Montana Water Rights Protection Act.
I was born and grew up in Montana. Our family often took visitors to
the Bison Range, but as a child, I didn't understand the significance
of the bison for the tribes and their members.
Now as an adult, I am acutely aware of that significance, and
support returning the Range to the Salish and Kootenai Tribes.Please
include my comments in the hearing record for Senate Bill 53019
Thank you,
Susan Barmeyer
______
Montana Legislative Water Policy Interim Committee
Dear Chairman Hoeven and Vice Chairman Udall:
As Chairman and Vice Chairman of the Montana Legislative Water
Policy Interim Committee (WPIC), we submit this letter in strong
support of S 3019, the Montana Water Rights Protection Act, introduced
in the U.S. Senate by Senator Steve Daines and Senator Jon Tester.
The Water Policy Interim Committee has worked to protect state-
based water rights and recognize the importance of a McCarren Amendment
compliant statewide water adjudication in quantifying the CSKT's water
rights. In 2018, the Committee sent a letter to the Department of
Interior urging the administration to move forward with Federal
Ratification. The CSKT Compact is a negotiated solution that is fair
and reasonable for all water users in Montana.
S. 3019 is a bipartisan solution that provides important cost
savings to Montana and her citizens as well as creating thousands of
jobs. The CSKT Compact is a fair and equitable solution that is the
result of collaboration and working together as good neighbors.
We strongly urge Congress to ratify the CSKT Compact and pass this
bipartisan legislation without delay.
Respectfully,
Representative Zach Brown, Chairman
Senator Jeff Welborn, Vice Chairman
______
Montana Wilderness Association
July 1, 2020
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of Montana Wilderness Association, we write to support
Senate Bill 3019, the Montana Water Rights Protection Act, jointly
introduced by Montana Senators Steve Daines and Jon Tester. The
legislation would resolve more than a century of federal mismanagement
of Tribes' water resources, contribute to tribal economic development,
and provide security to water users on and off the reservation.
The legislation also restores federal trust ownership of the
National Bison Range for the benefit of the Confederated Salish and
Kootenai Tribes, which we also strongly support. Given the historical
circumstances surrounding these lands, we believe this restoration is
just and supports tribal sovereignty. As described in the bill, the
lands that currently compose the National Bison Range were taken from
the Tribes without consent. The bill is explicit in requiring continued
conservation of the land and wildlife as well as public access. The
Tribes have consistently demonstrated their commitment to conservation
over the years, establishing the nation's first Tribal Wilderness in
the Mission Mountains and restoring threatened and endangered species
to their lands. This restoration of lands into federal trust is in
response to a very unique set of historical circumstances, and will not
set a precedent for any other federal lands.
For these reasons, Montana Wilderness supports S. 3019 and urges
the committee to advance it.
Thank you for your consideration.
Sincerely,
Ben Gabriel, Executive Director
______
Superior, MT
7/8/2020
I urge you to support the return of the National Bison Range to its
rightful owners, the Salish and Kootenai Tribes. Buffalo are a part of
Native culture and they, in fact, were responsible for establishing
this herd of buffalo in the first place. The tribes have the capacity
not only to manage the facility successfully, but would also
incorporate valuable elements of Indian history into the site.
Thank you,
Diane L. Magone
______
7/7/2020
I have lived in Montana for 17 years, and grew up in Northern
Idaho, traveling past the National Bison Range many times. I am fully
in favor of returning the lands to the Confederated Salish and Kootenai
Tribes. I have no doubts that the tribes will manage the bison range
responsibly, and it will remain open to the public so that Montanans
and others can appreciate the landscape and the animals.
Returning the lands to the tribes would also help to right the
wrong that was done when the United States took the land without
consent. It will make a great difference to tribal members, and help
towards healing between the tribes and the US government. This will
benefit everyone involved.
Kristin Harbuck
______
Missoula, MT
7/7/2020
Dear US Senators:
I urge you to pass the Montana Water Rights Protection Act (S.
3019). Returning the lands of the National Bison range to the
Confederated Salish and Kootenai Tribes would take a necessary step
towards righting the grievous wrong committed when the United States
took that land from the tribes in an action held by a Federal Claims
Court to be an unlawful taking.Returning the land to federal trust
ownership for the benefit of the Tribes may be one small step towards
strengthening sovereignty and repairing the harms of colonialism, but
it will make a significant difference in the lives of many CSKT Tribal
members who have a historic, ancestral connection to the range and the
bison.
So please: do the right thing and pass S. 3019.
Salim Matt Gras
______
7/7/2020
Please return the National Bison Range to the tribe from which it
was taken. I trust them to manage it well.
In returning it, you can right one of the many wrongs that our
government inflicted on America's native peoples.
Thank you,
Janice L. Roberts
______
7/7/2020
I am writing to express my strong support for the return of the
National Bison Range to the tribes. I am a resident of the Flathead
Reservation and have seen the responsible leadership provided by the
tribes and believe they would and should do the best job possible for
the bison and public. This is their land and it should be returned to
them to manage at the very least. Please include my comments in the
June 24, 2020 hearing record for S. 3019, the Montana Water Rights
Protection Act.
Sincerely,
Linda S. Veum
______
Arlee, Montana
7/7/2020
I am a tribal member from the Fort Peck Reservation, where my dad
was a wheat farmer, but I have now lived most of my life on the
Flathead Reservation. I practiced Indian law for 31 years in Montana
and am generally familiar with most of the tribal governments. Early in
my legal career, I was an in-house attorney for the Confederated Salish
and Kootenai Tribes (CSKT) for a decade, and specialized for many of
those years on issues surrounding the Flathead Indian Irrigation
Project (FIIP). A FIIP irrigation ditch now crosses on our land in the
Jocko Valley, and I have neighbors on both sides of this issue.
I find it noteworthy that some of the principle irrigator opponents
to the CSKT back in the late 1980s are now some of the strongest
supporters of this water compact and S. 3019. How did that happen? It
happened because both sides came to know each other better and realized
that there is more to be gained by working in partnership than endless
litigation. In my opinion, the single most important Indian legislation
to come before and pass the Montana Legislature in the last 50 years
was the CSKT Water Compact. I drove over to listen to the final
argument on the House floor.
I am aware of compromises the CSKT made to accommodate the concerns
of the State of Montana and reservation irrigators. The State of
Montana and irrigators can point to their compromises as well. That's
how agreements work. The successful ones. What the water compact
agreement delivers is certainty and stability for everyone: a solid
economic foundation for the Flathead Reservation and certainty for
Montana agriculture in uncertain times. (My brother now operates the
wheat farm, and uncertain times is an understatement of the challenges
facing farmers, for those whose family farms have managed to survive.)
The aging FIIP will get badly needed improvements and improved water
management practices overseen by joint management. And the CSKT's
involvement will ensure that impacts on reservation fish and wildlife
are fully considered and mitigated in project management. I am
confident that thirty years from now, when others look back on S. 3019,
it will be viewed as one of the most successful and important tribal
water settlements in the West.
Last, I support the transfer of the National Bison Range to the
CSKT, another historic accomplishment. While Teddy Roosevelt and
William Hornaday are heroes of mine for their efforts at the end of the
19th Century to speak out and try to save the last of the wild bison,
confiscating the CSKT's lands to do it was not right. Just as the time
has come for the Smithsonian's Natural History Museum in New York to
remove the statute of Teddy Roosevelt on a horse, with a slave and an
Indian at his feet in tow, the time has come to restore the bison range
lands to their rightful owner, the CSKT, whose tribal members played
such a critical role in bison restoration through what became the
Pablo-Allard herd. The legislation has safeguards assuring continued
management exclusively for bison and wildlife purposes, as well as
public access, and I personally look forward to witnessing their
contributions to the management of the bison range in this new chapter
of its history.
Thank you for letting me comment,
Pat Smith
______
Missoula, MT
7/8/2020
Dear Senate Committee on Indian Affairs,
I have visited the Bison Range on multiple occasions for bird
watching, with cultural archeologists, and for spirit restoring days on
a piece of native Montana land. I believe Tribe management of the Bison
Range would further its preservation while allowing visitors to deepen
their knowledge and connection to the Indian Country and its peoples.
Since the land that is now called the National Bison Range was
acquired by the United States without the Tribes' consent it's an
opportune time to return it to its rightful and capable owners via the
Montana Water Rights Protection Act.
Sincerely,
Jean Claire Duncan
______
7/2/2020
As a Montanan who lives near the the National Bison Range I support
the Montana Water Rights Protection Act. The land currently called the
National Bison Range was acquired by the USA without the local tribes
consent. Returning the land to federal trust ownership for the benefit
of the Tribes will be a small step in the right direction. The CSKT has
a cultural and historical connection to bison and to the land of the
bison range. I trust that they will effectively manage the refuge both
for preservation of the bison and for continued public access. The
taking of the land from the Tribes was an injustice that needs to be
corrected.
Thanks,
Mary Owens
______
Margery Hunter Brown Indian Law Clinic
7/8/2020
Dear Chairman Hoeven, Vice-Chairman Udall, and Members of the
Committee:
The Margery Hunter Brown Indian Law Clinic (MHBILC) at the
Alexander Blewett III School of Law at the University of Montana
appreciates the opportunity to submit these comments to be entered in
the record of the hearing on Senate Bill 3019 (S. 3019), which took
place on June 24, 2020.
The MHBILC was established in 1980 to provide law students with the
opportunity to gain practical experience regarding Indian law issues
and generally focuses on projects affecting tribal governments, their
citizens, and the rights of both. Although the MHBILC often works with
and represents tribes and tribal members, these comments are not
submitted on behalf on any tribe or tribal interest and do not advocate
for a particular outcome or decision. Instead, consistent with the
commitment to public service on behalf of both the MHBILC and its home
institution, the MHBILC developed these comments with the intent of
assisting in the consideration of important Indian law-related issues
in the context of this bill.
As discussed at the Committee's hearing, S.3019, co-sponsored by
Montana Senators Steve Daines and Jon Tester, will ratify the water
compact negotiated between the Confederated Salish and Kootenai Tribes
(CSKT) and the State of Montana and transfer the management of the
National Bison Range from the U.S. Fish and Wildlife Service to the
Tribes. The compact would settle tribal claims to water rights across
what is now Montana and, in light of these longstanding issues, S. 3019
and the water compact it seeks to ratify is best understood within the
historical and legal contexts in which they arise.
For over a century, the United States Supreme Court has recognized
the importance and nature of water rights reserved by tribes through
treaties and the creation of Indian reservations. See United States v.
Winans, 198 U.S. 371 (1905); Winters v. United States, 207 U.S. 564
(1908). Despite those rulings, however, tribal rights have not been
protected. In 1973, for example, the National Water Commission reported
to the President and Congress on the state of water and water rights in
the nation at the time and noted that, ``[i]n 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 Comm'n, Water Policies
for the Future-Final Report to the President and to the Congress of the
United States 475 (1973), available at https://www.epw.senate.gov/
public/--cache/files/0/9/09fa2cfd-e480-40e6-bdf6-fc9fc8b5b0e3/
6A20EC2999F0441563294B9DFFCFDD6E.water-policies-for-the-future-final-
report-1973.pdf.
Like Indian tribes across the country, the CSKT have historically
been deprived of the full extent and use of water rights reserved by
and for the Tribes in the Hellgate Treaty of 1855. The water compact to
be ratified by S. 3019 would enable the Tribes to take advantage of the
rights guaranteed to them by the Treaty and the U.S. Supreme Court by
confirming the CSKT's water rights, returning the management of the
water on the sovereign CSKT nation to the Tribes, and establishing a
collaborative and innovative management plan for water resources with
the state of Montana. While the use of water and water rights in
Montana have certainly evolved since the Hellgate Treaty of 1855, the
compact and S. 3019 take these adaptations into account, and, like the
application of many principles of federal Indian law in modern times,
the CSKT and the State of Montana have negotiated the compact to
balance the Tribes' legal rights with the development of an equitable
and effective management plan.
In addition to the historic, treaty-based nature of the rights that
the compact and S. 3019 seek to resolve, more recent history is also
relevant to consider. The compact was developed through a
collaborative, negotiated process designed to resolve reserved rights
across the State of Montana. The Montana Reserved Water Rights Compact
Commission (RWRCC), specifically. The RWRCC was established by the 1979
Montana Legislature ``to conclude compacts for the equitable division
and apportionment of waters between the state, its people, and the
several Indian tribes and the federal government claiming reserved
water rights within the state. Section 85-2-701, MCA''. Since its
foundation, the RWRCC has helped to negotiate eighteen compacts,
including those settling the reserved water rights of the Indian tribes
in Montana.
The compact to be ratified and authorized by the Montana Water
Rights Protection Act was negotiated by the RWRCC, which noted in a
recent report in support of the bill's ratification that the approval
of S. 3019 will result in ``significant benefits to Montanans.'' The
RWRCC's deliberations on Montana's behalf, in the context of past
compacts, have taken into account public consideration, cooperation,
and ``common-sense solutions to water use problems'' (dnrc.mt.gov). The
compacts that the commission has supported in the past have been
forward-thinking and collaborative; the Montana Water Rights Protection
Act does not stray from these principles. The RWRCC's support of S.
3019 serves as yet another example of the benefits and the widespread
support of this legislation.
Finally, though technically separate from the legal status of the
CSKT's reserved rights to water and the negotiation of the compact
through the RWRCC, the transfer of the National Bison Range to the
Tribes is a viable conservation decision that, like the Tribes' water
rights, should be viewed through the lens of history. The CSKT have a
cultural imperative to ensure the preservation and well-being of bison,
as has been demonstrated in the Salish and Kootenai's integral role in
saving the animal from extinction in the 1800s. See https://
bisonrange.org/. S. 3019 would restore the National Bison Range to the
federal trust ownership for the benefit of the CSKT, which would again
ensure the lands are reserved for the Tribes benefit as set forth in
the Hellgate Treaty of 1855.
The restoration of the National Bison Range to the CSKT is not only
a wise decision for the continued health and longevity of the National
Bison Range, but would also serve as some measure of justice for the
long-standing injury caused by the unconstitutional taking of the land
that became the National Bison Range from the Tribes without their
consent. See, e.g., Confederated Salish and Kootenai Tribes v. United
States, 437 F.2d 458 (Ct. Cl.1971). Like the compact's innovative
approach to the management of historically reserved water rights, S.
3019's inclusion of the return of the National Bison Range to the
CSKT's oversight presents a workable, modern approach to a century-old
legal issue.
These historical and legal matters are relevant to the
consideration of S. 3019 and the water compact that it proposes to
ratify and we hope this letter is helpful in that process.
Sincerely,
Monte Mills, Associate Professor & Director
______
Western Native Voice
7/7/2020
Dear Chairman Hoeven, Vice-Chairman Udall:
On behalf of Western Native Voice, we write in support of S. 3019,
the Montana Water Rights Protection Act, jointly introduced by Senators
Steve Daines and Jon Tester of Montana. This legislation will provide
Congressional approval for the water compact negotiated between the
Confederated Salish and Kootenai Tribes (CSKT) and the State of
Montana, and it also transfers the National Bison Range from the U.S.
Fish and Wildlife Service to the CSKT. We strongly support both
objectives.
Western Native voice is a non-Partisan, Native-led, nonprofit
organization, based in Billings, that works on all of Montana's lndian
reservations and key urban centers to increase Native involvement in
civic affairs, especially voting. We supponed the CSKT Compact when it
was approved by the 2O15 Legislature. It is wonderful to see bi-
partisan support for this historic legislation. The ompact represents
more than a decade of negotiations and has been the subject of dozens
of public meetings and hearings. It has been fully vetted.
Passage of this legislation will settle the CSKT's water rights and
also claims regarding mismanagement of the tribes' water resources.
Importantly, by settling the CSKT water claims, it avoids decades of
water rights litigation by hundreds of Montana farmers and irrigators
who would be forced to litigate their rights. That is precisely why
Montana's major agricultural organizations are also in support of this
legislation. The legislation also provides for rehabilitation of an
aging irrigation project. This will improve overall water efficiency
for the future benefitting all water users, including for fish and
wildlife.
We also strongly upport the provision of the bill that restores
tribal ownership of the National Bison Range to the CSKT. The courts
have ruled that the unilateral taking of the CSKT's lands for the bison
rang was unconstitutional. The CSKT were leaders in bison preservation
long before their lands were taken for the bison range, and so it is
just and right that these lands be restored to tribal ownership
especially where, as here, the lands are right in the middle of the
Flathead Reservation. The CSKT are recognized as national leaders in
conservation and fish and wildlife management. Time and time again they
have demonstrated they are fully capable of managing tribal natural
resources, resulting in extensive fish and wildlife restoration on
their lands, and strong collaborative relationships with federal, state
and other fish and wildlife managers. The legislation requires that the
bison range lands continue to be managed exclusively for bison and
wildlife purposes, as well as for public access.
We appreciate th Committee holding this impo1iant hearing.
Pat Smith, Chairman, Board of Directors
______
Kila, MT
7/7/2020
``We respect the Tribes' cultural and historical connection to
bison and that the National Bison Range (NBR) lies wholly within the
Flathead Indian Reservation, on lands appropriated from the Tribes by
the U.S. Government with minimal compensation.''
I believe returning the land to federal trust ownership for the
benefit of the Tribes may be one small step towards strengthening
sovereignty and repairing the harms of colonialism. This action will
make a significant difference in the lives of many CSKT Tribal members
like Shane Morigeau.
``Shane and other Tribal members see the opportunity to revitalize
and strengthen the Tribes' connection to the bison and that land
through restoration of the range to the Tribes. He sees the chance to
connect tribal youth more deeply with their culture and language, a
language that is relational and depends on cultural experiences like
interacting with bison. He sees it as one step in righting a wrong for
a Tribe that was once slated for termination, and on a reservation that
was sliced up by extensive allocation to non-Indians for
homesteading.''
I believe we have over homesteaded Native American land for
interests that are not sustainable for the land as well as damaging to
the land and area. I believe returning the land to the tribes is the
answer for better management as well as enriching tribes cultural
connection and livelihood to their historical rights and roots.
I support that hopeful vision Shane shared by submitting my
comments in support of the Tribes' right to have the National Bison
Range returned to them.
What is true for me:
I have witnessed the effective wildlife management programs of
the Tribes on the Flathead Reservation;
I have confidence in the Tribes' ability to manage the Refuge
both for preservation of the bison and for continued public
access;
I believe the wrongful taking should be righted by returning
the land.
Thank you for your time,
Nancy Horne, TBT Master Practitioner, MMCP, CEMP
______
The Board of Flathead Wildlife Inc.
6/9/2020
Dear Senator Daines,
Flathead Wildlife Inc. (FWI) has been in existence for 64 years and
is the largest sportsmen and women club in northwest Montana. We are
opposed to the transfer of the National Bison Range (NBR) into federal
trust status for the Confederated Salish and Kootenai Tribes (CSKT) as
proposed in S. 3019, the Montana Water Rights Protection Act. Through
the years FWI has commented a number of times on management of the NBR.
FWI and other groups have always advocated for keeping NBR under the
proven, successful management of the US Fish and Wildlife Service as
have the majority of public comments. FWI is also concerned about the
potential net loss of 36,808 acres of public land as proposed in an
exchange of federal lands to replace in-reservation state lands
transferred to CSKT. Maintaining public access to public lands is a top
FWI priority. Although CSKT allows non-tribal use of most of their
lands, there is nothing to guarantee that continued use.
Water right laws are complex and FWI does not claim to understand
all the ramifications of the water rights settlement. FWI sees value in
ending the uncertainty over water rights but that should be a stand-
alone resolution. Turning over public lands does nothing to address the
quantity, quality and location of water available to CSKT. The National
Bison Range and state lands have nothing to do with mitigating water
rights, they are inappropriately being offered in lieu of cash
compensation for surrendering water rights. Something as important as
the transfer of the National Bison Range should be done as a stand-
alone bill, not attached to a complex water rights settlement. FWI
applauds the efforts by you and Senator Tester to permanently authorize
and fund the Land and Water Conservation Fund (LWCF) which has provided
tremendous dividends to Montana's public lands. We see S. 3019 as a
step backwards.
The FWI Board met with Mr. Ron Catlett of your Kalispell office and
Ms. Smith Works of Senator Tester's Kalispell office. Mr. Catlett was
well versed in the details of S. 3019 and provided a good deal of
information beyond the simple bill language which we appreciated. It
was apparent that S. 3019 was the result of extended negotiations and
therein lies part of the problem. CSKT, as a sovereign nation, often
insists on secret negotiations. In some past negotiations on the NBR
the US Fish and Wildlife Service wasn't even privy to details. While
that may be CSKT's right, it prevents US citizens from knowledgeable
participation in discussions of land and resource management. In FWI's
past comments to USFWS on NBR management our testimony was displayed
along with comments by other groups and individuals so we could see how
public testimony shaped decisions. CSKT has often not been held to that
standard.
Ironically, the US Fish and Wildlife Service just completed a
rigorous planning process on management of the NBR that included
extensive public comment and FWI recently received a copy of the NBR
Comprehensive Management Plan. The S. 3019 proposal would place the NBR
under federal tribal trust status, therefore the CSK Tribal council
would direct decisions related to uses including fees and restrictions
of public use, development, management practices and goals. Accessing
and commenting to the CSK Tribal Council is a daunting task. Further,
CSKT's Damage Assessment relative to water rights is not available for
public review. Therefore, FWI, the general public, and affected
agencies and entities cannot review how damages were calculated or how
the value of government lands offered as compensation were determined.
FWI recognizes the significance of bison to CSKT culture. Bison
also have a significance for the American people as demonstrated by
designation of the bison as our official national mammal. FWI
recognizes the role of Michel Pablo and Charles Allard Sr. in
establishing a privately owned bison herd on the Flathead Reservation.
However, Mr. Allard's heirs sold their bison in 1901, years before
passage of the Allotment Act, and Mr. Pablo later sold his portion of
the herd to Canada.
The American Bison Society and US Congress established the National
Bison Range and populated it with bison purchased with private citizen
donations, including bison from the Conrad herd which originated from
the Allard herd. FWI recommends you read the history of the NBR as
compiled by retired FWS employee William C. Reffalt. Without the
efforts of the American Bison Society and the US Congress, the lands
that now comprise the NBR likely would have been homesteaded and this
discussion would have been moot. The bison remaining on the Reservation
after the Pablo herd roundup were scattered, hunted and otherwise taken
outside of state law within a year or two.
Establishment of the NBR in 1908-09 was a separate process from the
Allotment/homesteading action of 1904 for the explicit purpose of the
conservation of the bison. The CSKT were paid twice by the US
Government to settle a fair price dispute for establishing the NBR and
all lands removed from the Reservation under the Allotment Act. If the
NBR is ultimately given back to CSKT, will CSKT repay those payments
with interest? Through the years millions of dollars have been spent in
developing the NBR and facilities. Will those investments be paid back?
CSKT states that if they take over management of the NBR, it will
remain open to the public. The NBR is in the top ten most visited
refuges in the US and currently has a management budget of around $1
million which is about half historic levels. Although the CSKT
government is well run and well-funded, that is a significant financial
burden. CSKT says it will develop a budget with visitor fees to defray
costs. Currently, visitor fees are subsidized by the entire federal
refuge system to remain affordable and citizens can complain to the US
Fish and Wildlife Service and Congress if fees are not acceptable. Will
CSKT be made to justify future visitor fee increases and what standing
and process will US citizens have to complain to the CSK Tribal Council
if fees become unreasonable? Could entrance fees be raised to the point
where, although the NBR is technically open to the public, most average
citizens cannot afford entrance? CSKT were given 30 bison in the 1980s,
which they soon sold due to costs of maintaining a bison herd. S. 3019
would relinquish control of the bison to CSKT and has only general
statements about managing bison, wildlife, providing public access and
controlling noxious weeds. What will happen if NBR management becomes
too burdensome?
S. 3019 only addresses transfer of the National Bison Range.
However, the NBR is part of a Fish and Wildlife properties complex in
the area including the Ninepipes National Wildlife Refuge (NWR), Pablo
NWR and the Northwest Montana Wetlands Management District (Lake
County). Will there be demands to return those other lands to CSKT
management also? If the US Fish and Wildlife Service retains management
of the remaining parcels, it would be challenging to maintain staff and
resources to continue to manage those parcels minus the NBR since they
are far removed from other NWR properties in northwest Montana.
Population genetics prescribe that the bison herd should number
1000 or more to maintain genetic integrity. The size of the NBR does
not allow that herd size. The FWS has established a ``metapopulation''
comprised of all six of its bison herds on separate refuges with
regular interchange of bison. The NBR bison are a vital component of
the metapopulation, they contain the purest genetics of any of the
herds and NBR bison are used to improve other herds. Removal of the NBR
and its bison from that effort will severely threaten the success of
the bison metapopulation and its goal of maintaining genetic integrity
among all herds. Flathead Wildlife, Inc. believes there is a better
solution by retaining the NBR under US Fish and Wildlife Service
management but providing funding to CSKT to develop their own bison
range. CSKT has extensive land holdings containing similar habitats in
the area. Bison could be donated by the FWS to populate a new CSKT
bison range. CSKT would be free to provide whatever level of cultural
interpretation and public access they desire. CSKT has stated they
would not hunt on the NBR other than management hunts. CSKT would be
free to provide any level of hunting they wanted on their own bison
range to recapture that part of their heritage. A CSKT bison herd could
contribute to metapopulation management. By maintaining two herds in
the Mission valley and doing periodic exchanges of bison, the genetics
for each herd could be maintained at the currently high level.
S. 3019 also proposes to grant 36,808 acres of Montana state trust
land to CSKT. In exchange, Montana would be given a similar amount and
value of federal land. State lands within the Flathead Reservation
include valuable lands such as Elmo Fishing Access Site which was
previously leased by Montana Fish, Wildlife and Parks and is now leased
by Lake County. Many of the state lands have lessees who would be
displaced. Any trades will result in a transfer of government lands now
owned by Montana citizens to a sovereign nation with no guarantee of
continued public access and a net loss of up to 36,808 acres of public
land. If not all state lands can be traded, S. 3019 commits that
federal lands elsewhere in Montana will be traded for private lands
within the reservation to make up the difference. FWI believes a better
option than trading for federal lands would be to purchase parcels of
land in northwest Montana recently purchased by Southern Pines
Plantation (SPP) from Weyerhauser. Those SPP parcels could then be
deeded to Montana DNRC in exchange for deeding state trust lands to
CSKT. In this manner there would be no net loss of public lands and the
SPP lands traded to DNRC would remain available for timber management,
wildlife habitat and public access and recreation.
S. 3019 states that the proposed NBR transfer in no way should be
considered precedent setting. However, there are other indigenous
claims on federal lands under similar circumstances. It would be folly
to claim lawyers and courts won't point at a NBR transfer as
justification to pursue similar claims. The Blackfeet Nation makes
basically the same claim to the east side of Glacier National Park. The
Fort Belknap Indian Community is making similar demands for state and
federal lands and water rights adjacent to their reservation. There are
other indigenous claims across the nation. Stating lack of precedence
in the S. 3019 will not settle or prevent those claims.
Sincerely,
Jim Vashro, President
______
Belgrade, MT
June 27, 2020
Dear Montana Congressman,
I am writing to you as a Professional Fly Fishing Guide in the
state of Montana. I guide in southwest Montana and educate and
entertain fishermen from all over the world on the Madison, Jefferson
Gallatin and Yellowstone rivers among others. As a water user that is
dependent on the resource as a source of income, I believe that passage
of the CSKT Water Compact is critical. I am writing to express my
strong support for S 3019, Th Montana Water Protection Act.
In Montana, water is our most valuable resource. As someone who
both enjoys the water for recreation, it also provides my family with
an income that is essential. I believe that our cold water fisheries
need to be cared for and respected, not only for the fish but for all
of Montana's water users. This legislation will not only protect the
fish and wildlife that depend on the resource for habitat, but will
also support the economies across our state who rely on the resource
for their success.
The Montana Water Protection Act will allow for improving our
fisheries by:
Ensuring instream flows for fisheries
Providing water for future development across western
Montana
Investing in critical irrigation infrastructure upgrades
Restoring habitats of native westslope cutthroat trout and
bull trout in western Montana
I, along with many professional fishing guides around our state
would agree that the Montana Water Rights Protection Act will benefit
all Montanans. This bill will help ensure the health of the resource
that the almost 900 guides in Montana depend on as part of the $917
million dollar guided Fishing related economy. This revenue is part of
the much bigger, nearly $8B/year outdoor recreation economy that
healthy streams and rivers help make possible . In addition, It will
provide jobs and opportunities for many other business owners and keep
our cold water fisheries safe and productive.
I encourage you gentlemen to act to preserve our resource so that
myself and others who rely on it as an income, may maintain and
continue to thrive on it for many years to come and for future
generations.
Ratify the Montana Water Protection Act!!
Thank You,
Jeffrey E Grom
______
Bozeman, MT
7/8/2020
Greetings,
My name is Graham Cummins, and I am a US citizen living in Bozeman,
MT. I am writing to express support for S.3019, the Montana Water
Rights Protection Act. Particularly, I support the settlement fund
described by sections 8 and 9 and the national bison range restoration
provisions in section 13.
In addition to their hereditary rights, the Salish and Kootenai
tribes have shown their commitment to natural resource management and
their enduring love for this land. I can think of no better stewards.
Restoration of the bison range to the tribes will benefit the land
itself and all nearby residents and visitors.
I would like my comment to be included as a public comment on the
June 24, 2020 hearing record for S. 3019.
Thank you for your time and public service.
Graham Cummins
______
Missoula, MT
7/8/2020
I support return of management of the National Bison Range to the
Confederated Salish and Kootenai Tribes.I have been impressed with
their ethical & scientific management of wildlife, land and water
resources.
I think they would focus on preservation of the bison species and
on providing public access and educational opportunities to the benefit
of all.
Thank you.
Vicki Watson,
______
Polson, Montana
July 6, 2020
Dear Senator Hoeven and Committee on Indian Affairs,
This testimony specifically addresses Senator Daines and Senator
Tester's statements regarding S.3019, the Montana Water Rights
Protection Act (MWRPA). I would like this testimony entered into the
record of the Indian Affairs Committee. I provide my testimony as
allowed and requested following the 24 June 2020 hearing on a variety
of issues before the committee.
I will make this letter short since many of us from Lake County
Montana have been writing letters and supplying extensive documentation
concerning S.3019 for months--all of which appears to have been tossed
into the nearest trash receptacle. It is clear to many of us that our
State Senators do not care one whit about our concerns regarding the
settlement portion of Montana Senate Bill 262--the enabling federal
legislation referred to as the MWRPA. Neither of our State Senators
have had the courage to come and discuss this issue in a public forum
here in Lake County and have instead hidden behind the tribal skirts
and cash of the Confederated Salish and Kootenai Tribes (CSKT). The
people of Lake County concerned with the non-negotiated MWRPA are
certain this agreement will be dictated to us and that our input means
absolutely nothing within the DC beltway. Nonetheless, I will try one
more time to bring the MWRPA into the democratic processes for which
our Republic is known so that perhaps those we have elected will do
what they were put in office for and represent not just the wealth of
the CSKT, but also the majority non-tribal American citizen population
that calls this region home.
I will discuss only a few points of concern though there are many,
many more.
Field Hearings should be held before this bill is considered
any further. Senator Daines stated that the MWRPA was
``negotiated'' by him with the people and county commissioners
of this region. That is a lie. Senator Daines' staff has
admitted to me that the commissioners had nothing more than
``input,'' which is a far cry from participating in
``negotiations''. I personally spoke with all three Lake County
commissioners and they will verify to anyone concerned that
they took part in no such ``negotiations.'' These commissioners
will have to deal with the wreckage wrought by S3019 and have
offered to testify before your committee and were, of course,
denied the opportunity. Many of the non-tribal majority
population of Lake County feel completely abandoned by all of
our representatives. To avoid undue hostility and further
impediments to this compact, the best way forward would be for
the MWRPA to come back to Montana and be addressed in multiple
public forums to include field hearings. It is not asking too
much that the people affected by this settlement be a part of
the negotiations, but that has not happened. The Montana Senate
Bill 262 went through Montana's legislative process. The
settlement portion--S. 3019--has not. Those are the facts, and
both Senators Tester and Daines have dodged the people of Lake
County and turned a deaf ear to everyone here--everyone except
the CSKT. The CSKT, of course, has very deep pockets and
suspicion abounds.
The MWRPA creates new law, bypasses existing doctrine and
Congressional legislation, and does so without any effective
oversight. Based on nothing more than internal agency policy,
the MWRPA reinterprets Congressional intent and creates new
water rights within the Winters Doctrine and McCarran
Amendment. Senator Daines asked the wrong question when he
inquired of the Department of Interior whether the MWRPA
satisfies the Winters Doctrine. Winters requires the
reservation be given the water required to satisfy the purposes
for which the reservation was created. Since the MWRPA gives
more water to the CSKT than all other tribal water settlements
negotiated in the United States combined, it is impossible for
the settlement to not satisfy Winters! The real question is
whether this is an equitable settlement for everyone else who
must have water. Is this a fair settlement or a complete
capitulation to the CSKT? This is an action that-like it or
not--will establish a precedent all the other tribes will try
to use to control water throughout the entire United States.
SB262 was errant in its very first statement, and this
established a falsehood in need of correction. This same error
is repeated in the MWRPA and made worse since it writes this
mistake into federal law. The faulty assumptions stems from the
error regarding whether the federal government or Tribe
reserved the Flathead Indian Reservation. In fact, the 1855
Hellgate Treaty saw all lands ceded to the United States, and
then the United States set apart a region for the reservation
from those ceded lands. Failing to recognize this fact leads to
the erroneous creation of new ``tribal reserved water rights''
outside the Winters Doctrine, and these ``rights'' extend off
the reservation and across western and eastern Montana. This
fatal error expands Tribal jurisdiction and disrupts the
property rights of federal patent-holding non-tribal citizens,
and lays the groundwork for future hostilities.
The inside-the-beltway agencies and elected officials on the
Indian Affairs Committee see themselves as agents working only
for the benefit of the Tribes. One size does not fit all, and
the CSKT reservation is vastly different than even the other
reservations within Montana. The MWRPA seeks to satisfy the
CSKT to such an extent it tries to pretend the 1904 Allotments
Act did not occur--but it did. The majority of the populace
here are non-tribal, and about 30 percent of the reservation
was diminished by the allotment process, with the lands now
held by non-tribal American citizens. While the CSKT and the DC
agencies may wish to rewrite the history of the allotment sale
and settlement of surplus Flathead Reservation lands, as well
as the construction of an integrated irrigation and power
project statutorily authorized to serve all citizens, the
people here are not going to let that happen. It was clear from
watching the hearings that no one is standing up for the non-
tribal American citizens who moved here by invitation. This is
an ``open reservation'' where tribal and non-tribal members
have lived in harmony for decades. However, that harmony is
rapidly deteriorating due to the CSKT's open hostility and
desire to roll back history to an imaginary time no one living
today remembers. The bias and predilection of the entire DC
establishment to pre-judging outcomes in favor of the tribes
and placing tribal interests above those of the other American
citizens they are supposed to represent is obvious. If the
people here feel they are not being fairly and justly
represented, they will have no more respect for the decrees
coming out of DC than our forefathers had for those coming out
of the Parliament in London, and no one should expect
otherwise. The MRWPA diminishes the rights of other citizens
with whom the United States has contractual and Constitutional
obligations, and that's not lost on any of us out here in Lake
County.
I could go on and on about how this bill could be improved to a
level that would make it acceptable to all parties concerned. If our
elected leadership were interested in achieving an equitable solution
instead of kowtowing to every whim of the CSKT, such a solution could
be found. What we have seen here in Lake County, however, is a complete
unwillingness to even consider such an outcome, and instead a desire to
dictate terms straight from the tribes' lawyers. Hostility here has
become the order of the day and you in Congress are responsible for it.
Given the anarchy evident throughout our nation, what makes our
Congressional representatives so sure something equally ugly couldn't
happen out here? Locally, displaying an America flag or a ``Trump''
bumper sticker can get you thrown out of tribal-run business, and on
the fourth of July here in Polson, an 18 year old girl was punched in
the face ``for being white.'' Does it sound like things are going well?
You in Congress are responsible for what happens here, and you are
not taking your responsibility seriously. You have ignored our letters;
ignored the extensive factual documentation I know you have received
from other groups well versed in water rights; you have dictated terms
and hidden from our public forums. Many inside the beltway agencies
have accepted the notion that the tribes will win in court no matter
what while ignoring the fact the CSKT is bound by whatever the Congress
decides--not the courts. All the Tribes have learned to exploit the
grievance industry, but you have the power to mandate an equitable
solution to the water issue on behalf of all American citizens. It
would have a very positive effect if you would have public field
hearings where you could become better educated on what is happening,
and we could all come to a fair compromise solution. That is not what
is happening now.
The MWRPA in its current form is fatally flawed. You should be in
search of a salvageable and workable solution. One is out there, but it
won't be found if the only place you look is in the deep pockets of the
CSKT.
Sincerely,
Mr. Tracy A. Sharp
______
Charlo MT
7/7/2020
I fully and unequivocally support the Indian water rights bill
Senate bill 3019 which includes the return of the National Bison Range
to the management of tribes of the Flathead Indian reservation. It's
time to right a historically grievous wrong-no more waiting!
Deborah Tomas
______
Corvallis, MT
7/8/2020
I support the Native Tribes of Montana and salute them in their
efforts to regain some of the lands and rights that have been illegally
taken from them.
The Montana Water Rights Protection Act (S. 3019) would return the
lands of the National Bison Range to the Confederated Salish and
Kootenai Tribes to continue preservation of the bison and provide
public access and educational opportunities. The land that is now
called the National Bison Range was acquired by the United States
without the Tribes' consent in what was later held by a Federal Claims
Court to be a taking.
Returning the land to federal trust ownership for the benefit of
the Tribes may be one small step towards strengthening sovereignty and
repairing the harms of colonialism, but it will make a significant
difference in the lives of many CSKT Tribal members.
Sincerely,
Toddy Perryman
______
Sierra Club
June 23, 2020
Dear Chairman Hoevan and Vice Chairman Udall:
On behalf of Sierra Club's more than 4 million members and
supporters, I am writing to expresses our strong support for The
Montana Water Rights Protection Act, S. 3019. In addition to settling
Tribal water rights, the Act would authorize, and pay for, remediation
and restoration projects for damaged waterways and riparian habitats on
the Flathead Indian Reservation. It will also improve in-stream flows
for fish. Finally, these projects will create jobs, all the more
important in the current economic landscape.
The Sierra Club has a long-standing history of working with the
Confederated Salish and Kootenai Tribes (CSKT) on wildlife and
conservation issues. We respect the Tribes' cultural and historical
connection to bison and that the National Bison Range (NBR) lies wholly
within the Flathead Indian Reservation, on lands appropriated from the
Tribes by the U.S. Government with minimal compensation.
Given the history of these lands, the Sierra Club affirms the
restoration of The National Bison Range and its bison to the
Confederated Salish and Kootenai Tribes for the purpose of bison
conservation and ensuring the long-term health of the NBR bison.
Although Sierra Club vehemently opposes the transfer of federal
public lands to states, this provision is uniquely suited to restore
the wrongfully acquired land and bison of the CSKT back to the Flathead
Indian Reservation and affirms the cultural and historical connections
to the bison and the relationship to wildlife and the land which was
held in time in memoriam. The support for the CSKT and the National
Bison Range will not be interpreted as a precedent for any other
suggested land transfer, property, or facility but will be recognized
as a restoration of lands and wildlife under the care of the Flathead
Indian Reservation and the Confederated Salish and Kootenai Tribes.
The Sierra Club offers our full support in restoring the land and
bison to its rightful caretakers and stewards, the Confederated Salish
and Kootenai Tribes and the Flathead Indian Reservation, as outlined in
this legislation. We look forward to working with the committee to help
advance the legislation forward.
Sincerely,
Kirin Kennedy, Deputy Legislative Director, Lands and
Wildlife
______
RESOLUTION #2020--23
We, the members of the Affiliated Tribes of Northwest Indians of
the United States, invoking the divine blessing of the Creator upon our
efforts and purposes, in order to preserve for ourselves and our
descendants rights secured under Indian Treaties, Executive Orders, and
benefits to which we are entitled under the laws and constitution of
the United States and several states, to enlighten the public toward a
better understanding of the Indian people, to preserve Indian cultural
values, and otherwise to promote the welfare of the Indian people, do
hereby establish and submit the following resolution:
WHEREAS, the Affiliated Tribes of Northwest Indians (ATNI) are
representatives of and advocates for national, regional, and specific
tribal concerns; and
WHEREAS, ATNI is a regional organization comprised of American
Indians/Alaska Natives (AI/AN) and tribes in the states of Washington,
Idaho, Oregon, Montana, Nevada, Northern California, and Alaska; and
WHEREAS, the health, safety, welfare, education, economic and
employment opportunity, and preservation of cultural and natural
resources are primary goals and objectives of the ATNI; and
WHEREAS, water is among the most sacred substances to the
Confederated Salish and Kootenai Tribes (``CSKT'' or ``Tribes''), and
the tribes utilized water in their aboriginal territory that stretched
from Canada to Wyoming, and from Washington to Montana, for religious,
hunting and fishing, and sustenance purposes; and
WHEREAS, federally-reserved water rights sufficient for the Tribes'
perpetual existence on the Flathead Indian Reservation were secured at
the signing of the Hellgate Treaty in 1855, and moreover the Tribes'
aboriginal rights were confirmed by the express rights of the CSKT to
hunt, fish, and gather throughout their aboriginal territory; and
WHEREAS, the United States illegally opened up the Flathead Indian
Reservation for non-Indian settlement, and created the Flathead Indian
Irrigation Project that dramatically altered natural waterways and
irreparably damaged fish and wildlife habitat of the Reservation by
creating a network of over 1,300 miles of ditches and canals filled
with irrigation structures that now serve over 1,800 irrigators, 90
percent of which are non-Indian, and would have made prior
appropriation of water rights nearly impossible to implement; and
WHEREAS, the State of Montana has pursued a state-wide adjudication
of water rights, including Indian water rights pursuant to the McCarren
Amendment as found applicable to Indian water rights in Colorado River
Water Conservation District v. United States, 424 U.S 800 (1976), and
simultaneously pursued negotiations between tribes; and
WHEREAS, the Tribes negotiated with the State of Montana and the
United States for over 15 years to quantify the Tribes' reserved and
aboriginal water rights, with the Tribes making many concessions and
compromises in an effort to find an amicable resolution, which resulted
in the Water Rights Compact Entered Into by the Confederated Salish and
Kootenai Tribes, the State of Montana, and the United States of America
(``Compact''); and
WHEREAS, the Compact benefits the Tribes by quantifying water for
the CSKT people, as was promised by the U.S. upon the signing of the
Hellgate Treaty, and benefits the State by protecting water rights for
its citizens and its wildlife, thus creating a benefit for the whole
region; and
WHEREAS, the Compact requires passage by the Tribes, the State, and
the U.S. to be implemented; and
WHEREAS, the Montana legislature approved the Compact, and on April
24, 2015, Montana State Governor Steve Bullock signed the Compact into
State law; and
WHEREAS, the Compact now must be approved by the U.S. Congress; and
WHEREAS, Montana Water Rights Protection Act, is bi-partisan
legislation that was introduced by Senator Daines and Senator Tester in
June 2020; and
WHEREAS, the Montana Water Rights Protection Act is the CSKT water
settlement, which authorizes, ratifies, and confirms the Compact; and
WHEREAS, the CSKT has always had a deep relationship with bison,
and the Montana Water Rights Protection Act also includes provisions
that would restore the National Bison Range to federal trust ownership
for CSKT and would require continued management for bison conservation
purposes and public access; and
WHEREAS, the Montana Water Rights Protection Act authorizes federal
funding to CSKT to settle damages, rehabilitate the Flathead Indian
Irrigation Project, restore the National Bison Range to tribal trust
ownership, among other provisions; now
THEREFORE BE IT RESOLVED, that ATNI supports the rights of all
tribes to negotiate agreements and compacts to settle damages and
restore and exercise their water rights; and
BE IT FURTHER RESOLVED, that ATNI supports the Confederated Salish
and Kootenai Tribes efforts to settle their water rights through--
Montana Water Rights Protection Act to promote the sovereignty of the
Tribes for future generations; provide certainty for the State of
Montana; and benefit all people and wildlife in the region, and
therefore asks that the U.S. Congress approve--Montana Water Rights
Protection Act.
CERTIFICATION
The foregoing resolution was adopted at the 2020 Virtual Mid-Year
Convention of the Affiliated Tribes of Northwest Indians, Portland,
Oregon, on June 30--July 2, 2020, with a quorum present.
Leonard Forsman, President
Norma Jean Louie, Secretary
______
Rocky Mountain Tribal Leaders Council Resolution #07--July 1, 2020
A Resolution to Support S. 3019- Mont1111a Water Rights Protection
Act, the Confederated Salish and Kootenai Tribes Water Settlement
Legislation
WHEREAS, we, the Executive Board Members of the Rocky Mountain
Tribal Leaders Council of the United States (RMTLC), invoking the
divine blessing of the Creator upon our efforts and purposes, in order
to preserve for ourselves and our descendants the inherent sovereign
rights of our Indian nations, rights secured under Indian treaties and
agreements with the United States, and all other rights and benefits to
which we are entitled under the laws and Constitution of the United
States, to enlighten the public toward a better understanding of the
Indian people, to preserve Indian cultural values, and otherwise
promote the health, safety and welfare of the Indian people, do hereby
establish and submit the following resolution; and
WHEREAS, the RMTLC has been created for the express purpose of
providing its member Tribes with a unified voice and a collective
organization to address issues of concern to the Tribes and Indian
people; and
WHEREAS, the Board of Directors of the RMTLC consists of duly
elected Tribal Chairs, Presidents and Council Members who are fully
authorized to represent their respective Tribes; and
WHEREAS, as a manifestation of their solemn duty, the Tribal
governments actively engage in policy formation on any matters that
affect the Tribes and reservations; and
WHEREAS, the governments of the various Native American nations
have exercised full sovereign authority since time immemorial,
including over their separate territories, lands, sacred grounds, and
natural resources, including clean and fresh water; and
WHEREAS, the RMTLC's mission is to preserve our homelands, defend
rights of the Indian Treaties with the United States, speak in a
unified voice, offer support to our people, offer a forum in which to
consult each other and enlighten each other about our peoples, and to
otherwise promote the common welfare of all of the Indian Peoples of
Montana, Wyoming and Idaho; and
WHEREAS, the vision of the RMTLC is a healthy, prosperous and
strong Tribal communities for our Tribal people living in Montana,
Wyoming and Idaho; and
WHEREAS, the goal of the RMTLC is to create an environment
conducive to change within our communities by cultivating positive
collaborative efforts with a sense of purpose by building strong,
healthy societies where respect and honor is a way of life.
WHEREAS, the values of the RMTLC are based on unity, mutual
respect, community, strong work ethic, accountability, kindness,
tradition, giving, pride, leadership, personal growth, gratitude, and
justice; and
WHEREAS, water is among the most sacred substances to the
Confederated Salish and Kootenai Tribes (``CSK'r or ``Tribes''), and
the tribes utilized water in their aboriginal territory that stretched
from Canada to Wyoming, and from Washington to Montana, for religious,
hunting and fishing, and sustenance purposes; and
WHEREAS, federally-reserved water rights sufficient for the Tribes'
perpetual existence on the Flathead Indian Reservation were secured at
the signing of the Hellgate Treaty in 1855, and moreover the Tribes'
aboriginal rights were confinned by the express rights of the CSKT to
hunt, fish, and gather throughout their aboriginal territory; and
WHEREAS, the United States illegally opened up the Flathead Indian
Reservation for non-Indian settlement, and created the Flathead Indian
Irrigation Project that dramatically altered natural waterways and
irreparably damaged fish and wildlife habitat of the Reservation by
creating a network of over 1,300 miles of ditches and canals filled
with irrigation structures that now serve over 1,800 irrigators, 90
percent of which are non-Indian, and would have made prior
appropriation of water rights nearly impossible to implement; and
WHEREAS, the State of Montana has pursued a state-wide adjudication
of water rights, including Indian water rights pursuant to the McCarren
Amendment as found applicable to Indian water rights in Colorado River
Water Conservation District v. United States, 424 U.S 800 (1976), and
simultaneously pursued negotiations between tribes; and
WHEREAS, the Tribes negotiated with the Stat.e of Montana and the
United States for over 15 years to quantify the Tribes' reserved and
aboriginal water rights, with the Tribes making many concessions and
compromises in an effort to find an amicable resolution, which resulted
in the Water Rights Compact Entered Into by the Confederated Salish and
Kootenai Tribes, the State of Montana, and the United States of America
(``Compact''); and
WHEREAS, the Compact benefits the Tribes by quantifying water for
the CSKT people, as was promised by the U.S. upon the signing of the
Hellgate Treaty, and benefits the State by protecting water rights for
its citizens and its wildlife, thus creating a benefit for the whole
region; and
WHEREAS, the Compact requires passage by the Tribes, the State, and
the U.S. to be implemented; and
WHEREAS, the Montana legislature approved the Compact, and on April
24, 2015, Montana State Governor Steve Bullock signed the Compact into
State Jaw; and
WHEREAS, the Compact now must be approved by the U.S. Congress; and
WHEREAS, the Montana Water Rights Protection Act is the CSKT water
settlement, which authorizes, ratifies, and confirms the Compact; and
WHEREAS, the Montana Water Rights Protection Act authorizes federal
funding to CSKT to settle damages, rehabilitate the Flathead Indian
Irrigation Project, restore the National Bison Range to tribal trust
ownership, among other provisions; and
NOW THEREFORE BE IT RESOLVED, RMTLC supports the rights of all
tribes to negotiate agreements and compacts to settle damages and
restore and exercise their water rights; and
BE IT FURTHER RESOLVED, that RMTLC supports the Confederated Salish
and Kootenai Tribes efforts to settle their water rights through S.
3019--Montana Water Rights Protection Act to promote the sovereignty of
the Tribes for future generations; provide certainty for the State of
Montana; and benefit all people and wildlife in the region, and
therefore asks that the U.S. Congress to pass S. 3019--Montana Water
Rights Protection Act into law; and
BE IT FINALLY RESOLVED, that this resolution shall be the policy of
RMTLC until it is withdrawn or modified by subsequent resolution.
CERTIFICATION
We, the undersigned, as the Chair and Secretary of the Tribal
Leaders Council, do hereby certify that the foregoing Resolution was
duly presented and approved by majority vote at an official Emergency
Board Meeting of the Rocky Mountain Tribal Leaders Council, which was
held on July 8, 2020 with 6 member Tribes present to constitute a
Quorum of the Rocky Mountain Tribal Leaders Council.
Gerald Gray, Chairman
Jestin Dupree, Secretary
______
Natural Resources Defense Council
June 22, 2020
Dear Chairman Hoeven and Ranking Member Udall,
On behalf of the Natural Resources Defense Council and its three
million members and online activists nationwide, I write in support of
The Montana Water Rights Protection Act, S. 3019. This legislation is
the product of over a decade of negotiations between the Confederated
Salish and Kootenai Tribes (CSKT), the State of Montana, and the United
States. The CSKT-Montana Water Compact was the subject of dozens of
public meetings and has bipartisan support from the Montana State
Legislature, Montana Governor, and Montana Attorney General, as well as
farmers and irrigators.
By passing S. 3019, Congress will confirm and ratify water rights
for the Confederated Salish and Kootenai Tribes, as well as settle
Tribal claims stemming from federal mismanagement of the Tribes' water
resources. In the process, the Act protects the water rights of many
non-Indians on the Reservation and throughout the western two-thirds of
Montana who would otherwise have to defend their water rights in
litigation. The Act will authorize and fund numerous remediation and
restoration projects for waterways and riparian habitats on the
Flathead Indian Reservation, as well as improve in-stream flows for
fish while creating jobs for people to implement the projects.
In addition, by passing S. 3019, Congress will transfer the
management of the National Bison Range from the U.S. Fish and Wildlife
Service to the CSKT. For over a century, the Tribes have sought to be
reunited with this land and its bison, and to once again participate in
their management. S. 3019 returns the lands in trust for the CSKT to
manage the lands for bison and other wildlife, education, and public
access. The legislation recognizes that exceptional circumstances led
to the creation of the National Bison Range, the transfer into trust
will not set precedent for other public lands, and it is now time for
Congress to act to return the land to the CSKT.
S. 3019 honors the Tribes' long conservation legacy and provides
them the opportunity to share their rich heritage and history with all
who visit the bison reserve in the future. The CSKT are well positioned
to steward the bison range--for thousands of years the Tribes have had
a cultural and spiritual relationship with bison and the Mission Valley
landscape. And, the Tribes have a wildlife and land conservation legacy
that demonstrates their commitment and knowledge of land and wildlife
stewardship. Their achievements include:
Protecting, through designated management areas, thirty
percent, or 400,000 acres, of the Flathead Reservation for
fish, wildlife, and cultural conservation.
Creating the 92,000-acre Mission Mountains Tribal
Wilderness, the first activelymanaged, tribal-designated
Wilderness area in the United States, and then establishing a
23,000-acre wilderness buffer zone to support it and the
wildlife who depend on it.
Reintroducing trumpeter swans, peregrine falcons, northern
leopard frogs, and Columbian sharp-tailed grouse to the Mission
Valley.
Restoring the meandering bends of the Jocko River that
provide habitat for westslope cutthroat trout, bull trout, and
countless other species that depend on the revived riparian
areas.
Redesigning and building-in partnership with state and
federal highway managers--U.S. Highway 93 to include 43
wildlife crossing structures-- including an overpass,
underpasses, and extensive fencing. Called ``The People's
Way,'' the improvements along this stretch of highway have
resulted in the preservation of human life and property and
reduced the number of wildlife that perish on the highway.
Thank you for considering S. 3019. The Natural Resources Defense
Council encourages you to support this bill and pass it out of Senate
Indian Affairs Committee so it can be voted upon by the entire Senate.
We appreciate you considering our views.
Respectfully,
Amy McNamara, Northern Rockies Director
______
Montana Conservation Voters
June 10, 2020
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the members of Montana Conservation Voters (MCV), a
statewide not-for-profit advocacy organization, we submit this letter
in strong support of S. 3019, the Montana Water Rights Protection Act,
introduced in the U.S. Senate by Senators Steve Daines and Jon Tester.
MCV's members have been tracking the progress of this critical
legislation which, at long last, codifies the Confederated Salish and
Kootenai Tribes's (CSKT) final settlement of claims to water rights,
and transfers the National Bison Range (NBR) to the Tribes's
management. The Montana Water Rights Protection Act is an important
step toward course-correcting decades of injustices experienced by the
Tribes, and MCV proudly supports any such effort.
The 2015 Montana Legislature ratified the CSKT' s water compact
with bipartisan support because it was negotiated in good faith.
Montana legislators don't often agree on much, but this plan earned
support from elected leaders across the Big Sky State. That speaks
volumes about the quality of this proposal. We see no reason that the
federal component of this compact--this legislation--should face any
insurmountable political hurdles in the weeks and months ahead.
The Confederated Salish and Kootenai Tribes have a strong record of
sound resource management, and the capacity to continue doing so
following the finalization of this compact. It is also worth noting
that this legislation will permanently protect water rights for many
users on the Flathead Reservation, reducing uncertainty that often
leads to litigation.
As for the National Bison Range, which sits entirely within the
boundaries of the Flathead Reservation, S. 3019 finally and fairly
resolves a long and painful dispute for the Confederated Salish and
Kootenai Tribes. Under this legislation, the NBR will continue to be
open and accessible to the general public. The Tribes have used the
lands and the resources within what is now the NBR since time
immemorial--for thousands of years before the U.S. government drew its
own political boundaries within the sovereign tribal land, without
tribal consent. S. 3019 provides a hopeful conclusion to this chapter
of injustice.
S. 3019 has earned bipartisan support. It is the product of
government-to-government collaboration that falls directly in line with
this organization's (and most Montanans') commitment to finding and
supporting fair and equitable solutions for sovereign tribal
governments and their lands, for our shared public lands, for bison and
other wildlife, and for the precious resource of water. Section 13 of
S. 3019 does exactly that.
MCV's mission includes ``striving for racial justice, equity and
inclusion, and learning from each other in an environment that does not
perpetuate or tolerate injustice of any kind.'' The decades-long
political process that culminated in the introduction of S. 3019
experienced a similar journey. Our members strongly support this
bipartisan legislation and we urge all in Congress to pass it quickly
and without delay.
Respectfully,
Aaron Murphy, Executive Director
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Timothy R. Petty, Ph.D.
Question 1. Your testimony noted, ``[w]e have reached agreement
with the Confederated Salish and Kootenai Tribes (Tribes) on a redline
amendment for the underlying bill. If that language were to be adopted,
the Department could support the bill''. The use of the word ``could''
suggests there may be additional caveats that would preclude the
Administration from supporting the redline amendment. To clarify, does
the Administration support the redline amendment?
Answer. The Administration supports the redline amendment.
Question 2. During the hearing you were asked, ``would the
Reclamation Water Settlement Fund be a useful resource to fund Indian
water rights settlements, and why would extending the fund benefit all
water users?'' Your response was:
I think the Indian Water Rights at Department of Interior is a
set structure, because it is a partnership for so many of the
different bureaus within the Department of Interior. Just as I
am here with a colleague from Interior, within the Bureau of
Indian Affairs, it is a partnership with the Bureau of Indian
Affairs, with Fish and Wildlife Service, with even obviously
Bureau of Reclamation. We have different aspects with the
Bureau of Land Management, and even Park Service components.
So, having it within that Indian Water Rights Settlement would
really be a useful tool for the Secretary to utilize with the
different bureaus who have those specific interests with how
that gets engaged.
Please clarify whether the Reclamation Water Settlement Fund, as
enacted, is a useful resource to fund Indian water rights settlements
and whether extending the fund would benefit all water users.
Answer. The Reclamation Water Settlement Fund as enacted is proving
to be a useful resource to the Department of the Interior in budgeting
the funds necessary to implement Indian water rights settlements. The
Department's views on extending the Fund are set forth in the attached
testimony dated July 18, 2018, on S.3168 and April 4, 2019, on H.R.
1904.
Question 3. I am concerned about the Department of the Interior's
reluctance to provide Congress with a better understanding of what
activities of enacted Indian water rights settlements are eligible for
the Reclamation Water Settlement Fund, beyond the priority settlements
listed in section 1050l(c)(3) of P.L. 111-11.
On March 11, 2019, Bureau of Reclamation Commissioner Brenda Burman
appeared before the Senate Committee on Appropriations, Subcommittee on
Water and Power to discuss the President's budget request. The
following exchange took place:
Senator Udall: Can you explain whether there are sufficient
authorized activities to use the entire reclamation water
settlement fund, and will you commit to work with us to provide
that information to Congress so that we can unlock the
settlement fund for future settlements?
Commissioner Burman: Senator, Reclamation believes there are
more than enough activities to use the entire fund, as
currently laid out. We would be happy to work with you and with
the committee to clarify any questions or to bring information.
In follow-up questions for the record, I requested the Bureau of
Reclamation provide information on how there ``are more than enough
activities to use the entire fund''. Yet in the Department's response,
it indicated it was unwilling to provide Congress with the details on
how it arrived at this conclusion. This is critical information for our
Committee to consider in authorizing future Indian water rights
settlements.
Please provide a list of enacted Indian water rights settlements
that are eligible for funding under the Reclamation Water Settlement
Fund and specify how much funding would be available for each.
Answer. As noted, P.L. 111-11 Section 10503 (c)(3) established
tiered funding priorities for seven Indian water rights settlements.
Under current law, the Reclamation Water Settlement Fund is expected to
receive deposits of up to $120 million per year for 10 years, or $1.2
billion. The priority for each settlement is conditioned on Congress
enacting legislation authorizing the settlement by December 31, 2019.
The list of the five enacted water rights settlements specified as
priorities that are eligible to receive this funding, per PL 111-11, is
as follows:
Navajo-Gallup Water Supply Project ($500 million).
Other New Mexico Settlements, which includes both the Aamodt
adjudication and the Abeyta (Taos) adjudication ($250 million).
Montana Settlements, which includes the Blackfeet Tribe and
Crow Tribe ($350 million).
Two settlements designated as priorities in P.L. 111-11--Gros
Ventre and Assiniboine Tribes of the Fort Belknap Reservation (Montana)
and the Navajo Nation Lower Colorado (Arizona)--were not enacted by
December 31, 2019. Therefore, these two settlements no longer retain
the priority designation.
The decision on the allocation of funds from the Reclamation Water
Settlements Fund is made annually based on the priorities in P .L. 111-
11, funding requirements for each of the settlements, and circumstances
at the time. Most of the settlements designated in P .L. 111-11 have
settlement deadlines in FY 2024 through FY 2025 and will require the
full amounts available in the Reclamation Water Settlements Fund for at
least the first five years.
In addition to funding settlements designated as priorities in P
.L. 111-11, if funds are available from the Reclamation Water
Settlements Fund--after ensuring there are sufficient funds for the
priorities establish in P .L.111-11--there are a number of other
enacted water rights settlements that could be considered. This could
include funds to implement the Gila River Indian Community Water Rights
Settlement, San Carlos Apache Water Right Settlement, Southern Arizona
Water Rights Settlement, White Mountain Apache Tribe Water Rights
Quantification, or Ak-Chin Water Rights Settlement in Arizona; and Nez
Perce in Idaho.
Question 4. Describe the financial impacts on Lake and Sanders
Counties that would stem from conveying the National Bison Range to the
United States to be held in trust for the benefit of the Tribes, along
with estimated costs per activity.
Answer. There would be no negative financial impacts on Lake and
Sanders Counties as a result of the legislation restoring the National
Bison Range to federal trust ownership for the Tribes. Section
12(k)(l)(A) of S. 3019, as introduced, would continue the existing
level of payments that the Counties receive from the U.S. Fish &
Wildlife Service under the Refuge Revenue Sharing fund. Section
12(k)(2) requires those payments to be equal to the amount the Counties
would have received if the legislation had not been enacted. For
amounts of such funding, see response to question #6.
Question 5. Please provide a list of authorized Indian water rights
settlements that have included a direct payment to surrounding
communities, along with citations, to compensate for impacts associated
with a settlement.
Answer. It is unusual, but not unprecedented, for Indian water
rights settlement to include direct payments to surrounding
communities. Section 5(b) of the Snake River Water Rights Settlement
Act of 2004, P.L. 108-447; Div. J; Title X, 118 Stat. 3431, 3433,
provides:
(b) MITIGATION FOR CHANGE OF USE OF WATER.--
(1) AUTHORIZATION OF APPROPRIATIONS.--There is authorized to
be appropriated to the Secretary $2,000,000 for a 1- time
payment to local governments to mitigate for the change of use
of water acquired by the Bureau of Reclamation under section
111.C.6 of the Agreement.
(2) DISTRIBUTION OF FUNDS.--Funds made available under
paragraph (1) shall be distributed by the Secretary to local
governments in accordance with a plan provided to the Secretary
by the State.
(3) PAYMENTS.--Payments by the Secretary shall be made on a
pro rata basis as water rights are acquired by the Bureau of
Reclamation.
Question 6. What are the amounts and sources of payments that Lake
and Sanders Counties ``would have received'' if Section 12(k) were not
enacted? How was that figure calculated?
Answer. Under the Refuge Revenue Sharing Act (16 U.S.C. 715s),
the U.S. Fish and Wildlife Service (USFWS) makes annual payments to
counties for true-exempt USFWS-managed lands to offset true losses. The
funding is derived from net income the USFWS receives from the sale of
products or privileges on refuges, such as from timber sales and
grazing leases, and direct Congressional appropriations. Per the Refuge
Revenue Sharing Act, the calculations for payments to counties and
other units of local government for land purchased by or donated to
USFWS is based on the greater of: (a) 3/4 of 1 percent of the market
value; (b) 25 percent of the net receipts; (c) 75 cents per acre.
Historically, the payments for National Bison Range lands have been
based on the market value calculation.
When there is not enough revenue funding to cover the payments,
Congress is authorized to appropriate money to make up the difference.
If the amount Congress appropriates is not enough, the payments the
Service distributes to counties and other local governments is based on
a pro-rata share.
The amount varies each year; in FY 2020, for lands associated with
the National Bison Range, Lake County received $9,652 and Sanders
County received $11,257.
Question 7. What are the estimated number of jobs that would be
created in Lake and Sanders Counties if the settlement were enacted and
fully implemented?
Answer. In the Department's testimony before the Senate Committee
on Indian Affairs, Assistant Secretary Petty highlighted that funding
authorized under S. 3019 would create significant economic activity in
the region on and near the Reservation, which includes Lake and Sanders
Counties. The Department's analysis concluded that the economic
activity would support direct, indirect, and induced jobs in the
region, including approximately 520 permanent jobs ( of which
approximately half are seasonal), and approximately 4,650 temporary
construction and restorationjobs through rehabilitating and modernizing
FIIP and restoring natural resources damaged by FHP operations.
Question 8. Senator Daines noted that decommissioning the Flathead
Indian Irrigation Project ``would devastate the economies of Lake and
Sanders Counties''. What are the economic impacts to Lake and Sanders
Counties if this settlement was not authorized and the Flathead Indian
Irrigation Project were to be decommissioned? What are the benefits?
Answer. The Department has not analyzed the economic impacts of the
potential decommissioning of FHP on Lake and Sanders Counties
specifically. However, the Department has analyzed the effects on total
economic activity in the State of Montana if the United States and
Tribes were to succeed on their instream flow claims, and a range of
irrigated agriculture acreage was converted to dry land farming.
Depending on the amount of irrigation water supply curtailed, the
effects on total State of Montana economic activity are estimated to
range from a reduction in labor income of$12.9 million to $34.7 million
per year and a reduction in employment of between 110 to 310 jobs. The
majority of the income effect and at least half of the employment
effect would likely be felt in Lake and Sanders Counties. (All direct
impacts to farm income and farm jobs would be in Lake and Sanders
Counties.) Given that over two thirds of Lake County's lands lie within
the Flathead Reservation, it is reasonable to expect that the majority
of On-Reservation impacts would be felt by Lake County residents. The
impacts would likely be less in Sanders County. Apart from benefits
related to instream flows and fish habitat, the Department has not
identified any economic benefits to Lake and Sanders Counties if FIIP
were to be decommissioned.
Question 9. Section 9106 of P.L. 111-11 required the Secretary to
submit a report to Congress no later than March 30, 2011, to conduct a
study of Pueblo irrigation infrastructure and develop a list of
projects that are recommended to be implemented to repair,
rehabilitate, or reconstruct Pueblo irrigation infrastructure. Please
provide an update to the Committee on the status of the report.
Answer. The Department has completed a draft Study Report pursuant
to Section 9106 of P .L. 111-11 that includes surveys of the existing
irrigation infrastructure at each Pueblo, a list of Pueblo irrigation
improvement projects recommended for implementation, as well as the
other items provided for in subsection (c)(4). The draft is currently
being edited to address reviewer comments.
______
Response to Written Questions Submitted by Hon. Steve Daines to
Hon. Timothy R. Petty, Ph.D.
Question 1. Where in the CSKT Compact are the damages to be paid to
the 3500 irrigators who lost their irrigation rights to the tribe and
had their traditional amount of irrigation water cut in half?
Answer. This question was answered in the attached letter from
David L. Bernhardt, Secretary, Dep't of the Interior, to the Honorable
Steve Daines, Senator, United States Congress, Section B.2 (Nov. 18,
2019).
Question 2. How do you avoid the Winters Doctrine which established
compacts and the procedure to get water to meet the purpose of the
reservations to make them productive?
Answer. This question was answered in the attached letter from
David L. Bernhardt, Secretary, Dep't of the Interior, to the Honorable
Steve Daines, Senator, United States Congress, Section B.2 (Nov. 18,
2019).
Question 3. Why is the Tribe given the authority to manage all of
the water on the open CSKT Reservation when the Montana Department of
Natural Resources DNRC was formed to treat everyone the same?
Answer. This question was answered in the attached letter from
David L. Bernhardt, Secretary, Dep't of the Interior, to the Honorable
Steve Daines, Senator, United States Congress, Section B.2 (Nov. 18,
2019).
Question 4. Why is the Hell gate Treaty and Federal and state
constitutions avoided in issues of land and water, off the CSKT
Reservation?
Answer. This question was answered in the attached letter from
David L. Bernhardt, Secretary, Dep't of the Interior, to the Honorable
Steve Daines, Senator, United States Congress, Section B.2 (Nov. 18,
2019).
Question 5. Why are the required studies not made available such as
legal, economic, and environmental?
Answer. The relevant legal, economic, and environmental studies
undertaken in the development of the Compact were provided to and
considered by all parties.
Question 6. Would you provide examples of how you intend to
implement this legislation, when it's in clear violation of Fifth
Amendment ``taking'' clause?
Answer. The legislation will be implemented as provided in the
legislation and the Compact consistent with the Fifth Amendment of the
United States Constitution. See Letter from David L. Bernhardt,
Secretary, Dep't of the Interior, to the Honorable Steve Daines,
Senator, United States Congress (Nov. 18, 2019).
Questions 7 and 8. Would you provide examples of how you intend to
implement this legislation, when it's in clear violation of Fourteenth
Amendment Equal Protection clause?
Answer. The legislation will be implemented as provided in the
legislation and the Compact consistent with the Fourteenth Amendment of
the United States Constitution. See Letter from David L. Bernhardt,
Secretary, Dep't of the Interior, to the Honorable Steve Daines,
Senator, United States Congress (Nov. 18, 2019).
Question 9. Why do you need such a drastic change in centuries of
water law in America?
Answer. This settlement is consistent with established water law in
America. See Letter from David L. Bernhardt, Secretary, Dep't of the
Interior, to the Honorable Steve Daines, Senator, United States
Congress, Sections A & B.l (Nov. 18, 2019).
Question 10. Do you have a plan to deal with every tribe in America
who will then want what only this tribe has if you pass this: off
reservation water right, with a time immemorial seniority date on any
area they may have once ever fished?
Answer. Every settlement of federal Indian reserved water rights is
based on the unique circumstances, history, and claims of the Tribe or
Tribes involved.
Question 11. How will you then be able to violate all those State
constitutions, as you will have done to Montana?
Answer. This settlement is consistent with the Constitution of the
United States and the State of Montana's constitution. See Letter from
David L. Bernhardt, Secretary, Dep't of the Interior, to the Honorable
Steve Daines, Senator, United States Congress (Nov. 18, 2019).
Attachment
The Honorable Steve Daines,
United States Senate,
Washington, DC.
Dear Senator Daines:
I have received your correspondence regarding the proposed
settlement of the reserved water right claims of the Confederated
Salish and Kootenai Tribes (CSKT or Tribes). Although I did not
participate in the negotiation of this proposed settlement, I have
evaluated the matter. In sharing my perspective, it may be useful to
know that I have been involved with the negotiation and approval of
other water rights settlements over the last two and a half decades.
I understand that following nearly a decade of negotiations,
negotiators for the Tribes, the State of Montana (State), and the
United States submitted to their respective principals a proposed
settlement of the Tribes' reserved water right claims known as the CSKT
Water Rights Compact or CSKT Compact. The Compact, approved by the
Montana legislature in 2015, is cun-ently proceeding through the
appropriate Federal review and approval processes.
As a general policy matter, for more than 30 years, the United
States has supported resolving Indian reserved water right claims
through negotiations rather than protracted and divisive litigation. I
am informed that during the course of negotiating and reviewing the
CSKT Compact, concerns and objections were raised about whether
proposed Compact terms appropriately resolved the Tribes' claims and
about the perceived impacts that the Compact could have on non-Indian
water right holders. These concerns are important, and it is my
understanding that these concerns were considered and evaluated during
the negotiations, in the context of potential risks and liabilities
resulting from non-settlement.
Given your commitment to resolving longstanding issues and avoiding
needless litigation, you have asked for the Department of the
Interior's (Department) views on these concerns. I would like to
provide our perspective at this time on how I understand that these
concerns have been addressed.
A. Background on the CSKT Reserved Water Right Claims
Historically, the Federal Government, when called upon to file
reserved water right claims as trustee for a Tribe and its members,
files claims that it determines are legally justified under Federal
law, including under the Tribe's treaty or other documents creating the
Tribe's reservation, and that are consistent with State and Federal
court decisions interpreting the Winters reserved water rights
doctrine. These initial filings by the United States tend to be broad
in scope, based on credible claims that can be supported with competent
expert testimony.
In 2015, using this framework, the United States and CSKT filed in
the Montana Water Court several categories of reserved right claims,
including these that relate to the concerns discussed below:
Instream flows to support the fisheries, both on- and off-
Reservation, based on language in the CSKT Hellgate Treaty
expressly reserving Tribal fishing rights.
The irrigation water supply for the Bureau of Indian Affairs
(BIA) Flathead Indian Irrigation Project (FIIP or Project) to
serve all lands within the Project, both Indian and non-Indian.
Future irrigation water for the CSKT, consistent with U.S.
Supreme Court precedent.
When parties propose settlement of a Tribe's reserved claims, the
United States traditionally evaluates the agreement from various
perspectives, including:
Does the proposed settlement secure adequate Tribal water
resources to meet the purposes of the reservation?
Are the Tribe's water rights legally protected and
enforceable?
Would the settlement resolve all of the Tribe's reserved
water right claims?
If a BIA irrigation project is involved, are the water
rights for the project properly resolved?
Are proposals to address how water rights on the reservation
would be administered and enforced acceptable?
B. Discussion of CSKT Compact Concerns
It is my understanding that the primary concerns about the Compact
raised to date tend to fall into three main themes:
Objections to the inclusion ofreserved rights for off-
Reservation instream flows.
Objections to how the Compact resolves the water rights for
FIIP in conjunction with the CSKT reserved rights for on-
Reservation instream flows.
Assertions that the Compact's approach to administering and
enforcing water rights on the Reservation is unconstitutional,
primarily under Montana law.
I address each of these three themes below.
1. Reserved Rights for Off-Reservation Instream Flows
Concerns have been raised about whether there is a legal basis for
the off-Reservation flow rights CSKT would obtain under the Compact.
These concerns are understandable. Although there is extensive
experience with reserved off-reservation flow claims elsewhere in the
Northwest, fewer such claims have been addressed in Montana. That said,
similar claims were confirmed in the legislation approving the
Blackfeet Water Rights Compact. The CSKT Compact, however, is the first
time that claims based on a treaty reserving off-Reservation fishing
rights have been addressed in Montana.
The United States and CSKT filed off-Reservation reserved instream
flow claims premised on the Hellgate Treaty and its promise in article
III that Tribal members may fish off the Reservation at ``all usual and
accustomed places, in common with citizens of the Territory.'' These
claims are intended to protect Tribal members' ability to fish in the
rivers and streams where Tribal members fished at the time of the
Treaty in order to provide a meaningful fishery. This language is
virtually the same as clauses found in several Indian treaties in the
Pacific Northwest known as ``Stevens Treaties,'' which were negotiated
in 1854-55 with Washington Territory Governor Isaac Stevens. Generally,
the legal premise is that in the Stevens Treaties, when Tribes
expressly reserved off-Reservation fishing rights, they impliedly
reserved the water rights necessary to support the fishing purpose.
This theory follows the holdings in Winters and Winans that Tribes may
reserve aboriginal rights when entering into treaties establishing
reservations. (See Winters v. United States, 207 U.S. 564 (1908);
United States v. Winans, 198 U.S. 371 (1905).)
To illustrate, Federal and State courts have considered the water
rights of the Yakama Nation, a Stevens Treaty Tribe with treaty
language equivalent to the Hellgate Treaty language. Federal courts
have ordered that water be released from a Federal reservoir to protect
spawning flows needed to support the Yakama Nation's off-Reservation
fishing right more than 50 miles upstream of the Yakama Reservation.
(Kittitas Reclamation District v. Sunnyside Valley Irrigation District,
763 F.2d 1032, 1033-35 (9th Cir. 1985).) Washington trial and appellate
State courts also have made extensive rulings finding and clarifying
the Nation's rights to off-Reservation flows for fisheries throughout
the Yakima River basin. The Yakama Nation's adjudicated water rights
extend throughout the Yakima basin, even though the Reservation only
occupies the southwestern portion of the basin. Further, courts have
found that these rights have a priority date of time immemorial.
Another illustrative case is United States v. Adair, where the
Federal courts concluded that the Klamath Tribes' treaty recognized the
Tribes' aboriginal title in the reservation lands and natural resources
and confirmed to the Tribes ``a continued water right to support its
hunting and fishing lifestyle on the Klamath Reservation.'' (723 F.2d.
1394, 1413-14 (9th Cir. 1984).) These courts held that the Klamath
Tribes therefore enjoyed water rights sufficient to support their
treaty fishing, hunting, and gathering rights with a ``time
immemorial'' priority. The Adair decision also defined how to quantify
the Klamath Tribes' instream rights, recognizing the Tribes' water
right included the right to prevent other appropriators from depleting
the streams' waters below a protected level in any area where the non-
consumptive right applies. Subsequently, Phase I of the State of
Oregon's Klamath Basin Adjudication resulted in a Final Order of
Dete1mination issued in 2013 that quantified the Tribes' instream flow
right.
The Department determined that the case law, the history of the
Tribes, and the Hellgate Treaty supported off-Reservation flow claims
for CSKT in the Montana adjudication. It found that it was appropriate
to address these claims as pait of the Compact. These reserved rights
are Tribal property rights, but they do not provide for Tribal
jurisdiction off the Reservation. Resolution of the Nez Perce Tribe's
reserved water right claims for flows in the Snake River Basin
Adjudication in Idaho does not change our conclusion. In that case, a
State trial judge found the Nez Perce Tribe (which has a Stevens
Treaty) was not entitled to off-Reservation instream flows. However,
the State trial court's decision is not binding, and, in any event, the
Tribe agreed in that litigation to settle its off-Reservation flow
claims for extensive instream flow protections under State law that
they can enforce. As with the CSKT claims, the Federal Government found
these settlement proposals to be an appropriate resolution to the
Indian reserved claims at issue.
2. Resolution of the Water Rights for FIIP in Conjunction with the CSKT
Reserved Rights for On-Reservation Instream Flows
I understand that a central concern is that the Compact may deprive
water users served by FIIP of their entitlements to Project water. In
fact, it appears that one of the most contentious issues during the
negotiation was how to address the FIIP irrigation water right claims.
Further, because the FIIP water rights and the Tribes' on-Reservation
reserved flow rights often compete for the same water supply,
addressing in tandem these two rights was critical for reaching a
successful settlement.
The United States filed comprehensive water right claims for the
entire FIIP irrigation water supply to serve all lands in the project,
both Indian and non-Indian. It appears that one of the Department's
primary goals during the negotiations was to preserve the historical
irrigation water use on lands served by FIIP. This position comports
with the Federal Government's past practice in general stream
adjudications to claim the entire water supply of Federal irrigation
projects. Also, as detailed below, Federal courts have confirmed the
Tribes' entitlement to on-Reservation reserved instream flow right and
these rights have a priority date of time immemorial and thus are
senior to the FIIP water rights. (See Joint Board of Control v. United
States, 832 F.2d 1127 (9th Cir. 1987); Joint Bd. of Control of the
Flathead, Mission & Jocko Irrigation Dists. v. United States, 862 F.2d
195 (9th Cir. 1988).) The Federal courts left to the Montana Water
Court the job of quantifying the amount of flow required to satisfy
these rights; if these claims cannot be settled, the Water Court will
proceed with that task.
Concerns remain that the Compact would permanently reduce the FIIP
water supply. I understand that this concern was a central one in the
negotiations, and the Compact protects the net FHP water supplies
needed to inigate crops. Tribal, State and Federal negotiators employed
technical studies to determine that historical net inigation supplies
could be maintained and protected while project improvements were made
to save water for instream flows. To this end, diversions under the
Compact initially remain the same as historical amounts. As FIIP
improvements and water conservation measures are implemented, the saved
water is left instream to help meet flow rights. In turn, FIIP
diversions would be reduced by a commensurate amount while ensuring
that net crop demands continue to be met. As a safeguard, the Compact
provides that, during implementation, irrigation diversions ``shall be
evaluated to ensure their adequacy to meet Historic Farm Deliveries.''
(Compact, Article IV.D.1.e.) If water in excess of those deliveries is
needed, it will be provided by increasing water pumped from Flathead
Lake. (Compact, Article IV.D. l .e.ii.)
There are additional terms that would further safeguard FIIP water
use. The CSKT and the State committed in the Compact to seek Federal
legislation to provide funds from power revenues on the Reservation to
improve FIIP operations and water supplies. (Compact, Article IV.H.3.)
They also agreed to several provisions in the Compact that protect the
FIIP water supply in times of shortage, including sharing between
instream flows and irrigation diversions. In dry years when ``water
supplies are inadequate to simultaneously satisfy'' instream flows and
irrigation diversions, the Compact sets out several measures that can
be taken to augment irrigation water. (Compact, Atticle IV.E.1.3.)
The negotiators also addressed assertions that the Compact takes
legal title to the FIIP water rights away from landowners served by
FIIP and places it with CSKT. There is little precedent, however,
supporting third-party party claims to legal title to BIA project water
rights held in trust for Tribes. In contrast, Indian settlements in
Montana and Idaho placed title to BIA irrigation project water rights
in the name of the United States in trust for the Tribe, even for BIA
projects that serve both Indian and non-Indian irrigators on a
reservation. We also note that Washington State courts adjudicated the
water rights for the BIA irrigation project on the Yakama Reservation,
which serves extensive non-Indian lands, to be properly held by the
United States in trust for the Yakama Nation.
However, the Depaitment also recognizes that all landowners served
by a BIA irrigation project, whether Indian or non-Indian, are entitled
to continue to receive project irrigation water to the extent the water
is physically and legally available and assessments have been paid. The
CSKT Compact includes protections for FIIP water users' entitlements to
Project water. (See Compact, Article III.C.1.a ( expansive definition
of FIIP service area); Compact, Article IV.D.2 (recognition of
entitlement through a ``delivery entitlement statement'').)
Finally, I note the obvious risks that FIIP water users would face
if the quantification of CSKT' s on-Reservation instream flow rights
cannot be settled. As noted above, Federal courts in the 1980s
recognized CSKT's entitlement to on-Reservation instream flow rights
throughout the Reservation with a time-immemorial priority date that is
senior to FIIP. Under this legal precedent, water would not be shared
between FIIP and the instream flows; rather, instream flows would be
met first to the full extent of their legal entitlement. The one
question that the Federal comts left for the Montana courts was the
quantification of CSKT's on-Reservation flow rights. Currently, Federal
claims seek instream flow rights for the majority of water even in
wetter years; if the courts were to confirm this claim, water for FIIP
diversions would be available only in the wetter years and only to the
extent not needed to meet the instream flow right. Even if the Water
Court were to quantify the right at a lower median range, the
Department's assessments show a likelihood that insufficient water will
remain for viable FIIP irrigation diversions. Some objectors to the
Compact argue that the ``interim instream flows'' established by BIA in
the late 1980s should be the permanent quantification of the Tribes'
flow rights. In my view, this position faces significant risk because
the interim flows are not quantified and they do not appear
biologically sufficient. The Compact, in contrast, ensures water for
FIIP that otherwise might not be available if these claims were
litigated.
For these reasons, the Department concluded that the Compact would
appropriately resolve both the FIIP itTigation and the CSKT flow
rights.
3. Administration of Water Rights on the Flathead Reservation under the
Compact
Concerns have been raised about the Compact's terms for on-
Reservation administration and enforcement of water rights after entry
of a decree. This is set fo1th in the ``Unjtary Administration and
Management Ordinance'' (UMO), and administered by the joint State-
Tribal ``Flathead Reservation Water Management Board'' (Board) of water
rights post-decree. Montana State government entities are best
positioned to respond to assertions that these terms violate the
Montana Constitution. The State-under the auspices of the Montana
Reserved Rights Commission, the Attorney General's Office, and legal
counsel for the Montana legislature--has analyzed the matter and
concluded that the UMO is constitutional. The Montana Supreme Court has
also confirmed that the legislature's approval of the Compact,
including the UMO, complied with State law.
As noted above, it is my experience that, during the entirety of my
professional career, the Federal Government has consistently supported
efforts in Tribal water right negotiations to address how water rights
on the reservation will be administered and enforced once a settlement
is reached. In this negotiation, given the vast number of commingled
Tribal and non-Tribal water uses on the Reservation, the parties
explored proposals to create a single Tribal-State administrative body
to administer on-Reservation rights, rather than a system of dual
administration by the State and the Tribes. The single administrative
body, the Board, consists of five voting members. CSKT and Montana
would each appoint two board members. A fifth board member is then to
be selected by the four appointees, or, if they cannot agree,
alternative provisions exist for the appointment of the fifth board
member. There are also provisions for local county commissioners'
involvement in the selection of the State representatives. (Compact,
Article IV.1.1.2.) The jurisdiction of the Board is limited to
approving new rights, authorizing changes in use, and enforcing
existing rights as set forth by the Compact. (Compact, Article IV.1.4.)
The Department did an extensive review of the UMO and concluded
that, while the administration of on-Reservation rights through a
single management board is novel, the te1ms of the Compact establish a
workable and appropriate administration regime, provided that the Board
and UMO are authorized by the State legislature, the Tribes, and
Congress.
The Depai1ment's review of the UMO focused on whether the UMO
properly recognized and protected the water entitlements of the Tribes
and Indian allottees on the Flathead Reservation; improperly placed the
management and administration of the water rights of non-Indian
residents on the Reservation under Tribal jurisdiction; and provided
basic due process protections to all water rights holders. First, with
respect to the Federal reserved water rights of the Tribes and Indian
allottees, which fall within Congress' restrictions against alienation
and the unique protections for allottee water rights, the Depai1ment
concluded that the Board, as governed by the UMO and the Compact,
provided ample protections. Second, the State concluded that the UMO
did not place non-Indian residents on the Reservation under Tribal
jurisdiction. The Depai1ment concurs in that conclusion. The Board has
been approved by the Montana legislature (as well as by the Tribes and
the United States). Therefore, the Board's activities with regard to
non-Indians constitute an exercise of State jurisdiction.
Finally, the UMO accords those appearing before the Board the same
substantive standards and procedures available to others in the State.
The Compact makes clear that the Board lacks the authority to amend the
UMO, preventing changes to these procedures. (Compact, Article IV.J.)
(``No amendment by the Tribes or the State of the Law of Administration
shall be effective unless and until the other makes an analogous
amendment.'') The Compact further provides the opportunity for judicial
review of decisions made by the Board in a court of competent
jurisdiction. (Compact, Article IV.1.6.) Although patties may argue
whether that review lies in State or Federal court, nothing in the
Compact extends Tribal court jurisdiction over non-Indian water rights
holders. The Department ultimately agreed with the State's conclusion
that the UMO procedures that govern the Board in conjunction with the
opportunity to seek judicial review of the Board's decision protect the
due process rights of both non-Indian and Indian water rights holders.
C. Conclusion
Through its negotiation team, the Federal Government actively
participated in the CSKT reserved water right negotiations. Once
negotiations were completed, the Federal team brought the proposed CSKT
Compact to the Interior and Justice Departments for review and
consideration whether to support the Compact. The Department of the
Interior has evaluated the core concerns and criticisms that have been
raised with respect to the Compact and found that these concerns were
addressed in the negotiations.
I look forward to working with you as you work to resolve this
important issue in Congress.
______
*RESPONSES TO THE FOLLOWING QUESTIONS FAILED TO BE
SUBMITTED AT THE TIME THIS HEARING WENT TO PRINT*
Written Questions Submitted by Hon. Tom Udall to
U.S. Environmental Protection Agency
Question 1. Please provide the Committee with a list of Indian
tribes in the portion of the Columbia River Basin that is south of the
Columbia River, below the Grand Coulee Dam, or is in an adjacent
coastal basin, which would be eligible under 2(1)(D) of S. 3044.
Question 2. Please provide a list of Indian tribes located in the
Columbia River Basin that have been terminated and subsequently
restored, which would be eligible under 2(3)(B) of S. 3044.
[all]